Farmingdale Iron Works, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1980

249 N.L.R.B. 98 (N.L.R.B. 1980)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farmingdale Iron Works, Inc., and Jerry Cardullo
Iron Works, Inc. and Shopmen's Local Union
No. 445, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO. Case 29-CA-6167
April 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI.E
On November 29, 1979, Administrative Law
Judge Norman Zankel issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions and a supporting brief, and the Union
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of exceptions and briefs
and has decided to affirm the rulings, findings,'
and conclusions 2 of the Administrative Law Judge
Respondents have excepted to certain credibility findings made by
the Administrative Law' Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produc.ts,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
t'he Administrative Law Judge found that, whenever in the past no
agreement had been reached by the time a multiemployer contract ex-
pired. Respondent Farmingdale Iron Works Ilnc (herein FIWI, had
signed -year stipulations extending the term of the expiring agreements
The exhibits introduced at the hearing show that the stipulation signed in
1967 was for a 2-year term, while the multiemployer contract ultimately
negotiated had a 3-year term, and was adhered to by FIW. he stipula-
tion signed in 1970 was for a 3-year term. as was the multiemployer con-
tract negotiated in that year to which FIW adhered. The stipulation
signed in 1973 was for 2 years. as was the multiemployer contract negoti-
ated in that year and subsequently adhered to by FIW. Thus, in each
year in which the multiemployer contract was subject to renegotiation
the record shows that FIW abided by the terms of the signed stipulations
until a new mulhiemployer contract was negotiated. at which time FIW
put into effect the terms of the multiemployer contract Although the du-
ration of the stipulations varied. the Administrative Law Judge correctly
found that FIW had always treated the stipulations as binding obligations
to implement the terms of the new multiemployer contracts upon the
completion of bargaining.
2 he Administrative Law Judge fiound, and we agree, that Respond-
ent Jerry Cardullo Iron Works, Inc. (herein JCIW), is an alter go of
FIW. In so conluding, he fould, inter alia, that JCIW "was not actually
organized until the New Yorkl State Labor Relations] Board disavowed
the existence of a contract " The State Labor Board decision relating to
the existence of a contract between FIW and the Union was issued on
September 23. 1977 Contrary to the Administrative l.aw Judge. howev-
er. the record clearly discloses that JCIW was incorporated on August
22, 1977. approximately I month before the State abor Board's decision
Moreover, we note that the Administrative Law Judge found that ait
work was transferred to JCIW on September 20. 1977. 3 days before the
State Labor Board decision Accordingly, in affirming the Admilistrative
Law Judge's conclusion that JCIW is an alter ego to FIW, we place ini
reliance on any inference that JCIW was frnecd il response Ito the State
labor IBoard decisionl We also place ino reliance on the facls that JCIW
and FIW are represented by the same legal counecl and use the sanme ac-
249 NLRB No. 3
and to adopt his recommended Order, as modified
herein.
The Administrative Law Judge found, inter alia,
that Respondent FIW violated Section 8(a)(5) and
(1) of the Act by repudiating its collective-bargain-
ing obligations and failing to make contractually
required contributions to benefit funds. Respond-
ents contend that any remedy for these violations,
as well as the others found, 3 is barred by Section
10(b) of the Act, which provides that "no com-
plaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the
filing of the charge ... ."
With regard to the repudiation of the contract as
a whole, the Administrative Law Judge found that
until September 1977 Respondents did not convey
a clear and unequivocal intention to repudiate the
multiemployer contract negotiated in 1975 and that
the charge filed on January 16, 1978, therefore,
was timely with respect to the total repudiation of
FIW's collective-bargaining relationship with the
Union. In so doing, he relied, inter alia, on the fact
that FIW took steps inconsistent with a claim that
it was not bound by the contract. The Administra-
tive Law Judge found particularly significant the
fact that FIW, as late as July 5, 1977, participated
in arbitration proceedings, pursuant to the contrac-
tual grievance procedures, concerning work assign-
ment and FIW's failure to utilize the hiring hall.
He emphasized that FIW produced its payroll rec-
ords through July 5, 1977, at the arbitration hear-
ing, and thereafter allowed the Union to inspect
other records relating to the work assignment and
hiring hall grievance. We agree with the Adminis-
coultant and the same bank Nonetheless, we agree with the Administra-
live Law Judge that the other factors relied on by him establish JCIW's
altr go status.
Respondents have excepted to the Administrative Law Judge's finding
that JCIW purchased a motor vehicle "having a value of S70,10)." Al-
though Respondent now asserts that the ehicle in question was a passen-
ger vehicle worth not more than $7.000. the figure cited by the Adminis-
trative Law Judge reflects a stipulation entered into at the hearing by all
parties In these circumstances, we find no basis for overturning the Ad-
miimstrative Law Judge's finding with regard to this purchase. In any
event. we note that other record evidence indicates that JCIW's out-of-
state purchases were more than de minimis regardless of the actual value
of the vehicle in question and we therefore adopt the Administrative
Law Judge's findings that JCIW is engaged in commerce. Finally, in
view of our adoption of the Administrative Law Judge's finding that
JCIW is an alter ego of FIW, an employer which meets our discretionary
jurisdictional standards. we agree with the Administrative Law Judge
that the Board's jurisdiction attaches to JCIW.
:' With regard to Respondents' argument that Sec l(0h) bars complaint
allegatitns concernling the transfer of work to JCIW and wage increases
for those employees who wellt to JCW, ill violation of Sec 8(a)(1),(3.
and (5). we note that this conduct clearly loccurrcd within the (Xb)
period We agree with the Administrative Law Judge that these viola-
tils are ot timle barred We find withiout merit Respondents' apparent
argument that l:1W is il hlonger hbligated to bargain with the Union by
vlrtue oif FIW's asserted repudia tion of its bargaining obligation motre
than 6 months befre tIh filing if the charges herein, in siewi of our find-
ig that such totial alltd titeqcUItocal repudiatoitl did ol o tIccur until Sep-
tember 177. within the Il(h) pcriod
FARMINGDALE IRON WORKS, INC.
trative Law Judge that FIW's conduct outside the
10(b) period did not constitute an unequivocal re-
pudiation of the bargaining obligation sufficient to
begin the running of the 10(b) period as to FIW's
overall bargaining obligation.
However, with regard to the payment of benefit
fund contributions, FIW clearly violated the con-
tract well before the 6-month period preceding the
filing of the instant charges. Thus, as a result of
monthly reports from the fund trustees, the Union
was aware that none of the contributions due after
June 1976 had been made.4 In these circumstances,
Respondents contend that any complaint as to the
failure to make these contributions is barred by
Section 10(b). While we do not agree that a com-
plaint as to these payments is barred in its entirety,
we find that Section 10(b) precludes any Board
remedy for FIW's failure to make fund payments
due before July 16, 1977, the commencement of the
6-month period before the filing of the charge.
The Board previously has considered the appli-
cation of Section 10(b) to the unilateral discontinu-
ance, in the face of a bargaining obligation, of
benefits which formerly were granted on a periodic
basis. Thus, the Board has held that each denial of
a merit increase to employees whose evaluations
previously would have entitled them to such an in-
crease constituted a separate and distinct violation
of the Act which could be remedied upon the
filing of a charge within 6 months after the denial
of that particular increase.5 The Board further has
held that the unilateral decision to discontinue
making benefit fund contributions, like the failure
to make periodic wage increases, constitutes a vio-
lation of Section 8(a)(5) of the Act.6 Accordingly,
we conclude that each failure to make the contrac-
tually required monthly benefit fund payments con-
stituted a separate and distinct violation of Re-
spondents' bargaining obligation and, therefore,
that any benefit fund payment due after July 16,
' We note that, although the Administrative Law Judge relied on Re-
spondents' participation in arbitration proceedings as evidence that Re-
spondents' intentions were equivocal with respect to both the cessation of
fund payments and the total repudiation of the contract, the fund pay-
ments were never the subject of an arbitration hearing.
a General Motors Acceptance Corporation, 196 NLRB 137 (1972), enfd.
476 F.2d 850 (Ist Cir. 1973). See also Allied Products Corporation. Richard
Brothers Division, 218 NLRB 1246 (1975). In both cases, merit wage re-
views and increases were suspended during initial bargaining with a
newly certified union. It is well settled that an employer is obligated to
maintain the status quo during both initial negotiations ad, as here, the
term lf all existing collective-hbargaiting agreement Electri-Fex Compa-
ny, 228 NLRB 847 (1977), enfd 570 F2d 1327 (7th Cir 1978). cert.
denied 439 U S. 911 (1978)
a Peerless Roofing Co.. Ltd., 247 NLRKB No. 72 (1980); Wuyrlne Olive
Knoll Farms. Inc.. l'h/a Wayne'i Dairy, 233 NRHB 260 (1976) (employer
obligated to continue making pension ad health and welfare colt ribu-
tions even after the expiration of the collective-balgaining agreement pro-
viding thile basis for such contlribhutions)
1977, is subject to the Board's remedial powers. 7
We shall modify the Administrative Law Judge's
recommended Order accordingly. 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respond-
ents, Farmingdale Iron Works, Inc., Farmingdale,
New York, and Jerry Cardullo Iron Works, Inc.,
Bayshore, New York, their officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(e):
"(e) Make all benefit fund payments due on or
after July 16, 1977, to the Union, as required in the
1975--78 collective-bargaining agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Cf. Continental Oil Company, 194 NLRB 126 (1971) (adherence to
method of allocating overtime established more than 6 months before
filing of complaint does not constitute a unilateral change within the
10(b) period and, therefore, is not a continuing violation). See also Ron*-it
Teller. Inc., 96 NLRB 608 (1951) (no complaint may issue based upon
bare presumption of continuity of an unlawful practice-suspension of
wage reviews-which occurred prior to the 6-month period).
8 The Administrative Law Judge recommended that contributions due
to the various contractual benefit funds, as well as other matters subject
to the make-whole directives of his recommended Order, bear interest as,
set forth in, inter alia, Florida Steel Corporation, 231 NLRB 651 (1977)
However, because the provisions of employee benefit fund agreements
are variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments. Merryweather Optical Company, 240 NLRB
No. 169, fn. 7 (1979). We leave to the compliance stage the question of
whether Respondent must pay any additional amounts into various bene-
fit funds in order to satisfy our make-whole remedy. These additional
amounts may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the fund
and, if there are no governing provisions, by evidence of any loss directly
attributable to the unlawful withholding action, which might include the
loss of return on investment of the portion of funds withheld, additional
administrative costs, etc., but no collateral losses.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
99
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain collectively
with Shopmen's Local Union No. 445, Interna-
tional Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, as the
exclusive representative of all employees in the
following appropriate bargaining unit:
All production and maintenance employees
engaged in the fabrication and/or manufac-
ture of all ferrous and non-ferrous metals,
iron, steel and other metal products or in the
maintenance of machinery and equipment
employed by us at our Farmingdale and
Bayshore, New York locations, excluding
office clerical employees, guards, and all su-
per\ isors as defined in the National Labor
Relations Act, as amended.
WE WILL NOT unilaterally transfer bargain-
ing unit work to other locations or otherwise
change your wages, hours, and other terms
and conditions of employment without prior
bargaining with the above-named Union.
WE WIl.L NOT unilaterally withdraw recog-
nition from any labor organization which is
your collective-bargaining agent.
WE WILL NO unilaterally refuse to honor
and abide by the terms of any collective-bar-
gaining agreement which is in effect between
us and a union which represents you.
WE WI.l.L NOT in any like or related manner
interfere with, restrain, or coerce you in the
free exercise of any of the rights set forth
above.
WE WILL apply the terms of the 1975-78
collective-bargaining agreement with the
above-named Union to our employees who
were in the appropriate bargaining unit per-
forming ornamental iron operations between
July 1, 1975, and June 30, 1978.
WE WIL.L make vhole each employee in the
appropriate bargaining unit between July 1,
1975, and June 30, 1978, by paying each of
them, with interest, all moneys due under the
terms of the 1975-78 collective-bargaining
agreement referred to above.
WE WILL pay to the above-named Union all
moneys due on or after July 16, 1977, as bene-
fit fund contributions under the terms of the
1975-78 collective-bargaining agreement.
WE WILL bargain with the above-named
Union about the effects of our decision to
transfer our ornamental iron work from our
Farmingdale to our Bayshore. New York, fa-
cility.
FARMINGDALE IRON WORKS, INC.
JERRY CARDULLO IRON WORKS, INC.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me on December 11-14, 1978, in
Farmingdale, New York, and on July 18 and 19, 1979, in
Brooklyn, New York. The original charge was filed on
January 16, 1978, and was amended on February 21. On
June 20, 1978, the Regional Director for Region 29 of
the National Labor Relations Board issued a complaint
and notice of hearing alleging that Farmingdale Iron
Works, Inc. (FIW), and Jerry Cardullo Iron Works, Inc.
(JCIW), hereinafter jointly referred to as Respondents or
individually by their separate names or initials, violated
Section 8(a)(l), (3), and (5) of the National Labor Rela-
tions Act, as amended, hereinafter called the Act. The
charge and its amendment were filed by Shopmen's
Local Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, hereinafter called the Union.
In essence, the complaint alleges that FIW and JCIW,
as a single employer or by virtue of an alter ego or
successorship relationship, refused and failed to bargain
collectively in good faith with the Union by refusing to
honor a collective-bargaining agreement alleged to exist
between the parties. Further, it is alleged that FIW dis-
continued the ornamental iron operations and unlawfully
shifted that function to JCIW, which allegedly had been
organized for the express purpose of evading Respond-
ents' collective-bargaining duties. Finally, the complaint
alleges that FIW unilaterally withdrew recognition from
the Union, and that JCIW has unlawfillly failed to grant
the Union recognition as the collective-bargaining agent
of the ornamental iron employees of JCIW; and that
both Respondents have unilaterally changed the terms
and conditions of employment of those ornamental iron
employees.
Respondents filed a timely answer which admitted cer-
tain allegations, but denied the substantive allegations of
the complaint and also denied that they had committed
any unfair labor practices.
Respondents interpose three affirmative defenses: (1)
that the instant proceeding is improperly brought be-
cause a decision of the New York State Labor Relations
Board had resolved the Union's representative status and
that such adjudication is entitled to comity; (2) that the
instant action is barred by the Act's statute of limitations;
and (3) that no contract existed between the parties
which could effectively be the basis of a remedial order
herein.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full op-
FARMINGDALE IRON WORKS, INC. 101
portunity to examine and cross-examine witnesses, to in-
troduce evidence pertinent to the issues, and to engage in
oral argument. Counsel for all parties submitted post-
hearing briefs. All arguments oral and written have been
carefully considered.
Upon the entire record, my observation of the wit-
nesses and their demeanor in the witness chair, and upon
substantial, reliable evidence "considered along with the
consistency and inherent probability of testimony" (Uni-
versal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496
(1951)), I make the following:
FINDINGS OF FACT
I. JURISDICTION
FIW, a New York corporation, maintains its principal
office and place of business at 105 Florida Street, Farm-
ingdale, New York. At all material times herein, FIW
has been engaged in the manufacture, sale, and distribu-
tion of structural and ornamental iron and steel building
materials and related products.
During the calendar year immediately preceding issu-
ance of the complaint, a representative period, FIW pur-
chased and caused to be transported and delivered to its
Farmingdale location iron, steel, and other goods and
materials exceeding $50,000 in value, of which goods and
materials valued in excess of $50,000 were transported
and delivered to FIW from other entities located in the
State of New York, each of which other entities had re-
ceived said goods and materials directly from States of
the United States other than New York.
FIW admits, the record reflects, and I find thai it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The record reflects that since on or about September
21, 1977, JCIW, a New York corporation, has main-
tained its principal office and place of business at 237
North Fehr Way, Bayshore, New York. At all material
times herein, JCIW has been engaged in the manufac-
ture, sale, and distribution of ornamental iron and steel
building materials and related products.
JCIW contends it does not meet the Board's statutory
and discretionary jurisdictional standards. The record
contains evidence that during the period December 1,
1977, through November 30, 1978, a representative
period, JCIW performed services valued at least at
$13,000 for entities which themselves are engaged in in-
terstate commerce and meet the Board's jurisdictional
standards. Counsel for the General Counsel, relying upon
the validity of the assertion that JCIW is an alter ego,
successor for, and/or single employer with FIW, abbre-
viated and curtailed his presentation of additional finan-
cial evidence relative to JCIW. Before concluding pres-
entation of such evidence, however, it was established
that JCIW had purchased $2,548 worth of iron fittings
from outside New York State and purchased a motor ve-
hicle assembled outside of New York State having a
value of $70,100 from a Ford Motor Company dealer-
ship.
As I shall find, infra, that JCIW is an alter ego of FIW,
I conclude the General Counsel's evidence relative to ju-
risdiction over FIW provides sufficient basis to assume
jurisdiction over JCIW herein. As an alter ego, the
Board's jurisdiction attaches to JCIW. Accordingly, I
find that JCIW is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. H.
S. Brooks Electric, Inc., et al, 233 NLRB 889 (1977);
Joseph E. Cote, d/b/a J. E. Cote, et al., 101 NLRB 1486
(1952).
In the alternative, I find that the operations of JCIW
satisfy the Board's statutory jurisdiction. The Board,
with court approval, has held that a business "affects
commerce" within the meaning of the Act if the effect of
its operations on commerce is more than de minimus. Al-
though the proven volume of JCIW's out-of-state busi-
ness hardly can be described as extensive, the dollar
amount of such purchases of iron fittings and its motor
vehicle clearly exceeds the de minimus standard.
N.L.R.B. v. Suburban Lumber Company, 121 F.2d 829
(3d Cir. 1941), cert denied 314 U.S. 693. Suburban
Lumber was quoted with approval in N.L.R.B. v. Aurora
City Lines, Inc., 299 F.2d 292, 231 (7th Cir. 1962), which
held that the purchase of $2,000 worth of mald ials from
out-of-state sources was more than de minimus. See also
Lamar Hotel, 127 NLRB 885, 886 (1960), and Somerset
Manor, Inc., 170 NLRB 1647 (1968).
The parties agree, the record reflects, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALL..EGED UNFAIR LABOR PRACTICES
A. Background and Scenario of Events'
The Union and FIW began a collective-bargaining re-
lationship sometime in 1967. FIW and the Union entered
into a series of collective-bargaining agreements. The
most recent undisputed agreement between those parties
expired on June 30, 1975. Throughout its relationship
with FIW, the Union had been organized as the exclu-
sive collective-bargaining agent for a unit of FIW's pro-
duction and maintenance employees, including plant cler-
icals, who were engaged in the fabrication and/or manu-
facture of all ferrous and nonferrous metals, iron, steel,
and other metal products, including plastic products at
FIW's Farmingdale, New York, facility.2 The unit ex-
plicitly excluded employees involved in erection, installa-
tion, or construction work.
The record shows that Frank Cardullo, president of
FIW, and Meyer Tessler, the Union's business agent,
signed a stipulation which extended the parties' most
recent agreement from July 1, 1975, to June 30, 1976.
The instant allegations evolve from the claim of FIW
that no contract existed between it and the Union since
July 1, 1976.
Substantially all the controlling and essential facts are undisputed.
Thus, the facts recited in this section are a composite of the credited tes-
timony of the General Counsel and the Respondents where they agreed
or which otherwise appears uncontradicted Where variations deemed
material exist, they are discussed and resolved. Although only the facts
considered relevant to the issues are recited, I have considered all matters
litigated and arguments of counsel made upon them. Accordingly, omit-
ted matter is deemed not credible, irrelevant, or superfluous
2 In agreement with the parties, I find this particular group of employ-
ces an appropriate unit for purposes of collective bargaining
102 DECISIONS OF NATIONAL LABOR RELATIONS H()OARD
FIW was not a member of the multiemployer bargain-
ing association with which the Union had negotiated the
aforementioned contracts. Nonetheless, an historical pat-
tern developed by which the collective-bargaining rela-
tionship between FIW and the Union had been main-
tained. Thus, the Union and the Allied Metal Industries,
Inc., a multiemployer association which assumed, inter
clia, responsibly for negotiation of contracts with the
Union, periodically met with the Union to negotiate suc-
cessor agreements. Each of these agreements constituted
the pattern upon which various independent employers
such as FIW continued their contractual relationship
with the Union. If ever negotiations between the em-
ployer association and Union had not culminated in an
agreement at the expiration of a particular contract, so-
called extension "stipulations" had been signed between
the Union and the independent employers. Normally,
those "stipulations" extended the terms of the expiring
agreement for I additional year. Those "stipulations"
contained specified modifications and changes which
would be effective during the term of the extension.
No new agreement had been fully negotiated between
the employer association and the Union by June 30,
1975. The Union struck the employer-members of the as-
sociation and also the independent employers. That strike
began in July 1975 and continued until January 1976.
Tessler testified, without contradiction, a that in early
July 1975 he visited Cardullo and presented him with a
blank stipulation. According to Tessler, whom I credit
because of related admissions (noted infra) by Cardullo
and because FIW was later picketed, Cardullo refused to
sign the stipulation. Thus, the Union began a strike at
FIW on July 5, 1975. That morning Tessler telephoned
Cardullo. Tessler asked Cardullo to visit him to sign an
extension stipulation. Later that day, Cardullo went to
Tessler's house. There, Cardullo and Tessler signed a I-
year extension stipulation (G.C. Exh. 9). It is that docu-
ment which FIW claims is the terminal agreement be-
tween it and the Union.
As indicated, the July 5 stipulation extended the par-
ties' contractual relationship for an additional year, ex-
plicitly bearing the typewritten dates July 1, 1975, to
June 30, 1976. The remaining substantive portions of the
stipulation are handwritten. With reference to duration,
the stipulation provided "If a longer term contract is ne-
gotiated in the industry then the parties shall adopt and
accept the changes made for the period after the first
year." Some of the quoted words apparently ran off the
right side of the xeroxed copy of the stipulation received
in evidence. I have adopted Tessler's oral statement of
the full text relative to the duration.
Respondents, through Cardullo's testimony, urge that
the Union, through Tessler, engaged in some sort of chi-
canery when the stipulation was presented for signature.
Thus, Cardullo testified he had signed only a -year ex-
tension on July 5, and that no other explanation was pro-
vided by Tessler on that date. Tessler testified he dis-
cussed each item of the stipulation with Cardullo on July
5. Specifically as to duration, Tessler testified he advised
Cardullo that the ultimate termination date would coin-
" Cardullo was not asked to deny this aspect of Tessler's testimony,
cide with whatever date would be negotiated between
the Union and the multiemployer association. I credit
Tessler. His explanation is consistent with the parties'
collective-bargaining history. His description of the dura-
tion language comports with that history and is identical
to the typewritten copy of the stipulation (Resp. Exh. 6)
which purports to be a conformed, but unsigned, copy of
the July 5 stipulation.
I find Cardullo's testimony (and Respondents' position)
self-contradictory as to the use to be made of the July 5
stipulation. As indicated immediately above, Respondents
refute the use of that stipulation for any purpose other
than to show FIW was contractually bound to the Union
only through June 30, 1976. To so find requires the con-
clusion that the stipulation did not contain the paren-
thetical language quoted above when Tessler presented it
to Cardullo for signature. Cardullo's testimony implicitly
suggests the Union engaged in such an alteration. Indeed,
Cardullo explicitly claimed that the typewritten version
of the stipulation is not the same as the handwritten doc-
ument. Despite this claim, Cardullo admitted that he did
not compare the language of the typed stipulation to the
one he signed on July 5. I consider such unfounded
charges, in the surrounding circumstances, elements
which adversely impact upon Cardullo's veracity. As al-
ready stated, Tessler's testimony regarding the duration
provision of the July 5 stipulation is inherently consistent
with prior dealings between the parties. It is logical that
the stipulation would contain a reference to a longer
contract term.
Based upon the foregoing discussion concerning the
duration language of the July 5 stipulation, I find that
FIW entered a I-year extension agreement with the
Union by which FIW agreed to be further bound in ac-
cordance with what would be negotiated between the
multiemployer association and the Union.
After the Union settled its strike with the multiem-
ployer association members in January 1976, those par-
ties signed a new collective-bargaining agreement. That
agreement was effective retroactive to July 1, 1975. The
contract was to continue in effect through June 30, 1978.
The Union prepared copies of the newly negotiated 3-
year agreement for signature of the various independent
employers which had signed extension stipulations.
Sometime during the spring of 1976 Tessler requested
FIW to sign the full agreement. It is undenied that FIW
has not complied with this request. Despite this, FIW
contributed to the various union benefit funds through
June 30, 1976. Apparently, FIW maintained in effect all
other terms and conditions of the expired 1975 agree-
ment, together with the July 5, 1975, extension stipula-
tion, until July 1, 1976.
Cardullo consulted his attorney, William C. Morrell,
Esq., during July 1976. Cardullo apprised Morrell that
he signed the July 5, 1975, extension agreement but re-
fused to sign the conformed typewritten copy. Cardullo
also told Morrell he declined to sign the full 3-year
agreement when it was presented during the spring of
1976. He asked Morell's opinion as to the legal obligation
of FIW to the Union. Morrell advised Cardullo that a
representation petition should be filed with the New
FARMINGDALE IRON WORKS, INC. 103
York State Labor Relations Board to obtain an election
among the affected employees.
On August 18, 1976, FIW filed a representation peti-
tion signed by Cardullo with the New York State Labor
Relations Board. That board conducted two hearings
upon the petition, but did not issue a decision until Sep-
tember 23, 1977. In its decision, the state labor board
found no contract bar, and ordered an election among
the employees of FIW. An election was conducted on
October 7, 1977. The results were inconclusive. Objec-
tions were later filed. The state labor board ultimately
vacated all its proceedings on October 19, 1978, appar-
ently because the Board asserted jurisdiction in the in-
stant matter.
The 3-year agreement signed by the Union and the
multiemployer association contains a grievance and arbi-
tration procedure. The Union used this procedure with
the participation of FIW. Thus, on July 5, 1977, an arbi-
trator chosen by FIW and the Union conducted a hear-
ing over the Union's contention that FIW had improper-
ly assigned bargaining unit work to nonunit employees in
violation of the contract. Both FIW and the Union ap-
peared at the hearing and were represented by counsel.
FIW delivered its payroll records from July 1, 1975, to
July 5, 1977, the date of the arbitration hearing. Thereaf-
ter, FIW complied with the Union's request for inspec-
tion of the records relevant to that arbitration proceed-
ing.
Additionally, the record reveals FIW failed to make
payments to the Union's welfare, pension, and sick leave
funds after May 1976. Thus, the Union began a series of
arbitration proceedings against FIW to collect the fund
contributions it claimed to be due from FIW. FIW par-
ticipated in these arbitrations. Attempts at settling the
issues were made.
Meanwhile, in August 1977, the Union had initiated
another arbitration proceeding claiming FIW failed to
pay the wage provided in the 1975-78 collective-bargain-
ing agreement. The parties selected an arbitrator. On De-
cember 27, 1977, Arbitrator Edward Levin conducted a
hearing upon the wage rate grievance. The Union's
counsel, Ms. Erenstein, asked Morrell for certain docu-
ments the Union had subpenaed. Morrell said he would
comply with the subpena only for the period July 1,
1975, to June 30, 1976. Morrell asserted that the New
York State Labor Relations Board had ruled the parties
had only a -year contract. Morrell claimed he was not
obligated to produce records for any period of time
beyond that 1 year. Further, it is undisputed that Morrell
said FIW did not recognize that it had a collective-bar-
gaining agreement with the Union for any period in
excess of I year from July 1, 1975. (Morrell was, of
course, referring to the state labor board's decision that
there was no contract bar to the employer's representa-
tion petition).
Concurrent with the activity described above was the
inception of JCIW. As earlier indicated, FIW originally
fabricated both structural and ornamental iron and steel
products. During such operations, Frank Cardullo (here-
inafter called Frank) was president and his son, Jerry
Cardullo (hereinafter called Jerry), was vice president.
At that time Frank, his wife, Jerry, and two other sons
each owned 40 shares of FIW stock. Jerry's job at FIW
was to "run" the ornamental iron operations. He had full
responsibility for that work. He made price estimates,
field measurements, and customer contracts. He general-
ly supervised the ornamental iron operations for FIW.
JCIW was incorporated in September 1977. JCIW
began functional operations on September 21, 1977, with
the same equipment and employees formerly used to per-
form the ornamental work at FIW. For the first 2
months of JCIW's operations, it used order and invoice
forms bearing the FIW designation. Many of the custom-
ers of JCIW were identical to those of FIW. Documents
in evidence reflect that the first group of jobs performed
by JCIW had been estimated and contracted by Jerry
while working for and in the employ of FIW. Undeni-
ably, the specific work performed by Jerry and the four
employees who came to JCIW from FIW was identical
to that at FIW. It is conceded that FIW did not notify
the Union concerning the elimination of ornamental
work, nor the relocation of unit employees.
The initial capital of JCIW was in the form of an in-
terest-free loan for $11,000 from Jerry's mother. That
money was derived from a joint account between Jerry's
mother and Frank, his father. Morrell is the attorney for
JCIW and FIW. Both corporations use the same ac-
countant, maintain their bank accounts at the same bank,
and are represented by the same labor counsel in the in-
stant proceedings.
It is admitted that JCIW consistently has failed and re-
fused to recognize and bargain collectively with the
Union as the exclusive representative of any JCIW em-
ployees.
B. Analysis
1. The affirmative defenses
a. The contract and comity issues
I perceive Respondents' affirmative defenses numbered
1 and 3 to be interwoven. In the third affirmative defense
it is asserted no contract existed between the Union and
either Respondent after June 30, 1976, the expiration
date of the FIW-Union July 5, 1975, extension agree-
ment. In the first affirmative defense, it is urged that the
state labor board's finding that no contract bar existed to
a representation election effectively disposes of the pres-
ent contract issue and should be given full force and
effect by the NLRB.
As indicated, supra, it is true that the state labor board
declared no contract existed between FIW and the
Union after June 30, 1976. However, that decision had
been vacated after the NLRB assumed jurisdiction over
the instant matter. Against such a backdrop, I find Re-
spondents' "comity" defense anachronistic. Whatever
substance this defense may have had, if any, is vitiated
by the order vacating the state labor board's decision.
Even Respondent's brief suggests effective abandonment
of this particular defense. Thus, though Respondents
have made numerous other arguments in their defense,
the comity issue is not separately argued.
The case of Oxford Structures, Ltd., Debtor-In-Posses-
sion, 245 NLRB No. 151 (1979), provides guidance in re-
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solving the first affirmative defense. The Oxford case
contains dissimilar, but analogous, facts. In that case, the
Board adopted pro forma the observation of Administra-
tive Law Judge Giannasi that revocation of a disaffir-
mance of a collective-bargaining agreement undercut the
"very premise of Respondent's defense." In Oxford, an
alleged alter ego contended it had no bargaining obliga-
tion to a union because a bankruptcy judge had entered
an order disaffirming the existence of a collective-bar-
gaining agreement between the union and the alleged
alter egos predecessor. The disaffirming order was later
set aside.
I conclude that the Oxford case supports my conclu-
sion that once another forum has vacated or set aside an
order or decision which might have impacted upon
NLRB jurisdiction, there no longer exists any reasonable
basis upon which it can be concluded that the action of
such other forum should be accorded any recognition.
Accordingly, I find there is no merit to the first affirma-
tive defense.
I now turn to the third affirmative defense by which
Respondents claim no contract existed after June 30,
1976. Whether a contract existed after that date is a ques-
tion of fact to be determined from the surrounding cir-
cumstances.
In N.L.R.B. v. Strong, d/b/a Strong Roofing & Insulat-
ing Co., 393 U.S. 357, 361 (1969), the Supreme Court ob-
served that the Board may, "if necessary to adjudicate an
unfair labor practice, interpret and give effect to the
terms of a collective-bargaining contract," citing
N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967).
Moreover, the Court stated "The Board is not trespass-
ing on forbidden territory when it inquires whether ne-
gotiations have produced a bargain which the employer
has refused to sign and honor, particularly when the em-
ployer has refused to recognize the very existence of the
contract providing for the arbitration on which he now in-
sists [emphasis supplied]." 393 U.S. at 361.
To determine the issues herein it is appropriate to use
the normal rules of contract offer and acceptance. Pitts-
burgh-Des Moines Steel Company, 202 NLRB 880, 888
(1973); North Coast Counties District Council of Carpen-
ters, etc. (Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet
Manufacturing Corp.), 197 NLRB 905 (1972). Professor
Walter H. E. Jeager observes that the formation of con-
tracts depends "merely upon manifestations of assent . . .
[and] it is not true that an intention to accept is of any
importance except where the acts or words of the of-
feree are ambiguous" (Williston on Contracts, 3d ed. §66,
p. 213. Moreover, "the nature of the particular acts or
conduct and the surrounding circumstances are to be
considered to determine whether there was in fact a con-
tract." 17 Am. Jur. 2d, Contracts §25, p. 360.
Respondents agree that the contract issue may be de-
termined by resort to the above-stated general principles.
However, Respondents urge that the July 5, 1975, I-year
extension agreement is so ambiguous that it cannot be
the foundation of a contract for any longer term. Addi-
tionally, Respondents strongly suggest that there existed
improper compulsion upon Frank to sign the extension
agreement.
The General Counsel relies upon Kevin Steel Products,
Inc., 209 NLRB 493, 499 (1974), remanded on other
grounds 519 F.2d 698 (2d Cir. 1975), as authority for the
proposition that the 1975 extension stipulation comprised
a lawful contract notwithstanding the fact that some spe-
cific terms remained for future negotiations. He argues
that the extension agreement cannot be voided for
vagueness. I agree with the General Counsel that Kevin
Steel controls the disposition of the contract issue.
First, I conclude that Respondents have expounded a
circuitous argument. The thrust of the defense is not
clearly apparent. On one hand, Respondents impliedly
suggest the extension stipulation was signed "under
duress." The logical result of such a contention is a dec-
laration that even the extension stipulation is void ab
initio. However, Respondents do not explicitly make this
argument. Instead, they concede the viability of a 1-year
agreement. I consider these contrary contentions.
Second, Respondents' defense is based upon a falacious
premise that there is an ambiguity in the extension agree-
ment. As noted, Respondents urge that the ambiguity
arises from an uncertainty in the reference to an "indus-
try contract to be negotiated." I find that the quoted lan-
guage provides sufficient definitive parameters to bring
the instant matter within the ambit of Kevin Steel.
In Kevin Steel, the Board was confronted by a re-
spondent employer's contention that an agreement was
not legally binding because it was too vague and indefi-
nite. Specifically, the agreement did not particularize the
wage rates and other terms that would apply to that em-
ployer after the union reached an agreement with other
employers in the area. The Kevin Steel agreement in
question provided only that the respondent would be
bound by whatever terms and conditions were negotiat-
ed with such other employers. This precise situation at-
tends the instant proceeding.
In Kevin Steel, the Board, citing its Decision in Sheet
Metal Workers' International Association, Local Union No.
270 (General Sheet Metal Co.), 144 NLRB 773 (1963),
held that the extension agreement was not void for un-
certainty. In the latter cited case, there exists yet another
factor present herein. In both cases, the executory terms
were to be negotiated by the union with a multiemployer
association of which the respondent employer was not a
member. Thus, the Kevin Steel and Sheet Metal cases, in
combination, compromise a context virtually factually in-
distinguishable from the instant matter.
In skeletal form, the contract issue is relatively simple.
Confronted with an economic strike in July 1975, FIW
signed an extension stipulation as it had done in the past.
(The documentary evidence shows that Frank had
signed such agreements on January 22, 1970, and August
22, 1973.) As already indicated, this had been industry
practice. Other than the fact that a strike was in progress
at FIW when the July 5, 1975, extension agreement was
signed by Frank, the record is bare of any evidence of
coercion or duress. Thus, FIW was not subjected to any
pressure other than that which is normally found result-
ing from legitimate economic muscle flexing. According-
ly, I find that insufficient evidence exists upon which to
conclude that the extension agreement was void in its in-
-------- __
FARMINGDALE IRON WORKS, INC. 10s
ception. In these circumstances, I conclude that the Gen-
eral Counsel's decisional authority supports his position.
In Sulimmer Home For the Aged, 226 NLRB 976 (1976),
the Board observed, in footnote 3, that:
. . .Kevin Steel deals with the situation in which
parties signed or accept an interim agreement stipu-
lating that the agreement will be supplemented or
superseded by other agreements to be negotiated in
the future. The Board in such instances has upheld
the validity of such interim agreements against the
contention that they are voided for uncertainty.
Such a result is clearly in accord with familiar con-
tract law principles.
I adopt the Board's statement quoted immediately
above as exceedingly applicable herein. It provides the
result which I conclude was the clear intention of the
parties when the extension agreement was signed. The
credited testimony shows that Tessler specifically ex-
plained that the duration of the extension stipulation
would be supplemented by the multiemployer contract.
This fact, then, was known to Frank when he affixed his
signature to the extension agreement. These facts, cou-
pled with the bargaining history between the parties, lead
me to conclude, as I do, that on July 5, 1975, a complete
collective-bargaining agreement was signed between
FIW and the Union. Any other result defies both logic
and realism. The facts herein clearly reveal that FIW
and the Union actually continued their collective-bar-
gaining relationship uninterruptedly even beyond the 1
year provided by the extension stipulation when they
took part in the various arbitration proceedings described
hereinabove. This tends to confirm, by the parties' con-
duct, a mutual understanding of the full import of the
contract between them.
Upon all the foregoing, I find no merit to the third af-
firmative defense.
b. Statute of limitations
Respondents claim that all the "operative facts" oc-
curred outside the Board's statute of limitations con-
tained in Section 10(b) of the Act. In relevant part, that
section provides that "no complaint shall issue based
upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person
against whom such charge is made." The charge in the
instant proceeding was filed by the Union on January 16,
1978. Thus, I am precluded from making unfair labor
practice findings on any matter which occurred earlier
than July 16, 1977.
The General Counsel contends that it was not until
December 27, 1977, that there was a clear repudiation of
any existing collective-bargaining agreements between
the parties. It is this December date which is claimed to
be the effective time from which the 6-month statute
should be computed.
Respondent FIW admittedly "negated" its obligation
to the Union by certain conduct in August 1975 when
FIW refused to sign the typed copy of the extension stip-
ulation. During the spring of 1976, and at all times there-
after, FIW refused to sign the full 3-year agreement ne-
gotiated with the multiemployer association. An addi-
tional fact not heretofore mentioned is that, by letter
dated October 7, 1976 (Resp. Exh. 9), Morrell advised
the union attorneys that FIW claimed that no moneys
were due the Union for contract contributions beyond
June 30, 1976. Morrell's letter did not explicitly claim
that no contract existed beyond that date. Each of the
foregoing incidents occurred long before the 10(b) date.
Respondents claim that the instant proceedings are time
barred because these events provided the Union with
ample notice of principal violations of the Act.
Resolution of this issue presents another factual ques-
tion. It must be decided whether or not the pre-10(b)
date conduct is such as would reasonably provide notice
to the Union that bargaining obligations to it had been
flouted. The General Counsel contends that the 10(b)
period did not begin to run until the employees affected
by the unilateral activity were put on notice of it, actual-
ly or constructively. As this contention is in accord with
clear Board precedent, I agree with the General Coun-
sel's position. See, e.g., Southeastern Michigan Gas Com-
pany, 198 NLRB 1221 (1972); Wisconsin River Valley Dis-
trict Council of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Skippy Enterprises, Inc.),
211 NLRB 222 (1974), and Alabaster Lime Company,
Inc., 194 NLRB 1116 (1972). The answer to the question
at hand further depends upon whether it can be said that
the indicia of illegality manifest by Respondents' actions
were unequivocal. Ellis Tacke d/b/a Ellis Tacke Compa-
ny, 229 NLRB 1296, 1301-02 (1977).
I find that the following evidence strongly militates
toward the conclusion that the General Counsel and the
Union should not be precluded from succeeding in the
assertion that the only clear indication of repudiation of
the bargaining obligation was provided by FIW within 6
months of when the instant charge was filed: (a) In ap-
parent contradiction to Morrell's October 7, 1976, refer-
ences to cessation of fund payments on June 30, 1976,
FIW participated in the various arbitration proceedings
during 1977 and moreover delivered its payroll records
from July 1975 through July 5, 1977, at the arbitration
hearing, and (b) FIW thereafter continued to permit in-
spection of even later documents. I conclude that the ac-
tions of FIW between June 30, 1976, and into December
1977 did not demonstrate with the requisite certainty the
intention of FIW to totally repudiate its bargaining obli-
gations.
Instead, two events, in my view, conceivably comprise
an unequivocal repudiation of the bargaining obligation
sufficient to begin the operation of Section 10(b). The
first is the removal of the unit work from FIW and
transfer to JCIW on September 20, 1977. The record re-
veals that the Union was virtually instantaneously aware
of this operational change. It is clear that the change was
accomplished without consultation or discussion with the
Union. I cannot conceive of a more forceful manner in
which a labor organization might become aware that an
employer has repudiated, or is seeking to repudiate, its
bargaining obligations.
The second incident is the one urged by the General
Counsel. He argues that Morrell's oral remarks on De-
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 27, 1977, form the basis of a clear repudiation. I
agree. On that date, as earlier indicated, Morrell clearly
asserted that the state labor board's decision relieved
FIW of the responsibility to produce any records beyond
the I-year period of the extension stipulation. On that
date also, Morrell bluntly and unequivocally announced
that FIW did not recognize that any agreement existed
between it and the Union in excess of that I year.
I conclude that the alleged unfair labor practice upon
which the instant complaint is based occurred with the
removal of the bargaining unit work from FIW. Al-
though that date is approximately 3 months earlier than
the date the General Counsel would have me adopt for
purposes of the 10(b) issue, it nonetheless is comfortably
within the 6-month period immediately preceding the
filing of the charges herein. Accordingly, I reject Re-
spondents' arguments that the Union had actual knowl-
edge of the contract repudiation as early as August 1975.
To so find would place a serious undue burden upon
prospective litigants. In the instant case, the Union easily
could have been lulled into a false sense of security, and
important employee rights would have been eliminated. I
find that the various actions taken by FIW in furtherance
of some contractual provisions are simply inconsistent
with its present claim of repudiation at the early dates
now claimed by Respondents to be "operative" herein.
Impliedly, Respondents argue that the Union effectively
has waived its right to represent the instant unit employ-
ees. Presumably, the bases of such argument are that the
Union (1) acquiesced in the refusals by FIW to sign the
typed extension stipulation and the full 3-year multiem-
ployer agreement, and (2) participated in the state labor
board's representation hearings and election. I reject Re-
spondents' implications. The first basis has been disposed
of hereinabove. As to the second, I consider the Union's
conduct in the state labor board's proceedings to be at
least as much a means of protecting its interest in remain-
ing bargaining agent as it might be a contrary indication.
To encumber the Union with the burden suggested by
Respondents requires that the Union possess a fair degree
of clairvoyance. It would have had to know in advance
that JCIW would be later established. The Union would
have had to anticipate the alter ego relationship between
FIW and JCIW which I shall find, infra. Thus, I view
the Union's state labor board activities as a method by
which it was protecting its right to continued representa-
tion of the affected employees. To conclude otherwise
would be to ignore the Union's conduct which clearly
shows its pursuit of bargaining authority. I refer, of
course, to the various arbitration proceedings and efforts
to recover overdue fund contributions.
In Tide Water Associated Oil Company, 85 NLRB 1096,
1098 (1949), the Board long ago announced it is "reluc-
tant to deprive employees of. . . rights guaranteed them
by the Act in the absence of a clear and unmistakable
showing of a waiver of such rights." Upon the forego-
ing, I conclude that no such unambiguous conduct rea-
sonably can be attributed to the Union.
Upon all the foregoing I find the instant proceedings
are timely and there is no merit to the second affirmative
defense.
2. The underlying dispute
a. The relationship between the Companies
The General Counsel and the Union, contrary to Re-
spondents, contend that JCIW is the alter ego of FIW,
or, at the minimum, that it is FIW's successor.
I conclude JCIW is an alter ego of FIW. There are
factors present which conceivably negate such a conclu-
sion. Those items are: (a) the virtual absence of a direct
showing that that the labor relations policies and prac-
tices of both corporations are uniformly controlled; (b)
the two corporations are located at separate geographic
locations; and (c) the corporations function with separate
bank accounts, separate corporate officials, and separate
letterheads and invoices since November 1977.
I am, however, persuaded that an alter ego relationship
exists by the following more impressive factors: (1) FIW
owns the physical premises which houses JCIW and its
operations; (2) JCIW was organized to perform exactly
the same ornamental work formerly performed by FIW;
(3) the ornamental work of JCIW is performed with the
identical employee complement and supervision (Jerry)
at FIW; (4) JCIW operates with the machinery and
equipment transferred from FIW; (5) to a great extent,
JCIW services the same customers at FIW for ornamen-
tal work; (6) the capital contribution to JCIW came from
the bank account of FIW's owner; (7) the two corpora-
tions are represented by identical legal counsel and use
the same accountant; (8) JCIW and FIW use the same
bank for their business accounts; and (9) the initial work
of JCIW was estimated and planned by Jerry while on
the payroll of FIW.
In substance, the items enumerated above clearly dem-
onstrate that the sole significant difference between
JCIW and FIW is that the former is nonunion, whereas
the latter had a bargaining obligation to the Union
herein.
Where the asserted alter ego continues to run an oper-
ation almost exactly as the entity from which it was nur-
tured, the Board consistently has held that entity to be
an alter ego. Cagle's Inc., 218 NLRB 603, 604 (1975); Air-
port Limousine Service Inc., etc., 231 NLRB 932, fn. 2
(1977); Crawford Door Sales Company, Inc., and Cordes
Door Company, Inc., 226 NLRB 1144 (1976); P. A. Hayes
Inc. and P. H. Mechanical Corp., 226 NLRB 230, 236
(1976).
The instant case is not unlike the situation in H. S.
Brooks Electric, Inc., et al, 233 NLRB 889. There it was
concluded that a corporation constituted the disguised
continuance of a predecessor organization where it was
formed to avoid the financial strain of a collective-bar-
gaining relationship. I find it implausible to accept Re-
spondents' descriptions of the events by which FIW
stopped producing ornamental iron products and JCIW
began to do so. The subtle informality of organizing
JCIW is eloquent in its simplicity. It loudly belies the
seeming innocence of the event. The testimony of Frank
and Jerry Cardullo, mutually corroborative in this
regard, simply is illogical and incredible. For example,
the record shows that the four employees who left FIW
to go to JCIW had extremely long tenure with FIW.
Thus, employees Summell, Cruz, Montavani and Capar-
- -------
FARMINGDALE IRON WORKS, INC. 107
elli had worked for 19, 14, 10, and 6 years, respectively.
Despite this, Frank testified to conversations with those
employees in which he encouraged them to accept
Jerry's offer of employment at JCIW. The ease with
which the employees were permitted to leave FIW for
their work at JCIW provides grounds to infer that Frank
was a willing and active participant in the assumption of
the ornamental work by JCIW. This inference is but-
tressed by the earlier noted fact that JCIW's capital con-
tribution emanated from Frank's bank account. Jerry
himself testified that there is no written agreement to
repay the unsecured, interest-free $11,000 contribution.
In any event, the record shows that at the time of the
instant hearing JCIW has repaid none of that money.
In a similar vein, Jerry's testimony of the organization
of JCIW is improbable. Jerry claimed that months before
he actually incorporated JCIW he advised his mother
that he would set up an ornamental business. Jerry
claimed that he did not advise Frank of such a decision
until the end of August or September. Both Frank and
Jerry testified that they had had business disagreements.
Thus, Jerry asserted that he spoke to the accountant as
early as May 1977 and to his attorney in July-both
before speaking to Frank. It simply is incredible that nei-
ther the accountant nor attorney would have at least ad-
vised Jerry to consult his father regarding his plans,
which were anticipated to totally decimate an entire
phase of the FIW production operations. Ornamental
work comprises approximately one-third of the total pro-
duction operations of FIW. To permit so substantial a
portion of a business to be eliminated in the casual
manner portrayed by Respondents is illogical. It simply
defies industrial reality.
Jerry's own testimony tends to diminish the purported
spontaneity of the organization of JCIW. Jerry testified
that he had problems with Frank at FIW concerning
pricing and volume. According to Jerry, he wanted
more ornamental work at a lesser price to customers, but
Frank wanted less work at higher prices. Jerry testified
this was a perpetual problem. It existed, in Jerry's words,
"when I started working with my father ... once I
started taking care of the railing part of the business."
This testimony is contradictory to that of Frank, who
testified that, when he consulted Morrell in July or
August 1976, FIW had been the recipient of continuous
dunning by the Union for overdue benefit payments.
Events themselves contradict Jerry's assertion. Thus,
JCIW was not actually organized until the state labor
board disavowed the existence of a contract between
FIW and JCIW. As if to confirm the state labor board's
decision, JCIW was formed.
I find the organization of JCIW a sham. The oper-
ations of JCIW were a department of FIW. Nothing ma-
terial has changed. I conclude that there is substantial
evidence in this record to find, as I do, that JCIW is but
a disguised continuance of FIW. Indeed, JCIW virtually
exists at the sufferance of FIW. This conclusion is
reached by noting that JCIW was fully capitalized with
funds given by Jerry's mother and a building owned by
his father, who also contributed personnel and operating
equipment. In sum, I find the essential ingredients of an
alter ego described by the Board in the Crawford Door
case, supra, to be satisfied herein.
In view of my finding that JCIW is the alter ego of
FIW, I deem it unnecessary to engage in an in-depth dis-
cussion and analysis of the alternative theory that JCIW
is a successor company. It suffices, based upon my factu-
al findings concerning the operation of JCIW, to declare
that I would also conclude and find that JCIW is a suc-
cessor employer to FIW, particularly because it appears
that the employing industry remains the same. La-Ron
Corporation d/b/a Precision Carpet, Inc., 223 NLRB 329
(1976); Lincoln Private Police, Inc. as Successor to Industri-
al Security Guards. Inc., 189 NLRB 717 (1971); Mainte-
nance Incorporated, 148 NLRB 1299(1964).
b. The refusals to bargain
As it has been found above that JCIW is the alter ego
of FIW, and as the parties agreed upon the basic unit de-
scription at the 1'earing, I hereby conclude that the fol-
lowing unit is appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees engaged
in the fabrication and/or manufacture of all ferrous
and nonferrous metals, iron, steel, and other metal
products, or in the maintenance of machinery and
equipment, employed by Respondents at their
Farmingdale and Bayshore, New York, shops, ex-
clusive of office clerical employees, guards and all
supervisors as defined in the Act.
Inasmuch as I have found FIW contractually bound to
the Union until June 30, 1978, I now find JCIW was sim-
ilarly bound by virtue of its status as alter ego. In Eastern
Washington Distributing Company, Inc., 216 NLRB 1149,
1153 (1975), the Board stated:
The existence of a prior contract, lawful on its face,
is sufficient to raise a dual presumption of majority,
first that the Union had majority status when the
contract was executed and second that the majority
continued at least through the life of the contract.
To rebut the foregoing presumption, Respondent must
demonstrate either that the Union did not enjoy majority
support at the time of the refusal to bargain, or that there
was reasonable doubt based upon objective consider-
ations for believing that the Union had lost its majority
status when bargaining was refused. Impressions. Inc., 221
NLRB 389 (1975). Such an assertion, however, must be
raised in a context free of unfair labor practices. In the
instant case, I conclude that any diminution of majority
support can be traced directly to Respondents' conduct
by which FIW admittedly unilaterally withdrew recogni-
tion from the Union and JCIW began to work with the
former unit employees. Accordingly, I conclude that at
no time herein did Respondents have a good-faith doubt
as to the Union's majority status.
Inherent in the General Counsel's position that Re-
spondents violated Section 8(aX5) of the Act by with-
drawing recognition from and by thereafter refusing to
bargain with the Union is the proposition that Respond-
ents neglected their bargaining obligation by failing and
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to notify and bargain with the Union with re-
spect to the transfer of the unit employees from FIW to
JCIW.
Additionally, it is explicitly alleged that Respondents
unlawfully refused to bargain with the Union by having
unilaterally changed the terms and conditions of the or-
namental iron employees.
In The Bell Company, etc., et al., 225 NLRB 474, 482
(1976), Administrative Law Judge Maloney, in his
Board-approved Decision, noted that:
. . . an alter ego . . . is obligated to remedy all
unfair labor practices committed by [its predeces-
sor] and honor the contract which was in effect at
the time of transition of enterprise .... [F]ailure
to do so . . . amounts to a repudiation of a collec-
tive-bargaining relationship, and as such, constitutes
a violation of Section 8(a)(l) and (5) of the Act.
. . .See C & S Industries, Inc., 158 NLRB 454.
As noted, Respondents admit that recognition had
been withdrawn from the Union. However, Respondents'
post-hearing brief argues that the record is entirely bare
of evidence supporting the allegation that unilateral
changes in working conditions were made. I disagree.
During his cross-examination, Jerry testified that JCIW
paid the four employees who came from FIW 25 or 50
cents more per hour than they received at FIW. There is
no evidence that the wage rate had been negotiated be-
tween Respondents and the Union. Additionally, it is
clear that Respondents discontinued contributions to the
contractual benefit funds. I conclude that, by each of the
foregoing acts, Respondents further violated Section
8(a)(5) and (1) of the Act. Laramee's Transit, Inc., 224
NLRB 56, 65 (1976), P. A. Hayes, Inc., 226 NLRB 236.
In the circumstances herein, I also find that Respond-
ents' conduct discriminated against the ornamental iron-
workers in violation of Section 8(a)(3) of the Act. Re-
spondents' conduct effectively deprived those employes
of the benefits of their collective-bargaining agreement.
See Herman Brothers Pet Supply, Inc., et al., 138 NLRB
1087 (1962). St. Regis Paper Company, 239 NLRB 688,
693 (1978). These findings and references to case authori-
ty are based upon my conclusion that the record as a
whole establishes a discriminatory motivation on the part
of Respondents. Specifically, I find that the entire sce-
nario of events was prompted by an express desire to ex-
tricate FIW from its collective-bargaining obligations to
the Union. I find that the events herein portray a well
orchestrated and sophisticated method of accomplishing
that goal. No extensive analysis or discussion is needed
to find such activity is unlawful under the Act when
done in the midst of an existing obligation to bargain.
In sum, I find that the General Counsel has sustained
his burden of proving each and every violation of Sec-
tion 8(a)(5), (3), and (1) of the Act alleged in the Com-
plaint.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Farmingdale Iron Works, Inc., and Jerry Cardullo
Iron Works, Inc., are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Jerry Cardullo Iron Works, Inc., is, and at all times
material herein has been, an alter ego of Farmingdale
Iron Works, Inc., and also a successor employer to FIW.
3. Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. A collective-bargaining agreement existed between
Farmingdale Iron Works, Inc., and the Union effective
July 1, 1975, through June 30, 1978, and between the
Union and Jerry Cardullo Iron Works, Inc., as an alter
ego of FIW.
5. All production and maintenance employees engaged
in the fabrication and/or manufacture of all ferrous and
nonferrous metals, iron, steel, and other metal products,
or in the manufacture of machinery and equipment, em-
ployed by FIW and JCIW at their Farmingdale and Bay-
shore, New York, shops, exclusive of office clerical em-
ployees, guards and all supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining
pursuant to Section 9(b) of the Act.
6. By ending ornamental ironwork at the Farmingdale
location, transferring that operation to the Bayshore lo-
cation, and transferring the ornamental ironwork from
FIW to JCIW, Respondents discriminated against em-
ployees and refused to bargain in good faith in violation
of Section 8(a)(3), (5), and (1) of the Act.
7. By refusing and failing to honor, maintain, and give
effect to the collective-bargaining agreement of July 1,
1975-June 30, 1978, among the parties, Respondents dis-
criminated against employees and refused to bargain in
good faith in violation of Section 8(a)(3) and (1) of the
Act.
8. By unilaterally withdrawing recognition from the
Union Respondents refused to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act.
9. By unilaterally changing wage rates and withhold-
ing contractual benefit fund payments, Respondents dis-
criminated against employees and refused to bargain in
good faith in violation of Section 8(a)(3), (5), and (1) of
the Act.
10. The aforesaid unfair labor practices affect com-
merce and tend to lead, and have led, to labor disputes
burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that FIW and JCIW have engaged, and
are engaging, in certain unfair labor practices, I shall rec-
ommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondents have refused to recog-
nize and bargain with the Union, the recommended
Order will provide that, upon request, they bargain col-
lectively with the Union as the exclusive bargaining rep-
FARMINGDALE IRON WORKS, INC. 109
resentative of the employees in the unit found appropri-
ate herein.
Inasmuch as I have found that Respondent failed and
refused to acknowledge the existence of the 1975-78 col-
lective-bargaining agreement, a natural consequence of
that dereliction is the deprivation from the employees of
negotiated benefits. I find it appropriate, therefore, that
the recommended Order provide for Respondents to
make all benefit fund contributions required by that con-
tract to the Union on behalf of the employees who were
in the bargaining unit for the appropriate period of time.
Walter E. Heyman d/b/a Stanwood Thriftmart, 216
NLRB 852 (1975); Harold W Hinson d/b/a Hen House
Market No. 3, 175 NLRB 596 (1969).
I have found Respondent's failure to bargain as to the
decision to transfer unit work from FIW to JCIW consti-
tutes an unlawful refusal to bargain. Thus, it is appropri-
ate that the recommended Order require Respondents to
cease and desist from unilaterally transferring unit work
or otherwise making unilateral changes in unit employ-
ees' terms and conditions of employment without con-
sulting their designated bargaining agent.
Normally, to ensure genuine bargaining over the deci-
sion to transfer unit work from one location to another,
the Board provides for restoration of the status quo ante.
Stone & Thomas, 221 NLRB 573 (1975), and cases cited
therein. Such restoration customarily entails an order
that the unit work unlawfully transferred be relocated to
its former facility. I perceive no useful purpose for an
order of relocation in the instant matter. The record con-
tains no evidence that the transfer from FIW to JCIW
imposed any hardship upon the four affected unit em-
ployees. At the time of the hearing, each remained in the
employ of JCIW and had maintained that position for at
least 15 months. I take official notice that the atlas mile-
age distance between the Farmingdale and Bayshore
facilities is approximately 20 miles. Accordingly, the
order will give Respondents the option of not physically
returning the ornamental iron operations to the Farming-
dale facility so long as Respondents comply with all
other aspects of the remedial order. Weltronic Company,
173 NLRB 235, fn. 1 (1968).
In accord with Board practice and equitable consider-
ations, the recommended Order will not require the re-
scission of wage increases provided the unit employees
when they became employed by JCIW. Of course, if
those wages were not as high as the negotiated wages in
the 1975-78 contract, then Respondents shall make
whole those employees for those losses suffered by fail-
ure of Respondents to maintain the terms and conditions
of that collective-bargaining agreement. All reimburse-
ment and make-whole directives of the instant recom-
mended Order shall be with interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977).
Finally, I conclude that the conduct herein found to
be unlawful is not so egregious as to warrant a broad
order. See Hickmott Foods Inc., 242 NLRB No. 177
(1979). Accordingly, Respondents will merely be ordered
to refrain from engaging in unfair labor practices by con-
duct of a like or related manner to that by which they
have been found to have violated the Act.
Upon the foregoing findings of fact, conclusions of
law, the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 4
Respondents Farmingdale Iron Works, Inc., and Jerry
Cardullo Iron Works, Inc., their officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive bargaining representative of the ornamental
ironworkers in the unit found approrpiate herein with re-
spect to wages, hours, and other terms and conditions of
employment:
(b) Unilaterally transferring unit work to other loca-
tions or otherwise changing the wages, hours, and other
terms and conditions of employment of unit employees
without prior bargaining with the Union, or any other
labor organization those employees may select as their
representative.
(c) Unilaterally withdrawing recognition from the
Union in an unlawful manner.
(d) Unilaterally changing the wages, hours, and other
terms and conditions of employment of bargaining unit
employees.
(e) Unlawfully refusing to honor and give effect to any
valid collective-bargaining agreement between them and
the Union, or any other lawfully designated collective-
bargaining representative.
(f) In any like or related manner, interfering with, re-
straining, or coercing their employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the Union as the exclusive bargaining representative
of their employees in the unit found appropriate with re-
spect to wages, hours, and other terms and conditions of
employment.
(b) Apply the terms of the 1975-78 collective-bargain-
ing agreement to their ornamental iron operations and
employees retroactively to July 1, 1975.
(c) Upon request, bargain collectively in good faith
with the Union over the effects of the decision to trans-
fer the ornamental operations from the Farmingdale to
the Bayshore facility. In this connection, Respondents
shall have the option of maintaining the ornamental oper-
ations at the Bayshore facility so long as they comply
with all other aspects of this Order.
(d) Make whole all unit employees for all losses they
may have suffered as a result of Respondents' conduct
found to be unlawful herein. This make-whole provision
shall be implemented in accordance with the formula set
forth above in the section entitled "The Remedy."
(e) Make all benefit fund payments to the Union as re-
quired in the 1975-78 collective-bargaining agreement.
I In the event no exceptions are filed as provided by Sec. 10246 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings. conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections therelo
shall he deemed waived fr all purposes
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Post at its Farmingdale and Bayshore, New York,
facilities copies of the attached notice marked "Appen-
dix. " 5 Copies of said notice, on forms provided by the
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
Regional Director for Region 29, after being duly signed
by Respondents' representative, shall be posted by them
immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."