Classic Lath & Plastering, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 11, 2009

01-CA-042734 (N.L.R.B. Feb. 11, 2009)

JD–04-09
Boston, Massachusetts
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CLASSIC LATH & PLASTERING, INC.,
and its alter egos FRAGATA CONSTRUCTION,
INC., RYAN BUILDERS, INC., R & S DRYWALL,
INC., and OCTAVIO FRAGATA, as an individual
and Cases 1-CA-42734
1-CA-43095
1-CA-43503
CARPENTERS LOCAL UNION NO. 94, 1-CA-43786
NEW ENGLAND REGIONAL COUNCIL
OF CARPENTERS, a/w UNITED
BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA
Susan Lawson, Esq. and Emily Goldman, Esq.,
for the General Counsel.
Octavio Fragata, of Gulf Breeze, Florida, for
the Respondents.1
Thomas Savoie, of Warwick, Rhode Island, for
the Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Boston,
Massachusetts, on September 22 and 23, 2008. The original charge was filed August 8, 2005,
with amendments and additional charges filed September 6 and December 12, 2005, February
22 and October 5, 2006, and February 16, 2007. The Regional Director issued a complaint on
December 21, 2005, and issued subsequent amended and consolidated complaints on August
28, 2006, and November 7, 2007.2 At the commencement of the trial, counsel for the General

1 No representative appeared on behalf of R & S Drywall, Inc. Octavio Fragata disclaimed
any ownership interest in that corporation and indicated that he was not representing it.
Nevertheless, given the potential impact of adverse findings against that company on the
remaining Respondents, as a practical matter I permitted Mr. Fragata to defend all of the
Respondents during the course of these proceedings. See, for example, my ruling at Tr. 256.
2 In connection with the issuance of each of these complaints, the Regional Director
provided notices to the Respondents informing them of their right to representation by counsel.
(GC Exhs. 1(j), (u), and (dd).) Respondents Classic Lath & Plastering, Inc., Fragata
Construction, Inc., and Ryan Builders, Inc., were represented by counsel at the time that they
Continued
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Counsel moved to further amend the second amended consolidated complaint in a number of
respects.3 This motion was unopposed. (Tr. 15-16.) On review of the record and in light of the
Respondents’ lack of opposition, I granted the motion to amend as being appropriate under the
standards set forth in Folsom Ready Mix, Inc., 338 NLRB 1172 at fn. 1 (2003). Once I granted
the motion, on September 23, 2008, the Regional Director filed an amended second
consolidated complaint that incorporates the amendments and represents the final version of
the allegations against the Respondents. (GC Exh. 1(tt).)
Because there are a number of Respondents in this case, I will abbreviate their names
for ease of reference and clarity. The lead Respondent, Classic Lath & Plastering, Inc., will be
referred to as “Classic.” The alleged alter ego corporations, Fragata Construction, Inc., Ryan
Builders, Inc., and R & S Drywall, Inc., will be referred to respectively as “Fragata Construction,”
“Ryan,” and “R & S.” The individual respondent, Octavio Fragata, will be referenced as “Mr.
Fragata.”
In response to the complaints, Classic, Fragata Construction, and Ryan, through their
former counsel, have filed answers denying the material allegations. R & S has never filed a
response.4 Mr. Fragata filed a pro se answer on December 7, 2007. Applying the Board’s
“more lenient standard applicable to pro se respondents,” I find that his answer is legally
sufficient as it does specifically address the substance of the key allegations of the complaint.
Eckert Fire Protection Co., 329 NLRB 920 at fn. 1 (1999).
Turning now to the nature of the controversy, the General Counsel alleges that Classic
voluntarily entered into a contract causing it to be bound by certain collective-bargaining
agreements with the Union. It is further alleged that, since May 2005, Classic has withdrawn
recognition from the Union and has repudiated those collective-bargaining agreements. In
addition, Classic allegedly failed to respond to the Union’s written request for certain information
that is relevant to its role as representative of employees of the Company. This course of
conduct is asserted to have violated Section 8(a)(5) and (1) of the National Labor Relations Act.
Beyond this, the General Counsel alleges that Fragata Construction, Ryan, and R & S are
continuations of, and alter egos to, Classic. Finally, it is alleged that Mr. Fragata has operated
the corporate respondents in a manner that failed to respect their separate corporate identities.
As a consequence, it is argued that it is necessary to impose individual liability on him in order
to avoid fraud or injustice to injured parties. As previously noted, these allegations are denied
by the Respondents.
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responded to the first two complaints. Subsequently, they have proceeded without such
representation. Respondent, R & S Drywall, Inc., has never formally participated in this
proceeding, either through counsel or otherwise. The individual respondent, Octavio Fragata,
has represented himself throughout. In addition to the notices provided by the Regional
Director, I informed Mr. Fragata of the right of each Respondent to be represented by counsel
during a pretrial telephone conference. At trial, Mr. Fragata and the corporate respondents that
he represented elected to proceed without an attorney. (Tr. 7-10.)
3 The General Counsel had earlier provided written notice of intent to seek these
amendments. (GC Exh. 1(qq).)
4 Although R & S has never formally participated in this litigation, it is inappropriate to enter
a default judgment against it. See Metro Demolition Co., 348 NLRB 272 (2006) (Board refuses
to enter default against nonanswering respondent whose alleged liability was “derivative and
stemmed from its alleged status as a single employer with (or alter ego of) another respondent
who filed a timely answer”).
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For the reasons set forth in detail in this decision, I find that Classic did bind itself to
the obligations contained in the collective-bargaining agreements. Subsequently, Classic failed
to comply with the requirements set forth in those agreements and repudiated them. Classic
also failed to meet its obligation to provide the Union with relevant information that it had
requested. I also conclude that the General Counsel has proven that Fragata Construction,
Ryan, and R & S represent continuations of, and alter egos to, Classic. As a result, their failure
to comply with the obligations assumed by Classic under the collective-bargaining agreements
was also unlawful. Finally, I have determined that Mr. Fragata treated each of the corporate
respondents as mere extensions of himself and that it is necessary to impose personal liability
on him for the corporations’ unlawful actions in order to prevent an inequitable result.
On the entire record,5 including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General Counsel and Mr. Fragata, I make
the following
Findings of Fact
I. Jurisdiction
I find that Classic is a Massachusetts corporation that has been engaged in the
carpentry business as a contractor in the construction industry with an office and place of
business in Westport, Massachusetts, where it has annually purchased and received at various
locations within the Commonwealth of Massachusetts goods valued in excess of $50,000
directly from points outside the Commonwealth of Massachusetts.6 I further find that Fragata
Construction has been engaged in the carpentry business as a contractor in the construction
industry with an office and place of business in Westport, Massachusetts, where it has annually
purchased and received at various locations within the Commonwealth of Massachusetts goods
and services valued in excess of $50,000 from points outside the Commonwealth of
Massachusetts.7 In addition, I find that Ryan is a Massachusetts corporation that has been
engaged in the carpentry business as a contractor in the construction industry with an office and
place of business in Westport, Massachusetts, where it has annually purchased and received at
various locations within the Commonwealth of Massachusetts goods and services valued in
excess of $50,000 from points outside the Commonwealth of Massachusetts.8 Finally, I find

5 The transcript of the trial is generally accurate, but several errors require correction. At p.
310, l. 22, “may” should be “they.” At p. 339, l. 7, “was in” should be “wasn’t.” At p. 418, l. 16,
“could” should be “couldn’t.” At p. 492, l. 18, “is asking” should be “is not asking.” Finally, the
statement made at p. 312, ll. 20-21, is the response of the witness to counsel’s question posed
at ll. 17-19. All other transcription errors are not significant or material. It should also be noted
that the reporter inadvertently entered two separate copies of GC Exhs. 41, 42, and 43 into the
record. In his brief, the General Counsel requests that I admit into evidence a single page of
GC Exh. 51(a) that was inadvertently omitted. (GC Br. at p. 50, fn. 41.) As this is unopposed
and there is no possibility of prejudice involved, I grant this request.
6 The General Counsel presented proof of Classic’s corporate status. Classic’s answer to
the amended consolidated complaint admitted the facts and legal conclusions regarding
interstate commerce. (GC Exh. 1(w), p. 2.) Finally, during the course of the trial, Mr. Fragata
stipulated to the jurisdictional allegations regarding Classic. (Tr. 441.)
7 Once again, former counsel for Fragata Construction admitted the jurisdictional facts in his
answer to the amended consolidated complaint. (GC Exh. 1(w), p. 2.) Mr. Fragata also
stipulated to the jurisdictional allegations. (Tr. 446—447.)
8 Again, on behalf of Ryan, former counsel admitted to the jurisdictional facts in the answer
Continued
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that R & S is a Massachusetts corporation that has been engaged in the carpentry business as
a contractor in the construction industry with an office and place of business in Westport,
Massachusetts, where it annually purchased and received at various locations within the
Commonwealth of Massachusetts goods and services valued in excess of $50,000 from points
outside the Commonwealth of Massachusetts.9 In conclusion, I find that all of the corporate
respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. I also conclude that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
The central issue in this case involves the conduct of Classic’s labor relations. The
Company was organized as a Massachusetts corporation on May 19, 1999. At the time of its
founding, all of the corporate offices were held by Luis Freitas. (GC Exh. 6, p. 6.) Almost
immediately, a notice was filed with the secretary of the Commonwealth reporting that Mr.
Fragata had become the treasurer and secretary of the Company. (GC Exh. 6, p. 8.) Six
months later, on January 18, 2000, a further certificate of change was filed showing that all of
the corporate offices were now held exclusively by Mr. Fragata. In addition, he was listed as the
sole director of the corporation. (GC Exh. 6, p. 13.) From that point forward, the evidence
clearly established that Mr. Fragata was in total control of Classic. As he put it, “I have no
dispute that I did Classic.” (Tr. 25.)
Classic was almost entirely engaged in the business of commercial construction.
Substantial portions of its projects involved carpentry work, including metal and wood framing
and installation of insulating materials and drywall. Almost immediately after assuming total
control of the corporation, Mr. Fragata hired Christine Prevost as the Company’s office manager
and secretary.10 As she described it, her duties included, “accounts payable, receivable, bank
reconciliations, the payroll.” (Tr. 76.) She also drafted the Company’s checks using a computer
software program.
_________________________
to the amended consolidated complaint. (GC Exh. 1(w), p. 2.) At trial, Mr. Fragata also entered
into a stipulation regarding the jurisdictional allegations concerning Ryan. (Tr. 447.)
9 As R & S did not formally participate in the case, there are no admissions or stipulations on
its behalf regarding jurisdiction. I have based my findings on the pertinent testimony of a
corporate officer, Sonia Tavares Fragata. (Tr. 552.) Beyond this, it is noteworthy that the Board
has approved another administrative law judge’s observation that, where corporations are
determined to be alter egos, “the jurisdiction over one corporation necessarily attached to an
alter ego.” G.M. Trimming, Inc., 279 NLRB 890, 892 (1986). See also the Board’s adoption of
another judge’s observation that, in alter ego situations, “[j]urisdiction attaches automatically.”
Scott Printing Corp., 237 NLRB 593, 594 (1978), enf. denied on other grounds, 612 F.2d 783
(3d Cir. 1979).
10 Prevost provided detailed and extensive testimony about virtually every significant issue
in this case. I was impressed with her demeanor and presentation, particularly her effort to
avoid any bias or partisanship. She had a detailed grasp of the facts and was able to shed
valuable light on the documentary evidence, much of which she had created in her role as office
manager. Her reliability as a witness was further underscored by the fact that most of her
testimony was both uncontroverted and extensively corroborated by documents and other
testimony. I found her to be an entirely credible witness.
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When established in 1999, Classic’s principal place of business was shown as 1265
Pleasant Street in Fall River, Massachusetts. This property was owned by Mr. Fragata. In
March 2000, the Company notified the Commonwealth that the principal place of business had
moved to 1002 State Road in Westport. (GC Exh. 6, p. 14.) This address was part of a larger
parcel of properties also owned by Mr. Fragata consisting of 992, 994, and 1002 State Road.
Prevost testified that the Company’s office was located in a room above a garage. The property
also included residences, a shed, and land used for storage of vehicles and equipment.
Early in its corporate existence, Classic did not have any relationships with labor unions.
As Prevost described, “[w]e were an open shop company.” (Tr. 78.) In the fall of 2001, the
Company participated in a project being overseen by Peabody, a union general contractor.
Since Peabody required that the subcontractors employ union labor, Classic contracted with a
union firm to perform its obligations related to the Peabody project. When this subcontractor
failed to complete the work, Classic was faced with a dilemma. Mr. Fragata chose to solve this
problem by having Classic enter into its own collective-bargaining relationship with the
Carpenters Union.
Classic’s agreement with the Union was consummated during a meeting held at the
Company’s office on November 18, 2001. Mr. Fragata was present on behalf of Classic. The
Union was represented by one of its organizers at the time, Gary DeCosta, and by its director of
contract relations, Louis Catanzaro. Of these participants, only DeCosta testified at the trial.
Apart from being uncontroverted, his testimony was clear, precise, and consistent with other
evidence regarding the events he described. I credit his account of this crucial meeting in all
respects.11
DeCosta testified that he raised an issue of particular concern to himself arising from his
knowledge of Mr. Fragata’s past business dealings. As he described it,
I knew Mr. Fragata’s history of owning several construction
companies . . . . So I was very clear with the fact that he
could not own and operate a non-union company while he
was under agreement with the Carpenters Union—a carpentry
related non-union company . . . . I explained to him the terms
of the agreement that any company that he controlled or was
a principal in, would be bound by the terms of this agreement.
(Tr. 392.) DeCosta reported that Mr. Fragata responded that, “[h]e was aware of it and he said
he was going to make a go of this and he was going to be a big union company.” (Tr. 393.)
After this discussion, Mr. Fragata was asked to sign a document entitled, “United
Brotherhood of Carpenters & Joiners of America New England Regional Council of Carpenters
Agreement.” Because it is only a single-page document, union officials refer to it as the “short-

11 In his posthearing brief, Mr. Fragata presents a vastly different version of the events of
that day, contending that the meeting was “hostile” and that he was “threatened.” (R. Br. at p.
1.) Of course, this account cannot form part of the evidentiary record as it was not given under
oath and subject to cross-examination. Furthermore, the contention that the Union bullied Mr.
Fragata into signing the agreement is inconsistent with the actual circumstances. It may be true
that Mr. Fragata felt pressure to reach an agreement with the Union due to the status of his
project with Peabody, but this is simply an ordinary business dilemma and does not represent
any improper coercion on the part of the Union.
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form agreement.” (Tr. 372.) The central provision of that document is the acknowledgement
that the employer, “accepts and agrees to abide by the collective bargaining agreements
between the various contractor associations and the unions . . . wherever those contracts shall
apply.” (GC. Exh. 50, par. 1.) A complete list of the applicable collective-bargaining
agreements is provided on the reverse side of the short-form agreement. In addition, the short-
form agreement describes in detail the procedures involved once a current collective-bargaining
agreement reaches its termination date. Thus, it provides:
The Employer agrees that it shall abide by any amendments or
successor agreements negotiated by the contractor associations
and the local unions . . . . If th[e] contracts expire and a successor
agreement has not been negotiated, the terms of the previous
agreement shall continue to be in effect until a successor agreement
is negotiated.
(G.C. Exh. 50, par. 1.)
Of particular importance to an understanding of the events in this case, the short-form
agreement contains the following provision regarding the steps required for a party to give
notice of termination:
The duration of this New England Regional Council Agreement
in each local union’s geographical area shall be co-extensive
with the terms set out in each of the collective-bargaining
agreements . . . unless either party to this Regional Council
Agreement gives notice of termination of this agreement in the
geographical area of a particular local in accordance with the
applicable notice provisions in the collective bargaining
agreements.
(GC Exh. 50, par. 2.)
Finally, the short-form agreement addresses two other matters that have arisen in this
litigation. Paragraph 5 notes that, “in order to prevent any device or subterfuge to avoid the
protection and preservation” of union work opportunities, the agreement is applicable to all
companies in which the signatory employer, “either directly or indirectly,” maintains “a significant
degree of ownership, management or control.” (GC Exh. 50, par. 5.) In addition, the
agreement notes that the employer “recognizes that the Union, pursuant to the National Labor
Relations Act, has the right to request that the Employer provide it with information relating to
whether it manages and/or coordinates contracts or work or selects subcontractors.” (GC Exh.
50, par. 5.)
DeCosta reported that Mr. Fragata was given “plenty of time” to read the agreement and
that he did not express any lack of understanding of its requirements. (Tr. 430.) DeCosta
described Mr. Fragata’s attitude and conduct as,
what I remember of it was that he was pretty confident that,
yeah, no problem, I’m going to make this work and it’s going
to be good. And he signed it.
(Tr. 438.) In fact, two originals were executed with each party receiving one of them.
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Two further steps were taken in order to implement this agreement. Classic prepared a
list of projects that were pending or for which it had already submitted bids. This was
transmitted to the Union and formed the basis for analysis of those jobs that Classic would be
permitted to continue to perform on a nonunion basis. (GC Exh. 65.) In addition, union officials
examined corporate records in the State’s database in order to determine whether Mr. Fragata
owned any other companies engaged in carpentry work. The purpose of this investigation was
to ensure that any such companies also signed the short-form agreement.
Upon completion of these preliminaries, Classic commenced its operations as a union-
affiliated company. It performed its work in accordance with the terms of the applicable
collective-bargaining agreements and paid wages and benefits as required by those
agreements. Prevost testified that she became responsible for the purchase of benefit stamps
and for the preparation of monthly reports to the Union. DeCosta reported that, to his
knowledge, Classic never failed to comply with the provisions of the agreements regarding the
payment of those benefits. The extent of Classic’s participation in its relationship with the Union
is revealed by examination of the Union’s benefit funds records which show that Classic paid a
total amount of $851,729.03 to those funds. (GC Exh. 64.)
At the time that Classic bound itself to the short-form agreement, there were applicable
collective-bargaining agreements in effect in Massachusetts and Rhode Island. By executing
the short-form agreement, Classic became a contractual party to those agreements as well. For
Rhode Island, the applicable contract was an agreement between the Association of General
Contractors and Local 94. (GC Exh. 44.) That contract had an effective date of June 4, 2001,
and a termination date of June 5, 2005. It provided that a party to the agreement must give
written notice of intent to terminate the agreement on or before April 5, 2005. Failure to provide
such notice signified acceptance of the contract’s terms for another 1-year period with an
identical notice provision 60 days prior to the expiration of that yearly extension. (GC Exh. 44,
art. 33.) The Rhode Island agreement also prohibited the subcontracting of work to
nonsignatory firms and contained the same language found in the short-form agreement
regarding the need to prevent subterfuge through the creation or use of other companies in
order to perform carpentry work in which the employer exercised “a significant degree of
ownership, management or control.” (GC Exh. 44, art. 28.)
By the same token, Classic’s assent to the short-form agreement bound it to observe the
terms of the collective-bargaining agreement between Associated General Contractors of
Massachusetts and the Union’s various locals in that jurisdiction. (GC Exh. 48.) That contract
had an effective date of October 1, 2001, and a termination date of August 31, 2005. It provided
that notice of intent to terminate the contract must be given in writing on or before July 1, 2005.
If such notice was not provided, the contract would be extended for another year with an
identical notice provision. (GC 48, art. 31.) It also contained the “subterfuge” provision that
prohibited the use of other companies that are owned, managed, or controlled by the signatory
employer in order to perform nonunion carpentry work within Massachusetts. (GC Exh. 48, art.
29.)
Matters continued in this posture with Classic performing carpentry work in Rhode Island
and Massachusetts as a union-affiliated contractor until the early months of 2004. On March 25
of that year, articles of incorporation were filed for a company named Fragata Construction Co.,
Inc. Mr. Fragata’s brother, Fernando Fragata, was listed as holding all of the company’s
corporate offices. The principal place of business was shown as 1002 State Road in Westport,
a property owned by Mr. Fragata.
Prevost testified that once Fragata Construction came into existence, she began to work
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for that firm as well as continuing her duties for Classic. She performed the same duties for the
new company. She noted that the original purpose for the new company was to enable
Fernando to operate a company that did taping and finishing of sheetrock. The company was
an open shop, but it performed no carpentry work. Later, Fragata Construction did begin to
employ carpenters. Prevost explained that she knew this because she did the payroll for those
employees. Among the carpenters hired by Fragata Construction were two men who were also
employed in that occupation by Classic, Benny and Erlin Mendosa. Prevost testified that if
these carpenters worked on a union job, they were paid union wages and benefits by Classic. If
they worked on a nonunion job, they were paid an “open shop wage” by Fragata Construction
and received no benefits. (Tr. 98.)
Prevost’s testimony was impressively corroborated by the account provided by Benny
Mendosa. He testified that, sometime in 2004, he was working as a carpenter for Classic at a
project involving a Lowe’s store. Mr. Fragata asked him to switch to a job for Fragata
Construction because work was slow. Mendosa refused, explaining that he wanted only union
work. Mr. Fragata warned him that he would be laid off and would be ineligible for
unemployment benefits because he had refused to take employment that was available for him
with Fragata Construction.
The relationship among Mr. Fragata, Classic, and Fragata Construction was clarified by
the filing on January 20, 2005 of Fragata Construction’s 2004 annual corporate report. While
that document continued to list his brother, Fernando, as the corporation’s only officer, it was
signed by Mr. Fragata himself. He further described his role in the company as both the “owner”
and its incorporator. (GC Exh. 7, p. 10.) Matters were further illuminated by a payment on
January 26 from Classic to Fragata Construction in the amount of $8,928.31 for “materials.”
(GC Exh. 39, p. 2.) Prevost testified that the reason for this transfer of funds was that, “[t]he
materials were purchased through Classic because Fragata’s accounts were not set up at that
point, to vendors.” (Tr. 132.)
The nature of the close connection between Classic and Fragata Construction began to
be revealed to the Union when DeCosta paid a visit to a jobsite at a Hampton Inn in Raynham,
Massachusetts, in the same month. He encountered Erlin and Benny Mendosa who were in the
process of hanging drywall. They told him they were currently working for Fragata Construction.
In March 2005, Classic made two substantial additional transfers of funds to Fragata
Construction to enable that company to purchase materials. On March 2, Classic deposited
$16,525.62 for that purpose. (GC Exh. 39, p. 6.) On the last day of the month, Classic’s
deposit to Fragata Construction was in the amount of $12,626.05 for the same purpose. (GC
Exh. 39, p. 10.) In the following month, on April 14, Classic made yet another transfer to
Fragata Construction in the amount of $17,057.86. (GC Exh. 39, p. 12.)
At the same time, the Union received additional reasons to become concerned about
Classic’s compliance with its contractual obligations. Thomas Savoie, the Union’s business
representative and organizer in Rhode Island, testified that in April 2005 he received a tip that
Classic was performing work at a jobsite in Warwick. Savoie and a colleague went to
investigate and encountered carpenters engaged in their work. As Savoie described it, when
asked who they were employed by,
one of them started to say Classic Lath, and even before they
could get much more out than that, somebody, I believe it was
their foreman, came up to him and corrected them and told
them, that no, no, no, they were actually working for Fragata
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Construction . . . . Classic Lath isn’t in business. And [it] doesn’t
do work anymore. Doesn’t do union work anymore.12
(Tr. 331-322.)
After this conversation, Savoie telephoned Mr. Fragata in order to confront him about
Classic’s apparent violation of the agreement with the Union. He testified that Fragata told him
that Fragata Construction was not his company and claimed that he was just working for his
brother. Savoie disputed this, asserting that it was actually his own company. Fragata replied
that, “I couldn’t prove that.” (Tr. 339.) He added that, “he wasn’t going to do any more union
work. That he didn’t like the union anymore.”13 (Tr. 340.)
It is important to note that, while these events were transpiring, the deadline for providing
notice of intent to terminate the contractual relationship between Classic and the Union in
Rhode Island, April 5, 2005, passed without either party having exercised its rights to provide
such notification. Despite this, Classic made its final remittance report for payment of union
benefits in Rhode Island on May 5, reflecting benefits earned by its employees for the payroll
period ending April 29. (GC Exh. 63, p. 4.) It has not paid such benefits since that time.
Given the Union’s concerns regarding the situation, on May 12, 2005, one of its
attorneys, Aaron Krakow, Esq., addressed a letter to Classic advising the Company that the
Union, “is currently investigating the extent to which union companies and their officers and
principals may be operating, managing or controlling a non-union company.” (GC Exh. 59, p.
1.) He went on to assert that, “your Company is operating a non-union company, Fragata
Construction, Inc.” (GC Exh. 59, p. 1.) Krakow made a demand that Classic provide responses
to a series of 79 questions contained in an attached questionnaire. Those questions were
designed to obtain information regarding the issue addressed in Krakow’s letter. It is
undisputed that Classic has never responded to this demand for information.
On June 5, the parties’ 2001 collective-bargaining agreement covering Rhode Island
reached its termination date. At the same time, the multiemployer association concluded a new
agreement effective on that date and running until June 7, 2009. (GC Exh. 45.) It contained the
same pertinent provisions regarding the prohibition of subcontracting with nonunion firms,
payment of union wages and benefits, prohibition of subterfuges designed to avoid union
obligations, and mechanism for providing notice of intent to terminate. Pursuant to its
commitments set forth in the short-form agreement with the Union, Classic automatically
became obliged to comply with the terms of this collective-bargaining agreement.
During the period immediately preceding and succeeding the effective date of the new
collective-bargaining agreement, Classic continued to engage in substantial financial
transactions with Fragata Construction. For example, on May 11, Fragata Construction
deposited $27,713.60 to Classic in order to fund Classic’s purchase of materials on behalf of
Fragata Construction.14 (GC 39, p. 14.) On May 31, Classic loaned Fragata Construction the
sum of $10,000. (GC Exh. 39, p. 15.) Two days later, Fragata Construction deposited
$17,770.34 to Classic’s account. (GC Exh. 39, p. 18.) Prevost testified that, while the register
shows this to be a loan, given the odd amount of the deposit, it probably represented a payment
to be used to purchase materials for Fragata Construction’s use. On June 17, Fragata

12 I have considered this hearsay only for the light it sheds on Savoie’s subsequent actions.
13 Savoie’s account of his conversation with Mr. Fragata is uncontroverted, and I credit it.
14 The purpose of this transfer of funds was explained by Prevost. (Tr. 150.)
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Construction made another deposit of $38,867.71 to Classic for purchase of materials. (GC
Exh. 39, p. 19.) This was followed on June 23 by a loan from Fragata Construction to Classic in
the amount of $3500. (GC Exh. 39, p. 19.) Five days later, Fragata Construction deposited
$46,453.92 to Classic’s account. The register shows this as, “Materials and Loan.” (GC Exh.
39, p. 19.) Prevost confirmed the dual nature of this transaction. Her testimony also shed light
on the informal nature of the financial relationship between the two companies by her admission
that she could not recall or discern the amount of these funds that represented a loan as
compared with those intended for the purchase of materials.
During this period in the middle of 2005, the evidence demonstrates that Classic ceased
its performance under the collective-bargaining agreements and intensified its financial
relationship with Fragata Construction. This was confirmed by contemporaneous statements
made to employees by Mr. Fragata. Benny Mendoza testified that Fragata convened a meeting
of Classic’s employees. He told them that he would “have no more business with the union.”
(Tr. 488-489.) He added that, “everybody that he wanted to continue working with him[,] they
need to go work for, for the brother company—his Fragata Construction. Or you need to go for
[un]employment.” (Tr. 489.)
As was the case with the Rhode Island contract, the deadline for the provision of written
notice under the Massachusetts agreement passed on July 1. It is undisputed that Classic did
not provide such notification. Two months later, the agreement reached its termination date
and was succeeded by a new collective-bargaining agreement with a term extending from
September 1, 2005, through August 31, 2009. (GC Exh. 49.) By virtue of its commitments
under the short-form agreement, Classic became obliged to meet the obligations specified in
that new contract, including the terms regarding payment of union wages and benefits,
subcontracting only to union firms, refraining from subterfuges designed to avoid union
obligations, and mechanism for providing notice of intent to terminate.
During this period, on August 8, 2005, the Union commenced this litigation by filing a
charge against Classic alleging a violation of Section 8(a)(5) of the Act arising from Classic’s
failure to respondent to Attorney Krakow’s demand for information related to the operation of a
nonunion company by Classic. (GC Exh. 1(a).) Perhaps prompted by this formal salvo from the
Union, Classic gave its first written indication that it was terminating its relationship with the
Union. This came in the form of an Employer’s Remittance Report sent to the Union’s benefit
funds by Prevost on August 26, 2005. The report did not show payment of any benefits to
employees and was characterized as a “final report” by the placement of a checkmark in the box
for designation of such final reports. (GC Exh. 33.) Prevost testified that the reason she filed
this as a final report was that, “Octavio said he wasn’t going to be bidding any more union work.”
(Tr. 81.)
Shortly after Classic provided this first written indication of its position, the Union filed an
amended charge alleging that the Company had repudiated its collective-bargaining
agreements and was operating on a nonunion basis through another name. (GC Exh. 1(d).) In
the following month, Prevost made an effort to dispel any possible doubts about Classic’s
relationship with the Union. She filed a Massachusetts Employer’s Monthly Stamp Remittance
Report showing no benefit payments for its employees. In a large note written on the body of
this document, she reported that, “[w]e are no longer in the union. Please close all accounts.”15

15 DeCosta testified that Prevost’s notations on remittance reports were ineffective to
provide notice to the Union for a variety of reasons. The reports were sent to the benefit funds
which are separate entities from the Union as required by law. In addition, Prevost was not an
Continued
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(GC Exh. 34.) Counsel for the General Counsel asked Prevost why she made this notation:
COUNSEL: And, can you tell us why you wrote that on this report?
PREVOST: Cause we weren’t going to be doing any more union work.
COUNSEL: And, how did you know that?
PREVOST: Octavio had said that.
COUNSEL: To you[?]
PREVOST: Yes.
(Tr. 83-84.) A short while thereafter, Prevost returned another remittance report to the benefit
funds with a similar notification stating that, “[w]e are no longer in the union. Please stop
sending forms. Thank you.” (GC Exh. 35.)
On November 1, Mr. Fragata gave an affidavit to a Board agent regarding the
investigation of the Union’s unfair labor practice allegations, including those involving the
relationship between Classic and Fragata Construction. Exactly 2 weeks later, articles of
incorporation were filed with the Commonwealth of Massachusetts on behalf of a company
named Ryan Builders, Inc. This document showed Mr. Fragata as holding all of the corporate
offices and also being the sole director of the corporation. The corporation’s principal place of
business was shown as Mr. Fragata’s property located at 992 State Road in Westport. (GC
Exh. 8.) Prevost was again hired to serve that company as office manager and secretary.
A month later, Savoie wrote to Mr. Fragata providing a detailed account of the evidence
that he had acquired regarding the relationship among Classic, Fragata Construction, and Mr.
Fragata personally. (GC Exh. 60.) This was closely followed by the filing of a second amended
charge alleging that Fragata Construction was an unlawful alter ego of Classic. (GC Exh. 1(g).)
Thereafter, the Regional Director issued her first complaint alleging that Fragata Construction
was Classic’s alter ego. (GC Exh. 1(j).)
In the period immediately after the incorporation of Ryan, the records show a pattern of
transactions among Classic, Fragata Construction, and Ryan. One such notation bears
significance well out of proportion to the small size of the funds involved, a mere $150.50. On
December 29, 2005, a check in that amount was written by Fragata Construction to an attorney,
Dorothy Tongue, Esq. (GC Exh. 41, p. 35.) Prevost testified that the purpose of this
expenditure was “[t]o get up Ryan Builders.”16 (Tr. 188.)
Fragata Construction’s role in the creation of Ryan is further illustrated in far more
fiscally substantial fashion by a check it wrote in the amount of $14,741 to the Southeastern
Insurance Agency on December 30, 2005. Fragata Construction’s records show the purpose of
this payment to be, “Deposits for Ryan Builders.” (GC Exh. 41, p. 35.) Prevost confirmed that
_________________________
authorized corporate official empowered to provide such notification. Finally, and most
importantly, the notification completely failed to comply with the notice requirements in the
collective-bargaining agreements. I agree with his reasoning and his conclusion.
16 The Commonwealth of Massachusetts’ records confirm that Attorney Tongue filed the
articles of incorporation for Ryan. (GC Exh. 8, p. 11.)
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the money was for the purchase of workers’ compensation, general liability, and umbrella
coverage for Ryan.
On the last day of the year, the relationship among the three firms was memorialized in
writing in a document entitled, “Plan of Reorganization.” (GC Exh. 80.) This reorganization
involved the transfer of all assets and liabilities from both Classic and Fragata Construction to
Ryan. In remarkably clear and frank language, the document explains the reason for this action
as follows:
The purpose of this reorganization as agreed upon by the
boards of directors of Fragata Construction Co. Inc., Classic
Lathe [sic] & Plastering, Inc. and Ryan Builders, Inc. is as
follows:
1) To take the corporations in a different direction from a sales
and marketing standpoint which includes but, is not limited
to, the changing of the name of the corporation and
redirection of corporate focus.
2) To broaden the Corporations’ labor pool to enhance growth
and create new opportunities.
(GC Exh. 80, p. 4.)
If the record required any more demonstrative evidence of the interrelationship among
the corporations involved in this case, it was provided during the following month. At that time,
the Union’s officials were given information that Mr. Fragata was performing carpentry work at a
jobsite for a Wingate Hotel in Rhode Island. Savoie went to investigate and was told by a
foreman that the work was being done by Ryan. A few days later, the Union took photographs
of a delivery truck at the jobsite. As illustrated in those photos, the truck is plainly marked as
belonging to Classic. (GC Exh. 61.)
During this period in early 2006, the financial records continue to confirm the nature of
the relationships. On January 4, Fragata Construction wrote a check in the amount of $30,000
to Ryan with a notation that this was a “[t]ransfer to new company.” (GC Exh. 41, p. 36.)17
Prevost confirmed that the intent was to use the money to “pay Ryan’s bills with it.” (Tr. 189.)
She also verified that Ryan had not performed any services for Fragata Construction prior to the
receipt of these funds. This transaction was followed by a similar transfer of funds a week later.
On January 11, Fragata Construction transferred an additional $25,000 to Ryan. (GC Exh. 42,
p. 2.) Shortly thereafter, on January 20, Fragata Construction made a $12,000 transfer to Ryan
“to cover checks.” (GC Exh. 41, p. 36.)18 This was followed by another $30,000 transfer from
Fragata Construction to Ryan on January 27. (GC Exh. 41, p. 37.)19
While Fragata Construction was busy transferring funds to Ryan, Ryan was making
transfers of its money to Classic. On January 24, it made a deposit of $1000 into Classic’s
account. (GC Exh. 40, p. 1.) Equally striking, 2 days later Ryan paid a tax bill owed by Fragata.
Its records show that it issued a check to the Commissioner of Revenue Service of the State of

17 The transfer of these funds is verified in Ryan’s accounts as well. (GC Exh. 42, p. 1.)
18 Again, this transfer is confirmed in Ryan’s accounts. (GC Exh. 42, p. 4.)
19 This is also confirmed in Ryan’s accounts. (GC Exh. 42, p. 6.)
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Connecticut in the amount of $106. The purpose of this payment is listed as, “4th ¼ [Quarter]
Fragata . . . CT payroll taxes.” (GC Exh. 42, p. 6.) At the same time, Ryan paid Fragata’s
payroll taxes to Rhode Island in the amount of $3,135.21. (GC Exh. 42, p. 6.) Finally, Ryan
also took this occasion to pay Fragata Construction’s taxes owed to Massachusetts issuing
three checks in the total amount of $3,958.08. (GC Exh. 42, p. 6.)
The following month saw a continuation of this pattern of intermingling of corporate
funds. On February 1, Fragata Construction deposited $30,000 to Ryan’s account. (GC Exh.
41, p. 37.)20 Prevost testified that, at this point, Fragata Construction was no longer performing
any work. She reported that it transferred these funds to Ryan for payroll and startup expenses.
The practice of Ryan using its funds to pay the tax liability of the other corporations was also
repeated during the month of February. On February 22, Ryan issued a series of checks to pay
taxes owed by Fragata Construction and Classic to the governments of Massachusetts, Rhode
Island, and Connecticut. (GC Exh. 42, p. 12.) By what one can only characterize as a
felicitous coincidence, on this date the Union filed a charge against Ryan alleging that it was the
unlawful alter ego of Classic and Fragata Construction. (GC Exh. 1(r).)
Two days later, the corporations engaged in another telling series of financial
transactions. Ryan deposited $10,000 into Classic’s account. (GC Exh. 40, p. 1.) Prevost
explained that this money was used by Classic to make a loan payment to Sovereign Bank. At
the same time, Fragata Construction transferred $65,000 to Ryan. (GC Exh. 41, p. 8.) This
was followed on March 15 by another deposit from Fragata Construction to Ryan in the amount
of $70,000. (GC Exh. 41, p. 38.) In the same month, Ryan again gave Classic funds in the
amount of $6000 that it used to cover its loan obligations to Sovereign Bank. (GC Exh. 40, p.
1.) The pattern repeated in April, when Ryan deposited $15,000 in Classic’s account to cover
the loans. (GC Exh. 40, p. 1.) In a manner that illustrates the utter lack of respect given to
corporate formalities by these companies, on April 6, Ryan wrote checks to the Commonwealth
of Massachusetts to pay the annual report fees for Classic and Fragata Construction.21 (GC
Exh. 42, p. 21.)
In May, a new chapter of corporate maneuvering commenced with the filing of articles of
organization for a company named R & S Drywall, Inc. (GC Exh. 76.) The corporate offices
and membership on the board of directors were shared between Duarte Oliveira and Sonya
Tavares. These individuals are Mr. Fragata’s cousin and his future second wife. The firm’s
principal place of business is listed at 260 State Road in Westport. Once again, Prevost was
hired to serve as the company’s office manager and secretary.
In her testimony, Prevost provided clear insight into the rationale for the creation of the
new firm and its manner of operation. She reported that the Union had become aware of the
existence and activities of Fragata Construction. Their officials made numerous phone calls to
Mr. Fragata to complain about the violation of the short-form agreement. Mr. Fragata explained
to Prevost that, “[w]e were going to close that company.” (Tr. 104.) Instead, Mr. Fragata told

20 Confirmed in Ryan’s accounts. (GC Exh. 42, p. 8.)
21 As further illustration of the pattern of behavior involved in this case, it should be noted
that these two checks were not written consecutively. The annual report fees were paid by
checks numbered 1749 and 1751. Check 1750 was written by Ryan to Mr. Fragata’s former
wife for the purpose listed as “Child Support.” (GC Exh. 42, p. 21.) This aspect of the case, the
use of corporate funds to pay the individual expenses of Mr. Fragata, will be discussed in detail
in the section of this decision that addresses his personal liability for the unfair labor practices of
the corporations.
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her that he intended to establish a new corporation named R & S. Furthermore, he would not
put the new entity in his own name, “[b]ecause the unions wouldn’t be able to come after us, if it
was in other people’s names.” (Tr. 105.) Prevost also provided probative testimony regarding
the actual functioning of R & S. She noted that Mr. Fragata ran the company and “directed the
men.” (Tr. 106.) He also decided which projects the firm would bid on. Preparation of the bids
was done by Oliveira, Tavares, or himself.
On the day after R & S commenced its corporate existence, it entered into a contract
with Ryan. By the terms of this single-page document, Ryan purported to hire R & S to perform
its obligations with respect to the construction of a Hampton Inn in Norwood, Massachusetts.
The document is obviously not representative of an arm’s-length transaction as it fails to specify
even the most basic contractual terms, including the amount of money to be paid for the
performance of the work. It is signed by Mr. Fragata in his role as president of Ryan and by
Tavares in her role as “clerk” of R & S. (GC Exh. 23.) Nothing could more strongly suggest the
sham nature of this transaction than the concept that an experienced contractor such as Mr.
Fragata would enter into a contractual relationship with another corporation based on the
signature of a mere clerk.
Were confirmation of the true nature of this arrangement necessary, it was clearly
provided in the testimony of Josue Quinones. He reported that, in May 2006, he was employed
as a carpenter on a Hampton Inn project in Massachusetts. His employer switched from Ryan
to R & S. He described the changeover as being:
Just on the paycheck. No one told us that the company was
changing names. It just—we just change location where to
get picked up in the morning to go to work . . . . One day we
get our paychecks and they have a different company name.
(Tr. 500.) He also confirmed that both employers did not pay union wages or benefits.
Beyond all this, the familiar pattern of financial transactions among the corporate entities
resumed with R & S now playing a prominent role. On May 4, Ryan made a payment to R & S
in the amount of $40,000. (GC Exh. 42, p. 8.)22 On the next day, Ryan made another transfer
to R & S in the amount of $45,000 in order to “[c]over payroll.” (GC Exh. 42, p. 28.) Prevost
confirmed that the payroll in question was that of R & S. An identical transaction for the same
purpose took place exactly a week later. (GC Exh. 42, p. 3.) And exactly a week after that,
Ryan transferred $35,000 to R & S to cover the payroll. (GC Exh. 42, p. 28.) Prevost noted
that, by this time, Ryan was no longer performing any work of its own.
While Ryan was funding the operations of the new corporation, it also continued to
provide payments to Classic. On May 24, it transferred $15,000 to Classic to cover the loans
from Sovereign Bank. (GC Exh. 42, p. 28.) At the same time, it transferred $60,000 to R & S
for payroll. (GC Exh. 42, p. 28.) On June 2 and 8, Ryan again paid R & S’ payroll in the
amounts of $30,000 and $43,000. (GC Exh. 43, p.p. 7 & 9.)
At about this time, it is possible to infer that Mr. Fragata had decided to abandon his
scheme to continue operations in New England by creating and operating nonunion
corporations. The first concrete indication of this decision was the filing on May 12, 2006, of

22 Tellingly, this payment is confirmed in the very first entry on R & S’ books. (GC Exh. 43,
p. 1.)
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articles of voluntary dissolution for Ryan. (GC Exh. 8.) These were signed by Mr. Fragata as
chairman of the board of directors.23
While Ryan was being dissolved, Fragata Construction was continuing to transfer money
to Classic and R & S. On June 30, it made a deposit of $10,100 to Classic. (GC Exh. 40, p. 2.)
On the same day, it transferred $25,000 to R & S to “[c]over payroll.” (GC Exh. 41, p. 38.)
Again, Prevost confirmed that the payroll being covered was that belonging to R & S. Another
transfer to R & S in the amount of $35,000 took place on July 7. (GC Exh. 43, p. 14.) This was
followed by $9000 for payroll on July 15. (GC Exh. 41, p. 39.)
The next step in the process of unwinding his complicated affairs in New England took
place in July 2006 when Mr. Fragata moved to Florida. As he put it, “I’ve been out of business
since ’06.”24 (Tr. 26.) Frigata’s change of residence was followed by the decision to lay off
Prevost in August. Although she was laid off from full-time employment by the companies, she
continued to perform part-time work until October or November 2006.
On August 16, 2006, Classic filed articles of voluntary dissolution and a final corporate
annual report, both signed by Mr. Fragata. (GC Exh. 6.) At the same time, Fragata
Construction filed the same documents, also signed by Mr. Fragata.25 (GC Exh. 7.) In what is
perhaps a fitting capstone to these events, Ryan wrote a series of checks to the state
government to pay the fees associated with these filings. (GC Exh. 42, p. 32.) And, on the next
day, Ryan also transferred $10,300 to R & S to cover its payroll. (GC Exh. 42, p. 32.) While
R & S was continuing to receive infusions of funds from the other companies, it also made
transfers to them. On August 31, it paid $5500 to Classic. (GC Exh. 40, p. 4.)
As the corporate conglomerate continued to unravel, this litigation continued to grow.
On August 28, 2006, the Regional Director filed an amended consolidated complaint containing
allegations against Classic, Fragata Construction, and Ryan. (GC Exh. 1(u).) On September
25, Fragata Construction closed its checking account. (GC Exh. 41, p. 41.) This was followed
on October 5 by the Union’s filing of a charge against Mr. Fragata personally. (GC Exh. 1(x).)
On November 2, R & S made a number of filings with the Commonwealth. In particular, it filed a
statement of changes that showed Sonya Tavares as holding all of the corporate offices and
assuming the role of the sole member of the board of directors. That document also changed
the corporation’s principal place of business to Mr. Frigata’s property located at 992 State Road.
(GC Exh. 76.) The reason for these changes became evident on December 30, when Mr.

23 Although Ryan had been dissolved, it continued to fund the other companies, including a
$3000 deposit to Classic on June 21 and a $65,000 payroll transfer to R & S on June 22. (GC
Exh. 42, pp. 29 & 30.) Beyond this, on July 18, Ryan went so far as to pay off two loans made
by Sovereign Bank to Classic. The amounts of the payoffs were $40,330.99 and $23,191.77.
(GC Exh. 42, p. 31.) And, beyond even that, Ryan transferred $120,000 to R & S on July 21.
(GC Exh. 42, p. 31.) This was followed by another transfer a week later in the amount of
$23,000. (GC Exh. 42, p. 31.)
24 The reference here is to business in New England. There is certainly evidence that Mr.
Fragata continues to form corporations and engage in business in the State of Florida.
25 Once again, the fact that these companies purported to be dissolved did not stop the
pattern of payments to each other. These included an August 24 transfer of $39,010 from Ryan
to R & S for payroll and payables. (GC 42, p. 32.) There was a similar transfer on September 8
in the amount of $2500 and another on September 14 for $9000. (GC Exh. 42, pp. 32 & 33.)
Ryan deposited $5000 to Classic on September 28 and $5000 to R & S on October 31. (GC
Exhs. 40, p. 5 and 42, p. 34.)
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Fragata married Tavares. (GC Exh. 27.)
On February 16, 2007, the Union filed its ultimate charge, alleging that R & S was an
alter ego of Classic. (GC Exh. 1(aa).) On August 7, R & S filed articles of voluntary dissolution
signed by Tavares. (GC Exh. 76.) Finally, on November 7, the Regional Director filed a second
amended consolidated complaint that incorporates allegations against Classic, Fragata
Construction, Ryan, R & S, and Mr. Fragata personally. (GC Exh. 1(dd).)
B. Legal Analysis
1. Classic’s alleged violations of Section 8(a)(5)
The General Counsel’s fundamental allegations of employer misconduct in this case
concern the failure of Classic to comply with its statutory obligations with regard to the
relationship that it chose to enter with the Union. In particular, the complaint asserts that, since
approximately May 2005, Classic withdrew recognition from the Union and has failed to apply
the terms of its agreement to the employees of the four named respondent corporations. (GC
Exh. 1(tt), par. 27(b).) Beyond this, the complaint alleges that, in October 2005, Classic gave
notice to the Union that it was “terminating” and “repudiating” its agreement with the Union. (GC
Exh. 1(tt), par. 27(a).)
There is no dispute that Classic, through its owner, entered into the so-called short-form
agreement with the Union on November 18, 2001.26 The uncontroverted testimony establishes
that Mr. Fragata assumed these obligations voluntarily and even enthusiastically. Thereafter,
he continued to manifest his intent to maintain the contractual relationship with the Union by
complying with the terms of the short-form contract and its underlying collective-bargaining
agreements. This is particularly well illustrated by the fact that Classic remitted over $850,000
to the Union’s benefit funds on behalf of its employees.
While the General Counsel alleges that Classic engaged in a sub rosa termination of its
relationship with the Union in approximately May 2005, the evidence suggests that this course
of conduct began to evolve somewhat earlier. The decision to cease operation as a union-
affiliated employer was effectuated by the transfer of Classic’s operations to Fragata
Construction. It will be recalled that Fragata Construction came into existence in 2004 as a
corporation that listed Fernando Frigata as its sole corporate official. (GC Exh. 7.) Thus, it is
particularly significant that, on January 20, 2005, it filed its first annual report which was signed
by Mr. Octavio Fragata as both “[o]wner” and “[i]ncorporator.” (GC Exh. 7.) This apparent
change in management and direction of Fragata Construction reflects Mr. Fragata’s decision to
terminate his relationship with the Union by transferring Classic’s operations to the nonunion
company previously operated by his brother.27 This was made particularly clear 6 days later
when Classic made a deposit into Fragata Construction’s account in the amount of $8,928.31
for the purchase of materials for a construction job.28 (GC Exh. 39, p. 2.)

26 To underscore this point, I note that Classic’s former attorney filed an answer to one of
the versions of the complaint in this case wherein he stated, “Classic admits that it entered into
a collective bargaining agreement with the Union.” (GC Exh. 1(l), pp. 1-2.)
27 Prevost explained that, at the point when Octavio Fragata “began to run” Fragata
Construction, Fernando “wasn’t getting along with Octavio” and left that firm entirely. (Tr. 100.)
28 In fact, in an affidavit given on November 1, 2005, Mr. Fragata admitted that, even earlier,
“[i]n 2004, Fragata started to do a little bit of carpentry work.” (GC Exh. 25, p. 4.)
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As Classic’s operations continued to be transferred to Fragata Construction over the
next months, the Union began to become concerned over the continuing vitality of its
contractual relationship with Classic. These anxieties were heightened in April 2005 when a
person identified as a foreman for Fragata Construction told Savoie that Classic “[d]oesn’t do
union work anymore.” (Tr. 332.) Upon hearing this, Savoie spoke to Mr. Fragata directly. He
confronted him with the allegation that he was operating a nonunion company. Rather than
denying this reality, Mr. Fragata responded that Savoie would be unable to prove it. Of
particular importance, Mr. Fragata added that, “he wasn’t going to do any more union work.
That he didn’t like the union anymore.” (Tr. 340.)
Any remaining doubt that Classic had resolved to repudiate its contractual relationship
with the Union at this time was dispelled by two confirmatory events. First, the records of the
Union’s benefit funds reveal that the last payments received from Classic on behalf of its
employees were made in May 2005. (GC Exh. 63.) Second, one of Classic’s carpenters,
Mendoza, testified that at approximately this time Mr. Fragata convened a meeting of Classic’s
employees and informed them that that he would have “no more business with the union.” (Tr.
488-489.) Making his position abundantly clear, he told the employees that if they wished to
continue working for him, they needed to seek employment by Fragata Construction.
Based on this pattern of uncontroverted testimony and documentary evidence, I do not
hesitate to find that, no later than May 2005, Classic had unilaterally terminated its relationship
with the Union. As the complaint indicates, in the succeeding months Classic provided written
indications of this decision to the Union’s benefit funds. On August 26, Prevost filed a benefit
stamp report that purported to be a final report. (GC Exh. 33.) Two months later, based on
specific statements made to her by Mr. Fragata, Prevost submitted a benefit report that
contained the statement that, “[w]e are no longer in the union, please close all accounts.” (GC
Exh. 34.)
There is no doubt that Mr. Fragata intended these notations on the stamp reports and
his verbal statements to union officials to constitute notice of Classic’s termination of its
relationship with the Union. As he put it in his pro se answer to the second amended complaint,
Classic, on our monthly stamp reports, notified the Union that
business would cease operations . . . . I also contacted Local 94
several times earlier in the year verbally stating that Classic no
longer wished to be part of the Union and that it would cease
operations.
(GC Exh. 1(ff).)
The evidence clearly establishes that, commencing no later than May 2005, Classic
ceased to comply with its agreements with the Union and gave verbal and written notification to
the Union of its repudiation of those agreements. The question remains whether this course of
conduct was unlawful. In answering that question, it is apparent that Classic’s attempts to
terminate its agreements did not conform to the requirements for such termination set forth in
the agreements. Classic failed to give the type of timely written notice required by the short-
form agreement that it signed and also failed to give timely written notice as required by the
underlying collective-bargaining agreements that it became bound to honor by its assent to that
short-form agreement.
It is noteworthy that there is not really any dispute that Classic’s efforts to extricate itself
from its relationship with the Union failed to conform to the contractual requirements. In a bit of
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compelling, credible, and uncontroverted testimony, Prevost described a conversation with Mr.
Fragata wherein he told her that a union official had asserted that Classic’s notice of termination
was defective. As she described, Mr. Fragata asked Prevost to read the short-form agreement
in order to evaluate the official’s contentions. She did as he requested. She testified as to what
happened when she reported her conclusions to Mr. Fragata:
COUNSEL: Did you have a conversation with Mr. Fragata after you
had read the contract and, if so, what did you say?
PREVOST: I told him that we did have to withdraw and it had to be
written. It was suppose[d] to be done within so many days
prior to the collective bargaining expiration date. And, that
we hadn’t done that.
COUNSEL: And, what was Mr. Fragata’s response?
PREVOST: We’re still in the Union, then.
COUNSEL: That’s what his response was?
PREVOST: Yes.
COUNSEL: Did he express any concern to you about the fact that—
Well, let me ask you this. Do you recall his exact response?
PREVOST: Oh, shit. We’re screwed . . . . We’re just going to close the
company.
COUNSEL: Okay. Did he tell you what he was going to do with the
employees who were working at Classic Lath?
PREVOST: They were going to be laid off, or they were going to have
to find employment with his brother’s company . . . Fragata
Construction.
(Tr. 91.)
While there can be no doubt that Classic’s conduct violated the terms of its contract with
the Union, the question remains whether it also violated the terms of the Act. Section 8(a)(5)
and (d) of the Act generally obligate an employer to comply with the terms of an agreement that
it reaches with a union. In Section 8(f), the Act authorizes companies and unions in the
construction industry to enter into agreements with each other even if the union has not
established majority status among the employees of the company.29 Interestingly, prior to 1987,
the Board had held that, absent a showing of majority support for the union, such an employer
in the construction industry retained the right to unilaterally terminate its relationship with a

29 There is no doubt that the Companies named in this complaint are involved in the
construction industry. See Teamsters Local 83 (Stanley Matuszak), 243 NLRB 328, 330 (1979).
Indeed, for an example of a case involving an employer engaged in commercial drywall
installation that was found to have committed unfair labor practices similar to those alleged
here, see Design Drywall Ltd., Inc., 301 NLRB 437 (1991).
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union. R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied 480 F.2d 1186 (D.C.
Cir. 1973). In that year, in its landmark case of John Deklewa & Sons, 282 NLRB 1375 (1987),
enf. 843 F.2d 770 (3d Cir. 1988), cert. denied 488 US 889 (1988), the Board reversed course,
holding that agreements made pursuant to Section 8(f) would henceforward be enforceable by
application of Section 8(a)(5). The Board explained:
In reaching this conclusion, we note first that the obligations
we impose on an 8(f) employer through our application of Section
8(a)(5) to 8(f) agreements are limited to prohibiting the unilateral
repudiation of the agreement until it expires or until that employer’s
unit employees vote to reject or change their representative.
Importantly, this limited obligation is not imposed on unwitting
employers. Rather, it is a reasonable quid pro quo that is imposed
only when an employer voluntarily recognizes the union, enters into
a collective-bargaining agreement, and then sets about enjoying
the benefits and assuming the obligations of the agreement.
282 NLRB at 1387. (Footnote omitted.) As a consequence, in the language of Deklewa, once
Classic signed an agreement with the Union, “[t]his contract was binding, enforceable, and not
subject to unilateral repudiation by the Respondent.” 282 NLRB at 1389.
It is perhaps necessary to address one remaining question, whether the short-form
agreement was the sort of contract that created obligations arising from the underlying
collective-bargaining agreements that are enforceable under the terms of Deklewa. The type of
agreement signed by Classic is not unusual. As another administrative law judge has explained
in a decision subsequently adopted by the Board:
It is a relatively common practice in the construction industry
for an employer, which is not a member of an employer association,
to bind itself to agreements negotiated between an employer association
and a union. These employers will do so by signing what is referred to as
a “me too” or “short form” agreement. These “me too” agreements often
bind employers to successor master contracts negotiated between the
employer association and union and are enforced by the Board. See
W. J. Holloway & Son, 307 NLRB 487, 489 (1992), where an acceptance
agreement bound an employer to a master agreement and successor
agreements; Construction Labor Unlimited, 312 NLRB 364, 367 (1993),
enfd. 41 F.3d 1501 (2d Cir. 1994), where an acceptance agreement
bound an employer to the current master agreement and “any
successor agreement(s)”; Neosho Construction Co., 305 NLRB 100
(1991), where a stipulation bound an employer to “all future master
agreements”; and Z-Bro, Inc., 300 NLRB 87, 89 (1990), enfd. 950 F.2d
726 (8th Cir. 1991), where an agreement bound an employer to the
current master agreement and to “any renewals, additions, modifications,
extensions and subsequent [master] agreements.”
Gem Management Co., 339 NLRB 489, 496 (2003), enfd, 107 Fed. Appx. 576 (6th Cir. 2004).
From this, it is clear that Classic assumed obligations under the short-form agreement, the
collective-bargaining agreements referenced in that short-form, and any extensions or
successor agreements as delineated by the terms of that short-form agreement or those
referenced collective-bargaining agreements.
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In concluding this discussion, it is useful to cite an example of employer conduct that
mirrors the course of action undertaken by Classic in this case. In Consumers Asphault Co.,
295 NLRB 749 (1989), the employer, Consumers, entered into an agreement with a union that
bound it to observe the terms of the collective-bargaining agreement between that union and an
association of general contractors. Subsequently, as the Board described it, “Consumers
transferred employees from its payroll to that of its alter ego Buchanan in order to evade
obligations under [the collective-bargaining agreement] and repudiated that contract in violation
of Section 8(a)(5) and (1) of the Act.” 295 NLRB at 749. As just indicated, the Board found that
this was an unlawful evasion of the collective-bargaining obligation imposed by the Act.
Based on the great weight of the credible evidence, I find that Classic entered into a
short-form agreement with the Union that bound it to observe the terms of the various collective-
bargaining agreements referenced in that document. For a number of years, Classic lived up to
its contractual duties. By no later than May 2005, Classic engaged in a pattern of conduct that
constituted violations of those duties and was, in effect, a termination and repudiation of its
obligations under the short-form agreement and the collective-bargaining agreements. As of
October 2005, it had expressly repudiated all of those agreements by verbal statements and
written transmissions to the Union’s benefit funds. In failing to comply with the agreements and
in terminating and repudiating those agreements in a manner not authorized by their terms,
Classic acted in violation of Section 8(a)(5) of the Act.
In addition to its contention that Classic violated the Act by failing to comply with
commitments related to the terms and conditions of employment for its workers that it assumed
when it assented to the short-form agreement, the General Counsel also contends that Classic
failed to meet its statutory obligation to provide the Union with certain information alleged to be
necessary to the performance of its duties as the representative of those employees. The
specific types of information being sought by the Union related to its concern that Classic was
operating a nonunion alter ego company in order to evade its contractual obligations.
The Supreme Court has stressed the importance of the Act’s requirement that an
employer provide information necessary to permit a labor organization to police compliance with
such contractual obligations. As the Court observed:
There can be no question of the general obligation of an employer
to provide information that is needed by the bargaining representative
for the proper performance of its duties. Similarly, the duty to bargain
unquestionably extends beyond the period of contract negotiations
and applies to labor-management relations during the term of an
agreement.
NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). (Citations omitted.)
The employer’s duty to furnish information requested by the union is limited to those
materials that are relevant to the union’s representation of its unit members. Where, as here,
the information being sought does not relate directly to the terms and conditions of employment
of those members, the union must establish the relevancy of the items being sought. As the
Board has explained,
when the representative requests information that does not concern
the terms and conditions of employment for the bargaining unit
employees—such as data or information pertaining to nonunit
employees—there is no presumption of relevance, and the
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potential relevance must be shown. The burden to show relevance
is not exceptionally heavy, and [t]he Board uses a broad discovery-
type of standard in determining relevance in information requests.
Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006). (Internal quotation marks and citations
omitted.)
With these principles in mind, it is necessary to examine the nature and propriety of the
Union’s requests for information that are at issue in this case. There can be no doubt that when
Classic signed the short-form agreement, it assumed an obligation under the Act to provide
relevant information. Indeed, the agreement specifically discussed the duty to furnish the
particular type of information being sought in this case by providing that:
The Employer recognizes that the Union, pursuant to the National
Labor Relations Act, has the right to request that the Employer
provide it with information relating to whether it manages and/or
coordinates contracts or work or selects subcontractors.
(GC Exh. 50, par. 5.)
The evidence shows that the Union began to receive serious indications of a potential
contract violation relating to the relationship between Classic and Fragata Construction. In
January 2005, DeCosta visited a jobsite at a Hampton Inn in Raynham, Massachusetts. While
there, he observed Erlin and Benny Mendoza hanging drywall. They told him that they were
being employed to do this work by Fragata Construction. In the following April, Savoie received
a tip that Classic was working on a project in Warwick, Rhode Island. When he visited the site,
he saw carpenters engaged in construction activity. When he asked them the name of their
employer, he was initially told that it was Classic. Immediately thereafter, a person that Savoie
believed to be a foreman corrected this, explaining that the men were working for Fragata
Construction and adding that Classic was no longer doing union work. Armed with this
information, Savoie telephoned Mr. Fragata and confronted him regarding the relationship
between Classic and Fragata Construction. Instead of disclaiming any improper relationship,
Fragata simply told Savoie that he could not prove the existence of such a connection. He
added a comment that he no longer liked the Union and “wasn’t going to do any more union
work.” (Tr. 340.)
Just a few weeks later, on May 12, the Union’s lawyer sent a letter to Classic. The letter
made a formal demand for information related to the relationship between Classic and Fragata
Construction. It began by explaining the importance to the Union of deterring employers from
evading their contractual obligations by “operating, managing or controlling” nonunion firms to
perform carpentry work. (GC Exh. 59, p. 1.) It then advised Classic that, “[i]t has come to our
attention that your Company is operating a non-union company, Fragata Construction, Inc.”
(GC Exh. 59, p. 1.) As a result, it demanded that Classic furnish information regarding its
relationship with Fragata Construction by answering a series of questions set forth in an
attached questionnaire. Finally, the letter warned that a failure to respond would constitute a
violation of the Act, leading to legal action by the Union.
In its pleadings filed in this case, Classic has twice admitted that it received this letter.
(GC Exhs. 1(l), p. 2 & (o).) When it failed to respond in any way to the letter’s demand for
information, the Union filed a charge alleging that the refusal to furnish the information was an
unfair labor practice. This charge was filed on August 8. (GC Exh. 1(a).)
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The issue of whether the Union’s letter demanding information was in compliance with
its duty to establish the relevance of the data being sought falls within an area of law in which
there exists a degree of tension between the views of the Board and some appellate courts.30
In Cannelton Industries, 339 NLRB 996, 997 (2003), a case involving the same alter-ego issues
presented by this information request, the Board took note of this area of conflict while outlining
its continuing adherence to the following standard:
When a union requests information relating to an alleged
single-employer or alter-ego relationship, the union bears the burden
of establishing the relevance of the requested information. A
union cannot meet its burden based on a mere suspicion that an
alter-ego or single-employer relationship exists; it must have an
objective, factual basis for believing that the relationship exists.
Under current Board law, however, the union is not obligated to
disclose those facts to the employer at the time of the information
request. Rather, it is sufficient that the General Counsel
demonstrate at the hearing that the union had, at the relevant time,
a reasonable belief. Ultimately, it is the Board’s role, not the
employer’s, to act as the arbiter of whether the union’s evidence
supports a reasonable belief. (Citations omitted.)
I readily conclude that the union officials in this case possessed reasonable grounds to
believe that Fragata Construction was being operated as an alter ego of Classic for purposes of
evading Classic’s contractual obligations. Prior to making the demand for information, those
officials had spoken to carpenters engaged in construction as employees of Fragata
Construction. Savoie gave Mr. Fragata an opportunity to explain the relationship during their
telephone conversation. He advised Mr. Fragata that he had learned that Fragata was
“directing the men . . . and running the work.” (Tr. 339-340.) He also noted that, “my corporate
research had show[n] that you signed as the owner of that company.” (Tr. 33.) As a result,
Savoie asserted that Classic was in violation of the collective-bargaining agreement. In
response, Mr. Fragata declined to deny the relationship, merely opining that Savoie could not
prove it. He also told Savoie that he was not going to do any more union work.
Based on this evidence, I find that the Union possessed a reasonable belief that Fragata
Construction was being operated as an alter ego of Classic in direct violation of Classic’s
contractual obligations and to the detriment of the members of the bargaining unit that the Union
represented. In my view, the situation is indistinguishable from that presented in Oklahoma
Fixture Co., 333 NLRB 804 (2001), enf. denied on other grounds 74 Fed. Appx. 31 (10th Cir.
2003), where the Board found an unlawful refusal to provide information about an alleged alter-
ego relationship based on a union’s similar degree of investigation and acquisition of
knowledge.
I further conclude that, even if one were to require that the Union furnish Classic with the

30 I am quite familiar with the conflict in authorities on this issue. In Earthgrains Co., 349
NLRB 389 (2007), the Board adopted my recommended order requiring the employer to provide
certain information related to subcontracting based on somewhat conclusory statements made
as justification by the union it its letter demanding the information. The Fifth Circuit reversed
this portion of the order, holding that the union had failed to adequately explain the relevance of
the information “contemporaneously” with the demand. Sara Lee Bakery Group v. NLRB, 514
F.3d 422, 431 (5th Cir. 2008).
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underlying reasons that prompted its request for information about Fragata Construction, that
standard has been met. Thus, while the Union’s formal demand letter merely explained that the
purpose of the request was to investigate the relationship between Classic and Fragata
Construction, this had been preceded by the detailed telephone conversation between Savoie
and Mr. Fragata. During that discussion, Savoie informed Fragata that he had been observed
to be directing Fragata Construction’s employees and running its jobs. Beyond this, he reported
to Mr. Fragata that he had researched Fragata Construction’s ownership in the State’s
corporate records and learned that it was owned by Mr. Fragata. The Union’s letter, coupled
with Savoie’s earlier discussion, provided Classic with sufficient explanatory information to fully
elucidate and justify the demand for information about the alleged alter-ego relationship.31
Having concluded that the Union’s demand for information was both relevant to its duties
and sufficiently explained and justified to the Employer, I must also determine whether the
questionnaire was confined to appropriate demands for information. It poses a series of 79
questions designed to secure a wide variety of information regarding the operations of the two
companies under investigation. Of crucial importance, I note that this precise series of 79
questions has been approved by the Board in the past. In Brisco Sheet Metal, 307 NLRB 361
(1992), a union was investigating the relationship between an employer who was bound by a
collective-bargaining agreement and an alleged alter-ego company. The Board adopted the
administrative law judge’s conclusion that the union had established a reasonable basis for
seeking the information described in the identical 79 questions.32 It also adopted the judge’s
order requiring the employer to answer the questionnaire. See also Union Builders, Inc., 316
NLRB 406 (1995), enf. 68 F.3d 520 (1st Cir. 1995), where both the Board and the circuit court
specifically approved the relevance of the Carpenters Union’s 79-question information request
regarding alter-ego issues; ARC Rigging Corp., 2000 WL 33664163 (2000), where another
administrative law judge ordered the employer to respond to the Carpenters Union’s identical
79-question demand for information; and H & R Industrial Services, 351 NLRB 1222 (2007),
where the Board approved a judge’s finding that a failure to respond to the Union’s 79-page
questionnaire violated the Act. Based on my own review of the questions and these
precedents, I conclude that Classic violated the Act when it failed and refused to respond to the
Union’s demand for information embodied in the 79 questions.
Before addressing the issues regarding the identity of those responsible for remedying
the unfair labor practices that I have found to have been committed by Classic, it is necessary to
comment on one final matter related to liability. In the answers to amended complaints filed by
Classic’s previous attorney, the Company pled what it characterized as “the Affirmative Defense
of Statute of Limitations.” (GC Exhs. 1(o) & (w).) I will construe this as a reference to Section
10(b) of the Act, a provision that prohibits the issuance of a complaint based on any alleged
unfair labor practice that occurred more than 6 months prior to the filing of a charge.
Initially, I recognize that the Board typically holds that an affirmative defense that is

31 Perhaps in acknowledgement of the divide between the Board and some appellate courts,
Savoie eventually followed up the initial demand letter to Classic by providing a very detailed
account of the “information that led me to send the questionnaire to Classic Lath & Plastering
concerning Fragata Construction.” (GC Exh. 60.) That letter, dated December 2, 2005, clearly
conforms to any appellate directive requiring a union seeking information to state to the
employer the precise grounds for the request. Despite having received this detailed explanatory
account, Classic still failed to provide any response to the Union at any time thereafter.
32 The administrative law judge attached the entire questionnaire to his decision as an
appendix. 307 NLRB at 368-371.
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raised in an answer to the complaint is subsequently waived if the issue is not argued to the
judge at the trial or in a party’s brief. Wisconsin Bell, Inc., 346 NLRB 62 at fn. 8 (2005). While
these Respondents have not addressed this defense at trial or subsequently, in an abundance
of caution, I will assess the issue given that these parties are no longer represented by counsel.
The Board has summarized its standards for determining whether a claim is precluded
by Section 10(b) as follows:
The 6-month limitations period prescribed by Section 10(b)
begins to run only when a party has clear and unequivocal notice of
a violation of the Act. The requisite notice may be actual or constructive.
In determining whether a party was on constructive notice, the inquiry is
whether that party should have become aware of a violation in the
exercise of reasonable diligence. Constructive notice will not be found
where a delay in filing is a consequence of conflicting signals or
otherwise ambiguous conduct. (Internal quotation marks and citations
omitted.)
CAB Associates, 340 NLRB 1391, 1392 (2003).
In this case, the earliest indication of any concern regarding the status of Classic’s
compliance with its short-form agreement occurred in January 2005 when DeCosta visited the
Hampton Inn jobsite in Raynham. While there, he observed two carpenters engaged in hanging
drywall. They told him they were employed by Fragata Construction. While this could be
suggestive of a change in Classic’s operations, it must be recalled that the Company continued
to purchase benefits stamps for its employees through May. I conclude that DeCosta’s
encounter with the carpenters in Raynham was not sufficiently probative of any contract
violation so as to trigger an obligation to seek relief from the Board. Indeed, any suspicion that
Classic was engaged in a repudiation of the agreement would have been substantially vitiated
by its ongoing practice of paying union benefits to employees.
More concrete notice of contract repudiation took place in April 2005 during the
telephone conversation between Savoie and Mr. Fragata. Savoie testified that Fragata told him
at that point that he was no longer going to perform union work. Immediately thereafter, in May
2005, Classic ceased remitting any benefit payments to the Union’s funds. In August, Prevost
sent those funds a form that indicated it was a final report. However, it was not until October
that she made an effort to explicitly advise the Union’s funds that, “[w]e are no longer in the
union, please close all accounts.” (GC Exh. 34.)
On May 12, the Union responded to this evolving situation by formally seeking
information related to the relationship between Classic and Fragata Construction. When no
response was forthcoming, it filed an unfair labor practice charge against Classic alleging
violation of the Employer’s duty to provide this information. That charge was filed on August 8,
2005. (GC Exh. 1(a).) Less than a month later, on September 6, the Union filed an amended
charge alleging that Classic had repudiated its obligations to the Union. (GC Exh. 1(d).)
I conclude that the first unambiguous evidence of Classic’s repudiation occurred no
earlier than May 2005. At that point, Mr. Fragata had informed Savoie that he was no longer
going to work with the Union and Classic had ceased paying into the benefit funds. As the
Board has observed, “a contract repudiation need not be an express, written repudiation but
instead can be manifested by the respondent’s conduct.” St. Barnabas Medical Center, 343
NLRB 1125, 1129 (2004). The first point in time where Mr. Fragata’s statement and Classic’s
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conduct combined to constitute a manifestation of repudiation was no earlier than this moment.
As a consequence, the Union’s formal allegation of contract repudiation filed with the Regional
Office 4 months later was clearly timely.33
2. The status of Fragata Construction, Ryan, and R & S as alter egos of Classic
Having found that Classic has committed unfair labor practices, including the repudiation
of various contracts with the Union, it remains to be determined what persons or entities are
legally responsible for remedying these violations. To begin with, the General Counsel alleges
that three corporations, Fragata Construction, Ryan, and R & S, are merely disguised
continuances, and alter egos of, Classic. This is a significant contention because, as the Board
has explained, “[i]f an employer is found to be an alter ego of another employer that has a
contract with a union, the alter ego is also bound by that union contract.” Cadillac Asphault
Paving Co., 349 NLRB 6, 8 (2007). The Supreme Court has endorsed the Board’s
longstanding position on this issue, explaining that:
[Disguised continuance and alter-ego] cases involve a mere technical
change in the structure or identity of the employing entity, frequently to
avoid the effect of the labor laws, without any substantial change in its
ownership or management. In these circumstances, the courts have
had little difficulty holding that the successor is in reality the same
employer and is subject to all the legal and contractual obligations of
the predecessor. [Citations omitted.]
Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 259 at fn. 5 (1974).
As this issue arises with some degree of regularity, the Board has developed a detailed
set of criteria for evaluation of the relationship among corporations alleged to be alter egos. In
D. L. Baker, Inc., 351 NLRB 515, 520 (2007), it provided a comprehensive description of the
applicable standards:
In deciding whether one employer is the alter ego of another, the
Board considers whether the two enterprises have substantially identical
management, business purpose, operations, equipment, customers, and
supervision, as well as ownership. An employer’s intent to evade its
responsibilities under the Act by creating the alleged alter ego is also a
relevant consideration, but such an intent is not requisite to an alter ego
finding. The Board has found alter-ego status even though the entities
have different owners when the owners are in a close familial relationship.
No single factor is determinative, and not all the indicia need to be present
for the Board to find alter ego status. (Internal quotation marks and
numerous citations omitted.)
I will now evaluate the evidence regarding each of these enumerated factors.

33 In fact, the Union’s filing of the earlier charge alleging a failure to provide lawfully required
information was sufficient to toll the running of Sec. 10(b) since the Respondent’s delay in
providing that information would serve to excuse an otherwise untimely filing of a subsequent
charge alleging repudiation. See my discussion of this issue adopted by the Board in Bouille
Clark Plumbing, Heating, & Electric, Inc., 337 NLRB 743, 751 (2002), enf. 81 Fed. Appx. 377
(2d Cir. 2003), and the cases cited therein.
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Because they are interconnected in the circumstances of this case, I will first consider
the ownership, management, and supervision of the alleged alter-ego corporations as compared
with that of Classic. Of course, the starting point must be the ownership, management, and
supervision of Classic. Although Classic began its corporate existence with its offices being
held by someone else, as of January 18, 2000, it filed a declaration with Massachusetts listing
Mr. Fragata as its president, treasurer, clerk, and sole member of the board of directors.34 (GC
Exh. 6.) In the same month that Classic ceased making payments on behalf of its employees to
the Union’s benefit funds, it filed formal documents with the Commonwealth indicating that Mr.
Fragata’s future wife, Sonya Tavares, was now the corporation’s president, treasurer, secretary,
registered agent, and sole member of the board of directors. (GC Exh. 6.) Any attempt to take
this change seriously is completely undermined by additional formal documents submitted to the
Commonwealth on Classic’s behalf in August 2006. These consisted of an annual corporate
report and articles of voluntary dissolution. Both are signed by Mr. Fragata in his role as
president of the corporation. (GC Exh. 6.)
Beyond the corporate filings, the evidence clearly demonstrated that Mr. Fragata was
the sole owner and steward of Classic. He made all of the significant decisions and was in
charge of the management of all corporate affairs. Indeed, the extent of his ownership and
control is truly manifested by his regular and frequent diversion of corporate funds to pay for the
personal expenses of himself and his family. This pattern and practice will be discussed at
length in the next section of this decision concerning the issue of his personal liability in this
case.
The second corporate entity to be considered is Fragata Construction. Apart from the
obvious significance of its name, Fragata Construction’s history also shows that, at all pertinent
times, it was owned, managed, and directed by Mr. Fragata. It is true that at the time of its
creation in March 2004, Fragata Construction’s formal documents indicated that Mr. Fragata’s
brother, Fernando, held all of the corporate offices. (GC Exh. 7.) This is consistent with
Prevost’s testimony that the company was “formed for Fernando,” and was initially intended to
perform noncarpentry work exclusively.35 (Tr. 97.)
Not long after its foundation, the ownership, management, and control of Fragata
Construction shifted from Fernando to Octavio. As Mr. Fragata has explained, “[i]n 2004,
Fragata started to do a little bit of carpentry work.” (GC Exh. 25, p. 4.) As to the role of the two
brothers, Benny Mendoza testified that when problems arose, the two men would have loud
disagreements. Ultimately, Fernando would defer the decisions to Octavio, “every time.” (Tr.
476.) Eventually, the brothers parted way due to their disagreements. Prevost noted that, at
that point, Mr. Fragata “began to run the company” and “directed the men.” (Tr. 101.) While
there is some imprecision in establishing the exact date of this transition, consideration of the
timing of financial transactions between the two corporations shows that it occurred at the time
that Classic was ceasing its operations and Fragata Construction was taking over Classic’s
carpentry work.

34 Later, in 2004, Classic filed an appointment of a registered agent. This was also Mr.
Fragata. (GC Exh. 6.)
35 While the company was formed in order to create a business opportunity for Fernando,
Mr. Fragata made it clear in his affidavit that he was a major participant in the formation of the
firm. As he put it, “In 2004, Fernando and I opened Fragata to do the non-union portion of the
work.” (GC Exh. 25, p. 4.)
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The record is very clear as to the situation regarding ownership, management, and
control of Fragata Construction by the latter part of 2005. On November 1, 2005, Mr. Fragata
provided an affidavit in which he defined his role in the company as the “general operations
person for Fragata Corporation . . . . I’m running the work.” (GC Exh. 25, p. 1.) In the following
month, Fragata Construction filed amended documents with the Commonwealth showing that
Mr. Fragata had assumed all of the corporate offices and was the company’s registered agent
as well. (GC Exh. 7.) Finally, on August 16, 2006, Mr. Fragata filed articles of voluntary
dissolution for Fragata Construction. He signed these as the corporate president. (GC Exh. 7.)
Looking next at Ryan, the situation is crystal clear. That company, named for Mr.
Fragata’s son, was incorporated in November 2005. Its articles of incorporation list Mr. Fragata
as its president, treasurer, secretary, incorporator, and sole member of the board of directors.
(GC Exh. 8.) Prevost testified that Mr. Fragata “directed the men” and decided on the jobs for
which Ryan would prepare bids. (Tr. 106.) Beyond this, Mr. Fragata made a telling admission
during the course of his cross-examination of Benny Mendoza. He confronted the witness with
the following query:
Isn’t it true . . . that you mentioned to your cousin Erlin Mendoza
that the unions were planning to put Ryan, which was me at the
time, Builders out of business and try to get me back into the
union? (Italics added.)
(Tr. 493.) Finally, having created and run Ryan, Mr. Fragata was also the individual who filed
the articles of voluntary dissolution for the company in June 2006. (GC Exh. 8.)
The situation regarding the ownership and control of R & S is a bit different. While Mr.
Fragata did not seriously contest his role as the person in control of the other firms during the
pertinent periods and also acted as their representative during the trial of this case, he
steadfastly maintained that he had no relationship with R & S.36 As he put it in his pro se
answer to the second amended complaint, “I had no titles in this company, and had no
ownership of any stock.” (GC Exh. 1(ff).) While this may literally be true, it does not begin to tell
the whole story.
R & S filed articles of incorporation with the Commonwealth on May 2, 2006. Those
documents showed that Mr. Fragata’s cousin, Duarte Oliveira was corporate president and
treasurer, while Mr. Fragata’s future wife, Sonya Tavares, was the secretary. Both Olivera and
Tavares are listed as the firm’s directors. (GC Exh. 76.) By November, the situation changed.
New filings with the state government on November 2, 2006, show Tavares as the company’s
president, treasurer, secretary, registered agent, and sole director. (GC Exh. 76.) In the
following month, Mr. Fragata and Tavares were married.37 In August 2007, Tavares filed
articles of voluntary dissolution for R & S in her role as president of the company. (GC Exh. 76.)
As to who made the corporate decisions for R & S, Prevost testified that this was Mr.
Fragata’s role, even after he had moved to Florida. He accomplished this by frequent use of the
telephone and fax machine. The critical evidence confirming that Mr. Fragata was the person

36 Fragata inadvertently undermined his own contentions on this issue during his cross-
examination of Prevost by asking her, “What was the ultimate reason that we left R & S open?
Was it because I wanted to make money, which I knew I couldn’t work here because of the
Union?” (Tr. 255.) (Emphasis added.)
37 Tavares was 22 years old at the time of their marriage.
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who was meaningfully in charge of R & S is found in the Company’s financial records. As
discussed in detail at the appropriate points in this decision, R & S engaged in a series of
financial transfers among the companies owned and controlled by Mr. Fragata. Perhaps even
more tellingly, R & S participated in the practice of those companies paying the personal and
familial expenses of Mr. Fragata out of corporate funds and accounts.
In sum, the evidence as to corporate ownership, management, and supervision,
establishes that all four companies were owned by Mr. Fragata or his relatives, including his
future wife. During the pertinent time period, actual stewardship of the companies was entirely
Mr. Fragata’s responsibility. In Fallon-Williams, Inc., 336 NLRB 602, 602 (2001), it was noted
that, “[t]he Board has not hesitated to find alter ego status even though entities had different
owners, when the owners were in a close familial relationship.” In US Reinforcing, Inc., 350
NLRB 404, 406 (2007), the Board observed that it had never inferred alter ego status based on
“the context of unmarried cohabitating couples.” The decision went on to note that, while alter-
ego status had not been proven in that case, “we do not address whether such a relationship
can ever support an inference of substantially identical ownership and control.” 350 NLRB at
406. In my view, the evidence in this case, including the subsequent marriage of the concerned
individuals, calls for just such a finding. This is particularly true where Tavares testified, but
never made any assertion that she was the actual guiding officer or manager of the company.
Indeed, her hesitant, passive, and subservient demeanor and presentation underscored the
impression that she was simply being used as a figurehead by Mr. Fragata.
I will next consider the evidence regarding the operations, equipment, and customers of
the four companies. To begin, it is noteworthy that all of them operated during pertinent time
periods, from headquarters located on property owned by Mr. Fragata at State Road in
Westport. Indeed, Prevost testified that Fragata Construction moved its location to those
premises at the specific direction of Mr. Fragata, “so we didn’t have to pay rent, and so we could
have it in one building.” (Tr. 99.)
Prevost’s authoritative testimony, based as it was on her experience as office manager
for each of the four companies, also established that they shared the same vans and box truck.
She reported that the vehicles were owned by Classic, but the other companies used them
without paying any fees for this privilege. The situation was identical regarding a wide variety of
other carpentry equipment, including lifts, stagings, and Hilti guns. Once again, although each
of the other companies used Classic’s carpentry equipment, there were no written agreements
about this, nor were any funds exchanged. This was underscored in the testimony of Erlin
Mendoza who reported that Ryan and R & S used the same vans and carpentry equipment. I
asked him to clarify whether he meant the same type of vehicles and tools or the same actual
pieces. He responded:
Same people, same equipment—there was not 2 com—for me
there wasn’t 2 companies, that’s why it’s hard to tell which
company was which.
(Tr. 513.)
In addition to sharing the same premises, vehicles, and equipment, the companies
actually shared the same funds. I have previously described a number of frequent and large
financial transactions made among these supposedly separate corporate entities. This regular
practice was put into perspective by Prevost. As she put it when asked why money was moved
from one company to another, “[to] cover bills. Cover payroll. Some of them were to cover
materials . . . . There were some that were transferred when the new corporations opened.” (Tr.
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119.)
Lastly, it is noteworthy that the four companies made a practice of employing the same
personnel. Confirmation of this pattern was provided through testimony of several witnesses
and is corroborated by examination of the hiring records of the firms. It was perhaps best
illustrated by Sonya Fragata’s testimony confirming that R & S had employed a number of
supervisors, managers, and employees of the other companies.
It is also clear that, at the pertinent periods, each of the companies engaged in
operations in the business of carpentry that were identical to those that had previously been
performed by Classic. Thus, while Fragata Construction was originally created to perform
noncarpentry work, it was quickly transmuted into a carpentry company. As Prevost described,
during the period when Classic and Fragata Construction were both active, carpenters would
receive union wages and benefits if they worked on a union job for Classic, but those same
carpenters would be paid lesser sums and would not receive benefits if they worked on a
nonunion job for Fragata Construction. Similarly, Quinones reported that he worked for Ryan
and R & S, but the jobs he worked on for both companies were identical.
The final analytical factor is the presence or absence of evidence showing a motive to
evade contractual obligations or the requirements of the Act. The Board frequently (and
somewhat dryly) notes that such evidence of motive is “a relevant consideration, but such an
intent is not requisite to an alter ego finding.” D. L. Baker, Inc., 351 NLRB 515, 520 (2007). Of
course, where reliable evidence of an actual intent to evade the law is in fact present, it is
compelling proof in support of a finding of alter-ego status. In this case, such evidence is
present in abundance.
A useful starting point for assessing evidence of unlawful motivation is consideration of
statements made by Mr. Fragata himself. Apart from his taunt to Savoie in which, rather than
denying the creation of an alter ego, he simply asserted that it could not be proven, there are
other highly suggestive statements. In his affidavit to the Board agent, he explained that
Fragata Construction was developed “because the union work I was doing with Classic was
losing money.” (GC Exh. 25, p. 1.) He went on to explain, “I started to close Classic by getting
smaller contracts after the first year when I saw that union support was against me[,] not for
me[,] by giving me people who do not want to work.”38 (GC Exh. 25, p. 4.) While not definitive,
these comments, taken together, are certainly suggestive of a plan to close Classic and transfer
its operations to Fragata Construction so as to avoid the Union.
A similar glimpse into Mr. Fragata’s mindset is provided by examination of the document
prepared in December 2005 entitled “Plan of Reorganization for Classic, Fragata, and Ryan.”
That plan contains the following discussion:

38 In Diverse Steel, Inc., 349 NLRB 946, 947 at fn. 7 (2007), former Chairman Battista drew
a useful distinction between evidence showing a motive to avoid perceived high labor costs and
evidence showing a motive to evade the union itself. In his affidavit, Mr. Fragata’s precise
motive is less than clear. However, taking his statements in conjunction with a great deal of
additional evidence, I conclude that he was expressing an unlawful intent to avoid the
requirements of his contractual agreements and the terms of the Act. As former Chairman
Battista put it, there is evidence of improper motive when the statements form part of the
evidence showing that “the Respondent used a ploy to get rid of the Union by artificially creating
a new company to replace the old one.” Ibid.
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The purpose of this reorganization as agreed upon by the boards
of directors of Fragata Construction Co. Inc., Classic Lathe [sic] &
Plastering, Inc. and Ryan Builders, Inc. is as follows:
1) To take the corporations in a different direction from a sales and
marketing standpoint which includes but, is not limited to, the changing
of the name of the corporation and redirection of corporate focus.
2) To broaden the Corporations’ labor pool to enhance growth and
create new opportunities.
(GC Exh. 80, p. 4.) In furtherance of this plan, the document notes that Classic and Fragata
were transferring all of their assets and liabilities to Ryan. Taken in the context of the evidence
in this case, it is not difficult to see this statement of intent as being perilously close to an
admission that the corporate names and structures were being changed in order to impact on
the “labor pool.” The General Counsel has clearly shown what the nature of that change to the
labor pool was meant to be.
Beyond these rather strong hints contained in documents provided by Mr. Fragata, the
credible testimony of Prevost presents the full picture of his thought process. Thus, she testified
that she discussed the decision to close Fragata Construction and open Ryan with Mr. Fragata.
When she asked him why he was doing this, he told her, “[c]ause the unions were after us.” (Tr.
103.) Similarly, when R & S was established, Mr. Fragata explained to Prevost that he was
unable to put the new company in his own name, “[b]ecause the unions wouldn’t be able to
come after us, if it was in other people’s names.”39 (Tr. 105.)
Based on the body of convincing evidence showing that every factor probative of alter
ego and disguised continuance is present in this case to a compelling degree, I find that Fragata
Construction, Ryan, and R & S are each alter egos to, and disguised continuations of, Classic.
In light of this finding, it is necessary and appropriate to issue remedial measures against them
designed to ameliorate the harm caused to the Union and to the carpentry employees of the
four companies.
3. The personal liability of Octavio Fragata
Having just found it necessary and appropriate to hold the four corporate respondents
accountable for remediation of the unfair labor practices involved in this case, it is impossible to
overlook the fact that it may be entirely unrealistic to expect any practical result from this
determination. It will be recalled that Mr. Fragata filed articles of voluntary dissolution for Ryan
on June 12, 2006 and for both Classic and Fragata Construction on August 16, 2006.
Approximately a year later, on August 7, 2007, Sonia Fragata filed articles of voluntary

39 There is evidence that Mr. Fragata had other motives for his corporate creations in
addition to unlawful antiunion concerns. In his affidavit, he suggests a motive to remove assets
from the reach of his then spouse whom he was in the process of divorcing. In his comments to
Prevost regarding R & S, he observed that a company nominally owned by Tavares would be
eligible to bid on “minority women-owned projects.” (Tr. 105.) The Board holds that the
presence of such additional and unrelated motives does not vitiate the impact of the existence
of an unlawful motivation. See, D. L. Baker, Inc., 351 NLRB at 520 (proof that employer’s
“primary intent” was to evade taxes does not alter the relevance of evidence showing that a
secondary intent “was also to escape NLRB liability.”)
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dissolution on behalf of R & S.40
With this state of affairs very likely in mind, the General Counsel seeks an additional
order finding Mr. Fragata personally liable for the remediation of the unfair labor practices that
were committed by the four corporate entities that he directed and controlled. As the counsels
for the General Counsel put it:
By completely disregarding corporate legal formalities and by
treating corporate funds as indistinct from his own, Respondent
Fragata can be—and should be—held individually and personally
liable for the money owed to the Union funds and to those
employees who worked as carpenters for low wages and without
other benefits guaranteed by the applicable collective-bargaining
agreements.
(GC Br. at p. 3.)
In evaluating this demand, I am highly mindful that imposition of such personal liability is
an extraordinary remedy that must be approached with circumspection. As the Board has
recently emphasized, the insulation of stockholders from precisely this sort of corporate liability,
is a critical and longstanding element of the Federal common law
of corporations. It reflects a careful policy decision that such
protection is necessary in order to encourage business development
and entrepreneurship, and is not to be dispensed with lightly. Thus,
the party asserting that the corporate veil should be pierced, in this
case the General Counsel, has the burden of proof, and that burden
is a heavy one. (Citations and footnote omitted.)
Flat Dog Productions, Inc., 347 NLRB 1180, 1182 (2006).
In determining whether the General Counsel has carried his heavy burden on the issue
of personal liability, it is necessary to apply the “two-pronged test” enunciated by the Board in its
leading case of White Oak Coal Co., 318 NLRB 732 (1995), enf. 81 F.3d 150 (4th Cir. 1996).
The two elements that must each be established are that the shareholder and the corporation
failed to maintain separate identities, and that the maintenance of the corporate insulation from
personal liability would sanction fraud, promote injustice, or allow an inequitable evasion of legal
obligations. Crucial factors are the degree to which corporate formalities have been observed
and whether individual and corporate funds, assets, and affairs have been commingled. See

40 There are other strong indications that the corporate entities will not be in a position to
provide monetary relief. Fragata Construction’s checking account was closed on September 25,
2006. Classic’s former attorney filed an answer to the amended consolidated complaint in
which he reported that Classic, “has ceased business operations.” (GC Exh. 1(w), p. 2.) On
October 23, 2007, the Superior Court of Norfolk, Massachusetts entered a judgment against
Classic and Mr. Fragata on behalf of Sovereign Bank in the amount of $566,793.04. Finally, I
am about to detail the financial transactions directed by Mr. Fragata that served to strip the
corporations of their assets, leaving their empty shells to undergo formal dissolution. It appears
highly unlikely that any of the four corporate respondents retain any assets that could be applied
to remedy the violations in this case.
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D. L. Baker, Inc., 351 NLRB at 521 (2007).41
Since the Board has observed that, “[c]ommingling, treatment of corporate assets as
one’s own, and undercapitalization often constitute the most serious forms of abuse of the
corporate entity,” I will begin my analysis by examining Mr. Fragata’s record regarding these
types of misconduct. Infra at 522. The evidence in this respect is overwhelming. As with other
important aspects of this case, the key evidence consists of the persuasive and detailed
testimony of Prevost as corroborated and supplemented by the corporate financial records.
Thus, Prevost testified that Mr. Fragata used corporate assets to pay for his personal expenses,
“[a]lmost every month.” (Tr. 113.) She recited numerous examples of the use of corporate
funds to satisfy personal obligations. In the first instance, she reported that Mr. Fragata used
such assets to support his other business activities such as his rental properties and his
entrepreneurial activities in Florida. Secondly, he used this source of funding to satisfy
obligations arising out of the dissolution of his marriage to his first wife. Finally, he spent
corporate money freely to purchase highly personal items and services for his own use and
enjoyment.
The financial records fully support Prevost’s testimony and present a picture of wanton
disregard for corporate formalities and the legal obligations that underlie them.42 I will not
specifically discuss the entire enormous volume of evidence that leads to this conclusion, nor
will I attempt to parse those expenditures that, while highly suggestive of misuse, may have
some conceivable corporate justification. A focus on the obvious pattern of abuse clearly
suffices in concluding that the General Counsel has met his burden of proof regarding the
flagrant abuse of the corporate structure by Mr. Fragata.
I will begin the analysis by turning first to Mr. Fragata’s use of corporate assets to
support his portfolio of real estate investments. As just indicated, I will not include consideration
of his properties on State Road in Westport as these were used to some degree by the
corporations. Apart from them, he owned a variety of properties including his former family
residence. The residence was purchased with his former wife for $925,000 in 2002. It is
located at 14 Hetty Green Drive in Dartmouth, Massachusetts. The house was part of a gated
community managed by the Round Hill Association. On January 27, 2005, Classic issued a
check in the amount of $455.86 to purchase propane for the house. Indeed, the Company’s
check register candidly notes that the purpose of the expenditure was to purchase fuel for
“Octavio’s house.” (GC Exh. 39, p. 3.) Another check from Classic was issued on February 10,
2005, for the same purpose. (GC Exh. 39, p. 5.) A third check followed on March 2, 2005. (GC
Exh. 39, p. 7.) At the same time, Classic issued a check to the Round Hill Association in the
amount of $804 to pay association fees for the house. (GC Exh. 39, p. 7.) It is noteworthy that
this was followed on July 22, 2005, by another payment in the amount of $3863 to Round Hill by
Fragata Construction. Once again, the purpose is explained in that Company’s check register

41 The helpful discussion of the Board’s analytical methodology that is provided in D. L.
Baker, includes a recitation of the so-called Kansas City factors, nine specific considerations
that are useful in evaluating the degree of adherence to the separate corporate identity. 351
NLRB at 521, citing NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1052 at fn. 6 (10th Cir.
1993). I have considered these factors in performing the required analysis in this case.
42 I apologize in advance to the reader for the tedious nature of what follows. This is the
part of a life in the legal profession that never gets mentioned in such television dramas as “Law
& Order” or “Boston Legal.” I sometimes wonder how Perry Mason managed to avoid taking
any cases that required laborious analysis of financial records in order to prove his client’s
innocence.
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with a notation that it was for, “Octavio’s house.” (GC Exh. 41, p. 3.)
Six months later, on January 26, 2006, it was the turn of Ryan to make the payment in
the amount of $2,559.21 to the Round Hill Association. Ryan’s check register shows the
purpose as, “Octavio.” (GC Exh. 42, p. 6.) Ryan paid the Round Hill bill again on March 20,
2006. The amount was $2644. (GC Exh. 42, p. 17.) In the following month, Ryan paid
$1,533.28 to Antonio Medeiros. The purpose was described in the register as, “Landscaping for
Hetty Green Drive.” (GC Exh. 42, p. 22.) Finally, as of July 6, 2006, the fourth corporation,
R & S, issued a check in the amount of $3838 to the Round Hill Association for the Hetty Green
Drive property. (GC Exh. 43, p. 14.) Use of corporate funds to pay expenses related to this
property also included a check from Ryan to Sovereign Bank in the amount of $5,010.97 on
August 10, 2006. The purpose is described in Ryan’s register as, “Hetty Green mortgage.” (GC
Exh. 42, p. 32.) A month later, R & S paid Levesque’s Tree Service for work performed at the
Hetty Green property. (GC Exh. 43, p. 21.)
Apart from this home, Mr. Fragata owned two rental properties at 1263 and 1265
Pleasant Street in Fall River and another property on Reed Street in Bedford. Once again, the
corporations made frequent financial contributions to support these personal holdings of Mr.
Fragata. In January 2005, Classic wrote checks to pay for utilities and property taxes for
Pleasant Street. (GC Exh. 39, pp. 1 & 3.) In the following month Classic twice paid Smith Lock
for its services in changing locks on the rental units at Pleasant Street. (GC Exh. 39, pp. 4 & 5.)
In March, Classic paid a utility bill and another fee for changing locks for the rental units. (GC
Exh. 39, p. 7.) In April, Classic paid the property taxes owed to Fall River for the Pleasant
Street units. (GC Exh. 39, p. 12.) In July, it was Fragata Construction’s turn to write a check to
Fall River for taxes on the rental properties. As its register explained, the payment in the
amount of $1,043.44 was for “Taxes Pleasant St.” (GC Exh. 41, p. 3.) This was accompanied
on the same day by a check from Fragata Construction to cover utilities for those properties.
(GC Exh. 41, p. 3.)
It next fell to Ryan to pick up some of the costs for the Pleasant Street properties. On
January 26, 2006, it wrote a check to Fall River in the amount of $2,607.07 for tax liabilities.
(GC Exh. 42, p. 6.) In the following month, Ryan funded investment activities involving the
Reed Street rental property. It wrote checks covering roof repairs and eviction services. (GC
Exh. 42, p. 11.) By June 2006, it was R & S that issued a check in the amount of $787.81 for
what was characterized in its register as, “Water & Sewer Pleasant St.” (GC Exh. 43, p. 11.)
This was followed by a check from R & S to the New England Gas Company for fuel for the
Pleasant Street units. (GC Exh. 43, p. 14.) R & S also paid real estate taxes for the Pleasant
Street investments on July 27, 2006. (GC Exh. 43, p. 16.) When a hot water tank at the
Pleasant Street buildings needed replacement, R & S wrote the check for $775. (GC Exh. 43,
p. 21.) In October 2006, R & S paid both a tax bill and an electric bill for Pleasant Street. (GC
Exh. 43, p. 23.)
Turning to another subject, it is not surprising that the dissolution of Mr. Fragata’s
marriage to Maria Fragata would produce a variety of expenses. What is surprising, however, is
that the corporations’ funds were often used to satisfy those highly personal obligations. For
example, on January 27, 2005, Classic issued a check in the amount of $1000 to Andrew
Peppard for his services as the guardian-ad-litem in the divorce proceeding. (GC Exh. 39, p. 3.)
Later that month, the family court ordered Mr. Fragata to pay $300 per week in alimony and
child support. (GC Exh. 56.) The payment dated February 10, 2005, was made by Classic.
(GC Exh. 39, p. 5.) Prevost testified that she wrote similar alimony and support checks on a
weekly basis. These were written on corporate accounts and were in addition to Mr. Fragata’s
regular compensation payments. The documentary evidence corroborates this testimony
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regarding Mr. Fragata’s regular diversion of corporate funds in order to satisfy his obligations in
family court.43
In addition to alimony and support payments, Mr. Fragata used Classic’s account to
make a $678.31 loan payment for Maria Fragata’s Mercedes on March 31, 2005. More
significantly, Mr. Fragata used corporate funds on a variety of occasions to pay his legal bills
arising from the divorce. On July 20, 2005, Fragata Construction issued a check in the amount
of $2500 to his matrimonial lawyer, Peter Smola, Esq. (GC Exh. 41, p. 2.) On August 1, the
Company wrote a check for $882 to Mickelson Barnet, PC. Prevost testified that this had
something to do with the family court case and the check register confirms that the purpose of
the payment was for, “Octavio’s divorce.” (GC Exh. 41, p. 6.) On October 14, 2005, Fragata
Construction issued another payment to Smola in the amount of $5,887.50. (GC Exh. 41, p.
19.)
By January 20, 2006, Ryan had begun to issue the child support and alimony payments
from its account. (GC Exh. 42, p. 4.) The following month, Ryan also paid to renew the
registration on Maria Fragata’s Mercedes.44 (GC Exh. 42, p. 8.) On March 20, Ryan issued its
check to Smola in the amount of $4270. (GC Exh. 42, p. 17.) Another check to Smola for the
same amount issued from Ryan on May 12, 2006. (GC Exh. 42, p. 28.) In a vivid illustration of
the scale of the diversion of Ryan’s funds to pay for Mr. Fragata’s divorce, another check was
issued to Smola in the amount of $16,403 on May 24, 2006. (GC Exh. 42, p. 28.) Rounding out
the picture regarding payments to the divorce lawyer, R & S entered the scene on June 7, 2006,
by writing its check in the amount of $1575 to Smola.45 (GC Exh. 43, p. 7.) Thus, all four of the
corporate respondents in this case financed portions of Mr. Fragata’s divorce proceeding.
While the use of corporate funds for Mr. Fragata’s very personal legal problems clearly
illustrates the failure to adhere to the corporate formalities, it is merely one piece of a larger
mosaic of such evidence. For example, on February 23, 2005, Classic issued a check to pay
for Mr. Fragata’s acupuncture treatment. (GC Exh. 39, p. 5.) This was followed in the following
month by Classic’s check to Coastal Orthopaedics to pay for the amount not covered by medical
insurance for treatment of his son’s knee. (GC Exh. 39, p. 10.) In April and May, Classic made
payments for Mr. Fragata’s karate lessons. (GC Exh. 39, pp. 11, 12, &13.)
Another source of multiple diversions of corporate funds involved Mr. Fragata’s annual
trips to Portugal. Prevost testified that these trips had no business purpose. Despite this,
Fragata Construction paid $934 to Azores Express on August 17, 2005. (GC Exh. 41, p. 8.)
This was followed by a check to Portuguese Tours, another two to the Holiday Inn Azores, and
one to Hertz Car Rental. (GC Exh. 41, pp. 9, 12, & 13.) In the following year, it was Ryan’s turn
to provide funding for Mr. Fragata’s annual trip. That Company wrote checks to Mr. Fragata
with the notation that they were for, “Octavio Fragata Portugal.” (GC Exh. 42, p. 33.)

43 I will not detail each and every $300 check issued to Maria Fragata from corporate
accounts. These are all plainly described in the check registers. Although the payments were
originally made from Classic’s account, this shifted to Fragata Construction’s account as of July
7, 2005. (GC Exh. 41, p. 1.)
44 Prevost explained that because the Fragatas were separated, there was no possibility
that the Mercedes could have been used by Octavio for business purposes.
45 It should be recalled that Mr. Fragata has consistently maintained that he had no official
position with R & S, nor did he own any stock in the firm. Without doubt, the firm’s use of its
funds to pay for Mr. Fragata’s divorce demonstrates the extent of his actual dominion and
control over R & S.
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Mr. Fragata used corporate money to pay for a range of other personal expenses. On
October 14, 2005, Fragata Construction issued a check to the Town of Westport for taxes owed
on an automobile that Mr. Fragata purchased for his son. (GC Exh. 41, p. 19.) A few days
later, the Company issued a check to the Commonwealth of Massachusetts in the amount of
$9700. The register entry gives the concise explanation that the payment was for, “Octavio’s
2004 taxes.” (GC Exh. 41, p. 19.) The Company also paid a total amount of $6,676.16 to cover
the uninsured portion of Mr. Fragata’s expenses related to surgery on his knee. (GC Exh. 41, p.
33.)
Although Fragata Construction paid well over $9000 for Mr. Fragata’s 2004 state tax
obligation, apparently this was not the entire amount owed. On January 13, 2006, Ryan issued
another check to Massachusetts for $1,253.29. The register showed this as, “Octavio 2004.”
(GC Exh. 42, p. 3.) Prevost confirmed that this was a personal tax liability, not a corporate one.
Yet again, the pattern of personal expenditures funded by corporate accounts continued with
R & S. On July 27, 2006, R & S issued a check to A. Fernandes. (GC Exh. 43, p. 16.) Prevost
explained that Dr. Fernandes was the dentist who treated Mr. Fragata’s children and the
payment was for services not covered by insurance.
Apart from the blatant pattern of misuse of corporate funds to pay the highly personal
expenses of Mr. Fragata, the financial evidence provides other probative indicia of abuse of the
corporate form. In two recent cases, the Board has discussed the significance of
undercapitalization and inappropriate financial dealings between a corporation and those who
are in control of its affairs. I have already noted that, in D. L. Baker, Inc., supra at 522, the
Board characterized undercapitalization as one of the “most serious forms of abuse of the
corporate entity.” In addition to use of the corporation as a “personal piggybank,” evidence of
undercapitalization includes, “constant ‘inflows’ and ‘outflows’ . . . necessary because [the
corporation] did not have enough capital to pay its bills when due,” and “[u]ndocumented
transactions and inadequate loan documentation.” Infra. Similarly, in A. J. Mechanical, Inc.,
352 NLRB 874, 875 (2008), the Board also relied on these types of indicators of disregard of
corporate formalities to impose personal liability. As the Board explained,
the record establishes that [the principal shareholder] made loans
to the corporation from his personal accounts. However, there is no
evidence that the loans adhered to accepted commercial or business
standards regarding terms for repayment or interest. Specifically,
there appears to have been no loan agreements, promissory notes,
or paperwork of any type documenting what the loan was for or its
terms.
This pattern formed a significant portion of the basis for a determination to impose personal
liability. A strikingly similar pattern exists in this case.
As just indicated, it is expected that corporate transactions involving loans would be fully
documented in the financial records of the firms. As to these companies, that is simply not the
case. For instance, on April 30, 2005, Mr. Fragata loaned Classic the sum of $20,000. (GC
Exh. 39, p. 13.) While the deposit is reflected in Classic’s check register, Prevost testified that
there was no written loan agreement. She also reported that the reason for the loan was that,
“[t]he company had no money.” (Tr. 150.) This is all the more telling when one considers that
on the day before this loan transaction, Classic had written a corporate check to Fall River to
pay a tax obligation related to Mr. Fragata’s personal investment in the Pleasant Street rental
properties. (GC Exh. 39, p. 12.) Classic repaid this loan on May 11, 2005. However, the
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repayment was merely the principal amount. There is no evidence of any interest charges. (GC
Exh. 39, p. 13.) Just a few weeks later, on May 27, Mr. Fragata made a smaller undocumented
loan to Classic in the amount of $1000. (GC Exh. 39, p. 15.) In July, there was another loan in
the larger amount of $4000. (GC Exh. 39, p. 21.) Prevost explained that the loan was
necessary because Classic was running out of funds. It is apparent that this chain of financial
transactions is precisely the sort of evidence that the Board finds highly probative on the issue
of abuse of the corporate form.
A similar pattern of undercapitalization amid a series of undocumented loans occurred
between Mr. Fragata and Fragata Construction. On October 7, 2005, Mr. Fragata made a
payment of $60,000 to the firm. The deposit entry indicates that this is a “Personal loan to
Company.” (GC Exh. 41, p. 18.) There is no other paperwork related to this large loan. It was
followed later that month by two more loans in the amounts of $10,000 and $20,000
respectively. (GC Exh. 41, pp. 21 & 22.) Regarding the second of these, Prevost explained that
the Company had only $2000 in its account at the time of the loan. As she described, “It
needed the money. He gave us the money.” (Tr. 185.) Remarkably, this all occurred at the
same time that Fragata Construction paid Mr. Fragata’s tax bill to the State in the amount of
$9700. (GC Exh. 41, p. 19.)
The transfers of large sums between Mr. Fragata and the corporations was not a one-
way street. For example, on April 26, 2006, Fragata Construction made a transfer of $60,000 to
Mr. Fragata. Prevost was unable to provide any explanation for this large payment and no
explanation has been forthcoming from the participants in the transaction.
The events of June 8, 2006, provide a stark illustration of the extent of the misuse and
abuse of the corporate form in this case. On that date, Ryan transferred $43,000 to R & S to
“[c]over payrolls” for R & S. (GC Exh. 42, p. 29.) At the same time, Ryan purported to loan Mr.
Fragata the sum of $100,000. Prevost was unable to point to any documentation for this large
loan, nor was she able to explain its purpose. The Respondents made no effort to shed light on
the transaction. And, on the same day, Ryan made another transfer payment of $100,000 to
Sonya Tavares, Mr. Fragata’s future wife. (GC Exh. 9.) Mrs. Fragata was asked to explain this
transfer and was unable to shed light on the transaction. Given the amount involved, this struck
me as peculiar. I pursued it with her as follows:
JUDGE: Do you remember receiving the money?
MRS. FRAGATA: I don’t remember. This is—again, a couple of years ago. I
really—don’t remember.
COUNSEL: That’s a lot of money. You don’t remember what it was for?

MRS. FRAGATA: I really don’t.
(Tr. 539.) Nevertheless, the explanation for all these transfers of funds lies in the financial
records. It consists of a payment made by Ryan to the Commonwealth of Massachusetts on the
following day. The check register explains that this payment was for fees associated with
“Ryan’s Dissolution.” (GC Exh. 42, p. 29.) It does not require a degree in accounting to
comprehend the purpose of the so-called loan of $100,000 made by a company about to be
dissolved to the person who controlled its operations and had made the decision to bring about
its dissolution. Nor does it require a background in forensic accounting to explain a “loan” in an
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identical amount to that person’s girlfriend and future wife.46
The evidence presented in this case leaves no room for doubt as to whether the General
Counsel has met his burden of demonstrating that the first prong of the White Oak Coal test has
been met. It is obvious that “the shareholder and corporation[s] have failed to maintain separate
identities.” White Oak Coal, supra. at 732. By a regular course of conduct consisting of
diversion of corporate funds for personal purposes, undocumented loans and funds transfers,
and undercapitalization, Mr. Fragata failed to adhere to the corporate formalities in his
relationship with each of the four corporate respondents.
This does not, however, end the inquiry. Imposition of personal liability is an equitable
form of relief. As the Board noted, it should only be imposed in circumstances where
“adherence to the corporate form would sanction a fraud, promote injustice, or lead to an
evasion of legal obligations.” Infra. This additional requirement reflects the Board’s
understanding that, in the words of former Chairman Schaumber, in the everyday world of small,
closely held corporations, “it was not surprising that the Respondent’s principals did not rigidly
observe corporate formalities.” A. J. Mechanical, Inc., supra. at 876, fn. 14. The drastic remedy
of imposition of personal liability must be reserved for those situations that involve more than
mere excusable negligence. It requires a finding that “inequity must flow from the misuse of the
corporate form, and the individuals charged personally must be found to have participated in the
fraud, injustice, or inequity.”47 Infra at 876.
As is clear from this discussion, the focus of the remaining portion of the analysis must
be on the question of whether Mr. Fragata’s financial maneuvers would lead to an unfair result if
personal liability were not imposed. I readily conclude that this would be the inevitable outcome.
The evidence establishes that Mr. Fragata made a deliberate effort to divest the four corporate
respondents of their assets by juggling those assets among the four companies and ultimately
by transferring them directly to himself and his future wife. He did so as part of his course of
conduct intended to relieve himself of all legal and financial obligations toward the employees of
his companies and their union representative arising from the collective-bargaining agreements
that he had directed Classic to voluntarily join. Having first plundered and then dissolved the
four corporations, he has left the employees and the Union with no realistic prospect of financial
remedy in this case. Having pocketed the assets that would otherwise have been available to

46 Despite Ryan’s dissolution, there were subsequent similar unexplained financial
transactions involving Ryan, Mr. Fragata, and Ms. Tavares. For example, on June 26, 2006,
Ryan purported to loan Mr. Fragata the sum of $100,007. (GC Exh. 42, p. 30.) Prevost testified
that there was no documentation and she was unaware of the purpose for the loan. She
reported that $75,000 was repaid but she did not know if the remainder was ever repaid. Ryan
made yet another loan to Mr. Fragata on July 1, 2006, in the amount of $75,000. (GC Exh. 42,
p. 31.)
47 In Flat Dog Productions, Inc., 347 NLRB 1180 (2006), the Board also drew a useful
distinction. It is frequently the case in proceedings such as this one that personal liability is
being sought against the corporate officer who made the decisions to commit the unfair labor
practices that prompted the lawsuit. Standing alone, this is not a sufficient basis to impose
personal liability on that officer. As the Board noted, “[w]e recognize that the corporations
committed the unfair labor practices through the conduct of [their chief executive], but that does
not mean that the veil of those corporations can be pierced.” Infra at 1185, fn. 18. Instead, “the
inquiry properly focuses on whether fraud, etc., would result from the Board’s recognition of the
corporate form for remedial purposes when a respondent has been found to have misused that
form.” Infra at 1185.
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provide the remedy, it is entirely equitable that he be personally held to account. Similarly,
having used the corporations as his personal reservoirs of cash to fund his other investments
and pay for his personal legal bills, travel, entertainment, and assorted expenses of daily living,
Mr. Fragata cannot be heard to complain when he is required to reimburse the creditors of those
corporations as remediation for the harm that the corporations have caused.
In concluding that personal liability should be imposed, I have considered the Board’s
response to similar requests. In particular, two cases point the way to the appropriate decision
in the circumstances presented here. In White Oak Coal Co., 318 NLRB 732 (1995), the
owners made a practice of using corporate funds for their own highly personal purposes
including the purchase of home furnishings, payment of dues in the International Hot Rod
Association, and contributions to charity. As the Board described it, they “drew corporate funds
for personal matters from whatever business account was solvent at the time.” 318 NLRB at
734. Their improper use of corporate funds and their general manner of operating the
corporations that they controlled resulted in the depletion of the companies’ assets. The Board
found that:
The natural, foreseeable, and inevitable consequence of the
[owners’] use of corporate assets for personal gain, misuse
of the corporate form, and disregard of corporate formality, is
the diminished ability of the corporate alter egos to satisfy White
Oak’s statutory remedial obligations. Accordingly, we pierce the
corporate veil and find the [owners] jointly and severally liable
for White Oak’s remedial obligations under the Act.
318 NLRB at 735.
By contrast, the Board declined to impose personal liability in Flat Dog Productions, Inc.,
supra. In that case, the key consideration was that the owner of the corporations had not
engaged in any abuse of the corporate form. The companies were not undercapitalized, nor
were their funds used for personal purposes or transferred without fair consideration. As a
result, the Board concluded:
Where, as here, there is no showing under White Oak that a
shareholder has abused the privilege of doing business in the
corporate form, we must respect the corporate entity and the
shareholder’s reasonable expectation that he or she will not
lightly be held accountable for corporate debts.
347 NLRB at 1186.
In my view, it is clear that Mr. Fragata’s conduct was entirely comparable to that of the
owners in White Oak Coal and not at all similar to the behavior of the owner in Flat Dog
Productions. Because Mr. Fragata consistently failed to demonstrate any degree of respect for
the corporate form, there is no inequity in a decision to decline to extend the protections of that
form to him when providing relief to the aggrieved parties in this case.48 Instead, it is clear that

48 In his posthearing brief, Mr. Fragata eloquently expressed his dismay at the prospect of
personal liability, noting that, “I signed [the short-form agreement] as President of Classic—not
as a personal guarantor—and feel that my rights are being infringed upon when I apparently do
not have the protection of being incorporated.” (R. Br. at p. 1.) While his expectation of
Continued
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injustice would follow from any failure to impose such personal liability. I conclude that the
General Counsel has met his heavy burden and has established that the interests of justice
require the imposition of personal liability.
Conclusions of Law
1. No later than May 2005, the Respondent, Classic Lath & Plastering, Inc., withdrew
recognition from the Union and failed to apply the provisions of its applicable collective-
bargaining agreements with the Union to the terms and conditions of employment for its
employees in violation of Section 8(a)(5) and (1) of the Act.
2. Since May 2005, the Respondent, Classic Lath & Plastering, Inc., has failed and
refused to provide relevant information requested by the Union that is necessary for it to perform
its obligations as representative of the employees of the Company in violation of Section 8(a)(5)
and (1) of the Act.
3. The Respondents, Fragata Construction, Inc., Ryan Builders, Inc., and R & S Drywall,
Inc., are each disguised continuances of, and alter egos to, Classic Lath & Plastering, Inc., and
are bound by each of the collective-bargaining agreements applicable to Classic Lath &
Plastering, Inc.
4. At all material times, the Respondents, Fragata Construction, Inc., Ryan Builders,
Inc., and R & S Drywall, Inc., have refused to recognize the Union and have failed to apply the
provisions of the applicable collective-bargaining agreements with the Union to the terms and
conditions of employment for their employees in violation of Section 8(a)(5) and (1) of the Act.
5. The Respondents, Classic Lath & Plastering, Inc., Fragata Construction, Inc., Ryan
Builders, Inc., and R & S Drywall, Inc., have failed to maintain identities separate from each
other and from Octavio Fragata. In order to prevent fraud, injustice, or evasion of legal
obligations, it is necessary to impose personal liability on Octavio Fragata for the unlawful acts
committed by each of the corporate respondents.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Because I have found that the Respondents have violated Section 8(a)(5) and (1) of the
Act by failing and refusing to apply the terms and provisions of the applicable collective-
bargaining agreements with the Union to their employees who are performing work within the
boundaries of the geographical areas covered by such agreements, they shall be ordered to
abide by, and give full force and effect to, each of their collective-bargaining agreements with
the Union and to any automatic renewals or extensions of those agreements, unless or until any
of those agreements, renewals, or extensions have been lawfully terminated.
With respect to this portion of the remedy, the General Counsel recognizes that it is not
_________________________
protection from personal liability may have been initially reasonable, his own utter failure to
comply with the legal requirements essential to the preservation of the corporate status has
served to deprive him of his anticipated insulation from personal liability.
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appropriate to order remedial measures regarding those collective-bargaining agreements that
are referenced in the short-form agreement signed by Classic but that did not produce any
actual contractual obligations because the Companies did not perform any carpentry work within
the specified jurisdictions. Thus, General Counsel seeks a remedy limited to “the states in
which Respondents have performed carpentry work.” (GC Br. at p. 97.)
Conceding that there is no evidence that the Companies performed any carpentry work
in the States of Maine, New Hampshire, and Vermont, the General Counsel does not seek any
specific remedy relating to the collective-bargaining agreements listed in the short-form
agreement that apply within the boundaries of those jurisdictions. I agree with this view of the
inappropriateness of remedial provisions for contracts whose provisions have never been
breached. The General Counsel does seek specific remedial provisions regarding the
collective-bargaining agreements applicable within the States of Massachusetts and Rhode
Island. There is ample evidence that the Companies performed carpentry work in those states.
As a consequence, I will recommend imposition of specific remedial orders regarding the
collective-bargaining agreements applicable in those two jurisdictions.
The difficulty here is posed by the nature of the record regarding the remaining New
England jurisdiction, the State of Connecticut. Specific remedial language is being sought with
respect to the contracts between Locals 24, 43, and 210 of the Union and the Connecticut
Construction Industries Association, Inc., and the AGC/CCIA Building Contractors Labor
Division of Connecticut, Inc. In their thorough, lengthy, and comprehensive brief, counsels for
the General Counsel cite only one reference to evidence that they submit would show that the
Companies performed any applicable carpentry work within the State of Connecticut. (GC Br. at
p. 10, fn. 7.) They point to testimony provided by two officials of the Union, Savoie and
DeCosta. Upon review of that testimony and the remainder of the record, I cannot conclude that
the General Counsel has met his burden of demonstrating that the Companies breached any
provisions of the contracts applicable within Connecticut. There is simply insufficient evidence
that they performed any applicable carpentry work within that State.
Turning first to the testimony of Savoie, when asked in broad terms about this
geographical issue, he began with a forthright account reporting that Classic, Fragata
Construction, Ryan, and R & S performed work in Massachusetts and Rhode Island. He did
not mention any work in Connecticut. His remaining testimony on this question continued as
follows:
COUNSEL: Okay. You know if any of these four companies performed
any work in Connecticut?
SAVOIE: I do now. I didn’t know then, but I do now.49
COUNSEL: And what’s—what company or companies performed work in
Connecticut?

49 The ambiguous nature of this response to counsel’s leading question vividly illustrates the
reason for the rule that generally prohibits a lawyer from posing such questions to his or her
own witness. It is impossible to discern whether Savoie’s response indicates that he recently
learned something about the Companies’ purported operations in Connecticut or whether he
inferred that they must have operated in that jurisdiction because counsel was now asking him
about that location.
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SAVOIE: I’m not sure. I think it might have been Ryan or R & S.
(Tr. 312.) When reduced to its essence, this testimony merely establishes that Savoie was
unable to testify that any of the Companies performed carpentry work in Connecticut. He was
simply, “not sure.” (Tr. 312.)
The testimony on this issue from DeCosta was no more precise. When asked where
Classic and Fragata Construction performed their carpentry work, he replied, “I know of Rhode
Island and Massachusetts.” (Tr. 385.) He then added:
I know from yesterday, looking through some of the evidence
that was given from the checks, that there was a job in
Connecticut for one of the companies. Right now I don’t
recollect which one of the compan[ies].
(Tr. 385.) Apart from his inability to describe which company may have been involved,
DeCosta’s brief account fails to provide any specific information about the job, including when it
was performed and whether it involved any carpentry work.
The vague testimony from the two union officials whose own operations were limited to
Rhode Island and Massachusetts was not bolstered by any other testimony. In particular, the
General Counsel did not produce testimony from any official of the Union responsible for its
operations in Connecticut. Beyond this, counsel did not elicit any testimony from employees of
the Companies regarding any carpentry jobs in that State. On this record, I cannot find that any
of the Respondents committed a breach of the collective-bargaining agreements covering
Connecticut. As a result, the situation is identical that which applies to the contracts governing
work in Maine, New Hampshire, and Vermont. Because the situation is the same, it is similarly
inappropriate to recommend remedial language for any of the contracts covering those four
jurisdictions.
As to additional affirmative relief, I shall order that a make-whole remedy shall be
provided to the each of the unit employees of each of the Respondents for any loss of earnings
or other benefits that they may have suffered as a result of the Respondents’ failure to comply
with the applicable collective-bargaining agreements since May 1, 2005.50 This remedy shall
include the payment of all contractually-required sums on behalf of these employees to the
Union’s various welfare funds that they have failed to make, including any additional amounts
due to the funds on behalf of unit employees in accordance with Merryweather Optical Co., 240
NLRB 1213 (1979). The Respondents shall reimburse unit employees for any expenses
resulting from their failure to make the required contributions as set forth in Kraft Plumbing &
Heating, 252 NLRB 891, fn. 2 (1980), enf. 661 F.2d 940 (9th Cir. 1981), such amounts to be
computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enf. 444
F.2d 502 (6th Cir. 1971). Interest shall be awarded as prescribed in New Horizons for the

50 In their brief, counsels for the General Counsel suggest that the commencement date for
such relief be set as February 8, 2005. (GC Br. at p. 99.) They do not explain why they chose
this date. My own review of the record does not indicate that any significant event occurred on
the suggested date. While selection of the date necessarily involves some degree of
arbitrariness, I have picked May 1, 2005, because it is consistent with the allegation in the
complaint which asserts that the key unfair labor practices commenced in that month. (GC Exh.
1(tt), at par. 27(b).) Thus, the Respondents have been on notice that their unlawful conduct
since that date is subject to remediation.
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Retarded, 283 NLRB 1173 (1987).51 Finally, I shall order that the Respondents provide the
Union with the information that it requested in its letter of May 12, 2005, and the accompanying
questionnaire.
As is customary, I shall order the Respondents to post a notice as set forth in the
appendix to this decision. Due to the nature of employment in the construction industry and the
dissolution of the corporations involved in this case, I shall also order that copies of the notice,
signed by the Respondents’ authorized representative, shall be furnished to the Union so that, if
desired, it may post the notice at its offices and meeting places. Finally, it appears that the
corporate respondents are no longer in business. As is customary, I will order that notices be
mailed to all affected employees of those corporations that are no longer in business.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended52
ORDER
The Respondents, Classic Lath & Plastering, Inc., Fragata Construction, Inc., Ryan
Builders, Inc., and R & S Drywall, Inc., all of Westport, Massachusetts, and their officers,
agents, successors, and assigns, and Octavio Fragata, of Gulf Breeze, Florida, individually, and
his agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating and refusing to honor the collective-bargaining agreements between the
New England Regional Council of Carpenters, Local Union No. 94 of the United Brotherhood of
Carpenters and Joiners of America, and the Labor Relations Division of the Associated General
Contractors of Rhode Island, Inc., unless and until they have ended their assent to such
agreements pursuant to the terms of such agreements.
(b) Repudiating and refusing to honor the collective-bargaining agreements between the
New England Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and the Labor Relations Division of the Associated General Contractors of
Massachusetts, Inc., the Building Trades Employers’ Association of Boston and Eastern
Massachusetts, Inc., and the Labor Relations Division of the Construction Industries of
Massachusetts, unless and until they have ended their assent to such agreements pursuant to

51 In what has become a recurring issue, the General Counsel requests that I depart from
the Board’s longstanding practice in this area by ordering the payment of compound interest. I
have explained my reasons for denying this request in some detail in my decisions in Frye
Electric, 352 NLRB 345, 358-359 (2008), and Kentucky River Medical Center, 2008 WL
2951423 (2008). I will simply add that the Board continues to reject this requested departure
from the rule in New Horizons, observing that, “we are not prepared at this time to deviate from
our current practice of assessing simple interest.” Morse Operations, Inc., 353 NLRB No. 40,
slip op. at fn. 3 (2008). See also Austin Printing Co., 353 NLRB No. 54, slip op. at fn. 3 (2008),
where the Board cites numerous recent cases in which it has refused this request that it alter its
current practice.
52 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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the terms of such agreements.
(c) Failing to provide the New England Regional Council of Carpenters and Local Union
No. 94 information requested by it where such information is necessary for, and relevant to, the
Union’s performance of its duties as the collective-bargaining representative of the
Respondents’ employees in the unit defined as all employees coming within the classifications
set forth in article I of each applicable collective-bargaining agreement described above in
paragraphs (a) and (b).
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Comply with all of the terms and conditions of the short-form agreement between the
United Brotherhood of Carpenters and Joiners of America, New England Regional Council of
Carpenters and Classic Lath & Plastering, Inc., executed on November 18, 2001; the collective-
bargaining agreements between the New England Regional Council of Carpenters, Local Union
No. 94 of the United Brotherhood of Carpenters and Joiners of America and the Labor Relations
Division of the Associated General Contractors of Rhode Island, Inc.; and the collective-
bargaining agreements between the New England Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO and the Labor Relations Division
of the Associated General Contractors of Massachusetts, Inc., the Building Trades Employers’
Association of Boston and Eastern Massachusetts, Inc., and the Labor Relations Division of the
Construction Industries of Massachusetts, unless and until assent to those agreements has
been properly terminated pursuant to the terms of such agreements.
(b) Make whole their unit employees by paying to them the amounts due by reason of
the Respondents’ failure since May 1, 2005, to comply with the collective-bargaining
agreements between the New England Regional Council of Carpenters, Local Union No. 94 of
the United Brotherhood of Carpenters and Joiners of America, and the Labor Relations Division
of the Associated General Contractors of Rhode Island, Inc., and any successor or follow-on
agreements, as provided in the remedy section of this decision.
(c) Make whole their unit employees by paying to them the amounts due by reason of
the Respondents’ failure since May 1, 2005, to comply with the collective-bargaining
agreements between the New England Regional Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and the Labor Relations Division of the
Associated General Contractors of Massachusetts, Inc., the Building Trades Employers’
Association of Boston and Eastern Massachusetts, Inc., and the Labor Relations Division of the
Construction Industries of Massachusetts, and any successor or follow-on agreements, as
provided in the remedy section of this decision.
(d) Make whole the New England Regional Council of Carpenters, Local Union No. 94
of the United Brotherhood of Carpenters and Joiners of America and its associated benefit
funds by making the payments mandated by the collective-bargaining agreements between the
New England Regional Council of Carpenters, Local Union No. 94 of the United Brotherhood of
Carpenters and Joiners of America, and the Labor Relations Division of the Associated General
Contractors of Rhode Island, Inc., and any successor or follow-on agreements that the
Respondents have failed to make since May 1, 2005, as provided in the remedy section of this
decision.
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(e) Make whole the New England Regional Council of Carpenters, United Brotherhood
of Carpenters and Joiners of America and its associated benefit funds by making the payments
mandated by the collective-bargaining agreements between between the New England
Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and the Labor Relations Division of the Associated General Contractors of
Massachusetts, Inc., the Building Trades Employers’ Association of Boston and Eastern
Massachusetts, Inc., and the Labor Relations Division of the Construction Industries of
Massachusetts, and any successor or follow-on agreements that the Respondents have failed
to make since May 1, 2005, as provided in the remedy section of this decision.
(f) Make whole their unit employees by reimbursing them, with interest, for any
expenses that they may have incurred that resulted from the Respondents failure to make
required benefit fund payments since May 1, 2005.
(g) Provide to the New England Regional Council of Carpenters and Local Union No. 94
the information sought by the Union in its May 12, 2005 letter and questionnaire.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(i) Within 14 days after service by the Region, post at its facilities in Westport,
Massachusetts, copies of the attached notice marked “Appendix.”53 Copies of the notice, on
forms provided by the Regional Director for Region 1, after being signed by the Respondents’
authorized representative, shall be posted by the Respondents and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents shall duplicate and mail, at their own
expense, a copy of the notice to all current employees and former employees employed by the
Respondents at any time since May 1, 2005. The Respondents shall also sign and return to the
Regional Director sufficient copies of the notice for posting by the New England Regional
Council of Carpenters, if willing, at all places where notices to members are customarily posted.

53 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(j) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondents have taken to comply.
Dated, Washington, D.C. February 12, 2009
____________________
Paul Buxbaum
Administrative Law Judge
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Boston, Massachusetts
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT repudiate or refuse to honor the collective-bargaining agreements between the
New England Regional Council of Carpenters, Local Union No. 94 of the United Brotherhood of
Carpenters and Joiners of America, and the Labor Relations Division of the Associated General
Contractors of Rhode Island, Inc., unless and until we have ended our assent to such
agreements pursuant to the terms of those agreements.
WE WILL NOT repudiate or refuse to honor the collective-bargaining agreements between the
New England Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and the Labor Relations Division of the Associated General Contractors of
Massachusetts, Inc., the Building Trades Employers’ Association of Boston and Eastern
Massachusetts, Inc., and the Labor Relations Division of the Construction Industries of
Massachusetts, unless and until we have ended our assent to such agreements pursuant to the
terms of those agreements.
WE WILL NOT fail to provide information requested by the New England Regional Council of
Carpenters and Local Union No. 94, where such information is necessary for, and relevant to,
the Union’s performance of its duties as the collective-bargaining representative of our
employees in the unit defined as all employees coming within the classifications set forth in
article I of each collective-bargaining agreement described above.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Federal labor law.
WE WILL comply with all of the terms and conditions of the short-form agreement between the
United Brotherhood of Carpenters and Joiners of America, New England Regional Council of
Carpenters and Classic Lath & Plastering, Inc., executed on November 18, 2001; the collective-
bargaining agreements between the New England Regional Council of Carpenters, Local Union
No. 94 of the United Brotherhood of Carpenters and Joiners of America and the Labor Relations
Division of the Associated General Contractors of Rhode Island, Inc.; and the collective-
bargaining agreements between the New England Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO and the Labor Relations Division
of the Associated General Contractors of Massachusetts, Inc., the Building Trades Employers’
Association of Boston and Eastern Massachusetts, Inc., and the Labor Relations Division of the
JD–04-09
Boston, Massachusetts
Construction Industries of Massachusetts, unless and until assent to those agreements has
been properly terminated pursuant to the terms of such agreements.
WE WILL make whole our unit employees by paying to them, with interest, the amounts due by
reason of our failure to comply with the collective-bargaining agreements between the New
England Regional Council of Carpenters, Local Union No. 94 of the United Brotherhood of
Carpenters and Joiners of America, and the Labor Relations Division of the Associated General
Contractors of Rhode Island, Inc., and any successor or follow-on agreements, since May 1,
2005.
WE WILL make whole our unit employees by paying to them, with interest, the amounts due by
reason of our failure to comply with the collective-bargaining agreements between the New
England Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and the Labor Relations Division of the Associated General Contractors of
Massachusetts, Inc., the Building Trades Employers’ Association of Boston and Eastern
Massachusetts, Inc., and the Labor Relations Division of the Construction Industries of
Massachusetts, and any successor or follow-on agreements, since May 1, 2005.
WE WILL make whole the New England Regional Council of Carpenters, Local Union No. 94 of
the United Brotherhood of Carpenters and Joiners of America and its associated benefit funds
by making the payments mandated by the collective-bargaining agreements between the New
England Regional Council of Carpenters, Local Union No. 94 of the United Brotherhood of
Carpenters and Joiners of America, and the Labor Relations Division of the Associated General
Contractors of Rhode Island, Inc., and any successor or follow-on agreements that we have
failed to make since May 1, 2005.
WE WILL make whole the New England Regional Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America and its associated benefit funds by making the payments
mandated by the collective-bargaining agreements between the New England Regional Council
of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the
Labor Relations Division of the Associated General Contractors of Massachusetts, Inc., the
Building Trades Employers’ Association of Boston and Eastern Massachusetts, Inc., and the
Labor Relations Division of the Construction Industries of Massachusetts, and any successor or
follow-on agreements that we have failed to make since May 1, 2005.
WE WILL make whole our unit employees by reimbursing them, with interest, for any expenses
that they may have incurred that resulted from our failure to make required benefit fund
payments since May 1, 2005.
WE WILL provide to the New England Regional Council of Carpenters and Local Union No. 94
the information sought by the Union in its letter and questionnaire dated May 12, 2005.
Classic Lath & Plastering, Inc., and its alter egos,
Fragata Construction, Inc., Ryan Builders, Inc.,
R & S Drywall, Inc., and Octavio Fragata
(Employer)
Dated By
(Representative) (Title)
JD–04-09
Boston, Massachusetts
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.