Deer Creek Electric, Inc. and Black Hills Electric, Inc. alter egos

National Labor Relations Board - Board Decisions

Aug 17, 2015

362 NLRB No. 171 (N.L.R.B. 2015)

362 NLRB No. 171
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Deer Creek Electric, Inc. and Black Hills Electric,
Inc., alter egos and International Brotherhood of
Electrical Workers, Local 76, AFL–CIO, CLC.
Case19–CA–097260
August 17, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND JOHNSON
On May 1, 2014, Administrative Law Judge Mary Mil-
ler Cracraft issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondents filed an answering brief, and the General
Counsel filed a reply. The Respondents filed cross-
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondents filed a
reply.
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions as modified below and to adopt the rec-
ommended Order.
We adopt the judge’s finding that Respondent Black
Hills Electric, Inc. (Black Hills) is not the alter ego of
Respondent Deer Creek Electric, Inc. (Deer Creek) and
affirm the judge’s dismissal of the complaint. In doing
so, however, we find, contrary to the judge, that the Gen-
eral Counsel met his burden of showing the Respondents
shared substantially identical supervision and manage-
ment. The Board has found that two companies shared
common management when one company’s owner had
no relevant experience and relied on the other company’s
owner’s expertise in “preparing bids on contracts, hiring
workers, and supervising them in the field.” US Rein-
forcing, Inc., 350 NLRB 404, 415 (2007) (reversing the
judge’s alter-ego finding on other grounds). Here, Rick
Moloney owned Deer Creek and was its president and
general manager. He bid all its jobs, managed all hiring,
handled all financial matters, and served as supervisor on
all its jobs. When Cheri Jackson started Black Hills, she

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
had very little experience in the industry. She hired
Moloney, who bids projects, certifies prevailing wages,
and serves as the general manager, project manager, elec-
trical administrator, and estimator for Black Hills.
Moloney’s roles in both companies are sufficient to show
that Deer Creek and Black Hills shared substantially
identical supervision and management. However, for the
reasons the judge stated, we agree that the Respondents
lacked common ownership, customers, and equipment,
and we also agree that the record lacks evidence that
Black Hills was formed to evade Deer Creek’s responsi-
bilities under the Act. Accordingly, we affirm the
judge’s finding that the Respondents are not alter egos.
The General Counsel urges us to consider the Re-
spondents’ common service providers and employees as
factors favoring a finding of alter ego status. Assuming
without deciding that these factors may be considered
separately from the factor of common business opera-
tions, they do not support a finding of alter ego status.
The Respondents shared only one hourly employee, Jesse
Birdsall. Further, although they shared a law firm and
accountant, there is no evidence in the record that the
Respondents shared any other service providers, such as
for health insurance, liability insurance, or banking. We
find that the General Counsel has not met his burden of
showing the Respondents shared substantially identical
services or employees.
We disagree with our dissenting colleague’s view that
the Respondents share substantially identical ownership
and equipment and that Black Hills was created in order
to avoid Deer Creek’s obligations under the Act, and
with his conclusion that the Respondents should be
deemed alter egos. For the following reasons, we believe
the facts do not support an alter-ego finding.
The owners of Deer Creek, Rick and Sandra Moloney,
are brother-in-law and sister, respectively, to Cheri Jack-
son, the owner of Black Hills, and our colleague ob-
serves that the Board has found substantially identical
ownership where the original company and the newly
formed company are owned by members of the same
family. But family relationship is not dispositive of this
alter-ego factor. A finding of substantially identical
ownership is not based simply on “the apparent align-
ment of interests that family members share,” but rather
requires that “the owners of one company exercise con-
siderable financial control over the alter ego.” US Rein-
forcing, 350 NLRB at 406 (internal quotations omitted).
There is no record evidence that either Rick or Sandra
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moloney exercised any financial control over Black
Hills, or for that matter, over Cheri Jackson.2
We further disagree with the dissent’s statement that
Jackson’s role in Black Hills “is essentially limited to
bookkeeping, banking, and approving purchases.” The
judge credited Jackson’s testimony that she reviews bids
and oversees personnel and that she hired Black Hills’
employees. The credited testimony also shows that alt-
hough Moloney manages much of Black Hills’ day-to-
day work, he has no authority to make purchasing deci-
sions without Jackson’s approval. Our colleague relies
on the fact that Moloney “signed a personal liability
agreement, along with Jackson, for Black Hills’ purchase
of electrical supplies.” But the judge credited Moloney’s
testimony that his signature was required because Jack-
son was new and unknown in the industry, and she spe-
cifically rejected the argument that Moloney’s signature
showed he exercised financial control of Black Hills. In
sum, our colleague’s contentions do not persuade us to
reject the judge’s finding that “[t]here is no evidence that
Moloney has any financial control over [Black Hills]
even though he is actively involved in its operations.”
Absent such evidence, a finding of substantially identical
ownership is precluded. US Reinforcing, supra.
As to substantially identical equipment, our colleague
relies on the fact that some of Deer Creek’s equipment
was initially gifted to Black Hills (for tax purposes) in
October 2012 and that payments for the equipment did
not begin until 5 months after the transfers. The judge
noted these facts and found that they were inconsequen-
tial. We agree. As our colleague acknowledges, the
judge credited testimony that the equipment transaction
was always intended to be an arm’s-length sale, and an
October 2012 bill of sale supports this credibility deter-
mination. In addition, no party excepts to the judge’s
finding that no equipment was transferred from Deer
Creek to Black Hills for less than market value. Accord-

2 The cases cited by the dissent are distinguishable. In Kenmore
Contracting Co., 289 NLRB 336, 337 (1988), the Board found substan-
tially identical ownership where the owners of the newly formed com-
pany were the children of the owners of the original company and were
financially dependent on them. The parents paid for tuition, room, and
board for one child, who was in college, and for housing and their
grandchild’s tuition for the other one. In Rogers Cleaning Contractors,
277 NLRB 482, 485–488 (1985), the owners of the second company,
who were children of the owner of the first company, were also part
owners of the first company, had worked at the first company, and had
even used their own funds to make the final payroll for the first compa-
ny. Here, by contrast, there is no evidence that Cheri Jackson was a
part owner of Deer Creek or ever played any role whatsoever in the
business. Finally, in Walton Mirror Works, 313 NLRB 1279, 1284
(1994), where the owner of the second company was the brother-in-law
of one of the first company’s owners, the owners of each company had
significant management duties at the other company. Again, Jackson,
Black Hill’s owner, was never involved in Deer Creek.
ingly, we agree with the judge that the evidence “does
not indicate less than an arm’s-length transaction” and
does not establish that the businesses had substantially
identical equipment.
Finally, we disagree with our colleague’s contention
that the record supports a finding that Black Hills was
created to evade Deer Creek’s contractual obligations to
the Union. There is no evidence that Jackson knew
about Moloney’s relationship with the Union or about his
statement that the Union was not a “good fit” for Deer
Creek. There is no evidence that Moloney advised Jack-
son to take any steps to avoid unionization at Black Hills.
The record does establish that economic forces led to
Deer Creek’s demise. Much of Deer Creek’s work was
on public sector jobs, which did not fare well during the
recession. Deer Creek lost money in 2011. Beginning in
November 2011, Deer Creek attempted to attract new
business outside the public sector. These efforts were
unsuccessful, and Deer Creek continued to lose money
throughout 2012. When Jackson started Black Hills, she
targeted different work than Deer Creek had performed,
such as installing data networks—work that had better
weathered the recession. In sum, the evidence supports
the judge’s finding that Deer Creek closed for economic
reasons, and the judge correctly found there is “no evi-
dence that Jackson’s decision to form [Black Hills] was
orchestrated as an attempt to assist Moloney in ridding
himself of the Union.”
The Respondents cross-except to the judge’s finding
that the Respondents’ business purpose and operations
are substantially identical. In light of our finding that the
Respondents are not alter egos, we find it unnecessary to
reach the Respondents’ cross-exceptions.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. August 17, 2015
______________________________________
Philip A. Miscimarra, Member
______________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
3
DEER CREEK ELECTRIC
Member Hirozawa, dissenting.
Contrary to my colleagues, I would find that the Re-
spondents are alter egos. In my view, to find otherwise
is to ignore the realities of their relationship.
Respondent Deer Creek Electric, Inc., a licensed elec-
trical contractor in the construction industry, was owned
by husband and wife Richard and Sandra Moloney. San-
dra Moloney did not participate in any of the Company’s
operations. In February 2004, Richard Moloney
(Moloney) signed letters of assent binding Deer Creek,
absent timely withdrawal, to current and future residen-
tial wireman’s and commercial inside wireman’s collec-
tive-bargaining agreements between the Union and the
National Electrical Contractors Association (NECA). By
their terms, the agreements accorded the Union 9(a)
recognition. In 2009, Moloney made an untimely at-
tempt to withdraw from the agreements, notifying the
Union and its pension fund that Deer Creek was with-
drawing recognition. Moloney later changed his mind
and, in September 2009, signed renewal letters of assent
and agreement. He signed similar letters in 2010 and
2011, which, absent timely withdrawal, bound Deer
Creek to the 2012–2015 collective-bargaining agree-
ments between NECA and the Union.
By 2011 and 2012, Deer Creek was losing money. In
late August 2012, Moloney notified the Union that Deer
Creek was terminating its only two employees, Jesse
Birdsall and Pete Buck, and would no longer perform
electrical work as of October.
Respondent Black Hills Electric, Inc., is an electrical
contracting company that was formed on October 1,
2012, by Sandra Moloney’s sister, Cheri Jackson. Jack-
son had no prior experience in electrical work or con-
tracting. In fact, she was and remained at all material
times a full-time employee of the Washington State
Gambling Commission. Moloney became Black Hills’
general manager and project manager, and he reassigned
his electrical administrator’s license from Deer Creek to
Black Hills.
On October 10, Moloney transferred three vehicles and
power tools from Deer Creek to Black Hills. On behalf
of Black Hills, Moloney applied for the title and registra-
tion for one of the trucks, a 2005 Ford F-150. He listed
the acquisition as a gift.
Jackson, the sole owner of Black Hills, keeps its
books. Despite Jackson’s 100-percent ownership,
Moloney and his wife each signed a personal payment
and performance guarantee for Black Hills, and Moloney
also personally guaranteed payment for Black Hills’ pur-
chases from Consolidated Electrical Distributors, a sup-
plier, just as he had for Deer Creek. And, as at Deer
Creek, Moloney is alone responsible for finding work on
which to bid, preparing estimates, and bidding those jobs
for Black Hills. He also supervises employees in the
field.
Black Hills performs indoor electrical installation, as
Deer Creek had, and also performs data network installa-
tion, which Deer Creek had previously contracted out to
Communications Technologies, Inc., owned by Wes
Hillman. Black Hills hired former Deer Creek employee
Birdsall and subsequently hired Hillman. Although, as
stated, Black Hills acquired vehicles and power equip-
ment from Deer Creek in October, it did not begin mak-
ing payments for those items until February 2013, after
the Union inquired into the relationship between Deer
Creek and Black Hills and then filed an unfair labor prac-
tice charge alleging that Black Hills was the alter ego of
Deer Creek and bound by its contractual commitments.
At about the same time it began making those payments,
and on advice of counsel, Moloney amended the motor
vehicle title and registration of the 2005 Ford F-150 to
show that it was acquired by purchase.1
As of the time of the hearing in this case, Black Hills
had performed a total of 161 jobs for 82 customers.
Twenty-one of those customers had previously been cus-
tomers of Deer Creek. Black Hills neither recognizes the
Union nor complies with Deer Creek’s contractual obli-
gations to the Union.
In determining whether one company is the alter ego
of another, the Board considers whether the two have
substantially identical ownership, management and su-
pervision, business purpose, operations, equipment, and
customers. See, e.g., A. G. Conner, Inc., 357 NLRB No.
154, slip op. at 16 (2011). The Board also considers
whether the new entity was formed to evade responsibili-
ties under the Act. Id. However, a finding of antiunion
animus is not required in order to find an alter ego rela-
tionship. Standard Commercial Cartage, Inc., 330
NLRB 11, 13 (1999) No single factor is determinative
and not all the indicia need be present for the Board to
conclude that one entity is the alter ego of another. Id;
see also Newark Electric Corp., 362 NLRB No. 44, slip
op. at 1 fn. 1 (2015).
The judge found, and it cannot be disputed, that Deer
Creek and Black Hills share a common business purpose
and operations. The companies are both licensed electri-
cal contractors, they operate in the same community, and
the mainstay of Black Hills’ work is, like Deer Creek’s,
electrical installation in the construction industry. In

1 The Respondent produced a sales contract for the vehicles and
power tools dated October 1. The judge credited Moloney’s testimony
that the transfer of these items was always intended to be a sale, but
that he registered a truck as a gift to avoid payment of a transfer tax.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
addition, my colleagues find, and I agree, that the com-
panies’ management and supervision are substantially
identical. Unlike my colleagues, however, I find that
Deer Creek and Black Hills also have substantially iden-
tical ownership and equipment, and that Black Hills’
formation was motivated by Deer Creek’s desire to sever
ties with the Union.
The Board has found substantially identical ownership
and an alter ego relationship where the original company
and newly formed company are owned by members of
the same family. See Kenmore Contracting Co., 289
NLRB 336, 337 (1988) (parents and children); Rogers
Cleaning Contractors, 277 NLRB 482, 488 (1985)
(same). Such a finding is particularly justified where
there is evidence that transactions between the two com-
panies were not at arm’s length and where the owner of
the first company dominates the business of the second
company. Walton Mirror Works, 313 NLRB 1279, 1284
(1994); Rogers Cleaning Contractors, supra at 485.
Here, the owners of Deer Creek, Richard Moloney and
Sandra Moloney, are the brother-in-law and sister of
Cheri Jackson, the sole owner of Black Hills. Deer
Creek transferred all of the equipment to Black Hills that
it needed to begin engaging in electrical installation with
no money changing hands for 5 months and with no ap-
parent hiatus in operations. Moloney also assigned his
Deer Creek electrical administrator’s license to Black
Hills. And it is irrefutable that Moloney runs Black
Hills: he finds, estimates, bids, and supervises all of its
work, save for data network installation. Critically,
Moloney also signed a personal liability agreement,
along with Jackson, for Black Hills’ purchase of electri-
cal supplies from Consolidated Electrical Distributors, as
he had done as the co-owner of Deer Creek, and
Moloney and his wife each signed a performance guaran-
tee for Black Hills.2 Meanwhile, Jackson’s role at Black
Hills is essentially limited to bookkeeping, banking, and
approving purchases, endeavors that take 15 to 20 hours
a week.3 In sum, the familial relationship between Deer
Creek’s and Black Hills’ owners and the fact that Black

2 In view of the circumstances, Moloney’s lack of financial control
does not preclude finding that Deer Creek and Black Hills are common-
ly owned; Black Hills could not have engaged in business without
financial guarantees from Moloney and his wife and without Deer
Creek’s inventory of vehicles and equipment. Moreover, in the first
year of Black Hills’s operation, Moloney earned about $63,000 while
Jackson earned about $6000. See Goldin-Feldman, Inc., 295 NLRB
359 (1989) (common ownership found where Goldin, the original own-
er of the business, earned substantially more than the new owners of
record, one of whom was his daughter, and other evidence established
that he continued to dominate operations and to guarantee loans).
3 In fact, Black Hills paid for bookkeeping services from its incep-
tion until November 2013, while Jackson learned to use a bookkeeping
program.
Hills simply could not function as an electrical contractor
without Moloney’s efforts and the financial guarantees of
Moloney and his wife establish substantially identical
ownership between the two entities.4
The transfer of equipment from Deer Creek and Black
Hills also supports a finding that the companies are alter
egos. As shown, Black Hills did not begin making pay-
ments on that equipment until 5 months after the trans-
fers, and then only after the Union filed an unfair labor
practice charge against them. Notably, Moloney initially
gifted a 2005 Ford F-150 truck to Black Hills, and
changed the gift to a sale for title and registration pur-
poses only after the Union started inquiring about the
companies. Although Black Hills added to its inventory
of vehicles by purchasing new ones in June 2013, the
fact remains that Black Hills could not have done busi-
ness for 9 months without the cost-free transfers from
Deer Creek. Accordingly, the record establishes that
Deer Creek and Black Hills shared substantially identical
equipment.
Finally, although the judge credited Moloney’s testi-
mony that he closed Deer Creek for financial reasons,
she erred to the extent she reasoned that that finding pre-
cluded her also finding that Moloney was motivated by
an intent to evade his contractual obligations to the Un-
ion. See Alexander Painting, Inc., 344 NLRB 1346
(2005) (evasion notwithstanding financially based deci-
sion to close one business and open another); Rogers
Cleaning Contractors, 277 NLRB at 488 (same). And in
this case, the circumstances of Deer Creek’s closure and
Black Hills’ creation fully warrant a finding that
Moloney acted in order to sever ties with the Union.
Union Business Manager Dennis Callies credibly testi-
fied that Moloney complained that the Union was not a
“good fit” for Deer Creek. Moloney himself testified
that the recession hit Deer Creek hard, that other electri-
cal contractors were undercutting his bids on behalf of
Deer Creek, and that finding jobs was a challenge. But
he further testified that, for years, Jackson had professed
a desire to own her own business, and that in August
2012, after Moloney had made the decision to close Deer
Creek, Jackson suggested incorporating a business
(Black Hills) and going into electrical contracting, in
which she had no experience and about which she knew
nothing. The only thing that differentiated Black Hills

4 My colleagues rely in part on Jackson’s testimony that she also
hired four employees—including Moloney, Hillman, and Birdsall.
Jackson, however, would not have even ventured into electrical con-
struction industry without working with Moloney; Hillman was the
contractor whom Moloney had previously retained for data installation
jobs; and Birdsall was Moloney’s former employee at Deer Creek.
With those three hires, Jackson did no more than continue Deer Creek’s
operations.
5
DEER CREEK ELECTRIC
from Deer Creek as a contractor was Black Hills’ disre-
gard of Deer Creek’s obligations under its union con-
tracts. Viewed against this backdrop, it is self-evident
that Black Hills was created to evade those obligations.5
Moloney’s replacing Deer Creek with Black Hills, a
company that did virtually the same thing, is inexplicable
unless one takes account of Deer Creek’s union con-
tracts. Because Deer Creek and Black Hills were com-
monly owned and managed, and shared substantially
identical business equipment, purposes and operations, I
would find that Deer Creek and Black Hills are alter
egos.
Dated, Washington, D.C. August 17, 2015
______________________________________
Kent Y. Hirozawa, Member
NATIONAL LABOR RELATIONS BOARD
Ann Marie Skov, Esq., for the General Counsel.
William T. Grimm, Esq., counsel for the Respondents.
Clint Bryson, Business Manager, for the Charging Party.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. The
issue in this case is whether electrical contractor Black Hills
Electric, Inc. (BHE) is a disguised continuance, that is, an alter
ego, of electrical contractor Deer Creek Electric, Inc. (DCE)
and thus has an obligation to bargain with International Broth-
erhood of Electrical Workers, Local 76, AFL–CIO, CLC (the
Union), the exclusive bargaining representative of DCE’s elec-
trical employees.1 I find insufficient evidence to support alter
ego status and recommend dismissal of the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by counsel for the General Counsel and counsel for the Re-
spondents, I make the following

5 In any event, as stated above, it is not necessary to find an intent to
evade obligations under the Act in order to find an alter ego relation-
ship, and I would find such a relationship whether or not the creation of
Black Hills was so motivated. See Park Maintenance, 348 NLRB
1373, 1383 (2006); APF Carting, Inc., 336 NLRB 73, 73 fn. 4 (2001),
enfd. 60 Fed. Appx. 832 (D.C. Cir. 2003).
1 The Union filed the underlying unfair labor practice charge on Jan-
uary 25, 2013. The complaint and notice of hearing issued May 29,
2013. Hearing was held in Seattle, Washington, on February 11 and 12,
2014, and was closed telephonically on February 27, 2014.
2 The General Counsel’s unopposed motion to correct the transcript
and certain General Counsel’s exhibits is granted.
3 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
From about 2003 or 2004 through December 2012, when it
ceased doing business, DCE, a Washington corporation located
in Tumwater, Washington, was an electrical contractor in the
construction industry. Since October 1, 2012, BHE, a Washing-
ton corporation located in Tumwater, Washington, performs
electrical work in the construction industry. DCE and BHE
(jointly Respondents) admit and I find that they meet the
Board’s nonretail direct inflow standard4 and are employers
within the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act (the Act). Respondents admit and I find
that the Union is a labor organization within the meaning of
Section 2(5) of the Act. Thus I find that this dispute affects
commerce and that the Board has jurisdiction of this case pur-
suant to Section 10(a) of the Act.
II. COLLECTIVE-BARGAINING RELATIONSHIP BETWEEN DCE
AND THE UNION
The Southwest Washington Chapter of the National Electri-
cal Contractors Association, Inc. (NECA) is an organization
composed of various employers in the construction industry.
One purpose of NECA is to represent employer members in
negotiating and administering collective-bargaining agreements
with the Union. On February 5, 2004, DCE signed a letter of
assent–A for the residential wireman’s labor agreement be-
tween NECA and the Union and a letter of assent–A for the
commercial inside wireman’s labor agreement between NECA
and the Union. Both of these documents stated that they bound
DCE to current and subsequent “approved labor agreements”
absent timely notice of withdrawal.
On that same date, DCE signed a recognition agreement “ex-
ecuted pursuant to Section 9” of the NLRA recognizing the
Union based on a card check. The following unit of employees
is set forth in the 2004 recognition agreement:
All journeymen, apprentice and helper electricians (Electri-
cians) employed by [DCE] within the Union’s territorial ju-
risdiction, excluding office clerical, professional, managerial
employees, guards and supervisors as defined by the Act.
Respondents deny that this unit is appropriate for bargaining
within the meaning of Section 9(b) of the Act and deny that
DCE recognized the Union as the exclusive collective-
bargaining representative of the unit. No evidence was offered
to counter the signature on the recognition agreement. No evi-
dence was offered to show inappropriateness of the historical
unit.5 Thus, I find recognition of a unit appropriate within the
meaning of Section 9(b) of the Act.
Moreover, the record clearly reveals that DCE was signatory
not only to the recognition agreement but also to various letters

4 Siemons Mailing Service, 122 NLRB 81, 85 (1958).
5 Change in ownership does not destroy bargaining units that have an
established history of collective bargaining unless the units no longer
conform to other standards of appropriateness. Banknote Corp. of
America, 315 NLRB 1041, 1043 (1994) (citing Indianapolis Mack
Sales & Service, 288 NLRB 1123 fn. 5 (1988), enfd. 84 F.3d 637 (2d
Cir. 1996)).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of assent and letters of agreement binding it to the terms of the
2009–2012 and 2012–2015 NECA/IBEW agreements. DCE
signed September 2009 letters of assent and agreement which
bound DCE to the current and subsequently approved construc-
tion inside wireman’s IBEW/NECA labor agreements absent
timely withdrawal. Thus, the September 2009 letter of agree-
ment committed DCE to the IBEW/NECA contract for a 1-year
period from September 1, 2009, through August 31, 2010. Fail-
ure to terminate at that time committed DCE to the contract
until its duration date of August 31, 2012.
Subsequently, DCE signed an identical construction inside
wireman’s letter of agreement on August 31, 2010, and again in
August 2011. By the terms of these agreements, failure to time-
ly terminate bound DCE to subsequent labor agreements “until
the stated duration date of August 31, 2012, as well as to all
subsequent amendments and renewals.” There is no evidence of
timely notice of intent to withdraw. Absent such notice, the
automatic rollover provision bound DCE to the July 1, 2012–
August 31, 2015 IBEW/NECA agreement. Thus, I find that
since 2004, DCE and the Union had a collective-bargaining
relationship and that the Union was the exclusive collective-
bargaining representative of the unit employees based on Sec-
tion 9(a) of the Act.
III. DEER CREEK ELECTRIC
Richard and Sandra Moloney, husband and wife, owned 51
percent and 49 percent respectively or 100 percent jointly, of
DCE, a licensed electrical contractor. Other than ownership,
Sandra Moloney did not take an active role in the Company.
DCE was in existence from roughly 2003 or 2004 until Decem-
ber 31, 2012.6
DCE was certified in the industry as a service-disabled-
veteran-owned company. This allowed DCE to bid on work set
aside for disabled veterans. Moloney testified that the bulk of
DCE’s work was public works jobs bid both through regular
bidding and through disabled veteran set-aside bidding. DCE
was not involved in “design build work,” that is, designing and
then building the electrical system. DCE did not perform any
data networking jobs, that is, work involving mobile cabling for
voice, phone, and computers. During 2012, it subcontracted
data networking jobs to Communications Technologies, Inc.
(CTI) owned by Wes Hillman.
DCE’s office was located at the Moloney’s residence, 2920
70th Avenue Southwest, Tumwater, Washington. No shop was
located at the residence. However, a 40-foot container and a
pipe rack, both on the property, were used for storage of elec-
trical items. A shop facility was located on an adjacent proper-
ty. Richard Moloney (Moloney) was the president, treasurer,
general manager, and supervisor of DCE’s projects. He handled
finances including payroll, accounts receivable and payable,
and had the final decisionmaking authority regarding financial
issues. He also estimated the cost of performing jobs, submitted
bids for jobs based on his estimates, and signed contracts to
perform work. He did not work in the field with tools. Moloney
served as the electrical administrator for DCE and in that ca-

6 DCE was first formed as a sole proprietorship. One year after for-
mation, it was incorporated.
pacity was responsible for assuring that the operations were run
safely.
DCE performed a substantial amount of city, State, and Fed-
eral public works jobs. Moloney submitted bids for these jobs
and completed affidavits certifying that prevailing wages were
paid on those jobs.
DCE had an agreement with Consolidated Electrical Distrib-
utors, Inc., an electrical supplier, for credit sales on an open
account. Platt Electric is listed as one of three credit references.
DCE used Stapp Financial as its accounting firm and Capital
Bookkeeping Solutions for bookkeeping. DCE utilized the
services of subcontractor CTI to perform data work on several
occasions during 2010 ($6205), 2011 ($11,605), and 2012
($9857).
In 2009, DCE considered withdrawing recognition of the
Union. By letter of March 26, 2009, DCE stated it was with-
drawing due to current economic conditions. In July, DCE con-
tacted the IBEW Pacific Coast Pension Fund notifying it of
withdrawal from the Union. Nevertheless, on September 1,
2009, DCE signed a construction inside wiremen’s letter of
assent and a construction inside wiremen’s letter of agreement.7
Due to the recession, fewer public works opportunities, and
underbidding on those public works jobs which did exist, DCE
was losing money during 2011 and 2012. DCE set up a website
in November 2011 in order to attract further business. Moloney
described this as a “last-ditch effort to try to get things going a
little bit better.” According to the website maintained by DCE
from November 2011 through December 2012, DCE performed
residential and wiring repair and upgrade; commercial, residen-
tial and industrial wiring; appliance and lighting installation;
and generator installation. A wider range of electrical services
was also listed at the end of the site and included computer and
data wiring.
The Moloneys personally assumed the 2011–2012 debt of a
little over $60,000. Beginning September 30, 2012, DCE
ceased business and ceased employing Pete Buck and Jesse
Birdsall. Other employees of DCE included Troyep Aly. DCE’s
doors closed officially on December 31, 2012. The website was
also taken down in December 2012. It had produced no new
business during the time of its existence.
In general, according to Union Business Manager Dennis
Callies, Moloney expressed dissatisfaction with the quality of
help he received from the Union’s hiring hall. According to
Callies, Moloney made this complaint every 2–5 months and
opined to Callies that the Union was not a good fit for DCE.
These conversations occurred over the course of time but spe-
cifically in 2012.
On August 30, 2012, DCE signed an IBEW/NECA employ-
ee termination notice for journeyman Jesse Birdsall stating the
reason for termination as “Closing Shop.” The following day,
DCE submitted an identical form for Pete Buck stating the
reason for termination as “Closing Company.” Birdsall and
Buck were the only employees of DCE at the time it closed. By

7 In December 2009, the IBEW Pacific Coast Pension Fund assessed
unfunded pension liability of $331,069 due to DCE’s withdrawal from
the Union. Three days later, the fund rescinded this assessment in light
of the September 2009 letters of assent and agreement.
7
DEER CREEK ELECTRIC
letter of September 7, 2012, the Union advised DCE that its
notice of termination was untimely and that the Union viewed
DCE as bound to the successor agreement. Shortly thereafter,
DCE sent a letter to the Union stating, “As of Oct. 1st 2012
Deer Creek Electric Inc. will no longer be performing electrical
work. We will close the company on Dec. 31st 2012.” As stat-
ed in the letter, all operations of DCE ceased in September
2012. DCE was permanently closed December 2012.
IV. BLACK HILLS ELECTRIC
BHE is an electrical company located in Tumwater, Wash-
ington, owned 100 percent by Cheri Jackson, Sandra
Moloney’s sister. During the months of June to August 2012,
Jackson and Moloney began serious discussions about her de-
sire to open her own company. At some point during this time,
Jackson asked Moloney if he would help her “if . . . she opened
a company if I’d help her run it and teach her.” Moloney told
Jackson he was:
having a hard time in the markets I was in because of the way
people were bidding them and the economy and there wasn’t
as much money being spent by the government. I suggested
she do design build data networking . . . and residential.
Although Jackson works full time at the Washington State
Gambling Commission, she began setting up her company,
BHE, in October 2012. At the time of hearing, Jackson was still
employed with the Washington State Gambling Commission.
Taking Moloney’s advice to emphasize different sectors of
the electrical industry than those he was in, Jackson targeted
design build, data networking, and residential electrical work
for BHE. Jackson was never employed by DCE.
As the owner of BHE, Jackson oversees the Company, han-
dles finances, accounts payable and receivable, payroll, and
personnel. She also reviews bids. Jackson hired Moloney, Wes
Hillman, Jesse Birdsall, and Paul Roulet. Both Birdsall and
Roulet are hourly electricians. By January 2013, BHE also
employed Derrick Lancaster and Brian Connelly. In the spring
two other employees, Joshua Duncan and Jordan Beers, were
brought on board.
Jackson purchased equipment and vehicles for BHE. Jack-
son, on behalf of BHE, leased property located at 9248 Blue
Mountain Lane, Suite A, in Tumwater. BHE has not recognized
the Union and does not pay into the union benefit funds. BHE
employs one journeyman electrician, Jesse Birdsall.
Moloney is the general manager, project manager, electrical
administrator,8 and estimator for BHE. He supervises some but
not all of the projects. Moloney applies for permits for electri-
cal work and files affidavits for public works projects certifying
payment of prevailing wages. He described his work:
I try to find work to bid on, meet with customers, check and
make sure the materials and stuff are getting bought at right
prices, try to make the jobs come in and make money and go

8 Moloney testified that he has the same electrical administrator li-
cense at BHE that he had at DCE because the license number is specific
to the person holding the license rather than to the particular company
employing that person. I credit this testimony.
out and meet with guys in the field and . . . I go out and actu-
ally work with them too and try to make sure we’re profitable.
Moloney estimated he worked in the field 2 to 3 days a
week. Moloney certifies prevailing wage on public projects and
Jackson provides the certified payrolls for public projects.
Moloney explained that he provides the wage certification be-
cause that information comes from the project management
documents while Jackson handles the certified payroll because
she handles the payroll documents. BHE does not qualify to bid
on any veteran set-aside projects because the owner, Jackson, is
not a veteran.
The third member of BHE’s management team is Telecom
Manager Wes Hillman who handles data networking, low volt-
age side. He finds and bids that work, manages those projects,
and installs on the projects. Hillman and Jackson began talking
about his coming on at BHE in November and December 2012.
Hired in January 2013, Hillman began working part time (about
15–20 hours per week) for BHE in February 2013. At that time
he was also running his own company, CTI. CTI worked for
DCE as a subcontractor. In August 2013, Hillman became full
time at BHE.
Besides these three managers, at the time of hearing there
were four hourly paid employees including former DCE em-
ployee Jesse Birdsall. BHE has performed 17 data jobs from
January 2013 through February 2014. Jackson hired hourly
employee Josh Duncan in 2013. One of the data jobs, cabling
all classrooms in 10 schools, was partially subcontracted for 7
of the 10 schools.
From January 2011 through December 2012, a 24-month pe-
riod, DCE had about 168 projects for 61 customers with total
sales of a little over $1 million. From October 2012 through
January 22, 2014, a 16-month period, BHE had about 240
transactions for 80 customers with total sales of about
$1,235,000. Out of these totals, 21 customers of DCE became
customers of BHE. DCE performed 85 projects, or 51 percent
of its projects, for these customers in common from January
2011 through December 2012 and total sales during that period
for these 21 customers in common were roughly $655,000, or
60 percent of total sales. Subsequently, BHE performed 68
transactions for these customers in common, or 28 percent of its
transactions, and total sales for these customers in common
during the period October 2012 through January 22, 2014, were
around $365,000 or 30 percent of sales.
On October 10, 2012, Moloney signed a memorandum on
behalf of DCE which gifted BHE 5 vehicles: a 2005 Ford F-
150, a 2006 Ford E-150, a 1972 T-Weld, a 1984 International,
and a 1994 Dodge Ram van. A vehicle title applica-
tion/registration certificate dated October 10, 2012, indicates
that BHE has title to the 2005 Ford previously owned by DCE.
The certificate is signed by Moloney as general manager and no
sales tax is reflected which indicates that it was a gift.
However, later tax documents reflect that the two Ford vehi-
cles were sold by DCE to BHE for $2500 (2005 Ford F-150)
and $3500 (2006 E-150 van). BHE paid sales tax on these vehi-
cles in February 2013. An October 2012 bill of sale also indi-
cates that the 1994 Dodge Ram van was sold to BHE for a pur-
chase price of $500. The three vehicles sold to BHE represent-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed three of the six licensed vehicles owned by DCE. The other
two vehicles listed in the gift memorandum are still owned by
Moloney.
A memorandum indicates that various tools were sold by
DCE to BHE including four ladders, two drills, a saw, and as-
sorted hand tools. The total price for the three vehicles and
tools sold by DCE to BHE, $7995, was paid off from January
17 to December 1, 2013. The tools represented some but not all
of DCE’s tools. Moloney testified that he fixed the prices for
the vehicles and tools by consulting with his accountant about
depreciated items and looking at fair market value. He also
went to auction websites to look for comparable sales in the
construction industry. In addition to the three vehicles pur-
chased from DCE, BHE also purchased a 2003 Dodge Ram van
from Ranier Dodge in April 2013 and a 2006 Chevy Van from
the Goodguys in December 2013. In addition to purchasing
tools from DCE, BHE has also purchased tools from Craigslist,
State surplus, Platt Electric, and Travis Cox, an individual who
sells refurbished laptops.
Moloney examined the records of BHE in preparation for
this hearing. By his count, BHE has had 82 customers since its
opening until this hearing in February 2014. He concluded that
of a total of 161 jobs performed, 131 were private while 29
were public works. He found 21 customers in common with
DCE out of a total of 82 total customers of BHE. Additionally,
BHE has performed 17 data jobs while DCE did not perform
any data jobs.9 Moloney’s testimony comports with DCE’s
account documents and I credit it.
By purchase order of October 1, 2012, BHE agreed to com-
plete and assume all responsibility for work previously per-
formed by DCE for Evergreen Fire and Security. This was the
only job that BHE was called in to complete after DCE worked
on it and went out of business.
Like DCE, BHE has an open account agreement with Con-
solidated Electrical Distributors, Inc. for credit sales on an open
account. Platt Electric is listed as the sole credit reference. Both
Jackson and Moloney signed the personal guaranty for credit
sales. Moloney testified that Consolidated wanted a second
name because Jackson was new to the industry.
BHE subcontracts with Centennial Contractors Enterprises,
Inc. at joint base Lewis-McCord as did DCE. One project,
which was in progress when DCE ceased operations, was later
awarded to BHE. Moloney thought that the work lapsed for a
time and after DCE ceased operations, BHE performed work
for Centennial—whether completing the project or for a sepa-
rate project he could not be sure. As he recalled, DCE per-
formed a fire alarm job in the summer of 2012 and BHE per-
formed some punch list additions10 on it in January 2013.
BHE utilized the bookkeeping services of Capital Bookkeep-
ing from January 31 through November 5, 2013. In addition,
Capital Bookkeeping provided teaching assistance to Jackson to
use Quick Books. In November 2013, BHE quit using Capital
to handle bookkeeping and Jackson took over that function on

9 Moloney explained that DCE did not have the expertise to handle
data jobs so it subcontracted the four data jobs that it handled.
10 Moloney gave examples of punch list items: “This needs a plate
on the wall. This is crooked. Fix this. Change a light.”
her own. BHE employed Stapp Accounting Services beginning
in November 2013.
V. THE UNION INVESTIGATION
In October 2012, Clint Bryson, business manager for the Un-
ion, was asked to look into BHE. He discovered that Moloney’s
administrator’s license had been reassigned from DCE to BHE.
Bryson also discovered that Jesse Birdsall, who had worked for
DCE, was employed by BHE. Bryson also concluded that the
two businesses were substantially the same. He learned that
BHE was located on Swecker Avenue,11 a different address
than DCE. However, when he visited this location in December
2012, there was no observable electrical business taking place.
On the other hand, when he drove to the address for DCE, he
observed a storage container as well as a van, a pickup truck,
and electrical equipment. While he was there, an older Dodge
van arrived. Later, Bryson spotted the same van at Jesse
Birdsall’s address. Both vehicles had BHE’s label on them.
By certified mail of December 10, 2012, the Union alerted
BHE that it believed it was an alter ego of DCE. On behalf of
DCE, Moloney responded claiming no alter ego relationship
existed. Moloney completed the questionnaire as to DCE only.
Jackson responded on behalf of BHE stating that Moloney was
managing BHE but has no ownership interest in the company.
Jackson denied alter ego status between Respondents
VI. ANALYSIS
A change in corporate form that involves no more than a
“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” may
be disregarded and the alter ego “is subject to all of the legal
and contractual obligations of the predecessor.” Howard John-
son Co. v. Hotel & Restaurant Employees Detroit Local Joint
Executive Board, 417 U.S. 249, 259 fn. 5 (1974). The determi-
nation of alter ego status is a question of fact based on all at-
tendant circumstances. Southport Petroleum v. NLRB, 315 U.S.
100, 106 (1942).
Ownership, management and supervision, business purpose,
operations, equipment, and customers are the typical factors
determinative of whether alter ego status exists. Crawford
Door Sales Co., 226 NLRB 1144, 1144 (1976). If these factors
are substantially identical, an alter ego relationship will ordinar-
ily be found. Id.
Moreover, while substantial identity of ownership is an im-
portant factor, alter ego status may nevertheless be found ab-
sent common ownership
only where both companies are either totally owned by mem-
bers of the same family or nearly totally owned by the same
individual or where the older company continued to maintain
substantial control over the business claimed to have been
sold to the new company.
Superior Export Packing Co., 284 NLRB 1169, 1170 (1987),
enfd. mem sub nom. Meadowlands Hy-Pro Industries v. NLRB,

11 Apparently the address Bryson was given was Jackson’s home ad-
dress. There is no evidence that Jackson’s home was ever utilized for
BHE.
9
DEER CREEK ELECTRIC
845 F.2d 1013 (3d Cir. 1988). Absent those circumstances, the
lack of substantially identical common ownership precludes a
finding of alter ego status. Id.
A further consideration is whether the purpose behind crea-
tion of an alleged alter ego was legitimate or was to evade re-
sponsibilities under the Act.12 Not all factors are necessary to
an alter ego finding and no single factor is determinative,13 that
is, if the second company was created in order to allow the first
company to evade its responsibilities under the Act.14
Absence of Substantially Identical Ownership
The record establishes that DCE and BHE are owned by
members of the same family. DCE was owned by Richard and
Sandra Moloney while BHE’s owner is Sandra Moloney’s sis-
ter, Cheri Jackson. Were familial identity of ownership alone
the determinative factor, a finding of substantially identical
ownership might be warranted. See, e.g., Walton Mirror
Works, 313 NLRB 1279, 1284 (1994) (substantially identical
ownership established where owners of two alleged alter egos
were brothers-in-law). The inquiry does not end in recitation of
family relationship, however. The fact of family relationship
merely gives rise to an inference of common financial control.
US Reinforcing, Inc., 350 NLRB at 406.
In this case, Sandra Moloney did not take an active role in
the operations of DCE. Her husband had sole financial control
of DCE. Sandra Moloney’s sister has sole financial control of
BHE. In US Reinforcing, Inc., supra, the Board stated that “the
inquiry at the heart of the ‘close familial relationship’ inference
concerns the degree of financial control the owner of one com-
pany has over the other company.” The Board quoted as fol-
lows from First Class Maintenance, 289 NLRB 484, 485
(1988):
[A] finding of substantially identical ownership is not com-
pelled merely because a close familial relationship is present
between the owners of two companies. Rather, each case
must be examined in the light of all the surrounding circum-
stances. In particular, the Board focuses on whether the own-
ers of one company retained financial control over the opera-
tions of the other. [Internal citations omitted.]
Thus, in US Reinforcing, supra, the Board held that close
familial relationship will support a finding of substantially
identical ownership only when the owners of one alleged alter
ego “exercise considerable financial control” over the other
alleged alter ego.”15 The Board found no substantially identical
ownership due to an absence of evidence that the owner of one
alleged alter ego retained any financial control over the owner

12 US Reinforcing, Inc., 350 NLRB 404, 404 (2007) (citing Liberty
Source W, 344 NLRB 1127, 1136 (2005), quoting Fallon-Williams,
Inc., 336 NLRB 602, 602 (2001)).
13 Id., citing Liberty Source W, supra, 344 NLRB at 1136; Standard
Commercial Cartage, 330 NLRB 11, 13 (1999); MIS, Inc., 289 NLRB
491, 492 (1988).
14 Cadillac Asphalt Paving Co., 349 NLRB 6, 8 (2007).
15 Citing Adanac Coal Co., 293 NLRB 290, 290 (1989) (finding no
common ownership despite alleged alter egos being owned by brothers;
Midwest Precision Heating & Cooling, Inc., 341 NLRB 435 (2004),
enfd. 408 F.3d 450 (8th Cir. 2005).
of the second alleged alter ego, owned by his live-in girlfriend,
although the two were a “committed couple.”16
The same conclusion applies here. There is no evidence that
Moloney has any financial control over BHE even though he is
actively involved in its operations.17 Further, there is no evi-
dence that Moloney shares in the profits of BHE. Accordingly,
I conclude that substantial identity of ownership has not been
established.
Absence of substantially identical ownership is an important
factor militating against a finding of alter ego relationship.18
However, other factors must also be examined.
Absence of Evidence Indicating a Purpose to Evade
Responsibilities under the Act
In 2009, Moloney attempted to withdraw from the Union and
then changed his mind. The record does not reflect why he
changed his mind. An assessment of unfunded pension liability
was not sent to him until after he executed new letters of assent
and agreement. The unrebutted testimony of Union Business
Manager Callies, which I credit, indicates that Moloney was
clearly unhappy with the quality of employees sent to him by
the Union in 2012 and did not think the Union was a “good fit”
for DCE. However, there is no evidence that Moloney’s deci-
sion to cease doing business in 2012, 3 years after his attempt
to withdraw, was due to this unhappiness with the Union. Ra-
ther, the record reflects economic reasons for DCE’s cessation
of business. Further, there is no evidence that Jackson’s deci-
sion to form BHE was orchestrated as an attempt to assist
Moloney in ridding himself of the Union. Under these circum-
stances, I find an absence of a purpose to evade responsibilities
under the Act.19
Insufficient Evidence of Substantially Identical
Management and Supervision
Moloney was the sole manager and supervisor for DCE. His
wife was not involved in active management or supervision of
DCE. Moloney handled all financial matters and estimated and
submitted bids. Although Moloney did not work with the tools
at DCE, he was the only supervisor for all projects. Jackson,

16 US Reinforcing, supra, 350 NLRB at 407.
17 The General Counsel asserts that Moloney’s signature below Jack-
son’s as guarantor for BHE’s purchases from an electrical supplier and
his signing a performance bond with Jackson indicates ownership in
BHE. Moloney explained that his signatures were required because
Jackson was new and unknown in the industry. This testimony is unre-
butted and I credit it. Moreover, these two signatures are insufficient to
show financial control of BHE.
18 AC Electric, 333 NLRB 987, 1001 (2001), enfd. sub nom. ECM
Enterprises v. NLRB, 63 Fed.Appx. 521 (D.C. Cir. 2003).
19 Cf. Diverse Steel, Inc., 349 NLRB 946, 947 (2007), finding one of
the reasons for formation of a second company was to evade responsi-
bilities under the Act as shown by owner statement that they did not get
“money’s worth” from the union, company accountant statement that
first company would be better off if it went nonunion, owner statement
that he would have to open shop if he could not get better terms from
the union, and statement of his wife, who formed second company, that
second company formed because she could not convince her husband to
take the first company nonunion.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whose testimony I credit, is one of three managers of BHE.
Jackson handles all financial matters including payroll.
The General Counsel argues that Jackson’s duties are purely
administrative. Further, the General Counsel notes that Jackson
still retains a full-time job elsewhere. Accordingly, the General
Counsel requests that I find that Jackson does not manage BHE.
Such a finding is not supported by the record. Although Jack-
son does not estimate or submit bids, her guidance regarding
the nature of the business is referred to in the record. Thus, I
find that she is the manager of BHE. Similarly, there is a total
lack of evidence that Moloney has any management duties with
BHE.
Moloney and Hillman bid for work on behalf of BHE.
Moloney and Hillman also perform work on the jobsites and
constitute the only supervisors for BHE. These facts do not
establish exact identity of supervision but to the extent
Moloney is involved, the supervision of his work is identical.
Thus, the portion of work handled by Moloney has substantial-
ly identical supervision. The portion of work performed by
Hillman’s crews has substantially different supervision. Man-
agement of the two entities is also different. On balance, there-
fore, I find insufficient evidence to conclude that supervision
and management are substantially identical.
Substantially Identical General Business Purpose
and Operations
Both DCE and BHE are electrical contractors. Throughout
the relevant period, DCE handled public works and private
construction electrical projects. It did not perform design build
projects and it subcontracted data networking jobs. BHE per-
forms design build and data networking jobs as well as public
and private projects.
Counsel for the General Counsel argues that these facts are
sufficient to show substantially identical business purpose cit-
ing Kodiak Electric Co., 336 NLRB 1038 (2001) (company
performing “inside” electrical work and the other performing
“outside” electrical work held alter egos).
On the other hand, Respondents claim the specific purpose
of the two companies is different. Respondents note that 45
percent of DCE’s work was prevailing wage or public works
while only 21 percent of BHE’s is prevailing wage or public
works. Respondents also argue that BHE’s performance of
design build, residential, and data networking differentiates it
from DCE. Respondents rely on Carpenters Local 745 (SC
Pacific), 312 NLRB 903, 913 (1993), in which the Board af-
firmed the judge’s finding that two companies owned by mem-
bers of the same two families were not alter egos where one
company worked exclusively in new commercial, industrial,
and government construction and large commercial, industrial,
and government renovation while the other performed residen-
tial building and renovation. These markets only marginally
overlapped. Thus, the finding was that there was not substantial
identity of business purpose and operations.
On balance, I find no significant difference in general busi-
ness purpose. Both companies perform electrical work in the
construction industry and their markets significantly overlap.
There was very little overlap in Carpenters Local 745, supra,
the case relied upon by Respondents and I find that it is inappo-
site. There is thus substantial identity in their business purpose
and operations.
Lack of Substantially Identical Equipment
DCE and BHE operated from different facilities, both locat-
ed in Tumwater, Washington. They used different telephone
numbers but during the first 9 months of BHE’s existence, the
same accounting company. After reconsidering the initial gift-
ing of some of DCE’s vehicles and equipment to BHE, BHE
purchased three of six of DCE’s vehicles and since then pur-
chased two more vehicles from other sources. BHE also pur-
chased some of DCE’s tools and equipment. The prices for
vehicles, tools, and equipment were set by Moloney after re-
searching comparable prices online and at auction. BHE pur-
chased other tools and equipment from sources unrelated to
DCE.
Counsel for the General Counsel views the vehicle and
equipment transactions as lacking in arms’ length noting the
initial gifting and then conversion to payment on a “lax” pay-
ment plan. Respondents argue that BHE paid fair market value
for the three DCE vehicles and for the DCE equipment. In
agreement with Respondents, I find that the companies do not
have substantially identical equipment. Had the gifting of six
vehicles and the equipment remained in place, there would be a
stronger argument for substantially identical equipment. How-
ever, there is no evidence that when DCE decided to sell the
equipment and vehicles to BHE, less than fair market value was
determined. Further, BHE obtained vehicles and equipment
from sources other than DCE. Two of its five vehicles were
purchased from unrelated entities. The payment timing of about
1 year does not indicate less than an arm’s-length transaction.
Thus, I find insufficient evidence of substantially identical
equipment.
Lack of Substantially Identical Customers
in Common
Both BHE and DCE performed most of their work in the
same geographic area. Twenty-one customers were served both
by DCE and BHE. These customers in common represented 50
percent of DCE’s projects and 60 percent of its sales while
these same customers represented 28 percent of BHE’s transac-
tions and 30 percent of its sales. In my view, this is insufficient
to show substantial identity of customers.
Conclusion
Having considered the factors above, I find insufficient evi-
dence of an alter ego relationship between DCE and BHE. The
record reveals that there is no substantially identical ownership,
management, supervision, equipment, and customers nor is
there evidence of a purpose to evade responsibilities under the
Act. “Simply put, too many of the critical factors traditionally
relied upon by the Board to support alter ego findings are ab-
sent here.”20 Thus, I find no violation of the Act by failure to
apply the terms of the NECA/IBEW contract.

20 Dupont Dow Elastomers LLC, 332 NLRB 1071, 1084 (2000),
enfd. 296 F.3d 495 (6th Cir. 2002).
11
DEER CREEK ELECTRIC
CONCLUSIONS OF LAW
1. Respondents Deer Creek Electric, Inc. and Black Hills
Electric, Inc. are employers within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
76, AFL–CIO, CLC is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Board has jurisdiction of this dispute pursuant to Sec-
tion 10(a) of the Act.
4. There is insufficient evidence upon which to find that Re-
spondents are alter egos and, accordingly, Respondents did not
violate Section 8(a)(5) and (1) of the Act by failing to apply the
terms of the NECA/IBEW contract to employees of Black Hills
Electric, Inc.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.
Dated, Washington, D.C. May 1, 2014

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order, as provided in Sec. 102.48 of the Rules, shall be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.