Baker Electric

National Labor Relations Board - Board Decisions

Sep 29, 2007

351 N.L.R.B. 515 (N.L.R.B. 2007)

D. L. BAKER, INC.
351 NLRB No. 35
515
D. L. Baker, Inc. t/a Baker Electric and its alter ego
and/or successor Baker Electric, Inc.; Herndon
Animal Medical Center, Inc.; and Daniel L.
Baker, and Maggie Barry, Individually and In-
ternational Brotherhood of Electrical Workers,
Local Union No. 26. Cases 5–CA–24131 and 5–
CA–24190
September 29, 2007
SUPPLEMENTAL DECISION AND
ORDER REMANDING
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On March 28, 2001, Administrative Law Judge Tho-
mas R. Wilks issued the attached Supplemental Decision,
Order of Severance, and Remand. Thereafter, the Gen-
eral Counsel, the Charging Party International Brother-
hood of Electrical Workers, Local Union No. 26 (the
Union), and Respondent Baker Electric, Inc. (BEI) filed
exceptions and supporting briefs. Respondents D.L.
Baker, Inc. (DLB) and Herndon Animal Medical Center,
Inc. (HAMCI) filed cross-exceptions1 and supporting
briefs. The General Counsel, the Union, and Respon-
dents DLB, Daniel L. Baker (Baker), BEI, and Maggie
Barry (Barry) filed answering briefs, and the General
Counsel, the Union, and Respondents DLB and BEI filed
reply briefs. The General Counsel also filed a motion to
strike attachments to DLB’s brief in support of its cross-
exceptions.2 DLB filed an opposition brief, and the Gen-

1 DLB and HAMCI incorporate by reference BEI exceptions 1–15;
HAMCI also incorporates by reference “any other” Respondents’ ex-
ceptions.
2 Only the General Counsel filed a separate formal motion to strike
attachments. The Union similarly “moved” via brief, and also to strike
attachments to BEI’s exceptions. DLB seeks to strike the attachments
to the General Counsel’s exceptions brief if the Board strikes DLB’s
attachments, and also to strike attachments to the General Counsel’s
posthearing brief. The General Counsel’s (and the Union’s) argument
is that DLB’s (and BEI’s) attachments include charts (showing various
backpay “adjustments”) containing “legal argument” that, together with
the brief, exceed the Board’s 50-page limit, and also include correspon-
dence not entered into evidence. As to the correspondence, we note
that, in the underlying merits decision, Judge Ladwig observed that
DLB had gone “outside the record” in attaching unintroduced docu-
ments to its posthearing brief, but he found “no necessity to strike the
improperly filed attachment.” Baker Electric, 317 NLRB 335, 343
(1995), enfd. mem. 105 F.3d 647 (4th Cir. 1997), cert. denied 522 U.S.
1046 (1998). The Board did not find otherwise then, and we likewise
find no necessity or prejudice here. As to the charts, we have disre-
garded them as part and parcel of the Respondents’ misguided attempt,
which we reject in sec. VI,B, below, to persuade the Board to deviate
from its longstanding, traditional mitigation standards and to micro-
manage discriminatee Tangy’s mitigation efforts. Having disregarded
these attachments, we find it unnecessary formally to strike them. See
Ryder Distribution Resources, 311 NLRB 814, 817 fn. 13 (1993) (stat-
ing that Board did not rely on attachment to brief and therefore need
not pass on GC’s motion to strike attachment). Because we do not
eral Counsel and the Union requested special permission
to file a reply, which DLB opposed.3
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, findings,4 and conclusions
only to the extent consistent with this Supplemental De-
cision and Order Remanding.
I. OVERVIEW
This compliance proceeding is the latest chapter in
protracted litigation over a variety of remedial issues
arising out of the Board’s Decision and Order finding
merit in certain unfair labor practice (ULP) allegations.
See Baker Electric, 317 NLRB 335 (1995). Respondent
DLB is an electrical contractor. Dan Baker is the sole
shareholder of DLB. In the liability phase, the Board
found that DLB violated Section 8(a)(3) of the National
Labor Relations Act (the Act) by discriminatorily dis-
charging employee Michael Tangy due to his organizing
efforts on behalf of the Union, and Section 8(a)(5) by
refusing to recognize the Union and by failing to honor
the terms of an 8(f) prehire agreement. As to the latter,
the Board rejected DLB’s defense that the charges were
untimely filed under Section 10(b) of the Act because of
the passage of 16 years and the occurrence of intervening

strike DLB’s (or BEI’s) attachments, we need not pass on DLB’s con-
tingent request.
3 Although we grant permission to file reply briefs, we strike, as a
disguised surreply, DLB’s opposition to the General Counsel’s and the
Union’s requests for special permission to file a reply. This is consis-
tent with the Board’s general policy of not permitting surreply briefs
“except by special leave” where circumstances so warrant, as explained
in the Board’s Order earlier in this case granting the General Counsel’s
Motion for Partial Summary Judgment. Baker Electric, 330 NLRB
521, 521 fn. 4 (2000).
4 The General Counsel, the Union, and the Respondents have ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
DLB contends that the judge erred by not striking discriminatee
Tangy’s testimony due to the revelation, midway through the hearing,
that the Union had begun “subsidizing” Tangy for wages lost while
testifying, which subsidy is to be reimbursed from Tangy’s backpay
award. Rather than striking the testimony, the judge considered the
subsidy in evaluating Tangy’s credibility. DLB’s citation to a federal
criminal statute dealing with bribery and to clearly inapposite caselaw,
along with counsel’s distortion of Tangy’s testimony, misses the point.
As the judge rightly observed, the situation presented here is nothing
more than an advance of backpay due (and even if it were not, the
Board has deemed employee wages to be a reasonable measure for
determining witness fees, see, e.g., General Electric Co., 230 NLRB
683, 685 (1977)). Thus, we find no error in the judge’s refusal to strike
Tangy’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD516
events that assertedly precluded applying and enforcing
the 8(f) agreement against DLB. The Board’s remedial
order provided for three categories of claimants: (1)
Tangy (reinstatement, backpay), (2) DLB’s own employ-
ees (wage rate differentials, expenses, and fringe benefit
contributions), and (3) hiring hall claimants, i.e., indi-
viduals DLB should have hired and did not hire under the
8(f) agreement’s hiring hall provisions (backpay, ex-
penses, and fringe benefit contributions). In mid-1995,
almost immediately after the Board’s Order in the ULP
phase issued, DLB, also in trouble with the Internal
Revenue Service (IRS), sold its assets to BEI. BEI’s sole
shareholder is Maggie Barry, Baker’s wife. DLB’s as-
sets were not offered to any other potential buyer. Barry,
a veterinarian, is also the sole shareholder of HAMCI.
Originally a sole proprietorship, HAMCI was incorpo-
rated by Barry during the pendency of this case.5
After the Fourth Circuit Court of Appeals enforced the
Board’s Order, mem. 105 F.3d 647 (1997) (per curiam),
and the Supreme Court denied certiorari, 522 U.S. 1046
(1998), the Board’s Regional Office issued a compliance
specification (CS). The original CS alleged that BEI was
both a successor to and an alter ego of DLB, and, under
either theory, jointly and severally liable for DLB’s obli-
gations. The CS further alleged that Baker and Barry
diverted DLB’s and BEI’s corporate funds to themselves;
therefore, the CS seeks to pierce the corporate veils of
DLB and BEI and hold Baker and Barry individually
liable. The General Counsel amended the CS during the
hearing to add HAMCI as a party. The Board granted
partial summary judgment on the CS. See Baker Elec-
tric, 330 NLRB at 522–523.
The CS alleged a total backpay liability of
$2,914,030.18. It alleged a backpay liability period for
the Respondents’ failure to adhere to the 8(f) agreement
from August 7, 1993 (the beginning of the 10(b) period),
through May 28, 1997 (when the Respondents sent a
letter to the Union formally repudiating the 8(f) agree-
ment and bargaining relationship). The Respondents
counter that the agreement was repudiated no later than
March 31, 1994. The CS also alleged a continuing back-
pay obligation to employee Tangy. The parties contested
the validity of a July 1997 reinstatement offer to Tangy;
they stipulated that the Respondents made a valid rein-
statement offer to Tangy on September 28, 2000, which
Tangy declined. Accordingly, the General Counsel al-
leged that the backpay period for Tangy ran from his

5 In this decision, when we refer to “the Respondents” collectively,
we mean DLB, BEI, Dan Baker, and Maggie Barry, except when we
discuss events predating BEI’s mid-1995 creation, in which case we
mean DLB and Baker.
December 1, 1993 discharge through the stipulated Sep-
tember 28, 2000 offer of reinstatement.
The General Counsel amended the CS a number of
times during the course of the compliance hearing, which
lasted more than 45 days. Approximately halfway
through the hearing, Judge Wilks proposed bifurcating
the proceedings: he would decide the issues of alter
ego/successor liability, piercing the corporate veil, the
contract repudiation date, and Tangy’s make-whole rem-
edy; the remaining issues—HAMCI’s alleged derivative
liability and the net backpay due the other two sets of
claimants (DLB’s employees and the hiring hall claim-
ants)—would be severed and remanded for a hearing
before another judge.
In accordance with this bifurcation, Judge Wilks ren-
dered the following findings of fact and conclusions of
law. First, he interpreted the Board’s partial summary
judgment Order as encompassing both backpay calcula-
tion formulae and the actual calculations alleged in the
CS. Second, he interpreted the Order as establishing that
individuals claimed by the Respondents to be office and
supervisory personnel fell within its scope. In other
words, the judge determined that the Respondents were
precluded from litigating entitlement to backpay for in-
dividuals who, according to the Respondents, were not
bargaining unit employees. Third, he found that BEI was
an alter ego of and successor to DLB, and thus liable for
DLB’s unfair labor practices. Fourth, he found that, al-
though Baker and Barry disregarded corporate formali-
ties, there was insufficient evidence that their abuse of
the corporate form “tended to defraud any creditor or
evade any debts.” On that basis, the judge determined
there was insufficient evidence to pierce the corporate
veils of DLB and BEI to hold Baker and Barry individu-
ally liable. Fifth, the judge concluded that liability under
the 8(f) agreement terminated on October 5, 1994, find-
ing that the then-existing “factual configuration” im-
parted knowledge to the Union of DLB’s repudiation of
the agreement as of that date. Sixth, the judge issued a
make-whole remedy as to Tangy, adopting the “alter-
nate” rather than the “revised” version of the General
Counsel’s backpay calculations (the significance of those
terms is fully explained below). The judge found Tangy
is due net backpay of $85,407.66, medical expenses of
$217.35, and contributions to Union health and welfare
funds. Finally, the judge issued an order of severance
and remand, sending certain issues (summarized briefly
above) back to the chief administrative law judge for
assignment to another judge.
As discussed more fully below, we adopt in part and
reverse in part the judge’s findings and conclusions, and
we remand certain issues. Broadly, we find and con-
D. L. BAKER, INC. 517
clude as follows. First, we affirm the judge’s interpreta-
tion of the Board’s summary judgment Order as encom-
passing both backpay calculation formulae and the actual
calculations. Second, we find that the judge erred in in-
terpreting the summary judgment Order as precluding the
Respondents from seeking to exclude from its scope in-
dividuals claimed by the Respondents to be nonunit of-
fice and supervisory personnel. Third, we adopt the
judge’s findings that BEI is liable for DLB’s unfair labor
practices both as a successor and as an alter ego. Fourth,
we reverse the judge and find that the corporate veils of
DLB and BEI should be pierced to reach Baker and
Barry individually. Fifth, we reverse the judge’s finding
that repudiation of the 8(f) agreement occurred on Octo-
ber 5, 1994, finding instead that it occurred on March 31,
1994. Sixth, we adopt the judge’s findings that DLB’s
1997 reinstatement offer to Tangy was invalid, that he
was entitled to backpay at the 8(f) contractual rate even
after contract repudiation, and that with very limited ex-
ceptions, Tangy reasonably mitigated his damages and is
entitled to his claimed expenses. However, we find that
the judge erred in accepting the General Counsel’s “al-
ternate” calculations as the measure of Tangy’s backpay.
Instead, we find that the General Counsel’s “revised”
calculations (except as to certain discrete issues, which
we will remand) accord with traditional Board method-
ology in determining backpay in compliance proceedings
and more appropriately measure the Respondents’ back-
pay obligation. Finally, we interpret and clarify the
Board’s previous summary judgment Order (330 NLRB
at 523) vis-à-vis the judge’s remand Order.
II. CLARIFICATIONS OF THE IMPORT AND SCOPE OF THE
BOARD’S ORDER GRANTING PARTIAL SUMMARY
JUDGMENT ON THE COMPLIANCE SPECIFICATION
After the CS issued, the General Counsel moved for
partial summary judgment. Specifically, the General
Counsel sought summary judgment as to the allegations
in CS paragraphs 17, 18, and 19, setting forth backpay
computational formulae and amounts of gross backpay,
interim earnings, and net backpay due DLB’s own em-
ployees; paragraph 24, setting forth a computational for-
mula and calculations of gross backpay due hiring hall
claimants; and paragraph 32, setting forth a computa-
tional formula and calculations of gross backpay due
Tangy. The General Counsel stated that the motion did
not encompass issues regarding (a) interim earnings and
calendar quarter net backpay for hiring hall claimants or
Tangy, (b) whether employees are supervisory employ-
ees excluded from coverage under the 8(f) agreement, or
(c) the derivative liability of BEI, Baker, or Barry. The
Board6 found that the Respondents, by virtue of their
defective answers, had admitted CS paragraphs 17, 18,
19, 24, and 32, and issued an Order granting the General
Counsel’s motion with respect to “formulae and calcula-
tions of gross backpay for all claimants and interim earn-
ings and calendar quarter net backpay for claimants who
worked for [DLB].” 330 NLRB at 523 (emphasis
added). Moreover, as will be discussed more fully be-
low, the Board, noting that the Respondents denied li-
ability for the backpay period on the ground that DLB
repudiated the contract in September 1993, stated: “In
the underlying case, however, the Board and the court of
appeals specifically found that the Respondent had never
effectively repudiated the agreement. Thus the Respon-
dents’ argument that backpay tolls in September 1993
has already been rejected and may not be relitigated in
this proceeding.” 330 NLRB at 523.
On its face, Judge Wilks’ decision under review here
appears both internally inconsistent and at odds with the
Board’s prior decision granting partial summary judg-
ment. At the hearing and in his decision, the judge
clearly considered himself bound by the Board’s partial
summary judgment Order, yet he remanded issues related
to paragraphs 17, 18, 19, and 24.7 The General Counsel
excepts to the judge’s remand of issues on which the
Board has granted summary judgment. The General
Counsel also argues that the judge failed to rule on the
oral motion at the compliance hearing for summary
judgment on calculation formulae and actual calculations
for fringe benefit contributions for the Respondents’ em-
ployees, and seeks a Board Order directing the Respon-
dents to pay the fringe benefit contributions alleged in
CS paragraph 20. The General Counsel argues that, be-
cause the Board granted summary judgment on the hours
worked by the Respondents’ own employees during the
backpay period, and because the record includes the ap-
plicable contractual fringe benefit rates, the Board can,
and should, enter the appropriate order.
In their exceptions and cross-exceptions, respectively,
BEI and DLB argue as follows: (1) the Board abused its
discretion in granting partial summary judgment because
(a) Tangy did not truthfully report concerning interim
employment, and (b) the Regional Office induced the
Respondents through subterfuge into believing that it
would provide supporting documentation for the CS be-
fore the Respondents had to provide a complete answer;8

6 The panel consisted of former Chairman Truesdale, former Mem-
ber Hurtgen, and Member Liebman.
7 In sec. VI,B, fn. 28, the judge erroneously stated that the Board
also granted summary judgment on par.23.
8 The Board previously rejected the Respondents’ arguments regard-
ing the General Counsel’s failure to return original documents or to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD518
(2) the judge ignored the Respondents’ amended an-
swers; and (3) the judge erred in interpreting the Board’s
Order to include more than backpay calculation formu-
lae, i.e., as setting specific backpay dollar amounts and
as encompassing office and supervisory personnel as
well.
We find no merit in the Respondents’ first two excep-
tions. Regarding the first, that Tangy did not truthfully
report, the Respondents allege inaccuracies in Tangy’s
reporting related to the number of hours he worked for
interim employers. Even assuming, as the judge found,
some minor inadvertent misreporting, this is not relevant
to the Respondents’ failure to answer the CS’s gross
backpay allegation that DLB provided 40 hours of work
per week to employees during the backpay period. Re-
garding the second, that the judge ignored the Respon-
dents’ amended answers to the CS, we note that DLB
admitted that its amended answer addressed the “gross
backpay hours, wage rates, and amounts.” The Respon-
dents failed to comply with the judge’s instruction to
respond only to amendments to the CS, which amend-
ments primarily addressed union fund contributions and
Tangy’s interim earnings and expenses. Thus, we find
that the judge properly disregarded the Respondents’
“expansive amended answer” as an attempt to “escape
the partial summary judgment.”
The third exception raises an issue concerning the
scope of the summary judgment Order. Although we
acknowledge that, in the text of the Supplemental Deci-
sion, the Board stated that it deemed “the Respondent to
have admitted . . . the gross backpay formula for all
claimants,” 330 NLRB at 523, the Order itself unambi-

produce additional documents prior to the Respondents’ deadline for
filing an answer to the CS. The Board rejected the Respondents’ mo-
tion to compel return of original documents because the Board was
concerned about the integrity of the evidence and because the General
Counsel had provided the Respondents with copies of their original
documents. The Board rejected the motion for production on the basis
that the requested information (which related to interim earnings of
hiring hall employees) was not relevant to matters on which summary
judgment was sought. 330 NLRB at 522 fn. 5. The precedent cited by
DLB on this issue is inapposite. We emphasize that the Respondents
had access to a copy of the 8(f) agreement, which formed the backbone
of the CS, as it was introduced as an exhibit in the underlying merits
hearing. Inasmuch as there was no prejudice to Respondents, and no
change in law or circumstances that would lead us to believe that the
prior Board panel erred on this point, we do not disturb the Board’s
rulings. We do, however, note that on the last day of the compliance
hearing, the judge ordered counsel for the General Counsel to return the
Respondents’ original documents 14 days after the filing of briefs.
Counsel for the General Counsel did not timely comply with this order,
but subsequently represented that the documents would be hand deliv-
ered to the Respondents’ counsel, pursuant to the parties’ agreement, by
a date certain. Because this date has long since passed, we expect that
counsel for the General Counsel has now complied; if she has not, we
order her to do so.
guously grants summary judgment “with respect to for-
mulae and calculations of gross backpay for all claim-
ants” (emphasis added), id. Thus, we affirm the judge’s
interpretation of the Board’s summary judgment Order as
encompassing both formulae and calculations. However,
to the extent that the judge interpreted the summary
judgment Order as establishing that individuals claimed
by the Respondents to be office and supervisory person-
nel fell within its scope, we find, as explained below, that
the judge erred.
CS paragraph 16 alleges that “[t]he employees em-
ployed by Respondents during the backpay period are
listed in Exhibit A.” CS paragraph 17(a) alleges the
gross backpay formula “for discriminatees whose names
appear on Exhibit A.” (Emphasis added.) Answering
paragraph 17(a), the Respondents stated that many of the
alleged discriminatees were hired as supervisors or office
personnel not covered by the 8(f) agreement. In the Mo-
tion for Partial Summary Judgment, the General Counsel
represented that the motion did “not deal with issues re-
garding whether employees are supervisory employees
excluded from coverage by the NECA agreement.” The
General Counsel also did not move for summary judg-
ment on CS paragraph 16. At the hearing before Judge
Wilks, however, counsel for the General Counsel ob-
jected when the Respondents tried to question an em-
ployee as to his supervisory authority, arguing that the
Board’s Order granted summary judgment as to those
individuals named in exhibit A. A colloquy ensued,9
after which the judge ruled that the Respondents were
permitted to cross-examine on the supervisory issue.
Subsequently, however, after hearing further argument
by the parties, the judge ruled that the Board’s summary
judgment Order precluded litigation as to whether the
alleged discriminatees named in exhibit A were appro-
priate claimants. In so ruling, the judge relied on the
Board’s grant of summary judgment as to paragraph
17(a), which incorporated by reference paragraph 16.
The judge also relied on footnote 3 in the supplemental
decision, which states: “The motion does not seek sum-
mary judgment with respect to alter ego or successor
issues, interim earnings of hiring hall claimants or
Tangy, claimants’ medical expenses, or contractual funds
payments.” 330 NLRB at 521 fn. 3. Judge Wilks rea-
soned that because footnote 3 listed issues still out-
standing and did not mention the supervisory issue, the

9 During this colloquy, the judge asked: “[I]f the Board has already
decided that . . . and you are saying you preclude litigation of the issue
of his being a supervisor, then why did you get into that on direct ex-
amination?” The counsel for the General Counsel responded: “They
don’t preclude litigation of that insofar as he is appropriately named
claimant in the compliance specification. . . .”
D. L. BAKER, INC. 519
Board must have intended that litigation of that issue was
foreclosed.
The judge’s interpretation represents one reasonable
reading of the Supplemental Decision and Order. How-
ever, we find merit in the Respondents’ exception be-
cause, in light of the General Counsel’s representations,
both in support of the motion and at the hearing, to pre-
clude further litigation of the status of individuals listed
in exhibit A would raise serious due process concerns.
By its own terms, the General Counsel’s motion repre-
sented that it preserved “issues regarding whether em-
ployees are supervisory employees excluded from cover-
age by the NECA agreement.” The General Counsel’s
failure to seek summary judgment on CS paragraph 16
and initial statements at hearing reinforced that represen-
tation. Moreover, the Respondents’ answer explicitly
raised this defense.10 In these circumstances, we think
the Respondents are justified in questioning how the
Board could grant summary judgment on an issue that
the General Counsel explicitly disclaimed. Accordingly,
and guided by principles of fundamental fairness, we
interpret the Board’s Order concerning CS paragraph 17
as being limited to formulae and calculations for all dis-
criminatees listed on exhibit A ultimately found to be
employees covered by the 8(f) agreement. Paragraph 1
of the judge’s proposed Order of Severance and Remand
directs, in relevant part, that another judge “resolve the
issues of the make-whole remedy for the Respondents’
‘employees in the bargaining unit.’” We adopt paragraph
1, pursuant to which we remand to determine whether (1)
the disputed employees are office personnel or supervi-
sors, and (2) if the latter, whether they are covered by the
8(f) contract.11
Addressing the General Counsel’s and the Union’s ex-
ceptions, there is obvious merit in the argument that the
Board should not remand issues previously decided by
summary judgment. Thus, we clarify that we interpret
the summary judgment Order to preclude any further
litigation as to the amounts due the Respondents’ own
employees listed in paragraph 16 who are ultimately
found to be covered by the 8(f) agreement. Moreover,
we find merit in the General Counsel’s argument that a
grant of summary judgment on fringe benefit contribu-
tions for the Respondents’ own employees logically fol-

10 The Board’s Supplemental Decision stated that the Respondents
“generally deny the General Counsel’s formulae for computing back-
pay and the application of those formulae to the claimants.” 330 NLRB
at 521.
11 We note that working foremen and supervisors are entitled to
backpay when their wages and working conditions are covered by an
8(f) agreement. F. G. Lieb Construction Co., 318 NLRB 914, 916
(1995); Industrial TurnAround Corp. v. NLRB, 115 F.3d 248, 253 (4th
Cir. 1997).
lows from the Board’s grant of summary judgment on
gross backpay (CS par. 17). However, because it re-
mains to be determined which of the Respondents’ own
employees were covered by the agreement, we cannot
issue a final order mandating payment of benefit fund
contributions at this time. We emphasize, however, that
in any final order issued upon remand, the fund contribu-
tions owed for those of Respondents’ employees found to
have been covered under the 8(f) agreement are to be as
alleged in CS paragraph 20, as shown on General Coun-
sel’s Exhibit 1(c), as amended at the hearing.
III. WHETHER BEI IS JOINTLY AND SEVERALLY LIABLE
FOR DLB’S ULPS
The judge found that BEI is jointly and severally liable
for DLB’s ULPs, both (1) as a Golden State successor
with knowledge of DLB’s ULPs; and (2) as an alter
ego/disguised continuance. BEI excepts to both bases of
liability. We adopt the judge’s findings.
A. Whether BEI is DLB’s Golden State Successor
In Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973), the Supreme Court held that a bona fide pur-
chaser of a business who has knowledge of the seller’s
ULPs at the time of the purchase and who continues the
business without interruption or substantial change in
operations, employee complement, or supervisory per-
sonnel has joint and several liability for remedying the
seller’s ULPs. The judge found that BEI was DLB’s
Golden State successor because (1) BEI was the same
employing business, with Baker as its “driving force”;
(2) Baker’s knowledge of DLB’s ULPs is imputed to
BEI, based on Baker’s status as a “silent partner” and
thus a principal of BEI; and (3) Barry’s knowledge of
DLB’s ULPs (the judge discredited her denial of knowl-
edge) is imputed to BEI, based on her relationship with
Baker.
BEI excepts, arguing that there is no evidence that
Barry had knowledge of DLB’s ULPs at the time of the
asset sale, and that the judge erred in imputing Baker’s
knowledge to Barry based on his “silent partner” finding.
In addition, BEI, citing Perma Vinyl Corp., 164 NLRB
968 (1967), enfd. sub nom. U.S. Pipe & Foundry Co. v.
NLRB, 398 F.2d 544 (5th Cir. 1968), argues that the
General Counsel failed to prove that DLB’s potential
liability was reflected in the purchase price.
We adopt the judge’s finding that BEI is liable for
DLB’s ULPs as its successor with knowledge of the
ULPs.12 BEI’s argument that only Barry’s knowledge is

12 We do not rely on the judge’s finding that Baker was a “silent
partner” in adopting the judge’s finding that Baker was a principal of
BEI. The Board has found “principal” status, even absent an ownership
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD520
material in a successorship analysis is foreclosed by
Golden State itself, where the successor’s employment of
the predecessor’s manager, who had committed the ULP,
satisfied the knowledge requirement. 414 U.S. at 173.
Moreover, Perma Vinyl, above, does not support BEI’s
contention that the General Counsel, to establish BEI’s
status as a Golden State successor, must prove that po-
tential unfair labor practice liability was reflected in the
purchase price of the business. The Board in Perma Vi-
nyl imposed no such evidentiary requirement. It merely
justified the Golden State rule by pointing out that the
successor is in the best position to remedy the predeces-
sor’s unfair labor practices and suffers no unfair hardship
because it can account for the potential liability in the
purchase price or secure an indemnity clause in the sales
agreement. 164 NLRB at 969.
B. Whether BEI is DLB’s Alter Ego/Disguised
Continuance
A corporation will be deemed the alter ego of a prede-
cessor corporation if there is not “a bona fide discontinu-
ance and a true change of ownership” or if there is
“merely a disguised continuance of the old employer.”
Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106
(1942), rehearing denied 315 U.S. 827 (1942). Alter ego
situations involve a formal or technical change in the
structure or identity of the employing entity, frequently
to avoid the effect of the labor laws, without any substan-
tial change in ownership or management. In such cir-
cumstances, the Board and the courts have held that the
successor is in reality the same employer as the prede-
cessor and subject to all of the predecessor’s legal and
contractual obligations. Howard Johnson Co. v. Hotel &
Restaurant Employees, 417 U.S. 249, 259 fn. 5 (1974).
Determining alter ego status is a question of fact for the
Board. Southport Petroleum Co., above.
In deciding whether one employer is the alter ego of
another, the Board considers whether the “two enter-
prises have ‘substantially identical’ management, busi-
ness purpose, operations, equipment, customers, and su-
pervision, as well as ownership.” Midwest Precision
Heating & Cooling, 341 NLRB 435, 439 (2004), affd.
408 F.3d 450 (8th Cir. 2005) (quoting Advance Electric,
268 NLRB 1001, 1002 (1984), enfd. as modified 748
F.2d 1001 (5th Cir. 1984), cert. denied 470 U.S. 1085
(1985)). An employer’s intent to evade its responsibili-
ties under the Act by creating the alleged alter ego is also
a relevant consideration, but such an intent is not requi-
site to an alter ego finding. Fugazy Continental Corp.,
265 NLRB 1301, 1301–1302 (1982), enfd. 725 F.2d

interest, under similar circumstances. Reliable Electric Co., 330 NLRB
714 (2000), enfd. mem. 12 Fed. Appx. 888 (10th Cir. 2001).
1416 (D.C. Cir. 1984); Johnstown Corp., 313 NLRB
170, 171 (1993), review granted in part, enfd. in part 41
F.3d 141 (3d Cir. 1994); Fallon-Williams, Inc., 336
NLRB 602, 602 (2001). The Board has found alter-ego
status even though the entities have different owners
when the owners are in a close familial relationship.
Midwest, above at 435; Fallon-Williams, above at 1275;
Crossroads Electric, Inc., 343 NLRB 1502 (2004), enfd.
mem. 178 Fed. Appx. 528 (6th Cir. 2006); Kenmore
Contracting Co., 289 NLRB 336, 337 (1988), enfd. 888
F.2d 125 (2d Cir. 1989). No single factor is determina-
tive, and not all the indicia need be present for the Board
to find alter ego status. Reigel Electric/Central Electri-
cal Services, 342 NLRB 847, 847 (2004); Standard
Commercial Cartage, Inc., 330 NLRB 11, 13 (1999).
The judge, recognizing that “actual common control is
more significant than a change in ownership,” found that
Baker dominated BEI’s operations. Stating the principle
that an intent to evade responsibilities under the Act is
relevant but not necessary to finding alter-ego status,13
the judge noted that, although there is a lack of uniform-
ity in the circuit courts as to the necessity of finding in-
tent to evade, the Fourth Circuit looks to whether the
transfer resulted in a “reasonably foreseeable benefit.”
Alkire v. NLRB, 716 F.2d 1014, 1020 (4th Cir. 1983).
Here, even if Baker’s primary intent was to evade liabil-
ity to the IRS, a reasonably foreseeable benefit was also
to escape NLRB liability. Significantly, the judge found
that, while the IRS debt was the “primary debt” of con-
cern, “the elimination of any other debt that threatened
the viability of DLB was also a minor factor” in the crea-
tion of BEI.
BEI excepts, arguing that there was no “substantial
continuity” between DLB and BEI because BEI aban-
doned DLB’s “company apparel practice” and used a
different bank and a different accounting firm. BEI em-
phasizes that the tax attorney who structured the asset
sale did not know of the NLRB obligation; rather, the
asset sale was conceived to avoid the IRS obligation.
BEI contends that neither prong of the two-pronged
Alkire test is met here: the first prong because there is no

13 Even assuming, arguendo, that intent to evade is requisite to find-
ing alter ego status, the judge found such intent here. The judge cited
to the testimony of Tas Coroneos, the attorney who prepared the asset
purchase agreement between DLB and BEI, who admitted that “elimi-
nation of any other debt [besides the principal debt to the IRS] . . . was
also a minor factor” driving the asset sale. The judge also found that
Baker concealed his control of BEI from the Union, and openly ex-
pressed to employee Petty that the Union could not touch BEI because
it was owned by his wife. Where a new entity is formed with “‘an ob-
jective of escaping further dealings with the Union,’” the Board has
found unlawful motivation. Crossroads Electric, Inc., above at 1507
(quoting Martin Bush Iron & Metal, 329 NLRB 124 (1999)).
D. L. BAKER, INC. 521
identity of control; the second prong because the transfer
did not provide an “expected or reasonably foreseeable
benefit to the old employer [DLB] related to the elimina-
tion of its labor obligations.”
We adopt the judge’s finding that BEI is an alter ego
and disguised continuance of DLB and hence liable for
DLB’s unfair labor practices. The claimed differences
between DLB and BEI (abandoning DLB’s “company
apparel practice”14 and using a different bank and ac-
counting firm) do not defeat “substantial continuity,” as
evidenced by the identity of the corporate undertaking,
Baker’s control of both corporations, a substantially
similar customer base, and BEI’s use of former DLB
employees to minimize the appearance of change. The
temporal proximity between DLB’s cessation of business
and BEI’s creation, together with BEI’s takeover of
DLB’s projects, are additional factors supporting an alter
ego finding. Twin Cities Electric, 296 NLRB 1014, 1020
(1989), enf. granted in part and denied in part 914 F.2d
263 (9th Cir. 1990); Cofab, Inc., 322 NLRB 162, 163
(1996), enfd. sub nom. NLRB v. DA Clothing Co., 159
F.3d 1352 (3d Cir. 1998). The Board will find an alter
ego relationship where an employer attempts to evade
liability by closing one business and opening the same
business under a new name. Barnard Engineering Co.,
295 NLRB 226, 246 (1989). Moreover, the judge’s un-
excepted-to factual finding that the General Counsel ad-
duced “undisputed evidence of a history of ‘loans’ from
Dan Baker, Barry, and her sole proprietorship HAMC to
DLB, and from Barry to BEI,” all of which were “un-
documented as to duration and manner of repayment or
other terms,” indicates lack of an arm’s-length relation-
ship, which further supports a finding of alter ego status.
Vallery Electric, 336 NLRB 1272, 1275 (2001), enfd.
337 F.3d 446 (5th Cir. 2003); Reigel Electric, above at
847.
The Respondents’ reading of Alkire as requiring a spe-
cific intent to evade a Board obligation, in the face of the
judge’s finding that Coroneos “effectively admitted”
intent to evade IRS back-tax liability, is unpersuasive.
As noted by the judge, the Fourth Circuit applies a “rea-
sonably foreseeable benefit” test. Here, the asset sale
provided a reasonably foreseeable benefit to Baker by
enabling him to continue in his profession while escaping
his debts (both to the IRS and under the Board’s Order),
and by potentially eliminating DLB’s collective-
bargaining obligation.

14 DLB actually stopped using uniforms in 1993 or 1994, before BEI
purchased DLB’s assets.
IV. WHETHER THE CORPORATE VEILS OF DLB AND BEI
SHOULD BE PIERCED TO HOLD BAKER AND BARRY
INDIVIDUALLY LIABLE
A. Applicable Law
White Oak Coal Co., 318 NLRB 732 (1995), enfd. 81
F.3d 150 (4th Cir. 1996), governs the Board’s analysis
relative to piercing the corporate veil. Under White Oak
Coal, the Board will pierce a corporate veil when (1) the
shareholders and the corporation have failed to maintain
separate identities; and (2) adherence to the corporate
form would sanction a fraud, promote injustice, or lead
to the evasion of legal obligations. Under the first prong
of this test, the Board considers the degree to which (a)
corporate formalities have been maintained; and (b) indi-
vidual and corporate funds, assets, and affairs have been
commingled. Among the factors considered by the
Board in applying the first prong are the nine “Kansas
City factors”: (1) whether the corporation is operated as
a separate entity; (2) commingling of funds and other
assets; (3) failure to maintain adequate corporate records;
(4) nature of the corporation’s ownership and control; (5)
availability and use of corporate assets, the absence of
same, or undercapitalization; (6) use of the corporate
form as a mere shell, instrumentality or conduit of an
individual or another corporation; (7) disregard of corpo-
rate legal formalities and the failure to maintain an
arm’s-length relationship; (8) diversion of the corporate
funds or assets to noncorporate purposes; and (9) transfer
or disposal of corporate assets without fair considera-
tion.15 When assessing the second prong, the Board con-
siders whether the inequity flowed from the misuse of
the corporate form; moreover, the individuals charged
with liability must have participated in the fraud, injus-
tice, or inequity. 318 NLRB at 735.
Applying the White Oak Coal two-prong test here, the
judge found that the first prong was met but that the sec-
ond prong was not. Accordingly, the judge found that
neither Baker nor Barry could be held individually liable.
In finding the first prong satisfied, the judge focused on
the factors of undercapitalization (finding DLB and BEI
were both undercapitalized before 1999), disregard of
corporate formalities, and failure to maintain arm’s-
length relationships. In finding that the second prong
was not satisfied, the judge found insufficient evidence
that the misuse of the corporate form was intended to, or
tended to, defraud creditors or evade potential liability
under the Board’s Order. The judge found that Baker’s
concern was with his IRS (not Board) debt; moreover,
the judge found insufficient evidence that Barry’s abuse

15 NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1052 fn. 6
(10th Cir. 1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD522
of the corporate form threatened satisfaction of BEI’s
Board-related debt.
As explained below, we find that both prongs of the
White Oak Coal test have been met. We thus reverse the
judge to hold Baker and Barry individually liable.
We acknowledge that piercing the corporate veil is an
exceptional remedy. See, e.g., Flat Dog Productions,
Inc., 347 NLRB 1179, 1182 (2006) (“insulation” of a
stockholder from his corporation’s debts is a “critical and
longstanding element of the Federal common law of cor-
porations”; burden of showing corporate veil should be
pierced is a “heavy one”); Dole Food Co. v. Patrickson,
538 U.S. 468, 475 (2003) (piercing corporate veil “is the
rare exception, applied in the case of fraud or certain
other exceptional circumstances . . . and usually deter-
mined on a case-by-case basis”). For the reasons that
follow, however, we think that this is just such an excep-
tional case.
B. Application of First Prong of the
White Oak Coal Test
BEI excepts generally to the judge’s application of the
Kansas City factors, and specifically to the judge’s find-
ings that BEI was undercapitalized and failed to follow
arm’s-length corporate formalities.16 BEI argues that the
challenge to capitalization came from the General Coun-
sel’s expert witness, Richard Booth, who failed to testify
that there was anything improper regarding the asset sale,
and whose classification of transactions as “distributions
to shareholders” (i.e., dividends), rather than repayment
of loans, was (according to BEI) self-serving. BEI also
argues that it merely operated like other small busi-
nesses.
The General Counsel and the Union also filed excep-
tions, contending that the judge failed to make specific
findings regarding DLB’s and BEI’s repayment of
“loans” to Baker and Barry. The General Counsel and
the Union assert that the corporations “paid back” more
money than was loaned.17 Baker did not file exceptions
or cross-exceptions regarding the judge’s findings under
the first prong of the White Oak Coal test. In his answer-

16 DLB “adopts the arguments in [BEI’s] Exceptions and [Baker’s]
Answering Briefs.”
17 The General Counsel, citing Bannon Mills, Inc., 146 NLRB 611
(1964), also seeks to strike, from R. Exh. 116 (R-116), journal entries,
admitted by the judge over the General Counsel’s objections, that pur-
port to show that interest was paid to Barry (therefore suggesting
arm’s-length transactions). We find it unnecessary to pass on this
exception because the judge’s ruling, even if erroneous, did not preju-
dice the General Counsel. See AEi2, LLC, 343 NLRB 433, 433 (2004).
The judge did not rely on R-116, finding that it raised more questions
than it answered, and crediting (over the R-116 entries) Barry’s testi-
monial admission that she did not charge interest on loans to herself.
For the same reasons, we also do not rely on those entries.
ing brief, however, Baker argued that (1) the law speaks
to “degree,” and (2) DLB’s actions met corporate law
standards for small, closely held corporations.18
Commingling, treatment of corporate assets as one’s
own, and undercapitalization often constitute the most
serious forms of abuse of the corporate entity. Seymour
v. Hull & Moreland Engineering, 605 F.2d 1105, 1112
(9th Cir. 1979); NLRB v. O’Neill, 965 F.2d 1522, 1531
(9th Cir. 1992), cert. denied 509 U.S. 904 (1993). In
adopting the judge’s finding that the first prong of the
White Oak Coal test is satisfied, we find these serious
forms of abuse here. Individual and corporate funds and
affairs have been commingled, and BEI was undercapi-
talized. In addition, corporate legal formalities have not
been maintained.
First, although BEI disagrees with Booth’s classifica-
tion of certain transactions, Booth was clear, as the judge
found, that BEI engaged in a pattern of behavior that
rendered it undercapitalized. Booth testified that (1) it
was inappropriate for Barry to lend the entire capitaliza-
tion to BEI; (2) by the end of 1999, BEI’s entire capital
and more had been withdrawn (DLB’s 1993 tax return
also showed negative equity); (3) Barry treated BEI as a
“personal piggybank, rather than attempting to ade-
quately capitalize it”; and (4) constant “inflows” and
“outflows” were necessary because BEI did not have
enough capital to pay its bills when due. Second, accord-
ing to Booth’s expert testimony, which the Respondents
failed to undermine, an undocumented infusion of money
is presumed to be an equity contribution, not a loan; if
that presumed equity contribution is then withdrawn such
that the shareholder owes the corporation money, that is
an abuse of the corporate form and evidence of under-
capitalization. Undocumented transactions and inade-
quate loan documentation also indicate an absence of
arm’s-length transactions. Third, an asset purchase
agreement should contain certain provisions absent from
the agreement here. Finally, BEI’s defense of “everyone
does it” must fail.
C. Application of Second Prong of White Oak Coal Test
The General Counsel and the Union except both to the
judge’s failure to pierce the corporate veil and to the
judge’s finding that Baker and Barry’s diversion of

18 The Union seeks to strike that portion of Baker’s answering brief
related to the first prong, arguing that it goes beyond the scope of the
Union’s partial exceptions and thus violates Board Rule Sec.
102.46(d)(2). We decline to strike. In its exceptions, the Union seeks
more detailed findings as to the flow of funds. Thus, its exceptions are
not limited to the second prong of the White Oak Coal test, and Baker’s
answering brief is within the scope of those exceptions. Moreover, as a
practical matter, the judge’s findings on the first prong are in issue
because of BEI’s exceptions.
D. L. BAKER, INC. 523
DLB’s and BEI’s assets does not diminish the ability of
those corporations to satisfy the Board’s remedial order.
They emphasize that the Respondents bear the burden of
clarifying any confusion surrounding financial transac-
tions. Bufco Corp., 323 NLRB 609, 628–629 (1997),
enforcement granted in part, order vacated in part 147
F.3d 964 (D.C. Cir. 1998). They also note that, although
it is not necessary to show actual intent to defraud, both
Baker and Barry had the intent to evade DLB’s and
BEI’s legal obligations. We find merit in these excep-
tions.
Again, where, as here, the first prong of White Oak
Coal is satisfied, piercing is warranted where “adherence
to the corporate form would sanction a fraud, promote
injustice, or lead to the evasion of legal obligations.”
318 NLRB at 735. In conducting the second-prong
analysis, the Board considers whether abuse of the cor-
porate form would have the “natural, foreseeable, and
inevitable consequence” of diminishing a corporation’s
ability to satisfy the remedial obligation. Id. Such abuse
includes an individual’s use of corporate funds for per-
sonal benefit at a time when the corporation is unable to
meet statutory obligations. West Dixie Enterprises, 325
NLRB 194, 195 (1997), affd. 190 F.3d 1191 (11th Cir.
1999). An individual’s removal of a corporation’s assets
through “fluid transactions” that place those assets be-
yond the reach of the remedial order also suffices to es-
tablish the second prong. Reliable Electric Co., 330
NLRB 714. As explained below, adherence to DLB’s
and BEI’s corporate forms would sanction a fraud, pro-
mote injustice, or lead to an evasion of legal obligations.
First, the judge erred by finding there was insufficient
evidence to establish that the abuse of DLB’s and BEI’s
corporate forms diminished the ability of those busi-
nesses to satisfy the remedial obligation. The judge fo-
cused on monies flowing into the corporations (the un-
documented “loans” to DLB and BEI), but failed to ade-
quately consider the numerous disbursements by DLB
and BEI directly to Baker and Barry or to the third-party
creditors of both individuals.19 The judge’s focus on

19 For example, the record shows that DLB made payments to Fair-
fax Bank & Trust, the lender for the construction loan on Baker’s and
Barry’s residence, to K.M. Fleming and Loudoun Lumber for other
building materials, to Virginia Concrete to pour sidewalks, and to
Dozer Associates to perform grading work. DLB assigned two electri-
cians to install the electrical wiring in the residence; one of them testi-
fied he was paid by a DLB paycheck. DLB also made payments on
Baker’s Humvee, which was purchased as a personal vehicle and titled
to him personally, and paid his homeowners’ insurance premium and
furniture storage fees. DLB paid tuition for Baker’s son at George
Washington University, and made payments to credit card companies
for personal expenses charged on Baker’s personal credit cards. BEI
also paid for personal charges incurred on credit cards owned by Baker,
accounting services rendered for Baker personally, delivery of a sauna
inflow, not outflow, led him to conclude that Baker was
DLB’s rescuer and not its exploiter, but his conclusion
does not take into consideration the entirety of the re-
cord.20 A similar pattern of BEI loans and repayments
shows BEI disbursed thousands of dollars to cover per-
sonal expenses of Barry and Baker.21 Through undocu-
mented “loans,” both Baker and Barry diverted substan-
tial amounts of money from the corporate accounts at
times when the corporations were struggling financially.
If the corporations cannot satisfy their corporate debts
but for infusions of cash from Baker and Barry, then the
corporations’ ability to satisfy their remedial obligation
is illusory.22 The Board has not hesitated to pierce the
corporate veil when individuals divert corporate funds
for their personal benefit and, in the process, diminish
the corporation’s ability to satisfy its remedial obligation.
Reliable Electric Co., supra at 714–715; West Dixie En-
terprises, supra at 195; Bufco Corp., 323 NLRB at 629;

door, season football tickets, and repairs to HAMCI’s facility. BEI
employees installed a vacuum system at HAMCI. Both DLB and BEI
continuously paid the mortgage on Baker’s and Barry’s residence, even
after Barry’s “loan” to BEI to purchase DLB was repaid, and even
though Baker drew a salary from DLB and, beginning in 2000, from
BEI. Indeed, the fact that Baker did not receive a salary from BEI from
1995 until 2000, despite his role as operations manager, supports both
the judge’s finding that Baker commingled funds and a finding that
corporate funds were being diverted to pay personal obligations.
20 For example, according to the testimony of Chorazy, DLB’s ac-
countant, and to R. Exh. 118, at the beginning of 1993 DLB owed
Baker $46,780.02, but at the end of 1993 Baker owed DLB $18,906.42.
Chorazy testified she did not develop a year-end summary for 1994 or
1995 similar to what she prepared for 1993 because Baker failed to
provide her with DLB records. Expert witness Booth testified that from
1993 to 1994, DLB was continuously undercapitalized, with Baker
transferring funds from DLB, purportedly in repayment of his loan to
DLB, without regard for whether DLB’s assets exceeded its debts at the
time of disbursement (GC Exhs. 9–11, 13–18, 20, 22, 36). From March
1993 through March 1995, Baker signed DLB checks written to Barry,
even though she had no formal relationship with the corporation (GC
Exh. 53).
21 BEI’s corporate tax returns show BEI’s liabilities exceeded assets
by $38,000 in 1995, $71,000 in 1996, $36,000 in 1997, and $75,000 in
1998 (CP Exhs. 4, 8; GC Exh. 252); during this time, Barry was with-
drawing funds for noncorporate expenses (GC Exh. 52). R. Exh. 116
(R-116), which reflects, at best, after-the-fact documentation, is the
only document in evidence, other than checks themselves, showing
transactions between BEI, Barry and other creditors. Although R-116
purported to show all such transactions, it does not show all of the
payments in the record to First Union, thereby calling into question its
accuracy and supporting the judge’s observation that it “raises more
questions than answers and, at best, revealed a confusion that BEI was
obliged to but did not fully explain.” By year-end 1999, Barry owed
BEI $18,857.87. The Respondents did not produce any similar “sum-
mary” for transactions between BEI and Baker.
22 Booth testified that the issue is not that Barry should be faulted for
contributing money when needed, but that the continuous need to in-
fuse funds to meet payroll and other recurring obligations demonstrates
that BEI was undercapitalized.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD524
Genesee Family Restaurant, 322 NLRB 219, 229–230
(1996), enfd. 129 F.3d 1264 (6th Cir. 1997).
Second, a corporation’s undercapitalization adversely
affects its ability to satisfy backpay and other remedial
obligations (e.g., contributions to union benefit funds).
While undercapitalization is relevant to a prong-one
analysis to demonstrate misuse of the corporate form, it
also serves to ground a prong-two finding that adherence
to the corporate form would lead both DLB and BEI to
evade their legal obligations.
Third, the record here clearly demonstrates an intent to
evade legal obligations.23 Neither Baker nor Barry told
Coroneos, who drew up the asset sale, about any liability
imposed by the Board’s Order. Rather than try to ac-
commodate that liability, and contrary to federal labor
policy, they contrived to have DLB, the “violator of the
Act,” “shed all responsibility for remedying [its] own
unfair labor practices by simply disposing of the busi-
ness.” Golden State Bottling Co., 414 U.S. at 186–187.
Indeed, just a little over a week after the Board issued its
Order, they rendered DLB an asset-less shell and left the
Board an unprotected creditor.24 Moreover, since BEI’s
inception, Baker has concealed his control of BEI from
the Union, openly boasting that the Union could not
touch BEI because it was owned by his wife. Where an
individual respondent tries to evade the corporation’s
labor law obligation by concealing his ownership and
control of the alter egos, and exploits the resources of
each corporation for his personal benefit, thereby deplet-
ing corporate assets that could otherwise be used to sat-
isfy outstanding liabilities, the Board will pierce the cor-
porate veil. AAA Fire Sprinkler, Inc., 322 NLRB 69, 74
(1996), enforcement granted in part and remanded 144
F.3d 685 (10th Cir. 1998).25
As the General Counsel and the Union point out, the
judge did not find that the asset sale between DLB and
BEI was an arm’s-length transaction; he merely found

23 The asset sale was not intended to satisfy all of DLB’s debts. It
was structured so that Baker could continue his business, while the IRS
wrote off much of DLB’s tax debts: DLB paid only the “trust fund”
portion of the IRS debt, i.e., that portion for which Baker was person-
ally liable.
24 Courts of appeal have upheld the Board’s imposition of personal
liability where the individual stockholder created various alter egos
with fraudulent intent, i.e., to evade the corporation’s labor obligations,
including potential or liquidated backpay liability. See NLRB v.
O’Neill, 965 F.2d 1522 (9th Cir. 1992), enfg. 288 NLRB 1354 (1988)
(individual respondent responsible for unfair labor practices at issue
created alter ego corporations to evade his obligation under contract);
Metropolitan Teletronics Corp., 303 NLRB 793, 793 (1993), enfd.
mem. 961 F.2d 1568 (3d Cir. 1992).
25 As set forth below, although an intent to evade legal obligations
certainly bolsters a finding that prong two of White Oak Coal has been
met, such an intent is not requisite to a prong-two finding.
that such was Coroneos’ intent. Representing both Baker
and BEI, Coroneos drafted the transaction and offered
the deal only to BEI. The judge recognized that the asset
appraisals were “somewhat dubious”26 and that the unne-
gotiated sale “price” was determined by what liabilities
“needed to be paid,” but he failed to give adequate
weight to those facts.27 The purchase agreement lacked
important clauses one would expect in a bona fide asset
sale agreement, such as a representation that the books
and records are accurate as furnished to the purchaser,
and a warranty that the seller will use the proceeds or
reserve proceeds to ensure that liabilities are paid. The
purchase agreement refers to schedules A and B, pur-
portedly listing assets covered by the sale, but those
schedules were missing and neither DLB nor BEI could
account for their absence; moreover, the bills of sale for
the vehicles do not cover all of the vehicles transferred to
BEI. Such facts, namely, the lack of negotiation over
price, haphazard paperwork, and the absence of bills of
sale and receipts, have previously led the Board to find
sham transactions. Naperville Ready Mix, Inc., 329
NLRB 174, 181 (1999), enfd. 242 F.3d 744 (7th Cir.
2001), cert. denied 534 U.S. 1040 (2001); Fugazy Conti-
nental Corp., above at 1302. As in Naperville, the evi-
dence establishes that the sale was not an arm’s-length
transaction but a “stratagem designed to give the appear-
ance, rather than the effect,” 329 NLRB at 181, of re-
moving DLB and Baker from the electrical business
while Baker continued DLB’s work under the guise of
BEI.
Fourth, the judge appears to have misunderstood the
equitable element of the piercing test. The judge found
“insufficient evidence that the misuse of the corporate
form was intended to defraud” (emphasis added), but
specific intent to defraud is not required. Greater Kan-
sas City Roofing requires only a showing that inequity
will “flow from the misuse of the corporate form.” Kan-
sas City, above at 1053. As Kansas City states, to hold
individual shareholders responsible, a corporation must
do more than commit an unfair labor practice, breach a

26 Although the judge found that Chorazy solicited the appraisals,
Chorazy testified that Baker obtained them.
27 Coroneos admitted that the $138,000 purchase price was derived
from what DLB needed to pay off the “trust fund” portion of its IRS
obligation and certain major creditors. DLB’s assets were “appraised”
at $96,631.26, with the $41,368.74 difference between the appraisal
and the $138,000 purchase price attributed to “goodwill.” On its 1995
tax filing, however, BEI listed goodwill at $83,720 (CP Exh. 4), an
amount that would have raised the fair-market purchase price to over
$180,000. That discrepancy, Coroneos’ admission that the purchase
price was driven by DLB’s debts, and suspect flaws in the purchase
agreement (discussed below) lead us to conclude that, on balance,
Coroneos’ testimony regarding his intent was insufficient to support a
finding that this was an arm’s-length transaction.
D. L. BAKER, INC. 525
contract, or commit a tort. But the ultimate question in
assessing the second prong is “whether there is adequate
justification to invoke the equitable power of the court.”
Id. at 1052. When individuals “disregard the separate-
ness of the corporate identity and when that act of disre-
gard causes the injustice or inequity,” the corporate veil
may be pierced. Id. at 1053. That is precisely what hap-
pened here: Baker and Barry disregarded the separate-
ness of the corporate identities, commingled funds, di-
verted funds to themselves, and left the corporations un-
dercapitalized, all of which had and have the natural,
foreseeable, and inevitable consequence of diminishing
the corporations’ ability to satisfy their remedial obliga-
tion. Moreover, the individuals sought to be held liable,
Baker and Barry, both participated in the acts, including
the asset sale itself, that caused the injustice or inequity.28
Thus, we find that the judge failed to properly consider
the equities that require piercing the corporate form in
order to avoid a miscarriage of justice.29
In sum, we find that adherence to DLB’s and BEI’s
corporate forms would sanction a fraud, promote injus-
tice, or lead to an evasion of legal obligations. We note
that in White Oak Coal, and contrary to the judge’s sug-
gestion here, the Board did not pierce the corporate veil
based on a specific finding that the corporation was, in
fact, unable to meet its obligations. Instead, the Board
found that the natural, foreseeable and inevitable conse-
quence of the individual respondents’ misuse of corpo-
rate assets for personal gain, along with their misuse of
the corporate form and disregard of corporate formalities,
was to diminish the ability of the corporate alter egos to

28 Cf. SRC Painting, LLC, 346 NLRB 707 (2006). There, the judge
pierced the corporate veil and found six individual respondents person-
ally liable; the Board reversed as to two. As to those two, wives who
had merely received corporate payments, the Board held that the “pas-
sive receipt of benefits that derive from a diversion of corporate assets
for noncorporate purposes” is not enough to satisfy White Oak Coal’s
“participation requirement.” Id. at 708. Noting that there was no alle-
gation or evidence that either wife had a corporate ownership interest,
the Board declined to address the issue of whether corporate ownership
would satisfy the participation requirement. Id. at 708 fn. 10. Member
Liebman suggested that the two wives might be held individually liable
under a fraudulent transfer theory of liability, but observed that the
Board was not ruling on the merits of such an alternate theory because
the General Counsel did not argue it. Id. at 709 fn. 12.
29 Since Judge Wilks issued his decision, the Board, applying White
Oak Coal, has reversed judges’ recommendations, in whole or in part,
to pierce the corporate veil. See Flat Dog, supra at 1179; SRC Paint-
ing, supra. However, the factors that controlled those decisions are
conspicuously absent here. Unlike Flat Dog, there is evidence here that
“assets . . . have been diminished by the self-dealing that may accom-
pany a failure to maintain the distinction between the individual and the
corporation.” Flat Dog, supra at 1186. And unlike SRC Painting, not
only is Barry the sole owner of BEI, but she did more than just pas-
sively receive corporate disbursements—she was also a key player in
the transaction plan.
satisfy White Oak’s statutory obligations. 318 NLRB at
735.30 The same holds true here. Accordingly, we pierce
DLB’s and BEI’s corporate veils to find Baker and Barry
individually liable.
V. ON WHAT DATE DID THE RESPONDENTS EFFECTIVELY
REPUDIATE THE 8(F) AGREEMENT?
As stated above, DLB and its alter ego, BEI, were
bound to an 8(f) agreement with the Union, which by its
terms was effective June 1, 1993, through May 31, 1997.
The parties vigorously dispute the terminal date of the
Respondents’ liability arising from their failure to adhere
to the 8(f) agreement. The General Counsel, through the
CS, alleges that liability begins on the date marking the
beginning of the 10(b) limitations period, August 7,
1993,31 and terminates on May 28, 1997, the date the
Respondents sent a letter to the Union formally repudiat-
ing the agreement and 3 days before the contract termina-
tion date. The Union argues that the Board should apply
Deklewa32 and find that repudiation could not occur be-
fore the contract’s expiration on May 31. The Respon-
dents, having lost the argument in the liability phase that
they repudiated the 8(f) agreement by conduct long ago,
posited various repudiation dates, ranging from Septem-
ber 1993, the date as of which Judge Ladwig, who pre-
sided over the liability phase, found that Union Repre-
sentative Charles Graham first had notice that DLB was
operating nonunion, through March 31, 1994, when the

30 See also Bufco Corp. v. NLRB, 147 F.3d 964, 969 (D.C. Cir. 1998)
(finding that, although there was no evidence that the corporation was
insolvent, the Board “was warranted in believing that the adherence to
corporate form in this instance could very well lead to an evasion of
legal obligations . . . sufficient to justify piercing the corporate veil”)
(internal quotations omitted).
31 We note that the CS alleges a liability commencement date consis-
tent with that ordered by the Board in the liability phase. See 317
NLRB at 336. We further note, however, that in Vallow Floor Cover-
ings, 335 NLRB 20 (2001), the Board, applying Pullman Building Co.,
251 NLRB 1048 (1980), enfd. 691 F.2d 507 (9th Cir. 1982), held that
where the union, through no fault of its own, remained unaware of the
employer’s unfair labor practices, thus tolling the 10(b) period, “‘the
case is before us on the same basis as is any other case, and hence the
usual make-whole remedy is the appropriate one.’” Vallow, 335 NLRB
at 21 (quoting Pullman, 251 NLRB at 1048). Thus, in a contract repu-
diation case, if the employer’s conduct remained under the radar (as
was the situation here), tolling the 10(b) clock, the make-whole remedy
extends back to cover the entire period of the repudiation. But Vallow
and Pullman were merits-stage decisions; this case is in the compliance
phase, and the CS, in accordance with the Board’s court-enforced Or-
der, has alleged a backpay obligation extending back only to the begin-
ning of the 10(b) period. Thus, as a matter of due process, and because
we are not at liberty to modify an Order that has been enforced by a
court of appeals, Scepter Ingot Castings, Inc., 341 NLRB 997, 997
(2004), enfd. 448 F.3d 388 (D.C. Cir. 2006), we may not apply Vallow
here.
32 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de-
nied 488 U.S. 889 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD526
Respondents filed their answer to the complaint. In the
instant proceeding, the Respondents filed a motion in
limine seeking a ruling that contract repudiation occurred
no later than February 1994, when an amended charge
was filed.33 Judge Wilks, based upon the Board’s sum-
mary judgment Order, denied the Respondents’ motion
in limine on the basis of res judicata or issue preclusion.
The Board, subsequently denying the Respondents’ re-
quest for special permission to appeal the judge’s denial,
precluded the Respondents from “seeking to show repu-
diation prior to October 4, 1994,”34 the date the unfair
labor practice hearing closed. Given that limitation,
Judge Wilks, specifically relying on the “factual configu-
ration” existing as of October 4, found, in his subse-
quently rendered decision, that repudiation occurred the
next day, October 5, 1994. The General Counsel and the
Union filed exceptions urging a later repudiation date;
DLB filed cross-exceptions urging an earlier one.
For the reasons that follow, we find that the Respon-
dents repudiated the 8(f) agreement on March 31, 1994,
the date that the Respondents filed their Answer denying
that a contract was in effect. In so doing, we overrule the
Board’s Order denying the Respondents’ request for spe-
cial permission to appeal the judge’s denial of their mo-
tion in limine as clearly erroneous and working a mani-
fest injustice. A review of the relevant facts and proce-
dural history is necessary to understand the parties’ ar-
guments and our decision on this issue.
In 1976, Baker’s then-wife, Holly, signed a “Letter of
Assent-A” and a “Benefit Fund Agreement” (the 8(f)
agreements) as the president of DLB, Inc., but under the
name of the former sole proprietorship. These agree-
ments had the effect of authorizing the National Electri-
cal Contractors Association (NECA) to represent DLB in
negotiations with the Union, and of binding DLB to an
agreement entered into between NECA and the Union
(which agreement contained a hiring hall referral provi-
sion) and obligating DLB to make contributions to vari-
ous trust benefit funds on behalf of DLB employees. In
conversations with Wade Sheriff, the Union’s business
manager at the time, Baker misrepresented that he was
still operating as a sole proprietorship, and he promised
to call the Union for referrals when he began hiring em-
ployees. Contrary to his promise, however, when Baker
began hiring employees, he did not go through the Un-
ion’s hiring hall. Neither did he contribute to benefit
funds, pay union wages, or apply any other terms of the
8(f) agreements. Nor did Baker ever terminate the Letter

33 The Respondents’ motion in limine also sought a ruling that em-
ployees hired after August 7, 1993 (the beginning of the 10(b) period),
were not entitled to a remedy.
34 Unpublished Board Order dated September 8, 2000.
of Assent-A or the Benefit Fund Agreement by giving
the requisite written notices to NECA and the Union.
Sheriff never learned that Baker was hiring employees
outside of the hiring hall.
Charles Graham, who became the Union’s assistant
business manager in 1992, first became aware that DLB
was hiring employees around September 1993, when,
seeing a newspaper ad for electricians, Graham “called
the ad,” and the phone was answered “D.L. Baker.”
However, it was not until December 1993, shortly after
DLB had discharged Tangy, that Graham discovered that
DLB was a signatory contractor. It was then that Gra-
ham, who had been charged with conducting a review of
about 300 “inactive contractor” files, came across DLB’s
file, which contained the 8(f) agreements signed in 1976.
On December 8, 1993, Graham sent a letter to Baker
requesting compliance with the agreements (which he
attached to his letter) and seeking recognition. Baker did
not respond to the letter. The Union subsequently filed
charges and amended charges; complaints were issued on
February 7 and March 17, 1994; those complaints were
consolidated on May 19, 1994.
The relevant complaint provisions allege that “[s]ince
on or about August 7, 1993, Respondent has refused to
adhere to the terms of the 1993–1997 Agreement” (both
by failing to make fund contributions under the Benefit
Fund Agreement and by not applying wage, referral,
fringe benefit and grievance provisions under the Letter
of Assent-A) and “[s]ince prior to December 9, 1993,
Respondent has refused to recognize the Union as exclu-
sive bargaining representative of the Inside Unit.” DLB
filed an answer on March 31, 1994, denying that the “al-
leged ‘Agreement’ is in force and effect” and raising, as
an affirmative defense, that the charges were time barred
by Section 10(b) of the Act.
Administrative Law Judge Marion Ladwig conducted
the hearing in the liability phase of this case on October
3 and 4, 1994. Noting that the principal issue was
“whether the 8(f) prehire letter of assent and benefit fund
agreement are enforceable after the Company failed to
honor them for a substantial number of years,” Judge
Ladwig found that those agreements remained in effect
under their terms.35 Judge Ladwig rejected DLB’s 10(b)
defense, finding that DLB failed to show that the Union
was on “clear and unequivocal notice” that DLB was
operating nonunion because DLB’s “conduct and non-
compliance with the 8(f) prehire agreements were not
sufficiently ‘bald’ to put the Union on notice of its intent
to repudiate the agreements.” Judge Ladwig therefore

35 The judge relied on Neosho Construction Co., 305 NLRB 100,
101 (1991), and Cedar Valley Corp., 302 NLRB 823 (1991), enfd. 977
F.2d 1211 (8th Cir. 1992), cert. denied 508 U.S. 907 (1993).
D. L. BAKER, INC. 527
found that since August 7, 1993 (6 months before service
of the charge), DLB “has failed and refused to adhere to
the terms of the [8(f) agreements],” and that “since De-
cember 9, 1993, when [DLB] failed to respond to the
Union’s December 8, 1993 letter, [DLB] has refused to
recognize the Union.” To remedy the 8(a)(5) violations,
Judge Ladwig found that DLB must be ordered to com-
ply with the “current NECA-Union Inside Wireman mas-
ter agreement.” Judge Ladwig did not explicitly discuss
or decide whether DLB repudiated the 8(f) contract dur-
ing its term, although he cited Deklewa, supra, which
prohibits unilateral midterm repudiation of 8(f) contracts.
The Board affirmed Judge Ladwig’s decision. 317
NLRB at 335.
The Fourth Circuit granted enforcement. NLRB v.
Baker, mem. 105 F.3d 647, 1997 WL 5771 (4th Cir.
1997) (per curiam), cert. denied 522 U.S. 1046 (1998).
Like the Board, the Fourth Circuit rejected DLB’s argu-
ment that it had repudiated the 1976 “me-too” agree-
ments by 16 years of “notorious” nonunion operations.
The court observed that a prehire agreement may be re-
pudiated by “specific acts,” but said that the union must
have “some form of notice” of the inconsistent conduct,
and cited the judge’s finding that DLB “succeeded in
operating nonunion without discovery by the Union until
September 1993.” Id., 1997 WL 5771, at *3. The court
noted Judge Ladwig’s apparent reliance on Deklewa, but
held that the same result obtained under its Clark v. Ryan
standard.36 Id. at *3 fn. 3. The court agreed with the
Board that DLB was bound to the current contract by
renewal clauses in both the “me-too” and the 8(f) agree-
ments, and that “the Company’s delegation of bargaining
authority to NECA continued until revoked, and that
prior to this action the Company did not revoke NECA’s
authority.” 1997 WL 5771, at *3 (emphasis added).
Thus, the Court upheld the Board’s conclusion that the
Respondent “is bound to the current § 8(f) agreement.”37
Id. (emphasis added). The Court concluded by saying
that, because the “Company never effectively repudiated
the §8(f) agreement, it may be held liable for breaching
its terms.” Id. at *4 (emphasis added).
The case then moved into the compliance phase. The
General Counsel issued the CS. In its answer to the CS,
the Respondents, inter alia, denied liability for the back-
pay period alleged in the CS. In its Order granting par-
tial summary judgment on the CS, 330 NLRB at 523, the

36 Clark v. Ryan, 818 F.2d 1102 (4th Cir. 1987), adheres to pre-
Deklewa law, under which an employer may repudiate a prehire agree-
ment at any time prior to the union attaining majority status.
37 Subsequently, the Court said: “[W]e accept the Board’s conclu-
sion that the Company was bound. . . .” 1997 WL 5771, at *3 (empha-
sis added).
Board, stating that both itself and the court of appeals
had found that the Respondent had “never effectively
repudiated” the contract, ruled that “Respondents’ argu-
ment that backpay tolls in September 1993 has already
been rejected and may not be relitigated in this proceed-
ing.”38
At the compliance hearing, as noted above, the Re-
spondents filed a joint motion in limine seeking (in part)
to establish a contract repudiation date. The Respon-
dents argued that the Board had not determined in the
liability phase when repudiation had actually occurred
because, under Deklewa, it was irrelevant. Thus, the
Fourth Circuit had also not addressed that issue because
there was no underlying Board finding to review. Ac-
cording to the Respondents, because the Fourth Circuit
would allow mid-term repudiation under Clark v. Ryan,
supra, and because the Board must follow Fourth Circuit
law, the Board must decide, in the compliance phase,
when repudiation occurred under the Fourth Circuit’s
“some form of notice of inconsistent conduct” standard.
The Respondents also argued that the pleadings in the
liability phase established that the Union had “some form
of notice” of the Respondent’s repudiation at the latest
on March 31, 1994, the date that the Respondents filed
their Answer denying that a contract was “in effect.”
The General Counsel and the Union opposed the Re-
spondents’ joint motion in limine. The General Counsel
argued that the Fourth Circuit’s conclusion that the Re-
spondents “never effectively repudiated the 8(f) agree-
ment” precluded the Respondents from asserting, as the
act effecting contract repudiation, any event predating
the October 1994 merits hearing. The Union argued that
(1) the Respondents’ argument that the Board is bound
by Clark v. Ryan rather than Deklewa is contrary to the
Board’s “nonacquiescence policy,” and (2) the judge
should reject the Respondents’ arguments that contract
repudiation occurred any time prior to the expiration of
the 1993–1997 agreement.39
Judge Wilks orally denied the Respondents’ joint mo-
tion in limine, ruling that he was precluded from taking
any evidence of repudiation prior to the date of Judge
Ladwig’s decision. The Respondents requested special
permission to appeal, arguing that the Board had merely
held that the charges were not time barred, and that the
Fourth Circuit’s decision had merely established that the
liability period began on August 7, 1993. In their re-

38 In fact, the Board had not specifically stated that the Respondent
had “never effectively repudiated” the agreement.
39 The Union suggests that the Respondents could be bound to sub-
sequent 8(f) agreements until such time as DLB properly terminated its
delegation of bargaining authority to NECA and notified all parties of
that termination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD528
quest, the Respondents argued that, because the underly-
ing ULP case dealt with the issue of notice outside the
10(b) period, the court’s statement that the Company
“never effectively repudiated” must be read to mean
“outside the limitations period.” The Respondents fur-
ther argued that Judge Wilks’ belief that he was pre-
cluded from considering a repudiation date prior to Judge
Ladwig’s decision lacked legal foundation. Finally, they
argued that, under the Fourth Circuit’s “some form of
notice” standard, a prehire agreement terminates by law
when the union files a formal complaint of noncompli-
ance.
The General Counsel and the Union opposed the Re-
spondents’ request to appeal. The Board, in a one-
sentence unpublished Order dated September 8, 2000,
denied the Respondents’ request, with a footnote stating:
“Thus, the Respondent is precluded from seeking to
show repudiation prior to October 4, 1994, the date on
which the hearing closed in the underlying case.”
In accordance with the Board’s Order, Judge Wilks, in
the compliance hearing, limited the Respondents to pre-
senting evidence only of “new conduct,” that is, conduct
occurring on or after October 5, 1994, that would estab-
lish repudiation. The Respondents presented some “new
conduct” evidence, but primarily reemphasized their ar-
gument that the pleadings and the evidence in the under-
lying case gave the Union the requisite notice effecting a
repudiation. The judge, constrained as he was from find-
ing that repudiation occurred prior to October 4, but ob-
serving that “none of the precedent cited by the General
Counsel and the Union hold that repudiation may not be
manifested by a pervasive noncompliance with all or
most vital areas of agreement, especially within the con-
text of conduct inconsistent with adherence to the con-
tract as a whole,” found that repudiation occurred on
October 5, 1994. The judge reasoned that although the
Respondents could not relitigate repudiation prior to Oc-
tober 5, they could rely upon evidence adduced before
Judge Ladwig to “shed light upon, to explain, or to un-
derstand the factual configuration existing on and after
October 5, 1994, as to whether the Respondents’ conduct
had constituted manifest intent of contract repudiation
sufficient to put the Union upon notice on or after that
date.” That evidence included Graham’s admission that,
by October 5, 1994, he knew that DLB did not intend to
comply with the contract. The judge further found that
the Respondents could rely upon the pleadings and the
underlying proceeding itself to prove that a sufficiently
bald manifestation of contract repudiation existed in the
Union’s perception immediately after the judge’s gavel
fell on October 4, 1994. The judge thus de facto adopted
the Respondents’ argument that the pleadings and the
evidence in the underlying case imparted knowledge to
the Union, effecting a repudiation.
The General Counsel and the Union except, arguing
that (1) the Board’s Order decided the issue through Oc-
tober 4, 1994, (2) the Respondents may demonstrate re-
pudiation only by new conduct after October 4, and (3)
the Respondents’ post-October 4 conduct was legally
insufficient to repudiate the contract. The General Coun-
sel also argues that, although the Union was aware that
DLB had not fully complied with the contract, noncom-
pliance is not tantamount to repudiation. The Union ar-
gues that pleadings, motions, and legal proceedings can-
not evidence repudiation as a matter of law. The Union
further argues that contract repudiation requires an af-
firmative act directed towards the Union, and that the
May 28, 1997 letter was the first such affirmative act
after October 4 (although, under Deklewa, the repudia-
tion was not effective until May 31, when the contract
expired). The Respondents counter that (1) under Clark
v. Ryan, the right to repudiate supersedes an agreement’s
termination provision, and (2) the argument that there
must be an affirmative act to effect a repudiation fails
because it is inconsistent with the Fourth Circuit’s “some
form of notice” standard.
For the following reasons, we reverse the judge and
find that the Union had notice that DLB clearly intended
a total repudiation of the 8(f) agreements no later than
March 31, 1994, the date that DLB filed its answer as-
serting that there was no contract in effect. Thus, we
terminate the Respondents’ liability for its violations of
Section 8(a)(5) accordingly.
Preliminarily, we acknowledge that this finding, con-
trary to the “law of the case” doctrine, effectively over-
rules our Order denying the Respondents’ request for
special permission to appeal the judge’s denial of its mo-
tion in limine, in which the Board precluded the Respon-
dents from seeking to show repudiation prior to October
4, 1994. However, as stated in Arizona v. California,
460 U.S. 605, 618 (1983), “[u]nlike the more precise
requirements of res judicata, law of the case is an amor-
phous concept”—it “directs a court’s discretion, it does
not limit the tribunal’s power.” Thus, as we recently
stated in Teamsters Local 75 (Schreiber Foods), 349
NLRB 77, 82 (2007): “Although the law of the case doc-
trine does not absolutely preclude reconsideration or re-
versal of a prior decision, such action should not be taken
absent extraordinary circumstances such as where the
initial decision was clearly erroneous and would work a
manifest injustice” (internal quotations omitted). Upon
further consideration, we believe that the Board’s earlier
Order was clearly erroneous and that adherence to that
D. L. BAKER, INC. 529
Order would work a manifest injustice.40 As to the for-
mer, we think that the Board misread the Fourth’s Cir-
cuit’s decision. As to the latter, we note that the contract
repudiation date is also the backpay liability termination
date (except as to Tangy), and thus significantly affects
the Respondents’ financial obligations by altering not
only the duration of the period of liability but also the
number of claimants. In the latter regard, the CS lists
approximately 320 hiring hall claimants to whom back-
pay is allegedly due; although roughly half of the names
are repeated, this represents still far more than the 10 to
20 claimants posited to the Fourth Circuit in previous
oral argument.
As a preliminary matter, we reiterate that the Board
continues to adhere to John Deklewa & Sons, 282 NLRB
at 1375. Deklewa overruled prior Board decisions hold-
ing that, prior to conversion of an 8(f) bargaining rela-
tionship to one under Section 9(a), 8(f) prehire agree-
ments could be repudiated by either party, at any time,
for any reason, and could not be enforced through Sec-
tion 8(a)(5). This pre-Deklewa interpretation of 8(f) was
approved by the Supreme Court in Jim McNeff, Inc. v.
Todd, 461 U.S. 260, 269–270 (1983), and by the Fourth
Circuit in Clark v. Ryan, supra, both cited in the Fourth
Circuit’s decision enforcing the Board’s decision in the
liability phase below. Following Deklewa, a majority of
the courts of appeals adopted that decision.41 However,
the Fourth Circuit has held that it cannot adopt Deklewa
because it directly conflicts with the holding in Clark v.
Ryan that a “pre-hire agreement may be repudiated at any
time by either party prior to the union’s achievement of
majority status.” 818 F.2d at 1107. Apparently because
the Fourth Circuit has held that Deklewa does not control
within its jurisdiction, the General Counsel, through the
CS, alleged an 8(a)(5) backpay period consistent with
Fourth Circuit precedent rather than with Deklewa.
Thus, although under Deklewa the Respondents’ liability
would run through May 31, 1997, the end of the 8(f)

40 Member Liebman was a member of the panel that issued the Order
in question. However, upon further reflection, she now agrees that it
should be overruled.
41 See, e.g., NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727,
735 (11th Cir. 1998), rehearing & suggestion for rehearing en banc
denied 149 F.3d 1197 (11th Cir. 1998); NLRB v. Viola Indus.-Elevator
Div., Inc., 979 F.2d 1384, 1393–1395 (10th Cir. 1992) (en banc);
C.E.K. Industrial Mechanical Contractors, Inc. v. NLRB, 921 F.2d 350,
357 (1st Cir. 1990); NLRB v. Bufco Corp., 899 F.2d 608, 609, 611 (7th
Cir. 1990); NLRB v. W. L. Miller Co., 871 F.2d 745, 748 (8th Cir.
1989); Mesa Verde Constr. Co. v. Northern California Dist. Council of
Laborers, 861 F.2d 1124, 1129–1134 (9th Cir. 1988) (en banc). The
Fifth Circuit, in Carpenters Local 953 v. Mar-Len of Louisiana, Inc.,
906 F.2d 200 (5th Cir. 1990), declined to decide “whether the NLRB’s
present interpretation of § 8(f), announced in Deklewa, is the control-
ling law in this circuit.” Id. at 203.
agreement’s term, the CS alleges liability only through
May 28, 1997, the date of the letter to the Union formally
announcing repudiation. Because the CS failed to put the
Respondents on notice that a liability date later than May
28 could be in issue, and because the Fourth Circuit’s
decision in this case makes the Clark v. Ryan standard
the law of the case, we now analyze the contract repudia-
tion issue consistent with Fourth Circuit precedent rather
than under Deklewa.42
The Respondents concede that the Fourth Circuit, in
enforcing the Board’s Order, held that the Respondents
became subject to the terms of the 1994–1997 agree-
ment. In so doing, and as noted above, the Fourth Circuit
rejected two lines of argument. The first, to be discussed
further below, was DLB’s “notice” argument—that by
virtue of DLB’s prior conduct, the Union was on notice
that DLB did not intend to be bound to any 8(f) agree-
ment, including the 1994–1997 agreement. The second
was DLB’s argument that, by signing the “me-too”
agreement in 1976, it bound itself only to the then-
current agreement. As to the latter, the court of appeals
found that DLB bound itself to subsequent agreements
by virtue of automatic renewal clauses in both the “me-
too documents” and in each 8(f) agreement. The parties
ascribe various meanings to particular phrases the Fourth
Circuit used in its discussion of this issue: “prior to this
action,” “is bound” versus “was bound,” and, especially,
“never effectively repudiated.” Having closely reviewed
the court’s opinion, we agree with the Respondents that,
in context, it is unreasonable to read the Fourth Circuit’s
rejection of DLB’s second argument as establishing any-
thing more than that, because DLB had not revoked its
delegation of bargaining authority to NECA prior to

42 The Board generally applies its “nonacquiescence policy,” see Ar-
vin Industries, 285 NLRB 753, 757 (1987), and instructs its administra-
tive law judges to follow Board precedent, not court of appeals prece-
dent, unless overruled by the United States Supreme Court. Gas Spring
Co., 296 NLRB 84, 97 (1989) (citing, inter alia, Insurance Agents
(Prudential Insurance), 119 NLRB 768 (1957), revd. 260 F.2d 736
(D.C. Cir. 1958), affd. 361 U.S. 477 (1960)), enfd. 908 F.2d 966 (4th
Cir. 1990), cert. denied 498 U.S. 1084 (1991). This nonacquiescence
policy serves important goals: it defines a uniform national labor pol-
icy, as distinct from a patchwork of geographically diverse rules, see
San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242–243
(1959); and it frees the Board from attempting to anticipate with preci-
sion the locus of appellate jurisdiction, see, e.g., Harrison Steel Cast-
ings Co. v. NLRB, 923 F.2d 542 (7th Cir. 1991). For those reasons, the
Board has explained, it is not required, on either legal or pragmatic
grounds, to automatically follow an adverse court decision, but will
instead respectfully regard such a ruling as the law of that particular
case. Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993), revd. 60
F.3d 1195 (6th Cir. 1995). However, in a case such as this one, where a
circuit court has issued a decision, the Board must either comply with it
or obtain permission from the Solicitor General to file a petition for
writ of certiorari. See Shaw’s Supermarkets, 303 NLRB 382, 382
(1991); Raley’s Inc., 311 NLRB 1244, 1249 fn. 7 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD530
NECA and the Union entering into the 1994–1997 agree-
ment, it became bound to that agreement and could hence
“be held liable for breaching its terms.” 1997 WL 5771,
at *4.
As the Respondents have repeatedly argued, however,
that does not answer the question of when the Respon-
dents’ liability under the 8(f) agreement terminated. In
rejecting DLB’s argument that it repudiated the 1976
“me-too” documents by 16 years of “notorious” nonun-
ion operations, the Fourth Circuit, citing Jim McNeff, Inc.
v. Todd43 and Clark v. Ryan, stated that “acts” could ef-
fect a repudiation, but that such “acts sufficient to repu-
diate the prehire agreement require at least that the Union
have some form of notice of the inconsistent conduct.”
Id. at *3 (emphasis added). Finding no basis for revers-
ing Judge Ladwig’s factual findings that there “was no
reason for [the Union] to suspect that Baker was reneg-
ing on his promises and operating nonunion,” and that
DLB “succeeded in operating nonunion without discov-
ery by the Union until September 1993,” the court re-
jected DLB’s argument that its “conduct prior to Sep-
tember 1993 was sufficiently ‘notorious’ to repudiate the
contract.” Id.44
It does not follow, of course, that the court thereby im-
plicitly found that in September 1993, DLB’s conduct
was sufficiently notorious to establish repudiation. In
September 1993, Graham had called the number in the
newspaper ad, and the phone had been answered “D.L.
Baker”—but, as Judge Ladwig found, that merely made
Graham “familiar with Baker’s firm and aware that it
was hiring employees.” 317 NLRB at 341. It was not
until December of 1993 that Graham “came across” the
Letter of Assent-A and Benefit Fund Agreement under
the name “D.L. Baker.” Thus, it was not until December
that Graham knew both that DLB had an 8(f) agreement
and that it was hiring employees in contravention of the
hiring hall provisions of that agreement. Accordingly, as
of December 1993, the Union knew that DLB was not
complying with a key contract provision. That knowl-
edge alone, however, did not yet put the Union on notice
that DLB intended to repudiate the entire agreement.

43 See 461 U.S. at 270 fn. 11 (finding it unnecessary to decide what
“specific acts would affect [sic] the repudiation of a prehire agree-
ment—sending notice to the union, engaging in activity overtly and
completely inconsistent with contractual obligations, or . . . precipitat-
ing a representation election”).
44 DLB had argued, and the Fourth Circuit’s decision established,
that the following acts or conduct did not establish an effective repudia-
tion: (1) the Union’s 1991–1993 “extensive organizing campaign,” (2)
the Union’s 1994 organizing campaign and Graham’s reference to DLB
as a “non-union shop” in the Union’s February 1994 newsletter, and (3)
alleged union representatives’ site visits and citations in Dodge reports.
In the liability phase, the Board affirmed Judge Lad-
wig’s conclusion that DLB had violated Section 8(a)(5)
by, inter alia, “refusing since December 9, 1993 . . . to
recognize the Union.” 317 NLRB at 347. But it does not
necessarily follow that the Union knew, as of December
9, 1993, that DLB would not comply with any of the
contract terms. Nor do we find the notice issue disposed
of by the fact that DLB did not immediately answer the
Union’s request for recognition, especially given that the
request was addressed to the sole proprietorship.45 See
Convergence Communication, Inc., 339 NLRB 408
(2003) (a refusal to bargain is not ripe when an employer
has merely failed to respond to a union’s demand for
bargaining).
On the other hand, application of the Fourth Circuit’s
“some form of notice” standard mandates a result far
from the other end of the spectrum, the May 1997 dates
advocated by the General Counsel and the Union. We
note, in this connection, that given the constraints im-
posed upon the judge by the Board’s previous order, his
examination of the “factual configuration” in its entirety
was eminently reasonable. Certainly the Union, having
received no response to its request for recognition, had to
begin to formulate some idea of the Respondent’s intent
to comply—or not—with the 8(f) agreement. The lan-
guage the Union used in its 8(a)(5) charges reflects as
much.46 To the extent that there might be any remaining

45 Upon discovering the letter of assent and benefit fund agreement
in its inactive files, Graham took the reasonable step of writing to “D.L.
Baker Elec. Contractor,” the sole proprietorship, not knowing that 3
months before signing the agreements in 1976, Baker had incorporated
and concealed that fact from the Union.
46 In the initial charge filed on January 31, 1994, in Case 5–CA–
24190, the Union alleged: “On or about December 9, 1993, [DLB]
refused and continues to refuse to bargain collectively with the [Un-
ion].” In its first amended charge filed on February 25, 1994, in Case
5–CA–24190, the Union alleged: “During the six-month period pre-
ceding the initial charge and continuing to date, the Employer has failed
to adhere to the terms and conditions of the Inside Wireman Agreement
and has refused to comply with the Local’s demand that the Employer
adhere to the contract” (emphasis added). The March 17, 1994 com-
plaint in Case 5–CA–24190 alleged that DLB, since on or about August
7, 1993, has failed to continue in effect and has refused to adhere to the
terms of the 1993–1997 agreement. Thus, in fact, the Union was on
notice of, and affirmatively alleged, conduct inconsistent with the pro-
visions of the 8(f) agreement. In its March 31, 1994 answer, DLB
specifically denied that the alleged 1993–1997 IBEW Agreement was
“in force and effect.”
Moreover, in January 1994, Graham sent a letter to Baker informing
him that the Union was engaging in “an active organizing campaign.”
Although we recognize that this fact does not in itself establish knowl-
edge of a repudiation, we believe that the Union’s announcement of
efforts to achieve 9(a) status adds to the “factual configuration” demon-
strating that the Union had, or was gaining, an awareness that Baker did
not intend to abide by the 8(f) agreement.
D. L. BAKER, INC. 531
doubt, DLB quelled it by submitting its answer denying
that any contract was in effect.47
It appears to us that the Board’s previous refusal to al-
low a showing of repudiation prior to the date the hearing
concluded in the liability phase (October 4, 1994) was
founded upon a mistaken premise that, when the Fourth
Circuit stated that DLB did not repudiate the agreement
“prior to this action,” the “action” referred to was Judge
Ladwig’s merits-stage hearing.48 We think it much more
likely that the court used “prior to this action” in the
usual legal sense, that is, prior to the commencement of
an action by filing a complaint.49
We agree with the Respondents that the judge’s and
the Board’s decisions in the underlying liability phase
did not address the issue of a contract repudiation date
because they assumed that Deklewa controlled, and that
they addressed the notice issue within the context of
10(b) timeliness arguments. Thus, we further agree with
the Respondents that when the Fourth Circuit stated that
DLB “never effectively repudiated” the terms of the 8(f)
agreement, 1997 WL 5771 at *4, the court meant that

47 The Union cites Teamsters Local 745, etc. v. Braswell Motor
Freight Lines, Inc., 428 F.2d 1371 (5th Cir. 1970), cert. denied 401
U.S. 937 (1971), and Thelin v. Mitchell, 576 F.Supp. 1404 (N.D. Ill.
1983), in support of its argument that the mere filing of a charge and an
answer cannot effect a repudiation. Those cases represent neither
Board nor Fourth Circuit precedent, and accordingly, we are not bound
by them. In any event, neither decision holds, as a matter of law, that
pleadings cannot constitute “some form of notice” of 8(f) contract
repudiation.
The General Counsel argues that the Fourth Circuit’s decision in In-
dustrial TurnAround Corp. v. NLRB, supra, 115 F.3d at 248, supports
the argument that the May 28, 1997 letter effected the repudiation. In
that case, the Fourth Circuit found midterm repudiation of an 8(f)
agreement by a letter sent from the employer to NECA and the union
announcing that repudiation. However, the court in Industrial Turn-
Around did not hold that the act constituting “some form of notice” of
repudiation must be in writing. Rather, it just so happened that, in
Industrial TurnAround, the first (and only) notice was in writing, as the
employer’s conduct would not have aroused the union’s suspicion.
There, employer ITAC and the union had on ongoing relationship, and
ITAC had been complying with the 8(f) agreement. Unlike this case,
Industrial TurnAround did not present a “factual configuration” that
would lead a reasonable person to suspect repudiation.
48 Judge Wilks, orally denying the Respondent’s motion, seemed to
think that “this action” referred to December 21, 1994, the date Judge
Ladwig issued his decision. The Board adopted the date the merits-
stage hearing closed, October 4, 1994.
In its brief opposing the Respondents’ motion in limine, the General
Counsel argued that the Respondents’ attempt to obtain a ruling that
DLB repudiated the 8(f) agreement on “March 31, 1994, a date prior to
the presentation of evidence in the underlying case, is ludicrous and
legally impermissible.” That argument is without merit: most litiga-
tion, by its nature, occurs after the alleged wrong at issue in the litiga-
tion; the evidence presented at trial necessarily relates to events that
occurred before the trial.
49 Black’s Law Dictionary 26 (5th ed. 1979) (defining “Action” in its
“usual legal sense” as meaning a “formal complaint within the jurisdic-
tion”).
DLB never effectively repudiated prior to the start of the
10(b) period. Because the issues before the Fourth Cir-
cuit were framed in the 10(b) context, the Board erred in
effectively finding that the Fourth Circuit’s decision pre-
cluded “relitigation” of an issue not yet litigated—
whether repudiation had been effected sometime during
the contract term—and affirmatively holding that there
could be no finding of repudiation before the close of the
hearing below on October 4, 1994. Thus, applying Clark
v. Ryan, we find that the pleadings below, considered in
conjunction with the factual findings and legal conclu-
sions in the liability phase, establish that the Respondents
repudiated the 8(f) agreement on March 31, 1994. Ac-
cordingly, the Respondents’ obligations under the 8(f)
agreement and to make fund contributions came to an
end on that date.50
VI. RESPONDENTS’ BACKPAY OBLIGATION TO TANGY
A. Tangy’s Backpay Period
By letter dated July 17, 1997, DLB offered Tangy re-
instatement, beginning August 4, 1997, at his 1993 wage
rate. When Tangy reported to work on August 4, he was
presented with employment documents, which he was
asked to complete. Tangy was then sent to Maurice
Electric, one of DLB’s suppliers. Tangy worked alone
on August 4, finishing the job early in the morning the
following day, at which time he began calling the office
for his next assignment. Because it was very early,
Tangy was initially unable to reach anyone at the office
number, so he began calling alternate phone numbers
listed on a “communication procedure sheet” he had been
provided when he began work. After not reaching any-
one at the alternate numbers, he again called the office,
and this time an individual whom Tangy identified as a
“secretary” answered the phone. According to Tangy,
the secretary said that there was no further work for him
and he should go home and await contact from Baker.
Instead, Tangy went back to work for his previous in-
terim employer, Heller Electric. On August 6, DLB sus-
pended Tangy because he had failed to report back to
work on August 5 and had failed to leave a phone num-
ber. On August 15, DLB terminated Tangy because he
had violated company policy against “moonlighting,”
failed to report to work, and failed to notify DLB of his
“whereabouts.”
The judge found that Tangy’s backpay period ran from
December 1, 1993 (the date of Tangy’s discharge) to
September 28, 2000 (the date, as stipulated by the par-
ties, on which DLB made a valid reinstatement offer to

50 Liability for Tangy’s discriminatory discharge continued beyond
the March 31, 1994 repudiation date until Tangy turned down the valid
reinstatement offer on September 28, 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD532
Tangy, which he rejected). In so doing, the judge found
that Tangy was privileged to reject the July 1997 rein-
statement offer as facially invalid; hence, his motive in
accepting it was irrelevant. The judge found, alterna-
tively, that even if the 1997 offer were not facially inva-
lid, Tangy was privileged to quit the DLB job because it
was not substantially equivalent to his old job, which, in
1997, would have been a BEI job. Further, the judge
found that payment of the 1993 wage rate rendered the
offer invalid. Finally, the judge found that Tangy’s sub-
sequent termination, even if considered voluntary, did
not prejudice his right to a valid reinstatement offer and
continued backpay until the stipulated date that offer was
made.
DLB filed cross-exceptions, arguing that the judge
erred by finding DLB did not make a valid reinstatement
offer to Tangy in July 1997, which assertedly tolled his
backpay thereafter. The General Counsel moved to
strike Respondent’s Exhibit 109 (R–109), a copy of a
fax, arguably relevant to Tangy’s motive in accepting the
reinstatement offer, because it was encompassed by the
General Counsel’s subpoena but not produced by the
Respondents.
We adopt the judge’s finding that DLB’s July 1997 re-
instatement offer was to nonequivalent employment and
was thus invalid.51 Accordingly, an evaluation of
Tangy’s response to the invalid offer is unnecessary.
Midwestern Personnel Services, Inc., 346 NLRB 624,
625 (2006). It is the employer’s burden to establish that
it made a valid reinstatement offer. L.A. Water Treat-
ment, 263 NLRB 244, 246 (1982). The Respondents
failed to meet that burden. By reinstating Tangy to DLB,
rather than to BEI, and for a mere 1-1/2 days52 and at his
1993 rate of pay, the Respondents did not place Tangy in
the same position that he would have been in had there
been no unlawful discrimination against him. Moreover,
regardless of whether Tangy is deemed to have quit DLB
or to have been lawfully discharged, he was still entitled
to reinstatement and backpay. As a discriminatee who
was not properly reinstated, Tangy was free to quit his
new employment with DLB if he was not satisfied with
his inadequate reinstatement. See Performance Friction,
supra, 335 NLRB at 1124; Sumco Mfg. Co., 267 NLRB
253, 258 (1983), enfd. 746 F.2d 1189 (6th Cir. 1984),
cert. denied 471 U.S. 1100 (1985). Even if he was law-

51 In so doing, we find it unnecessary to pass on the judge’s alternate
finding that Tangy was privileged to reject the 1997 reinstatement offer
as facially invalid. In addition, we find that the judge did not commit
reversible error by admitting R–109 over objections. See AEi2, LLC,
343 NLRB 433 (2004), enfd. 72 F.3d 780 (10th Cir. 1995).
52 Cf. Baddour, Inc., 304 NLRB 681, 685 (1991) (discriminatee not
returned to substantially equivalent employment where returned to
employment for one morning and then terminated).
fully discharged by DLB, the result is the same because
the Respondents’ obligation to make a proper reinstate-
ment offer continues unless it can show that the conduct
for which Tangy was discharged was so egregious as to
require forfeiture of his right to reinstatement and further
backpay. Ryder System, 302 NLRB 608, 609 (1991),
enfd. 983 F.2d 705 (6th Cir. 1993). DLB has not proven
such egregious conduct.
In sum, because we agree with the judge that the Re-
spondents’ July 1997 reinstatement offer was invalid, we
adopt the judge’s finding that the Respondents’ backpay
obligation to Tangy continued until September 28, 2000,
when Tangy rejected the Respondents’ valid reinstate-
ment offer.
B. Other Issues Concerning the Amount of Respondents’
Liability to Tangy
1. Whether to adopt the General Counsel’s “revised” or
“alternate” backpay calculations
The figures for the Respondents’ backpay liability to
Tangy set forth in the initial CS were calculated by the
compliance officer based upon Tangy’s submission of
standard quarterly reports required by the Board in com-
pliance proceedings. The Respondents developed their
counter-calculations based upon extraordinarily detailed
journals that Tangy had kept, which were provided to the
Respondents pursuant to subpoena and admitted into
evidence. The Respondents questioned Tangy for weeks
about entries in these journals; and these journals and
Tangy’s accompanying testimony, which provided more
information than the compliance officer originally had by
virtue of Tangy’s quarterly reports, compelled a number
of revisions during the course of the hearing to the calcu-
lations set forth in the CS. General Counsel’s post-
hearing brief to the judge included both “revised” calcu-
lations, which accounted for certain “voluntary quits” or
other instances where Tangy unjustifiably removed him-
self from the job market, and “alternate” calculations,
which added further interim earnings (and correspond-
ingly decreased Tangy’s net backpay award) to account
for all instances where Tangy’s journal entries scrupu-
lously reflected that he had, for example, slept in late,
gone to the doctor, or attended to other personal business
while working for an interim employer.53

53 GC Exh. 238 (GC-238), which set forth the General Counsel’s ini-
tial determination of interim earnings, was assertedly based solely on
Tangy’s paystubs. Appendix B to the General Counsel’s posthearing
brief to the judge revised GC-238, purportedly to add interim earnings
for hours with interim employers that Tangy could have worked but did
not work for personal reasons. Those additional hours were adopted by
the judge in his decision at sec. VI,C,3,a & b. Appendix F to the Gen-
eral Counsel’s posthearing brief to the judge is an additional, “alter-
nate” calculation of Tangy’s interim earnings and net backpay, reflect-
D. L. BAKER, INC. 533
The judge found that Tangy “was a basically honest
and responsive witness with respect to his attempts to
find and keep interim employment and as to his expenses
for same.” The judge, adopting the General Counsel’s
“alternate” rather than “revised” calculations, further
found that Tangy was due $85,407.66 in backpay,
$217.35 in medical expenses, and contributions to seven
union funds (the latter for the period running from
Tangy’s date of employment through October 5, 1994,
the date the judge found that DLB repudiated the 8(f)
agreements). We find, contrary to the judge, that the
General Counsel’s “revised” calculations are more con-
sistent with the Board’s traditional approach to mitiga-
tion analysis in compliance proceedings and that adop-
tion of the “alternate” calculations would hold Tangy to a
much higher standard than traditionally applied by the
Board.
NLRB Casehandling Manual (Part Three) Compliance
Section 10545 (Mitigation) emphasizes, at Section
10545.1, that a discriminatee “must make reasonable
efforts . . . to hold interim employment” (emphasis
added), and that the “focus . . . is on the search for
work.” The General Counsel’s “alternate” calculations
go well beyond this common-sense standard, effectively
punishing Tangy in a way made possible only because he
provided the Respondents with a record of minor derelic-
tions that most backpay claimants never generate, which
the Respondents here seek to exploit to undo Tangy’s
largely successful mitigation efforts.54 Scrutinizing
Tangy’s journals for every instance in which he missed a
brief period of work shifts the focus away from whether
Tangy reasonably mitigated backpay and micromanages,
retroactively, Tangy’s work history. The Board simply is
not, and cannot be, in the business of micromanaging
discriminatees’ mitigation efforts.
The General Counsel’s “revised” calculations appear
to follow the Board’s customary approach to mitigation,
imputing earnings where Tangy quit or unreasonably

ing increased interim earnings for tardinesses, early work departures,
and brief absences for personal reasons referred to in the judge’s deci-
sion at sec. VI,C,3,a. The General Counsel represented that the “alter-
nate” calculations assumed that Tangy had worked 8 hours every day
he was employed by an interim employer (or, if he quit, for hours that
were available to work), even if he had worked less, unless prevented
by circumstances beyond his control. The judge adopted the General
Counsel’s “alternate” calculations, attaching the General Counsel’s
posthearing brief, appendix F, to his decision as appendix A. See
judge’s decision at sec. VI,D.
54 The judge recognized this when he stated that “Tangy’s meticu-
lously detailed daily journals produced the ammunition for the Respon-
dents’ attack upon his search for and maintenance of employment ef-
forts,” and that had Tangy “been less candid and less detailed . . . the
Respondents would have been hard pressed to prolong his examination
beyond a few fruitless days.”
refused to accept substantially equivalent employment,
but not requiring perfect efforts from the discriminatee.
However, because the General Counsel provides final
numbers rather than underlying calculations, we cannot,
on this record, resolve certain inconsistencies and evi-
dentiary gaps. Accordingly, while we adopt in large
measure the General Counsel’s “revised” figures, we
remand certain issues, detailed below, for further action
consistent with this decision.
2. Tangy’s gross backpay
As noted in section II, above, the judge found that the
Board’s summary judgment Order was not limited to the
gross backpay formula alleged in the CS, but that it also
deemed as admitted, due to the deficiency of the Re-
spondents’ answer, 520-hours-per-calendar quarter as the
measure of gross backpay owed by the Respondents to
Tangy. As also noted above, BEI excepted and DLB
cross-excepted to this finding. We adopt the judge’s
finding and reaffirm that the Board’s summary judgment
Order established Tangy’s gross backpay at 520 hours
per quarter.
The judge further found that Tangy’s gross backpay
should be calculated at the 8(f) contract wage rate, which
was considerably higher than Tangy’s $13 per hour wage
rate, throughout his entire backpay period, notwithstand-
ing contract repudiation. The judge reasoned that (1)
Tangy would have been granted some raises, apart from
any consideration of the 8(f) agreement rate; (2) the Re-
spondents submitted no evidence regarding what rate
they would have paid Tangy after the contract repudia-
tion date, and all doubts are resolved against the wrong-
doer; and (3) while it would have been logical for the
Respondents to have done so, they failed to assert that
the contract rate of pay would not apply beyond the con-
tract repudiation date; thus, their defective answer results
in a deemed admission that the contract rate of pay con-
tinued.
BEI and DLB excepted and cross-excepted, respec-
tively, arguing that the wage rates must be adjusted after
October 4, 1994 (the date the judge found repudiation to
have occurred). Alternatively, they argue that the con-
tract wage rate on October 5, 1994, was $21.70 per hour,
and that the Board should apply that rate after that date.
We agree that the 8(f) contract wage rates apply be-
yond the contract repudiation date for the duration of
Tangy’s backpay period. In its answer to the CS, DLB
failed to answer with specificity concerning the wage
rates it paid to its electricians, even though those wage
rates were within its knowledge and control. Thus, the
Board granted summary judgment on gross backpay; and
because gross backpay alleged in the CS was based on
the 8(f) contract wage rate (incorporated by reference in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD534
GC Exh. 1(c), Exh. R), the Respondents cannot now seek
to overturn that wage rate.
3. Offsets from Tangy’s gross backpay
The Respondents dedicated much of their efforts at
hearing to attempting to show that Tangy’s gross back-
pay should be reduced because (1) Tangy’s testimony
was untruthful (according to the Respondents, he will-
fully concealed or misstated interim earnings or was
bribed by the Union’s “subsidy”); (2) Tangy did not en-
gage in sufficient mitigation efforts because he voluntar-
ily quit interim employers, avoided employment with
nonunion employers, and habitually missed work oppor-
tunities; and (3) the General Counsel’s expenses offset to
Tangy’s interim earnings was excessive.55 The judge,
with limited exceptions, found that the Respondents
failed to carry their burden to reduce Tangy’s gross
backpay beyond his demonstrated interim earnings.
For the reasons stated by the judge, we adopt the
judge’s findings that (1) Tangy did not willfully conceal
interim earnings (judge’s decision sec. VI,C,2);56 and (2)
except for certain limited areas explained by the judge
(judge’s decision sec. VI,C,3), the Respondents failed to
prove that Tangy willfully avoided or culpably failed to
maintain substantially equivalent work.57 As to the lat-
ter, the judge found, and we agree, that Tangy’s duty was
to seek employment equivalent to that which DLB
should have afforded him; accordingly, Tangy was not

55 DLB also contends that the judge denied it due process by allow-
ing the Regional Director to make claim decisions after the close of the
hearing, an apparent reference to the General Counsel’s revisions to
calculations related to interim earnings and expenses. We find no merit
in DLB’s due-process claim. It is a respondent’s burden, not the Gen-
eral Counsel’s, to establish interim earnings. United States Can Co.,
328 NLRB 334, 337 (1999), enfd. 254 F.3d 626 (7th Cir. 2001). The
General Counsel is entitled to provide an alternate calculation of in-
terim earnings, which the General Counsel did through the CS. When a
respondent fails to satisfy its burden to establish interim earnings, a
judge can look to evidence supporting the General Counsel’s alternate
method of determining interim earnings. U.S. Telefactors Corp., 300
NLRB 720, 721 (1990). Although the General Counsel does have the
burden to prove expenses as an offset to interim earnings, DLB has not
explained what harm to itself resulted from the General Counsel’s delay
in revising expense calculations. Cf. Kawasaki Motors Mfg. Corp.,
U.S.A. v. NLRB, 850 F.2d 524, 530 (9th Cir. 1988) (General Counsel
should have raised issue in more timely manner, but no prejudice by
delay). Indeed, the General Counsel dropped claims for certain ex-
penses. However, out of an abundance of caution, we rule that DLB
may dispute on remand any posthearing revisions by the General Coun-
sel to calculations concerning Tangy’s interim expenses.
56 Backpay is not denied where a claimant, through inadvertence,
fails to report earnings or exhibits minor imperfections in recordkeep-
ing over an extended period of time. Cibao Meat Products, 348 NLRB
47 (2006), and cases cited therein.
57 The General Counsel must show gross backpay. The respondent
then has the burden of establishing affirmative defenses to mitigate its
liability, including a willful loss of interim earnings. Millenium Main-
tenance & Electrical Contracting, 344 NLRB 516, 517 (2004).
obliged to seek nonunion jobs that did not offer terms
and conditions of employment substantially equivalent to
those Tangy should have been receiving at the time he
was discriminatorily discharged.58 The judge further
found, and we further agree, that, following Tangy’s dis-
criminatory discharge from DLB, Tangy’s backpay
should not be tolled if he quit or was terminated from
nonequivalent employment, so long as his termination
was not due to his deliberate or gross misconduct.
We agree with the judge that interim earnings must be
imputed for periods of time during which Tangy lost
substantially equivalent employment because of unjusti-
fied refusals to accept such or because of unjustified
“voluntary quits.”59 Thus, we agree with the judge that
48 hours of interim earnings must be imputed in the sec-
ond quarter of 1996 to account for available local work
that Tangy rejected in order to work on his townhouse;
120 hours in the third quarter of 1996 to account for vol-
untary quits from American Combustion and Truland
System Corporation, 1 week (40 hours) and 2 weeks (80
hours), respectively, before those projects concluded; and
40 hours in the second quarter of 2000 to account for a
voluntary quit from Gleeson Electric to return to Michi-
gan to seek employment there. Although the General
Counsel’s “revised” calculations purport to impute in-
terim earnings for work lost due to those unjustified re-
fusals to accept equivalent employment and voluntary
quits, our review of the exhibits leaves us uncertain about
the accuracy of those calculations.60 Thus, on remand,

58 See Midwestern Personnel Services, 346 NLRB 624, 627 (2006)
(rejecting argument that discriminatee incurred a willful loss of earn-
ings by relying almost exclusively on union’s looking-for-work list;
also adopting judge’s finding that discriminatee who did not accept
employment with nonunion company because he anticipated better
paying union work would soon be available did not incur a willful loss
of interim earnings).
59 Cf. Artim Transp. System, Inc., 193 NLRB 179, 183 (1971) (quot-
ing Mastro Plastics Corp., 136 NLRB 1342, 1349 (1962), enfd. in
relevant part 354 F.2d 170 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966)): “‘[A] claimant who obtains a job but then leaves it for justifi-
able reason is not deprived of all further claims; the assumption is that
the reason for his quitting the job would not have been present at Re-
spondent’s plant and therefore the job is not substantially equivalent.’”
60 The second quarter of 1996 stands out. The original attachment to
the CS (GC Exh. 1(c), Exh. R) showed Tangy’s interim earnings for
2dQ/96 as $12,888.20. That figure was subsequently increased to
$14,121.24 (GC Exh. 227), where it remained during the next set of
revisions (GC Exh. 238), only to decrease again to $13,392.00 in the
final “revised” calculations submitted as Appendix B to the General
Counsel’s post-hearing brief to the judge. The General Counsel
claimed that 48 hours of interim earnings were imputed to this quarter.
Our concern lies in the fact that, although the final revised calculation
does show an increase over the initial calculation ($12,888.20 to
$13,392.00), it shows a substantial decrease from the intermediate
revised calculation ($14,121.24 to $13,392.00). It is possible that the
final revised calculation may have captured the 48 hours of imputed
earnings, but we cannot be certain from what was submitted to us.
D. L. BAKER, INC. 535
the Respondents, who bear the burden of proof with re-
spect to interim earnings, may seek to prove different
interim earnings calculations for those three quarters
(limited to the 208 hours discussed in the instant para-
graph). Of course, the General Counsel may also wish to
revisit the calculations on his own initiative.61
As referenced above, the judge also found that
[t]he record reflects instances of small increments of
time, too numerous to discuss here, when Tangy will-
fully incurred the loss of interim earnings by tardiness,
early work departures, and brief absences for personal
reasons, including a desire for more sleep. Contrary to
the General Counsel and the Union, I find that these
willful and grossly negligent work avoidances necessi-
tate an increase to the interim earnings offset claimed
by the General Counsel in the backpay specification, as
amended at trial.62
We disagree that these “small increments of time, too nu-
merous to discuss” constitute a “willful loss” of work that
would require the imputation of additional interim earn-
ings.63 After an employee has been discriminatorily dis-
charged, and while unemployed, he is not required to spend
8 hours a day, 5 days a week searching for work,64 nor is a
discriminatee required to immediately engage in a search for
work after being laid off from interim employment.65 It
follows that a discriminatee employed by an interim em-

61 DLB also contends that the judge failed to shift the burden of
proof to the General Counsel when Tangy voluntarily quit work, and if
the burden is shifted correctly, Tangy’s backpay claim virtually disap-
pears after mid-1994. As the judge explained, there is no requirement
that a discriminatee keep non-equivalent employment; hence, DLB’s
argument related to burden-shifting only comes into play if Tangy quit
(or refused to accept) interim employment that was substantially
equivalent to that which DLB should have afforded him under the 8(f)
agreement. Because we adopt the judge’s finding that, except for those
limited instances discussed above (where we have imputed earnings),
“Respondents failed to prove that Tangy ‘willfully avoided substan-
tially equivalent work or had culpably failed to retain substantially
equivalent work,’” we find no merit in this exception. Additionally, we
find no merit in DLB’s additional exception that, because the Union
“destroyed” hiring hall records, it necessarily follows, and the Board
should infer, that substantially equivalent work was available to Tangy
whenever he voluntarily quit an employer.
62 The Respondents contend that the judge erred by omitting this in-
creased offset from gross pay, despite having found that such an offset
was required. We believe that, by adopting the General Counsel’s
“alternate” calculations, the judge included the offset requested by the
Respondents. In any event, our reversal of the judge’s adoption of the
alternate calculations effectively moots this exception.
63 See, for example, NLRB Casehandling Manual (Part Three) Sec.
10546.2, stating backpay is generally “tolled for a discriminatee who
has been unable to work due to illness or injury for a period of 3 days
or more” (emphasis added).
64 December 12, Inc., 282 NLRB 475, 477 (1986), enfd. 838 F.2d
474 (9th Cir. 1988).
65 Retail Delivery Systems, 292 NLRB 121, 125 (1988).
ployer is similarly not held to a standard of perfection; in-
deed, our precedent allows a discriminatee to be discharged
from an interim employer without penalty as long as the
discharge was not caused by deliberate or gross miscon-
duct.66 The “‘sufficiency of a discriminatee’s efforts to
mitigate backpay are determined with respect to the back-
pay period as a whole and not based on isolated portions of
the backpay period.’” Wright Electric, 334 NLRB 1031,
1031 (2001) (quoting Electrical Workers Local 3 (Fis-
chbach & Moore), 315 NLRB 1266 (1995), enfd. mem. 39
Fed. Appx. 476 (8th Cir. 2002)).67 Here, the evidence un-
doubtedly shows that Tangy’s efforts, over a 7-year period,
both in searching for work and maintaining it, were, except
for those isolated instances outlined above involving a total
of 208 hours, reasonable and adequate.
In addition to their exceptions discussed above center-
ing on application of “willful” avoidance of work, BEI
and DLB filed exceptions and cross-exceptions, respec-
tively, arguing that the General Counsel’s interim earn-
ings calculations (all versions) omitted certain amounts.
We address those more specific alleged omissions below.
First, BEI and DLB argue that Tangy’s interim earn-
ings must be adjusted to add wages actually paid by in-
terim employers up to 40 hours per week. The Respon-
dents refer to the compliance officer’s testimony that, in
weeks where Tangy worked 4 10-hour days, the CS’s
interim earnings calculations for those weeks were none-
theless based on 8-hour days, that is, 32 hours per week
instead of the 40 Tangy actually worked.
The General Counsel appears to have treated hours
worked under 40 per week in two different ways. At one
place, the General Counsel’s answering brief stated that,
upon review of the record, interim earnings for instances
where Tangy worked 4 10-hour days have been increased
to 40 hours per week. However, in another place, the
General Counsel stated that not all interim earnings up to
40 hours per week were calculated against gross back-
pay. The General Counsel explained that this was be-
cause some hours were compensated at an overtime or
premium rate; and because Board law requires offsetting
only like hours from like hours, those hours were appro-
priately excluded from interim earnings.
As noted above, because the underlying calculations
have not been entered into evidence, we cannot discern
from the General Counsel’s summary what amounts, if
any, were added to interim earnings. To be sure, a back-

66 See Cibao Meat Products, supra, 348 NLRB 47, 47 fn. 5 (holding
backpay not tolled when discriminatee discharged from interim em-
ployer for failure to follow directions).
67 Accord: Basin Frozen Foods, 320 NLRB 1072, 1074 (1996);
Schnabel Associates, 291 NLRB 648, 649 (1988); Sioux Falls Stock
Yards, 236 NLRB 543, 551 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD536
pay claimant who elects to do extra work and earn extra
money on an interim job should not be penalized by hav-
ing those earnings deducted from gross backpay where
the respondent did not make similar overtime opportuni-
ties available. EDP Medical Computer Systems, 293
NLRB 857, 858 (1989). However, we do not think that
policy applies where a respondent made 40 hours of
work available, and the discriminatee worked 40 hours or
less during any given week at an interim employer but
received “overtime” or premium pay for some of those
hours. We agree with the Respondents that, in light of
the circumstances, Tangy’s interim earnings should re-
flect a 40-hour workweek, but at a straight-time rate
only. To the extent that Tangy received higher pay than
he would have received for a normal 40-hour week, those
earnings should not be counted against him—i.e., should
not offset gross backpay—because he is entitled to re-
ceive the benefit of working a longer day or unusual
hours. Thus, on remand, Tangy’s interim earnings are to
be adjusted in keeping with these principles where Tangy
worked four 10-hour days but the compliance officer
calculated his interim earnings on the basis of a 32-hour
workweek. Additionally, where Tangy worked fewer
than 40 hours per week, but some of those hours were
paid at an overtime, premium, or shift differential rate,
interim earnings are to be adjusted as though Tangy
worked 40 hours at a straight-time rate.
Second, in another “overtime” related exception, BEI
and DLB argue that Tangy’s interim earnings must be
increased to account for overtime wages paid by interim
employers because Tangy had also worked overtime for
DLB. In offsetting interim earnings, the Board’s policy
is that like hours are offset from like hours. See Re-
gional Import & Export Trucking Co., 318 NLRB 816,
818 (1995); NLRB Casehandling Manual (Part Three)
Compliance Section 10542.3. Because the Board’s Or-
der granting partial summary judgment set quarterly
gross backpay at 520 straight-time (regular) hours, only
520 straight-time hours can be used to offset gross back-
pay. In addition, contrary to the Respondents’ argument,
there is no evidence that Tangy actually earned overtime
at DLB. Tangy’s DLB paystubs are in evidence, and
they do not reflect any overtime. Accordingly, we adopt
the judge to the extent that he found that any overtime
Tangy earned at an interim employer, by working over
40 hours per week, should not be included as interim
earnings to offset gross backpay.
Third, BEI and DLB argue that Tangy’s interim earn-
ings must be increased to account for workers’ compen-
sation payments totaling $2495 that Tangy received in
the fourth quarter of 1995 and for union wage supple-
ments that brought his workers’ compensation up to a
full 40 hours per week in the first quarter of 1996
($429/week for 9.8 weeks).68 Tangy admits that he re-
ceived $2495 in workers’ compensation payments, and
Respondents’ Exhibit 13 (“Notice of Compensation Pay-
ments” from Michigan’s Department of Labor) shows a
$2495 payment in 1995. The compliance officer testified
that she “would have added in” the $2495 for the fourth
quarter of 1995, but not the union supplement. Tangy’s
paystubs from the fourth quarter of 1995 show regular
time earnings of $10,184.64, but appendix A to the
judge’s decision reflects fourth quarter interim earnings
of $11,123.48, obviously not a $2495 differential.
Again, because we do not have the underlying calcula-
tions, it is unclear to us how the Regional Office treated
those workers’ compensation payments. The Board’s
policy is to treat the portion of workers’ compensation
payments that recompense for “lost wages” as deductible
interim earnings, but not the portion that is reparation for
physical injury. American Mfg. Co. of Texas, supra, 167
NLRB at 523; Local 418, Sheet Metal Workers, 249
NLRB 898, 903 (1980); J. S. Alberici Construction Co.,
249 NLRB 751, 753 (1980). Here, we are unable to de-
termine whether the workers’ compensation payments
were included in Tangy’s interim earnings in the fourth
quarter of 1995, and, if so, whether they were properly
allocated between lost earnings and injury reparation
components. Thus, on remand, we direct that those
workers’ compensation payments be properly allocated,69
and that Tangy’s fourth quarter 1995 interim earnings
include that portion attributable to lost earnings, if that
portion has not previously been included.70
As to the Respondents’ argument regarding the union
wage supplements, NLRB Casehandling Manual (Part

68 Tangy injured his knee while employed with Triangle Electric.
The Respondents argue that backpay should be tolled for the period
Tangy could not work due to this injury. Although, as stated above,
backpay is generally tolled if a discriminatee is unable to work for 3
days or more owing to an injury, an exception applies if the unavail-
ability for work results from an injury suffered during interim employ-
ment. NLRB Casehandling Manual (Part Three) Compliance, Sec.
10546.4, citing American Mfg. Co. of Texas, 167 NLRB 520, 522–523
(1967); accord: Big Three Industrial Gas, 263 NLRB 1189, 1200
(1982), overruled on a different issue concerning concealment of in-
terim earnings in American Navigation Co., 268 NLRB 426, 427
(1983).
69 See United Supermarkets, 287 NLRB 394, 395 (1987) (where re-
cord did not disclose allocation of workers’ compensation payments
attributable to lost earnings, Board remanded to determine proper allo-
cation).
70 See Colorado Forge Corp., 285 NLRB 530, 544 (1987) (where
unclear whether workers’ compensation payments had been included in
employee’s quarterly interim earnings, amounts were to be included if
they had not already been, with provision that if no agreed-upon resolu-
tion, disputed amount was to be placed in escrow with issue to be re-
solved at a supplemental hearing).
D. L. BAKER, INC. 537
Three) Compliance, Section 10542.1 states the applicable
rule. That section provides that unearned income and
collateral benefits are not offset from gross backpay.
Unearned income is defined as “income derived from
any source other than an employment relationship.” Col-
lateral benefits are “any form of assistance not based on
employment or a return of service by the recipient.” Un-
ion strike benefits are collateral benefits if they are
“given without condition.” Thus, the Board has held that
money received from a union should be deducted from
gross backpay where the amounts received constitute
wages or earnings resulting from employment or a “re-
turn of service” (for example, picketing), but unearned
income and collateral benefits are not interim earnings.
United Enviro Systems, 314 NLRB 1130, 1131 (1994).
The burden of proving that monetary amounts are wages
rather than collateral benefits is on the respondent. Rice
Lake Creamery Co., 151 NLRB 1113, 1131 (1965), enfd.
as modified 365 F.2d 888 (D.C. Cir. 1966). The Re-
spondents have not met their burden here. See, e.g.,
John T. Jones Construction Co., 349 NLRB No. 119, slip
op. at 7 (2007).
Finally, BEI and DLB argue that Tangy’s interim earn-
ings must be increased to account for the Union’s “ille-
gal” payments to Tangy in return for his testimony at
hearing. As discussed above, we reject the Respondents’
attempt to have us include, as interim earnings, advances
made by the Union to Tangy equal to wages lost while
testifying at the hearing, repayable from Tangy’s back-
pay award.
4. Tangy’s expenses (deductions from interim earnings)
The judge adopted the General Counsel’s expenses
claim, which is the same under both the “alternate” and
the “revised” calculations. In so doing, the judge re-
jected the Respondents’ argument that Tangy assumed a
nomadic lifestyle and thus was not entitled to expenses
incurred in seeking and maintaining out-of-town work.
DLB filed cross-exceptions arguing that the judge erred
in rejecting the Respondents’ argument and allowing
Tangy to recover such expenses. We agree with the
judge that Tangy is entitled to recover reasonable ex-
penses incurred in seeking and maintaining out-of-town
work.71 As the judge found, Tangy searched for work

71 DLB also contended that Tangy should not be allowed to recover
all of the claimed expenses because the receipts in the record did not
add up to the amounts claimed. DLB states, without transcript citation,
that Tangy testified that he kept all of his lodging receipts, and urges a
reduction in expenses because those receipts total less than the amount
claimed (DLB’s exceptions, attachment 5). But there is a flaw in
DLB’s premise. Tangy testified, for example, that the receipts he pro-
vided to the compliance officer for lodging in 1stQ/94 were the only
receipts he had for lodging, but that is not the same thing as saying that
he kept all of his lodging receipts. To the extent that there were incon-
outside the area either when he could not find work in
the area or when he thought better or higher paying work
was available outside the area. In such circumstances,
the Board has recognized a discriminatee’s right to
search for work outside the geographical market where a
respondent operates. Glover Bottled Glass Corp., 313
NLRB 43, 43 (1993), enfd. 47 F.3d 1230 (D.C. Cir.
1995), cert. denied 516 U.S. 816 (1995). Indeed, the
Board has specifically recognized that the “ambulatory,
practically nomadic, history” of discriminatees in the
construction industry may be acceptable. Fis-
chbach/Lord Electric Co., 300 NLRB 474, 477 (1990),
affd. sub nom. NLRB v. Electrical Local 112, 992 F.2d
990 (9th Cir. 1993).
BEI and DLB also excepted and cross-excepted, re-
spectively, and argued that, by adopting the General
Counsel’s expenses calculations, the judge erred by al-
lowing Tangy to recover all of his mileage costs. The
Respondents argue that the judge failed to consider the
compliance officer’s testimony that only increased mile-
age costs over and above what would have been incurred
by Tangy working for DLB are properly included in in-
terim expenses. According to the Respondents, because
the General Counsel has the burden of proof, and be-
cause the General Counsel failed to separately break out
Tangy’s “commuting” miles to DLB, all mileage costs
should be excluded.
We remand this limited aspect of Tangy’s expenses
claim. In testifying, the compliance officer agreed with
BEI that only those miles over and above Tangy’s nor-
mal commute to DLB should be added as expenses. The
General Counsel stated that the claim for mileage ex-
penses is limited to mileage costs incurred by Tangy
when searching for work and traveling to and from out-
of-town employment. Respondent’s Exhibit 84 shows
the number of miles claimed by the General Counsel
with a corresponding dollar amount per quarter, which
does not appear to “credit” the Respondents for miles
Tangy would have commuted to the Respondents’ place
of business. Additionally, the compliance officer’s tes-
timony was equivocal regarding how she calculated
Tangy’s mileage expenses. However, although we agree

sistencies between receipts and amounts initially claimed by Tangy on
his claimant expense and search for work report forms, we note that the
General Counsel’s revised calculations in large measure reconciled
those differences. DLB’s own comparison shows the difference be-
tween admitted receipts and claimed expenses to be just over $1000.
Although we strive for accuracy, we also observe that Board precedent
allows a claimant whose testimony is credited to recover expenses even
in the absence of supporting receipts or an explanation as to why re-
ceipts are unavailable. Webco Industries, 340 NLRB 10, 10 fn. 4
(2003) (citing Coronet Foods, Inc., 322 NLRB 837 (1997), modified on
other grounds 158 F.3d 782 (4th Cir. 1998)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD538
that the burden of proof is on the General Counsel to
prove expenses, we do not agree that some confusion
surrounding the calculations mandates exclusion of all
mileage costs, as the Respondents would have it. There-
fore, on remand, we direct that Tangy’s mileage ex-
penses reflect only those costs over and above what
Tangy would have incurred working for, and commuting
to and from, DLB.
VII. FUND CONTRIBUTIONS
The judge adopted the General Counsel’s calculations
of fund contributions through the third quarter of 1994,
consistent with his findings that liability for fund contri-
butions ceased upon contract repudiation, and that repu-
diation occurred on October 5, 1994.72 The General
Counsel’s calculations of fund contributions due Tangy
are attached to the posthearing brief as appendix G, and
are based on the General Counsel’s alleged May 28,
1997 repudiation date.
BEI excepts, essentially arguing that the number of
gross hours worked for calculating benefit fund contribu-
tions should be reduced because Tangy did not work all
of the hours listed under the category “hours worked” in
section VII of the judge’s decision. BEI also argues that
the hours associated with willful losses of interim earn-
ings should be deducted from gross fund contribution
hours. We find no merit in those exceptions. Gross con-
tribution amounts are based on the same number of
“hours worked” used to calculate gross backpay (which
the Board’s summary judgment Order conclusively
found to be 520 hours per quarter); thus, for every hour
of gross backpay, there is 1 hour of fringe benefits con-
tributions. Just as gross backpay represents what Tangy
would have earned had DLB not violated the Act, gross
fund contributions represent the amount of fringe benefit
contributions that DLB would have paid on Tangy’s be-
half had DLB not unlawfully terminated him. Gross
backpay is, of course, reduced by interim earnings; but
the amount of gross fund contributions is reduced by the
amount of fund contributions made by interim employ-
ers. Hence, we reject BEI’s argument that the gross
number of fringe-benefit hours should be reduced be-
cause of the judge’s findings with respect to hours
worked or not worked by Tangy with interim employ-
ers.73 However, we note that because we have now

72 The judge found that the loss to the funds after the end of the third
quarter but before repudiation (October 1–5) was de minimis.
73 The Respondents might have argued that interim employer contri-
butions should be imputed consistent with the interim employer earn-
ings that the judge imputed where Tangy unjustifiably quit substantially
equivalent interim employment. But even if we were to thus construe
the Respondents’ argument, and find that they properly excepted on
that basis, it would make no difference here because the first quarter for
found an earlier repudiation date than did the judge, the
Respondents’ liability for contributions to the respective
funds terminates after the first quarter of 1994.
VIII. ADDITION OF HAMCI AS PARTY
On a special appeal, the Board reversed the judge’s
denial of the General Counsel’s motion to amend the CS
to join HAMCI as a party on an alter-ego theory.
HAMCI filed three cross-exceptions, arguing that (1) the
joinder deprived it of due process, (2) the judge’s denial
of the Respondents’ motion to stay the proceedings while
the special appeal was pending eliminated HAMCI’s
right to confront and cross-examine witnesses, and (3)
the judge erred in remanding the issue of HAMCI’s de-
rivative liability because, having found that Barry has no
individual liability, the issue is moot. We find no merit
in those three cross-exceptions, the first two because the
judge’s bifurcation and remand Order provided a de facto
continuance, giving HAMCI time to prepare its defense,
and the third because, given our finding regarding
Barry’s individual liability, a remand as to HAMCI’s
derivative liability is proper.
IX. ORDER OF SEVERANCE AND REMAND
As summarized above in the overview section of this
decision, Judge Wilks bifurcated this compliance pro-
ceeding and issued an Order of Severance and Remand.
In his order, the judge remanded to the chief administra-
tive law judge, for assignment to another judge, the is-
sues of (1) HAMCI’s derivative liability, (2) the make-
whole remedy for the Respondents’ bargaining unit em-
ployees, and (3) the make-whole remedy for individuals
who lost work due to the Respondents’ failure to comply
with the hiring hall provisions in the 8(f) agreement. The
General Counsel and the Union except, arguing that the
Board’s summary judgment Order precludes any further
litigation relating to paragraphs 17, 18, 19, and 24 of the
CS, and therefore the judge erred in failing to make find-
ings regarding gross backpay, interim earnings, and net
backpay (as well as the corollary issue of fringe benefit
contributions) due the Respondents’ unit employees (CS
paragraphs 17, 18, and 19), and regarding gross backpay
due the hiring hall claimants (CS paragraph 24).
The judge’s order also appears to remand the issue of
the temporal scope of the Board’s remedy, even though
the judge denied the Respondents’ joint motion in limine
that sought, in part, to limit the Board’s remedy to those
employees hired after August 7, 1993.74 DLB contends

which there are imputed interim earnings is second quarter 1996—long
after the contract repudiation date we have found of March 31, 1994.
74 In denying the motion on the record, the judge stated that he saw
nothing in Judge Ladwig’s decision, the Board’s Order, or the Fourth
D. L. BAKER, INC. 539
that the judge erred in ruling that DLB employees hired
prior to August 7, and alleged hiring hall claimants, are
included in the Board’s remedial order.
We adopt the judge’s Order of Severance and Remand
with the following clarifications. First, regarding the
Respondents’ bargaining unit employees, we find that it
is premature to issue a final order because, as discussed
in Section II, above, we have found that the summary
judgment Order did not settle whether certain of DLB’s
employees were supervisors or office workers excluded
from the unit. That issue is among those to be resolved
on remand. We reaffirm, however, that the judge cor-
rectly ruled that the Board’s underlying Order covers
DLB employees hired prior to August 7, 1993.75
Second, we find merit in the General Counsel’s argu-
ment that a grant of summary judgment on fringe benefit
contributions for the Respondents’ bargaining unit em-
ployees (CS par. 20) logically follows from the Board’s
grant of summary judgment on gross backpay for those
employees (CS par. 17). However, inasmuch as we find
it premature to issue a final order given the open supervi-
sory and office worker issues, we decline to issue a final
order mandating fringe benefit contributions at this time.
We emphasize, however, that in any final order issued
upon remand, the amounts for those of Respondents’
employees found on remand to be included in the bar-
gaining unit shall be as alleged in CS paragraph 20, as
shown on General Counsel’s Exhibit 1(c), as amended at
the hearing.
Third, regarding the hiring hall claimants, the General
Counsel and the Charging Party seek findings solely as
to gross backpay. We reaffirm that the gross backpay
due hiring hall discriminatees was conclusively resolved
by the Board’s grant of summary judgment on CS para-
graph 24. Accordingly, we find that the judge erred in
remanding issues related to CS paragraph 24. We will
modify the judge’s order of severance and remand ac-
cordingly.
ORDER OF SEVERANCE AND REMAND
The National Labor Relations Board adopts the judge’s
Order of Severance and Remand as modified below and
orders that these cases be remanded to the chief adminis-
trative law judge for assignment to another judge to re-
solve the issues set forth by the judge (as modified), and
for further proceedings consistent with this Supplemental
Decision and Order Remanding:

Circuit’s decision that would allow him to limit the remedy as argued
by DLB.
75 The Board Order required Respondent, “[f]or the period beginning
August 7, 1993, [to] make whole its employees in the bargaining unit
. . . .” 317 NLRB at 347.
Delete from paragraph 2 of the judge’s Order of Sev-
erance and Remand the reference to paragraphs 24(a)–(i)
of the compliance specification.
Brenda Valentine Harris, Esq., for the General Counsel.
J. Raymond Sparrow Jr., Esq. (Shumate, Kraftson & Sparrow,
P.C.), of Reston, Virginia, for D.L. Baker Inc. t/a Baker
Electric.
Michael E. Avakian, Esq. (The Center on National Labor Pol-
icy, Inc.), of North Springfield, Virginia, for Daniel L.
Baker, individually.
Steven Frei, Esq. (Hall & Sickels, P.C.), of Reston, Virginia,
for Baker Electric, Inc., and Maggie Barry, individually.
Declan C. Leonard, Esq. (Martin, Arif, Petrovich & Walsh), of
Springfield, Virginia, for Herndon Animal Medical Center,
Inc. 1
Brian A. Powers, Esq. and Keith R. Bolek, Esq. (O’Donoghue
& O’Donoghue), of Washington, D.C., for the International
Brotherhood of Electrical Workers, Local 26.
SUPPLEMENTAL DECISION, ORDER OF SEVERANCE,
AND REMAND
STATEMENT OF THE CASE
I. UNDERLYING LITIGATION
THOMAS R. WILKS, Administrative Law Judge. Pursuant to a
compliance specification and notice of hearing which issued on
February 26, 1999, this matter was tried before me in Washing-
ton, D. C., on June 12, 13, 14, and 30; July 17, 18, 19, 21, and
31; August 1, 2, 3, 4, 14, 16, 17, 18, 28, and 30; September 7,
8, 11, 12, 13, 25, 26, 27, 28, and 29; October 2, 4, 5, 6, 23, 24,
25, 26, and 31; and November 1, 2, 3, 15, and 16, 2000. The
transcript of these proceedings amounted to 6732 pages and a
voluminous amount of documentary evidence. As noted in
footnote 1, above, Herndon Animal Medical Center, Inc.
(HAMC or Herndon) had a very limited participation in this
phase of the proceeding and filed no brief. The General Coun-
sel; the Charging Party International Brotherhood of Electrical
Workers, Local 26 (the Union); and the Respondent, D. L.
Baker, Inc. (DLB); the Respondent Daniel L. Baker individu-
ally (Dan Baker); the Respondent Baker Electric, Inc. (BEI);
and Maggie Barry individually (Barry), all were represented by

1 The case caption is amended to reflect the joinder as a party Re-
spondent to this proceeding, Herndon Animal Medical Center, Inc., by
Board Order of October 11, 2000, which granted the General Counsel’s
motion to appeal my ruling of August 3, 2000, which had denied the
General Counsel’s motion at trial for such joinder. On Tuesday, Octo-
ber 24, 2000, counsel for Herndon Animal Medical Center, Inc.
(HAMC or Herndon) entered his appearance on the record and subse-
quently made several motions on the record, some of which would have
resulted in a continuance of the proceedings. I denied those motions
that would have necessitated a continuance and proceeded with the
litigation, which at that time was the presentation of the original Re-
spondents’ evidence. As will be explained hereafter, I had already
decided to bifurcate the litigation. I granted Herndon’s alternate re-
quest to defer litigation of the amended compliance specifications
which relate to its alleged derivative liability premised upon the indi-
vidual liability of Maggie Barry, its manager and sole stockholder, and
its status as an alleged alter ego of the “Respondents.” HAMC subse-
quently filed a written answer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD540
their separate, respective counsel and were provided reasonable
opportunity to adduce relevant and material evidence. All of
the Respondents filed joint motions as they did a joint brief,
except Herndon, of course, which filed no brief.
The original unfair labor practice charge was filed against
DLB in December 1993 and January 1994. Complaints against
DLB issued on February 7 and March 7, 1994, and later were
consolidated. Trial was held before Administrative Law Judge
Marion C. Ladwig on October 3 and 4, 1994. His decision
issued on December 21, 1994. Exceptions were filed by DLB.
As recited in Judge Ladwig’s decision, the precipitating fac-
tor for the first charge came about in late 1993. DLB had oper-
ated since the early 1970s as a nonunion electrical contractor
who hired union and nonunion electricians. In late 1993, a
recently hired union employee, Michael Tangy, started cam-
paigning for representation by the Union. His discharge on
December 1, 1993, was found by Judge Ladwig to have vio-
lated Section 8(a)(1) and (3) of the Act. Judge Ladwig found
that shortly after his discharge, the Union discovered “in its
dormant files of about 300 inactive contractors, Section 8(f)
prehire agreements that [DLB] had failed to honor.” Judge
Ladwig found that from 1976, by virtue of its assent to the Na-
tional Electrical Contractors Association (NECA) as its bar-
gaining agent, DLB had bound itself to the NECA-Union Inside
Wireman Master Agreement and succeeding agreements.2 He
further found that without notice to the Union, DLB had de-
cided not to honor the agreement and succeeding agreements
negotiated by NECA, from which DLB never withdrew its
bargaining assent, and to operate as a nonunion contractor
“without discovery by the Union until September 1993” when
Union Agent Charles Graham, who had become assistant busi-
ness manager/organizer in July 1992, discovered the name of
D. L. Baker in its files of inactive contractors and thereupon, by
letter, requested “recognition and compliance with the prehire
agreements.” DLB did not respond to the letter and Judge
Ladwig found that it had not given timely notice to NECA or
the Union to terminate the agreement. In discussing whether
the unfair labor practice charge was timely filed, Judge Ladwig
found that it was timely filed because the Company “failed to
sustain its burden of showing that the Union was on ‘clear and
unequivocal notice’ that the Company was operating nonunion,
reneging on its commitment that when it began hiring employ-
ees it would call the Union for referrals and operate as a union
contractor, abiding by the provisions of the master agreement.”
He stated: “I also find that the Company’s conduct and non-
compliance with the 8(f) prehire agreements was not suffi-
ciently ‘bald’ to put the Union on notice of its intent to repudi-
ate the agreements.”3 Judge Ladwig proceeded to find as fol-
lows:
I therefore find, as alleged in the complaint, that since
August 7, 1993 (6 months before service of the charge on

2 Judge Ludwig noted that the Union had jurisdiction over about 180
contractors in three counties in Virginia, five counties in Maryland,
three counties in West Virginia, and in the District of Columbia.
3 Judge Ladwig further found that “there was no reason for [the Un-
ion] to suspect that Baker was reneging on his promises and operating
nonunion.”
February 7, 1994), the Company has failed and refused to
adhere to the terms of the 1993–1997 NECA–Union Inside
Wireman master agreement, violating Section 8(a)(5) and
(1) of the Act. I also find that since December 9, 1993,
when the Company failed to respond to the Union’s De-
cember 8, 1993 letter, the Company has refused to recog-
nize the Union as bargaining representatives of the em-
ployees in the appropriate unit . . . violating Section
8(a)(5) and (1).
Judge Ladwig’s recommended remedial order provided, inter
alia, for reinstatement and backpay to Tangy, a cessation of
refusing to recognize and bargain with the Union, and cessation
of its noncompliance with the hiring hall provisions and terms
and conditions of employment in the current NECA–Union
Inside Wireman Master Agreement; and an offer of full and
immediate employment to “individuals on the Union’s out-of-
work list who, since August 7, 1993, were denied an opportu-
nity to work for the Respondent because of its failure and re-
fusal to comply with the hiring hall provisions in the current
NECA–Union Inside Wireman master agreement.”
Judge Ladwig further recommended that DLB:
. . . for the period beginning August 7, 1993, make whole its
employees in the bargaining unit, as well as those individuals
who were denied an opportunity to work, for losses suffered
as a result of its failure and refusal to adhere to the master
agreement; reimburse them for any expenses ensuring from
its failure to make the required contributions to the benefit
funds; and make whole the benefit trusts funds for losses suf-
fered. . . .
Thus, Judge Ladwig’s proposed remedial order provided for
three categories of discriminatees, i.e., Tangy, DLB’s own em-
ployees, and an unknown number of whom he called the hiring
hall discriminatees. Judge’s Ladwig’s order provided for no
terminal date for this backpay liability.
On May 8, 1995, the Board issued a brief decision which af-
firmed Judge Ladwig’s findings and conclusions and which
adopted his recommended remedial order. Baker Electric, 317
NLRB 335 (1995). In that Decision, the Board explicitly re-
jected DLB’s argument to the Board based upon James Luter-
bach Construction Co., 315 NLRB 976 (1994), that it was not
bound to the current NECA–Union Inside Wireman Master
Agreement because it had only committed itself to the agree-
ment in effect at the time it signed the Letter of Assent–A in
1976. The Board, inter alia, ordered DLB to comply with the
exclusive hiring hall provisions and other terms and conditions
of employment in the “current NECA–Union Inside Wireman
master agreement.”
On January 8, 1997, in an unpublished decision, the United
States Court of Appeals for the Fourth Circuit enforced the
Board’s Order in its entirety. NLRB v. Baker Electric, Case
95–1377 (4th Cir. 1977). Although the fourth Circuit noted
that the Board applied John Deklewa & Sons, Inc., 282 NLRB
1375 (1987), which the Fourth Circuit has thus far refused to
adopt, nevertheless the court found that the result did not
change under its precedent as set forth in Clark v. Ryan, 818
F.2d 1102 (4th Cir. 1987), which held that an 8(f) contract must
D. L. BAKER, INC. 541
be honored until repudiated. Deklewa held that it must be hon-
ored until its termination date. Baker Electric, Case 95–1377,
slip op. at 6 fn. 3. The court added that DLB was bound to the
NECA-Union Inside Wireman Master Agreement by virtue of
the delegations of authority and the renewal clauses contained
in the agreements. Id. at 6–7 fn. 4. DLB’s failure to revoke its
delegation of authority to NECA resulted in the Company being
bound to the NECA–Union Inside Wireman Master Agreement.
Id., slip. op. at 8. By granting the Board’s petition for enforce-
ment, the Fourth Circuit granted the Board’s Order requiring
DLB to comply with the current NECA–Union Inside Wireman
Master Agreement.
The court rejected DLB’s argument that it had repudiated the
1976 agreements by 16 years of “notorious” nonunion opera-
tors. The court, in so doing, noted that in Jim McNeff, Inc. v.
Todd, 461 U.S. 260, 270 fn. 11 (1983), the Supreme Court rec-
ognized that certain specific acts would effect the repudiation
of a prehire contract. The Fourth Circuit Court further ob-
served that “[u]nder McNeff and Clark, however, acts sufficient
to repudiate the prehire agreement require at least that the Un-
ion have some form of notice of the inconsistent conduct.” It
cited Judge Ladwig’s findings that DLB “succeeded in operat-
ing nonunion without discovery by the Union until 1993” and
“[t]here was no reason for [the Union] to suspect that Baker
was reneging on his promises and operating nonunion” and
held that the judge’s findings were supported by the record
evidence and were not controverted by DLB. Accordingly, it
rejected DLB’s argument that its conduct prior to September
1993 was sufficiently “notorious” to repudiate the contract.
Moreover, it went even further to find that “. . . prior to this
action [DLB] did not revoke NECA’s authority, and by virtue
of that authority, DLB was bound to the succeeding agreements
including the current agreement” and that “because . . . [DLB]
never effectively repudiated the § 8(f) agreement, it may be
held liable for breaching its term.”
II. THE COMPLIANCE SPECIFICATION
The Regional Director for Region 5 conducted an investiga-
tion as to backpay and moneys due by DLB. During that inves-
tigation, an investigative subpoena was issued which led to the
extensive enforcement proceeding in the United States District
Court in Alexandria, Virginia.4
The compliance specification issued on February 26, 1999,
and alleged that Respondent BEI was an alter ego of DLB, by
virtue of their common management and supervision, having a
common labor policy, having shared premises and facilities,
interchanging personnel, and by holding themselves out to the
public as a single-integrated business enterprise. The compli-
ance specification also alleged that BEI was a successor of
DLB under Board law and that under either an alter ego or
successor theory, BEI would be jointly and severally liable for
the obligations of DLB. The compliance specification further
asserts that the Respondents Dan Baker and Maggie Barry di-
verted the corporate funds of DLB and BEI to themselves and
are, therefore personally liable for DLB’s Board obligation.

4 There are many references to those proceedings in the record in
this case, in reference to petitions to revoke subpoena arguments.
The compliance specification asserts that all named Respon-
dents are jointly liable for DLB’s failure to apply the terms of
the 8(f) agreement from August 7, 1993,5 through May 28,
1997, when DLB repudiated the agreement.6 The compliance
specification asserts that DLB, BEI, Dan Baker, and Maggie
Barry individually are responsible for implementation of the
court-enforced Board order to make an unconditional offer of
reinstatement to discriminatee Michael Tangy and to make him
whole for any losses he suffered because of his unlawful termi-
nation by DLB beginning December 1, 1993, to the present
date.7
The compliance specification sets forth the Respondents’ li-
ability for backpay due to the employees of DLB for its failure
to apply the wage rates and fringe benefit contributions pursu-
ant to the agreement with the IBEW from August 7, 1993, to
May 28, 1997. It further alleges their joint and several liability
for backpay from missed earning opportunities due to approxi-
mately 175 employees, and expense claims to certain other
employees who should have been referred to work from the
Union for DLB from August 7, 1993, to May 28, 1997, but for
DLB’s failure to abide by the collective-bargaining agreement’s
referral provisions.
The General Counsel explicitly concedes in the brief, and by
virtue of its pleading that the termination date of the Respon-
dents’ contractual obligations occurred prior to the expiration
date set forth in the contract, that it is seeking enforcement of
the remedial order as enforced under the court order and under
Fourth Circuit precedent, not under the Board’s Deklewa deci-
sion. The May 28, 1997 date is a date of a letter sent by the
Respondents which the General Counsel argues constitutes the
first effective notice of repudiation of the 8(f) successor agree-
ment then current. The letter itself reiterates the Respondents’
contention that it had previously given notice of repudiation by
virtue of its manifested conduct. The Union agues alternatively
that a somewhat later date, the actual expiration date, should
mark the expiration of contractual liability as per the Deklewa
decision.
III. SUMMARY JUDGMENT
After the Respondents filed answers, the General Counsel
moved for partial summary judgment as to the allegations in
paragraphs 17, 18, 19, 24, and 32 of the compliance specifica-
tion. The Board granted the motion for partial summary judg-

5 The Board’s Order, enforced by court judgment, established the
beginning of the backpay period as August 7, 1993.
6 By order dated October 11, 2000, the Board granted counsel for the
Acting General Counsel’s Special Appeal and Motion to Amend the
Compliance Specification to add Herndon Animal Medical Center, Inc.
(HAMC) as a Respondent individually and severally liable in this case
based on record evidence that HAMC, at all times material through
April 4, 2000, the sole proprietorship of Respondent Maggie Barry, was
now an incorporated entity of which Barry is the sole stockholder.
7 On the record on September 28, 2000, the Respondents made an
unconditional offer of reinstatement to Michael Tangy without preju-
dice to their defense that a valid reinstatement offer had been made July
17, 1997, and Tangy waived his right to reinstatement. The General
Counsel asserts that the Respondents are jointly and severally liable for
backpay due to Tangy from December 1, 1993, through September 28,
2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD542
ment in its Supplemental Decision and Order issued on January
19, 2000. Baker Electric, 330 NLRB 521, 522 (2000). More
specifically, the Board found that the Respondents failed to
provide “appropriate supporting figures of alternative calcula-
tions” and, therefore, admitted the allegations set forth in para-
graphs 17 through 19, which set forth the computational formu-
las and amounts of gross backpay, interim earnings, and net
backpay due the Respondent DLB’s own employees; paragraph
24, which sets forth formula and calculations on the gross
backpay due the hiring hall employees; and paragraph 32,
which establishes the formula and calculations of gross back-
pay due to discriminatee Michael Tangy.
The Board also held:
The Respondents also deny liability for the backpay
period set forth in the compliance specification, including
the allegations in paragraphs 17, 18, 19, 24, and 32 on the
ground that the Respondent, D.L. Baker, Inc., t/a/ Baker
Electric, repudiated the collective-bargaining agreement in
September 1993, shortly after the backpay period com-
menced. In the underlying case, however, the Board and
the court of appeals specifically found that the Respondent
had never effectively repudiated the agreement.7 Thus, the
Respondents’ argument that backpay tolls in September
1993 has already been rejected and may not be relitigated
in this proceeding. Viola Industries, 316 NLRB 424
(1995); Artic Framing, Inc., 313 NLRB 798 (1994).
______________
7 317 NLRB at 346; NLRB v. D.L. Baker, t/a Baker Electric,
unpublished opinion at 8. The compliance specification alleges
that effective repudiation occurred on May 28, 1997, subsequent
to the Board and court orders, and adopts that date as the termina-
tion of the backpay period.
The Board then remanded the proceeding for a hearing to take
evidence concerning the remaining allegations of the compli-
ance specification.
IV. THE TRIAL; MOTIONS; ORDERS; AND BIFURCATION
The trial of this matter commenced in Washington, D.C., on
June 12. Prior to the opening of trial, I had notified the chief
judge of my irrevocable intention to retire at the end of the
calendar year. The June 12–14, 2000 sessions of this proceed-
ing dealt entirely with cross-petitions to revoke subpoena duces
tecum served on all parties by all parties for immense amounts
of documents, most particularly the Respondents’ records.
Compliance production of documents was set for June 30. At
that time, it was the joint consensus of all parties that about
200–225 witnesses would be called to testify as to the issues
pertaining to discriminatees other than Tangy, e.g., the Respon-
dents’ employees and 175 persons who were deprived of pay
and benefits by virtue of the Respondents’ noncompliance with
the hiring hall pay and benefits provisions of the NECA–Union
Inside Wireman Master Agreement. The parties deliberated
and agreed upon a mutually convenient trial schedule to ac-
commodate trial and other trial schedule conflicts. I stated my
desire to complete litigation by September 2000 and informed
the parties that their schedule was unacceptable. Accordingly, I
ordered a trial schedule of alternate week litigation commenc-
ing July 17. It was the consensus that we would be finished
with litigation by the end of September, but I included October
trial dates in my trial schedule order as a precaution. The par-
ties anticipated only brief examination of discriminatees other
than Tangy.
By August 28, 2000, we had not finished Tangy’s testimony,
which itself consumed 3 weeks, because of the Respondents’
extensive examination as to his employment search and em-
ployment record of over 20 interim employees over a 7-year
period. Only one hiring hall discriminatee of over 177 ex-
pected witnesses testified, i.e., Terry Cox. His testimony con-
sumed virtually the whole August 18 session.
I had already concluded that I would not be able to retire by
the end of the year. I agreed to the chief judge’s request to
work beyond the end of the year, after closing the trial before
the end of the year, and to issue my decision soon after the first
of the New Year. By August 28, it had become clear that if I
were to preside over the entire litigation, this would be an im-
possibility. For personal reasons, I could not postpone my
retirement further. I explained the situation to the parties and
announced my decision to bifurcate the proceeding. I decided
to retain litigation of compliance specifications relating to
Tangy, his reinstatement and backpay, the successor/alter
ego/individual liability issues, and the issue of contract repudia-
tion raised by the Respondents to be discussed more fully here-
after. I announced my intention to litigate these issues and to
close the hearing, accept briefs on those issues, and to issue a
supplemental decision as to those issues and an order remand-
ing the remaining compliance specification issues to the chief
judge for assignment to another judge. The alternative—a sub-
stitution of a judge immediately or, at trial’s end, to write a
decision—was suggested to the parties but was declined. Bi-
furcation was agreed as a more acceptable management of the
trial. The Respondents indicated that it would be advantageous
to retain the contract repudiation issue in the first part of the
bifurcated proceeding because if it was to be determined that a
much earlier contract repudiation occurred than that alleged in
the specification, litigation would be immensely shortened.
The contract repudiation issue was raised by the Respondents,
who insisted that repudiation by virtue of its conduct occurred
at the end of 1993 despite the Board and court findings cited
above.
Early in the trial, the Respondents filed with me a motion in
limine, which requested a preliminary finding by me that notice
of contract repudiation occurred by virtue of DLB’s open and
notorious conduct after September 1993 or, later, when the
answer was filed to the unfair labor practice charges that al-
leged unlawful refusal of recognition and noncompliance with
the NECA–Union Inside Wireman Master Agreement. By
order entered in the record on July 17, 2000, I denied the Re-
spondents’ motion essentially on grounds of res judicata and
issue preclusion. At that time, I observed on the record that the
court’s reference to nonrevocation of NECA’s bargaining au-
thority “prior to this action” might mean the Appellate Court
action. The Board issued its order on September 8, 2000,
which denied the Respondents’ special permission to appeal my
order. However, the Board stated therein that the Respondents
were not precluded from introducing evidence of contract repu-
diation subsequent to October 4, 1994, the last day of trial be-
D. L. BAKER, INC. 543
fore Judge Ladwig. Clearly, the Board defines “this action” to
mean the unfair labor practice proceeding, and I accepted that
definition and afforded the Respondents the opportunity to
adduce evidence of post-October 4, 1994 facts to support its
contention that the Union was or should have been on notice
that it was the Respondents’ intent to refuse to recognize the
Union and to repudiate the entire contract by virtue of DLB’s
conduct or other circumstance.
With respect to the joinder of HAMC to the proceeding by
Board Order issued after the Respondents had commenced their
defense, I decided to relegate litigation of that issue to the bi-
furcated subsequent proceeding. By that time, it was evident
that HAMC, by Board Order, had been recognized as having
the right to adduce evidence and “to cross-examine witnesses.”
The Union and the General Counsel had served subpoena duces
tecum upon HAMC and were prepared to seek a reopening of
their case dependent upon documentation produced. It was my
intent to close the litigation before me before year’s end. I had
denied the motion to join HAMC as an unnecessary encum-
brance of an already enormous litigation. My rationale, as
expressed in the record. was that the assets of HAMC were to
be sought pursuant to the individual liability of Maggie Barry,
its sole stockholder. I suggested that the General Counsel ac-
cess the entire stock of HAMC held by Barry in ancillary pro-
ceedings in satisfaction of any debt Barry might be individually
liable for in consequence of this proceeding. The General
Counsel and the Union rejected that alternative procedure.
The record is burdened with a variety of motions and orders
relating to the Respondents’ attempts to ameliorate the plain
and literal language of the partial summary judgment as to
gross backpay and the General Counsel’s amendment to the
specification to comport with evidence adduced at trial as to
Tangy’s interim earnings and expenses. I denied the former
and granted the latter. Moreover, I ruled that the General
Counsel’s amendments as to specific sums regarding expenses
and interim earnings did not permit the Respondents to escape
the partial summary judgment by filing an expansive amended
answer to the entire specification.
Briefs were filed by the parties by deposit in the U.S. mail or
other delivery service on December 22, 2000. I suppose the
length of these briefs are proportionate to the mass of testimo-
nial and documentary evidence, i.e., the Union, 182 pages; the
General Counsel, 92 pages, excluding appendices; the Respon-
dents’ joint brief (exclusive of HAMC), 127 pages with a com-
pendium of graphs, charts, summaries, etc., of almost equal
length. I may grumble at their length, but I admit they were all
very well written and assisted me enormously in focusing upon
the facts and issues. For this, I am grateful. Inasmuch as the
briefs approximate proposed findings of facts and conclusions,
I have incorporated portions of them in this decision, some-
times modified, particularly as to undisputed factual narration.
However, all factual findings herein are based upon my inde-
pendent evaluation of the record.8

8 The General Counsel’s unopposed motion to correct the transcript,
which was attached to the brief, is granted.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following.
FINDINGS OF FACT
I. WITNESSES AND CREDIBILITY
Dan Baker is one of the three original directors of DLB. The
other two directors, including his first wife, Holly Baker, re-
signed at some date prior to the specification period.9 Dan
Baker was and is the operational manager of the day-to-day
electrical service business of DLB and that of BEI. His testi-
mony is hampered by a resentful, hostile demeanor which ac-
companied guarded, evasive, and inconsistent responses. He
admitted to a total lack of recollection to significant areas of the
corporate nature of DLB, his relationship to it, the sale of assets
from DLB to BEI, and his relationship to the sale and to BEI.
Most of his testimony was rendered as an adverse witness,
which he endured for virtually an entire week. His forgetful-
ness, Dan Baker attributed to the personal trauma he endured of
having a successful business become encumbered with debts
primarily to the US. Internal Revenue Service. He admonished
persistent counsel that no matter how often certain questions
were asked, he had no recollection of those events. On this
point, he was very convincing. However, understandable or
not, it undermined him as a credible and accurate witness.
Maggie Suzanne Barry is a professional licensed veterinarian
of 21 years’ experience and the sole proprietor of Herndon
Animal Medical Center, which was incorporated in May 2000.
She was employed by DLB in about 1978 for a few months,
performing unspecified general duties. She became personally
close to Dan Baker, whom she had known for 20 years, and,
prior to their marriage, cohabited with him at her home in Pur-
cellville, Virginia, during the times material herein. Subse-
quently, the title became either a joint or tenancy by the entire-
ties after their marriage in mid-1996. She became the sole
stockholder, resident agent, and a director of BEI after the 1995
sale of assets. Her testimony was lengthy but not as extensive
as that of Dan Baker. She was, however, although guarded and
hardly spontaneous, much more forthcoming and detailed as an
adverse witness. I credit her recollection of facts wherever it
conflicts with that of Dan Baker, but, because of her lack of
complete confidence and certitude in recollection, I credit any
conflicting documentation. Similarly, I discredit Dan Baker
where it conflicts with documentary evidence.
Two employees, Antonio Petty and Ramadhani Abdulbarr,
testified concerning the successorship issue. They were con-
vincing, spontaneous, forthcoming, and apparently disinterested
in the outcome. Wherever their testimony conflicts with Dan
Baker or Maggie Barry, I credit them unless otherwise noted.
Charles Chuck Graham, the Union’s assistant business man-
ager/organizer, testified with respect to certain aspects of
Tangy’s attempted reinstatement in 1997 and also as an adverse
witness with respect to the contract repudiation issue. Again,
understandable or not, I found him to be a bitterly resentful and
antagonistic adverse witness. He appeared to backtrack in

9 Holly Baker presumably resigned at about the time of their divorce,
prior to Daniel Baker’s marriage to Maggie Barry in mid-1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD544
friendly examination from more candid, unqualified responses
that were elicited by persistent cross-examination. I was con-
vinced that his initial admissions are more truthful than those
qualifications elicited later. More will be discussed regarding
his testimony hereafter, particularly in the contact repudiation
section of this decision.
The Respondents qualified as an expert financial small busi-
ness advisor Jerome Baker, the son of Dan Baker, who had
been employed by DLB as a project manager and who, after
obtaining his professional and graduate degrees, inter alia, in
law and business administration and establishing his small
business clientele, succeeded BEI’s accountant and financial
advisor service. I overruled the Union and the General Coun-
sel’s objections to his qualification as expert witness, none of
which ran to Jerome Baker’s familial relationship to the parties.
I found him to be a convincing and generally straightforward,
responsive, dispassionate, convincing witness.
The Respondents elicited the testimony of Phyllis Chorazy, a
certified public accountant who provided accounting service
and financial management advice to DLB up to the sale of as-
sets. Her testimony was complemented by Tax Attorney Coro-
neos, who specialized in small business corporate reorganiza-
tion and corporate restructuring and/or assets sales in Virginia
since 1976. Both Coroneos and Chorazy testified clearly, con-
vincingly, and I find credibly, as to the facts leading up to and
including the 1995 sale of assets. With respect to any inconsis-
tencies between their testimony and that of either Dan Baker or
Barry, I credit Chorazy and Coroneos. Their conclusions were
attempted to be rebutted by the General Counsel’s witness,
Richard Booth, a University of Maryland law professor whose
expertise in the area of business planning taxation, corporate
finance, etc., was not challenged. As a witness, he was also
clear, precise, dispassionate, and disinterested in the results of
the proceeding.
A few other witnesses testified, including the regional com-
pliance officer, Elizabeth Tursell. Their testimony will be dis-
cussed where necessary hereafter.
Finally, the most exhaustive testimony was given over a bro-
ken period of 15 trial days in August and September, scattered
over the course of the General Counsel’s case, by the discrimi-
natee, Michael Tangy.
In his own way, Tangy’s demeanor was as poor as that of
Dan Baker. He was variously a grudging, reluctant, antagonis-
tic, evasive, and impatient witness, especially in adverse ex-
amination.10 The General Counsel protested that the Respon-
dents were engaging in an unduly exhaustive examination that
victimized the long-suffering witness. However, the extensive
nature of the examination was the consequence of Tangy’s own
diverse employment by over 20 different employees over a 7-
year period of time and by his detailed daily journals and check
receipts of interim employment and expenses, some of which
surprised the General Counsel and caused revisions to the
specification after he testified. The counsel for the General
Counsel stressed the financial hardships endured by Tangy, and

10 At one point in cross-examination, Tangy became so agitated that
he literally threw into the air his wristwatch, with which had been fid-
dling throughout the examination.
he himself acted extremely put upon to testify in a proceeding
that was seeking a supposedly desired reinstatement and a very
significant amount of backpay for him.
As other witnesses, such as Barry, were accommodated as to
the dates of their testimony, a break was accommodated to
Tangy so that he could keep an “out of town” commitment.11
Finally, not too long after the counsel for the General Counsel
commented on the financial hardship suffered by Tangy who
had been missing work, it was discovered in adverse cross-
examination that the Union had agreed to “subsidize” Tangy for
wages lost due to his testimony in the proceeding which was
reimbursable from any backpay that might be awarded. He
testified that this arrangement was worked out with Union
Agent Graham at a time when Tangy claimed he was about to
“go broke.” He placed the agreement time just before his Au-
gust 2000 out-of-town commitment, which turned out to be a 2-
week vacation trip to Ireland.
After Tangy’s return from Ireland, he testified the entire ses-
sions of September 8, 11, 12, 13, 26, 27, and 28 under the Un-
ion’s reimbursement plan that covered about one-half of the 15
days that he testified.12 It is not clear whether the agreement
retroactively covered his first 7 days of testimony. It is not
clear how Tangy could afford this Irish vacation if he was in-
deed “going broke.” He practically admitted that his presence
at trial was conditioned upon the receipt of the union subsidy.
The Respondents argue that the reimbursable subsidy consti-
tutes a payment for testimony contrary to Federal court policy,
citing Hamilton v. General Motors Corp., 490 F.2d, 223, 229
(7th Cir. 1973), and Federal criminal statutes, citing 18 U.S.C.
§ 201(c)(2) and (3); Golden Door Jewelry Creations, Inc. v.
Loyds Underwriters Non-Marine Assn., 865 F.Supp. 1516,
1522–1526 (S.D. Fla. 1994), affd. 117 F.3d 1328, 1355 fn. 2
(11th Cir. 1997). Citing this authority, the Respondents argue
that Tangy’s entire testimony should be excluded. It is not
clear what such total exclusion would do for the Respondents’
burden of proof as to interim earnings, diminution of interim
earnings by work avoidance, etc., which rests entirely on
Tangy’s testimony. Tangy’s gross backpay is admitted.
Clearly, Tangy is due some amount of backpay. The subsidy is
arguably distinguishable from payment for testimony whereby
a witness receives in return for testimony something of value
which he would not otherwise be due. Here, Tangy is in receipt
of an advance of backpay due. Although it can be argued that
any future backpay actually obtained for him may be specula-
tive as to amount, I am not inclined to strike Tangy’s entire
testimony. However, I am in agreement that this subsidy must
necessarily be evaluated when considering his credibility,
which will be discussed hereafter.

11 The trial itself proceeded with other witnesses as agreed to by the
Respondents.
12 His direct examination started and was finished on August 2,
2000. Cross-examination started on August 2 and continued on August
2–4 and 14–17.
D. L. BAKER, INC. 545
II. THE LIABILITY OF BEI AS A SUCCESSOR EMPLOYER
AND/OR ALTER EGO
A. General Statement of Law
Successorship is a highly complex issue. The successorship
analysis is “primarily factual in nature and is based upon the
totality of the circumstances of a given situation.” Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27, 43 (1987). A new em-
ployer is a successor if there is “substantial continuity” between
the enterprises. Fall River, 482 U.S. at 43.
Substantial continuity exists when the new company has
“acquired substantial assets of its predecessor and continued,
without interruption or substantial change, the predecessor’s
business operations.” Golden State Bottling Co. v. NLRB, 414
U.S. 168, 184 (1973). “The essential inquiry is whether opera-
tions . . . remain essentially the same after the transfer of own-
ership.” International Union of Electrical Radio & Machine
Workers (IUEW) v. NLRB, 604 F.2d 689, 694 (D.C. Cir. 1979).
The analysis “is undertaken with an emphasis on the employ-
ees’ perspective.” Fall River, 482 U.S. at 43. The analysis is
further complicated because:
the real question in each of these “successorship” cases is, on
the particular facts, what are the legal obligations of the new
employer to the employees of the former owners or their rep-
resentative. The answer to this inquiry requires analysis of the
interests of the new employer and the employees and of the
policies of the labor laws in light of the facts of each case and
the particular legal obligation that is at issue. . . . There is,
and can be, no single definition of “successor” which is appli-
cable in every legal context. A new employer, in other words,
may be a successor for some purposes and not for others.
Howard Johnson Co. v. Detroit Joint Board, 417 U.S. 249,
262–263 at fn. 9 (1974).
To determine where a “substantial change” has occurred, courts
and the Board consider:
whether the business of both employers is essentially the
same; whether the employees of the new company are doing
the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same produc-
tion process, produces the same products, and basically has
the same body of customers. [Fall River, 482 U.S. at 43 [cita-
tions omitted].]
Fall River, supra, dealt with the successor’s bargaining obli-
gations. Golden State, supra, dealt with the liability of a suc-
cessor for the predecessor’s unfair labor practice.
A bona fide purchaser of a business who has knowledge of
the seller’s unfair labor practices at the time of the purchase and
who continues the business without interruption or substantial
change in operations, employee complement, or supervisory
personnel has joint and several liability for remedying the
seller’s unfair labor practices. Golden State Bottling Co. v.
NLRB, supra. “Unlike successorship for bargaining purposes,
this obligation does not require that a majority of the succes-
sor’s employees be former employees of the predecessor and
also does not turn on whether those employees are represented
by a union.” Bell Glass Co., 293 NLRB 700, 707 (1989), enfd.
983 F.2d 1073 (7th Cir. 1992). See also Greyhound Taxi Co.,
292 NLRB 267, 268 (1989); St. Mary’s Foundry, 284 NLRB
221, 221 fn. 4 (1987); Commercial Forgings Co., 315 NLRB
162 (1994). The successor’s liability includes the backpay and
reinstatement of employees terminated in violation of Section
8(a)(3) of the Act. Bell Glass, 293 NLRB at 707. The re-
quirement that the successor have knowledge of the predeces-
sor’s violations is satisfied if an individual serves as principal
of both businesses. Id. at 708.
In determining whether one employer is the alter ego, or the
“disguised continuance,” of another employer, the Board fo-
cuses on whether “two enterprises have ‘substantially identical’
management, business purpose, operation, equipment, custom-
ers and supervision, as well as ownership. Advance Electric.,
268 NLRB 1001, 1002 (1984); Crawford Door Sales Co., 226
NLRB 1144 (1976). The Board also considers as a factor to be
considered, but not an essential factor, whether the creation of
the alleged alter ego was legitimate or was merely an attempt to
evade the employer’s responsibilities under the National Labor
Relations Act (the Act). Advance Electric, 268 NLRB 1002
(1984); Fugazy Continental Corp., 265 NLRB 1301 (1982),
enfd. 725 F.2d 1416 (D.C. Cir. 1984). However, no single
factor is controlling; and the Board can find an alter ego rela-
tionship even in the absence of one or more factors, including
identify in ownership. Metro Foods, Inc., 289 NLRB 1107,
1117 (1988). Substantial identity of ownership may be found
where ownership resides in members of the same family.
Crawford Door Sales Co., supra. Thus, “where two entities are
virtually indistinguishable but for the difference in ownership
of the entities by members of the same family, substantially
identical ownership is established.” Cofab, Inc., 322 NLRB
162, 163 (1996).
As the Union correctly notes, “actual common control is
more significant than a change in ownership,” citing and quot-
ing Sobeck Corp., 321 NLRB 259, 267 (1996). See also Rogers
Cleaning Contractors, Inc., 277 NLRB 482, 488 (1985), enfd.
813 F.2d 795 (6th Cir. 1987), cited by the General Counsel
where the predecessor company’s sole owner and total manager
dominated the successor company’s management but held no
ownership in it. Given the factual nature of the Board’s alter
ego analysis, “each case must turn on its own facts.” Crawford
Door Sales Co., supra.
B. Facts
1. DLB
As set forth in Judge Ladwig’s decision, Dan Baker carried
on the business of Baker Electric, of which he was sole proprie-
tor. DLB subsequently incorporated on July 29, 1976, and
ultimately Dan Baker became the sole stockholder and director.
He was also DLB’s business manager, financial manager, and
its day-to-day operation manager. He decided upon its labor
relations, employment policies, and employee terms and condi-
tions of employment. At first, Dan Baker started out as an
electrical contractor providing service work. Gradually, new
construction and renovation project work accounted for the
preponderance of DLB business. DLB performed work for
general contractors and corporate clients in the Washington,
D.C., and the adjacent and nearby counties in Maryland and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD546
Virginia out of a condominium office-warehouse unit on Tyco
Road in Vienna, Virginia, owned by Dan Baker. In 1994,
Jerome Baker commenced working as a DLB project manager
responsible for internal office work and informational exchange
between DLB and its field foremen. Jerome Baker had already
possessed an Electrical Engineering degree, and it was DLB’s
plan that he would eventually assume control of DLB upon Dan
Baker’s retirement. Thereafter, he pursued a business man-
agement oriented course of studies to compliment his electrical
background, as well as a law degree. However, to the date of
the trial, Dan Baker retained sole authority to hire DLB em-
ployees.
DLB operated at a satisfactory profit level until the onset of
certain circumstances in 1993. Dan Baker had hired an estima-
tor who had bid on certain Fairfax County School jobs. Those
contracts involved projects beyond DLB’s operational capacity
and set forth a completion date by the end of summer. For
DLB, what had ordinarily constituted a 1-year job became a 4-
month job. In consequence, the relationship between the esti-
mator and Dan Baker deteriorated, and the estimator resigned.
Solicitations were made to key DLB employees to work for a
competitor that had hired the former DLB estimator.
The Fairfax County School authorities overseeing the con-
struction work informed Baker that they had heard reports that
DLB was in financial trouble and, accordingly, withheld pay-
ments to DLB. The DLB Federal tax return for 1993 revealed
that the corporation’s liabilities exceeded its assets by $67,922.
Previously, Dan Baker and Barry made undocumented no-
interest, short-term loans to DLB. Over the course of time and
corporate disbursements to Dan Baker, DLB’s debt to Dan
Baker evolved into a debt of $18,906, which Dan Baker owed
DLB at the end of 1993.
On another front, Dan Baker was faced with the siphoning
off of talented employees to union jobs, which hindered his
manpower resources. Baker testified that the employees were
aware of DLB’s problems and that it was “not very difficult to
understand when the Union comes in and takes all the employ-
ees off the jobs, the things that had been going on a regular
basis, and they saw what was going on.”
Dan Baker found it difficult to keep the business viable. In
late 1993, he ceased paying employee payroll taxes to the IRS
in order to continue paying employees wages due to them. He
hoped eventually to repay the IRS.
In December 1993, Tangy, an employee of 4 months’ em-
ployment at DLB, was discharged for trying to organize em-
ployees for the Union. As described in Judge Ladwig’s deci-
sion, the late 1993 organizing drive led to Graham’s discovery
of DLB’s past commitment to the NECA–Union Inside Wire-
man Master Agreement and Graham’s subsequent demands
upon DLB. Unfair labor practice charges were filed in the
underlying cases on December 27, 1993, and January 31, 1994
(amended February 25). Complaints were issued on February 7
and March 17, 1994, and consolidated on May 19, 1994.
At the onset of 1994, more economic gloom settled upon
DLB’s business fortunes. Barry, by now cohabiting with Dan
Baker, made undocumented interest-free loans to DLB to en-
able it to meet capital needs, including the employee payroll.
On March 4, she lent DLB $5000, and again $500 on March 5.
She held no DLB employment status at that time. Dan Baker
continued to make undocumented loans to DLB. He personally
raised $33,000 which he lent to DLB on January 21, 1994,
which now raised DLB’s debt to him by $38,500.
Concurrent with the downward spiral of DLB finances in
early 1994, the IRS aggressively sought recovery of the unpaid
payroll taxes, both from DLB and Dan Baker individually.
Chorazy advised Dan Baker to terminate the business and to
declare bankruptcy. He declined that advice. He sought for-
bearance from DLB suppliers who were unpaid for past sup-
plies. Contrary to Chorazy’s advice, Dan Baker obtained an
early distribution from his own pension fund in the amount of
$242,642 in June 1994 in order to infuse money into DLB.
Because of penalties and the resultant increase of his own in-
come by virtue of the early distribution, consequently higher
income box bracket and higher personal income tax to be paid,
and other adverse consequences, Dan Baker was only able to
infuse about $90,000 of about the resulting $110,000 into DLB,
some of which went to pay back taxes owed by it. In 1994, the
maximum DLB debt to the IRS was about $150,000. Chorazy
negotiated a payment plan with the IRS whereby the agency
agreed not to levy upon DLB equipment or bank accounts,
provided DLB complied with a weekly payment schedule. On
December 1, 1994, Judge Ladwig issued his decision. In early
1995, a new IRS agent became involved and aggressively de-
manded total repayment. Chorazy frantically negotiated an IRS
retreat, explaining that the IRS action could result in business
closure and loss of work for the employees. She held intense
negotiations with the IRS as to what DLB had to do to avoid
closure of its business. In April 1995, she had referred Dan
Baker to Tax Attorney Tas Coroneos, whom she had dealt with
for 15 years and whom she had consulted about DLB’s dire
situation. Coroneos consulted with Dan Baker and Chorazy.
Coroneos was concerned that the IRS trust fund portion of the
DLB payroll tax liability might, upon failure of DLB payment,
impose a 100-percent penalty upon a “responsible party” who
might be construed by the IRS to be Dan Baker individually,
and who might conceivably be required to pay the trust fund
portion of the payroll tax.
In consulting with Baker and Chorazy, Coroneos determined
“that it looked like this organization had viability, if we just get
some procedures in line to pay the payroll taxes. . . .”
Coroneos, in conjunction with Chorazy, was retained to de-
sign a strategy that would help eliminate Dan Baker’s and
DLB’s tax liability to the IRS. The plan developed by Coro-
neos and presented to Chorazy and Dan Baker involved two
phases. First, Coroneos would make sure that DLB became
and remained current with respect to its present due and owing
payroll taxes. Once that was accomplished, Coroneos advised
Baker and Chorazy that he would use a transaction plan that he
had used successfully before meeting Baker and one that he had
used since the DLB transaction. He would arrange for the in-
corporation of a new entity that would purchase the assets of
DLB.
Coroneos presented this plan to Chorazy and Baker, and it
was agreed that it would be implemented. It is undisputed that
this entire plan was the creation of Coroneos. His testimony
was credible clear and uncontradicted that Chorazy, Baker, and
D. L. BAKER, INC. 547
Barry had never heard of the design before, and I credit him. In
describing how the transaction would work, Coroneos de-
scribed to Chorazy and Baker that the new corporation would
have to pay fair compensation and fair consideration for the
assets of the old corporation.
It was imperative, Coroneos testified, that there be no fraud
involved in the transaction because it would be and was scruti-
nized by the IRS. He was aware that the seizure of assets was
“imminent” from discussions with the IRS. On May 5, 1995,
the IRS had issued a “Notice of Intent to Levy” to DLB in re-
sponse to DLB’s failure to pay its payroll taxes for the years of
1993, 1994, and 1995. The notice provided that the IRS would
levy $151,354.02 from DLB’s accounts if the outstanding pay-
roll taxes were not satisfied by a particular date. In fact, IRS
agents appeared at Tyco Road and seized certain DLB vehicles
while Coroneos was on vacation. He negotiated a release upon
his return.
On May 8, 1995, the Board issued its Decision and affirmed
the findings and conclusions of Judge Ladwig. As discussed,
supra, the Board issued a three-part remedial order requiring
DLB to make whole its employees, out-of-work union members
who should have been referred to DLB’s jobs, and Michael
Tangy. In response to questioning as to whether he was aware
of the Board’s Decision, Dan Baker testified, “I was aware that
we lost, if that’s what you mean.”
Coroneos testified that the purpose of an asset sale to a new
corporation was intended not only to satisfy the tax liabilities,
but also:
It was designed to offer a new entity so that Dan could prac-
tice his profession as an electrician without being encumbered
by the IRS debt and other debt that I didn’t necessarily know
about. I mean, knew individually about.
Coroneos concluded that the IRS would not pursue DLB and
Dan Baker individually, but rather would write off the trust
fund obligation of DLB as long as the new corporation would
pay it off. He testified.
. . . they have a purchase agreement that says all the assets are
brought, and they determine that it was fair consideration. So,
there’s nothing—I mean there’s no point in going after the
whole liability.
Coroneos was not aware of and not concerned with the other
non-IRS debts of DLB. Dan Baker was aware of the Board’s
Decision. Later, on November 22, 1995, according to the un-
contradicted testimony of Antonio Petty, when told by Petty of
the presence of Graham at the jobsite of BEI in Northern Vir-
ginia, Baker told him not to worry about it because they (the
Union) could not touch him because he no longer owned the
Company.
In cross-examination, Baker insisted that the Board’s reme-
dial order was a concern that he felt was dwarfed by the more
imminent threat to the viability of DLB, i.e., the IRS. Chorazy
and Coroneos were unaware of the potential debt that might be
due under the May 8 Board Order.
2. BEI
Prior to incorporation, Chorazy and Coroneos solicited Barry
to purchase or to invest money in DLB. She testified that after
obtaining negative third-party advice, she declined the invest-
ment as a poor risk. Coroneos and Chorazy next broached to
her the idea of creating a new corporation owned by her to
continue the electrical business that would enable Dan Baker
“to continue his profession” as its operations manager by pur-
chasing DLB’s assets. Coroneos advised her of the validity of
this approach, conditional, however, upon a legitimate and
arm’s length transaction. Coroneos at no time considered any
other prospective purchaser of DLB assets, and there is no
credible, persuasive evidence that any other solicitations were
made. Barry responded affirmatively. She, of course, as a past
creditor and because of her close relationship, must have had
even more awareness of DLB operations than she was willing
to admit in her testimony. She is a successful and intelligent
businessperson in her own right. As time-to-time creditor, she
certainly would have wanted some information as to prospects
of repayment of her prior loans. She testified that when origi-
nally solicited by Coroneos and Chorazy to invest more money,
she investigated DLB’s prospects by consulting knowledgeable
third parties. Barry testified, however, that she “had been
around DLB” and, from her own past experience, had knowl-
edge about DLB operations, its customer base, and business
potential, free from IRS and supplier debt liability. She con-
cluded that she knew enough about DLB to conclude that a
purchase of its assets, good will, employment core, and cus-
tomer base would be successful, particularly if some types of
operations were cut back, with Dan Baker, as she characterized
him, as the “driving force” of the new corporation.
Barry warily admitted her personal knowledge of a “con-
flict” arising from union attempts to organize DLB employees.
She admitted awareness of Judge Ladwig’s decision finding
that DLB committed unfair labor practices, but she could not
even estimate the date of this awareness. She testified, “Again,
I don’t know if I was aware of that at the time of this negotia-
tion [for purchase of DLB assets]—it has been several years.” I
find it inconceivable that given her business experience, her
close relation to Dan Baker, her familiarity with DLB opera-
tions, and her tendency to independently evaluate DLB finan-
cial status before even considering ownership of or investment
in it, that she would not have extensively inquired into the de-
tail of all actual and potential debts and liabilities of DLB. She
was admittedly aware of supplier debt liabilities. I find it in-
conceivable that she was not aware of Judge Ladwig’s decision
and did not consider the remedial implications of his recom-
mended order on or about the time his decision issued, and
certainly at the time she was investigating potential ownership
of investment into DLB. I find it equally inconceivable that
Dan Baker would not have volunteered to her information
about Judge Ladwig’s decision and the Board’s Decision and
Order and its potential adverse financial impact upon DLB,
even assuming a more imminent threat of closure by IRS debt
collection.
Barry decided to accept Coroneos’ proposed stratagem.
Coroneos prepared the corporate documents and Chorazy ar-
ranged financial matters. It was decided to name the new busi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD548
ness Baker Electric, Inc., and Coroneos prepared and filed the
Articles of Incorporation for Baker Electric, Inc. Barry felt
strongly that because DLB had such a good reputation for do-
ing quality work in the industry, that if she was going to start a
new business, there was real value attached to Baker Electric,
Inc. if able to use virtually the same name. This was an intan-
gible goodwill term based upon a 21-year existence. Barry
believed that it was important to maintain continuity and to
ensure that customers knew if the Company was bidding on
jobs, it would be there to perform those jobs. Coroneos also
believed that it was important to “keep the work going” by
transferring DLB’s ongoing projects to the new corporation so
that corporation could continue those operations without inter-
ruption. DLB had ongoing projects and employees on these
projects that no one wanted to lay off.
Baker Electric, Inc. (BEI) was incorporated on May 17,
1995. BEI adopted DLB’s “well-recognized” logo, with a “B”
in blue writing enclosed in a yellow circle with “Baker Elec-
tric” in yellow and blue writing. BEI continued to use the sta-
tionery of DLB because it already had “Baker Electric” on it as
well as the logo.
Since BEI’s incorporation on May 17, 1995, Maggie Barry
has been the sole shareholder. According to BEI’s initial Arti-
cles of Incorporation prepared by Coroneos, Dan Baker was the
initial director of BEI and resident agent; when Barry discov-
ered this, she objected. On May 18, 1995, Baker resigned his
position as director and, on the same date, Barry elected herself
as the sole director at the first meeting of shareholders of Baker
Electric.13 While minutes of this meeting were introduced into
the record, the record does not contain any other minutes of
BEI directors meetings. Barry claimed that there were minutes
of the directors meetings; however, she did not know where her
copy of the minutes was kept.
Bylaws and a stock certificate were also prepared. Coro-
neos, Chorazy, and Dan Baker commenced the process of set-
ting a price on the assets. Chorazy had contacted individuals
and companies to assist with valuing the assets, including vehi-
cles, office equipment, materials, and supplies. Appraisals
were conducted and prepared, and Coroneos completed the
purchase agreement setting forth the terms of the asset sale
from DLB to Baker Electric, Inc. The final appraisal was pro-
vided by DLB itself on May 16, 1995, and covered accounts
receivable. Once completed, the appraisals were attached to
and became a part of the purchase agreement. Coroneos testi-
fied that it was his intent that this transaction be arm’s length,
bona fide, and legitimate in all respects because all parties in-
volved knew that it would receive severe scrutiny from the IRS.
The value for the assets of DLB was placed at $138,000.
The various assets purchased are described in the purchase

13 There is evidence that individuals other than Dan Baker served as
directors or officers of BEI at varying times. For example, DLB’s
accountant signed the BEI stock certificate as the secretary-treasurer of
BEI. Chorazy did not occupy that position after May 19, 1995.
Chorazy could not recall her roll in BEI, although she admitted signing
the stock certificate in GC Exh. 49. In addition, Barry testified that her
mother, Leah Hovinetz, served as secretary although she had no official
duties. In addition, Barry’s brother, Scott Sanders, presently serves as
“secretary.” His role, however, is limited to providing “union” advice.
agreement. The only liabilities explicitly assumed by BEI in
the transaction were the outstanding loans on the trucks being
purchased from DLB. Barry made a loan to BEI for the
$138,000 and the transaction was completed. The main source
of funds used by Barry to purchase the assets of DLB came
from refinancing her home in Purcellville where she and Dan
Baker resided.
BEI’s initial banking account was at Nations Bank. The ac-
count was transferred to Crestar. BEI has maintained an active
banking account from its creation to present day.
All BEI financial matters are conducted through the Com-
pany’s bank account. When BEI began its business operations,
Barry hired the services of a certified public accounting firm,
Cacciapaglia & Masterbrook (C&M), to give her advice regard-
ing the accounting and business aspects of BEI. They assisted
Barry with establishing all accounting mechanisms for the
payment of payroll taxes, income taxes, state matters, and all
business filings that were necessary. BEI provided C&M with
whatever financial information it asked for, including payroll
records and income and expense information for Baker Electric,
Inc. so all accounting could be done.
With regard to the actual operation of the day-to-day activi-
ties of the business, Barry delegated those to Baker who had
extensive experience in running jobs and handling electricians,
as well as dealing with the customers. Her expertise was that of
a professional licensed veterinarian. Her management of
HAMC was demanding upon her time, i.e., 50- to 55-hour
workweeks. HAMC employed 10 to 12 employees in the
summer season. Her time spent at BEI varied from two to three
visits a month for about normally an hour’s visit but sometimes
a 5–6 hour visit.
Barry maintained a sort of general oversight of BEI’s fi-
nances. Dan Baker solicited all the new work but consulted
with Barry who reviewed the reputability of the customer.
Otherwise, Barry had no experience in estimating jobs that
require electrical expertise. She did this by checking with other
contractors that BEI had ongoing relationships with concerning
the potential new customer, consulting with people in the
trades, and in certain instances speaking to supply houses. She
also worked closely with the accountant regarding payment of
payroll taxes and insuring currency of accounts payable and
receivable. It was not her desire to be involved in the day-to-
day operations of the business of BEI; she knew that was Dan
Baker’s strength. As she admitted, Dan Baker became the
“driving force” of BEI. He spent as much time managing and
directing its operations as she did the same for HAMC.
Dan Baker hired, fired, and supervised electricians employed
at the jobsites. Barry maintained some unspecified oversight of
DLB clerical employees, apparently, a remote oversight. She
made recommendations of some kind regarding office person-
nel. Dan Baker supervised the daily business management at
the same Tyco Road office-warehouse, which he owned as
BEI’s landlord. Dan Baker decided on the number of employ-
ees to be hired, he paid the employees, he signed their pay-
checks as she signed all checks issued by BEI, and paid all the
bills. The telephone and fax numbers remained the same at
Tyco Road. To the world at large, except for the addition of
“Inc.” to the name, there was little apparent change after the
D. L. BAKER, INC. 549
sale of assets. No notice was sent to customers. However,
Barry found it necessary to inform creditors and vouch for
BEI’s sound credit.
There was no disruption in ongoing work. New work con-
tinued in the same service area. Almost half of DLB employ-
ees employed in the 1995 second quarter ending June 30 were
employed by BEI in the same quarter. According to the credi-
ble testimony of the two employees who testified, there was
virtually no change in term and conditions of employment and,
in the absence of any public announcement, no indication of
any kind of change whatsoever, except for the name on their
paycheck.
Barry testified that she and Dan Baker jointly developed the
employment policies for BEI by updating the policies already
in place for DLB and adapting policies used by Barry in her
own business at HAMC. Barry testified that the former officer
manager of HAMC John May, now the current BEI officer
manager, assisted in the development of the employment poli-
cies for BEI. Barry identified four separate employment poli-
cies relating to company policies and procedure for all employ-
ees, to procedure for all foremen, for electricians and appren-
tices, and a change in start time effective November 13, 1998,
as the entire complement of BEI employment policies. Barry
testified that the policies of BEI employment policies. Barry
testified that the policies directed to all employees and to fore-
men are currently in effect. Aside from an employment policy
relating to change in start time effective November 13, 1998,
Barry could not recall any changes in the employment policies
jointly developed by her and Dan Baker in 1995. The employ-
ment policies directed to all employees and to foremen are
substantially similar to the employment policies in effect for
DLB’s sole electrician, Michael Tangy, hired in 1997.
Barry testified that upon the transition from DLB to BEI, she
insisted that BEI maintain the apprenticeship program that was
in place for DLB employees in which they are enrolled in the
electrician DLB apprenticeship program held through the Fair-
fax County Public Schools. Electrician apprentice Abdulbarr
described his participation in the apprenticeship program in his
testimony. He testified that Dan Baker enrolled the apprentices
in the program at the beginning of the school year. Employees
were required to pay for the course either by payroll deduction
per pay period or employees could directly pay to Dan Baker.
Upon successful completion of the semester courses, Dan
Baker reimbursed the employee the full amount of tuition.
Abdulbarr testified that there were never any changes in the
apprenticeship program during the time he was enrolled from
1993 through 1996.
BEI continued to use suppliers that DLB had relied upon,
some of which continued to bill under the same service account
number. As to the customer base, it is clear from Barry’s tes-
timony that she recognized that DLB had a strong customer
base and reputation that she intended to continue and develop
that base, albeit with some area of retrenchment. The evidence
supports the conclusion that BEI did so.
DLB remained a corporate existence to this date. With few
if no employees, Dan Baker engaged in the limited DLB work
of fulfilling obligations of service work to satisfy its debt to a
supplier and to perform limited service work.
Dan Baker’s essential relationship to BEI was recognized in
the form of his reimbursement. As BEI landlord, he was reim-
bursed by direct payments in the form of BEI corporate dis-
bursements directly to the holder of the mortgage of the Tyco
Road facility for which Dan Baker held title.14 Dan Baker was
reimbursed again by corporate disbursements, i.e., BEI checks
signed by him to cover expenses of some of his personal vehi-
cles used part of the time by BEI, including the entire expense
of automobile insurance for these vehicles. These checks were
issued directly to the insurer and other creditors. Dan Baker
used his personal credit card to make purchases of supplies and
services for BEI, for which BEI issued corporate check dis-
bursements to reimburse him.15
BEI checks issued to these creditors covered materials and
services for BEI as well as personal expenses. The auto insur-
ance was entirely absorbed by BEI. Under DLB, Baker had
enjoyed an identical privilege. Shortly after his 1996 marriage
to Barry, Dan Baker became joint titleholder to the Purcellville,
Virginia home for which the two mortgage notes were used as
security by Barry to purchase the assets of DLB and to infuse
money into BEI for operational expenses. The infusion of the
money into BEI was referred to by Jerome Baker as interest-
free loans, not capital investment. Chorazy had similarly
treated Dan Baker’s infusions of money as interest-free, un-
documented loans and not capital investments. The loans of
Barry to BEI, like Dan Baker to DLB, were not documented
and were memorialized only by recordation into an accounting
record of disbursements and receipts which referred to these
monies received as loans and disbursements as repayments of
loans as sort of a revolving account similar to other expenses
they incurred on behalf of BEI. Thus, on or shortly after mid
1996, Dan Baker became jointly titled to real property which
had provided for the birth and continued blood flow of BEI.
Barry received no formal compensation from BEI, as Dan
Baker had received none for DLB. Similarly, Barry’s and Dan
Baker’s receipt of BEI disbursements in excess of the so-called
loans, i.e., cash infusions for operating expenses, were referred
to in its accounting record of receipts and disbursements as
“compensation.” Dan Baker received no formal salary from
BEI until January 2000, and no written lease was drawn for the
Tyco Road property until 1998 and then only upon the advice
of the accountant, admittedly for appearances of propriety. The
lease was backdated to 1995.
C. Analysis
The foregoing facts establish that BEI is the same employing
business as DLB, i.e., same manager, same work, same work
area, same headquarters, substantially similar employees, sub-
stantially same customers, suppliers, etc. Actually what oc-
curred was a change in stock ownership and an imposition of
loose financial oversight by the new corporate owner. Other-

14 The Respondents’ witnesses, Jerome Baker and Chorazy, de-
scribed the arrangement as a “ triple net lease” and, they testified with-
out contradiction, not unusual, i.e., taxes, assessments, and mortgage
payment are paid by the lessee directly to the mortgage holder.
15 Barry, who received no formal compensation, was also reimbursed
in a similar manner for partial use of her vehicles and personal credit
cards for corporate use.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD550
wise, BEI is the fruition of Coroneos’ goal, i.e., a means to
allow Dan Baker to continue work as he had before but without
the imminent crushing debt to the IRS and other unknown
debts. The only factor that need be found for Golden State
Bottling to be fully applicable and for liability to be imposed
upon BEI for DLB’s unfair labor practices is knowledge of
same by BEI upon acquisition of the business by virtue of asset
sale.
Dan Baker clearly had knowledge of DLB’s unfair labor
practices. I find that his relationship to BEI is not that of a
mere manager. He is its “driving force.” His continued career
is the reason for its existence. Except for Barry’s corporate
ownership and remote financial oversight, Dan Baker is BEI for
all real intents and purposes. He provides office-warehouse
space it uses as headquarters and, as landlord, is reimbursed by
payment by DLB directly to his mortgage company. Use of his
personal vehicle is charged to BEI and reimbursed by corporate
disbursements. He was, by virtue of cohabitation with Barry, I
find, a necessary confidante of Barry, the new corporate owner.
Without Dan Baker, BEI would be nothing. In view of his
overwhelming control of BEI operations and his financial and
personal relationship to BEI, I find, that in reality he is its silent
partner and, therefore, with Barry, a principal of BEI. Cf. Bell
Glass Co., supra at 706. Accordingly, I impute Dan Baker’s
knowledge of DLB unfair labor practices, the adjudication and
remedial orders thereof, to BEI of which Dan Baker was liter-
ally a principal for 1 day.
Furthermore, I find disingenuous Barry’s attempted testimo-
nial denial of knowledge. Actually, she did not categorically
deny knowledge of Judge Ladwig’s adjudication on or before
the DLB asset purchase. She simply avoided the issue by
claiming lack of recall of when she did become aware of it.
Because of the factors noted above, including her relationship
to Dan Baker and DLB, I conclude that she was his business
confidante before BEI ever existed and her knowledge of DLB
unfair labor practices prior to the asset sale must be inferred. I
find that with that knowledge and the knowledge of DLB’s
conflicts with the Union, she had the obligation to inquire fur-
ther into the matter as she had investigated DLB’s financial
liability status prior to the asset purchase. See Bell Glass Co.,
supra at 708.
Accordingly, I find that BEI is liable jointly and severally for
DLB’s unfair labor practices as its successor with knowledge of
the unfair labor practices.
With respect to the issue of whether BEI is a disguised con-
tinuance or alter ego of DLB, the fact that the two entities, as
noted above, are virtually indistinguishable except for different
ownership and some remote financial oversight by the new
corporate share owner, would compel a finding of disguised
continuance/alter ego status under Board precedent except for
the ownership factor. However, for the same reasons I have
found BEI to be a liable successor, I also find it to be an alter
ego, particularly in view of the dominance of its operational
management by Dan Baker and the propinquity in relationship
to him of his cohabiting, intimate confidante, spouse-to-be, and
owner of his domicile, Barry.
With respect to the factor of intent to evade obligations im-
posed by the Board’s pending remedial order, I conclude that
even if it were not a factor and the sole intent was to evade IRS
back tax liability, the same conclusion must be had under Board
precedent cited above. Moreover, Coroneos effectively admit-
ted that although the primary debt that focused his attention and
the purpose of the stratagem of sale of assets to the new corpo-
ration was the crushing debt liability to the IRS, the elimination
of any other debt that threatened the viability of DLB was also
a minor factor.
Thus, although the immediate object was to escape from the
imminent demise threatened by IRS remedial action, a reasona-
bly foreseeable consequence was also escape from the pending,
potential, unliquidated debt of uncertain proportion that was
gradually but certainly descending upon DLB in consequence
of Judge Ladwig’s decision.
As the General Counsel points out, although there is a lack
of uniformity in the circuit courts as to the necessity of unlaw-
ful motive, the Fourth Circuit applies a “reasonably foreseeable
benefit test.” That court holding that given the factor of iden-
tity of control in both entities, “. . . the inquiry must turn to
whether the transfer resulted in an expected or reasonably fore-
seeable benefit to the old employer related to the elimination of
its labor obligations.” It stated further that whether obtaining
that benefit was a motive for the transfer, “or was a reasonably
foreseeable effect, the result represents a disguised continuance
of the old employer.” The court stated that such conclusion
holds even where “the employer may intend no evasiveness or
subterfuge.” It so held because the ultimate consequence is that
the employer would otherwise obtain an economic benefit at
the expense of national labor relations policies: Alkire v.
NLRB, 716 F.2d 1014, 1020–1021 (4th Cir. 1983).
Accordingly, I find that BEI is an alter ego and disguised
continuance of DLB and, as such, jointly and separately liable
for its unfair labor practices and the remedy thereof.
III. INDIVIDUAL LIABILITY
A. General Statement of Law
In White Oak Coal, 318 NLRB 732 (1995), the Board
adopted the following two-pronged test, derived from Federal
common law and applied in NLRB v. Greater Kansas City
Roofing, 2 F.3d 1047 (10th Cir. 1993), for piercing the corpo-
rate veil to impose personal liability on a shareholder:
Under Federal common law, the corporate veil may be
pierced when (1) there is such unity of interest, and lack of
respect given to the separate identity of the corporation by
its shareholders, that the personalities and assets of the
corporation and the individuals are indistinct, and (2) ad-
herence to the corporate form would sanction a fraud,
promote injustice, or lead to an evasion of legal obliga-
tions.
When assessing the first prong to determine whether
the shareholders and the corporation have failed to main-
tain their separate identities, we will consider generally (a)
the degree to which the corporate legal formalities have
been maintained, and (b) the degree to which individual
and corporate funds, other assets, and affairs will have
been commingled. Among the specific factors we will
consider are: (1) Whether the corporation is operated as a
D. L. BAKER, INC. 551
separate entity; (2) the commingling of funds and other as-
sets; (3) the failure to maintain adequate corporate records;
(4) the nature of the corporation’s ownership and control;
(5) the availability and use of corporate assets, the absence
of same, or undercapitalization; (6) the use of the corpo-
rate form as a mere shell, instrumentality or conduit of an
individual or another corporation; (7) disregard of corpo-
rate legal formalities and the failure to maintain an arm’s
length relationship among related entities; (8) diversion of
the corporate funds or assets to noncorporate purposes
and, in addition, (9) transfer or disposal of corporate as-
sets without fair consideration.
When assessing the second prong, we must determine
whether adhering to the corporate form and not piercing
the corporate veil would permit a fraud, promote injustice
or lead to an evasion of legal obligations. The showing of
inequity necessary to warrant the equitable remedy of
piercing the corporate veil must flow from misuse of the
corporation form. Further, the individuals charged per-
sonally with corporate liability must be found to have par-
ticipated in the fraud, injustice, or inequity that is found.
The Fourth Circuit Court in Alkire v. NLRB, supra at fn. 5,
compared the analysis of alter ego status to that of piercing the
corporate veil.16
This analysis for imposition of alter ego status is similar to the
standard employed to pierce the corporate veil of a subsidiary
corporation and hold its owner(s) liable for the debts of that
subsidiary. In corporate law, as in the labor field, the alter ego
doctrine is an equitable principle designed to prevent an entity
from doing injury and then escaping responsibility by hiding
behind a corporate shield. See Plumbers & Fitters, Local 761
v. Matt J. Zaich Const. Co., 418 F.2d 1054 (9th Cir. 1969).
Application of the doctrine in corporate law rests upon control
by the parent and misuse of that control that causes an injury
by the subsidiary. Wrongdoing by the parent need not
amount to plain fraud or illegality, but the injured party must
show some connection between its injury and the parent’s im-
proper manner of doing business. See, e.g., DeWitt Truck
Brokers v. W. Ray Flemming Fruit Co., 540 F.2d 681 (4th Cir.
1976); Krivo Indus. Supply Co. v. National Distill. & Chem.
Corp., 483 F.2d 1098 (5th Cir. 1973); Certain-Teed Products
Corp. v. Wallinger, 89 F.2d 427 (4th Cir. 1937). Without that
connection, even when the parent exercises domination and
control over the subsidiary, corporate separateness will be
recognized. Plumbers & Fitters, Local 761, supra.
The Fourth Circuit Court would insist upon proof of a causal
connection between an abuse of the corporate form and the
injury alleged.
The Union and the General Counsel argue that in applying
the first prong of the White Oak test,

16 In AAA Fire Sprinkler, Inc., 322 NLRB 69, 74 (1996), the Board
held that it would no longer apply an alter ego test in deciding whether
to pierce the corporate veil to reach assets of otherwise protected indi-
viduals. In that case, shell corporations were created to evade union
obligations, and corporate resources were exploited for individual gain.
. . . the Board often follows the flow of money in and out of a
corporation as well as the formalities of the underlying trans-
actions. See Reliable Elec. Co., 330 NLRB 714, 714–715,
(2000); Bufco Corp., 323 NLRB 609, 628–629 (1997), enfd.
147 F.3d 964 (D.C. Cir. 1998); Genesee Family Restaurant
and Coney Island, Inc., 322 NLRB 219, 229–230 (1996),
enfd. without op., 129 F.3d 1264 (6th Cir. 1997).
The Union argues further:
If an individual freely lends or withdraws funds from the cor-
poration, without supporting the documentation or other indi-
cia of an arm’s length relationship, then the corporation’s
separate identity is blurred with the individual’s identity, pro-
viding strong evidence in support of the first prong of the
White Oak Coal standard. Reliable Elec. Co., 330 NLRB
[714, 714–715].
The General Counsel and the Union argue that the Board has
found a blurring of corporate and individual identities where
corporate funds paid for the individual’s personal home mort-
gage, rent for personal residence, or personal expenses and
where the distinction between corporate and individual ex-
penses is blurred by payment of employees with personal ac-
count checks, or corporate use of personal credit cards or per-
sonal vehicles, or by personal use of corporate property. West
Dixie Enterprises, 325 NLRB 194 (1997); enfd. 190 F.3d 1191
(11th Cir. 1999); Genesee Family Restaurant, supra.
As noted by the Union and the General Counsel, the Board
will also evaluate the appropriateness and adequacy of the cor-
poration’s capitalization, citing AAA Fire Sprinklers, supra (see
fn. 15, above); and Hawk of Conn., 319 NLRB 1213, 1223
(1995).17 In Fire Sprinklers, a paltry $10,000 startup fund was
the consequence of a less than arm’s length stock sale. The
Hawks case involved an alter ego issue. The capitalization of an
insignificant amount of money with no immediate revenue led
the administrative law judge to infer that another source of
expected capital was an individual whom he found to be a
“partner” or “owner.”
The General Counsel and the Union argue that specific intent
of fraud or wrongdoing is not essential to establish the second
prong of the White Oak test, citing Reliable Electric, supra;
Bufco Corp, supra; West Dixie Enterprises, supra, and DeWitt
Truck Brokers, Inc., supra, for the principle that it is sufficient
that the evidence establish that conduct by individuals has the
“natural, foreseeable, and inevitable consequence” of diminish-
ing the corporation’s ability to satisfy the Board’s remedial
order.
The Respondents acknowledge the White Oak precedent but
point out that White Oak explicitly adopted the Kansas City
Roofing two-prong test, cited above. They argue that the cor-
porate form is a “construct of the law” designed to encourage
investment by individual insulation from liability, which insula-

17 For application of Federal common law cited by the Union and the
General Counsel, see also Alman v. Danin, 801 F.2d 1 (1st Cir. 1986);
DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d
681 (4th Cir. 1976) (burden of proof on attacker of corporate protec-
tion).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD552
tion “is the norm, not the exception,” citing and quoting NLRB
v. Deena Artware, 361 U.S. 398, 402–403 (1960). The Re-
spondents argue:
In extreme circumstances, however, the law may dis-
regard the corporate form. In these extreme circumstances
the purpose of ignoring the corporate form is to reach the
personal assets of an owner or a controlling shareholder of
a corporation in order to satisfy the corporations debts and
liabilities. However, the corporate veil should be pierced
only reluctantly and cautiously. NLRB v. Greater Kansas
City Roofing, 2 F.3d 1047 (10th Cir. 1993), citing Cascade
Energy & Metals Corp. v. Banks, 896 F.2d 1557, 1578
(10th Cir. 1990), cert. denied, 498 U.S. 849 (1990). The
piercing of the corporate veil is something reserved for
circumstances where some impropriety or injustice is evi-
dence.
If any general rule can be laid down, in the present
state of authority, it is that a corporation will be looked
upon as a legal entity as a general rule, and until suffi-
cient reason to the contrary appears; but, when the no-
tion of legal entity is used to defeat public conven-
ience, justify wrong, protect fraud, or defend crime,
the law will regard the corporation as an association of
persons . . . The corporate veil may not be pierced ab-
sent a showing of improper conduct.
1 Charles R.P. Keating & Gail O’Gradney, Fletcher Cy-
clopedia Corporations, Sec. 41 at 603 (1990 ed.)..
Other recognized authorities are in agreement with the
general rules of recognizing the corporation form. “Gen-
erally, a corporation is a legal entity . . . and such legal en-
tity may not be disregarded except where equitable con-
siderations require piercing the corporate veil.” 18 Am.
Jur.2d Corporations, Sec. 44 at 843–44 (1985). See also
18 C.J.S. Corporations Sec 10 at 277 (1990).
The Respondents further quote the following language of Kan-
sas City Roofing:
The “separate corporate identity” prong is meant to determine
whether the stockholder and the corporation have maintained
separate identities. There are strong public policy reasons for
upholding the corporate fiction. Where stockholders follow
the technical rules that govern the corporate structure, they
are entitled to rely on the protections of limited liability that
the corporation affords. In determining the personalities and
assets of the corporation and the stockholders have been
blurred we consider (i) the degree to which the corporate legal
formalities have been maintained, and (ii) the degree to which
individual and corporate assets and affairs have been com-
mingled. [Emphasis added.] [Kansas City Roofing, supra at
1052.]
The Respondents further argue that the Kansas City two-prong
test requires a causal connection between the disregard of cor-
porate separateness and the claimed injustice, quoting it:
It should be emphasized that the showing of inequity
necessary to satisfy the second prong must flow from the
misuse of the corporate form. The mere fact that a corpo-
ration commits an unfair labor practice, or breaches a con-
tract, or commits a tort, does not mean that the individual
shareholders of the corporation should personally be li-
able. To the contrary, the corporate form of doing busi-
ness is typically selected precisely so that the individual
shareholders will not be liable. It is only when the share-
holders disregard the separateness of the corporate iden-
tity and when that act of disregard causes the injustice of
inequity or constitutes the fraud that the corporate veil
may be pierced. [Emphasis in original.] Kansas City
Roofing, supra, at 1053, citing Bangor Punta Operations,
Inc. v., Bangor & Aroostook R.R., 417 U.S. 703, 713 94
S.Ct. 2578, 2584 (1974).
The Respondents argue that the General Counsel has failed
to carry the burden of proof imposed upon it by Kansas City
Roofing, supra, and White Oak, supra. See also DeWitt Truck
Brokers, Inc., supra.
The Respondents argue that DLB and BEI, despite financial
informalities and superficial appearance of assets commingling,
have both maintained a de facto separateness whereby individ-
ual assets, expenses, and disbursements have been carefully
accounted for and memorialized pursuant to advice from their
accountants and financial advisors upon which hey relied in
good faith. The Respondents argue that the mass of documen-
tation introduced into evidence by the General Counsel and the
Union may appear superficially damning because documents
reveal that the personal expenses of Dan Baker and Barry were
paid for by corporate disbursements from their respectively
owned corporations.18
The Respondents argue, however, that the facts demonstrate
that DLB and BEI followed normal practices of small, closely-
held Virginia corporations as confirmed by undisputed expert
testimony. They argue that there has been maintained a distinc-
tion between personal expenses incurred on behalf of the corpo-
ration and personal expenses unrelated to corporate business.
With respect to the latter, corporate disbursements for these
were treated as compensation to the individuals and/or repay-
ments of loss and identified and recorded as such in its corpo-
rate ledgers.
The General Counsel and the Union argue that the corporate
disbursements of DLB and BEI disclosed a lack of regard for
corporate formalities and constituted a commingling of assets
that permitted Dan Baker and Barry to divert corporate funds
for their personal use to the extent that it debilitated, or at least
tended to debilitate, the ability of both corporations to comply
with the Board’s remedial order. They argue that Dan Baker
and Barry intentionally kept the corporations at the brink of
impoverishment for this purpose by putting in and taking out

18 As the Union appropriately points out, if the status of corporate
disbursements and liabilities documentation, or lack thereof, is so con-
fused that critical questions are raised, it’s the Respondents’ burden to
clarify that confusion. Bufco, supra at 627–628; Genesee Family Res-
taurant, supra at 230; Bernard Engineering Co., 295 NLRB 226, 238
fn. 53 (1989).
D. L. BAKER, INC. 553
money in sort of a revolving charge account or line of credit, or
“piggy bank.”19 The Union actually refers to it as pilfering.
The Union and the General Counsel allege that BEI was un-
dercapitalized and that the sale of assets was not a bona fide
arm’s-length transaction but was contrived as a means of not
only evading IRS obligations but also the Board’s remedial
order.
The Respondents argue that the assets sale was not calcu-
lated to avoid existing obligations, “but rather to resolve them,”
rather than to succumb to an IRS levy and a closure of business
and bankruptcy. The Respondents argue that there is no evi-
dence of corporate looting or diversion of assets to avoid any
obligations, nor evidence that BEI has been unable to meet any
of its financial obligations. It argues that the facts demonstrate
that Barry has done all she was capable of doing to insure the
success of BEI by repeatedly infusing cash into its operation. It
points out the undisputed fact that, as evidenced by BEI’s 1999
tax return, it reached its soundest and most successful financial
position since its creation.
Finally, the Respondents argue that assuming the lack of full
compliance with all corporate formalities and commingling of
corporate funds with Barry’s personal assets, there is no proof
that the violation of corporate form is causally connected to any
“fraud or injustice to the Union.”
The Respondents conclude:
As was stated best by the NLRB in [Riley Aeronautics Corp.,
178 NLRB 494, 501 (1969)]:
[t]o require [the individual] to make good the corpora-
tions’ backpay liability out of [her] personal funds would
operate to defeat the very purpose of [her] incorporating
the business to escape individual liability. If the corpo-
rate funds are insufficient to meet the backpay obliga-
tion, the Board’s recourse is that of a ‘creditor’, which
includes enforcing the claim in insolvency or bankruptcy
proceedings.
B. Facts
1. Money in—money out
As evidence of commingling of assets, the General Counsel
has adduced undisputed evidence of a history of “loans” from
Dan Baker, Barry, and her sole proprietorship HAMC to DLB,
and from Barry to BEI. The loans were all undocumented as to
duration and manner of repayment or other terms. DLB loans
were not authorized in accordance with its bylaws. According
to the credible testimony of Professor Booth, the indicia of a
bona fide loan transaction is the comparability of its terms to
that accorded third pay creditors, i.e., maturity dates, payment
schedules, default provisions, etc., or, at the very least, a form
note or IOU—all of which are absent herein.
DLB’s accountant since 1980, Phyllis Chorazy, explained
that she prepared a general ledger report in 1994 that reflected
Dan Baker’s loans to DLB and receipt of DLB disbursement by
Dan Baker or to a third party for Dan Baker individually. She

19 Compare, Bufco Corp., supra at 629, where it was found that the
corporation was alternately transfused with money and alternately
“bled” to the point calculated to keep it barely alive.
did not consider Dan Baker’s and Barry’s periodic personal,
undocumented infusions of money into DLB as equity invest-
ments but as unwritten personal notes payable, from which she
recorded deductions, according to DLB disbursements, to or on
behalf of Dan Baker and Barry individually. This note payable
increased and decreased periodically. To mid-1994, Chorazy
relied upon monthly records provided by Dan Baker as well as
his verbal identification of DLB disbursements (he issued the
checks) as personal or corporate expenses. She received no
records from him from mid-1994 until the assets sale.
Professor Booth testified that without documentation of such
transaction, other than after-the-fact cancelled DLB banks and
ledger reports, it was impossible to conclude whether the per-
sonal infusion of cash were bona fide loans or were equity in-
vestments. He testified that if these “loans” were in fact in-
vestments of capital, they may have been improper, if not inva-
lid, under pertinent Virginia statutes. He explained that at
times disbursements to shareholders are made (dividends), the
corporate assets must exceed liabilities. However, in this case,
there is no evidence, one way or the other, whether Dan Baker
or his accountant even applied the assets-liabilities balance test
in approving the disbursements. Because Chorazy considered
the cash infusion as loans, she and Dan Baker did not even
consider application of the balance test.
Barry continued in the same manner of in-and-out “loans”
and disbursements with respect to BEI as Dan Baker and DLB
had practiced. Her loans, unlike Dan Baker’s, were undocu-
mented, unfettered by terms of repayment, and interest-free.
She explained that it made no sense for her to charge interest to
herself.20
Jerome Baker, like Chorazy, testified that Barry’s cash infu-
sions were treated as loans to BEI, starting with the original
$138,000 used for the assets purchase.21 Similarly, BEI dis-
bursements to her (by way of checks issued by Dan Baker)
were made for noncorporate expenses, but her personal ex-
penses were treated as loan repayments.
By the end of calendar year 1999, Barry owed BEI
$18,857.87 in consequence of these disbursement for noncorpo-
rate expenses. However, Barry continued thereafter to infuse
money or, as she characterized it, make “short term” undocu-
mented term-free loans to cover BEI payroll shortfalls, and she
continued receiving corporate disbursements as loan repay-
ments and/or compensation, treating it as sort of a revolving
line of credit-debit source; Booth termed it “a personal piggy
bank.” The documentation of these “loans” and loan repay-
ments or loans from BEI to Barry (or compensation to her),
consist of after-the-fact memorializations and unclear, informal,
haphazard confusing records. Again, according to Professor
Booth, a question arises as to whether these were good-faith
loans or capital investments and the subsequent disbursements
improper disbursements of capital.

20 I credit this forthright admission by Barry over any inconsistent
documentary evidence in the record.
21 At one point in his testimony, Jerome Baker referred to the
$138,000 as “capitalization” of BEI.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD554
2. Undercapitalization
Clearly capital investment is what enables a corporation to
meet it expenses and to keep alive. According to the Respon-
dents, Dan Baker and Barry infused money into their respective
corporations that were loans and not capital investments. Thus,
in the absence of these undocumented loans, both corporations
could not have survived. DLB could not pay its tax bill, a nor-
mal business expense, without these loans and, indeed, loans
were needed for payroll shortfalls. Similarly, BEI, as Professor
Booth testified, had in effect Barry’s loan of $138,000 as its
total capitalization, which he testified is inappropriate under
Virginia corporate law. Like Dan Baker and DLB, Barry found
it necessary to infuse periodic loans into BEI to enable it to
meet its normal business expenses, including payroll obliga-
tions. Barry conceded that she and BEI continually exchanged
loans and disbursements for the “capital needs of the company”
and to alleviate cash flow crises.22
The entire $138,000 was used to purchase DLB assets which
included certain hard assets somewhat dubiously appraised, and
goodwill, the difference between that appraisal and $138,000.
The figure of $138,000 seems to have been arrived at as the
amount of money necessary for DLB to pay its debts. After
paying DLB for assets and goodwill, BEI had no operating
capital. Barry could not explain how BEI managed to operate
in the early weeks of its existence before Barry made another
“loan” to it on July 16, 1995.
C. Analysis
I conclude that the evidence reveals that both DLB and BEI
were undercapitalized prior to 1999, particularly if Dan Baker’s
and Barry’s cash infusions were considered to be loans and not
capital investments. Professor Moore conceded, however, that
with a gross profit of $637,000, which he called “huge,” and
retained earnings of $137,211 for 1999, BEI must have had
adequate capitalization for that year.
As noted elsewhere, both corporations issued checks to cover
not only the so-called repayment of loans from the individuals
but also for their personal expenses by direct payment to the
creditor. There is an area of disputed expenses which were
charged for corporate expenses but which is claimed by the
General Counsel and Union to be bereft of corporate benefit.
Some of these involve payments for items seemingly, but not
conclusively, related to the building of the Purcellville home
but which would not appear related to DLB’s normal business.
Dan Baker was unable to adequately explain these disburse-
ments.
There was corporate expenditure for Jerome Baker’s gradu-
ate education. According to Chorazy and Jerome Baker, this
can arguably be characterized and claimed as a business ex-
pense under IRS rules. I find it unnecessary to recite and
evaluate the area of alleged improper corporate disbursements
for personal needs because the admitted and undisputed corpo-
rate disbursements to third-party creditors of Dan Baker and

22 Although there is unrebutted testimony that similar type short-
term loans are common in such crises, it is nonetheless a factor the
Board evaluates in applying the White Oak test in the foregoing cited
precedent.
Barry, who used their personal credit on behalf of their corpora-
tions, for legitimate expenditures on behalf of the business
establish more than sufficient evidence of a disregard for corpo-
rate formalities, a commingling of assets, and blurring of identi-
ties required under the White Oak first-prong test, notwithstand-
ing the legitimacy of a triple net lease and sporadic short-term
loans common in small closely-held Virginia corporations un-
der unspecified conditions.
I find that the very loose ledger accounting of inflow and
outflow does not satisfy compliance with arm’s-length corpo-
rate formality. Chorazy, for example, admitted that she relied
entirely on Dan Baker’s reports, often without documentation,
in making distinctions as to what was or was not a corporate
expense. BEI’s after-the-fact record recordation raises more
questions than answers and, at best, revealed a confusion that
BEI was obliged to but did not fully explain.
A closer issue raised herein is whether the facts of this case
satisfy the requirements of the second prong of the White Oak
test. The General Counsel and the Union claim that BEI’s crea-
tion was to avoid DLB debts, including the potential liability
under the Board’s Order. I agree with the Respondents, and I
fully credit Dan Baker, that his vastly predominant concern at
that time was to satisfy the demands of the IRS and to save his
business from closure.
The creator of BEI and the asset sale medium, Coroneos,
was not concerned with the non-IRS debts. His invention did
not avoid debts but rather confronted and accommodated the
IRS debt. There is no evidence that the IRS or any other debt
was evaded.
The analysis as to whether the corporate veil should be
pierced is, I agree with the Respondents, an extraordinary rem-
edy. I find it to require a more stringent criteria than establish-
ing BEI as an alter ego/disguised continuance of DLB.
I find insufficient evidence that the misuse of the corporate
form was intended to defraud or to evade the potential liability
under the Board’s remedial order. Dan Baker had been operat-
ing DLB in the same loose manner long before Tangy was
hired. There is no evidence that the abuse of corporate formali-
ties tended to defraud any creditor or evade any debts. Rather,
his infusion of personal money in a manner asserted to be an
abuse of corporate formalities actually resulted in satisfying his
creditors and kept the business operating and the electricians
employed until the IRS fiasco. I find that the cause of his in-
ability to satisfy the IRS is not shown to have been a conse-
quence of an abuse of the corporate form. I find insufficient
evidence that he grossly exploited the assets of DLB for his
personal gain and that this exploitation is what caused DLB’s
final crises, even assuming some minor inappropriate dis-
bursement to him personally. Dan Baker did at times become a
debitor to DLB by virtue of the disbursements to him. But an
overview of the entire history reveals that Dan Baker, by virtue
of his infusion of personal funds, was DLB’s rescuer and not its
exploiter.
Barry’s relation with BEI carried on in the same fashion as
DLB’s disguised continuance. Barry’s financial contributions
kept the corporation viable. There is no evidence that it failed
to meet its expenses when due because of a looting of its assets.
I find insufficient evidence that Barry purposely, or by foresee-
D. L. BAKER, INC. 555
able or inevitable consequence, kept BEI’s at death’s door by
virtue of alternately infusing money into it as either loans or
capital and accepting loan repayment and compensation from it,
sometimes in the form of inappropriate disbursements. As the
Respondents point out, BEI’s financial fortunes had improved
to the extent that 1999 was its most prosperous year. I find
insufficient evidence that rather than the vicissitudes of opera-
tional success or failure, the abuse of the corporate form by
Barry, by intent or by foreseeable inevitable consequence,
threatened the satisfaction of its debts to business creditors or
future satisfaction of a potential unliquidated debt under the
Board’s remedial order.
Accordingly, I find it inappropriate to pierce the corporate
veil to find either Dan Baker or Barry personally liable for any
debt that might be due under the Board’s Order.
IV. CONTRACT REPUDIATION
A. General Statement of Pre-Deklewa Law
The Union sets forth in its argument in the brief a general
statement of relevant precedent, which parallels that of the
General Counsel and is reasonably accurate as far as it goes and
generally comports to a great extent with that cited by the Re-
spondents:
It is well settled that Section 8(f) of the Act allows un-
ions and employers to enter into prehire agreements in the
construction industry. Prehire agreements are voluntary
agreements, and, prior to Deklewa, either party could re-
pudiate the agreement. Clark v. Ryan, 818 F.2d 1102,
1107 (4th Cir. 1987). The burden of proving repudiation
falls on the party making the claim that it repudiated the
prehire agreement. International Assn. of Iron Workers,
Local 103 v. Higdon Constr. Co., 739 F.2d 280, 282.
In order for an employer to effectively repudiate the
agreement, it must communicate notice of that repudiation
to the union or benefit trust funds. Industrial TurnAround
Corp. v. NLRB, 115 F.3d 248, 255 (4th Cir. 1997); Clark,
818 F.2d at 1106. In Industrial TurnAround, the Fourth
Circuit found that effective notice of repudiation occurred
when the employer sent a letter to the union stating that
the employer was terminating the letter of assent and re-
pudiating the collective-bargaining agreement. 115 F.3d
at 255. Likewise, in Clark, the court found effective no-
tice of repudiation when the employer verbally told a trus-
tee of a benefit trust fund, which was trying to enforce the
agreement, that the employer was withdrawing from the
agreement. Clark, 818 F.2d at 1106.
While the Fourth Circuit addressed written notice in
Industrial TurnAround and verbal notice in Clark, the
court subsequently suggested that “acts sufficient to repu-
diate the prehire agreement require at least that the Union
have some form of notice of the inconsistent conduct.”
NLRB v. Baker Elec., Case No. 95-1377, slip op at 6. In
making that assertion, the court cites Jim McNeff, Inc. v.
Todd, 461 U.S. 260 (1983); and Clark. In McNeff, the Su-
preme Court noted that the employer “never manifested an
intention to void or repudiate the contract.” 461 U.S. at
270. The court did not decide, however, whether that
manifestation of intent could be shown by sending notice
to the union, engaging in conduct that was overt and com-
pletely inconsistent with contractual obligations or filing a
representation petition. Id. at 271 fn. 11. In Clark, the
Fourth Circuit found that an employer’s verbal communi-
cation of its withdrawal from the agreement, which was
communicated to the trustee of a benefit fund seeking to
enforce the agreement, would constitute repudiation if the
employer was engaged in the construction industry and the
agreement was, in fact, a prehire agreement. 818 F.2d at
1106–1107. The court remanded the case for a determina-
tion as to when the employer repudiated the agreement.
Id. at 1107.113 Under either decision, the notice must
“manifest an intention to void or repudiate the contract”
and must be directed at the Union. McNeff, 461 U.S. at
270–271 & fn. 11; Clark, 818 F.2d at 1106–1107.
While written or verbal communication can provide
the union with notice of an employer’s intent to repudiate
an agreement, an employer’s conduct does not necessarily
have the same effect. In addressing an employer’s claim
that it repudiated a prehire agreement by its conduct, the
courts have found that an employer’s mere noncompliance
with the contract does not manifest intent to repudiate the
agreement. See Trustees for Alaska Laborers-Constr. In-
dus. Health & Sec. Fund v. Ferrell, 812 F.2d 512, 518 (9th
Cir. 1987); Local 257, Intl. Bhd. of Elec. Workers v.
Grimm, 786 F.2d 342, 346 (8th Cir. 1986); Higdon Constr.
Co., 739 F.2d at 282–283; Chicago Dist. Council of Car-
penters Pension Fund v. Skrede, 542 F.Supp. 634, 638
(N.D. III. 1983). Instead, the noncompliance must be so
“bald” and “notorious” as to give the Union notice of the
employer’s repudiation of the agreement, not merely its
noncompliance with the agreement. The determination of
whether an employer’s conduct is so bald and notorious as
to constitute repudiation must be based on a review of all
the facts in the record.
Whether it is attempting to prove repudiation by writ-
ten letter, verbal communication or course of conduct, the
employer cannot meet its burden by simply saying in this
proceeding that it has repudiated the agreement. See
Teamsters Local Union 745 v. Braswell Motor Freight
Lines, Inc., 428 F.2d 1371, 1374 (5th Cir. 1970) (rejecting
employer’s claim it cancelled collective bargaining
agreement by filing answer and other court filings alleging
agreement never existed); Thelin v. Mitchell, 576 F.Supp.
1404, 1408 (N.D. III 1983) (rejecting employer’s claim
that it repudiated agreement by filing an answer in the
case). The legal precedent requires the employer to estab-
lish an affirmative act that would convey its intention to
repudiate the prehire agreement to the union. Skrede, 542
F.Supp. at 638.
_______________
113 On remand, the district court found hat the employer was
still bound to the prehire agreement under Deklewa. Clark v.
Ryan, Civ. A. No. 83–852-R, 1989 WL 517501 (W.D. Va.). That
decision was not appealed to the Fourth Circuit.
In Industrial TurnAround, supra at 254, citing Clark, supra at
1109, and McNeff, supra, the court stated: “An employer may
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD556
repudiate a Sec. 8(f) agreement by providing notice to the Un-
ion.” It found that such notice need not comply with the termi-
nation provision set forth in the agreement. In Clark, supra at
1107, the court states that in the event a prehire agreement ex-
isted, the company “. . . would have been able to repudiate the
agreement by providing notice to the union. See Overhead
Door, 681 F.2d at 9 and fn. 38. Section 8(f) imparts a flexibil-
ity to collective-bargaining agreements; its purposes are best
served by requiring simply that notice to repudiate be sufficient
under the circumstances.”
The Union and General Counsel argues that “mere noncom-
pliance” does not manifest an intent to repudiate the agree-
ment.” However, even a casual reading of the cited precedent
would necessitate a modification of that statement to a more
accurate one that a failure of full compliance, partial compli-
ance, or noncompliance with one provision of the contract does
not necessarily manifest repudiation intent. For example, in
Trustees for Alaska Laborers—Constr. Indus. Health and Sec.
Fund, supra, the court found that failure to make monthly pen-
sion payments did not, in itself, constitute repudiation of the
entire contract. The court cautioned, however, that it might do
so if accompanied by an employer’s conduct, which was highly
inconsistent with intent to fulfill contractual obligations. Board
precedent cited by the General Counsel for the same argument
must be similarly qualified because those cases did not involve
total or even pervasive noncompliance, but rather involved a
failure to fully comply with some contract provisions. A. L .
Underground, 302 NLRB 467 (1991) (which involved a 10(b)
issue, and Adobe Walls, 305 NLRB 25 (1991).
None of the precedent cited by the General Counsel and Un-
ion hold that repudiation may not be manifested by a pervasive
noncompliance with all or most vital areas of the agreement,
especially within the context of conduct inconsistent with ad-
herence to the contract as a whole. The Respondents counters
with citation of precedent that such circumstances may indeed
be found sufficient to constitute a manifest intent of total
agreement repudiation sufficient to constitute notice to the un-
ion. Carpenters Southern California Admin. Corp. v. J. L. M.
Constr. Co., 809 F.2d 594, 599 (9th Cir. 1987) (complete non-
compliance); International Bhd. of Electr. Workers v. KBR
Electric, 812 F.2d 495 (9th Cir. 1987); NLRB v. Drywall, 974
F.2d 1000, 1004 (8th Cir. 1999); Wyoming Laborers Health &
Welfare Plan v. Morgen & Osgood Constr. Co., Inc., 850 F.2d
613, 623 (10th Cir. 1988); Contractors, Laborers, Teamsters &
Engineers Health & Welfare Plan v. Harkins Constr. & Euip.
Co., 733 F.2d 1321, 1327 (8th Cir. 1984).
The common thread in all of this precedent is that the issue
of repudiation must be resolved by the factual configuration in
each case.
B. Facts
The basic factual background has been set forth in the over-
view portion of this decision. Because of the Board’s Order
upholding my ruling that the issue of contractual repudiation
prior to the hearing before Judge Ladwig was not to be reliti-
gated in this proceeding, I restricted the Respondents greatly as
to introduction of pre-October 5, 1994 factual evidence. I agree
with the General Counsel that the issue is excluded by res judi-
cata or, more precisely, issue preclusion by virtue of the Deci-
sion of the Board and the court. I do not agree that the Respon-
dents are precluded from relying upon evidence adduced before
Judge Ladwig or the state of the record of the proceeding be-
fore him to shed light upon, to explain, or to understand the
factual configuration existing on and after October 5, 1994, as
to whether the Respondents’ conduct had constituted manifest
intent of contract repudiation sufficient to put the Union upon
notice on or after that date. I do not construe such reference as
a relitigation of the issue of pre-October 5, 1994 repudiation.
At trial, I emphasized that the Respondents were afforded the
right to show repudiation on or after October 5 by evidence of
facts occurring on or after that date. However, I conclude that
such evidence must necessarily include the Union’s perception
of DLB’s contractual obligation intent on and after October 5,
1994.
With respect to the pleadings in the underlying proceeding,
the Respondents may be precluded by res judicata from reliance
on those pleadings to establish effective notice of repudiation at
the time of unfair labor practice charge, complaint issuance, or
answer thereto. A reading of those pleadings might arguably
lead a reasonable person to conclude that DLB had refused to
recognize the Union and had held itself to be not bound by the
prehire agreement. However, that argument was not raised
until this proceeding. I conclude that those pleadings and the
underlying proceeding itself, as well as subsequent proceedings
and pleadings, may be relied upon by the Respondents to prove
that a sufficiently bald manifestation of contract repudiation
evolved and existed in the Union’s perception, either immedi-
ately after Judge Ladwig’s closing gavel fell on October 4,
1994, or some time thereafter—but many years before the May
1997 letters of reiterated repudiation.
It was stipulated at the trial herein that knowledge of the con-
tent of all pleadings, motions, or all legal matters served upon
the Union’s legal counsel may be imputed to the Union. It is
undisputed and conceded that Charles Graham before, during,
and at all times after the proceeding before Judge Ladwig, was
the Union’s responsible agent for organization, contract nego-
tiations, and prosecution of unfair labor practices, including the
underlying proceeding at which he testified.
As a result of testimony, documentary evidence adduced,
and statements of position at that trial, Judge Ladwig made the
findings described above, including DLB’s operation as a non-
union contractor for many years and the Union’s attempt to
organize DLB, which it considered a nonunion contractor.
Evidence was adduced at that trial in an attempt to prove that
DLB’s conduct was sufficient to prove manifest notification of
contract repudiation. Judge Ladwig, the Board, and the court
disagreed and found that it had not been so bald and openly
notorious. However, that position was clearly maintained by
the Respondents at the trial and complemented the Respon-
dents’ answer to the underlying charge.
It is an arguable point whether the pleadings themselves con-
stituted effective constructive repudiation. The proceeding
before Judge Ladwig itself added further factual dimension. In
his subsequent decision, Judge Ladwig found that DLB violated
the Act by not recognizing the Union by the fact that it “. . . has
failed and refused to adhere to the terms of the 1993–1997
D. L. BAKER, INC. 557
NECA–Union Inside Wireman master agreement.” The whole
tenor of Judge Ladwig’s decision was that the facts adduced at
his hearing revealed that DLB had operated as a nonunion con-
tractor and had evaded the master agreement entirely, i.e., com-
plete noncompliance. His order, inter alia, called for DLB to
cease and desist from refusing to recognize the Union and to
comply with the terms and condition of employment of the
agreement.
What conclusions did the Union come to as a result of expo-
sure to the same evidence introduced, and positions taken, by
the Respondents at the trial even before briefs were received?
It is highly improbable that the Union needed to read the Re-
spondents’ brief before it formulated a firm perception of
DLB’s attitude toward compliance with the agreement in any
way, manner, shape, or form. The Union, i.e., Graham, no later
than October 5, 1994, certainly had come to a fixed perception
of DLB’s agreement compliance intent.
As noted above, Graham’s testimonial demeanor was very
poor. He lacked conviction and failed to convince. Unlike
friendly examination, his constant evasions, fidgeting, throat-
clearing, and other body language in adverse examination pre-
vented me from acquiring any assurance of reliability and accu-
racy of his testimony.
Initially, in examination as an adverse witness, he admitted
that DLB had refused to use the union hiring hall and had not
paid union wage scale and benefits obligated by the agreement.
Then he claimed that he could not recall when he had first
come to that awareness. Next, he claimed that he had not
known what wages DLB had paid the bargaining unit employ-
ees. He was then asked upon what basis he had concluded that
DLB had not been paying contractual wages and benefits, hav-
ing had no knowledge of what DLB paid unit employees. Gra-
ham responded that because DLB was not paying working dues
and trust fund installments, he was therefore palpably not abid-
ing by the contract. He was asked when he first learned that
DLB was not paying working dues or making trust fund pay-
ments and answered October 5, 1994. When asked why he
therefore did not file a grievance under the contract, Graham
answered:
. . . he wouldn’t abide by the agreement. He would have
thrown the agreement in the trash.
Graham then admitted his awareness on October 5, 1994,
that DLB was not using the union hiring hall referral procedure
or abiding by the contract. After some reflection, Graham at-
tempted to retract this astounding admission, claiming again
that he did not know the date of his awareness that DLB was
not paying contractual wages and benefits. At this point in his
adverse examination, Graham appeared to be agonizing in self-
contemplation. Union counsel leapt to Graham’s rescue with
the proposed stipulation, which was joined by all parties, i.e.,
that at all times on or after October 5, 1994, Local 26 knew that
DLB and its alter egos were not in compliance with the 1993–
1997 IBEW-NECA NECA–Union Inside Wireman Master
Agreement and sought to compel compliance by the institution
of the underlying proceedings. Union counsel had objected to
the Respondents’ persistent examination of Graham on the
ground that there was no dispute that the Union was unaware of
DLB’s contractual noncompliance. The General Counsel
joined in by stating on the record that by virtue of the underly-
ing charge, Judge Ladwig’s decision, the Board decision, and
Court Opinion finding a violation of Section 8(a)(5) of the Act
by DLB’s “refusal to adhere to the terms of any Inside Wire-
man Agreement,” is why we were now in litigation. Accord-
ingly, at that point, the General Counsel and the Union ap-
peared to be taking the position that persistent examination of
what Graham knew and when he knew it was not relevant.
In continued adverse examination, Graham testified:
(BY MR. AVAKIAN:)
Q. Mr. Graham, with respect to your understanding on
October 5, 1994 that D. L. Baker, Inc. was not complying
with the contract with regard to paying trust fund—
making trust fund contributions, paying working dues, or
taking referrals from the Union hiring hall, isn’t that con-
duct completely inconsistent with what union signatory
employers should be doing with regards to their obliga-
tions to Local 26?
A. The—Yeah—well, it’s my understanding that
Baker was violating the collective bargaining agreement.
And if you’re violating, or course, you’re not doing what’s
right.
At that point, upon another uproar of objections from the Un-
ion and General Counsel, the witness was excused while I ruled
upon objections. Upon his return, Graham gave a confusing
response as to whether DLB complied with any provision of the
agreement on or after October 5, 1994. At one point, when
questioned as to DLB’s nonforwarding of union dues as obliged
by the agreement, Graham testified:
No, he wasn’t complying with the bargaining agreement so he
wasn’t doing anything except—
The exception, Graham insisted, was that DLB was somehow
in compliance with article 1.01 of the agreement which sets
forth requisite criteria for timely written notice termination.
According to Graham’s reasoning, since DLB never complied
with the requirements necessary for timely written notification,
he was somehow complying with article 1.01.
Now, it appears, coming full circle again, Graham admitted
awareness as of October 5, 1994, that DLB had complied with
only one contractual provisions and that can be defined as
compliance only with the most tortuous rationalization. As if
that were not enough, the Respondents’ counsel persisted:
(BY MR. AVAKIAN)
Q. I just want to make sure I understood your testi-
mony completely. The remainder of the provisions of the
contract—it’s your knowledge or understanding that D. L.
Baker, Inc., or Baker Electric, Inc. has not been complying
with those terms?
A. He won’t comply to them [sic]. There’s been legal
action and he still won’t.
There was an unfortunate but unavoidable hiatus in Gra-
ham’s testimony, which provided him with a 17-day interlude
to reflect upon his testimony. In continued adverse examina-
tion, when pressed to admit awareness that he had been aware
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD558
on and after October 5 that DLB had engaged in conduct incon-
sistent with an intent to honor the contractual obligations, Gra-
ham evaded. He kept repeating “no they weren’t complying
with the agreement” but refused to characterize such conduct as
inconsistent. He claimed at one point that he did not know the
definition of the word “inconsistent.” He attempted to retract
his last admission made in the preceding session. He testified
that he had reconsidered his testimony during the hiatus and he
now thought that perhaps, maybe, DLB had been in compliance
with other parts of the agreement. He suggested that the man-
agement’s-rights clause and jurisdiction clause might have been
complied with. In examination by the General Counsel who
asked him again whether he knew what wages DLB had paid,
he answered, “No, not really,” with complete absence of con-
viction. Counsel for the General Counsel then led him to a
couple of relatively minor contract provisions to which Graham
obligingly testified that he had no knowledge of DLB noncom-
pliance.
As stated earlier in this decision, I found Graham to be a
most unconvincing and disingenuous witness. I completely
disregard his hedging qualifications, retractions, and evasions.
I find more credible and convincing his admission that as of
October 5, when Judge Ladwig’s final gavel fell, the Respon-
dent, i.e., DLB, by virtue of its prior conduct, the pleadings in
the underlying proceedings, the proceeding before Judge Lad-
wig, and the evidence and statements of positions thereat, re-
fused to recognize the Union and engaged in pervasive non-
compliance with the agreement, including all vital contract
provisions, thereby manifesting a bald intent to repudiate the
entire NECA–Union Inside Wireman Master Agreement. Sub-
sequent briefs, motions, etc., filed with Judge Ladwig, the
Board, and the court merely reinforced what the Union was
well aware of on October 5, 1994, i.e., DLB had repudiated the
agreement, had no intention to abide by its terms, and was act-
ing a manner totally inconsistent with any intent to do other-
wise. I conclude it was not necessary that DLB engage in the
redundancy of using the magic word of “repudiation” in any
other written or oral communication thereafter.
Accordingly, I find that DLB had, by virtue of its bald con-
duct and in the factual configuration existing as of October 5,
1994, effectively repudiated the 8(f) prehire agreement, and the
Union clearly understood as much. Therefore, I find that
DLB’s liability and its successor/alter ego BEI’s potential li-
ability for losses due to contractual noncompliance terminated
on October 5, 1994.23
V. THE TANGY REINSTATEMENT—SECOND TERMINATION
A. General Statement of Law
The relevant legal principles were set forth by the Board as
follows:
A reinstatement offer to a discriminatee must be spe-
cific, unequivocal, and unconditional in order to toll back-

23 I find it unnecessary to evaluate other evidence of Graham’s post-
October 5, 1994 knowledge, such as his alleged awareness of nonunion
DLB advertisements for unit electrician jobs or other conduct after
October 5, 1994. However, wherever any credibility resolution is in-
volved, I discredit Graham.
pay. See, e.g., Holo-Krome Co., 302 NLRB 452, 454
(1991), enf. denied on other grounds 947 F.2d 588 (2d Cir.
1991), rehearing denied 954 F.2d 108 (2d. Cir. 1992); L.
A. Water Treatment, 263 NLRB 244, 246 (1982); and
Standard Aggregate Corp., 213 NLRB 154 (1974). It is
the employer’s burden to establish that it made a valid of-
fer of reinstatement to the discriminatees. L. A. Water, su-
pra, at 246–247. For a reinstatement offer to be valid, it
must have sufficient specificity to apprise the discrimina-
tee that the employer is offering unconditional and full re-
instatement to the employee’s former or a substantially
equivalent position. Standard Aggregate, supra at 154.
[Adsco Mfg. Corp., 322 NLRB 217, 218 (1996).]
Very recently, the Board again alluded to these principles in
the evaluation of whether a valid offer of reinstatement was
made to returning discriminatee strikers when it quoted Adsco
and expanded:
In addition, the Board does not evaluate a discriminatee’s re-
ply to a reinstatement offer until the respondent proves that
the offer is a valid one, i.e., consistent with the principles
above. See, e.g., CleanSoils, Inc., 317 NLRB 99, 110 (1995);
Consolidated Freightways, 290 NLRB 771, 772–773 (1988),
enfd. as modified 892 F.2d 1052 (D.C. Cir. 1989), cert. de-
nied 498 U.S. 817 (1990). [Tony Roma’s Restaurant, 325
NLRB 851, 852 (1998).]
With respect to returning striker discriminatees, the Board
elsewhere had held that where the respondent therein did not
make valid offers of reinstatement to them, the Board could not
“appropriately inquire into the reasons certain strikers had re-
fused to report to work on the reporting date.” Domsey Trading
Corp., 310 NLRB 777 (1993).
As the Union correctly observes:
An employee who accepts reinstatement to a non-equivalent
job with the employer is under no obligation to retain that po-
sition. Alaska Pulp Corp., 326 NLRB [522, 532] (1988);
Glover Bottled Glass Corp., 313 NLRB 43 (1993); enfd. 47
F.3d 1230 (D.C. Cir. 1995), cert. denied 516 U.S. 816 (1995);
Newport News Shipbuilding & Dry Dock Co., 278 NLRB
1030 (1986).
Those cases again deal with the adequacy of reinstatement of-
fers to returning striker discriminatees which, of course, are
judged by same stringent standards as applied to other adjudi-
cated discriminatees who are entitled to reinstatement.
In the Alaska Pulp case, the Board cited Glover and New-
port. Those cases involve the discriminatees’ voluntary termi-
nation or discharge from nonsubstantially equivalent interim
employment by a third party employer. In Alaska Pulp, the
Board reasoned that if a discriminatee’s termination from non-
equivalent third-party employment does not constitute a willful
loss of employment, then it should not do so when a discrimi-
natee accepts and later quits or is discharged from non-
substantially equivalent employment accepted from the respon-
dent employer. Any uncertainties or ambiguities in any com-
pliance related issues are resolved against the adjudicated
wrongdoer, Ferguson Electric Co., 330 NLRB 514, 516 (2000),
D. L. BAKER, INC. 559
citing Kansas City Refined Helium Co., 252 NLRB 1156–1157
(1980).
The Respondents do not dispute the above-cited precedent,
but rather argue a factual defense. The Respondents argue that
Tangy was tendered a valid offer of reinstatement by DLB
which he did not accept in good faith. It is argued that Tangy
accepted reinstatement at DLB only to test DLB’s good faith
and, after having been assigned a job, he finished it on the sec-
ond day and abandoned DLB to return to interim employment
elsewhere, which, in fact, he never intended to nor did sever.
Accordingly, the Respondents argue that having abandoned his
DLB job, and having failed to report back to work in person or
by telephone, Tangy was suspended. The Respondents further
argue that DLB, having then learned that Tangy had effectively
remained in the employ of another contractor during his rein-
statement at DLB and knowingly violated DLB’s policy against
dual employment, justifiably discharged him.
B. Facts
A letter signed by Dan Baker, as president of and on behalf
of “D. L. Baker, Inc.,” dated July 17, 1997, was forwarded by
U.S. certified mail to Tangy and received by him on July 24.
The letter contained an offer of “unconditional, immediate, and
full reinstatement” to his former position with “D. L. Baker,
Inc.” or, if not available, the next substantially equivalent posi-
tion. The letter requested written or telephonic acceptance and
set a reporting date at Tyco Road headquarters of DLB and, of
course, BEI, on Monday, August 4, 1997, at 6:30 a.m.
Tangy, then employed as a full time jobsite electrician by un-
ion contractor Heller Electric, Inc., first consulted union repre-
sentative Chuck Graham, having faxed the DLB letter to him.
Graham encouraged Tangy to accept the offer in order to or-
ganize the Respondents’ employees. Tangy thought it over for a
few days. He testified that he decided to return to DLB em-
ployment to organize the employees for the Union, to accept a
steadier employment at DLB, to escape sporadic employment at
Heller Electric, Inc., and to become a key employee at DLB.
This judgment was arrived at despite the fact that Tangy had 4
months’ work experience at Heller, which was a month longer
than at DLB, and that he had been employed there continuously
during those 4 months.
Tangy telephoned Graham from the Heller jobsite mobile of-
fice trailer and told him of his decision. Graham prepared a
letter of acceptance for Tangy and faxed it to him at the Heller
trailer from which Tangy faxed it to DLB. Tangy testified that
he did so pursuant to the approval of Heller’s acting foreman,
Tony DeMichael, whom he notified that he was terminating his
Heller employment to return to DLB.
Tangy testified that he telephoned Dan Baker on August 1,
after having sent the fax acceptance to verify his acceptance,
and that he spoke with him for about 5 minutes but they admit-
tedly did not discuss Tangy’s concern about steady employ-
ment.
Tangy admitted that prior to August 1, he was made aware
that DLB intended to reinstate him at his December 1993 wage
rate of $13 per hour.
Tangy admitted that before finally accepting the DLB rein-
statement on August 1, he informed Graham that he did not
want to accept reinstatement at the $13 hourly wage rate, which
was about $11 less per hour than the Heller Electric union con-
tract rate. Tangy was asked in adverse examination whether he
told Graham that he would accept Dan Baker’s offer only “to
see if Baker would take you back, because you couldn’t afford
working there.” He responded, “true” and that he “might have”
said that.
On August 4, Tangy reported for duty at Tyco Road at 6:30
a.m. as directed. He was presented with employment docu-
ments, which he filled out. Those multiple documents con-
sisted of DLB employment policies including, upon penalty of
discharge, a prohibition against “moonlighting” or employment
with another contractor while employed by DLB. Included in
one of these documents was a requirement that if he did not
have a DLB job to report to, he must report to the Tyco Road
office at 6:30 a.m. Tangy admitted that he was aware of those
policies, having read the documents. One of the policies stated
that “[T]he Company as a job shop, works on a project-by-
project basis, and there is no guarantee of continuous employ-
ment.” Tangy testified that he read that policy but it caused
him no concern and he did not discuss with Dan Baker as to
how steady DLB employment might be. Tangy asked about a
pay raise. Dan Baker told him to renew his request when he
had produced his electrician’s license. This was an unprece-
dented condition.
On August 4, Tangy was set to perform service work at
Maurice Electric, a Washington, D.C. area supplier of electrical
materials. At this time, of course, DLB was a mere shadow of
its former operation that continued on in the disguised form of
BEI, its successor and alter ego. The service work sporadically
performed for Maurice Electric was done as fulfillment of a
preceding preassets sale obligation. DLB maintained no other
ongoing work. Dan Baker suggested in rather vague testimony
that he had considered taking on a large project in Norfolk,
Virginia, with Tangy in mind, on or about the time he contem-
plated recalling Tangy. The Norfolk project, which DLB disre-
garded as impractical, clearly exceeded DLB’s capacity and
Dan Baker clearly intended that Tangy be reinstated as a DLB
employee, and not as a BEI employee, who were at that time
engaged in ongoing projects. DLB, in fact, employed only one
electrician for that quarter year, i.e., Tangy.
The parties quibble as to whether service work at Maurice
Electric constituted equivalent employment. The Union and
General Counsel argue that it was not, because Tangy had
never performed service work for DLB and had never worked
alone at a DLB jobsite. However, DLB never did maintain a
“service electrician” classification and had employed electri-
cians in service work at the same jobsites where Tangy had
worked in 1993 on new or restoration work as Tangy admitted.
The evidence fails to show that his service work at Maurice
involved any different skills, tools, or work task functions than
he had performed in 1993 for DLB in new or restoration con-
struction.
The Maurice job ended early in the morning of August 5.
Tangy testified that he started the work at 6:30 a.m. and, since
it became apparent that he would finish very quickly, he tele-
phoned the DLB Tyco Road office at 6:30 a.m. to obtain his
next assignment. He testified that no one answered, that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD560
tried again at 7 a.m. when he completed his Maurice Electric
work, and again no one answered. Tangy testified that he then
referred to a DLB communication procedure sheet and called a
variety of designated numbers but was only able to make con-
tact with Dan Baker’s home answering machine. He testified
that he left a message on it wherein he asked for his next as-
signment.
Tangy testified that at about 8:30 a.m., he telephoned the
Tyco Road office and this time an unidentified female voice
answered. Without any foundation testimony, Tangy character-
ized that person as a “secretary.” According to Tangy, he told
her of his need to contact Dan Baker for another assignment.
Tangy’s hearsay testimony as to what that unidentified voice
told him was offered into evidence, not for the truth of the ut-
terance but merely as an utterance upon which Tangy took
subsequent action. Thus, by itself, it is not probative evidence
that Dan Baker, in fact, was given Tangy’s message, that Baker
informed the “secretary” to tell Tangy that there was no further
work for him and that he should go home to await contact from
Dan Baker. The testimony was received as evidence that this is
what the “secretary” who answered the Tyco Road Telephone
told him on August 5.
Tangy testified that he felt that this instruction “made no
sense” because in his 22 years’ experience, he had never had
downtime between assignments. Yet, he had testified that he
sought reinstatement to avoid sporadic work. His own work
history diaries for a 7-year period reveal that downtime is not
that uncommon. In any event, despite his conclusion that the
“secretary’s” instructions made no sense and was contrary to
DLB’s reporting policy, he complied and nether reported to
Tyco Road nor tried to contact Dan Baker, but instead he
awaited contact from Baker.
On August 5, Tangy did not go home after he left Maurice
Electric. Instead, he reported to work at Heller Electric as soon
as he could. At Heller Electric, he resumed work as though he
had not ever quit.
There is no record in Heller’s files of any interruption in
Tangy’s employment status at Heller, which commenced on
March 31, 1997, and ended on January 6, 1998.
Tangy received a full day’s pay from Heller Electric for Au-
gust 5. There is no termination slip in Heller Electric’s record
to actually reflect Tangy’s termination, which is its usual pro-
cedure. However, William Heller, its owner and manager,
testified that it is not uncommon for union electricians em-
ployed by him to quit and return quickly, with no record of
hiatus in certain circumstances. One such example occurs
when a new job falls through. This has occurred in the past
despite its noncompliance with union hiring hall regulations.
Tangy testified initially that he had considered his Heller
Electric employment severed. Then, in cross-examination, he
strangely characterized the brief time he spent at DLB’s Mau-
rice Electric job on August 5 as a “vacation” from his Heller
job. Tangy explained that economic need caused him to get
back to Heller Electric as soon as he could on August 5.
Dan Baker claims to have communicated with Heller Elec-
tric on August 5 in order to ascertain Tangy’s whereabouts and
was informed Tangy was employed there.24 Dan Baker made
no attempt to telephone Tangy at his unlisted boarding home
telephone. Contrary to Tangy, Dan Baker testified that Tangy
failed to list his telephone in his employment documents.
However, the Respondents, with no clear explanation, were
unable to produce that particular document. Somehow, that
extremely critical document was lost, despite the successful
retention of other employment documents favorable to DLB’s
position. I must credit Tangy on this point.
Graham testified that in August or September 1999, he had
learned that Tangy had returned to the employ of Heller Elec-
tric after he “quit” his employment at DLB. He testified that
Tangy told him he had “quit” his DLB job because there was
no work for him.
By letter dated August 6, 1997, DLB notified Tangy of his
suspension pending a decision to terminate. The letter ac-
knowledged that Tangy had, in fact, telephoned the DLB office
on August 5, at 9 a.m. It asserted that he had been instructed,
inter alia, to report back later that day or to leave a telephone
number where he could be reached for “the next available job.”
It asserted that having failed to follow these instructions or to
leave messages as to his whereabouts, and his “failure to oth-
erwise follow Company policies,” he was suspended. A deci-
sion date was set for Monday, August 11, and he was invited to
provide a written explanation.25
Why it was such an alleged dereliction of duty or act of dis-
loyalty, when there was no work available for Tangy for any
foreseeable time by DLB, is unexplained. Dan Baker’s August
6 letter corroborates Tangy’s claim to have at least called the
Tyco Road office on the morning of August 5. Also, by virtue
of that letter, DLB conceded that someone in that office who
answered the telephone was authorized to give Tangy instruc-
tions. There is a dispute as to what that person instructed.
Tangy’s testimony is uncontradicted as to what that person
instructed, as the Respondents did not adduce contradictory
testimony. Accordingly, I must credit Tangy.
Upon consultation with the Union, a response letter was pre-
pared by its attorney which set forth Tangy’s version of the
facts as he has testified herein and which was faxed to DLB on
August 11.
Tangy telephoned Dan Baker on August 11 to inquire
whether Baker had his August 5 and 6 timesheets necessary for
his paycheck. They had a conversation in which Tangy admit-
tedly informed Dan Baker that he had been employed by Heller
Electric prior to accepting DLB reinstatement and was em-
ployed there on August 11. It is Tangy’s uncontradicted testi-
mony that Dan Baker expressed surprise that Tangy would
want to give up employment at a higher paying union contrac-
tor and that if he had a union contractor job, he ought to stick

24 Since Tangy had finished his work at Maurice Electric and there
was no other work available for him, it is unclear why Dan Baker felt
the need to track down Tangy at Heller Electric, Inc.
25 Of course, even if DLB did not know Tangy’s home telephone
number, by the afternoon of August 5, it knew he was working at the
Heller jobsite and could obviously be reached there. Dan Baker made
no such attempt to do so because DLB had no other work then available
for Tangy. The August 6 letter failed to explicitly refer to a
“moonlighting” violation.
D. L. BAKER, INC. 561
with it. It is undisputed that Dan Baker did not offer any DLB
job assignment to Tangy during that conversation nor, as DLB
manager, could he have done so. As manager for BEI, he, of
course, would have been able to use Tangy on ongoing BEI
jobs. He offered none to Tangy.
On August 15, 1997, Tangy received DLB’s termination let-
ter. The causes given therein were a reassertion of the policy
violations set forth in the August 6 letter and violation of com-
pany policy by accepting work from Heller Electric on August
5, by failing to report to work, and by failing to notify DLB of
his “whereabouts” without requesting time off. The question
that naturally arises and which was never answered is time off
from what, since DLB had no other ongoing work.
C. Analysis
From the foregoing facts, the Respondents challenges the
bona fides of Tangy’s acceptance of DLB’s reinstatement offer
and argues that he never really wanted reinstatement and volun-
tarily abandoned his job. The facts raise a very strong suspi-
cion, if not an inference, that Tangy, at the very least, was not
delighted at the prospect of returning to DLB, especially for a
$13 hourly wage rate, and that he did so solely at the behest of
the Union for organizing purposes. The facts arguably support
a suspicion, if not an inference, that both Tangy/Union and
DLB were putting each other to the test. The question is then,
who failed the test or, put another way, who bluffed whom?
Tangy’s motivation, the bona fides of his acceptance, and the
issue of his failure to appear need not be evaluated because I
conclude that the Respondents, i.e., DLB and BEI, its alter ego
and disguised continuance, did not even make a facially valid
offer of reinstatement to Tangy.26
DLB and BEI were required to offer reinstatement to Tangy.
Clearly, only DLB did so. The offer amounted to a mere 1-1/2
day job. By limiting Tangy to DLB pickup work, it isolated
him from the Respondents’ other employee organizing targets.
BEI could not have logically offered reinstatement to Tangy
without conceding at least its successorship relationship, which
it has continued to deny. The letter, signed by Dan Baker as
DLB manager on DLB stationery, then explained to Tangy as
consisting of service work and, as explained in the policy
statement, work which was subject to short-term duration and
not available on a consistent basis.
As the facts of the reinstatement conditions unfolded and
manifested themselves to Tangy, even if he had not been privi-
leged to reject the offer as facially invalid, which I find he
could have done so, I further find that he would have been justi-
fied in terminating the DLB job as it was not substantially
equivalent to his 1993 DLB job. A substantially equivalent job
in 1997 would have been a job at BEI.
Furthermore, the hourly wage rate of $13 in itself renders
DLB’s reinstatement offer invalid. The thrust of the remedial
order is to restore Tangy to the same or substantially equivalent
job and the same pay he would have been receiving had he
remained in the Respondents’ employ in 1997. Such remedy is

26 As noted above, I do credit Tangy as to his account of the tele-
phone conversation. I also credit him as to the listing of his telephone
number in the reemployment document.
not satisfied by payment of the 1993 wage rate if the facts
demonstrate that Tangy would have been given wage raises
subsequent to December 1993. C. F. Airfreight, Inc., 276
NLRB 481, 483 (1985). AVJ Graphics, Inc., 282 NLRB 277
fn. 1 (1986). Dan Baker conceded that he regularly grants
wages to good electricians who remain in his employ. Judge
Ladwig found Tangy’s work quality to have been considered by
Dan Baker to be good. Clearly, Tangy would have been granted
raises in his wage rate. If there is any possible doubt of it, that
doubt, as noted above, must be resolved against the wrongdoer.
Accordingly, I find that DLB’s offer of reinstatement was inva-
lid and that Tangy’s intentions and motivations of acceptance,
and his subsequent termination, even if considered voluntary,
do not prejudice his right to such valid offer and, in its absence,
continued backpay.27
VI. THE TANGY BACKPAY
A. General Statement of Law
A fine summation of pertinent legal precedent has been set
forth recently by Administrative Law Judge George Aleman
whose rulings, findings, and conclusions were adopted by the
Board in United States Can Co., 328 NLRB 334, 337 (1999):
It is well-settled that the finding of an unfair labor
practice is presumptive proof that some backpay is owed,
and that in a compliance proceeding the sole burden on the
General Counsel is to show the gross amounts of backpay
due, that is the amounts the employees would have re-
ceived but for the employer’s unlawful conduct. NLRB v.
Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1975);
Basin Frozen Foods, 320 NLRB 1072, 1074 (1996). In
determining the appropriate formula for arriving at gross
backpay figures, the Board is vested with a substantial de-
gree of discretion inasmuch as it is impossible to arrive at
precise figures because the discriminatees were not em-
ployed during the backpay period. Canterbury Educa-
tional Services, 316 NLRB 253, 254 (1995), citing NLRB
v. Brown & Root, 311 F.2d 447 (8th Cir. 1963). Any for-
mula which approximates what discriminatees would have
earned had they not been discriminated against is accept-
able if it is not unreasonable or arbitrary in the circum-
stances. La Favorita, Inc., 313 NLRB 902 (1994). When
a respondent disputes the accuracy of the gross backpay
figures in a compliance specification or the premises upon
which they are based, it must in its answer “specifically
state the basis for such disagreement, setting forth in detail
the respondent’s position as to the applicable premises and
furnishing the appropriate figures.” A failure to ade-
quately explain its denial of matters over which it is pre-
sumed to have knowledge shall result in the allegation in
question being deemed admitted as true, and will preclude
a respondent from presenting evidence to refute said alle-
gations. See Rule 102.56(b) of the Board’s Rules and
Regulations.

27 As found above, Tangy should have been paid the NECA–Union
Inside Wireman Master Agreement rate applicable in December 1993,
which was far in excess of $13. See further discussion below regarding
gross backpay due Tangy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD562
Once the gross backpay amounts are established, the
burden shifts to the employer to establish facts that would
negate or mitigate its liability. NLRB v. Maestro Plastics,
354 F.2d 170 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966). In short, the burden is on the employer to show,
through a preponderance of credible evidence, Browning
Industries, 221 NLRB 949, 951 (1975), that no backpay is
owed or that what is alleged to be owed should be dimin-
ished because the discriminatee was unavailable for work,
or neglected to make reasonable efforts to find interim
work. Inland Empire Meat Co., 255 NLRB 1306, 1308
(1981), enfd. mem. 692 F.2d 764 (9th Cir. 1982). It
should be noted, however, that a backpay claimant is not
held to the highest standard of diligence in seeking interim
employment, but is only required to have made reasonable
exertions. Thus, an employer does not satisfy its burden
showing that no mitigation took place because the claim-
ant was unsuccessful in obtaining interim employment, by
showing an absence of a job application by the claimant
during a particular quarter or quarters of a backpay pe-
riod, or by showing the claimant failed to follow certain
practices in his job search, e.g., reading and responding to
job advertisements in newspapers. S.E. Nichols of Ohio,
258 NLRB 1, 11 (1984). Finally, any uncertainties or am-
biguities must be resolved against the wrongdoer whose
conduct made such doubts possible. Teamsters Local 469
(Coastal Tank Lines), 323 NLRB No. 23 [210] (1997).
With these principles in mind, I now address the issues at
hand.
B. Gross Backpay
Tangy’s backpay entitlement runs from the date of his dis-
charge on December 1, 1993, to the date of a stipulated valid
offer and rejection on September 28, 2000.28
The Respondents argue that the gross backpay alleged in the
specification is conditionally premised upon the union contract
wage rate and that such premise is invalid if it is found that
repudiation occurred not in 1997, but in 1994. The General
Counsel argues that the issue of gross backpay is res judicata in
consequence of the Board’s Supplemental Decision and Order
of January 2000, which granted partial summary judgment.
The Board found that the Respondents had, by virtue of their
defective answers, admitted paragraphs 17, 18, 19, 24, 23, and
32 of the compliance specification “with respect to formulae
and calculations of gross backpay for all claimants and interim
earnings and calendar quarter backpay for claimants who
worked for the Respondent D. L. Baker, Inc. t/a/ Baker Elec-
tric.” The Board then ordered the Regional Director to issue a
notice of hearing “. . . which shall be limited to the taking of
evidence concerning the remaining allegations of the compli-
ance specification.”
Paragraphs 32(a)–(e) sets forth the formula for calculation of
Tangy’s gross backpay and, by incorporation by reference in
exhibit R, the wages he would have received had he been con-
tinuously employed by the Respondents, as adjusted by wage

28 The stipulation was made without prejudice to the Respondent’s
position as to the August 4, 1997 reinstatement.
rate increases set forth in the Inside Wiremen agreement. Thus,
the General Counsel argues that, regardless of their answers as
to the repudiation date of the agreement, the Respondents,
nonetheless, are deemed to have admitted that Tangy would
have been paid at the contract rate had he not been discharged
up to the tolling of his backpay in September 2000. Exhibit R
set forth gross backpay for calendar quarters up through the
fourth calendar quarter of 1998. It was amended at hearing to
encompass calendar quarters up to September 2000.
I must agree with the General Counsel that the Board Order
of January 2000 is clear on its face, unconditional, and not lim-
ited to gross backpay formula. Rather, it holds that Tangy’s
gross backpay as calculated in the specification is admitted,
without qualification, and is not a litigable issue before me.
The Respondents argue that their answers contesting the con-
tract repudiation date necessarily preclude an admission that
Tangy would have been paid the union contract rate subsequent
to October 5, 1994, at the latest. It certainly would have been
logically consistent for the Respondents to have denied that
allegation in paragraph 32. But they did not do so. By virtue
of a defective answer, the Respondents admitted that Tangy
would have continued on at the contract rate.
Furthermore, continued payment of Tangy at the contract
rate and an earlier repudiation of the contract are not mutually
exclusive concepts nor would it be a contradiction in terms.
The Respondents may or may not have done so. They have not
denied in their answers that they would have continued to pay
him as an individual those higher wages for reasons unrelated
to contract compliance as a whole. As found above, Tangy
certainly would have been granted some raises above the $13
rate at which he had been employed, even apart from considera-
tion of DLB’s obligation to have paid him the much higher
Inside Wiremen agreement rate in December 1993. Assuming,
arguendo, the contract rate would not have been given to
Tangy, he subsequently would have received higher than $13.
It is an open question what that amount would have been, as it
is an open question whether the Respondents would have re-
duced Tangy’s pay upon agreement repudiation in October
1994 had it complied with the agreement prior to that date. All
doubts, as noted above, must be resolved against the wrongdoer
in the interest of a vindication of public policy.
Accordingly, I must find that Tangy would have continued to
be paid the applicable contract rate, notwithstanding contract
repudiation as a whole. I further conclude that in the absence
of any evidence that the Respondents would have reduced
Tangy’s pay in the period subsequent to its admission, i.e.,
fourth quarter 1998, and to what extent it would have been cut,
I must find that the same formula and calculation premised
upon the contract rate beyond the fourth quarter of 1998 is rea-
sonable and appropriate, even if the argued specification calcu-
lation terminated as of that quarter. In any event, the Respon-
dents’ defective answer admits the appropriateness of the Gen-
eral Counsel’s formula, calculations, and the premise for the
calculation, i.e., continued payment to Tangy of Inside Wire-
men agreement wage rates.
Accordingly, I find that the gross backpay due Tangy is ap-
propriately set forth in the General Counsel’s calculation as that
D. L. BAKER, INC. 563
premised upon the Inside Wiremen agreement up to the tolling
of backpay in September 2000.
C. Mitigation
1. Overview
The Respondents assert that Tangy failed to mitigate his loss
of backpay by willfully concealing or misstating interim earn-
ings in his mandatory reports to the compliance officer, by
quitting interim employers, by avoiding nonunion employers,
and by losing work opportunity through habitual sleep-related
tardiness. The Respondents also allege that the calculation of
interim employment earnings by the compliance officer failed
to include interim overtime employment.
As noted above, it is the Respondents’ heavy burden to prove
by a preponderance of credible evidence that the gross backpay
should be diminished because of the discriminatee’s failure to
mitigate damages by failing to make reasonable efforts to do so.
United States Can Co., supra. The Respondents rely virtually
entirely on documents subpoenaed from Tangy including, inter
alia, his diary-type journals, his telephone logs, paychecks, and
a 14-day tediously oppressive, persistent, grueling adverse ex-
amination of Tangy as to his month-by-month, even week-by-
week, effort to find and keep interim employment with about
20 employers over a 7-year period of time. As noted above,
Tangy’s demeanor gives rise to much concern. However, given
this massive assault upon his credibility, it is understandable
how his patience must have been pushed to the limit, resulting
in his disconcerting demeanor and seeming desire to be free of
litigation that was to his benefit. The Respondents have argued
that his entire testimony be struck because of his acceptance of
union reimbursement for wages lost due to testifying about
midway through his testimony. However, without his testi-
mony, the Respondents would have virtually no evidence with
respect to their mitigation defense.29
Tangy’s meticulously detailed daily journals produced the
ammunition for the Respondents’ attack upon his search for and
maintenance of employment efforts. In these journals and in
his testimony, Tangy was very forthcoming. It is he who dis-
closed his terminations, his tardiness, his voluntary quits of
employment, etc. Had he been less candid and less detailed in
his journals, the Respondents would have been hard pressed to
prolong his examination beyond a few fruitless days.
As I noted above, Tangy’s demeanor was far from reassur-
ing. However, based upon my observation of him as a witness
for almost 15 days of testimony, I conclude that he was a basi-
cally honest and responsive witness with respect to his attempts
to find and keep interim employment and as to his expenses for
same.
2. Willful concealment
In microscopic examination of Tangy’s 7-year employment
search and maintenance history with almost 20 employers, the
Respondents discovered some incidents when Tangy failed to
include some interim earnings in his obligatory quarterly re-

29 For the reasons stated earlier, and because Tangy’s testimony was
elicited for his own benefit and not the Union’s direct benefit, I would
not strike his entire testimony because of this reimbursement.
ports to the compliance officer. I find that these incidents are
isolated, involve extremely brief periods of interim employ-
ment, and involve relatively insignificant, if not trivial amounts
of earnings.
In one instance, Tangy listed a higher paying employment
which actually overlapped into an employment period at a
lower paying job resulting in his reporting more earnings than
he had actually received.
Tangy’s reporting delinquencies were discovered during ad-
verse examination of Tangy as to his diaries, bank checks, and
other records subpoenaed by the Respondents. Based upon
information thus elicited by the Respondents, the General
Counsel was constrained to amend the specification to increase
expenses that Tangy failed to report accurately and also to re-
flect an over-reporting of interim earnings, as well as some
minor under-reporting of interim earnings. Clearly, Tangy’s
reporting lapses, which were against his own interests, were not
willful but were obviously inadvertent. I conclude that those
few isolated nondisclosures of brief periods of interim earnings
were also inadvertent and not willful.30
3. Interim employment; reasonable search for work;
work avoidance; and retention of work
a. Facts
The Respondents argue, citing Ferguson Electric Co., supra,
that Tangy was obliged to follow his regular method of seeking
employment after his discharge that he had followed prior to
his DLB employment, which had included nonunion employ-
ers. The Respondents argue further that Tangy had quit his
employment at several employers and, therefore, back payment
be tolled because the General Counsel failed to prove that those
jobs were burdensome or more arduous in some way.
Tangy primarily relied on the Union’s referral system for in-
terim employment. He also resorted to out-of-town IBEW
locals. He utilized union publications and a network of fellow
electricians for word-of-mouth work opportunities. He resorted
to out-of-town work when local work was not available. He
registered at various state employment agencies.
Tangy quit his first interim employment at Fishbach &
Moore, Inc. in West Virginia on August 11, 1994, to seek local
work. That job entailed lodging and travel expenses. He quit
the U.S. Postal Service job in June 1995 that paid $10.54 per
hour, and a job at Northside Electric in June 1995 that paid only
80 percent union wage scale, to seek higher paying union scale.
He succeeded after a few days. Following 43 weeks of em-
ployment at Triangle Electric in Detroit, Michigan, Tangy quit
on June 19, 1996, to return home to Waldorf, Maryland, to
search for local work. There is a hiatus in the Triangle Electric
employment. On one occasion, with his foreman’s permission,
he returned to Maryland to retrieve necessary clothing. From
May 31 through June 11, he returned to Waldorf, Maryland,
during which period he did some local work but during which
he also rejected available local work opportunity for personal

30 Some such employment was at nonequivalent work that he would
not have been obliged to accept and from which he could properly have
quit, e.g., U.S. Post office mail-sorting employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
reasons, e.g., maintenance on a townhouse he owned.31 The
General Counsel concedes that for the second quarter of 1996,
Tangy’s interim earning offset must be increased to account for
48 hours of rejected available local work.
Tangy obtained substantially equivalent local employment at
American Combustion on August 1, 1996, which was repre-
sented to him to be a 4-week job. However, friction developed
and after a confrontation between him and the foreman over the
quality of his work performance, not moving 300 pounds of
metal fast enough, and/or his tardiness, he quit 1 week before
the project was supposed to end. On August 29, he obtained a
union hiring hall referral to a job at Truland Systems Corp. at
the Pax River Navel Base, which started on September 3 and
which is conceded to be substantially equivalent employment.
Tangy quit that job on October 11, 2 weeks prior to its actual
conclusion. Tangy testified that he quit that job to avoid a pos-
sible transfer to a football stadium job, which would necessitate
substantial overtime hours. Tangy testified such overtime
would interfere with extensive rehabilitation therapy necessi-
tated by a knee injury he had suffered when employed at Trian-
gle Electric. He was unemployed for 6 weeks thereafter. There
is no evidence that the stadium job actually came to fruition or
that Tangy actually would have been offered that work. There
is no evidence that any other work was available for Tangy
after the conclusion of all work at the Pax River jobsite. How-
ever, Tangy could have worked 80 additional hours in the 3d
quarter of 1996 if he had stayed on the Pax River job, which
should be added to the interim earnings offset.
On January 12, 1998, Tangy applied for work through
Tradesmen International, which subsequently referred him to a
job on February 19, 1998. Thereafter, on March 27, Tangy, for
unknown reasons, requested that Tradesmen put him on its
inactive status. However, there is no evidence that substantially
equivalent work was available through Tradesmen or anywhere
else. When employed at Delta Electric for $16 per hour, Tangy
left that job to obtain a union referral which actually resulted in
higher paid employment with a union contractor.
The next calendar quarter involving a voluntary termination
occurred in the second quarter of May 2000. Tangy was em-
ployed by Gleeson Electric from September 28, 1999, through
May 12, 2000. He quit on May 12 to travel to Michigan to look
for work despite the fact that he had no job waiting for him
there. As the General Counsel concedes, he voluntarily in-
curred the loss of 40 hours of substantially equivalent local
employment, which increases his interim earnings offset by 40
hours.
The record reflects instances of small increments of time, too
numerous to discuss herein, when Tangy willfully incurred the
loss of interim earnings by tardiness, early work departures, and
brief absences for personal reasons, including a desire for more
sleep. Contrary to the General Counsel and the Union, I find
that these willful and grossly negligent work avoidances neces-
sitate an increase to the interim earnings offset claimed by the
General Counsel in the backpay specification, as amended at
trial.

31 Tangy was domiciled in a boarding house.
The Respondents argue that a further increase in interim
earnings offset is due for periods of time Tangy had been dis-
charged from three interim jobs for tardiness or absenteeism—
Electrical Corp. of America, July 1995; Valid, March 1999,
AVA Electric, July 1999—and for a layoff from Varco/Marc in
June 1999 for medical reasons. The layoff from Varco/Marc
was the consequence of medical problems arising from a carpal
tunnel syndrome condition that arose as the result of previous
interim employment. Those medical problems did not prevent
Tangy from subsequently seeking and obtaining equivalent
with J. E. Richards. Thus, his condition did not remove him
from the labor market for a significant time. In any event, he
would not have suffered the injury had he not been forced to
seek interim employment because of his unlawful discharge.
On July 9, 1999, Tangy was discharged from AVA for fail-
ing to report in to work for 1 day, July 8, having worked 8-hour
days from June 28 to July 7. The Respondents did not adduce
evidence as to whether Tangy had been on notice that a failure
to appear for work for 1 day would result in his discharge. The
remaining discharges were premised upon tardiness or absen-
teeism. It is unclear from the record precisely the remaining
duration of the jobs and the extent of interim employment that
was lost because of these terminations.
On about a half-dozen occasions, Tangy declined job refer-
rals from the Union.32 In September 1995, he turned down a 6-
week referral in order to obtain a longer term employment,
which he did in fact obtain in Michigan for a period of almost
10 months. A declined referral in August 1996 resulted in the
acceptance of another referral on the same date to Truland
Electric. Tangy declined a referral on March 12, 1997, but the
Respondents failed to elicit from Tangy the reasons for his
action.
Tangy turned down two referrals on March 25, 1997, i.e.,
Central Intelligence Agency headquarters in McLean, Virginia,
and a jobsite at the Federal Triangle in downtown Washington,
D.C. He did so because he claimed that parking facilities were
unavailable or inadequate and traffic was intolerable. Examina-
tion of Tangy did not seek to and did not establish that substan-
tially equivalent inconveniences existed at DLB jobsites. Un-
der Board law, I am constrained to resolve all doubts in
Tangy’s favor.
On March 27, 1997, Tangy declined a referral to Marlin
Electric because of the overtime involved. However, he re-
turned to the union hiring hall and immediately obtained a re-
ferral to 43 weeks of steady employment at Heller Electric,
thereby resulting in no willful loss of earnings. On April 2,
Tangy declined a referral but he could not recall the circum-
stances. The Respondents failed to establish that the referral
was to a substantially equivalent job of any significant duration.
Again, any doubts must be resolved in Tangy’s favor. On April
6, Tangy turned down a job referral to an Ashburn, Virginia
jobsite because he was ill with flu-like symptoms. The Re-
spondents again failed to establish that the job was for any sig-

32 It is unnecessary to discuss referrals to jobs that were manifestly
nonequivalent, e.g., out-of-state jobs requiring lodging away from
home.
D. L. BAKER, INC. 565
nificant duration. On April 19, 1999, he obtained a referral to
Varco/Marc which he accepted.
b. Analysis
Based upon the entire history of Tangy’s work search and
work retention record, I must find that except for the limited
areas specifically noted above, the Respondents have failed to
prove that he willfully avoided substantially equivalent work or
had culpably failed to retain substantially equivalent work. The
Respondents erroneously equate substantially equivalent em-
ployment to the wage scale and benefits actually paid to Tangy
by DLB in December 1993. However, had it not been for
DLB’s adjudicated unlawful conduct, Tangy would have been
paid not a mere $13 per hour but the very much higher union
contract rate of $21.45, with successive raises as well as having
had all union contract fringe benefits. To impose upon Tangy
an obligation to seek and retain jobs paying significantly less
than the union wage scale and/or without union contract bene-
fits, would be to allow the Respondents to profit by DLB’s
unlawful conduct.
Accordingly, I find that Tangy’s obligation was to seek and
retain the substantially equivalent employment that DLB would
have afforded him in December 1993 had it not violated the
Act.
Accordingly, despite the fact that Tangy had sought and ob-
tained nonunion jobs before his DLB employment, I find that
he was not obliged to search out such employment that was not
substantially equivalent to what he was due at DLB. Further-
more, after his discharge, since he was not obliged to accept
non-equivalent employment in the first place, he was free to
quit such employment and was not culpable if discharged from
same. Newport News Shipbuilding, supra; Alaska Pulp Corp.,
supra. If anything, Tangy’s reliance and focus upon union
contractor employment increased his prospect of obtaining
greater interim earnings rather than diminishing it. The Re-
spondents adduced no independent evidence of any substance
to demonstrate that actual employment for any specific period
of time was available to Tangy which was lost to him because
of his lack of reasonable diligence. The Respondents even
failed to establish with any certainty the specific amount of
work that actually occurred at most of the jobsites from which
Tangy quit or was discharged.
With respect to voluntary termination, before the burden of
proof shifts to the General Counsel to show that the job was
burdensome or arduous or that quitting was reasonable, the
Respondents must prove that such interim employment was
substantially equivalent. Minette Mills, Inc., 316 NLRB 1009,
1010 (1995). Even if an equivalent job is involved, a discrimi-
natee is free to quit if it is unprestigious, annoying, or disrup-
tive to his private life. Newport News Shipbuilders & Dry
Dock Co., supra, at 1033.
With respect to employment at Fishback & Moore in Clarks-
burg, West Virginia, and Triangle Electric in Detroit, Michigan,
this was not equivalent employment for the obvious reason that
it entailed living away from home with incurred lodging and
travel expenses. U.S. Postal Service work is patently not
equivalent work. I find that Tangy was justified in leaving his
Northside Electric out-of-town job which paid only 80 percent
of equivalent wages due him to seek out and find a higher pay-
ing job 3 days later.
With respect to American Combustion, it is unclear form the
record just what part absenteeism played in the deterioration of
Tangy’s relationship with his foreman. Again, Tangy gets the
benefit of the doubt since the Respondents failed to clear it up.
I conclude that a hostile working relationship is sufficient justi-
fication for Tangy to have quit and does not constitute an un-
reasonable reason to quit nor does it constitute a willful loss of
earnings. With respect to the abandonment of Tradesmen as a
job referral source, there is no evidence that any actual equiva-
lent work was available through it or elsewhere at that period of
time or that Tangy willfully avoided any actual substantially
equivalent employment opportunity.
A mere discharge from substantially equivalent interim em-
ployment of itself does not constitute a willful loss of employ-
ment. The Respondents must show deliberate or gross miscon-
duct by the discharged employee to prove willful loss of em-
ployment. Minette Mills, Inc., supra at 1010; Ryder System,
302 NLRB 608, 610 (1991), enfd. 983 F.2d 705 (6th Cir. 1993).
I conclude that Tangy’s lack of punctuality and absenteeism
was not proven so gross as to constitute a willful intention to
incur a loss of equivalent employment by “courting discharge.”
Basin Frozen Foods, 320 NLRB 1072, 1077 (1996). Newport
Newport News Shipbuilding, supra at 1030 fn. 1. I further con-
clude that there is a lack of probative evidence as to the actual
impact the early termination of these jobs had upon his interim
earnings.
With respect to Tangy’s failure to accept certain job referrals
from the union hiring hall, the Respondent not only has the
burden of proving that the jobs were substantially equivalent
(not just with respect to wage rate) but that Tangy’s conduct
was unjustifiable. Newport News Shipbuilding, supra at 1033.
I find that the Respondents have not met that burden of proof
for the reasons set forth above. Further, the Respondents have
not proven that the jobs declined were substantially equivalent
other than wage rate, that they actually commenced, the dura-
tion of the job, and what amount of earnings were lost by
Tangy’s nonacceptance of those referrals.
4. Overtime as offset
The compliance specification set forth interim earnings cal-
culated from Tangy’s paycheck stubs from interim employers
for every quarter for the entire backpay period. These stubs
distinguish overtime earnings from regular or “straight” time
earnings. As the General Counsel observes in the brief:
Board law establishes that in offsetting earnings from interim
employers, like hours are offset from like hours. Only interim
earnings based on the same number of hours as would have
been available at the gross employer is offset against gross
back pay. United Aircraft Corp., 204 NLRB 1068, 1073–
1074 (1973); E. D. P. Medical Computer Systems, 293 NLRB
857, 858 (1989).
I agree with the General Counsel that, by virtue of the Board’s
Order granting summary judgment that accepted the calculation
of only regular hours for gross pay Tangy would have earned at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
DLB, the compliance officer properly excluded any interim
overtime as offset to interim earnings.
5. Expenses
Expenses that a discriminatee incurs in searching for and
maintaining interim employment beyond what he would have
incurred in employment at the gross employer must be sub-
tracted from the interim earnings offset, e.g., travel, lodging,
telephone, food, etc. Aircraft & Helicopter Leasing, 227
NLRB 644, 649 (1976); UARCO, Inc., 294 NLRB 96, 102
(1989).
The General Counsel seeks expenses offset to the interim
earnings based upon receipts for expenses incurred in the
search for and maintenance of work stipulated into evidence, as
well as telephone logs and bills. The compliance officer testi-
fied that she calculated lodging expenses from Tangy’s quar-
terly questionnaire submitted to her during the investigation, as
well as receipts produced at trial pursuant to the Respondents’
subpoenae. Where there was a discrepancy between the re-
ported amount and the receipts in evidence, she calculated the
higher amount and resolved all doubts in favor of Tangy. I
conclude that she acted properly. Based upon Tangy’s gener-
ally cooperative and candid, if not pleasant, demeanor in pro-
ducing and explaining his journals and receipts, I credit his
testimony. See Coronet Foods, Inc., 322 NLRB 837 (1997).
The General Counsel also seeks the differences in union dues
assessed upon Tangy by out-of-town local unions and that
which was assessed by the Charging Party Union, as evidenced
by paycheck stubs. The General Counsel in the brief withdraws
all claims for out-of-town meals expenses inasmuch as Tangy
candidly admitted in adverse examination that he most likely
spent as much money upon food when employed locally as he
did when employed out of town. The totality of interim em-
ployment expenses now claimed is $17,464.55, down from
about $25,000 originally claimed in the original compliance
specification in consequence of evidence adduced at trial.
The Respondents challenge the claim for Tangy’s out-of-
town lodging expenses and related expenses, claiming that he,
by choice, took on a “nomadic” lifestyle. I find that the record
fails to support that position. Tangy maintained his residence
in Maryland and returned there for such necessities as renewing
his driver’s license and maintaining a townhouse. He rented a
room in a boarding house in Maryland and was a registered
Maryland voter. Tangy credibly testified that he traveled out of
state to seek jobs became of the dearth of local employment. I
find that he is entitled to lodging, laundry, telephone, travel,
mileage, higher union dues, highway tools, and medical ex-
penses incurred as a result of out-of-town interim employment
as claimed by the General Counsel.
I reject the Respondents’ argument that Tangy voluntarily
took up a so-called nomadic lifestyle and, therefore, should
bear the brunt of expenses entailed in out-of-town work. The
Respondents ignore the fact that Tangy was put in the position
of hunting for work wherever he could because of DLB’s
unlawful conduct. Having forced Tangy into a work search, the
Respondents have little standing to criticize Tangy for seeking
out and accepting nonequivalent, out-of-town work, notwith-
standing inherent additional expenses, including return visits to
his residence in Maryland. The Respondent have failed to
prove that by doing so, Tangy willfully avoided substantially
equivalent local work that was clearly available at known em-
ployers for a reasonably certain period of time for which fully
equivalent pay, benefits, and fully equivalent conditions of
employment would have been afforded with some degree of
certainty. Accordingly, I find that the General Counsel’s ex-
penses claim, as set forth in the brief by calendar quarters, for
lodging, transportation, telephone, union dues and other inci-
dentals expenses necessary to seek and maintain interim em-
ployment is fully warranted.
D. Conclusions
I find that the calendar quarter calculations set forth in ap-
pendix F of the General Counsel’s brief as an alternative pro-
posed remedy comport with my conclusions above and with my
independent review of the record. I hereby adopt those calcula-
tions in my findings and incorporate it in this decision as ap-
pendix A.33
I find that for the entire backpay period, Tangy is due a net
backpay of $85,407.66, after having subtracted net interim
earnings of $249,514.24 ($266,978.74 interim earnings minus
$17,464.55 expenses) from a gross backpay he would have
earned at the Respondents of $331.430.40. I also find that he is
due $217.35 for medical expenses incurred in interim employ-
ment in the first quarter of 1996.34
VII. FUND CONTRIBUTIONS
Compliance specification paragraph 37 and its subsections
set forth a claim for payments into seven benefits funds that
were obliged to have been made by the Respondents on behalf
of Tangy during his period of employment under the terms of
the NECA–Union Inside Wireman Master Agreement for the
period up to its repudiation, which it is claimed by the General
Counsel in the specification to be May 28, 1997. The funds are
designated in the agreement as Welfare Trust Fund (Welfare
Fund), article VII; Pension Trust Fund (Pension Fund), article
IX; Individual Account Fund (IAF), article XII; Joint Appren-
ticeship and Training Committee (JATC), article VII; Labor
Relations Cooperation Fund (LMCF), article XIX; and National
Labor-Management Cooperation Fund (NLMCF), article
XVIII; and National Electrical Benefit Fund, article VI.
As found above, the contract was repudiated as of the com-
mencement of October 5.35 The record evidence supports the
General Counsel’s calculations in the brief as to what the Re-
spondents should have paid to the remaining funds on Tangy’s
behalf. I fix the termination period of this debt as the third
quarter of 1994. I consider the loss in the fourth quarter of
1994 to be de minimis. Accordingly, based upon the record
evidence and my findings as to interim earnings, I find that the

33 The Union and the General Counsel, contrary to my findings,
would not add to interim earnings offset those numerous “minute in-
crements” of worktime lost by Tangy due to persistent tardiness or
early departures. The alternate remedy does calculate an offset.
34 This figure of net backpay is substantially lower than a claim, at
one point in the trial, for over $121,000 in net backpay. The General
Counsel in the brief seeks a net backpay claim of $95,278.21
35 The LMCF and NLMCF funds are not applicable to 1993–1994.
D. L. BAKER, INC. 567
Respondents DLB and BEI owe the following amounts to the
respective funds:
HOURS
WORKED
GROSS
WELFARE
FUND
INTERIM
EMPLOYER
CONTRIB.
NET
WELFARE
DUE
4th Qtr./93 160 $ 257.60 $ 90.17 $ 167.44
1st Qtr./94 520 837.20 707.60 126.61
2d Qrt./94 520 837.20 682.64 154.56
3d Qrt./94 520 837.20 747.04 90.16
$ 538.77
HOURS
WORKED
GROSS
PENSION
FUND
INTERIM
EMPLOYER
CONTRIB.
NET
PENSION
DUE
4th Qtr./93 160 $ 128.00 $ 44.80 $ 83.20
1st Qtr./94 520 416.00 351.60 64.40
2d Qrt./94 520 416.00 339.20 76.80
3d Qrt./94 520 416.00 371.20 44.80
$ 269.20
HOURS
WORKED
GROSS
IAF
FUND
INTERIM
EMPLOYER
CONTRIB.
NET
IAF
DUE
4th Qtr./93 160 $ 272.00 $ 95.20 $ 176.80
1st Qtr./94 520 884.00 747.15 136.85
2d Qrt./94 520 884.00 720.80 163.20
3d Qrt./94 520 884.00 788.80 95.20
$ 482.05
HOURS
WORKED
GROSS
JATC
FUND
INTERIM
EMPLOYER
CONTRIB.
NET
JATC
DUE
4th Qtr./93 160 $ 24.00 $ 8.40 $ 15.60
1st Qtr./94 520 78.00 65.93 12.08
2d Qrt./94 520 78.00 63.60 14.40
3d Qrt./94 520 78.00 69.60 8.40
$ 50.48
HOURS
WORKED
GROSS
NEBF
FUND
INTERIM
EMPLOYER
CONTRIB.
NET
NEBF
DUE
4th Qtr./93 160 $ 104.00 $ 36.40 $ 67.60
1st Qtr./94 520 338.00 285.68 52.33
2d Qrt./94 520 338.00 275.60 62.40
3d Qrt./94 520 338.00 301.60 36.40
$ 218.73
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36

36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondents, D. L. Baker, Inc. t/a Baker Electric and its
alter ego and successor, Baker Electric, Inc., their officers,
agents, successors and assigns, shall individually or jointly pay
to Michael Tangy $85,407.66 net backpay due him and $217.35
for medical expenses incurred during interim employment, with
interest to be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), minus tax with-
holdings recognized by State and Federal laws, and shall pay
the appropriate fringe trust funds, as obliged under the applica-
ble NECA–Union Inside Wireman Master Agreement, moneys
due them as found above in this decision with interest to be
computed in the manner set forth in New Horizons for the Re-
tarded, ibid.
Finally, with respect to the remaining unresolved backpay
specification issues, I issue the following.
ORDER OF SEVERANCE AND REMAND
For the reasons set forth above, I sever and remand to the
chief administrative law judge for assignment to another judge:
1. To resolve the issues of the make-whole remedy for the
Respondents’ “employees in the bargaining unit, as well as
those individuals who were denied an opportunity to work, for
any losses suffered as a result of [their] failure to abide by the
applicable NECA–Union Inside Wireman Master Agreement,”
including all required fringe benefit contributions as well as any
expenses that were incurred from the failure to make contribu-
tions; compliance specification, paragraphs 16, 17(a)–(i); 18,
19, and 20(a)–(e);
2. To resolve the issues of the Respondents’ noncompliance
with the hiring hall provisions of the applicable NECA–Union
Inside Wireman Master Agreement and the make-whole rem-
edy for individuals who suffered loss of work opportunity and
other losses in consequence thereof; compliance specification,
paragraphs 21, 22(a)–(b), 23(a)–(k), 24(a)–(i), 25, 26, 27, 28,
29(a)–(g), 30, and 39(a)–(g);
3. To resolve the issues of the derivative liability of Hern-
don Animal Medical Center, Inc., raised by virtue of the
Board’s October 11, 2000 order granting General Counsel’s
August 1, 2000 motion to amend the compliance specification
(GC Exh. 169), amended paragraph 9 insofar as it alleged that
Daniel L. Baker diverted to himself assets of Herndon Animal
Medical Center, Inc. “in an effort to render the Respondents
insolvent and make them incapable of fulfilling their obliga-
tion”; amended paragraph 39 insofar as it alleges that Herndon
Animal Medical Center, Inc., is “individually and jointly and
severally liable” with the Respondents for the make-whole
remedy; and the following added paragraphs 40 through 44
only as they pertain to Herndon Animal Medical Center, Inc.:
40. At all material times prior to April 4, 2000, Hern-
don Animal Medical Center has been owned by Maggie
Barry, a sole proprietorship, doing business as Herndon
Animal Medical Center.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
41. On April 4, 2000, the Herndon Animal Medical
Center formally became a corporation and was thereafter
known as Herndon Animal Medical Center Inc. (Respon-
dent Herndon.)
42. At all material times, Maggie Barry has held the
position of Registered Agent and Owner of Respondent
Herndon and has been a supervisor of Respondent Hern-
don within the meaning of Section 2(11) of the Act and
agent of Respondent Herndon within the meaning of Sec-
tion 2(13) of the Act.
43. At all material times, Respondent D.L. Baker and
Maggie Barry have engaged in the commingling of Re-
spondents D.L. Baker, Baker, Herndon, Daniel L. Baker
and Maggie Barry’s assets.
44. Based on the conduct described above in Para-
graph 40, Respondent Herndon is an alter ego to Respon-
dents and thus jointly and severally liable for remedying
Respondent D.L. Baker’s unfair labor practices, including
the payment of backpay, interest and other relief required
by the Board’s Order as enforced by the Court.
It is recommended that the remanded portion to these cases
be designated Cases 5–CA–24131A and 5–CA–24190A.
APPENDIX A
Case Name: D.L. Baker, Inc. t/a Baker Electric, Case Nos: 5–CA–24131, et al., Employee: Michael Tangy
Regular
H ours
Wage
Rate
Calendar
Quarter
Gross
Backpay
Calendar
Quarter
Interim
Earnings
Calendar
Quarter
Interim
Expenses
Calendar
Quarter
Net
Interim
Earnings
Calendar
Quarter
Net
Backpay
Calendar
Quarter
Medical
Expenses
4thQ/93 160 $ 21.45 $ 3,432.00 $ 1,809.60 $ 364.15 $ 1,445.45 $ 1,986.55 $ -
1stQ/94 520 $ 21.45 $ 11,154.00 $ 7,203.92 $ 820.39 $ 6,383.53 $ 4,770.47 -
2dQ/94 520 21.45/21.70 11,190.00 9,233.20 268.18 8,965.02 2,224.98 -
3dQ/94 520 21.70 11,284.00 8,597.60 637.25 7,960.35 3,323.65 -
4thQ/94 520 $ 21.70/22.20 $ 11,617.60 $ 3,839.60 $ 300.51 $ 3,539.09 $ 8,078.51 $ -
1stQ/95 520 $ 2.20 $ 11,544.00 $ 10,656.00 $ - $ 10,656.00 $ 888.00 $ -
2dQ/95 520 22.20/22.70 11,624.00 8,013.41 1,900.08 6,113.33 5,510.67 -
3dQ/95 520 22.70 11,804.00 7,412.28 2,945.14 4,467.14 7,336.86 -
4thQ/95 520 $ 22.70/23.20 $ 11,964.00 $ 11,123.48 $ 3,164.06 $ 7,959.43 $ 4,004.58 $ -
1stQ/96 520 $ 23.20 $ 12,064.00 $ 7,714.47 $ 999.42 $ 6,715.06 $ 5,348.95 $ 217.35
2dQ/96 520 23.20 12,064.00 13,645.44 2,114.88 11,530 56 533.44 -
3dQ/96 520 23.20 12,064.00 10,32880 1,296.47 9,032.33 3,031.67 -
4thQ/96 520 $ 23.20/24.05 $ 12,227.20 $ 7,490.32 $ 1,320.89 $ 6,169.43 $ 6,057.77 $ -
1stQ/97 520 $ 24.05 $ 12,506.00 $ 4,522.40 $ 1,196.18 $ 3,326.22 $ 9,179.78 $ -
2dQ/97 520 24.05 12,506.00 13,259.10 - 13,259.10 - -
3dQ/97 520 24.05 12,506.00 11,498.00 - 11,498.00 1,008.00 -
4thQ/97 520 $ 24.05 $ 12,506.00 $ 11,844.00 $ - $ 11,844.00 $ 662.00 $ -
1stQ/98 520 $ 24.05 $ 12,506.00 $ 4,520.70 $ 43.40 $ 4,417.30 $ 8,028.70 $ -
2dQ/98 520 24.05 12,506.00 0,697.93 - 10,697.93 1,808.07 -
3dQ/98 520 24.05 12,506.00 11,887.80 - 11,887.80 618.20 -
4thQ/98 520 $ 24.05 $ 12,506.00 $ 12,842.40 $ - $ 12,842.40 $ - $ -
1stQ/99 520 $ 24.05 $ 12,506.00 $ 8,448.00 $ - $ 8,448.00 $ 4,058.00 $ -
2dQ/99 520 24.05 12,506.00 8,688.34 93.56 8,594.78 3,911.22 -
3dQ/99 520 24.05 12,506.00 1,948.00 - 11,948.00 558.00 -
4thQ/99 520 $ 24.05 $ 12,506.00 $ 13,764.00 $ - $ 13,764.00 $ - $ -
lstQ/00 520 $ 24.05 $ 12,506.00 $ 13,650.00 $ - $ 13,650.00 $ - $ -
2dQ/00 520 24.05 12,506.00 12,290.00 - 12,290.00 216.00 -
3dQ/00 512 $ 24.05 $ 12,313.60 $ 10,050.00 $ - $ 10,050.00 $ 2,263.60 $ -
14192 $ 331,430.40 $ 266,978.79 $ 17,464.55 $ 249,514.24 $ 85,40766 $ 217.35