Bolivar-Tees, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 2007

349 N.L.R.B. 720 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 70
720
Bolivar-Tees, Inc., Screen Creations LTD., Screen
Creations de Mexico, Screen Creations de Ce-
laya, Single Employers and Allan Heller and
Sheet Metal Workers’ International Association
Local 36. Cases 17–CA–19569 and 17–CA–19632
April 12, 2007
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
In this compliance proceeding, the judge found, among
other things, that all four named corporate Respondents
constituted a single employer and were therefore jointly
and severally liable for remedying the unfair labor prac-
tices found in the underlying case, which involved the
unlawful discharge of five employees. For the reasons
stated by the judge, we agree that the two American cor-
porations, Bolivar-Tees, Inc. and Screen Creations Ltd.,
are a single employer, and that Allan Heller is personally
liable for the backpay obligation to the five discrimina-
tees. For the reasons stated by the judge, as supple-
mented below, we also agree that the two Mexican cor-
porations, Screen Creations de Mexico and Screen Crea-
tions de Celaya, constitute a single employer with the
American corporations.1
The hallmark of a single employer is the absence of an
arm’s-length relationship among seemingly independent
companies. RBE Electronics of S.D., 320 NLRB 80
(1995); Hydrolines, Inc., 305 NLRB 416, 417 (1991).
The Board looks at four factors in making a finding on
this issue: (1) interrelation of operations; (2) common
management; (3) centralized control of labor relations;
and (4) common ownership or financial control. Central
Mack Sales, 273 NLRB 1268, 1271–1272 (1984). While
the Board considers common control of labor relations a
significant indication of single-employer status, Beverly
Enterprises, 341 NLRB 296, 306 (2004), no single as-
pect is controlling, and all four factors need not be pre-
sent to find single-employer status. Instead, the ultimate
determination turns on the totality of the evidence in a
given case. Dow Chemical Co., 326 NLRB 288, 288
(1998).
In analyzing whether the American and Mexican cor-
porations comprise a single employer, we agree with the

1 On September 21, 2005, Administrative Law Judge Albert A. Metz
issued the attached supplemental decision. The Respondent filed ex-
ceptions and a supporting brief, the General Counsel filed an answering
brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the supplemental decision and the record
in light of the exceptions and briefs, and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt the recom-
mended Order.
judge that three of the four relevant criteria are met here:
common ownership, interrelation of operations, and
common management. Considering the totality of the
circumstances, particularly the substantial interrelation-
ship and repeated lack of arm’s-length dealings among
the companies, we find that single-employer status exists
between the American and Mexican companies.
Common Ownership
Respondent Allan Heller owns 100 percent of Bolivar-
Tees and 60 percent of Screen Creations, the two Ameri-
can corporations that we find to be single employers.2
Heller also has controlling ownership of the two Mexican
corporations: 50 percent of Screen Creations de Mexico
(with the remaining ownership shared with his two part-
ners) and 65 percent of Screen Creations de Celaya.
Interrelation of Operations
Screen Creations de Mexico was incorporated in 2000
when Heller purchased the assets of another company,
Formtex, one of Screen Creations’ Mexican garment
manufacturing contractors. Between 2000 and 2001,
when it ceased operations, Bolivar-Tees sent cut fabric to
Screen Creations de Mexico to sew into the finished
garments. Starting in 1999 and continuing through 2001,
Heller transferred physical custody of Bolivar-Tees’ pro-
duction equipment to Mexico, first to Formtex and, after
its formation, to Screen Creations de Mexico.
As part of the process of transferring equipment from
Bolivar-Tees to Screen Creations de Mexico, Heller, for
reasons that remain unexplained, transferred the title to
this equipment to Screen Creations, the American corpo-
ration. This was done in January 2001, ostensibly in
exchange for $225,000, although it is conceded that no
money was actually exchanged and that no formal docu-
ments exist documenting this transfer of title. Screen
Creations, in turn, subsequently insured this equipment
for $550,000, twice the purported exchange “price.” It is
undisputed that Screen Creations de Mexico has never
compensated either Bolivar-Tees or Screen Creations for
use of this equipment.3
A similar situation with respect to equipment and pro-
duction occurred between Screen Creations and Screen
Creations de Celaya. Until 2001, Screen Creations en-

2 Heller’s father, Nate Heller, owns the remaining 40 percent of
Screen Creations.
3 Screen Creations de Mexico ceased operations in 2004. The
equipment originally transferred from Bolivar-Tees to Screen Creations
de Mexico was first shipped to a warehouse and then transferred to an
enterprise named Confecciones Guanajuato. Heller denied any owner-
ship interest in Confecciones Guanajuato, but conceded that he is “try-
ing to make some sales and help them and get some compensation
down the road for some sales.” Confecciones Guanajuato pays no
compensation for use of the equipment.
BOLIVAR-TEES, INC. 721
gaged in the sales and screen printing of custom orders
using the garments manufactured by Bolivar-Tees.
Heller was responsible for bringing in business and over-
seeing sales. Screen Creations ceased doing the screen
printing production work in July 2001. Between July
and November 2001, Heller transferred Screen Crea-
tions’ production equipment, which was valued at
$1,875,000, to Screen Creations de Celaya, a new corpo-
ration he established in Mexico. Although Screen Crea-
tions retained title to the equipment, Screen Creations de
Celaya did not compensate Screen Creations for its use.
After transferring its equipment, Screen Creations used
Screen Creations de Celaya to meet its production re-
quirements. The presence of “non-arm’s length transac-
tions at reduced prices or without payment entirely is . . .
probative of interrelation of operations.” Lebanite Corp.,
346 NLRB 748, 748 fn. 5 (2006); see Georjan, Inc., 281
NLRB 952, 954 (1986) (interrelationship shown where
one company purchased trucks to be used by other com-
pany, owner negotiated truck leases with self on behalf
of his other company and could cancel them at will, and
leases were written to ensure one company could absorb
tax loss).
Additionally, the evidence shows that once the Mexi-
can corporations were up and running, Screen Creations
continued to play an integral role in the overall opera-
tions. Heller testified that Screen Creations’ sole busi-
ness now is centered on providing “technical assistance”
to Screen Creations de Celaya. Initially this assistance
took the form of production and equipment setup using
Screen Creations employees. Later it evolved into sales
and customer development, which was performed by
Heller, the lone remaining employee of Screen Creations.
Screen Creations pays for all of Heller’s travel and other
business expenses incurred on behalf of the Mexican
corporations, including sales, administrative and techni-
cal support expenses, and the cost of insuring the trans-
ferred production equipment. In turn, all profits from
Screen Creations de Celaya go to Screen Creations. Ac-
cording to Heller, however, the profits received are not
sufficient to cover all expenses incurred by Screen Crea-
tions on behalf of the Mexican corporations. Cf. Em-
sing’s Supermarket, 284 NLRB 302 (1987) (interrelation
shown where there is identical ownership, identical busi-
ness purpose, and lack of arm’s-length financial interac-
tions, and where financial exigencies of one entity are
met by the other), enfd. 872 F.2d 1279 (7th Cir. 1989);
Tabernacle Sand & Gravel Corp., 232 NLRB 957, 959
(1977) (interrelationship shown where, inter alia, second
company established and operated as an “adjunct” of
first, second transported the products of the first, and
trucks used by the first owned by second).
Finally, Heller’s own testimony substantiates the close
interrelationships between the American and the Mexi-
can corporations. He acknowledged that he closed down
the production work done by his American corporations
and “made the move to Mexico . . . in an attempt to res-
urrect the business.” As he explained it,
The movement to Mexico benefited Screen Creations,
Ltd. and the concept that I had of what my business
was. They were going to be getting the lower cost of
Mexico and be able to sell product at a lower base rate
and continue with the margins that existed before,
make better margins or whatever determined by the
market by the market conditions . . . . Instead of having
the manufacturing facility, they were contracting with
and they would pay the Mexico facility to print their
product. . . . So in my thinking of where I was going to
make a living and to continue my business, Mexico of-
fered an opportunity to have fixed costs, to know what
your costs are, because you don’t know what your costs
are when you are running a manufacturing facility until
after you are finished.
Asked specifically to describe the relationship between
Screen Creations and Screen Creations de Celaya, Heller
openly admitted that “[t]he relationship is really—I am
Screen Creations.” See Georjan, Inc., 281 NLRB at 954
(lack of arm’s-length dealings demonstrated by owner’s
“errors in closely identifying the business with himself”).
Common Management
We find that common management is present here.
Heller served as the principal officer of both the Ameri-
can and the Mexican corporations. He had primary re-
sponsibility for “bringing in the business” that kept each
of the companies afloat, and testified that he spends at
least 30 percent of his time on the ground in Mexico get-
ting business and managing the work of Screen Creations
de Celaya, the sole surviving Mexican corporation. He
played a central managerial role with respect to the pur-
chase of assets and control over the equipment trans-
ferred among the various corporations. And, as control-
ling owner, he had ultimate authority over the quintes-
sential managerial decisions to shut down both Bolivar-
Tees and Screen Creations de Mexico. In short, he exer-
cised “overall control of critical matters at the policy
level.” Emsing’s Supermarket, supra, 284 NLRB at
302.4

4 We acknowledge that Heller did not control the day-to-day opera-
tions of the Mexican corporations. The circumstances presented in this
case are unusual, however. The typical single employer situation in-
volves coexisting operations located in the same general area. Here,
the companies are located in different countries. Given the distances
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD722
Our finding of single-employer status is not undercut
by the lack of specific evidence indicating centralized
control of labor relations. By the time the Mexican busi-
nesses were fully up and running, the American busi-
nesses no longer produced anything and there were no
employees, other than Heller, to “centrally control.”
Thus, although the Board typically accords centralized
control of labor relations substantial importance in the
single-employer analysis, we find it inappropriate to do
so here. See Three Sisters Sportswear Co., 312 NLRB
853, 863 (1993) (where some companies have no em-
ployees, factor of centralized control of labor relations
becomes less important), enfd. 55 F.3d 684 (D.C. Cir.
1995). Moreover, “to accord less weight . . . to other
evidence establishing close control through common
ownership and management is not only contrary to Board
policy, but would also ignore the realities of commercial
organization.” Canton, Carp’s, Inc., 125 NLRB 483,
484 (1959); accord: Overton Markets, 142 NLRB 615,
619 (1963) (single-employer finding premised on sub-
stantial evidence of operational integration despite lack
of common control of labor relations).
Conclusion
As we initially observed, no single factor is control-
ling, and all four factors need not be present to make a
single-employer finding. This case illustrates the sound-
ness of the principle that single-employer status ulti-
mately depends on all the circumstances of the particular
case. Richmond Convalescent Hospital, 313 NLRB
1247, 1249 (1994). We conclude that, on the facts pre-

involved, and the stated intent to transfer all production work from the
American corporations to the Mexican corporations, it would be putting
form over substance to deny a single employer finding solely because
Bolivar-Tees (which ultimately had no employees) or Screen Creations
(which ended up with Heller as its sole employee) did not exercise
control over the day-to-day production operations of the Mexican cor-
porations. See Sakrete of Northern California, Inc. v. NLRB, 332 F.2d
902, 907 (9th Cir. 1964) (“Seldom would it be practicable for two
companies situated in different parts of the country to be managed at
the local level by one man or management group. If there is overall
control of critical matters at the policy level, the fact that there are
variances in local management decisions will not defeat application of
the ‘single employer’ principle.”), cert. denied 379 U.S. 961 (1965).
In finding the American and Mexican corporations to constitute a
single employer, we are mindful that, as the Board recently stated, “[a]
single-employer analysis is appropriate only where two ongoing busi-
nesses are coordinated by a common master.” Cadillac Asphalt Paving
Co., 349 NLRB 6, 9 (2007). In Cadillac Asphalt, one business (Pav-
ing) went out of existence no later than 15 days after the other one
(LLC) commenced operations. Here, by contrast, Screen Creations de
Mexico was incorporated in 2000, and Bolivar-Tees did not cease op-
erations until 2001. In addition, although Screen Creations ceased
doing production work before Screen Creations de Celaya began opera-
tions, Screen Creations continued in existence and furnished “technical
assistance” to Screen Creations de Celaya. Thus, Cadillac Asphalt is
distinguishable.
sent here, single-employer status exists between the
American and the Mexican corporations. Thus, we will
hold all four business entities jointly and severally liable
to remedy the unfair labor practices found in the underly-
ing case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Bolivar-Tees, Inc., Bolivar,
Missouri, Screen Creations Ltd., O’Fallon, Missouri,
Screen Creations de Mexico, Tarimoro, Guanajuato,
Mexico, Screen Creations de Celaya, Ciudad de Celaya,
Guanajuato, Mexico, single employers and Allan Heller,
their officers, agents, successors, and assigns, shall make
whole the individuals named below, by paying them the
amounts following their names, with interest to be com-
puted in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withhold-
ings required by Federal and State laws:
Donna Pitts $20,270.29
Angela Carneal Howe 28,774.16
Darla Reaves 38,311.74
Nona Box 6,416.34
Geraldine Housel 2,626.62
_________________
TOTAL: $96,399.15
Naomi Stuart, Esq., for the General Counsel.
Terry L. Potter, Esq., for the Respondent.
SUPPLEMENTAL DECISION1
The central issue in this compliance proceeding is who is li-
able for the unfair labor practice findings resulting from the
Board’s decision in Bolivar-Tees Inc. (Bolivar),2 334 NLRB
1145 (2001). The Board found in that decision, inter alia, that
Bolivar violated Section 8(a)(1) and (3) of the Act3 by suspend-
ing and discharging employees Donna Pitts, Darla Reaves,4
discharging employees Angela Carneal Howe and Nona Box,
and constructively discharging employee Geraldine Housel.
The Board Order provided in relevant part for a make-whole
remedy for these five discriminatees. The Board Order was
enforced by the United States Court of Appeals for the District
of Columbia on June 23, 2003.
A compliance specification was subsequently served on the
Respondents. The Respondents admit the accuracy of the back-
pay calculations and the amounts of backpay owed to the five

1 This matter was heard at Overland Park, Kansas, on June 7, 2005.
2 The name of the Respondent Bolivar was amended at the hearing
to correctly reflect its current legal name, Bolivar-Tees, Inc.
3 The name of the Charging Party Union was amended at the hearing.
4 Reaves’ name was amended at the hearing to reflect the correct
spelling.
BOLIVAR-TEES, INC. 723
named discriminatees as set forth in the compliance specifica-
tion. The Respondents, however, argue that Bolivar is no longer
in business and the other named entities and Allan Heller, indi-
vidually, are not liable to remedy the Board and Court orders
against Bolivar.
The General Counsel alleges that (1) Bolivar’s owner, Allan
Heller, failed to observe corporate formalities with respect to
Bolivar so that the corporate veil should be pierced and Heller
held personally liable for Bolivar’s debts and liabilities; (2)
Screen Creations, Ltd. and Bolivar are a single employer, so
that Screen Creations, Ltd. is liable for the debts and liabilities
of Bolivar; (3) the Mexican corporations Screen Creations de
Mexico and Screen Creations de Celaya are single employers
with Bolivar and Screen Creations, Ltd. so they are liable for
the debts and liabilities of Bolivar, and (4) Allan Heller failed
to observe the corporate formalities with respect to Screen
Creations Ltd., Screen Creations de Mexico, and/or Screen
Creations de Celaya so that the corporate veil should be pierced
and Heller held personally liable for the debts and liabilities of
those corporations.
I. BACKGROUND
A. Bolivar
Bolivar, a Missouri corporation, was incorporated on ap-
proximately March 26, 1990. Bolivar was engaged in the busi-
ness of cutting fabric and sewing the fabric into a finished gar-
ment, usually a T-shirt, pursuant to specifications supplied by
Screen Creations, Ltd. Bolivar’s production operations were
performed at a rented facility located at 307 South Pike, Boli-
var, Missouri.
In about July 2001 Bolivar ceased operation. The State of
Missouri administratively dissolved Bolivar on or about Octo-
ber 21, 2004, for failure to file a 2004 annual registration report
with the Missouri Secretary of State. Allan Heller has always
been the 100 percent owner of Bolivar and its only corporate
officer and only member of its board of directors. Bolivar and
Allan Heller contend that Bolivar has permanently ceased op-
eration and does not have any assets with which to comply with
the Board’s Order. As set forth below, Heller transferred all of
Bolivar’s assets to other corporate entities.
B. Screen Creations, Ltd.
Screen Creations, Ltd. was a State of Missouri business in-
corporated on about September 5, 1974. Screen Creations, Ltd.
was engaged in the custom screen printing of T-shirts and other
garments until approximately April 2003. From approximately
1989 until April 2003, Screen Creations, Ltd. maintained a
production facility in a building at 804 Texas Court, O’Fallon,
Missouri. That building was rented from the “Heller Partner-
ship,” which consisted of Allan Heller and his father Nate
Heller.
Nate Heller was the 100-percent owner of Screen Creations,
Ltd. at the time of its 1974 incorporation. Allan Heller began
working for Screen Creations, Ltd. in 1976 and beginning in
the mid-1980’s he acquired part ownership in this company. At
all relevant times his ownership interest in Screen Creations,
Ltd. has been 60 percent. Nate Heller has held the remaining
40-percent ownership interest.
Screen Creations, Ltd. filed annual reports with the Missouri
Secretary of State in 1999–2003. Allan Heller is the only offi-
cer or director listed on those annual reports, with the exception
of the 2002 annual report, which lists Allan Heller as the corpo-
rate president and Allan Heller and Nate Heller as the corporate
directors. Allan Heller testified that Screen Creations, Ltd. had
no corporate officers other than those listed on its annual re-
ports. All five annual reports are signed by Allan Heller on
behalf of the corporation and he is listed as the registered agent
for the corporation on the 2001–2003 annual reports. Allen
Heller acknowledged that during the period covered by the
annual reports, he exercised overall managerial control of the
operations of Screen Creations, Ltd. Heller testified that his
father was semi-retired during this period, but continued to
advise him on business matters. The State of Missouri adminis-
tratively dissolved Screen Creations, Ltd. on or about October
21, 2004, for failure to file a 2004 annual report with the Mis-
souri Secretary of State.
Screen Creations, Ltd. business consisted of receiving orders
from its various customers; purchasing the garment fabric; and
contracting with an entity, such as Bolivar, to cut and sew the
fabric into garments. Screen Creations, Ltd.’s production em-
ployees took the sewn garments and screen printed them with a
design and then shipped the finished product to its customers.
By April 2003, Screen Creations, Ltd. ceased all production
work at its 804 Texas Court facility and became what Allan
Heller termed a “service business” engaged in providing sales
and technical assistance to Screen Creations de Mexico and
Screen Creations de Celaya, two Mexican corporations operat-
ing in Mexico, in which Allan Heller had an ownership interest.
As discussed in detail below, the majority of Screen Creations,
Ltd.’s production equipment was transferred to Heller’s busi-
ness interests in Mexico.
In about April 2003, Screen Creations, Ltd. moved from its
facility at 804 Texas Court and since that time has conducted its
business operations from leased offices located at 11970 Bor-
man Drive, St. Louis, Missouri. Allan Heller testified that he
was Screen Creations, Ltd. only remaining employee, although
as recently as early 2005 Screen Creations, Ltd. employed an-
other individual named Mark Neil, who provided sales and
technical support to the two Mexican corporations. Neil was the
former plant manager at Screen Creations, Ltd.’s production
facility at 804 Texas Court, O’Fallon, Missouri.
Screen Creations, Ltd. conducted no regular director’s meet-
ings. Heller testified that there were no memoranda regarding
the corporate decision to cease production operations and to
change to a service business, or regarding the decision to move
the Screen Creation, Ltd.’s production equipment to Heller’s
business interests in Mexico.
C. Allan Heller Incorporates Bolivar
In early 1990 Screen Creations, Ltd. used a company named
Liber-Tees located in a rented facility located at 307 South
Pike, Bolivar, Missouri, as one of several subcontractors to cut
and sew garments. In March 1990, Allan Heller purchased the
assets of Liber-Tees for $170,000. These assets consisted of
cutting and sewing equipment. Allan Heller incorporated Boli-
var on March 26, 1990, with the purpose of having Bolivar
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD724
continue to operate cutting and sewing operations at the 307
South Pike address. Heller considered it advantageous to
Screen Creations, Ltd.’s business to consolidate the cutting and
sewing operation rather than continue to contract these func-
tions to multiple subcontractors.
Allan Heller personally borrowed $170,000 from Screen
Creations, Ltd. to purchase Liber-Tees assets. He signed a
promissory note dated March 26, 1990, in the amount of $170,
000, promising to repay Screen Creations, Ltd., plus interest.
Heller then sold the Liber-Tees assets to Bolivar, by taking a
promissory note from Bolivar dated March 26, 1990, wherein
Bolivar promised to repay Heller $170, 000 plus interest. The
terms of both promissory notes provide for an initial payment
on December 31, 1990, and for annual payments thereafter; the
payment of the entire remaining principal by March 25, 1995;
and the payment of 10 percent annual interest on the unpaid
balance. No payments were ever made on either note.
Bolivar’s books show that the amount of the promissory note
to Heller was a “loan from shareholder” which had increased to
$357,438 by 2000. Heller testified that he did not know why the
trial balances reflected loans from shareholder, i.e., Heller, in
excess of $170,000 “unless there were other loans over the
years that I didn’t recollect.” There is no evidence that Heller
made any loans to Bolivar other than the March 26, 1990 note
and the amount of the loan in excess of $170,000 apparently
reflects interest accrued after March 26, 1990.
D. Bolivar’s Capitalization
Heller testified that he did not recall the level of capitaliza-
tion of Bolivar at the time of incorporation. Bolivar’s 2000 and
2001 Federal income tax returns establish that the level of capi-
talization for the corporation was $1000 and there is no evi-
dence that Bolivar was capitalized at a level higher than $1000
at any time during its existence. Heller’s decision to term the
initial $170,000 contribution of equipment purchased from
Liber-Tees as a debt to shareholder (i.e., Heller) rather than
corporate equity/capital suggests that Heller restricted the level
of Bolivar’s capitalization to the minimum from the beginning
of the corporation’s existence.
E. The U.C.C. Security Interest
On October 24, 1991, approximately 18 months after Boli-
var’s formation, and approximately 10 months after both Boli-
var and Allan Heller were in default on their respective promis-
sory notes, Allan Heller received from his attorney copies of
UCC security interests filings date stamped October 15, 1991,
that purport to perfect a security interest on behalf of Heller and
on behalf of Screen Creations, Ltd. Respondents admit that
these security interests expired on October 24, 1996, and were
not in effect at any time material herein. Respondent does not
contend that any security interest was in effect in 1999–2001
when Bolivar’s equipment was transferred to Screen Creations
de Mexico or in 2001–2003 when Screen Creations, Ltd. equip-
ment was transferred to Screen Creations de Celaya.
Heller testified that in 1999 he began moving Bolivar’s
equipment out of the United States and sending it to Screen
Creations de Mexico. The reason for the transfer of assets was
because of the financial losses that Bolivar continued to sustain
after the 1994 enactment of the North American Free Trade
Agreement (NAFTA).
F. Operations of Bolivar and Screen Creations, Ltd.
1. Management/ownership
As noted, at all material times, Allan Heller has been the
only corporate officer and director and sole owner of Bolivar.
Allan Heller was the 60-percent owner of Screen Creations,
Ltd. Throughout the time that Bolivar was in existence, Allan
Heller was responsible for the overall corporate management of
Screen Creations, Ltd. as well as for Bolivar.
2. Common business address
The annual reports filed by Bolivar for the years 1999–2003
list its “principal place of business or corporate headquarters”
as 804 Texas Court, O’Fallon, Missouri. Screen Creations, Ltd.
maintained its screen printing facility at this same address.
Bolivar’s Federal tax returns for the years 2000 and 2001 also
state that this location is its corporate address. Allan Heller
testified that his office was located at 804 Texas Court,
O’Fallon, and that he performed general management of Boli-
var’s corporate business from the Texas Court address, includ-
ing management of corporate bank accounts, payment of bills,
and invoicing or billing Screen Creations, Ltd. for services
performed by Bolivar. The bookkeeper who was responsible for
Bolivar’s books also worked at the Texas Court address. Boli-
var used the 804 Texas Court address on its general corporate
checking accounts. The day-to-day supervision of Bolivar’s
production employees employed at the 307 South Pike facility
in Bolivar, Missouri, was performed by Plant Manager Irene
Justett.
3. Advances of operating funds
All of Bolivar’s work was performed for Screen Creations,
Ltd. In providing these services Bolivar incurred, inter alia,
costs for rental of the 307 South Pike facility; labor costs for its
production employees, including payroll taxes; expenses for the
purchase, maintenance, and taxes on machinery and equipment;
utility costs; and the cost of maintenance/custodial services.
Bolivar billed Screen Creations, Ltd. for the work it performed,
however, the amounts invoiced did not cover Bolivar’s basic
costs of doing business. Because Bolivar did not charge a suffi-
cient amount to cover its operating expenses, Screen Creations,
Ltd. regularly advanced operating funds to Bolivar and Boli-
var’s accounts receivable balance was generally a negative
number. Allan Heller testified that it was not uncommon for
Screen Creations, Ltd. to advance Bolivar money in order to
permit Bolivar to continue to operate.
Bolivar’s accounts receivable for January 2001 show a nega-
tive balance of $26,034.05. By July 2001 that negative balance
had grown to $93,321.91 and increased to $109,500 in October
2001, the last month that a monthly accounts receivable sum-
mary report was calculated. These negative balances are re-
flected in Bolivar’s 2000 and 2001 Federal tax returns as a
“loan from an affiliate,” i.e., monetary advances by Screen
Creations, Ltd. to Bolivar. The evidence shows that Bolivar
was never a profitable business. Heller acknowledged that an
increase in the amount that Bolivar billed to Screen Creations,
Ltd. would necessarily decrease the profits of Screen Creations,
BOLIVAR-TEES, INC. 725
Ltd. Heller testified that Screen Creations, Ltd. was generally
profitable.
4. Insurance policy/value of insured assets
Screen Creations, Ltd. and Bolivar were insured under a
common insurance policy in 1999–2000 and 2000–2001, the
last 2 years of Bolivar’s operation. The insurance policies were
issued to Screen Creations, Ltd. and list the insured as Screen
Creations, Ltd. doing business at two locations: 804 Texas
Court, O’Fallon, Missouri, and at 307 South Pike, Bolivar,
Missouri. The insurance policies also insure the building at 804
Texas Court, which Heller testified was owned by the Heller
Partnership (i.e., Allan Heller and Nate Heller) in the amount of
$1,500,000. The insurance policies cover screen printing
equipment owned by Screen Creations, Ltd. located at 804
Texas Court, O’Fallon, Missouri, in the amount of $1,875,000
and cutting and sewing equipment owned by Bolivar located at
307 South Pike, Bolivar, Missouri, in the amount of $550,000.
5. Common profit-sharing plan/Heller’s compensation
The 1997 Annual Consent of Directors for Screen Creations,
Ltd., paragraph 3, states that Screen Creations, Ltd.’s profit-
sharing plan was revised to include Bolivar’s employees. Dur-
ing 1997, Screen Creations, Ltd. contributed $30,000 to that
profit-sharing plan. Heller asserted that Screen Creations, Ltd.’s
corporate records for 1998 and subsequent years could not be
located. Therefore, records showing any subsequent contribu-
tions by Screen Creations, Ltd. to its profit-sharing plan for the
benefit of its employees and those of Bolivar were never pro-
duced at the hearing.
Heller testified that he did not draw a salary, benefits, or bo-
nuses from Bolivar and that he did not recall receiving any
loans from Bolivar. Heller drew a salary from Screen Creations,
Ltd., and received health and life insurance benefits, and profit
-haring benefits from Screen Creations, Ltd.
G. Bolivar’s Assets
According to Bolivar’s tax records, it purchased an addi-
tional $501,218 of equipment over and above the initial start-up
equipment purchased by Allan Heller from Liber-Tees in 1990.
Allan Heller acknowledged that Bolivar’s funds were used to
purchase this additional half of a million dollars worth of
equipment.
In sum, Bolivar subsequently purchased over half of a mil-
lion dollars worth of operating equipment in addition to the
$170,000 of equipment purchased from Liber-Tees in 1990.
The incomplete business records that the Respondents produced
show that Bolivar’s 2001 corporate tax return reported the
transfer of the equipment to Heller’s Mexican business interests
was a “sale” in the amount of $225,000; insurance records
show that Bolivar’s equipment was insured for $550,000 at the
time that Bolivar ceased operation in 2001; and tax records
show that the total historical purchase price of Bolivar’s
equipment was $671,218. Thus when Bolivar ceased business
in July 2001, the corporation owned production equipment of
substantial value. Heller chose not to have Bolivar’s equipment
appraised prior to transferring the equipment to his Mexican
business enterprises, so the exact fair market value of Bolivar’s
equipment is not established.
H. Decision to Close/Reported “Sale” of Bolivar’s Assets
Heller testified that he decided to close Bolivar in July 2001
and transfer the cutting and sewing operations performed by
Bolivar to his Mexican business enterprise named Screen Crea-
tions de Mexico because he could not “sustain losses forever.”
All of Bolivar’s equipment was sent to Screen Creations de
Mexico located in Tarimoro, Guanjuanto, Mexico. Heller ac-
knowledged that he did not have Bolivar’s equipment appraised
to assess its fair market value at the time of the transfer.
Although the entirety of Bolivar’s equipment was transferred
to Mexico, Heller considered the legal title or ownership of the
entirety of Bolivar’s equipment to be transferred to Screen
Creations, Ltd. effective January 1, 2001. Heller testified that
there was no documentation of the reputed transfer of title of
Bolivar’s equipment to Screen Creations, Ltd.; no corporate
documents that reflected the decision to close Bolivar’s busi-
ness operations; and no documents that set forth the decision to
transfer the entirety of Bolivar’s assets to any other entity. Al-
though Bolivar’s 2001 Federal tax return reflects a sale of its
assets for $225,000 on January 1, 2001, Heller testified that
there was no actual sale and that the $225,000 figure was a
number that he and his accountant arrived at after “we went
through various scenarios and talked about market conditions,
book value and other issues.” Heller described the “sale” of the
entirety of Bolivar’s assets as a “paper transaction” and testified
that there was no money or other compensation received by
Bolivar as a result of the “sale” claimed on Bolivar’s 2001 Fed-
eral tax return. Heller acknowledged that after the “sale” and
physical transfer of Bolivar’s assets as reflected in the com-
pany’s 2001 Federal tax return, Bolivar had no remaining as-
sets.
Bolivar’s 2001 Federal tax return shows that the loan from
Allan Heller, described on the tax return as “loan from share-
holder,” was not written down or in any way affected by the
“sale” or transfer of Bolivar’s equipment. Thus, the $357,438
loan from shareholder (i.e., Heller) reflected on Schedule L,
line 19, of Bolivar’s 2001 Federal income tax return remained
unchanged as a result of the physical transfer of the entirety of
Bolivar’s equipment/assets to Heller’s Mexican business inter-
ests. However, the 2001 tax return shows that the loan from
affiliate (i.e., Screen Creations, Ltd.), was reduced from $202,
741 at the beginning of the 2001 tax year to $80,168 at the end
of the 2001 tax year. Heller testified that the $225,000 “sale” of
Bolivar-Tees, Ltd. equipment was used to write down the loan
to affiliate Screen Creations, Ltd., and that the “loan” that was
written down was the amounts advanced by Screen Creations,
Ltd. to Bolivar in excess of the amount of work invoiced by
Bolivar to Screen Creations, Ltd. Heller was unsure why the
loan to affiliate was written down only $122,573 (i.e.,
$202,741-$80,168 = $122,573), but surmised that the amounts
advanced by Screen Creations, Ltd. to Bolivar had increased
after the beginning of the 2001 tax year and that the full
$225,000 “sale” amount was deducted from the amounts ad-
vanced by Screen Creations, Ltd. If Heller’s surmise is accu-
rate, Screen Creations, Ltd. had advanced Bolivar $305,168
(i.e., $225,000 + $80,168 = $305,168) in operating funds by the
time Bolivar ceased business in July 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD726
I. Transfer of Bolivar Assets
The Respondents produced a four-page list of Bolivar’s
equipment transferred to Screen Creations de Mexico. Heller
testified that he prepared the list from shipping documents
showing the date that the equipment was shipped from Boli-
var’s facility in Missouri to Screen Creations de Mexico’s facil-
ity in Mexico (or to Formtex which then transferred Bolivar’s
equipment to Screen Creations de Mexico). The record estab-
lishes that Heller began transferring Bolivar’s equipment out of
the United States to Mexico on September 7, 1999, almost 2
years before the Bolivar ceased operation in July 2001. These
shipments commenced almost a year to the day after the ALJ’s
decision in the underlying case which issued on September 24,
1998.
Heller testified that the four-page list of transferred equip-
ment in evidence as General Council Exhibit 13 reflected the
equipment covered by the “sale” of $225,000 of equipment
claimed on Bolivar’s 2001 Federal tax return. Heller continued
to transfer Bolivar’s equipment to Screen Creations de Mexico
throughout 2000. The 2nd page of the list sets forth Bolivar’s
equipment that was physically shipped to Screen Creations de
Mexico in approximately August 2001, shortly after Bolivar
ceased production operations in its Missouri facility. The fourth
page of the list sets forth Bolivar’s equipment that was physi-
cally shipped to Screen Creations de Mexico on or about Sep-
tember 21, 2001; and the third page sets forth equipment physi-
cally shipped on October 5, 2001.
Heller testified that although the entirety of Bolivar’s equip-
ment was shipped to Screen Creations de Mexico the legal
“title” to all of Bolivar’s equipment was transferred to Screen
Creations, Ltd., on January 1, 2001, and the transfer of title did
not take place on the dates in 1999, 2000, and 2001 when the
equipment was actually removed from Bolivar’s Missouri facil-
ity. The only record of the alleged transfer of legal title of Boli-
var’s equipment to Screen Creations, Ltd. is the January 1,
2001 “sale” date set forth in Bolivar’s 2001 Federal income tax
form.
Heller testified that Bolivar’s 1999 and 2000 books did not
reflect the transfer of its assets out of the country to Screen
Creations de Mexico. The equipment transferred in 1999 and
2000 remained on Bolivar’s books in 1999 and 2000 as an asset
of that corporation. Heller could not recall what entity paid the
shipping costs involved in the shipment of Bolivar’s assets to
Mexico. Screen Creations de Mexico used Bolivar’s equipment
in its cutting and sewing operations but never paid for the use
of this equipment.
Screen Creations de Mexico was not incorporated until Feb-
ruary 15, 2000. Heller testified that Bolivar’s equipment
shipped to Mexico in 1999 was actually shipped to Formtex in
Mexico. He explained that Formtex was a vendor to Screen
Creations, Ltd. Heller denied that he initially had any owner-
ship interest in Formtex, but stated he purchased Formtex’s
assets in a transaction similar to his purchase of Liber-Tees, and
that the assets he purchased from Formtex were used to set up
Screen Creations de Mexico. Heller further testified that Form-
tex did not pay any compensation to Heller or Bolivar for the
equipment that was transferred to it prior to the formation and
incorporation of Screen Creations de Mexico.
J. Heller’s Knowledge of Board Order
Allan Heller admitted that at all material times during Boli-
var’s existence, he was the individual who controlled Bolivar’s
business activities including the corporation’s participation in
the NLRB proceedings involved in this case. Heller further
admitted that he was aware of the ALJ’s decision and recom-
mendation dated September 24, 1998, as well as the August 17,
2001 Board Order against Bolivar. Heller testified, however,
that he did not consider these decisions final or legally binding
upon Bolivar.
When Heller closed Bolivar’s business and transferred its as-
sets to other entities he did not set up a reserve fund for Boli-
var’s creditors because he did not believe that Bolivar had any
creditors at the time. Heller testified that he “didn’t think
about” how Bolivar would meet its financial obligations to the
discriminatees in the event that the Board’s Order was en-
forced. When questioned at hearing if it was his intent to render
Bolivar incapable of complying with its financial obligations to
the five discriminatees, Heller testified that: “it was my inten-
tion to make a living. It was my intention to cut the losses. It
was my intention to feed my family. That is what my intention
was and that is what my intention continues to be.”
Bolivar has never filed for bankruptcy. Heller testified that
he did not know why he continued to file annual reports on
behalf of Bolivar in 2002 and 2003 after Bolivar ceased opera-
tions in mid-2001.
II. SCREEN CREATIONS DE MEXICO
Screen Creations de Mexico was incorporated on February
15, 2000, and was engaged in the business of contract cutting
and sewing of garments at its facility located in Tarimoro, Gua-
najuato, Mexico. At all material times, Allan Heller has been
the 50-percent owner of Screen Creations de Mexico and been
the president and a member of its corporate board of directors.
The remaining 50-percent interest in Screen Creations de Mex-
ico was held by Alejandro Garcia and Jose Chapa. Screen Crea-
tions de Mexico was formed after Heller purchased the assets
of the Mexican business, Formtex, and transferred all of Boli-
var’s equipment to Screen Creations de Mexico for use in its
business operations. Screen Creations de Mexico closed its
business operations in approximately November 2004 but did
not declare bankruptcy.
After the cessation of Screen Creations de Mexico’s produc-
tion operations in 2004, all of Bolivar’s equipment that had
been transferred to Mexico was moved to a warehouse in Mex-
ico in the vicinity of the City of Celaya, Mexico. Heller testi-
fied that the equipment had then been moved from the ware-
house to a manufacturing facility named Confecciones Guana-
juato located in Juventino Rosas, Mexico. Bolivar’s former
equipment is currently in use at this manufacturing facility.
Heller denied that he had an ownership interest in Confecciones
Guanajuato. Heller did not obtain an appraisal of the equipment
he transferred to Confecciones Guanajuato. Heller denied that
he received any compensation from Confecciones Guanajuato
for the use of the equipment but testified “I am trying to make
some sales and help them and get some compensation down the
road for some sales.” Heller stated that the future compensation
BOLIVAR-TEES, INC. 727
he hoped to receive from Confecciones Guanajuato for use of
the equipment was commission on product sales.
Heller testified that in addition to Bolivar’s equipment listed
on General Council Exhibit. 13, other equipment of Screen
Creations de Mexico, including sewing machines, was trans-
ferred to Confecciones Guanajuato. Heller did not have this
additional equipment appraised; testified that he did not know
the historical cost of this equipment or the amount that the
equipment was valued on Screen Creations de Mexico’s books.
He testified that he had not received compensation for the use
of that equipment by Confecciones Guanajuato. Further, Heller
testified he did not know the total asset value of Screen Crea-
tions de Mexico at the time that it ceased operations.
III. TRANSFER OF SCREEN CREATIONS, LTD’S PRODUCTION
OPERATIONS TO SCREEN CREATIONS DE CELAYA
A. Screen Creations, Ltd. Transfer of Assets to Mexico
Allan Heller testified that on or about July 2001 Screen
Creations, Ltd. ceased most of its screen printing production
activities and that all its screen printing production activities
ceased by April 2003. The screen printing production work
formerly performed by Screen Creations, Ltd. at the 804 Texas
Court, O’Fallon, Missouri facility was moved to a Mexican
corporation, Screen Creations de Celaya, at its facility in Ciu-
dad de Celaya, Juanajuato, Mexico.
Screen Creations de Celaya was incorporated on November
14, 2001. Heller acknowledged that Screen Creations de Celaya
was engaged in the same custom screen printing work, using
the same production process as Screen Creations, Ltd. Heller
began to move the screen printing production operation to
Screen Creations de Celaya before Screen Creations de Celaya
was incorporated. Heller transferred the entirety of Screen
Creations, Ltd.’s screen printing equipment to Screen Creations
de Celaya beginning in 2001 with the bulk of that equipment
being transferred by November 2001.
Heller did not obtain an appraisal of the equipment and as-
sets physically transferred from Screen Creations, Ltd.’s Mis-
souri facility to Screen Creations de Celaya’s facility in Mex-
ico. Screen Creations, Ltd.’s 2000–2001 insurance policy in-
sured its operating equipment at $1,875,000. Heller testified
that 80–90 percent of Screen Creations, Ltd.’s screen printing
equipment was shipped to Screen Creations de Celaya’s facility
in Mexico.
Although the bulk of Screen Creations, Ltd.’s assets were
moved out of the United States, there was no change on Screen
Creations, Ltd.’s books to reflect the transfer of its operating
equipment to another entity. Heller testified that although the
equipment was moved to Mexico the legal title of the equip-
ment was not transferred from Screen Creations, Ltd. Screen
Creations, Ltd.’s insurance policy was changed to reflect the
new location of Screen Creations, Ltd.’s assets and it continued
to pay for the insurance on the assets used by Screen Creations
de Celaya. Screen Creations de Celaya did not pay compensa-
tion to Screen Creations, Ltd. for the use of the screen printing
equipment.
Heller asserted that when Screen Creations de Celaya had in-
come, it apparently forwarded that income to Screen Creations,
Ltd. Heller, however, did not explain what agreement, if any,
existed for such payments or whether any such payments had
been made.
The approximately 10–20 percent of Screen Creations, Ltd.’s
equipment that was not moved to Mexico was sold during the
period July 2001 to April 2003. Heller described these assets as
“older equipment” and testified that no appraisal of the value of
this equipment was made prior to sale. Heller acknowledged
that there were records of these sales; that the sales records had
not, however, been produced pursuant to the Government’s
subpoena; and Heller declined to estimate the amount realized
in the sale. Heller asserted that the proceeds from the sales of
the equipment went to Screen Creations, Ltd.’s bank accounts.
B. Heller’s Ownership/Management of Screen
Creations de Celaya
At all material times, Heller has been the 65-percent owner
of Screen Creations de Celaya, and has been president of the
corporation and a member of its board of directors. At the time
of the June 7, 2005 compliance hearing, Screen Creations de
Celaya was in operation, and Heller testified that he spent ap-
proximately 30 percent of his time in Mexico managing and/or
engaged in business on behalf of Screen Creations de Celaya.
Heller’s involvement in Screen Creations de Celaya’s business
includes efforts to obtain sales and management of the technical
or production aspects of the business. When asked to describe
the relationship between Screen Creations, Ltd. and Screen
Creations de Celaya, Heller testified “I am Screen Creations-
that is all that is left.”
C. Current Operation of Screen Creations, Ltd.
In April 2003, after the cessation of Screen Creations, Ltd.’s
production operations and sale and transfer of its screen print-
ing production equipment, the company moved to rented of-
fices at 11970 Borman Drive, St. Louis. Screen Creations, Ltd.
continues to operate as an entity that provides “sales and tech-
nical assistance” to Screen Creations de Celaya. Screen Crea-
tions, Ltd. does not bill Screen Creations de Celaya for these
services it performs on behalf of the Mexican corporation.
Heller’s share of the profit from the operation of Screen
Creations de Celaya is deposited into a Screen Creations, Ltd.
account. Heller testified that the revenues that Screen Crea-
tions, Ltd. receives from Screen Creations de Celaya are not
sufficient to cover Screen Creations, Ltd.’s expenses, which
include the cost of insurance that Screen Creations, Ltd. main-
tains to cover its production equipment that is currently in the
possession and use of Screen Creations de Celaya; the cost of
Heller’s business travel in Mexico on behalf of Screen Crea-
tions de Celaya; the cost of Heller’s health insurance; office
expenses; and shipping costs.
D. Assets of Screen Creations, Ltd.
Heller testified that Screen Creations, Ltd. retains title to its
equipment and assets transferred to Mexico, including cutting
and sewing equipment formerly owned and used by Bolivar;
and screen printing equipment formerly used by Screen Crea-
tions, Ltd. Heller also acknowledged that Screen Creations,
Ltd. continues to hold the promissory note for $170,000 plus
interest reflecting the March 26, 1990 loan of $170,000 of
Screen Creations, Ltd.’s funds to Allan Heller. Heller admitted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD728
that he never made any payments to Screen Creations, Ltd. on
the loan; that he did not know if the loan had been forgiven;
and that he had never declared income on his personal income
tax form as a result of the loan being forgiven.
Screen Creations, Ltd.’s 2001 Federal tax form shows total
corporate income of $1,450.823. The 2001 Federal tax return
shows loans to shareholders in the amount of $366,929. Al-
though Allan Heller and his father Nate Heller are the only two
shareholders of Screen Creations, Ltd., Heller was not able to
state whether his father had outstanding loans from Screen
Creations, Ltd. or whether the loan to shareholders reflected on
Screen Creations, Ltd.’s 2001 tax return was the March 26,
1990 promissory note that Allan Heller signed after Screen
Creations, Ltd.’s loan of $170,000 to him.
The 2001 tax return of Screen Creations, Ltd. shows
$306,071 “due from affiliated companies.” Heller testified that
he believed that the $306,071 reflected amounts due to Screen
Creations, Ltd. from Bolivar, notwithstanding Bolivar’s 2001
Federal tax return that states the amount that Bolivar owed to
Screen Creations, Ltd. was $80,168.
Heller testified that in 2004 Screen Creations de Celaya had
revenues of approximately $1,500,000 and that its revenue
level increased in 2004 over its revenue level of 2003. Heller
testified that Screen Creations, Ltd.; Screen Creations de Ce-
laya; and he personally have not declared bankruptcy.
E. Documentation of Corporate Decisions/Salary
Screen Creations, Ltd.’s annual consent of directors forms
for 1990–1997 show the annual salaries paid by Screen Crea-
tions, Ltd. to Allan Heller and to his father Nate Heller, as well
as contributions to the corporate profit-sharing plan. The annual
consent forms do not set forth the amount of compensation
these individuals received in the form of benefits such as health
and life insurance, although other sources suggest that the cor-
poration provided such benefits. The records show that the
following salaries were paid:
YEAR SALARY SALARY PROFIT
NATE ALLAN SHARING
HELLER HELLER PLAN
1990 $201,250 $226,250 $104,653
1991 $156,800 $156,800 $50,000
1992 $239,850 $245,850 $102,720
1993 $219,000 $219,000 $100,000
1994 $134,000 $134,000 $0
1995 $104,000 $107,000 $0
1996 $136,000 $224,750 $0
1997 $136,000 $224,750 $30,000
Heller testified that the annual consent of directors’ forms for
the year 1998 and subsequent years were in existence, but that
he could not locate them and therefore had not produced the
records pursuant to counsel for the General Counsel’s sub-
poena. Heller stipulated as to the amount of salary that he re-
ceived in 1998 and subsequent years, but asserted that he did
not know the level of salary drawn by Nate Heller. Heller stipu-
lated that he received the following amounts in salary from
Screen Creations, Ltd. in the years indicated: (1) 2000–
$187,000; (2) 2001–$99,750; (3) 2002–$90,240; and (4) 2003–
$103,600. Respondents offered no evidence regarding the
amount of compensation received by Heller and his father from
Screen Creations, Ltd. in the years 1998 and 1999.
The Annual Consent of Directors of Screen Creations, Ltd.
dated September 1, 1997, paragraph 3 states that Screen Crea-
tions, Ltd.’s profit-sharing plan had been revised to include
Bolivar’s employees. As noted the Respondent did not produce
Screen Creations, Ltd.’s consent of director forms for actions
taken after 1997. Thus, the record does not show what, if any,
profit sharing monies went to Screen Creations, Ltd. or Bolivar
personnel after 1997.
IV. ANALYSIS
A. Bolivar’s Cessation of Business
A Board order is a vindication of public policy and is bind-
ing not only on a named respondent but also is binding upon
the respondent’s “officers, agents, successors and assigns.” As
the Board has stated “It is well settled that the mere discontinu-
ance in business does not necessarily render moot the allega-
tions of unfair labor practices against a respondent.” Redway
Carriers, Inc., 301 NLRB 1113 (1991). See East Dayton Tool
& Die Co., 239 NLRB 141 fn. 1 (1978); Armitage Sand &
Gravel, 203 NLRB 162, 166–167 (1973), enfd. in part 495 F.2d
759 (6th Cir. 1974), citing Southport Petroleum Co. v. NLRB,
315 U.S. 100, 107 (1942). Although Bolivar ceased operations,
its “officers, agents, successors and assigns” retain the respon-
sibility to manage the corporate assets so that the corporate
assets are available to remedy the corporation’s unfair labor
practices.
B. Allan Heller’s Personal Liability for Bolivar’s
Unfair Labor Practices
The parties argue opposite sides of the question as to
whether Allan Heller’s actions with regard to disposing of Bo-
livar’s assets should permit piercing of the corporate veil and
holding him personally liable.
It is axiomatic that the corporate form of business organiza-
tion serves the legal and policy purpose of promoting business
investment by protecting corporate shareholders against per-
sonal liability. “The insulation of a stockholder from the debts
and obligations of his corporation is the norm, not the excep-
tion.” NLRB v. Deena Artware, Inc., 361 U.S. 398, 402–403
(1960). See Cascade Energy & Metals Corp. v. Banks, 896
F.2d 1557, 1576 (10th Cir. 1990), cert. denied 498 U.S. 849
(1990) (the corporate veil should be pierced only reluctantly
and cautiously). In order to ensure the benefits of the corporate
legal fiction, however, the law requires the corporation to main-
tain a distinct and separate identity from its shareholders.
The Board in A.J. Mechanical, Inc., 345 NLRB 295, 296–
297 (2005), reiterated its test for determining whether the cor-
porate veil should be pierced. It noted that the proper analytical
framework for such a determination is articulated in NLRB v.
Greater Kansas City Roofing, 2 F.3d 1047 (10th Cir. 1993),
and set forth by the Board in White Oak Coal Co., 318 NLRB
732 (1995), enfd. 81 F.3d 150 (4th Cir. 1996):
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
BOLIVAR-TEES, INC. 729
shareholders, that the personalities and assets of the corpora-
tion and the individuals are indistinct, and (2) adherence to the
corporate form would sanction a fraud, promote injustice, or
lead to an evasion of legal obligations.
When assessing the first prong to determine whether the
shareholders and the corporation have failed to maintain 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 have been commingled. Among the
specific factors we will consider are: (1) whether the corpora-
tion is operated as a separate entity; (2) the commingling of
funds and other assets; (3) the failure to maintain adequate
corporate records; (4) the nature of the corporation's owner-
ship and control; (5) the availability and use of corporate as-
sets, the absence of [same] or undercapitalization; (6) the use
of the corporate form as a mere shell, instrumentality or con-
duit of an individual or another corporation; (7) disregard of
corporate 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 assets 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 cor-
porate veil must flow from misuse of the corporate form. Fur-
ther, the individuals charged personally with corporate liabil-
ity must be found to have participated in the fraud, injustice,
or inequity that is found. [Footnotes omitted.]
C. Allen Heller’s Personally Liability for
Bolivar’s Obligations
Allan Heller made the decision that caused Bolivar’s corpo-
rate assets to be removed from its Missouri operations and sent
to Mexico for the beneficial use by his Mexican business inter-
ests including Screen Creations de Mexico, Formtex, and Con-
fecciones Guanajuato. There are no accurate business records
of the transfer including an appraisal of the value of the trans-
ferred equipment. That equipment included not only the origi-
nal $170,000 worth of assets Heller purchased from Liber-Tees,
but additionally, the approximately $500,000 worth of equip-
ment subsequently purchased by Bolivar. Heller does not claim
that he ever had personal title to any of these corporate assets.
The removal of the assets was done without Bolivar receiving
any financial compensation and thus impoverishing Bolivar of
its asset base. The beneficiaries of the transfer were Allan
Heller, personally, and Screen Creations de Mexico—not Boli-
var. Such action demonstrates that Heller did not operate Boli-
var as a separate entity, commingled corporate assets, did not
maintain adequate business records of the transaction, used the
corporate form of Bolivar as a personal instrumentality, disre-
garded corporate legal formalities, failed to maintain an arm’s
length relationship among corporate entities, diverted corporate
assets to noncorporate purposes, and transferred and disposed
of Bolivar’s corporate assets without fair consideration. Heller
acknowledge that he was fully aware of the underlying litiga-
tion in this case and, as the owner of Bolivar, made no provi-
sion to set aside assets to cover potential liability resulting from
that litigation prior to draining Bolivar of its assets.
Allan Heller was Bolivar’s sole owner, officer, and director
and it is clear from the record evidence that he considered Boli-
var’s corporate property as his personal property to be disposed
of as he saw fit, regardless of the corporation’s legal obligations
and the need for meeting corporate formalities. The transfer of
Bolivar’s equipment and assets benefited Heller personally as
Heller made the entirety of Bolivar’s equipment available for
the use of his Mexican business interests including Formtex,
Screen Creations de Mexico, and Confecciones Guanajuato.
The Bolivar corporate entity purchased the business’ assets,
maintained, insured, and paid taxes on those assets. The equip-
ment that Heller appropriated for use in his other business en-
terprises constituted the entirety of Bolivar’s corporate assets,
and Heller’s appropriation of these assets resulted in the corpo-
ration being incapable of providing a monetary remedy pursu-
ant to the Board’s Order. The UCC security interest that was
filed in 1991 on Bolivar’s equipment expired by October 1996,
several years before the 1999 onset of Heller’s appropriation of
corporate assets for use in his Mexican business enterprises.
While the note on the original loan is still outstanding, it has
long been ignored and the evidence shows that no attempt has
ever been made by Heller, as the principal in Screen Creations,
Ltd., to collect on the note. The total disregard of the obliga-
tions under the two March 26, 1990 promissory notes is addi-
tional evidence supporting the piercing of the corporate veil as
it is clear that Heller simply did not consider the promissory
notes to be binding and that the notes were a device to advance
Heller’s personal business interests under the guise of corporate
shells.
Heller was the sole owner, officer, or director of Bolivar and
Heller’s control over the Company was absolute. Bolivar was
formed as a separate corporation but it was effectively an oper-
ating arm of Screen Creations, Ltd. Bolivar relied on Screen
Creations, Ltd. for its manufacturing business, operating funds,
office services and support, shared insurance policies and
profit-sharing plans. Bolivar used Screen Creations, Ltd.’s ad-
dress as its principal business address. Bolivar refused to inde-
pendently set a price for its product that would have provided it
with a reasonable level of profit. Bolivar was undercapitalized
with only $1000 designated as capital from its inception. Boli-
var failed to maintain adequate or correct business records.
There is no evidence that Bolivar maintained any minutes or
memoranda reflecting its business decisions, including accurate
records of its business decisions to close and dispose of its as-
sets; it did not keep accurate books reflecting its assets, but
rather its equipment that was transferred out of the country in
1999 and 2000 remained on its books as a corporate asset until
2001; and it did not conduct a third party appraisal of its assets
prior to transfer of the assets.
No appraisal was made on the property Heller appropriated
but Bolivar’s records show that the entity made an additional
$500,000 in purchases of equipment above that covered by the
original $170,000 loan. The Bolivar equipment continues in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD730
active service in Heller’s Mexican operations without any com-
pensation or accounting to Bolivar. Heller made no pretense of
maintaining the corporate form regarding the disposal of the
Bolivar assets.
While transferring possession of Bolivar’s assets to his
Mexican business enterprises, Heller transferred putative legal
title of Bolivar’s assets to Screen Creations, Ltd. This action
was accomplished without documentation of the alleged trans-
fer, lack of proof that such a transfer resulted in the reduction of
Bolivar’s debt, and in disregard of the value of the assets alleg-
edly transferred. I find that the record does not support the con-
clusion that Bolivar’s assets were legally transferred to Screen
Creations, Ltd. in January 1, 2001, as asserted by Allan Heller.
As stated in Seymour v. Hull & Moreland Engineering, 605
F.2d 1105, 1112 (9th Cir. 1979), and noted in NLRB v. O’Neill,
965 F.2d 1522, 1531 (9th Cir. 1992), the treatment of corporate
assets as one’s own often constitutes the most serious evidence
of disregard of the corporate form. I find that the evidence
establishes that the first prong of the White Oak Coal test, i.e.,
“failure to maintain distinct corporate and individual identities”
is met. I conclude, therefore, that the General Counsel has
proven the first part of the White Oak Coal test for piercing the
corporate veil.
As to the second part of the White Oak Coal test the evi-
dence shows that an adherence to the corporate form, and not
piercing the corporate veil, would “sanction a fraud, promote
injustice, or lead to an evasion of legal obligations.” Thus,
Heller was fully aware of the Board proceedings, including the
recommended decision by the administrative law judge issued
in September 1998 and the August 17, 2001 Board Order, when
the bulk of Bolivar’s equipment was transferred in September
1999 through October 5, 2001. The General Counsel has met its
burden of showing that the “fraud, injustice, or inequity”
flowed from Heller’s misuse of the corporate form through his
personal usurpation of Bolivar’s assets. Thus, it is not the fact
that Bolivar is incapable of paying its debts that matters; it is
the fact that Heller made a mockery out of separating his per-
sonal business interests (including his other corporations) from
Bolivar’s corporate form. See Scarborough v. Perez, 870 F.2d
1079, 1084 (6th Cir. 1989). (In most cases the mere fact that a
corporation is incapable of paying all its debts is insufficient for
a finding of injustice.) I find, therefore, that Heller’s actions in
evading the corporate duties required in conducting Bolivar’s
business, in preference to treating the corporate assets as his
own, dictates that the corporate veil be pierced and that he be
held personally liable for Bolivar’s debts arising from the
Board and court orders in this matter. Any other decision would
result in thwarting public policy by allowing Heller to success-
fully render Bolivar incapable of meeting its remedial obliga-
tions. Such actions would promote injustice and lead to an eva-
sion of legal obligations. U.S. v. Oscar Frommel & Bros., 50
F.2d 73 (2d Cir. 1931), cert. denied 284 U.S. 647 (1931) (“a
corporation cannot by divesting itself of all property leave
remediless the holder of a contingent claim”); F & W Oldsmo-
bile, 272 NLRB 1150, 1151 fn. 2 (1984) (“the fact that the
Board’s Order had not yet issued when the distribution took
place should not diminish the individuals’ obligations to the
backpay claimants”); AAA Fire Sprinkler, Inc., 322 NLRB 69
(1996) (personal liability imposed where there was manipula-
tion of three companies to evade compliance, lack of arm’s-
length dealing, undercapitalization of the company, and inter-
mingling of corporate and personal assets); Reliable Electric.
Co., 330 NLRB 714 (2000) (personalities and assets of com-
pany and owner indistinct); Bufco Corp., 323 NLRB 609
(1997), enfd. 899 F.2d 608 (7th Cir. 1990) (Personal liability
imposed where there was dissipation of corporate assets for
personal gain and an attempt to avoid legal obligations under
the Act).
D. Single Employer Status of Bolivar and
Screen Creations, Ltd.
Single-employer status is characterized by the absence of an
arm’s-length relationship found among unintegrated compa-
nies. The court in Al Bryant, Inc., 711 F.2d 543, 551 (3d Cir.
1983), cert. denied 464 U.S. 1039 (1984), summarized the ap-
propriate legal test to assessing single-employer status:
Four criteria have been used by the Board in determining
whether separate entities constitute a single employer: interre-
lation of operations, common management, centralized con-
trol of labor relations, and common ownership. Radio & Tele-
vision Broadcast Technicians Local Union 1264 v. Broadcast
Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877,
13 L.Ed.2d 789 (1965) (per curiam); see also NLRB v.
Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d
1117, 1121–1122 and 1121 fn. 1 (3d Cir. 1982); Sakrete of
Northern California, Inc. v. NLRB, 332 F.2d 902, 905 fn. 4
(9th Cir. 1964), cert. denied,379 U.S. 961, 85 S.Ct. 649, 13
L.Ed.2d 556 (1965); Parklane Hosiery Co., 203 NLRB 597,
612 (1973). The Board finds no one factor controlling, al-
though it has stressed the first three factors, particularly cen-
tralized control of labor relations, which tend to show “opera-
tional integration.” Id.; see also NLRB v. Jordan Bus Co., 380
F.2d 219, 222 (10th Cir. 1967); Parklane Hosiery Co., 203
NLRB at 612. Ultimately, single employer status depends on
all the circumstances of the case and is characterized by ab-
sence of an “arm’s length relationship found among uninte-
grated companies.” Local No. 627 International Union of Op-
erating Engineers v. NLRB, 518 F.2d 1040, 1045–1046 (D.C.
Cir. 1975), affd. on this issue per curiam sub nom. South Prai-
rie Construction Co. v. Operating Engineers Local 627, 425
U.S. 800 (1976); see NLRB v. Don Burgess Construction
Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied 444 U.S.
940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979).
Allan Heller has ownership of 100 percent of Bolivar and 60
percent of Screen Creations, Ltd. He was the governing figure
in the supervision and management of both corporations, in-
cluding exercising overall operational and financial control of
both entities. Bolivar was formed using funds loaned to Allan
Heller by Screen Creations, Ltd. Heller never repaid this loan.
Bolivar performed production work only for Screen Creations,
Ltd. In performing this work, Bolivar never earned a reasonable
profit. Bolivar depended upon Screen Creations, Ltd. for ongo-
ing advances of operating funds and for providing unpaid
“back-office” services, including bookkeeping and payroll ser-
vices. Bolivar and Screen Creations, Ltd. shared a common
BOLIVAR-TEES, INC. 731
profit-sharing plan. The assets of Bolivar and Screen Creations,
Ltd. were covered by a single insurance policy and the policy
refers to Screen Creations, Ltd. as having two business ad-
dresses: one at 804 Texas Court, O’Fallon, Missouri (Screen
Creations, Ltd.), and one at Bolivar’s plant at 307 South Pike,
Bolivar, Missouri. Bolivar used Screen Creations, Ltd.’s 804
Texas Court address in O’Fallon, Missouri, as its business ad-
dress. Bolivar’s Federal tax returns refer to Screen Creations,
Ltd. as an “affiliated company.”
Screen Creations, Ltd. has never filed for bankruptcy and
continues in operation as a “service” entity that provides ser-
vices to Heller’s Mexican business enterprises. Screen Crea-
tions, Ltd. has additional book assets, including alleged title to
the entirety of Bolivar’s production equipment/assets as well as
title to the production equipment of Screen Creations, Ltd. used
at its 804 Texas Court facility, which was insured for
$1,875,000 in 2001. In sum, I find that the evidence shows that
Screen Creations, Ltd. and Bolivar are a single employer.
E. Allan Heller’s Personal Liability for Screen Creations, Ltd.
Screen Creations, Ltd. was a legally recognized Missouri
corporation prior to October 21, 2004. I find that the evidence
shows it was operated as an admittedly “affiliated company”
with Bolivar. Allan Heller treated Screen Creations, Ltd.’s as-
sets in a similar fashion to the way he handled Bolivar’s as-
sets—he shipped them to Mexico for use by his Mexican busi-
nesses. This stripping of Screen Creations, Ltd.’s assets was
done without compensation or written agreement. Allan Heller
ran the Bolivar and Screen Creations, Ltd. as personal fiefdoms
when it came to such basic corporate matters as the funds, as-
sets, insurance, office expenses, tax treatments, joint bonus
pool, and production business relationships. Although the State
of Missouri administratively dissolved Screen Creations, Ltd.
on October 21, 2004, Heller continues to operate that business.
Screen Creations, Ltd. continues to pay for ongoing expenses
incurred in the operation of his Mexican enterprises. Heller’s
handling of the equipment transfers and the evidence of the
single-employer status of the two American corporations is
sufficient for me to conclude that the corporate veil shall be
pierced and that Allan Heller be held personally liable for the
financial responsibilities of Screen Creations, Ltd., which in-
clude Screen Creations, Ltd.’s liability as a single employer
with Bolivar to provide a remedy pursuant to the Board’s Au-
gust 17, 2001 Order. I additionally conclude that the surviving
unincorporated entity of Screen Creations, Ltd. is likewise re-
sponsible for the liabilities arising from the underlying Board
and Court of Appeals orders in this matter, and that piercing the
corporate veil is not necessary as regards the unincorporated
Screen Creations, Ltd.
F. Mexican Corporations as Single Employers
with the American Corporations
Regarding the remaining Parties to this proceeding the evi-
dence shows that Allan Heller owns 50 percent of Screen Crea-
tions de Mexico; 65 percent of Screen Creations de Celaya;
and, as previously noted, 60 percent of Screen Creations, Ltd.;
and 100 percent of Bolivar. Heller is the “presidente” of the
Mexican corporations. He exercised overall management au-
thority and control of these corporations. The corporate assets
from Bolivar were physically transferred to Screen Creations de
Mexico, and corporate assets from Screen Creations, Ltd. were
physically transferred to Screen Creations de Celaya without
compensation and without alteration of the corporate books to
show the transfer of assets.
Heller’s Mexican travel expenses and other business ex-
penses incurred while managing his Mexican business enter-
prises are paid for by Screen Creations, Ltd. That company also
pays for the insurance, sales, and technical support for Heller’s
dealings through his Mexican interests. Screen Creations, Ltd.
receives no compensation for these services. The common
ownership, management, interrelated operations, and lack of
arm’s-length dealing between Heller’s various business enter-
prises, including the transfer of property and providing of ser-
vices without compensation, establish that Heller’s four busi-
ness enterprises are a single employer, and therefore are sepa-
rately liable to remedy the obligations of Bolivar established in
the August 17, 2001 Board Order. The consequence of the
Heller’s actions in blurring the Bolivar’s separate identity and
misusing its assets is the diminished ability of that company to
satisfy its remedial and backpay obligations. I conclude that
Allan Heller, personally, and Bolivar, Screen Creations Ltd.,
Screen Creations de Mexico and Screen Creations de Celaya
are jointly and severally liable for remedying the Board’s order
of August 17, 2001, as enforced by the Court of Appeals judg-
ment dated June 23, 2003.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Respondents, Bolivar-Tees, Inc., Screen Creations Ltd.,
Screen Creations de Mexico, Screen Creations de Celaya, Sin-
gle Employers and Allan Heller, an individual, jointly and sev-
erally, shall make the following five employees whole under
the Board’s Order as enforced, by paying the following
amounts, plus interest at the appropriate rate, less any tax with-
holding required by Federal and State laws, and subject to the
accrual of additional amounts and additional interest until pay-
ment is effected:
Donna Pitts $20,270.29
Angela Carneal Howe $28,774.16
Darla Reaves $38,311.74
Nona Box $ 6,416.34
Geraldine Housel $ 2,626.62