Dextra Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1985

273 N.L.R.B. 1660 (N.L.R.B. 1985)

1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dextra Industries, Inc. and Shopmen's Local Union
No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO
G & G Fabrication Inc. and Shopmen's Local Union
No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO. Cases 29-CA-7277, 29-CA-7395, 29-
CA-7610, and 29-CA-7786
30 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 January 1983 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
Respondents Dextra Industries, Inc.' and Dextra
Industries of Deer Park, Inc., 2 the Charging
Party, 3 and the General Counsel filed exceptions
and supporting briefs, and Respondent G & G Fab-
rication Inc. filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 4 and
conclusions as modified and set forth in full
below.5
The judge concluded, and we agree, that Re-
spondent Dextra violated Section 8(a)(1), (3), and
(5) of the Act by refusing to negotiate a collective-
bargaining agreement with the Union and thereaf-
ter terminating its shop employees in order to
avoid its bargaining obligation with the Union.
However, the judge further found that Respondent
Dextra violated Section 8(a)(1) and (5) by failing to
bargain with the Union over its decision and the ef-
fects of its decision to subcontract the work per-
formed by the shop employees. We reverse this
latter finding of unlawful conduct because the Gen-
eral Counsel did not allege in the complaint that
Respondent Dextra failed to bargain with the
Union over its decision and the effects of its deci-
sion to subcontract the work. Accordingly, we find
1 Hereafter referred to as Dextra
2 Hereafter referred to as Dextra Deer Park
3 Hereafter referred to as the Union
4 In sec II,A,1 of his decision, the judge stated that Dextra is a wholly
owned subsidiary of Dextra Deer Park, whereas Sidney Ochs, president
of both entities, testified that his wife, Ruth Ochs, was the sole sharehold-
er of Dextra This inadvertent error is insufficient to affect the results of
our decision
5 Member Dennis finds merit in the General Counsel's exception to the
judge's failure to find that Respondent Dextra violated the Act when its
president told employees that, if they "would go non-union," he would
make them foremen, that he would like to "work something out with the
men" after the collective-bargaining agreement expired, and that he had
found a pension fund and hospitalization plan better than those of the
Union In context, the statements constituted inducements to the employ-
ees to reject the Union in violation of Sec 8(a)(1) and direct dealing with
the employees rather than the Union in violation of Sec 8(a)(5)
the judge's remedy to be inappropriate, and we
shall, therefore, alter it to remedy only the viola-
tions properly alleged and found.
Since we agree with the judge's finding that Re-
spondent Dextra Deer Park is an alter ego of Re-
spondent Dextra, we agree with his conclusion that
both of these entities are liable for remedying the
violation found. In fashioning a remedy, however,
we will not require Respondent to resume oper-
ations with its own employees because to do so
would be unduly burdensome and is unnecessary to
effectuate the policies of the Act. Rather than
force the resumption of this operation, we find that
the policies of the Act will be sufficiently fulfilled
by our full make-whole order covering the termi-
nated employees. Cf. Great Chinese American
Sewing Co., 227 NLRB 1670 (1977).
AMENDED REMEDY
We shall require that Respondent Dextra and
Dextra Deer Park bargain collectively with the
Union with respect to the terms and conditions of
employment in the event that Respondent resumes
employing employees to perform unit work.
We shall also order Respondent Dextra and
Dextra Deer Park to make whole all employees
who were discriminatorily terminated on 30 June
1979, for any loss of pay suffered by reason of the
discrimination, by paying to each of them a sum of
money equal to the amount he or she would nor-
mally have earned as wages from the date of their
discharge until such time as each secures, or did
secure, substantially equivalent employment with
other employers or until Respondent reinstates
them. Backpay and interest are to be computed in
accord with the Board's usual formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
In the event that Respondent Dextra and/or
Dextra Deer Park decide to resume employing em-
ployees to perform unit work, we shall order that
Respondent offer to as many of the discriminatorily
discharged employees as business volume permits
reinstatement to his or her former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his or her
seniority or other rights and privileges.
ORDER
The National Labor Relations Board orders that
the Respondent, Dextra Industries, Inc. and Dextra
Industries of Deer Park, Inc., Deer Park, New
York, its officers, agents, successors, and assigns,
shall jointly and severally
I. Cease and desist from
273 NLRB No. 204
DEXTRA INDUSTRIES 1661
(a) Refusing to bargain collectively with Shop-
men's Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO over the terms and conditions
of employment of employees in the following con-
tractual bargaining unit:
All production and maintenance employees in-
cluding plant clericals, employees of the com-
pany engaged in the fabrication and/or manu-
facture of all ferrous and non-ferrous metals,
iron, steel and other metal products, including
plastic products, all maintenance employees of
the company engaged in maintaining machin-
ery and equipment and in other maintenance
work in or about the company's shop or shops,
and excluding office clerical employees, super-
intendents or employees who are represented
by any other union affiliated with the AFL-
CIO with whom the company has signed a
collective-bargaining agreement.
(b) Discharging employees for the purpose of
avoiding the obligation to bargain collectively with
the above-named or any other labor organization
representing their employees.
(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
any rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act.
(a) On request, if the Respondent resumes em-
ploying employees in the unit, bargain collectively
with Shopmen's Local Union No, 455, Internation-
al Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO as the exclusive bar-
gaining representative of all employees employed
in the aforesaid bargaining unit with respect to
wages, hours, and other terms and conditions of
employment.
(b) Offer Hank Martin, Kevin Duffy, Michael
Frenna, Thomas J. Greean„ Sal Sfalanga, and
Melvin Davis immediate and full reinstatement to
their former jobs to the extent that business volume
permits in the event that the Respondent decides to
employ employees for unit work or, if their jobs no
longer exist, to substantially equivalent jobs with-
out prejudice to their seniority or other rights and
privileges and make them whole for any losses
they may have suffered by reason of the discrimi-
nation against them in the manner set forth in the
section of this decision entitled "Amended
Remedy."
(c) Preserve and, on request, make available to
the Board or its agents for e xaminat ion and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Mail to the last known addresses of the em-
ployees above named copies of the attached notice
marked "Appendix." 6 Copies of the notice, on
forms provided by the Regional Director for
Region 29, after being signed by the Respondent's
authorized representative, shall be mailed immedi-
ately to the employees and posted at a location in
the Respondent's office at 135 East Industry Court,
Deer Park, New York, where notices to employees
are customarily posted, and shall be maintained by
it for 60 consecutive days in conspicuous places
where notices to employees are customarily posted.
The Respondent shall take reasonable steps to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations not
specifically found herein are dismissed.
6 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain in good faith
with Shopmen's Local Union No. 455, Internation-
al Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO with respect to
wages, hours, and other terms and conditions of
employment of the employees in the appropriate
unit. The appropriate unit is:
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees in-
cluding plant clericals, employees of the com-
pany engaged in the fabrication and/or manu-
facture of all ferrous and non-ferrous metals,
iron, steel and other metal products, including
plastic products, all maintenance employees of
the company engaged in maintaining machin-
ery and equipment and in other maintenance
work in or about the company's shop or shops,
and excluding office clerical employees, super-
intendents or employees who are represented
by any other union affiliated with the AFL-
CIO with whom the company has signed a
collective-bargaining agreement.
WE WILL NOT discharge employees for the pur-
pose of avoiding our obligation to bargain with the
above-named or any other labor organization rep-
resenting our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, if we resume employing
employees in the appropriate unit, bargain in good
faith with the Union with respect to wages, hours,
and other terms and conditions of employment.
WE WILL offer Hank Martin, Kevin Duffy, Mi-
chael Frenna, Thomas J. Greean, Sal Sfalanga, and
Melvin Davis immediate and full reinstatement to
their former jobs to the extent that business volume
permits in the event that we decide to employ em-
ployees to perform unit work and WE WILL make
them whole, with interest, for any losses suffered
by reason of our discriminatory discharge of them.
Backpay will run from the date of discharge until
such time as they secure substantially equivalent
employment with other employers or until we rein-
state them.
WE WILL mail a copy of this notice to the last
known addresses of the above-named employees.
DEXTRA INDUSTRIES, INC.; DEXTRA
INDUSTRIES OF DEER PARK, INC.
DECISION
STATEMENT OF THE CASE
HAROLD B LAWRENCE, Administrative Law Judge.
This consolidated case was heard before me at Brooklyn,
New York, on August 9 and September 7, 8, and 9, 1982.
Shopmen's Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (the Union) filed the charge in Case 29-CA-
7277 on June 22, 1979; in Case 29-CA-7395 on August
7, 1979; in Case 29-CA-7610 on November 19, 1979; and
in Case 29-CA-7786 on February 14, 1980. The hearings
were held on the basis of the allegations set forth in a
second order consolidating cases, amended consolidated
complaint and notice of hearing, dated February 29,
1980, and a notice of motion to amend complaint, which
was granted, and on amendments to the complaint made
at the hearing.
The substance of the allegations is that Dextra Indus-
tries, Inc. (Dextra), a metal fabricator, violated Section
8(a)(1), (3), and (5) of the Act by refusing to bargain
with the Union respecting a collective-bargaining agree-
ment to replace an existing agreement scheduled to
expire June 30, 1979, bargaining directly with the em-
ployees; promising the employees unspecified improve-
ments in working conditions in order to induce the men
to abandon their support of the Union; and discharging
six employees in order to undermine the Union. Dextra
and a corporation known as Dextra Industries of Deer
Park, Inc. (Dextra Deer Park) are alleged to have been
joint employers during the period from September 1,
1980, to October 1, 1981, and to have been alter egos
and a single employer from and after that date. Dextra,
Dextra Deer Park, and a company known as G & G
Fabrication, Inc. (G & G) are alleged to have been joint
employers since October 1, 1981, "formulating and ad-
ministering a common labor policy." Accordingly, it is
contended that Dextra Deer Park and G & G were obli-
gated to offer reinstatement to the employees who had
been discharged by Dextra on June 30, 1979, and to ne-
gotiate with the Union on a new collective-bargaining
agreement.
The answers interposed by Respondents' deny all alle-
gations of wrongdoing and deny that any violation of the
Act has been committed. G & G, besides denying that it
had any alter ego or joint employer status with either
Dextra or Dextra Deer Park, interposed an affirmative
defense of nonjoinder of a necessary party, namely,
Local 424 of the United Brotherhood of Industrial
Workers, which is the certified representative of its own
metal-working employees.
The parties were afforded full opportunity to be heard,
to call, examine and cross-examine witnesses, and to in-
troduce relevant evidence Posthearing briefs have been
filed on behalf of the General Counsel, and on behalf of
Respondents Dextra, Dextra Deer Park, and G & G.
On the entire record and based on my observation of
the demeanor of the witnesses and the manner in which
they gave their testimony, and after consideration of the
briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
There is no issue as to jurisdiction, the jurisdictional
allegations of the complaints, as amended, having been
admitted in the answers and clarified at the hearing.
Dextra was a Kentucky corporation engaged in the busi-
ness of metal fabrication, which at the times pertinent to
the complaint annually shipped from its place of business
1 Dextra was formally dissolved effective October 31, 1981 It has ap-
peared in this proceeding by counsel who interposed answers to the com-
plaint and to all amended complaints, including the last one Issued on
March 19, 1982 However, at the hearing, it was represented by its presi-
dent Sidney Ochs with the concurrence of the General Counsel
DEXTRA INDUSTRIES 1663
in Deer Park, Long Island, New York, directly to points
outside the State of New York products valued in excess
of $50,000. Dextra Deer Park, incorporated in the Dis-
trict of Columbia, was also alleged to have been continu-
ously engaged in the steel fabrication business and to
have shipped products in excess of $50,000 on an annual
basis since October 1, 1982, from Deer Park to points
outside of New York State. As appears below, despite
the Respondents' denial, I find that the allegation that
Dextra Deer Park and Dextra were alter egos correctly
states the fact of the matter and that Dextra Deer Park
continued the business of Dextra after that corporation
was formally dissolved.
Accordingly, I find that Respondents are and have
been at all times material herein engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
I also find that the Union is now and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act:
II. THE UNFAIR LABOR PRACTICES
A. The Refusal to Negotiate a New Contract and the
Discharge of the Shop Employees
1. The General Counsel's case
Dextra, a wholly owned subsidiary of Dextra Deer
Park, was engaged in the metal fabrication business. It
possessed machinery not elsewhere available on Long
Island which had the capability of cutting, pressing,
bending, and otherwise shaping sheets of iron and steel.
Consequently, a great deal of this type of work was sub-
contracted to Dextra by other contractors. Dextra
moved to Deer Park from Syosset, Long Island, when
the principal of Dextra, Sidney Ochs, constructed a
building there. He held title in the name of a corporation
known as Anchor Engineering Corporation; the name
was later changed to Dextra Industries of Deer Park,
Inc. This corporation owned the building and the equip-
ment located in it, and leased it all to Dextra.
Most of Dextra's employees had been with it in Syos-
set. At that time, it was not a union shop, but Ochs did
not have any aversion to a union. When the Company
moved to Deer Park, it became a union shop without
any opposition from him. He first entered into a collec-
tive-bargaining agreement with the Union, effective July
1, 1973. The bargaining unit was as follows:
All production and' maintenance employees includ-
ing plant clericals, employees of the company en-
gaged in the fabrication and/or manufacture of all
ferrous and non-ferrous metals, iron, steel and other
metal products, including plastic products, all main-
tenance employees of the company engaged in
maintaining machinery and equipment and in other
maintenance work in or about the company's shop
or shops, and excluding office clerical employees,
superintendents or employees, who are represented
by any other union affiliated with the AFL-CIO
with whom the company has signed a collective-
bargaining agreement.
The expiration date of the last collective-bargaining
agreement was July 1, 1979, pursuant to an extension
agreement dated January 12, 1978. Early in the year, the
Union requested that Ochs negotiate a new contract.
However, from March through June, Ochs steadfastly
maintained that he was not in a position to negotiate be-
cause he was undecided as to whether or not he would
remain in business. The Union pointedly reminded him,
in writing, that he was legally required to discuss closure
and its effects upon the employees with the Union. Ochs
never did.
William Colavito, the union president, testified that he
had meetings with Ochs on March 20, in late April or
early May, at the end of May, on June 11 and 25, on
July 2, and later in July, and that Ochs had not, during
any of these meetings, expressed an intention to go out
of business or to subcontract work. According to Cola-
vito, Ochs maintained that he was going to sell or lease
the building and go into the consulting business; he
would stop fabricating. As early as the March 20 meet-
ing, Ochs was complaining that he had lost $4000 the
previous year and that he intended to let the collective-
bargaining agreement expire.
Ochs undoubtedly made such statements to Colavito.
Colavito is a credible witness and Ochs is a man who
tends to think aloud. The exchange of letters between
the Company and the Union reflects Ochs' determination
to change matters without announcing any specific deci-
sion if, in fact, one had been reached. On March 20, the
Union sent Dextra a letter asking what its intentions
were. Having received no response it notified Dextra on
April 12 of its intention to make changes in the contract
due to expire on June 30. Dextra responded to that letter
on April 18, notifying the Union that it was going to dis-
continue the operations of the shop. Notwithstanding this
exchange of letters, Colavito testified that, when he con-
ferred with Ochs in late April or early May, and asked
for a response to the Union's March 20 letter, Ochs said
he could not give the Union an answer at that point be-
cause he did not know what he was going to do. Ochs
gave Colavito the same answer the next time they met,
stating that he would need time and that he had been too
busy to think things out. At the June 11 meeting, Ochs
announced that he would not sign another contract with
the Union; that he had not yet made up his mind what
he would do; and that he would use the period from and
after July 1 to make up his mind. In response to Colavi-
to's suggestion that they sign a contract and work out
some means of cutting costs and taking advantage of the
Company's skilled work force, Ochs' response was that
he preferred to have the plant remain idle and borrow
money from the bank to keep it that way, and liquidate
after 6 months.
On June 25, Colavito raised the question of the provi-
sion to be made for the employees. He testified that Ochs
professed that he still had not made up his mind, but re-
ported that he had had no bids from any purchaser or
potential lessee; however, he had been too busy and
would wait until after July 1. At that point, Colavito
asked him about his intentions, insofar as the men were
concerned, because the contract was about to expire.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ochs stated he would give the men their sick leave and a
layoff notice. At the meeting on July 2, when Colavito
commented that sale or lease potential would be greater
with the business running, Ochs' response was that he
needed "flexibility."
Ochs' lawyer was present at their last meeting. He as-
serted that Dextra would not sign another agreement
with the Union as long as a particular clause was in it.
Colavito offered to discuss the matter, whereupon the
lawyer stated that Dextra would not sign another agree-
ment anyway.
On August 30, the Union sent Dextra another letter in-
quiring in detail about its intentions, which began: "You
have indicated that you plan to terminate operations at
your plant and go out of business."
It is apparent that, in these meetings, the Union main-
tained a position of readiness to bargain at all times. At
their meeting, in late April or early May, Colavito and
Ochs reviewed in a general fashion the question of the
quantity of work, operating cost, and similar matters At
their next meeting, Colavito offered to look into the ac-
tualities of the nonunion competition if Ochs would give
him specific details. However, he was unable to investi-
gate because Ochs never provided the information de-
spite his promise to do so. Ochs declined to sign any
contract. Ochs did not dispute Colavito's expressed opin-
ion that there was adequate work to keep the men em-
ployed; his contention was that the work was not profit-
able and that the Company was losing money on it.
At the meetings on June 11 and July 2, Colavito again
urged Ochs to sign a contract, cut overhead costs, and
keep the men working. All such suggestions were re-
buffed.
According to Colavito, contributions to the union
fund, not wages, were the big problem. Over the years,
Ochs had been delinquent in making the requisite contri-
butions and the Union had been lenient in its collection
attempts. At the last meeting prior to the expiration of
the contract, Colavito indicated to Ochs that the Union
would be willing to work out different contractual rates
of contribution for some of the production items and for
new employees, but Ochs' position remained unchanged.
2. Dextra's defense
Dextra's defense is that it went out of business. Ochs
testified that he did not recall the exact language of his
conversations with Colavito during their many meetings,
but he told Colavito many times that Dextra had lost
money continuously since he put up the building at 135
East Industry Court in Deer Park and showed a profit
from time to time only because Ochs drew a very small
salary. Ochs was even losing money on his investment in
the building because Dextra was unable to pay its rent to
Dextra Deer Park. When he bid successfully on jobs, he
lost money because his labor costs were two to three
times those of the competition, which consisted of a
number of cost-cutting enterprises scattered throughout
the United States.
Ochs testified that his financial advisors, on the basis
of their examination of his books and records, advised
him in 1979 to go out of business immediately because he
was losing money every day and had exhausted his abili-
ty to arrange financial assistance. Without financial assist-
ance, he could not continue operations and pay the union
benefits for which the business was obligated. His op-
tions were either to dispose of his inventory and pay off
his debts, or to go into bankruptcy and lose his building
and his home.
Ochs asserted that none of this seemed to make any
impression on Colavito, whose only response, according
to Ochs, was that Ochs should sign a contract with the
Union and be successful.
All of the shop employees were discharged at the end
of June 1979. The business was shut down for the first 2
weeks of July, but Dextra's customers were told only
that the business was shutting down for 2 weeks. For
several months thereafter, Ochs attempted to complete
all of the work in the shop single-handedly. He kept only
his office staff on payroll. This included the draftsman.
After a while, he decided to rent the first floor of the
premises, retaining the upper floor as an office and shop
for Dextra Deer Park. G & G Fabricators, Inc. rented
the lower floor under a 3-year lease. Ochs had subcon-
tracted work to them since 1975, and he continued to do
so after they entered into possession of the downstairs
portion of the Deer Park building, the only difference
being that now he subcontracted to them the type of
work which they had formerly subcontracted to him, be-
cause the lease included rental of the equipment con-
tained in the premises. G & G's employees were repre-
sented by another union. None of Dextra's employees ap-
plied for jobs with G & G and G & G did not offer them
employment.
Formal dissolution of Dextra was effective as of Octo-
ber 31, 1981, on an application for dissolution filed on
May 31, 1981. Its only undistributed assets are a bank-
ruptcy claim against a former customer and a supply of
steel.
There is no question but that operations were cur-
tailed, but the testimony of Colavito and the men who
worked in the shop during the spring of 1979, however,
raises serious doubts that Dextra was actually discontinu-
ing its operations. On the occasions when Colavito had
meetings scheduled with Ochs, he made it a practice to
confer with the men in the shop, and received reports of
events and conduct which negated the idea of a termina-
tion of operations While Ochs' responses and other
statements to Colavito throughout the spring of 1979 in-
dicated indecision with regard to the Company's inten-
tions, Colavito was hearing from the men that Ochs had
consulted a pension expert about the possibility of setting
up a nonunion plan which would be better than the
Union's, that Ochs had suggested the possibility of run-
ning a nonunion shop, with the men as foremen, over a
new crew of nonunion employees hired off the street;
that quantities of material and parts were being ordered
which were inconsistent with a cessation of operations;
that the Company had work, with orders coming in from
several customers on a sustained, continuous basis; that
the shop had embarked upon construction of an entirely
new item, bagel ovens for Bagel Nosh, with a dozen
ovens on order and new parts for them being delivered
and stored on the premises.
DEXTRA INDUSTRIES 1665
Four of the six men who worked in the shop at that
time testified. A stipulation was entered into between
counsel respecting the testimony of a fifth employee who
was not present at the hearing. Their testimony was that,
during the period in question, Ochs attempted ‘ to per-
suade them to work with him on completion of an exten-
sion to the building, for which the foundation had been
poured and unfabricated steel delivered. Ochs underwent
the expense of sending the enormous brake machine off
the premises for repair and repaired a damaged dye.
They were building a bagel oven as a trial and there was
talk of going into production with them. The amount of
steel being brought into the shop was markedly in-
creased, 30 tons of steel having been put on the shop
floor in the very last week of June for use in filling an
order from the Oliver Stove Company, a manufacturer
of coal-burning stoves. Each stove required approximate-
ly 200 pounds of metal plate and Dextra conformed to its
usual practice of ordering 30 tons of plate at a time.
They also testified that at the time of the layoffs, the
shop was extremely busy, with five bagel ovens waiting
to be completed for the Bagel Nosh Company; work
being done on all of the distribution buckets for the
Hempstead Town recycling plant; work coming in from
steady customers, such as Long Island Lighting Compa-
ny; and work in the shop continuing on numerous short
jobs and for customers who were not regulars, such as a
company for whom they were working on an exhaust
system.
An employee who stood on a picket line outside the
premises throughout the second half of 1979 testified that
work continued to be done at the premises during that
period for former customers of Dextra and that Ochs
was personally involved in it. He observed the custom-
ers' trucks and personnel coming and going, delivering,
and picking up work. He observed that, on occasion,
Dextra's draftsman assisted in loading their vehicles. He
observed Ochs and the draftsman working on a piece of
plate. He observed what he was sure, from his own past
experience, was a conversation (which he could not, of
course, hear) between Ochs and an unidentified person in
which Ochs seemed to be instructing that person in use
of the burning machine.
3. Analysis
The history of Dextra and Dextra Deer Park since
1979 fails to disclose actual liquidation and termination of
the business operation which had been the core of Dex-
tra's raison d'etre. It is understandable that someone dis-
countinuing a business may sell off inventory and finish
pending jobs at a carefully paced schedule so as to mini-
mize the financial loss attendant upon termination of op-
erations and personal liability on guarantees of business
obligations. The methods pursued by Ochs present no
such situation. He told the Union and the men in the
shop that he would decide after June 30, 1979, whether
he would stay in business or what he would do, asserting
that the high cost of running a union shop was forcing
him out of business. Yet he made no decision at the time
he shut down Dextra and discharged the shop employ-
ees. He conceded in his testimony, that to this very day
he is undecided what he will do about the business,
which has been conducted in the name of Dextra Deer
Park since October 31, 1981. He rejected the Union's
offer of a winddown agreement. He continued to accept
new business, repair equipment, build inventory, instead
of selling it off, and in other ways so conducted himself
as to convince me that he attempted to circumvent the
obligation to bargain with the Union on a new contract.
The testimony of the former employees finds confir-
mation in much of Ochs' own testimony, which clearly
establishes that at the times pertinent to this case, no firm
decision to go out of business had been made but rather
that its continuation was contemplated. Significant fac-
tors were Ochs' concession that he intended to liquidate
slowly; the fact that there was no corporate dissolution
of Dextra until October 1981; the fact that the windup is
still not complete; the fake announcement to the custom-
ers in July 1979 that the firm was closing for a 2 weeks'
vacation; and the manifest desire not to sever business
ties. Throughout the summer of 1979, from July 1 to
September 30, Ochs single-handedly continued the oper-
ation; he testified that he worked 7 days a week until 2
a.m. each day to complete the work in the shop, per-
forming all functions himself (shearing, bending, punch-
ing, forming, assembling, welding, and painting). Howev-
er, this was manifestly not a matter of finishing off the
pending jobs to avoid or minimize loss for he put a great
deal of his time into the prototype oven for Bagel Nosh,
obviously in anticipation of completing the orders he al-
ready had and getting further orders. Though the shop
employees were discharged, Dextra continued to main-
tain a payroll of nonunit employees throughout the bal-
ance of 1979 and 1980. Four persons were on this pay-
roll: Mrs. Ochs, a secretary, a cleanup or floor boy, and
the draftsman, Galleta. Ochs kept Gzdleta on the payroll
ostensibly for the purpose of running the office while
Ochs got out the work. According to Ochs, Galleta
"took the calls and handled the customers." However,
there is evidence that Gzdleta wrote up the work orders
of the work subcontracted to G & G, bringing it down-
stairs and dropping it on a desk in the G & G office and
also helped load customers' trucks. Ochs gave an ex-
tremely interesting reason for subcontracting some of
Dextra's work to G & G after that company moved into
the Deer Park building: it was "because I was unable to
move it from the building during the period when I was
being picketed." Not only did Ochs refuse a winddown
agreement with the Union, but he never responded to
union inquiries about the termination except to tell Cola-
vito at literally the last possible moment that he was dis-
charging the men and paying them their sick leave.
While I find that Ochs did not promise a pension plan
to the employees to induce them to abandon the Union
or otherwise to affect their rights under Section 7 of the
Act, I am nevertheless convinced by the evidence that
he did investigate the feasibility of substituting another
pension plan for that of the Union or, at the very least,
that he looked into the relative merits of the available
private plans and compared them with the union plan.
This suggests an intention on his part to continue in busi-
ness. Despite ample opportunity to do so, he offered no
explanation in the course of his testimony. His remarks
Year Labor Drafting Subcon-tractor
Closing
Inventory
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the men about potential nonunion operation, in the al-
ternate forms of operation of a nonunion shop or by their
going to work for a nonunion subcontractor, may be
viewed in the same light, showing a state of mind which
contemplated the continuation of business in one form or
another for the indefinite future.2
Not to be overlooked are: the continued high volume
of business activity in the spring of 1979, for a firm sup-
posedly terminating operations, with work continuing to
come in and inventory being maintained at consistent
levels during April, May, and June 1979; Ochs' testimo-
ny that Dextra continued to purchase supplies, such as
steel, after September 1979; and his assertions at the time
of the hearing that he had yet to make a decision. In
fact, his testimony about his current intentions with re-
spect to Dextra Deer Park is strangely similar to what he
had said in 1979.
At that time, he said he would close for a couple of
weeks' vacation and make a decision. At the hearing, he
said that he was going to do precisely the same thing to
settle the fate of Dextra Deer Park. Ochs testified that
Dextra Deer Park was not taking any orders "in order to
find out what we're going to do, I again took a two
weeks vacation period, so we're not taking any orders."
He is telling people he is not filling orders at this time,
but he nevertheless took orders, which he says are "in
limbo." He admits to two or three outstanding orders.
He offered no explanation of how he was keeping the
customers whose orders are in limbo quiescent. (He says
they have been notified, which makes it more remarka-
ble.) He makes the statement, "At this time I'm not sure
what my program is going to be." Ochs says he has
orders pending with other subcontractors, which he
refers to as necessary "to finish these few pieces, give
them out." However, this is what he was supposed to be
doing 3 years ago. Patently, his intention 3 years ago
was not to achieve a speedy liquidation: he said as much,
but with the implication that he was going to liquidate
slowly. How slowly is something the Union and the em-
ployees could not have imagined at the time. At the risk
of repeating the obvious, I must note that this liquidation
was patently not the usual type, in the sense that a deci-
sion to terminate operations has been followed by steps
taken to liquidate assets and liabilities as expeditiously as
possible. In the case of Dextra, the process evolved in
precisely the opposite manner.
The disparity between Ochs' words and deeds is wide
with respect to every indicator of his true intentions. For
example, with regard to inventory, Ochs testified that
one reason the business had been so successful was that
the maintenance of a very large inventory enabled him
to provide the quick delivery the customers wanted, and
the first step in liquidating the business was therefore to
liquidate the inventory. He testified that "my only hope
then was to cease operation as a fabricator and to sub-
contract my work so that I could clear up the large in-
ventory I think our statement at that time showed an in-
ventory of $160,000 I wanted to take that inventory,
finish work at hand, get additional work, produce that
2 I do not credit Ochs denial that he made any statement in this vein
to any employee of Dextra
work, purchase nothing, if possible, after that, and then
liquidate my debt. At that time, when my debt was offi-
cially liquidated, I wanted to cease operations" This
makes it sound like the problem was the amount of
money tied up in the steel inventory. Yet inventory was
not only not liquidated, additional purchases were made.
A stockpile of unfabricated steel remains in the building
at Deer Park to this day.
The manner in which bank loans were handled is an-
other indication of Ochs' true intentions. A businessman
terminating a business cannot be criticized for desiring to
extricate himself from sources of personal liability, but
how indebtedness is handled is one way of determining if
he is liquidating or attempting to continue operation of
the enterprise, even if only until obligations are paid off.
Three years after discharging the shop crew, Ochs testi-
fied that obligations of Dextra have been reduced "to a
manageable amount" He owes a trade creditor about
$18,000 and owes the Bank of Babylon between $30,000
and $35,000 The intent to pay these off is implicit. If the
amounts are manageable and Ochs intends to do the nec-
essary managing, it is hard to understand his asserted in-
tention to go out of business in the near future.
Mention has already been made of the fact that the
volume of business retained in house after June 30, 1979,
is inordinately high for a business supposedly going into
liquidation. Ochs testified that his financial advisers told
him in 1979 that on the basis of their examination of his
books and records they believed he should go out of
business immediately because he was losing money every
day and no longer had the capacity to arrange for finan-
cial assistance. The financial statements confirm the im-
pression of the shop employees that Ochs' program was
the reverse of the advice he claimed he was receiving.
The 1978 volume was $800,000. The 1979 volume, even
though Dextra was supposedly out of business for the
last 3 months, amounted to $700,000. Ochs' explanation
for this was that they had had a very busy spring and,
when G & G moved into the building, Dextra was able
to subcontract the work in the house and made ship-
ments of approximately $130,000 in September and
$110,000 in October, which substantially completed the
work on the floor. The 1980 volume was $400,000 and
the 1981 volume was $150,000.
1978 $165,500 $149,563 $12,179 $ 15,261
1979 162,278 68,333 16,760 77,274
1980 51,278 3,225 18,190 110,120
Since, according to Ochs, Dextra had substantially
completed the work on the floor by the end of October
1979, the foregoing figures strongly suggest that Ochs
was taking in new business. 3 As a result, skepticism
3 This observation is corroborated by the consolidated financial state-
ments of Dextra Deer Park, which show that in the pertinent period In-
ventory remained substantial and drafting expense and subcontracting
markedly increased The cost-of-sales figures for the fiscal years ending
October 31, 1978, 1979, and 1980 show continued substantial operation
DEXTRA INDUSTRIES 1667
about his testimony regarding his intentions must be
added to my skepticism respecting his contentions that
his small salary and his health were major considerations
in determining his course of action. His low salary, by
itself, proves nothing—the acceptance of only a small
annual salary taxable at normal income tax rates is a not
unusual feature of current business investment practice,
which often prefers deferred earnings or realization of
the potential value of an investment on ultimate liquida-
tion. As to the health argument, it suffices to note that,
though Ochs mentioned to Colavito in May 1979 that he
was ill and had high blood pressure, it was not a major
point of discussion between them. Furthermore, there is
no evidence in the record regarding his actual health and
Ochs testified that, after discharging all the men in the
shop, he personally continued working on the pending
jobs, 7 days a week, until 2 a.m. every day.
The evidence which is credible thus establishes that
Ochs was simply evading his obligation to negotiate with
the Union on a new contract to replace the one that was
about to expire. He had determined, not that he would
go out of the metal fabricating business, but that he
would operate without the Union. His actions show that
plainly enough, but the statements which he made to the
shop employees, quoted below in the next section, make
it impossible to come to any other conclusion regarding
his motivation.
B Direct Bargaining with the Employees and Promises
of Improvements in Working Conditions
Two refrains run through Ochs' conversations with his
employees during the spring and summer of 1979. One is
the argument that the Union undermined his ability to
compete. The other is his skepticism with regard to the
reliability of the union pension fund. Ochs felt strongly
that the expenses involved in doing business as a union
shop made his operation a losing proposition At one
time or another he expressed to each of the men his very
strong desire to rid himself of the Union. For example, in
an outburst to Michael Frenna, the shop steward, when
the Union put a lien on his bank account in March 1979,
Ochs said that he believed Colavito was trying to close
him up as he had closed up other shops. During this con-
versation, Ochs repeated statements he had made on
prior occasions to the effect that the Company was
losing money. He showed Frenna figures in a book re-
flecting his contributions to the union funds Frenna also
quotes him as having made the following statement:
"You know, if you six guys would go nonunion, we
could put the new building up in the back. . . . You six
guys would be kings—six foremen. We'll hire a bunch of
guys off the street for minimum wage." The following
week, Frenna was asked by Ochs for everybody's name,
age, and date of birth, and subsequently Frenna saw
Ochs in his office in the presence of someone who, from
Frenna's description of the scene, appears to have been
an insurance agent.
Thomas Greean, a union member for 28 years, testified
that Ochs predicted that Greean would be unable to col-
lect his pension because there would be no money in the
union pension fund when he retired. Ochs told Greean
that he was looking for a pension fund for the men and
had found one better than the Union's. He also claimed
to have found a better hospitalization plan than the one
offered by the Union.
Kevin Duffy, another union member, quoted Ochs as
saying that the Union was not doing its job because it
was not organizing his nonunion competition; he wanted
them to operate under the same disadvantages he did.
Ochs said he wanted to work out something with the
men but could not talk until after July 1, which, of
course, was the day after the collective-bargaining agree-
ment expired.
Ochs complained to Greean that the Union was bank-
rupting him: He was putting a lot of money into the
union funds, he was losing jobs because he could not
compete with nonunion shops, and he could not make
money on the jobs he had because the Union was making
his operating costs too expensive. On June 30, after the
layoffs, Ochs telephoned Greean at home, apparently
calling from the office Ochs told Greean that he intend-
ed to lease his building to two companies, one of which
had its own unionized work force. The other company,
which was nonunion and lacked the skills of the Dextra
work force, would be able to hire the Dextra shop
people It would have to be a nonunion shop. The order
for 10 bagel ovens would ensure plenty of work and the
prototype was still in the shop. Ochs said he had another
order for five more ovens.
At the hearing, Ochs explained that the statements
which he made to the men in the shop were not a matter
of circumventing the Union, but rather of discussing a
problem common to him and the others who had created
the business. Such remarks were characteristic of the
close relationship he enjoyed with these men. Telephone
calls to them at home were not at all unusual. It went
back to the beginning of the Company's history. Anchor
Engineering Corporation had been engaged in a marina
design. It was not a fabricating shop for heavy metal
The expertise in that area was brought in by Greean.
When Greean and some of the others came in around
1968 or 1969, they gave the Company the capability for
the bending and forming of heavy metal plate. A sepa-
rate division of the Company was set up and the corpo-
rate name was changed to Dextra Industries, Inc. In the
light of that background, he felt free to telephone men
like Greean to let them know that he was no longer able
financially or physically to continue with the operation
of Dextra As Ochs put it, "I told him I was seeking al-
ternative methods of continuing this operation because I
could no longer raise any more money. I have no houses
to mortgage and no more bank loans to get"
To Henry Martin, Ochs put it as follows:
Again,I discussed the Union in the sense that I
could not, because of the Union benefits involved,
continue the operations since I had no other source
for money. In other words, my choice was to find a
solution to dispose of my inventory, pay off my
debts or go into bankruptcy, lose my building and
lose my house.
The contradiction between these statements is apparent
and I have noted that all of Ochs' statements, considered
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together, amply support the conclusion that it was his in-
tention to continue the business as a nonunion enterprise
and thus evade the necessity of entering into a new col-
lective-bargaining agreement with the Union. However,
it is equally apparent that nothing contained in these
statements supports the allegations that Ochs attempted
to negotiate directly with the men or promised them
benefits if they would abandon the Union.
Greean testified that Ochs never promised him any-
thing in order to induce him to leave the Union, never
interfered with his union activities, and never even sug-
gested to him that he leave the Union. As a matter of
fact, Ochs' experience with Greean had to have educated
him to the fact that the men would not forfeit their
union benefits and would only work in union shops.
When Greean started with Dextra, he was already a
member of the Union. Dextra was a nonunion shop.
After Greean worked for Ochs for about a year, he de-
cided to quit and switch to a union shop in order to keep
his union benefits (hospitalization, pension) Ochs at that
time promised him that when the Company moved from
Syosset to the building he was putting up in Deer Park,
the men could bring the Union in without opposition
from him. That is what happened and Ochs could not
have forgotten it.
The testimony of the employees establishes that
(a) Ochs made remarks to the employees about hiring
nonunion labor and continuing operation with the six
shopmen then employed acting as the foremen.
(b) He stated to some of the employees that he could
obtain better health and pension insurance than that pro-
vided by the Union.
(c) He made inquiry respecting their birth dates and
apparently consulted with an insurance or pension expert
in his office.
These remarks by themselves do not establish a viola-
tion of the Act There is no evidence that Ochs made
them as part of an effort to induce the employees to
sever their connection with the Union or otherwise aban-
don the Union None of the employees testified that he
asked them to leave the Union; there is explicit testimony
that he never made such a suggestion to anybody at any
time Furthermore, Frenna testified that Ochs told him
he needed the data regarding the men's birth dates to re-
spond to an Internal Revenue Service inquiry Frenna
saw the list in the attache case of the visitor to Ochs'
office, but Ochs did not introduce him to the visitor and
said nothing about the nature of the business he was tran-
sacting with the visitor There is no evidence in the
record respecting the visitor's identity. Whatever Ochs
was doing, he was keeping it a secret, which is patently
not the way to persuade employees to follow any par-
ticular course
Ochs' assertion that he could find a better pension
system than the Union's sounds more argumentative than
assertive of a known fact, and is linked to his general
skepticism regarding the solvency of the union fund It is
certainly not linked to any promise made by him to any
of the men
I cannot believe that Ochs' suggestion about hiring a
nonunion crew and making the shop employees supervi-
sors was made or perceived as a serious proposal for
several reasons. It seems to have been made in connec-
tion with the problem of constructing the annex to the
building, rather than in the course of any discussion of
the work of the bargaining unit. Such a proposal, of
course, entails a substantial increase in payroll, both be-
cause of the larger work force and because, presumably,
the men would earn more as foremen. The bottom line,
however, is that Ochs knew his men: They were union
men with a stake in the union benefit funds.
There is an additional consideration which brings me
to the conclusion that Ochs did not commit these viola-
tions of the Act, and that is the basic inconsistency be-
tween the accusation and my findings with respect to the
discharge of the employees. He is here charged with at-
tempting unlawfully to interfere with the employees'
rights under Section 7 of the Act by attempting to influ-
ence their conduct toward the Union. There was abso-
lutely no need for him to do so. I have found that he
pursued an altogether different plan, intentionally cir-
cumventing the Union by discharging the employees
and, subsequently, subcontracting the work.
C. Failure to Rehire the Employees: Dextra Deer
Park
It has already been noted that Dextra was a wholly
owned subsidiary of Dextra Deer Park. The General
Counsel contended that Dextra Deer Park and G & G
were alter egos, and Joint employers of the Dextra em-
ployees who had been discharged, and thus had an obli-
gation to offer them reinstatement The General Coun-
sel's case rests on the basically undisputed proposition
that Dextra Deer Park, in the period from June 30, 1979,
to October 1, 1981, became something more than a real
estate corporation, evolving into a "viable working cor-
poration" (the General Counsel's description) or a
"viable corporation" (Ochs' description) which took on
the same kind of business as that which Dextra had han-
dled, from the same customers, and subcontracted much
of it out to G & G, which was operating in the premises
and using the equipment owned by Dextra Deer Park
which that corporation had formerly leased to Dextra.4
Ochs' testimony substantiated the General Counsel's
position in many important respects. He testified that
Dextra and Dextra Deer Park were owned and con-
trolled by his wife and himself. Dextra Deer Park held
the title to the property in Deer Park. Employees of
Dextra and Dextra Deer Park were covered under one
workmen's compensation insurance policy Consolidated
financial statements were prepared for the two corpora-
tions from 1971 through 1980. After the formal dissolu-
tion of Dextra, Ochs continued work on pending orders
and took in new orders in the name of Dextra Deer
Park, and occasionally mistakenly invoiced work in the
name of Dextra. (He used the old Dextra printed invoice
forms, typing in the words, "of Deer Park, Inc.") The
number of Dextra customers whom he continued servic-
ing through Dextra Deer Park was sufficiently large for
4 The General Counsel originally contended that Dextra had trans-
ferred its assets and business to Dextra Deer Park, but the evidence
showed that Dextra Deer Park had, in fact, owned the building and
equipment and had leased it to Dextra
DEXTRA INDUSTRIES 1669
him to have trouble remembering all their names without
recourse to the corporate records. Ochs initially insisted
that most of the customers who were serviced through
Dextra Deer Park were new customers, apparently not
cognizant of the fact that in his anxiety to avoid alter
ego liability he was destroying the credibility of his con-
tention that he was winding up the business In any
event, he conceded that there were some substantial ac-
counts among the former Dextra customers which were
taken over by Dextra Deer Park, such as the Long
Island Lighting Company. Reviewing the accounts re-
ceivable ledger of Dextra Deer l'ark, Ochs testified that
of those listed, 2 had never been customers of Dextra, 24
had been Dextra customers for whom De xtra Deer Park
had done no work as of the time of the hearing, and 41
had been customers of both corporations. All jobs which
were pending at the time of Dextra's dissolution were
completed by Dextra Deer Park and Ochs allocated the
proceeds between the two corporations.
Ruth Ochs, his wife, had acted as bookkeeper for both
corporations. Examination of the Dextra Deer Park ac-
counts receivable ledger revealed that pages from the
Dextra ledger had been transferred to it. Ochs explained
that this questionable procedure had been followed to
preserve the credit information recorded on them.
The stationery of Dextra was used until the corpora-
tion was formally dissolved, and Dextra Deer Park work
was on several occasions billed on those forms.
Ochs explained the consolidated balance sheets as a
device to enhance the credit of Dextra, thus enabling it
to obtain bank loans for its operations. While this un-
questionably was their purpose, the evidence that his
stratagem was used does not undermine, but rather rein-
forces, the inference that the operations were also con-
solidated.
The overwhelming evidence which is present in this
case of interrelated operations, common management,
common ownership and financial control, and centralized
control of labor relations leads inexorably to the necessi-
ty to treat the two corporations as one employer.5
Accordingly, I find that Dex tra Deer Park was an
alter ego of Dextra and was obligated to rehire the em-
ployees whom Dextra had unlawfully discharged.
D. Failure to Rehire the Employees: G & G
Fabrication, Inc.
The case against G & G as an alter ego or joint em-
ployer with Dextra and Dextra Deer Park is based on
the showing which the General Counsel made that work
was subcontracted to G & G, that G & G moved into
the premises formerly occupied by Dextra and utilized
the equipment located in the building, that it performed
work for customers who had been serviced by Dextra
and Dextra Deer Park and that it drew upon Dextra's in-
ventory of unfabricated steel sheets in the course of per-
forming some work subcontracted to it by Dextra or
Dextra Deer Park 6
5 NLRB v Transcontinental Theaters, 568 F 2d 125 (9th Cm 1978), de-
nying enf of 216 NLRB 1110 (1975)
6 The General Counsel also contended that an unfavorable inference
should be drawn from the fact that Dextra Deer Pai k and G & G offset
It appeared form the testimony of Elmer Gangloff that
G & G started in the metal fabrication business in 1975,
as a partnership of Elmer Gangloff and Harvey Galla-
gher They are still the sole principals of the business.
Gangloff testified in great detail respecting the manner in
which, and the reasons why, G & G came to occupy the
Deer Park building. As its business expanded, G & G's
space requirements increased until by 1979 it needed
15,000 square feet for its operations. In that year, it ac-
quired a customer which operated a fleet of extremely
large vehicles, such as moving vans and 40-foot oil tank
trucks, for which G & G was to do all painting and
major repairs. G & G also anticipated building massive
tank trucks and hydraulically operated car carriers. A
large brake and a large shear are essential for such pro-
duction. G & G thus needed premises with sufficient
space to accommodate large vehicles and space suitable
for its type of production, as well as a landlord tolerant
of messy work in the building and of potential fire
hazard
Dextra Deer Park's property is a large building on one
and 1-1/2 acres of land, with a very large shear and the
largest brake on Long Island situated in it. 7 G & G and
Dextra Deer Park were brought together for this trans-
action by one of several brokers whom G & G had con-
sulted and the lease was negotiated for it by its own at-
torney.
Gangloff testified that 80 percent of the business of G
& G is done on a subcontract basis, which is common in
the metal fabrication industry. G & G had been doing
work on a subcontract basis for Dextra and had subcon-
tracted work to Dextra, since 1975 It was inevitable that
it would continue to do work for Dextra after it occu-
pied the building, since it had possession of the brake and
shear. For the same reason, it acquired many of Dextra's
former customers
Ochs testified that during the period from 1970 to
1979, Dextra subcontracted work to between five and
seven subcontractors and never gave all of its subcon-
tracted work to G & G However, there was a substan-
tial ongoing relationship with G & G and a large volume
of business was given to them After September 1979,
Dextra subcontracted at 75 to 80 percent of all the
orders that came into it to G & G. He testified, neverthe-
less, that G & G was a completely independent oper-
ation He asserted that he never consulted Gallagher or
Gangloff or sought their opinion regarding financial mat-
ters, customers, or business; never sold them any interest
in either Dextra or Dextra Deer Park or assigned any
portion of the business of either corporation to them;
that from 1975 through the end of August 1979, his only
relationship with G & G was as a referrer of work to it,
and that from September 1979 to August 1982, besides
referring work to it, the only relationship with G & G
each other's liabilities for work done and for rent and settled the bal-
ances I cannot draw such an inference, however, as the practice appears
to be nothing more than an expedient adopted by two companies doing a
lot of business with each other which were hardpressed for cash (a cir-
cumstance which both Gangloff and Ochs readily admitted)
7 This piece of equipment was descnbed as a 400-ton press brake
weighing 60,000 pounds
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was that of Dextra Deer Park's status as landlord. Initial-
ly, Ochs subcontracted work through Dextra while
Dextra Deer Park was simply G & G's landlord; later,
work was subcontracted through Dextra Deer Park as
well. G & G was never consulted regarding the dissolu-
tion of Dextra and, in fact, Gangloff testified that he was
unaware of it until the hearing in the present case. Con-
versely, Ochs never participated in business decisions of
G & G.
The portions of the premises respectively occupied by
G & G and the corporations controlled by Ochs were
strictly separate. G & G had its own office space in the
shop area which it leased on the first floor. The respec-
tive portions of the premises had separate entrances and
egresses with separate locks, and no one from G & G
had keys to the Dextra premises except the keys retained
by Dextra Deer Park in its capacity as landlord.
The entire inventory of steel of Dextra Industries, Inc.
was kept inside the premises in the southeast corner area
of the building on the first floor. This was a portion of
the premises leased to G & G and that violation of the
lease was the subject of a lawsuit which was pending be-
tween G & G and Dextra Deer Park at the time of the
hearing. It was not necessary for Dextra people to enter
the premises to get at the inventory since it was being
consumed in work done by G & G for Dextra. G & G
Fabrication thus had possession of Dextra's inventory.
According to Ochs, he "relied on their honesty and good
will to report to me any and all materials used, and they
used to give me a record of the plates that they used." I
attach no great significance to the manner in which the
inventory was handled, insofar as the corporate interrela-
tionships are concerned, nor do I believe that the fact
that G & G occupied the Dextra premises and did work
for Dextra and Dextra Deer Park shows anything more
than an arm's length relationship between G & G and
the corporations controlled by Ochs All of the facts
which ignited and fueled the General Counsel's suspi-
cions appear to have been satisfactorily explained. I dis-
cern no basis upon which any legal, financial, or other
interrelationship can be found to have existed There is
no evidence that there was any consultation between
Ochs and Gangloff and Gallagher respecting joint labor
policy. The fact that G & G operates a union shop
makes it difficult to believe that they would have refused
to take on any of the former Dextra employees because
they were union men. Operating with a full complement
of employees of its own, and not rehiring the former
Dextra personnel, it would have no occasion to negotiate
with the Union representing the Dextra employees.
To read anything into the relationship between G & G
and Dextra and Dextra Deer Park, beyond what the evi-
dence so clearly indicated, is to indulge in speculation.
Accordingly, I find that G & G and Dextra and Dextra
Deer Park were not alter egos or joint employers of the
men discharged by Dextra and that G & G was not obli-
gated to offer them reinstatement or to negotiate with
their Union
As my factual determination requires dismissal of the
complaint against G & G, its unmeritorious affirmative
defense requires little discussion. The Union representing
its employees was not a necessary party to these pro-
ceedings, which could be adjudicated in its absence.
Nothing decided herein would have affected its rights
unless I found that G & G was a joint employer, but
even then, conflicting claims for representation could
have been resolved under the auspices of the Board.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The violations of the Act herein found to have been
committed by the Respondent have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent Dextra Industries, Inc. violated Section
8(a)(1) and (5) of the Act by failing and refusing to nego-
tiate with the Union regarding the terms and conditions
of a collective-bargaining agreement to replace the one
that expired on June 30, 1979.
4. Respondent Dextra Industries, Inc. violated Section
8(a)(1), (3), and (5) of the Act by (a) discharging the fol-
lowing named employees: Hank Martin, Kevin Duffy,
Michael Frenna, Thomas J. Greean, Sal Sfalanga, and
Melvin Davis in order to avoid negotiating a new collec-
tive-bargaining agreement with the Union; (b) failing and
refusing to reinstate or offer to reinstate the above-
named employees to their former or substantially equiva-
lent positions of employment, for the same reason; and
(c) unilaterally subcontracting the work formerly per-
formed by the employees and terminating their employ-
ment without bargaining with the Union about the deci-
sion to subcontract the work or about the impact of such
subcontracting upon the employees.
5. Respondent Dextra Industries of Deer Park , Inc
violated Section 8(a)(1), (3), and (5) of the Act by failing
and refusing, after October 31, 1981, to reinstate or offer
to reinstate the employees, Hank Martin, Kevin Duffy,
Michael Frenna, Thomas J. Greean, Sal Sfalanga, and
Melvin Davis, to their former or substantially equivalent
positions of employment.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Respondent Dextra Industries, Inc and Dextra In-
dustries of Deer Park, Inc. did not engage in any unfair
labor practices other than those found herein.
8. Respondent G & G Fabrication, Inc. has not en-
gaged in the unfair labor practices alleged against it in
the complaint herein.
THE REMEDY
I have found that Respondent Dextra never really sus-
pended its operations, but continued them until its formal
dissolution in October 1981, after which Respondent
Dextra Deer Park, its alter ego, continued the oper-
DEXTRA INDUSTRIES 1671
ations, and that it continues to do so to the present day,
though on a curtailed basis. Ochs testified that he is still
undecided as to the future of the business, which is what
he has been saying for 3 years. I shall therefore recom-
mend that Dextra Deer Park reinstate the discharged
employees to the extent that that is feasible, if necessary
establishing a preferential hiring list, and that it be direct-
ed to negotiate with the Union in an effort to reach a
collective-bargaining agreement and with respect to the
impact upon the employees of the subcontracting of the
work of the unit, attempting to reach such agreement as
reflects the realities of the current situation, and that
Dextra and Dextra Deer Park pay backpay.
Dextra was, and Dextra Deer Park remains, liable for
reinstatement of the discharged employees and both are
responsible to them for such losses of earnings as they
may have incurred. 8 The corporations must be held
liable for the monetary damages ft om the time they were
incurred. The status of Dextra Deer Park as an alter ego
of Dextra antedates the formal dissolution of the latter
corporation and there is absolutely no question that both
were controlled by Sidney Ochs If liability of Dextra
Deer Park were limited only to the period commencing
from the time it openly avowed its role, a license would
be given to employers to circumvent the Act by the
simple device of substituting different alter egos from
time to time.
Though Dextra is in dissolution, it has assets consisting
of a bankruptcy claim against a former customer and a
supply of unfabricated steel plate. The value of neither is
established, but their existence is sufficient reason to
make the order herein binding on Dextra as well as
Dextra Deer Park Therefore, I will recommend that Re-
spondents Dextra and Dextra Deer Park, jointly and sev-
erally, be required to pay backpay from June 30, 1979,
the date of the layoffs, until such time as any of the fol-
lowing four conditions may be satisfied (a) Respondents,
or whichever entity Sidney Ochs has last utilized for his
business operations, and the Union reach an agreement
with respect to the termination of operations; 8 (b) they
bargain to a bona fide impasse; (c) the Union fails to
commence negotiations within 5 days aftei receipt of Re-
spondents' notice of their desire to bargain; or (d) the
subsequent failure of the Union to bargain in good faith.
The backpay which I shall recommend to be paid to
each employee shall be equal to the amount he normally
8 In many cases where backpay has been directed pending bargaining
with respect to the effect of closing, the employer had given the employ-
ees no advance nonce of the shutdown See Van's Packing Plant, 211
NLRB 692 (1974) That basically is what happened in the present case,
for Ochs was ambiguous with regard to his intentions until he actually
laid the men off For example, on April 18, 1979, he responded to the
Union's request for a meeting to negotiate a new contract, dated April
12, by means of a letter which began with the following statement
Please be advised that it is our plan to discontinue operating a fabri-
cating shop upon termination of this contract due to physical and fi-
nancial reasons
After asking the Union to advise the employees and stating that he would
be happy to meet with the Union, Ochs concluded
As of this writing we have made no final decision as to the future of
the company and the facilities it now uses for the conduct of its busi-
ness As soon as any pertinent information is available we will be
happy to advise you
9 Backpay liability is not terminated merely by commencing bargain-
ing National Family Opinion, 246 NLRB 521 (1979)
would have earned as wages and other benefits from the
date of discharge, June 30, 1979, to the date on which
any of the foregoing contingencies occur, less net earn-
ings during that period. The amount of backpay and in-
terest thereon shall be computed in accordance with the
decisions of the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), Florida Steel Corp, 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962).
Of course, if the business of Dextra Deer Park permits
the reinstatement of any or all of the employees, then the
parties shall be directed to bargain collectively with re-
spect to the terms and conditions of employment so as to
arrive at an agreement to replace the collective-bargain-
ing agreement which has expired.
The picture respecting the present condition of the
business is murky. Ochs testified that operations have
been sharply curtailed and that he has several orders on
hand which, with the knowledge of his customers, are
being kept "in limbo" He thus simultaneously concedes
that he has not yet terminated operations completely and
suggests that reinstatement is not feasible, for there is
nothing left to bring the employees back to. The infor-
mation available to the former employees and to the
Union is, of course, limited to conditions as they existed
several years ago.
In the face of such a paucity of reliable information,
there can be no complaint if remedies are adopted which
are sufficiently pliable to cover the situations embraced
both in my findings of fact and in Ochs' own conten-
tions, developed pragmatically on the basis of his own
description of his present circumstances.
Respondents contend that they have suspended metal
fabrication operations completely, but the gravamen of
the complaint is that Dextra and Dextra Deer Park were
alter egos which never went out of business completely,
and I have found that to be the case. Nevertheless, the
most appropriate remedies would appear to be those
which have frequently been employed in situations in
which employers have terminated business operations
without negotiating with the unions concerning the
impact upon their employees I shall therefore recom-
mend that Respondents, in addition to making the em-
ployees whole by payment of backpay, prepare a prefer-
ential hiring list from which the employees can be re-
called and reinstated as business conditions permit, and
that Respondents bargain collectively with the Union
with respect to wages, hours, and other terms and condi-
tions of employment in an effort to arrive at an agree-
ment to replace the collective-bargaining agreement
which has expired, or, in the alternative, with respect to
the effects on the employees of the subcontracting of the
work of the bargaining unit I shall further recommend
that Respondent Dextra Deer Park be directed to offer
the employees, from such preferential hiring list, rein-
statement to their former or equivalent positions
The business of Respondents having been essentially a
sole proprietorship, a direction that operations be re-
sumed in the manner in which they had formerly been
conducted would appear to be impractical, if Ochs is re-
garded as insincere, and unduly burdensome, if he is
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited with good faith and believed with respect to his
assertion regarding his intentions.
Having found that Respondents have committed unfair
labor practices, I shall recommend that they be directed
to cease and desist from further infringements of employ-
ees' rights guaranteed by Section 7 of the Act. As the
situation with respect to the business of Respondents is
highly uncertain, I shall recommend that Respondents be
required both to post the attached notice at the plant and
office at 135 East Industry Court, Deer Park, New York,
and to mail copies of it to the discharged employees.
[Recommended Order omitted from publication]