Concourse Nursing Home

National Labor Relations Board - Board Decisions

Jun 11, 1999

328 N.L.R.B. 692 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
Marvin Neiman, Individually, and d/b/a Concourse
Nursing Home and its alter ego CNH Manage-
ment Associates, Inc. and its alter ego Concourse
Rehabilitation and Nursing Center, Inc. and Lo-
cal 144, Service Employees International Union,
AFL–CIO. Cases 2–CA–28638, 2–CA–28776, 2–
CA–28777, 2–CA–28778, and 2–CA–28841
June 11, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX, AND
BRAME
On March 11, 1997, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party Union each filed cross-
exceptions with supporting briefs and answering briefs to
the Respondent’s exceptions, and the Respondent filed
an answering brief to the General Counsel’s and the Un-
ion’s cross-exceptions and a reply brief in further support
of its exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below, to modify the remedy,2 and to adopt the
recommended Order as modified.
We adopt the judge’s finding that Marvin Neiman, in-
dividually, and d/b/a Concourse Nursing Home; CNH
Management Associates, Inc. (CNH), and Concourse
Rehabilitation and Nursing Center, Inc. (CRNC), the
Respondent, are alter egos and a single employer and are
liable for the various unfair labor practices in this pro-
ceeding. We also adopt the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
its July 1995 refusal to meet and bargain with the Union
and by its failure to remit various benefit fund contribu-
tions for the periods specified by the judge. However,
contrary to the judge, we find that additional pension
fund contributions are due for the licensed practical
nurses. We also reverse the judge’s finding that the Re-
spondent failed to submit remittance reports on benefit
fund contributions as required by the parties’ contract.
Lastly, for the reasons stated below, we reverse the judge
and find that Marvin Neiman is not individually liable
for periods after October 1995, when CRNC became the
owner and operator of the nursing home.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In cross-excepting, the General Counsel argues that the judge inad-
vertently failed to include in his remedy a provision directing the Re-
spondent to reimburse the unit employees for any expenses resulting
from the Respondent’s failure to make required pension and education
fund contributions. The Union makes a similar argument in its cross-
exceptions with respect to reimbursing employees for the expenses they
incurred because of the Respondent’s failure to make education fund
payments. Based on Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), we find merit in these cross-
exceptions and we modify the judge’s remedy to require that the Re-
spondent reimburse the unit employees, with interest, for pension and
education expenses they incurred by virtue of the Respondent’s unlaw-
ful conduct.
1. Regarding Neiman’s individual liability for the vio-
lations found here, the evidence shows that, in July 1991,
Marvin Neiman d/b/a Concourse Nursing Home indi-
vidually executed a collective-bargaining agreement in
which he agreed, as sole proprietor of the nursing home,
to assume the benefits and obligations set forth there.
That contract expired on September 30, 1994. After the
expiration date, Neiman’s obligation to make fund pay-
ments as a contract signatory survived given the Respon-
dent’s refusal to bargain on a successor agreement here.3
However, in October 1995, Neiman incorporated
CRNC, and CRNC became the owner and operator of the
nursing home. When CRNC took over for Neiman as the
owner and operator of the nursing home, CRNC was
likewise substituted for Neiman as the obligor for further
contributions to the Union’s trust funds and for remedy-
ing any other unfair labor practices unless the General
Counsel has established that there are adequate grounds
to justify piercing the corporate veil of CRNC to impose
continuing individual liability on Neiman. The standard
the Board applies in that regard was set out in White Oak
Coal, 318 NLRB 732 (1995), enfd. 81 F.3d 152 (4th Cir.
1996).
In White Oak, the Board adopted a two-part test for
piercing the corporate veil and held that it would impose
personal liability only when: “(1) the shareholder and
corporation have failed to maintain separate identities,
and (2) adherence to the corporate structure would sanc-
tion a fraud, promote injustice, or lead to an evasion of
legal obligations.” Id. at 732. Regarding the first prong
of this two-part test, the Board stated in White Oak at 735
(footnotes omitted), that:

When assessing the first prong to determine
whether the shareholders and the corporation have
failed to maintain their separate identities, we will
consider generally (a) the degree to which the corpo-
rate legal formalities have been maintained, and (b)
the degree to which individual and corporate funds,
other assets, and affairs have been commingled.
Among the specific factors we consider are: (1)
whether the corporation is operated as a separate en-
tity; (2) the commingling of funds and other assets;
(3) the failure to maintain adequate corporate re-
cords; (4) the nature of the corporation’s ownership
3 Excelsior Pet Products, 276 NLRB 759, 763 (1985).
328 NLRB No. 91
CONCOURSE NURSING HOME 693
and control; (5) the availability and use of corporate
assets, the absence of same, or undercapitalization;
(6) the use of the corporate form as a mere shell, in-
strumentaility or conduit of an individual or another
corporation; (7) disregard of corporate legal formali-
ties and the failure to maintain an arm’s-length rela-
tionship among related entities; (8) diversion of the
corporate funds or assets to noncorporate purposes;
and, in addition, (9) transfer or disposal of corporate
assets without fair consideration.

In her brief to the judge, counsel for the General Coun-
sel argued that the first prong of the White Oak test was
met because “the corporation’s ownership and control
rests in Neiman alone; the corporate assets are available
for Neiman’s personal use; and there has been commin-
gling, diversion and disposal of corporate asssets without
fair consideration.” Although it appears that Neiman has
retained ownership and control of CRNC, the General
Counsel has failed to point to evidence and to establish
that CRNC’s assets are available to Neiman personally or
that he has commingled CRNC’s funds since its incorpo-
ration in 1995. Moreover, the General Counsel has not
even argued that there is any evidence here regarding
numerous of the other factors that the Board considers
with respect to the first prong of White Oak. Because
CRNC meets at most only one of the nine factors that
constitute the first prong of this test, we conclude that the
General Counsel has failed to establish that, subsequent
to the time that CRNC began owning and operating the
nursing home in October 1995, Marvin Neiman and
CRNC “failed to maintain separate identities.” Thus, at
the least the General Counsel has not established the first
prong of the test and we are constrained from piercing
the corporate veil in this situation. For these reasons, we
do not impose individual liability on Marvin Neiman for
periods after October 1995.
2. The General Counsel and the Union have excepted
to the judge’s finding that the Union is barred by Section
10(b) of the Act from seeking pension contributions for
the Respondent’s licensed practical nurses (LPNs) for
periods before June 1, 1995. For the reasons stated be-
low, we find merit to the General Counsel’s and the Un-
ion’s exceptions to these findings.4
As stated, in July 1991 the parties entered into a
collective-bargaining agreement that expired on
September 30, 1994. As part of this agreement, the
parties agreed to a 35-month moratorium on future
contributions to the Union’s pension fund because of a
surplus in the fund. Anthony Petrella, the pension fund’s
4 We note that the Union initially filed the charge in Case 2–CA–
28841 relating to the Respondent’s failure to remit fund contributions
for its licensed practical nurses on October 19, 1995, and later amended
that charge on February 9, 1996. Because the 10(b) period for this
allegation commenced on April 19, 1995, even without regard to
whether the Union was on notice of the unfair labor practices before
that date, the Union is entitled at least to monthly contributions after
May 1, 1995 for these employees.
Anthony Petrella, the pension fund’s administrator, testi-
fied that the moratorium ended on May 30, 1994,5 and
that the Respondent was obligated to resume making
payments to the fund beginning in June.
Petrella stated that the Union’s pension fund did not
receive any contributions from the Respondent for the
unit employees covering the month of June until the fol-
lowing October.6 Petrella also said that the fund ac-
counting staff, after receiving the Respondent’s October
pension check, determined, by multiplying the applicable
contractual rate by the gross payroll for June, that the
payment total was less than the fund should have re-
ceived. The record shows that all the pension fund con-
tributions that the Respondent made during the ensuing
months were also “short” by the calculations of the
fund’s accountants.
In addition, Petrella testified that the fund office ad-
ministers nine or ten separate funds and that it receives
monthly contributions from a total of 170–200 employers
contributing to these various funds. The frequency of
inadequate or otherwise incorrect payments to the funds
is so great that, according to Petrella, the fund office has
prepared a form letter that it sends monthly to those em-
ployers whose contributions are less than the proper
amount. The record shows that in October the Union’s
fund office sent a “short notice” letter to the Respondent
stating that its pension fund contributions for “July” were
deficient. The fund sent similar letters notifying the Re-
spondent of pension underpayments the following
months.
After Petrella received no response to these “short no-
tice” letters, he contacted Aaron Kaufman, an agent for
the Respondent, in May or June 1995 to discuss the
shortages. Kaufman then informed Petrella that the Re-
spondent was refusing to make pension contributions for
its LPNs until further notice. Petrella replied that this did
not make sense to him because the Union’s welfare fund
was receiving contributions for these employees. Kauf-
man explained that he had “filed some sort of petition”
regarding the LPNs that precipitated this action.7 There-
after, the Respondent ceased all pension contributions for
months since June 1995.
In finding that, by operation of the Section 10(b) limi-
tation, the Respondent is not liable under the Act for
pension fund contributions for the LPNs accruing before
June 1, 1995, the judge summarily concluded that “[t]he
Union was aware that a reduced Pension Fund payment
was made, and could have learned the reason for such
5 All dates are in 1994, unless otherwise noted.
6 Petrella also administered the Union’s welfare fund and had been
receiving these payments from the Respondent on the unit employees’
behalf. There was no contractual moratorium on welfare contributions.
7 On November 8, 1994, H.B. Management Services Corporation
(H.B.), found by the judge to be the Respondent’s agent, had filed a
unit clarification petition with the Board seeking to exclude the licensed
practical nurses from the bargaining unit as statutory supervisors. The
petition, which the Union moved to dismiss, is still pending.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
underpayment in a timely manner [case citation omit-
ted].” We conclude that, contrary to the judge, Section
10(b) does not bar us from finding that the Respondent
owes the Union pension fund contributions for the LPNs
from the date that the moratorium on such contributions
ended.
The Board has consistently held that the Section 10(b)
period does not begin to run until the aggrieved party has
received actual or constructive notice of the conduct that
constitutes the alleged unfair labor practice.8 It is the
Respondent’s burden to establish here that the Union
“was on clear and unequivocal notice” more than 6
months before the charge was filed that the Respondent
had ceased making pension fund contributions for the
LPNs.9
Although there is no dispute that the Union was aware
of the shortfall in the pension contributions from the time
the Respondent began to make them in October 1994, we
conclude that the Respondent has failed to establish that
the Union should have known that a cause of the shortfall
was the Respondent’s exclusion of the LPNs from pen-
sion coverage.10 We stress that the Respondent failed to
introduce into evidence any reports that it submitted to
the pension fund that may have given the Union notice
that it had not made contributions on the LPNs’ behalf.
Furthermore, the evidence shows that the Respondent,
despite receiving a number of “short notices” from the
Union regarding its pension fund contributions, made no
effort to inform the Union of its unilateral action until
Petrella initiated the conversation with Kaufman in May
or June 1995, and Kaufman told him that the Respondent
had not made pension payments for the LPNs.11 Even if
the conversation putting the Union on notice occurred at
the beginning of May, the October 19, 1995 charge
would be timely under Section 10(b).
We also note that, as Petrella testified, the pension
fund frequently received payments from its many con-
tributing employers in amounts less than the respective
employer actually owed. The fund, in the Respondent’s
case, had not received any monthly contributions from
the Respondent for many years due to the pension mora-

8 See, e.g., P & C Lighting Center, 301 NLRB 828 (1991); Burgess
Construction, 227 NLRB 765, 766 (1974), enfd. 596 F.2d 378, 382 (9th
Cir. 1979).
9 See A & L Underground, 302 NLRB 467, 469 (1991).
10 We do not find that H.B.’s November 1994 filing of the unit clari-
fication petition was sufficient to constitute such notice as the Respon-
dent was acting at its peril in terminating pension contributions for the
LPNs during the pendency of the unit clarification petition. See Pilot
Freight Carriers, 221 NLRB 1026, 1028 (1975), revd. on other grounds
558 F.2d 205 (3d Cir. 1977). Thus, the pendency of the unit clarifica-
tion petition was insufficient to permit the Respondent to abrogate
contract terms as they applied to the LPNs and the Union would not
have had cause to suspect that the Respondent would cease pension
contributions based on the filing of the petition.
11 We note that the Respondent’s continuation of welfare payments
on these employees’ behalf may also have contributed to the Union’s
inability to discern the cause of the payment shortage.
torium and protracted litigation between the parties that
finally was settled in May 1991. The fund’s lack of ex-
perience in receiving monthly pension fund contributions
from the Respondent likely hindered its ability to detect
the source of the Respondent’s deficient contributions.
The Board stated in A & L Underground, 302 NLRB at
469, that an unfair labor practice charge will not be time-
barred if the “delay in filing is a consequence of conflict-
ing signals or otherwise ambiguous conduct by the other
party.” Based on the totality of the evidence, we con-
clude that the situation here was, at the least, sufficiently
ambiguous as to whether the Union had “clear and un-
equivocal notice” before mid-1995 that the Respondent
was unlawfully failing to make pension contributions for
its LPNs. We therefore find that the Union’s October
1995 charge was sufficient to put at issue here all the
pension contributions that the Respondent has failed to
make since the moratorium ended.12 Accordingly, we
shall require the Respondent to make all pension fund
contributions for its LPNs that are owed since June 1,
1994.13 We shall also direct the Respondent to submit
revised fund reports with respect to the pension contribu-
tions that the Respondent unlawfully failed to make on
its LPNs’ behalf so that the Union can correlate the re-
ports with the fund payments made pursuant to the
Board’s Order.
3. The Respondent has excepted, inter alia, to the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to submit monthly
reports to the Union’s education, pension, and welfare
funds as required by the parties’ collective-bargaining
agreement. We note, as did the judge, that the complaint
does not allege that the Respondent had failed to remit
reports to the Union’s education fund. Regarding the
pension and welfare funds, Petrella specifically testified
12 See Allied Products Corp., 230 NLRB 858 (1977), enfd. 629 F.2d
1167 (6th Cir. 1980); Truck & Dock Services, 272 NLRB 592 (1984).
We find that the judge’s reliance on John Morrell & Co., 304 NLRB
896, 899 (1991), enfd. 998 F.2d 7 (D.C. Cir. 1993), for a contrary
result is misplaced because the union in that case had sufficient notice
of the employer’s unlawful conduct more than 6 months before the
union requested reinstatement of the unfair labor practice charge that it
previously had withdrawn.
13 Although we note that the complaint alleged that the violation oc-
curred in October 1994, we are not precluded from finding that the
Respondent owes these contributions for the period beginning in June
1994 to date because the timing of the violation was a matter fully
litigated at the hearing. See generally Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
Nevertheless, there is some confusion on the record as to whether
the Respondent’s obligation to make pension fund payments on the
LPNs’ behalf began in June or July 1994. The Union seeks these fund
contributions beginning in June and Petrella’s testimony that the mora-
torium ended in May supports this position. On the other hand, the
General Counsel argues that the Respondent’s fund contribution obliga-
tion began in July 1994 and the first “short notice” letter that the Union
sent in October 1994 stating that the underpayment was for the prevous
“July” supports the General Counsel’s position. We shall allow the
Respondent to establish during compliance that its pension fund obliga-
tion did not begin until July.
CONCOURSE NURSING HOME 695
that the Respondent had submitted all required reports to
both funds. We therefore conclude, based on Petrella’s
testimony, that the General Counsel has failed to estab-
lish that the Respondent violated the Act by failing to
submit remittance reports. We shall amend the judge’s
conclusions of law to delete this violation from those
included there.14
AMENDED CONCLUSION OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 4.
“4. By failing and refusing to make contributions to
the Union’s three trust funds for the periods specified
below, the Respondent has violated Section 8(a)(5) and
(1) of the Act:

Welfare Fund: Balance due for the month of
January 1996, and all contributions due since Febru-
ary 1, 1996.
Pension Fund: All contributions due since June
1, 1995, excepting the Respondent’s licensed practi-
cal nurses for whom contributions are due since June
1, 1994.
Education Fund: All contributions due since Oc-
tober 1, 1995.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Marvin
Neiman, Individually, and d/b/a Concourse Nursing
Home and its Alter Ego CNH Management Associates,
Inc. and its Alter Ego Concourse Rehabilitation and
Nursing Center, Inc., Bronx, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Failing and refusing to make contributions to the
Union’s three trust funds for the periods specified below:

Welfare Fund: Balance due for the month of
January 1996, and all contributions due since Febru-
ary 1, 1996.
Pension Fund: All contributions due since June
1, 1995, excepting the Respondent’s licensed practi-
cal nurses for whom contributions are due since June
1, 1994.
Education Fund: All contributions due since Oc-
tober 1, 1995.”
2. Substitute the following for paragraph 2(b):
“(b) Pay those contributions into the Union’s Welfare
Fund, Pension Fund, and Education Fund that it failed to
make on the unit employees’ behalf as specified above.”

14 We direct, however, that the Respondent make these reports avail-
able for inspection so that the Union can correlate, if it so chooses, the
payments it receives pursuant to the Board’s Order with the reports that
the Respondent previously submitted.
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER BRAME, dissenting in part.
I agree with my colleagues and the judge that the vari-
ous respondents in this proceeding, collectively referred
to as the Respondent, are alter egos and a single em-
ployer, and that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the Union
and by failing and refusing to remit contributions to the
Union’s trust funds for the periods the judge specified. I
join my colleagues in finding, contrary to the judge, that
the Respondent did not violate Section 8(a)(5) and (1) of
the Act by allegedly failing to submit remittance reports
to the Union’s pension, welfare, and education funds for
the reasons stated in the majority opinion.1 I also join the
majority in reversing the judge’s finding that Marvin
Neiman is individually liable for periods after he incor-
porated Concourse Rehabilitation and Nursing Center
(CRNC) as the owner and operator of the nursing home
involved here. However, I dissent from my colleagues’
reversal of the judge and their finding that extends the
time for which the LPNs are owed pension contributions.
Regarding the issue of the Respondent’s pension fund
contributions for the LPNs, I note the following: based
on the terms of the parties’ 1991–1994 collective-
bargaining agreement, the Respondent had no obligation
to make contributions to the Union’s pension fund on
behalf of its employees until June or July 1994.2 The
following October, the Respondent sent a check to this
fund that purportedly covered its June pension fund con-
tributions. It is undisputed that the Respondent’s Octo-
ber payment, as well as its contributions for all subse-
quent months until it ceased making these payments for
periods after June 1995, were in amounts less than the
fund should have received based on the monthly remit-
tance reports that the Respondent submitted together
with its checks. Also, on November 8, H.B., the Re-
spondent’s agent, filed a unit clarification petition with
the Board seeking to exclude the LPNs from the bargain-
ing unit as statutory supervisors.
Despite the persistent shortage in the Respondent’s
fund payments, the Union’s pension fund never con-
tacted the Respondent in order to inquire about the pen-
sion fund deficiencies. The fund merely sent letters each
month beginning in October that notified the Respondent
that its pension contributions were deficient. It was not
until May or June 1995 that the pension fund’s adminis-
trator, Anthony Petrella, contacted Aaron Kaufman, the
Respondent’s agent, to inquire about the payment short-
ages. During this conversation, Kaufman told Petrella
1 Contrary to the majority, I would not require the Respondent to
make any reports available to the Union’s trust funds. The Union’s
pension and welfare fund administrator, Anthony Petrella, admitted that
he received all these reports and the complaint does not allege that the
Respondent failed to file education fund reports.
2 All dates are in 1994, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
that the Respondent had ceased pension contributions for
the LPNs who were the subject of the unit clarification
petition that had been filed. It was not until October 19,
1995, that the Union filed the charge relating, inter alia,
to the Respondent’s failure to remit pension fund contri-
butions for the LPNs.
Contrary to my colleagues, I would not extend the time
for which the Respondent owes pension contributions for
the LPNs beyond the l0(b) period. Section 10(b) of the
Act states in pertinent part that “no complaint shall issue
based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the
Board.” As the Board stated in Koppers Co., 163 NLRB
517 (1967), “[t]he practical effect of the proviso to Sec-
tion 10(b) is that, absent the existence of a properly
served charge on file, a party is assured that on any given
day his liability under the Act is extinguished for any
activities occurring more than 6 months prior thereto.”3
Here, the Union began receiving monthly pension fund
payments and remittance reports from the Respondent in
October. Although these reports showed on their face
that there were shortages in the Respondent’s pension
contributions, the Union took no action other than to
send the Respondent a letter each month noting that the
payments were deficient. It was not until May or June
1995 that the Union pursued its inquiry about the re-
peated shortages though Petrella’s contacting Kaufman
about the matter. Based on the evidence that the Re-
spondent’s monthly fund reports disclosed to the Union a
deficiency in its contributions, I find that the Union was
on sufficient notice before the commencement of the
Section 10(b) period on April 19, 1995, to make inquiry
of the Respondent. The Union, by this time, had re-
ceived deficient contributions for 6 successive months
and had sent the Respondent a letter each month indicat-
ing its knowledge of the situation. Based on this evi-
dence, I find that the Union was “on notice of facts that
created a suspicion sufficient to warrant requiring [it] to
file [an] unfair labor practice charge . . .” in order to toll
the 10(b) period.4 Yet, the Union did not file the charge
alleging this violation until more than 6 months later in
October.5
Thus, I conclude that the Union is chargeable with
knowledge of the Respondent’s conduct. This is not a

3 See also Winer Motors, 265 NLRB 1457 (1982); Machinists Dis-
trict Lodge 64 v. NLRB (Brown & Sharpe Mfg. Co.), 949 F.2d 441, 445
(D.C. Cir. 1991).
4 Safety-Kleen Corp., 279 NLRB 1117 fn. 1 (1986). Electrical
Workers IBEW Local 25 (SMG), 321 NLRB 498, 500 (1996), and cases
cited therein. (Cause of action begins from time of actual or construc-
tive notice of the commission of alleged unfair labor practice.)
5 Moreover, I note that the filing of the petition in November seeking
to exclude the LPNs from the bargaining unit also provided cause for
the Union to make an inquiry as to whether the Respondent may have
unilaterally ceased pension contributions for these employees. I recog-
nize, however, that the filing of the petition did not automatically re-
lieve the Respondent of its responsibility for making these contribu-
tions.
case where information regarding misconduct was only
in the employer’s hands, or where an employer has con-
cealed its misconduct. The Union had notice of the Re-
spondent’s shortfall in pension contributions from the
remittance reports it received and had ignored these re-
occurring deficiencies for months. Accordingly, I would
not extend the time for which the Respondent owes pen-
sion fund contributions for the LPNs beyond the 10(b)
period.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail and refuse to make contributions to
the Union’s three trust funds for the periods specified
below:

Welfare Fund: Balance due for the month of
January 1996, and all contributions due since Febru-
ary 1, 1996.
Pension Fund: All contributions due since June
1, 1995, excepting the Respondent’s licensed practi-
cal nurses for whom contributions are due since June
1, 1994.
Education Fund: All contributions due since Oc-
tober 1, 1995.

WE WILL NOT fail and refuse to bargain collectively by
failing to meet and bargain with the Union.
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 Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of our employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All service employees, including nurses’ aides, order-
lies, recreation aides, therapy aides, dietary and kitchen
employees, laundry employees, and licensed practical
nurses.

WE WILL pay those contributions into the Union’s
Welfare Fund, Pension Fund, and Education Fund that
we failed to make on the unit employees’ behalf as speci-
fied above.
WE WILL make whole, with interest, the unit employ-
ees for any losses they sustained by reason of our unlaw-
ful failure to make payments to the Union’s Funds.

CONCOURSE NURSING HOME 697
MARVIN NEIMAN, INDIVIDUALLY, AND D/B/A
CONCOURSE NURSING HOME AND ITS ALTER
EGO CNH MANAGEMENT ASSOCIATES, INC.,
AND ITS ALTER EGO CONCOURSE REHABILI-
TATION AND CENTER, INC.

Mindy Landow, Esq., for the General Counsel.
Theodore Mairanz and Marvin Neiman, Esqs. (Neiman Gins-
burg & Mairanz P.C.), of New York, New York, for the
Respondents.
Irwin Bluestein and Linda Rodd, Esqs. (Vladeck, Waldman,
Elias & Engelhard, P.C.) of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge and an amended charge in Case 2–CA–28638 filed on
August 2, 1995, and February 9, 1996, respectively by Local
144, Service Employees International Union, AFL–CIO (the
Union), and a charge and a first amended charge in Case 2–
CA–28776 filed by the Union on September 25, 1995, and
February 9, 1996, respectively, and a charge and a first
amended charge in Case 2–CA–28777 filed by the Union on
September, 27, 1995, and February 9, 1996, respectively, and a
charge and a first amended charge in Case 2–CA–28778 filed
by the Union on September 25, 1995, and February 9, 1996,
respectively, and a charge and a first amended charge in Case
2–CA–28841 filed by the Union on October 19, 1995, and Feb-
ruary 9, 1996, a consolidated complaint was issued by Region 2
of the Board on February 29, 1996.1
The complaint, which was issued against Marvin Neiman,
individually, and d/b/a Concourse Nursing Home and its alter
ego CNH Management Associates, Inc. (CNH) and its alter ego
Concourse Rehabilitation and Nursing Center, Inc. (CRNC)
(Respondent) alleges violations of Section 8(a)(1) and (5), in
that Respondent failed and refused to bargain with the Union,
and failed to remit funds and make reports to the Union’s Wel-
fare Fund, Pension Fund, and failed to remit funds to the Edu-
cation Fund.
Respondent’s answer denied the material allegations of the
complaint, and set forth certain affirmative defenses. On May

1 The answer denies knowledge that the charges and amended
charges were filed and served as alleged. A review of the formal pa-
pers, including the postal return receipts establishes that the charges
and amended charges were properly filed and served. Each of the origi-
nal charges was served on “Concourse Nursing Home. Att: Marvin
Neiman.” Each of the first amended charges was served upon “Marvin
Neiman, individually, and d/b/a Concourse Nursing Home and its alter
ego CNH Management Associates, Inc., and its alter ego Concourse
Rehabilitation and Nursing Center. Att: Marvin Neiman.”
In this connection, I reject Respondent’s argument that the complaint
must be dismissed against CNH and CRNC because separate service of
the charges or complaint was not made upon those entities. As dis-
cussed, infra, I find that CNH and CRNC are alter egos and a single
employer with Marvin Neiman and Concourse Nursing Home, which
had been served. Moreover, all entities are at the same location. Service
upon one of the entities which is a single employer and alter ego consti-
tutes service upon another. Il Progresso Italo Americano Publishing
Co., 299 NLRB 270 fn. 4 (1990); Mid-Hudson Leather Goods Co., 291
NLRB 449, 453 (1988).
28 through 31, June 3, 10, 27, and July 2, 1996, a hearing was
held before me in New York City.
On the evidence presented in this proceeding, and my obser-
vation of the demeanor of the witnesses, and after consideration
of the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
A facility, sometimes known as Concourse Nursing Home,
operates as a 240-bed nursing home located at 1072 Grand
Concourse, Bronx, New York. It was stipulated that Marvin
Neiman doing business as Concourse Nursing Home derives
gross revenue in excess of $500,000, and annually purchases
and receives at its New York facility goods and materials in
excess of $5000 directly from points outside New York State.
It was also stipulated that Concourse Rehabilitation and
Nursing Center, Inc., annually, in the conduct of its business in
the operation of the nursing home, derives gross revenues in
excess of $500,000, and annually purchases and receives at its
New York facility goods and materials valued in excess of
$5000 directly from points outside New York State.
I accordingly find and conclude that Marvin Neiman, doing
business as Concourse Nursing Home, and that Concourse Re-
habilitation and Nursing Center, Inc., are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.2
Respondent denied the labor organization status of the Un-
ion. Certain employees employed at the nursing home are rep-
resented by the Union, and Marvin Neiman, doing business as
Concourse Nursing Home entered into a collective-bargaining
agreement with the Union in 1991. The Union, which has rep-
resented these employees with respect to collective-bargaining
and grievance-arbitration proceedings, has been certified nu-
merous times by the Board in the past. I find that it is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Ownership and Operation of the Nursing Home
Briefly stated, the owners of the nursing home were Marvin
Neiman, as a sole proprietor, and then in October 1995, Con-
course Rehabilitation and Nursing Center.
The purported operators of the nursing home were CNH
Management Associates, Inc., which allegedly employed the
employees of the facility from 1978 to 1991, and then H.B.
Management Services Corp.
In order to fully understand the relationships between the
various entities herein, it is necessary to discuss the early opera-
tion of the nursing home.
The nursing home was originally owned by the father in law
of Marvin Neiman (Neiman). From 1974 until October, 1995,
Neiman owned the home, operating it as a sole proprietorship.3
2 Respondent has stipulated to the monetary figures, but denies that
the entities mentioned above are employers of the employees employed
at the nursing home. This will be discussed, infra.
3 Certain of these facts appear in the opinion of Robert Sweet, U.S.
District Judge. Local 144 v. C.N.H. Management Associates, Inc., 752
F.Supp. 1195 (S.D.N.Y. 1990). The General Counsel requested that I
take judicial notice of Judge Sweet’s opinion. It is appropriate that I do
so. Lord Jim’s, 259 NLRB 1162, 1163 (1982); Vanella Buick Opel, 194
NLRB 744, 747 (1971).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
CNH Management Associates, Inc. (CNH) became incorpo-
rated on August 10, 1978, on which day Neiman transferred all
stock in the company to his wife Helen Neiman to hold in trust
for their children. According to Judge Sweet’s opinion, “effec-
tive that date, all former employees of Concourse became em-
ployees of CNH.” 752 F.Supp at 1199. Judge Sweet also found
that CNH “ is a management company providing labor services
to Concourse.”
Also on that date, CNH and the Union signed their first col-
lective-bargaining agreement for the above employees. The
bargaining unit, in which the Union represents the employees,
is as follows:

All service employees, including nurses’ aides, orderlies, rec-
reation aides, therapy aides, dietary and kitchen employees,
laundry employees, and licensed practical nurses.

In 1984, Jonathan Baine purchased CNH for $260,000,
which represented the retained earnings of CNH as of the end
of that year, which was also the amount on CNH’s books as due
from Concourse. The $260,000 purchase price was effected by
a transfer from Concourse’s bank account to an account entitled
“Marvin Neiman, Helen Neiman escrow account.” Judge Sweet
found that after the transfer, “Neiman and his wife continued to
direct the day to day operations of CNH,” and “Neiman contin-
ued to control CNH’s labor relations, determining personnel
policies, the implementation of wage increases, the award of
bonuses, and the payment of arbitral awards.” 752 F.Supp at
1202, 1203. Baine signed the payroll checks of CNH.
At the time the 1978 collective-bargaining agreement was
entered into, the employees at Concourse received lower wages
and benefits than those received by employees represented by
the Union elsewhere. Accordingly, the contract required Con-
course to increase employee wages and benefits to industry
levels, called parity payments. When Concourse did not do so,
the Union filed for arbitration. Following lengthy proceedings,
the arbitrator decided that CNH was required to make the parity
payments.4 The Union sued to confirm and enforce the arbitra-
tor’s award. The litigation encompassed many years. In the
interim, in 1981, the Union and CNH entered into a successor
collective-bargaining agreement.
In May 1991, the parties reached a settlement of the lawsuit,
pursuant to which CNH and “Marvin Neiman individually and
as the sole proprietor of Concourse Nursing Home” and the
Union agreed that Neiman would execute a collective-
bargaining agreement covering the employees employed at the
nursing home.
In July 1991, a contract was entered into between “Marvin
Neiman d/b/a Concourse Nursing Home” and the Union.5 The
contract prohibits the subcontracting of unit work, and provides
that it is binding upon any successor or transferee who takes
over the ownership, operation and/or management of the facil-
ity covered by the contract.6 The contract further provides that
such transferee must be approved by the Department of Health
as the licensed operator, and the transferee must agree to em-

4 To accomplish this, Neiman would have had to transfer the funds
to CNH. 752 F.Supp at 1201.
5 There is no support in the record for Neiman’s testimony that al-
though he signed the contract, all parties and Judge Sweet were in-
formed that he did not intend to implement or honor it because Con-
course Nursing Home had no employees.
6 A side agreement was entered into permitting the subcontracting of
recreation and therapy aides.
ploy all the employees covered by the contract, and to adopt the
contract and comply with all its terms, and that Neiman was
obligated to ensure that the transferee does so.
CNH was apparently purchased by the Baine family, who
operated it until 1991, at which time everyone who worked for
CNH became employed by H.B. Management Services Corpo-
ration. Georgine McCabe, who at the time was the director of
resident care services, testified that when her employment
changed from CNH to H.B., she was not interviewed by H.B.,
she received no additional duties, and there was no change in
her salary or benefits. She continued to report directly to Mrs.
Neiman, who was at the time the administrator of the home.
In July 1995, H.B. was sold by Barbara Baine for $100 to
Aaron Kaufman, who is the sole owner and officer. Prior to
Kaufman’s ownership of H.B., he was employed by CNH as
comptroller for Concourse. He has continued as comptroller for
the facility. Kaufman works at Concourse, sharing an office
with other members of the accounting department. His immedi-
ate supervisor during his entire tenure has been Mrs. Neiman,
but he also reports to Neiman.
H.B. has as its sole customer, the Concourse facility. It oper-
ates from Concourse’s premises, its telephone and fax numbers
are the same as Concourse’s, and it uses Concourse’s equip-
ment and office space without reimbursing it. There is no writ-
ten agreement between H.B. and CRNC or its predecessor Con-
course Nursing Home.
H.B. has no operating license from New York State to oper-
ate a nursing home.
Respondent argues that H.B. is the employer of the employ-
ees employed at the facility. H.B. issues payroll checks to the
workers covered by the collective-bargaining agreement, and it
submits invoices to the facility for all its expenditures, such as
expenses relating to labor, including salaries and taxes, and it
receives reimbursement for those invoices.
Kaufman stated that he generally does not meet with Union
representatives as part of his responsibility to adjust grievances.
However, he has met with the Union for a collective-bargaining
session, which will be discussed, infra.
Kaufman did not know if any H.B. employee receives an an-
nual review. He stated that he has full authority over the sala-
ries of McCabe, department heads and employees of H.B. He
implemented wage increases pursuant to the 1991 collective-
bargaining agreement, and advised Mr. and Mrs. Neiman and
McCabe that he was doing so.
B. The Formation of CRNC
In November 1994, Neiman submitted an application to the
Department of Health, in which he proposed to change the form
of the ownership of the facility from a sole proprietorship to a
corporation, to be known as Concourse Rehabilitation and
Nursing Center, Inc. He stated that “in all other respects it is
not contemplated that there will be any change in the manner of
the operation or the services to be provided.” The application’s
project narrative included its philosophy of care: “The Con-
course Nursing Home’s current and historical philosophy of
care guides and underscores its commitment to . . . guide the
work force. . . . This philosophy stands and has been proven as
evidenced by deficiency-free surveys, financial viability and
long-standing employees.” One schedule contained in the ap-
plication lists the classifications of bargaining unit employees,
ostensibly employed by H.B., and their salaries and benefits
under the heading Concourse Rehabilitation & Nursing Center,
Inc. wages and benefits. Also listed under the same CRNC
CONCOURSE NURSING HOME 699
heading are the wages and benefits for H.B. employees such as
McCabe, Kaufman, Henry Teitelbaum, the director of opera-
tions and personnel.
Nowhere in the application or attachments is any mention of
H.B. as the employer of the employees at the facility, or
CRNC’s connection or involvement with H.B.
Neiman’s application was approved, CRNC was incorpo-
rated in September, 1995, and it became the owner and operator
of the facility in October 1995.

C. Evidence Concerning the Employer of the Employees
1. Respondent’s evidence
Respondent argues that H.B. is a “separate entity which has
no relation to either CRNC or Neiman’s sole proprietorship
other than a business relation to provide employees to the Con-
course Nursing Home and to the corporation.”
It is Respondent’s position that H.B. was at all times in
charge of the day-to-day labor relations of its employees, in-
cluding the hire and fire of workers. It is its further position that
Concourse Nursing Home subcontracted the provision of em-
ployees for the facility to CNH and then to H.B., and that Con-
course Nursing Home and CRNC have no employees.
Respondent relies upon the following evidence, inter alia, in
support of its position that H.B. is the employer of the employ-
ees.
The Union dealt with CNH regarding grievances of the em-
ployees represented by the Union.
At an arbitration hearing concerning employees Elaine
Clarke and Mercilyn Byrd, Jonathan Sulds, the attorney for
H.B., represented the company, and stated that H.B. was the
employer. The Union’s lawyer objected. the arbitrator did not
rule on the issue of the identity of the employer, but issued a
decision on the merits, with Concourse Nursing Home being
named in the caption, and reference being made to the contract,
which was with Concourse.
On November 8, 1994, H.B. filed a unit clarification petition
with the Board, seeking to exclude the licensed practical nurses
from the unit on the ground that they are supervisors. The Un-
ion moved to dismiss the petition on the ground that Concourse
Nursing Home and not H.B. is not the employer of the employ-
ees.
An arbitration award was issued in May 1995, which listed
as the employer H.B. Management Services Corp. at Concourse
Nursing Home. The dispute involved the claim that “the Em-
ployer violated the parties’ 1991–1994 agreement” concerning
the grievant, employee Elaine Leander.
In addition, in 1993, the American Arbitration Association
sent letters to Sulds, as attorney for H.B. at Concourse Nursing
Home, referring to certain disputes between the parties to the
contract.
The Union settled a grievance, which was brought against
Concourse Nursing Home. In that grievance, which involved
employee Fitzroy Caines, Union official Vanato Francis signed
a stipulation of settlement which stated that “H.B. Management
employs the Grievant to perform services for Concourse, is
responsible for the supervision of the Grievant’s employment,
is in control of all operations at Concourse. . . .”
The Union and its law firm also participated in an arbitration
concerning employee Elaine Leander, in which the employer
was set forth as “H.B. Management Services Corp. at Con-
course Nursing Home” in which the issue was the “employer’s”
violation of the parties’ 1991–1994 collective-bargaining
agreement.
Payroll checks for the employees have been issued since
1991 in the name of H.B., and memoranda to employees have
been written on H.B. letterhead since 1991, dealing with such
matters as wages and discipline. However, checks were issued
to the Union Funds in 1992 through 1994 from checks bearing
the account name of Concourse Nursing Home.
2. General Counsel’s evidence
Notwithstanding that H.B. is claimed to be the employer of
the employees since 1991, there is much evidence in the record
which refutes this claim.
A June 1992 nurse’s aide/orderly evaluation form which
gave a failing grade to an orderly, and an August 1992 inser-
vice education department unit orientation form for the same
orderly, and numerous other 1992 inservice documents have
Concourse Nursing Home as their heading. Similarly, 1992,
1993, and 1996 disciplinary action notices are under the head-
ing CNH.
In addition, a 1996 letter advising an employee of the re-
quirement that she take a physical examination, and the physi-
cal examination form is on CRNC letterhead. Similarly, a 1992
report of an investigation of an incident or accident was set
forth on a Concourse Nursing Home letterhead.
Although ostensibly an employee of H.B. at the time, Helen
Neiman, the administrator of the facility, had listed on a 1994
application for a bank loan, that her employer was Concourse
Nursing Home.
In December 1991, the Union’s Funds received a check from
H.B. in payment of certain fund contributions. Anthony Pet-
rella, the Funds’ controller, objected to H.B. making the pay-
ment, and comptroller Kaufman sent a Concourse Nursing
Home check to replace the H.B. check. That month, Kaufman
sent a letter to Petrella advising that the “H.B. Management
Services reports accompanying the fund contribution checks are
for the employees who work at Concourse Nursing Home.”
At that time, a stipulation was entered into between the par-
ties and Judge Sweet, in which it was agreed (a) that Neiman
was obligated under the collective-bargaining agreement to
make contributions to the Local 144 Hospital Welfare Fund and
(b) Neiman shall, in his own name, or doing business as Con-
course Nursing Home, and not through any other entity, make
all contributions and submit all forms to the Local 144 Hospital
Funds required under the agreement. The stipulation also con-
tained a provision that the Union could pursue an application
before the court concerning Neiman’s “continued use of and/or
relationship with H.B. Management Associates, Inc. or any
other entity.”
The Personnel Policies Manual bears CRNC as the page
heading on numerous policy statements for the employees at
the facility, including those relating to hire, wages, discipline,
etc. Various documents throughout the Manual, however, state
that “Concourse Nursing Home” is the employer. The Code of
Ethics for Employee Relations states that Concourse Nursing
Home, in order to protect the interests of its employees, pledges
itself to maintain written policies and procedures affecting the
rights and privileges of its employees, pay salaries, to establish
the standards of work performance and behavior on the job,
will not discriminate in the hiring of candidates and treatment
of employees on the basis of handicap, etc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
An employee orientation policy specifically applies to “all
personnel employed by the Concourse Nursing Home” and it is
a guide to be used in on the job orientation of employees.
A separate booklet entitled The Governing Body identifies
the governing body as being comprised of Mr. and Mrs. Nei-
man, as the operator and executive director, respectively. It is
the responsibility of the Governing Body to appoint a qualified
administrator, implement and maintain, through the adminis-
trator, written personnel policies and procedures, provide for an
ongoing educational program for the staff.
Nursing homes are required to abide by Title 10 of the New
York Code concerning the operation of such facilities. Accord-
ing to Title 10, the governing authority or operator is the party
responsible for the operation of the nursing home. In this case,
the governing authority, as defined in the Regulations, are the
“officers, directors and stockholders of a business corporation”
which is CRNC, and Neiman as the stockholder. According to
the Regulations, “the governing authority or operator may not
contract for management services with a party which has not
received establishment approval.”
One factor set forth for determining whether there has been
an improper delegation to a management consultant by the
governing authority or operator of its responsibilities is the
“authority to hire or fire the administrator or other key man-
agement employees.”
Neiman was examined as to who has the authority to dis-
charge administrator McCabe. He first testified that since
McCabe was not an employee of CRNC, but rather is an em-
ployee of H.B., Kaufman or a principal of H.B. would have
authority to discharge her, and that he (Neiman) did not have
the authority to tell McCabe that she was fired. Neiman stated
that his only alternative, if he was unhappy with the services
rendered by McCabe, would be discontinue his contract with
H.B..
Neiman later testified, however, after being confronted with
the rule, above, that the authority to hire and fire the adminis-
trator cannot be, and had not been delegated to H.B., rather that
H.B. could only suggest that such action be taken, but he (Nei-
man) may accept or reject that suggestion because of the rule’s
requirement. He stated that the license of the nursing home is a
very valuable asset. He then flatly stated that the ultimate
authority to hire or fire the administrator rests with the corpo-
ration, CRNC. But then Neiman further testified that he could
not fire the administrator as she did not work for him, and
reiterated that H.B. has the authority to hire or fire the adminis-
trator. Neiman also stated that H.B. retains the “technical” au-
thority to hire or fire the administrator and other key manage-
ment employees.

3. The failure to bargain with the Union
for a successor agreement
The complaint alleges that since about July 25, 1995, Re-
spondent, by representatives of H.B. (a) asserted that the Re-
spondent was not the employer of the employees in the bargain-
ing unit; (b) failed and refused to bargain with the Union for a
successor collective-bargaining agreement; and (c) by those
acts withdrew its recognition of the Union.
The collective-bargaining agreement expired on September
30, 1994. On June 20, 1994, Union President Frank Russo sent
a letter to the “administrator, Concourse Nursing Home”, ask-
ing for an opportunity to meet and negotiate a successor agree-
ment.
On June 28, Vancito Francis, the Union’s business represen-
tative, sent a letter to McCabe, listing seven employees as
members of the negotiating committee. Francis attempted many
times to contact H.B. attorney Sulds, who told him that “there
was some reluctance on [Mr. Neiman’s] part.” Francis con-
tacted McCabe who said that she would speak with Sulds.
Francis asked retired Union Business Agent Murray Nom-
berg for assistance in arranging a negotiation session. Nomberg
called Sulds and the parties agreed to meet on July 25, 1995. At
the meeting, Francis presented the Union’s bargaining propos-
als, which were entitled “Local 144, Contract proposals 1994,
Concourse Nursing Home.” Sulds replied that since the propos-
als were titled “Concourse Nursing Home,” and he only repre-
sented H.B., the employer of the employees, he had no author-
ity to accept the proposals. Sulds said that H.B. was prepared to
bargain for a contract. Francis replied that he only had authority
to bargain with Concourse Nursing Home, the contracting
party. The meeting then ended.
Sulds testified that prior to meeting with the Union on that
occasion, he spoke with CRNC’S attorney Mairanz concerning
background information, and for help drafting proposals for
H.B, and after the meeting he spoke with Neiman and Mairanz
concerning what occurred there.
No further meetings have been held concerning contract ne-
gotiations.
4. The failure to remit funds and reports
The complaint alleges that Respondent’s failure to make
monthly contributions to the Union’s Welfare Fund, Pension
Fund, and Education Fund, and failure to remit reports to the
Welfare and Pension Funds, violates the Act. The complaint
further alleges that Respondent’s failure to make the contribu-
tions and remit the reports was done unilaterally without prior
notice to the Union and without having given the Union an
opportunity to negotiate and bargain concerning such acts.
Article 25 of the collective-bargaining agreement requires
monthly payments and reports to the Local 144 Hospital Wel-
fare Fund, the Local 144 Hospital Pension Fund, and the Local
144 Health Facilities Training and Upgrading Fund.
Regarding the Welfare Fund, the complaint alleges that
payments and reports were not made to the Welfare Fund since
August 1995. Union Funds Controller Anthony Petrella testi-
fied that as of the time of the hearing, the facility owes contri-
butions from January 1996 through April 1996. Although
weekly “on-account” payments of $5000 have been received,
such sums have not equaled the amount owed.
Regarding the Pension Fund, the complaint alleges that since
about October 1994, but fraudulently concealed from the Union
since about June 1995, payments have not been made to the
Pension Fund on behalf of licensed practical nurses. The com-
plaint also alleges that since July 1995, payments and reports
have not been made to the Pension Fund in behalf of all unit
employees including licensed practical nurses.
Petrella testified that the Funds first received a payment for
the Pension Fund in October 1994 for the period which was due
in July 1994. He sent a letter to Concourse Nursing Home in
October, noting an underpayment. Payments were made by the
facility, but not the full amount was remitted for the periods
due. Letters notifying Concourse and CNH of the underpay-
ments were sent nearly monthly from October 1994 through
September 1995.
In May or June 1995, Petrella called Aaron Kaufman and
told him that there was an underpayment in Pension Fund con-
CONCOURSE NURSING HOME 701
tributions based upon the amount of reported wages. Kaufman
informed Petrella that no contributions were being made for the
licensed practical nurses. Petrella expressed surprise, saying
that the Fund was receiving welfare contributions for those
nurses. Kaufman replied that he filed a “petition” regarding the
licensed practical nurses. As noted above, a unit clarification
petition was filed by H.B. in November 1994, seeking the ex-
clusion of the licensed practical nurses from the unit.
Petrella testified that July 20, 1995, was the last time the fa-
cility made any payments toward pension contributions. How-
ever, he also testified that reports had been made for the Pen-
sion and Welfare funds, although not always timely.
Finally, the complaint alleges that since about June 1995,
payments have not been made to the Education Fund. It is not
alleged that Respondent failed to submit reports to the Educa-
tion Fund.
Boliver Valentine, the assistant director of finance of the Lo-
cal 144 Health and Hospital Education Fund, testified that that
fund is the successor to the Local 144 Health Facilities Training
and Upgrading Fund.
In June 1995, Kaufman sent Union Controller Petrella a let-
ter, on H.B. letterhead, which stated that he understood that the
Training and Upgrading Fund was terminated, and the Educa-
tion Fund has been established. Kaufman added “we hereby
acknowledge that Education Fund contributions made on behalf
of bargaining unit employees of H.B. Management Services
Corp. will be accepted by the Hospital Education Fund and that
such bargaining unit employees will be entitled to benefits from
such Fund according to the rules and regulations of the Fund.”
Valentine stated that as of the time of the hearing, contribu-
tions for that Fund have not been submitted since October
1995, and reports had not been submitted since September
1995. In April 1996, Valentine told Kaufman that contributions
to the Education Fund were outstanding. Kaufman asked for a
list of the delinquent months, and on April 26, Valentine sent
him a list which stated that contributions for the months of May
1995, and October 1995 through March 1996 had not been
received. Valentine called Kaufman on May 1, 1996, and was
told that Kaufman would call him back. He has not done so.
Regarding the Education Fund, as set forth above, the collec-
tive-bargaining agreement referred to its predecessor, the Train-
ing and Upgrading Fund. Respondent argues that since Con-
course and Neiman did not sign an acknowledgment agreeing
to the change of name of the funds, they are not responsible to
make such payments. H.B. did agree to the change of name of
the fund, and agreed to make payments to such fund.
Inasmuch as I have found that H.B. is the agent of Respon-
dent, I find that its actions in agreeing to make payments to the
Education Fund were made in behalf of Respondent, and ac-
cordingly Respondent remains responsible to continue to make
contributions to the Fund.
III. ANALYSIS AND DISCUSSION
A. The Alter Ego Status of Neiman, Concourse, CNH
and CRNC
The complaint alleges that Marvin Neiman individually and
d/b/a Concourse Nursing Home, CNH, and CRNC are alter
egos and a single employer.
Alter ego status is found where two enterprises have substan-
tially identical management, business purpose, operation,
equipment, customers, supervision, and ownership. Johnstown
Corp., 313 NLRB 170 (1993); Crawford Door Sales, 226
NLRB 1144 (1976).
First, with respect to the ownership of the facility, Marvin
Neiman initially owned the facility as a sole proprietorship, and
then incorporated, with CRNC being formed, and with him
being the sole stockholder. Clearly the ownership in the facility
is identical—it at all times resided in Neiman. The top man-
agement of the facility remained the same. Regardless of
whether the managers, including Mrs. Neiman, Kaufman,
Teitelbaum or McCabe are on H.B.’s payroll or not, which will
be discussed, infra, the highest management officials at the
facility remained in the same positions, performing the same
functions, as they had previously.
Of course the business purpose, the operation of a 240-bed
nursing home at the same location, and its customers, the pa-
tients, remain the same between Concourse Nursing Home and
CRNC.
The supervision of the employees, regardless of whether the
supervisors or the employees are allegedly employed by H.B.,
remains the same. The same supervisory evaluation and disci-
pline forms have been used, and indeed prior forms using the
names of Concourse Nursing Home and CNH have been used
even while H.B. was the purported employer.
Neiman was named as an alter ego individually, and as doing
business as Concourse Nursing Home. Neiman’s control of the
other entities was pervasive, even after CRNC became the cor-
porate owner of the nursing home. Thus, his testimony with
regard to H.B.’s authority to remove administrator McCabe was
instructive. As set forth above, Neiman gave differing views as
to whether he had authority to discharge McCabe or whether
H.B. did. Although separate and independent in legal form,
CRNC does not operate as a discrete, distinct entity in its own-
ership of the nursing home. It is clear that Neiman still is in
effective control of the home and all its operations.
In addition, all the unfair labor practices found herein were
committed when Neiman operated the nursing home as a sole
proprietor.
On the facts set forth above, I find that Neiman and CRNC
are alter egos. As an alter ego, Neiman is individually responsi-
ble for the obligations of his alter egos, and is jointly and sever-
ally responsible with the other Respondents for remedying the
unfair labor practices found herein. Urban Laboratories, 308
NLRB 816, 818 (1992); Pollack Mfg., 313 NLRB 562, 568
(1993).7
I accordingly find and conclude that CRNC is the alter ego
of Marvin Neiman individually and d/b/a Concourse Nursing
Home.
I also find that CNH was the alter ego of Neiman and Con-
course Nursing Home during the life of CNH. As found above,
CNH was purchased by the Baine family from Neiman, but
Neiman and his wife continued to operate the facility and were
in overall charge of its employees. Accordingly, although it was
the nominal employer of the employees, CNH was in reality the
alter ego of Marvin Neiman and Marvin Neiman d/b/a Con-
course Nursing Home.
The Board examines the following factors in determining
whether two or more employing entities constitute a single

7 In view of this finding, I find it unnecessary to discuss General
Counsel’s request that I pierce the corporate veil of CRNC and find
Neiman individually responsible under that theory. White Oak Coal
Co., 318 NLRB 732, 734 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
employer: (1) common ownership; (2) interrelation of opera-
tions; (3) common management; and (4) centralized control of
labor relations. Not all of these criteria must be present to es-
tablish single-employer status, and a significant factor is the
absence of an “arm’s length relationship found among uninte-
grated companies.” Denart Coal Co., 315 NLRB 850, 851
(1994). Based on the facts set forth above with respect to alter
ego status, I find that the same companies constitute a single
employer.
B. The Agency Status of H.B.
The complaint alleges, and I find that H.B. is the agent of
Respondent.8
Here, the connection between H.B. and CRNC is close, di-
rect, and obvious. As set forth above, H.B. is located at the
Concourse facility, and uses the equipment of Concourse. H.B.,
which was purchased for the nominal amount of $100 by Aaron
Kaufman, who had been the comptroller for Concourse and
CRNC, makes no profit since all its expenses are reimbursed by
the nursing home. No written agreement exists between CRNC
and H.B. Its sole customer is the nursing home, and it uses
telephone and fax numbers which are the same as those for
Concourse.
In similar situations, the Board has found that one company
is an agent of another where the agent provided temporary em-
ployees used by the respondent to perform unit work, and also
provided services such as administrative paperwork, skill quali-
fying, interviewing, reference verification, payroll, and insur-
ance. Storall Mfg. Co., 275 NLRB 220 fn. 3 (1985). See also
Mason City Dressed Beef, 231 NLRB 735, 746 (1977); Michi-
gan Drywall Corp., 232 NLRB 120, 123 (1977).
C. Responsibility for the Unfair Labor Practices
As set forth above, Neiman, Concourse Nursing Home, and
CRNC, as alter egos, are the employer of the unit employees
working at the nursing home. Neiman d/b/a Concourse Nursing
Home signed the most recent collective-bargaining agreement.
It is clear that Concourse and CRNC are responsible for the
employment relationship with the unit employees at the nursing
home. Neiman, Concourse, and CRNC, as their alter ego, exe-
cuted the collective-bargaining agreement and are responsible
to honor its terms. Indeed, there was no evidence that the col-
lective-bargaining agreement had not been complied with from
its inception by Neiman and Concourse, until the time of the
unfair labor practices alleged herein.
Employee evaluations, training, personnel policies, memos
to employees, as well as representations to State authorities
have been made in the name of Concourse Nursing Home, and
CRNC, to an extent that it may be found that those entities are
the employer of the employees. Although certain forms are in
the name of H.B., and the employees are paid from H.B.’s ac-
count, based upon the evidence, it cannot be said that H.B. is
the employer of the employees upon the evidence presented
herein.
H.B. simply has been created to appear as the employer, but
in fact is the employer in name only. It functions virtually as a

8 The Union argues that H.B. is the alter ego of Concourse. Since the
General Counsel has authority over the issuance of complaints, the
matters alleged, and determining the legal theory involved, I reject the
Union’s argument. Electrical Workers IUE Local 144 (Paramax Sys-
tems), 311 NLRB 1031, 1033 fn. 6 (1993).
payroll agent, making payments to the workers, and doing little
more.
I have carefully considered Respondent’s evidence concern-
ing its position that H.B. is the employer of the unit employees.
The evidence submitted simply does not support a finding that
H.B. is the true employer. The various arbitration proceedings,
the self-serving declaration in the Caines grievance, and the
unit clarification petition are superficial and unsuccessful at-
tempts to foist H.B. upon the Union. They do not constitute
substantial evidence in determining the employer status of H.B.
Even as to certain of the evidence produced, the collective-
bargaining agreement was referred to, which of course is be-
tween Neiman individually and d/b/a Concourse Nursing
Home.
The provisions sought to be enforced herein, the contribu-
tions to the funds, survived the expiration of the contract. Nei-
man, Concourse Nursing Home, and their alter ego, CRNC are
responsible for the payment of the funds and are responsible to
remedy the violations of the Act found herein.
IV. THE UNFAIR LABOR PRACTICES
A. The Fund Contributions
The complaint alleges, and I find, that Respondent has not
made certain contributions to the Funds, as required by the
collective-bargaining agreement, and that certain reports were
not submitted.
Thus, as set forth above, at the time of the hearing, Respon-
dent owed contributions to the Funds as follows:

Welfare Fund: Balance due for the month of January,
1996, and all contributions due since February 1, 1996.
Pension Fund: All contributions due since June 1,
1995.
Education Fund: All contributions due since October
1, 1995.

With respect to the Pension Fund, I cannot find, as alleged in
the complaint, that Pension Fund contributions are due for the
licensed practical nurses from October 1994, which is outside
the Section 10(b) period, because of the allegedly fraudulent
concealment of their nonpayment.
The Union was aware that a reduced Pension Fund payment
was made, and could have learned the reason for such under-
payment in a timely manner. John Morrell & Co., 304 NLRB
896, 899 (1991).
The Board has long held that “terms and conditions of em-
ployment that are part of an expired collective-bargaining
agreement, including benefit fund plans and related reporting
requirements, survive contract expiration and cannot be altered
without bargaining” to impasse, the Union’s loss of majority
status, or a waiver. MBC Headwear, Inc., 315 NLRB 424 fn. 3
(1994); Parkview Furniture Mfg. Co., 284 NLRB 947, 971–972
(1987).
No waiver occurred since the Union did not waive any of the
contributions which were due. Rather, the Union continued to
insist upon their payment, and notified Respondent accordingly.
Regarding the reports allegedly not submitted, although I am
aware that Petrella testified that all reports had been received,
nevertheless there was some confusion concerning his testi-
mony. Inasmuch as I have found that certain Fund contributions
have not been made, it is appropriate that I direct that reports
shall be submitted. In that way, the reports may be correlated
with the Fund payments not made. There is no prejudice to
CONCOURSE NURSING HOME 703
Respondent in submitting such reports since it need only submit
duplicate copies of those reports which were already submitted
with the payments.
I accordingly find and conclude that Respondent has failed to
remit benefit fund contributions, and failed to submit remit-
tance reports to the Union as required by the collective-
bargaining agreement. Such acts were done without giving the
Union any notice or an opportunity to bargain concerning such
actions.
B. The Failure to Meet and Bargain
An alter ego is obligated to meet and bargain with the Union
as the representative of the unit employees. Lihli Fashions
Corp., 317 NLRB 163 (1995). Respondent has an obligation to
meet and bargain with the Union concerning the terms of a
successor collective-bargaining agreement.
As set forth above, the Union sent a letter to the administra-
tor of the nursing home, requesting bargaining. In addition,
McCabe was aware of the Union’s attempts to begin bargain-
ing.
The employer of the employees, the party to the collective-
bargaining agreement, Neiman, Concourse Nursing Home, and
their alter ego, CRNC, was obligated to bargain in good faith
with the Union for a successor contract.
By inserting their agent H.B. into place as the purported em-
ployer, and refusing to bargain with the Union, Respondent
violated the Act. The Union correctly refused to bargain with
H.B., as it was not the employer of the employees. The Union
was entitled to bargain with the contracting party, Neiman,
Concourse Nursing Home and their alter ego, CRNC.
The Union did not waive its right to bargain with Concourse.
In order to establish a waiver of the statutory right to bargain
over mandatory subjects of bargaining, there must be a “clear
and unmistakable relinquishment of that right.” To meet that
standard, the contract language must be specific, or it must be
shown that the matter sought to be waived was fully discussed
and consciously explored and that the waiving party con-
sciously yielded its interest in the matter. Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 708 (1983); Trojan Yacht, 319
NLRB 741, 742 (1995). No such waiver exists here.
Respondent argues that since Neiman ignored the Union’s
June 1994 request to bargain, the Union was put on notice that
Respondent did not intend to bargain with it, and was therefore
relieved of its obligation to bargain with it. Respondent con-
tends that since H.B. presented itself as ready to bargain, the
Union was obligated to bargain with H.B. If upheld, that argu-
ment would permit any employer to simply disregard a demand
to bargain, prop up another entity, and demand that the Union
bargain with that other organization. The Union had a right to
demand that Respondent, the contracting party, and the true
employer of the employees, bargain with it.
C. Respondent’s Section 10(b) Defenses
Respondent argues that the complaint must be dismissed be-
cause there is no evidence that within 6 months prior to the
charges being filed herein that Neiman (a) failed to bargain
with the Union and (b) had any obligation to make any fund
contributions or remit any reports.
Respondent contends that at least as of December 1991 the
Union knew that Neiman would not implement the terms of the
collective-bargaining agreement. As set forth above in footnote
5, Neiman’s argument that everyone, including Judge Sweet
knew that although he signed the agreement as an individual he
would not be bound therefore, is devoid of merit.
Respondent relies on the stipulation executed in December
1991, as evidence that the Union was aware that Concourse
would not act as the employer of the employees at the nursing
home. As set forth above, the stipulation contained a provision
that the Union could pursue an application before the court
concerning Neiman’s “continued use of and/or relationship
with H.B. Management Associates, Inc. or any other entity.”
But the stipulation also provided that it was agreed (a) that
Neiman was obligated under the collective-bargaining agree-
ment to make contributions to the Local 144 Hospital Welfare
Fund and (b) Neiman shall, in his own name, or doing business
as Concourse Nursing Home, and not through any other entity,
make all contributions and submit all forms to the Local 144
Hospital Funds required under the agreement.
Respondent argues that since the Union never made any ap-
plication concerning Neiman’s continued use or relationship
with H.B., it therefore waived “any rights” it possessed. As set
forth above, the Union did not, by action, or implicitly, waive
its right to insist that Respondent was the employer of the unit
employees. The Union was not required to take any action con-
cerning Neiman’s relationship with H.B. It already had Nei-
man’s signature on the collective-bargaining agreement, and on
this Stipulation obligating himself to make the required contri-
butions.
Respondent correctly argues that H.B.’s name appeared on
certain arbitrations which the Union was a party to, and on the
unit clarification petition. However, these facts do not consti-
tute the “clear and unequivocal repudiation” of the collective-
bargaining agreement which would start the Section 10(b) pe-
riod running. A & L Underground, 302 NLRB 467 (1991).
CONCLUSIONS OF LAW
1. Respondent, Marvin Neiman, individually, and d/b/a Con-
course Nursing Home, and its alter ego CNH Management
Associates, Inc., and its alter ego Concourse Rehabilitation and
Nursing Center, Inc., are alter egos and a single employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 144, Service Employees International Union, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
3. At all material times, the Union has been the designated
exclusive collective-bargaining representative of Respondent’s
employees in the following appropriate bargaining unit within
the meaning of Section 9(b) of the Act.

All service employees, including nurses’ aides, orderlies, rec-
reation aides, therapy aides, dietary and kitchen employees,
laundry employees, and licensed practical nurses.

4. By failing and refusing to make the following contribu-
tions to the Funds, and by failing to submit remittance reports
to the Funds, as set forth below, Respondent violated Section
8(a)(1) and (5) of the Act:

Welfare Fund: Balance due for the month of January,
1996, and all contributions due since February 1, 1996.
Pension Fund: All contributions due since June 1,
1995.
Education Fund: All contributions due since October
1, 1995.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
5. By failing and refusing to bargain collectively by failing to
meet with and bargain with the Union on about July 25, 1995,
Respondent violated Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
I shall recommend that the Respondent make the welfare
fund, pension fund, and the education fund whole for any con-
tributions that it was required to make under the terms of the
collective-bargaining agreement. I shall also recommend that
Respondent reimburse any employee who having incurred ex-
penses to the extent that such expenses were not reimbursed by
the welfare fund would have been reimbursed if payments had
been made to the fund. In the event that sums are due to em-
ployees, they shall be made whole with interest as set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987), and
any sums due to the welfare fund shall be computed as set forth
in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Marvin Neiman, individually, and d/b/a
Concourse Nursing Home and its alter ego CNH Management
Associates, Inc., and its alter ego Concourse Rehabilitation and
Nursing Center, Inc., Bronx, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to make the following contributions
to the Local 144 Funds, and by failing to submit remittance
reports to the Funds, as set forth below:

Welfare Fund: Balance due for the month of January,
1996, and all contributions due since February 1, 1996.
Pension Fund: All contributions due since June 1,
1995.
Education Fund: All contributions due since October
1, 1995.

(b) Failing and refusing to bargain collectively by failing to
meet with and bargain with the Union on about July 25, 1995.
(c) 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 effec-
tuate the policies of the Act.

9 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 pur-
poses.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:

All service employees, including nurses’ aides, orderlies, rec-
reation aides, therapy aides, dietary and kitchen employees,
laundry employees, and licensed practical nurses.

(b) Pay into the Union’s Welfare Fund, Pension Fund, and
Education Fund on behalf of its unit employees, those contribu-
tions it failed to make, as set forth above, in the manner set
forth in the remedy section of this decision, and file with the
Funds those reports which are required the by collective-
bargaining agreement.
(c) Make whole any employees for any losses suffered by
reason of its unlawful failure to make the payments to the Un-
ion’s Funds, as set forth above, in the manner set forth in the
remedy section of this decision.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in the Bronx, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt 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 Respondent 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
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 7, 1995.
(f) 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
Respondent has taken to comply.
10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”