Flat Dog Productions, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1180 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 104
1180
Flat Dog Productions, Inc.; Frank T. Demartini, P.C.;
Frank T. Demartini, Individually; Dragon Pro-
ductions A.V.V.* and International Alliance of
Theatrical Stage Employees and Moving Picture
Technicians, Artists and Allied Crafts of the
United States and Canada, AFL–CIO. Case 31–
CA–24062
August 31, 2006
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 24, 2003, Administrative Law Judge
Lana H. Parke issued the attached supplemental decision.
The Respondents filed exceptions and a supporting brief,
a brief in answer to the General Counsel’s limited excep-
tions, and a reply brief. The General Counsel filed lim-
ited exceptions and a brief in answer to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this supplemental deci-
sion and to adopt the recommended Order as modified
and set forth in full below.
In this compliance-stage proceeding, we consider
whether Respondents Frank T. DeMartini, P.C. (the P.C.)
and Frank T. DeMartini (DeMartini), an individual,
should be held derivatively liable for backpay owed by
Respondent Flat Dog Productions, Inc. (Flat Dog).2 The

* At the hearing, the General Counsel withdrew all allegations relat-
ing to Dragon Productions A.V.V. (Dragon), representing that the Re-
gion had been unable to effect service of process on Dragon, a Dutch
Antilles corporation.
1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the underlying unfair labor practice case, 331 NLRB 1571
(2000), enfd. 34 Fed. Appx. 548 (9th Cir. 2002), the Board found that
Respondent Flat Dog, through its agent DeMartini, had violated Sec.
8(a)(3) and (1) of the Act by discharging employees for engaging in an
economic strike. The Board ordered Flat Dog, inter alia, to make the
unlawfully discharged employees whole for any and all losses they
incurred as a result of Flat Dog’s unlawful action. Thereafter, contro-
versies arose over allegations in the General Counsel’s compliance
specification relating to the backpay period, the amounts of backpay
due, and the identification of the discriminatees, as well as the issues of
derivative liability addressed in this decision. The judge approved the
General Counsel’s determination of the backpay period, and found that
21 of the 23 employees named in the compliance specification were
judge found that Flat Dog and the P.C. are alter egos
and a single employer, and therefore concluded that
the P.C. is derivatively liable for Flat Dog’s backpay
obligation. She further found that, under the circum-
stances of this case, the corporate veils of both Flat
Dog and the P.C. should be pierced to hold DeMartini
personally liable for the backpay due. The Respon-
dents except to each of these findings.
As explained below, we agree with the judge that
Flat Dog and the P.C. are a single employer. Because
the P.C. is liable on this basis, we find it unnecessary
to pass on whether the P.C. may be liable on an alter
ego theory. We disagree, however, with the judge’s
finding that the corporate veils of Flat Dog and the
P.C. should be pierced and DeMartini held personally
liable for their remedial obligations. We therefore
reverse the judge and conclude that DeMartini is not
personally liable for these remedial obligations.
I. FACTUAL BACKGROUND
DeMartini is an attorney who has provided legal ser-
vices for about 100 films over the course of his legal
career, which began in 1986. Since 1994, he has also
served as a producer or coproducer on several films.
Around 1992, DeMartini established the P.C. as a solo
law practice. The P.C. also serves, at least in part, as a
“loan-out corporation”—that is, a corporation that has
the exclusive right to “loan out” DeMartini’s services
as a producer.3 At all relevant times, DeMartini has
been the sole employee, shareholder, and director of
the P.C., occupying the roles of chief executive officer,
chief financial officer, and secretary.
In late 1998 or early 1999, the P.C. entered into a
development deal with a film distributor to produce a
“creature feature” film about crocodiles attacking col-

properly identified as discriminatees and were entitled to the back-
pay alleged. The Respondents except to these findings on various
grounds. We find no merit in these exceptions and therefore adopt
the judge’s analysis and findings with regard to the backpay period,
backpay amounts, and discriminatee identification.
Excepting to the judge’s findings with regard to the backpay pe-
riod, the Respondents contend that their backpay liability terminated
at some unspecified time between August 17 and 20, 1999, when
DeMartini purportedly made valid offers of reinstatement to the
strikers. However, the legal effect of DeMartini’s conduct toward
the strikers between August 17 and 20, 1999[,] was litigated and
decided at the merits stage of this case. See Flat Dog Productions,
331 NLRB at 1571 (finding that DeMartini’s conduct between Au-
gust 17 and 20 effected the strikers’ discharge). Issues litigated and
decided in an unfair labor practice proceeding may not be relitigated
in the ensuing backpay proceeding. Transport Service Co., 314
NLRB 458, 459 (1994). Accordingly, the Respondents’ argument in
this regard is precluded.
3 DeMartini testified that it is customary in the film industry for
producers to form such loan-out corporations in order to avoid con-
tracting in their personal capacities with those seeking their services.
FLAT DOG PRODUCTIONS, INC. 1181
lege students (the Film). To carry out the production of
the Film, the P.C. incorporated Flat Dog under the name
“Flat Dog Corporation.” At all relevant times, the P.C.
has been the sole shareholder of Flat Dog, and DeMartini
has been Flat Dog’s chief executive officer, chief finan-
cial officer, secretary, and sole director. DeMartini also
served as a producer on the Film, pursuant to a loan-out
arrangement of the type described above. DeMartini
testified without contradiction that Flat Dog, having con-
tracted with the P.C., paid him $35,000 for his services.
The P.C. provided the initial capital for Flat Dog.
However, Dragon Productions A.V.V. (Dragon), a third-
party lender, primarily financed the Film. Dragon and
Flat Dog entered into a loan agreement on July 19, 1999
(GC Exh. 14).4 The loan agreement specified that, in the
event of Flat Dog’s default, Dragon had the right to ter-
minate the loan agreement and require Flat Dog to repay
the loan. If Flat Dog failed to comply with this demand
within 48 hours, the loan agreement gave Dragon the
further right to require that Flat Dog transfer all its rights
in the Film to Dragon “in full settlement of the Loan”
(GC Exh. 14, par. 8). Flat Dog was obligated, by the
terms of the loan agreement, to comply with such a re-
quest. Even after the transfer of film rights, the loan
agreement gave Dragon the right to require Flat Dog to
complete production of the Film. The loan agreement
defined “default” as, inter alia, cessation of principal
photography before all scenes in the final shooting script
had been shot.
Flat Dog began filming in Los Angeles in early Au-
gust, with a production crew hired by DeMartini. On
August 17, several members of the crew began an eco-
nomic strike and joined the International Alliance of
Theatrical Stage Employees and Moving Picture Techni-
cians, Artists and Allied Crafts of the United States and
Canada, AFL–CIO (the Union) in picketing at the site of
filming. DeMartini initially reacted to the strike by de-
claring the day a nonworkday, but later approached the
picket line and told the strikers that they were terminated.
Over the following 2 days, DeMartini offered the strikers
financial incentives to return to work and referred to
those who persisted in striking as “former employees.”5
On August 20, having failed to negotiate an end to the
strike and picketing, DeMartini closed the production.
The same day, upon learning that the production had
been closed, counsel for Dragon notified Flat Dog that,
by ceasing principal photography, Flat Dog had effec-

4 All dates hereafter are in 1999, unless otherwise specified.
5 The Board found in the underlying unfair labor practice case that,
by this course of conduct, Respondent Flat Dog had discharged the
strikers in violation of Sec. 8(3) and (1) of the Act. Flat Dog Produc-
tions, 331 NLRB at 1571.
tively defaulted on its obligations under the loan agree-
ment.6 Invoking the default provisions of that agree-
ment, Dragon demanded that Flat Dog repay the loan
in full within 48 hours and reminded Flat Dog that
failure to repay the loan could result in Flat Dog’s loss
of all rights in the Film. On August 24, having re-
ceived no repayment of the loan as demanded, Dragon
requested that Flat Dog transfer all rights in the Film to
Dragon “in full settlement [of the] Production Loan”
(GC Exh. 16, encl. p. 1). In accordance with the loan
agreement, Flat Dog complied.
The transfer of film rights to Dragon was executed
on August 24. In early September, Dragon reopened
production in Mexico. Although Flat Dog had relin-
quished its film rights, DeMartini agreed to continue as
producer of the Film, both in his individual capacity,
and as an officer of Flat Dog. Repayment of the loan
having been forgiven upon transfer of the rights to the
Film from Flat Dog to Dragon, Flat Dog received no
further compensation for its services during the Mex-
ico phase of production, which ended on September
25.
II. DISCUSSION
A. Liability of the P.C., as a Single Employer
with Flat Dog
As stated above, the judge found that Flat Dog and
the P.C. constitute a single employer. The Respon-
dents except to that finding. In determining whether
two entities constitute a single employer, the Board
considers four factors: common control over labor re-
lations, common management, common ownership,
and interrelation of operations. Emsing’s Supermarket,
Inc., 284 NLRB 302 (1987), enfd. 872 F.2d 1279 (7th
Cir. 1989).7 No single factor in the single-employer

6 With respect to the loan agreement between Dragon and Flat
Dog, both parties were represented by the same attorney.
7 In Emsing’s, the administrative law judge, limiting his analysis
of functional integration between Emsing’s Supermarket and
Rocky’s Supermarket, the alleged single employer, to the time be-
fore Emsing’s closing in August 1984, found no integration of op-
erations based on a lack of employee interchange and an absence of
financial integration. Relying on this factor, the judge further found
that Emsing’s and Rocky’s did not constitute a single employer. In
reversing the judge and finding that Emsing’s and Rocky’s were a
single employer, the Board found that the judge erred by unduly
emphasizing the factor of functional integration and further found
that the judge erred by “underrat[ing] the significance of the August
closing transactions and gave insufficient consideration to the actual
implications and ramifications of the various financial transactions.”
Emsing’s Supermarket, 284 NLRB at 303. In finding that Emsing’s
and Rocky’s were functionally integrated, the Board relied on the
following conduct which occurred at the time of Emsing’s closing:
(1) Rocky’s issued a check dated 22 August 1984 to a meat sup-
plier in the amount of $3174.88 to cover an Emsing’s check which
had been returned due to insufficient funds. (2) Alan and Teri Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
inquiry is deemed controlling, nor do all of the factors
need to be present in order to support a finding of single-
employer status. Id.; Dow Chemical Co., 326 NLRB 288
(1998). “Rather, single-employer status depends on all
the circumstances, and is characterized by the absence of
the arm’s-length relationship found between unintegrated
entities.” Dow Chemical Co., 326 NLRB at 288.
Applying these principles, we agree with the judge’s
finding that Flat Dog and the P.C. are a single employer
based on the factors of common ownership, common
management, and common control over labor relations.
With respect to common ownership, Flat Dog is solely
owned by the P.C., which in turn is solely owned by
DeMartini. The Board has held that “the relationship of
privately held corporate parent to wholly owned corpo-
rate subsidiary” demonstrates common ownership for the
purpose of single employer status. Masland Industries,
311 NLRB 184, 186 (1993); Dow Chemical, 326 NLRB
at 288.
Moreover, both corporations are also managed by
DeMartini, who serves as chief executive officer, chief
financial officer, and corporate secretary of each. As the
P.C.’s sole officer and shareholder, DeMartini retains the
authority to control labor relations at the P.C. DeMartini
enjoys similar control over labor relations at Flat Dog.
He hired the production crew for the Film, and (as found
in the underlying unfair labor practice proceeding) he
discharged the striking members of that crew.
In finding the single-employer relationship, however,
we do not rely on the fourth factor, interrelation of opera-
tions. Although the P.C. and Flat Dog operate from the
same corporate offices, there is no evidence that the two
corporations are functionally integrated. The P.C., a firm
devoted primarily to offering legal services, and Flat
Dog, a film production company, have different business
purposes and operations. Contrary to the judge’s impli-
cation, the mere facts that the P.C. loaned out DeMartini
to Flat Dog and supplied Flat Dog’s initial financing do

sing [the owners of both Emsing’s and Rocky’s] had personally pur-
chased a 1983 Oldsmobile and put the title in the name of Emsing’s
Supermarket. When Emsing’s closed, ownership of the vehicle was
transferred to Rocky’s. (3) When Emsing’s closed, inventory which
suppliers would accept was returned, but $45,000 worth of its inven-
tory which was nonreturnable was transferred to Rocky’s without re-
gard to whether Rocky’s actually needed it or not. . . . Rather than pay
Emsing’s $45,000 outright, Rocky’s reduced its accounts payable to
Emsing’s by paying Emsing’s vendors directly for supplies and mer-
chandise that had been furnished to Emsing’s when Emsing’s was in
operation. (4) . . . At the time of closing, Emsing’s transferred all its
equipment to Rocky’s Supermarket in order to prevent it from being
locked up by the lessor because Emsing’s was in default on its rent.
[Ibid.]
As explained below, such functional integration is absent in the pre-
sent case.
not, without more, evidence that the P.C. and Flat Dog
were functionally integrated. Further, at the time Flat
Dog closed production of the Film in Los Angeles and
thereafter when Flat Dog worked on the Film in Mex-
ico, Flat Dog’s financial transactions were limited to
its dealings with Dragon, with no involvement of the
P.C. Cf. Emsing’s Supermarket, 284 NLRB at 303 and
fn. 7 above. Based on the above, we find that the evi-
dence does not support a finding of functional integra-
tion between Flat Dog and the P.C.
As explained above, however, we rely on the fac-
tors of common ownership, common management, and
common control of labor relations to conclude that Flat
Dog and the P.C. are a single employer under Board
law. Thus, under a theory of derivative liability, the
P.C. is liable to the same extent as Flat Dog for the
backpay due in this case. See Emsing’s Supermarket,
284 NLRB at 304; Darlington Mfg. Co., 139 NLRB
241, 258 (1962).
B. Liability of DeMartini—Piercing the Corporate Veil
1. Preliminary considerations
The judge found it appropriate to pierce the corpo-
rate veils of Flat Dog and the P.C. in order to impose
personal liability on DeMartini. The Respondents ex-
cept, asserting that the evidence does not justify this
extraordinary measure. We find merit in the Respon-
dents’ exceptions. As the Supreme Court has ex-
plained, “[t]he insulation of a stockholder from the
debts and obligations of his corporation is the norm not
the exception.” NLRB v. Deena Artware, Inc., 361
U.S. 398, 402–403 (1960). This insulation is a critical
and longstanding element of the Federal common law
of corporations. It reflects a careful policy decision
that such protection is necessary in order to encourage
business development and entrepreneurship, and is not
to be dispensed with lightly. Thus, the party asserting
that the corporate veil should be pierced, in this case
the General Counsel, has the burden of proof, and that
burden is a heavy one. See Contractors, Laborers,
Teamsters & Engin. v. Hroch, 757 F.2d 184, 190–191
(8th Cir. 1985).8

8 See also NLRB v. Greater Kansas City Roofing, 2 F.3d 1047,
1053 fn. 8 (10th Cir. 1993), where the court observed that the burden
of proof was on the Board to establish that there was a basis for
piercing the corporate veil so as to impose liability on respondent
Tina Clark. The court concluded that the finding that there was no
evidence on a certain issue (undercapitalization) was “insufficient to
meet this burden and in effect was an improper attempt to shift the
burden of proof onto Tina Clark” (emphasis added).
Our dissenting colleague further asserts that DeMartini should be
held personally liable under a purported rule that “when agents of an
employer commit unfair labor practices on behalf of the employer,
they themselves may be held fully liable.” Our colleague misstates
FLAT DOG PRODUCTIONS, INC. 1183
In White Oak Coal Co., 318 NLRB 732 (1995), enfd.
mem. 81 F.3d 150 (4th Cir. 1996), the Board articulated
its test for identifying those extraordinary cases in which
a shareholder has so disregarded the separate identity of
the corporation that it is appropriate to make his or her
personal assets available to remedy the unfair labor prac-
tices of the corporation. Under White Oak, the Board
pierces the corporate veil to hold individual shareholders
personally liable for corporate remedial obligations
where
(1) there is such unity of interest, and lack of respect
given to the separate identity of the corporation by its
shareholders, that the personalities and assets of the
corporation and the individuals are indistinct, and (2)
adherence to the corporate form would sanction a
fraud, promote injustice, or lead to an evasion of legal
obligations.
When assessing the first prong to determine
whether the shareholders and the corporation have
failed to maintain their separate identities, we will
consider generally (a) the degree to which the corpo-
rate legal formalities have been maintained, and (b)
the degree to which individual and corporate funds,
other assets, and affairs have been commingled.
Among the specific factors we will consider are: (1)
whether the corporation is operated as a separate en-
tity; (2) the commingling of funds and other assets;
(3) the failure to maintain adequate corporate re-
cords; (4) the nature of the corporation’s ownership
and control; (5) the availability and use of corporate
assets, the absence of same, or under-capitalization;

the law. Although the converse is true, i.e., an employer is liable for
the unfair labor practices committed by its agents, Zimmerman Plumb-
ing & Heating Co., 325 NLRB 106 (1997), and cases cited therein, an
individual is liable for unfair labor practices committed on the em-
ployer’s behalf only in extraordinary circumstances warranting piercing
the corporate veil. Carpet City Mechanical Co., 244 NLRB 1031
(1979), relied on by the dissent, preceded White Oak and applied an
earlier standard for piercing the corporate veil based on a finding that
the individual at issue constituted an alter ego of the respondent corpo-
ration. This standard was superseded by the White Oak test. As the
Board explained in AAA Fire Sprinkler, Inc., 322 NLRB 69, 73 (1996),
enfd. in part and remanded sub nom. NLRB v. I.W.G., Inc., 144 F.3d
685 (10th Cir. 1998): “Contrary to the judge, we do not rely on the alter
ego analysis to impose personal liability on Gordon. In our view, the
issue of personal liability as to individuals shielded by the corporate
form should be determined by employing the veil-piercing analysis set
forth [in White Oak Coal, 318 NLRB 732 (1995)].” Since our dissent-
ing colleague admits that her finding—-that DeMartini should be held
personally liable as an agent of Flat Dog—is based on an analysis “en-
tirely apart from the doctrine of piercing the corporate veil,” we reject
that analysis as contrary to current Board law. Our dissenting col-
league’s assertion—that neither White Oak Coal, supra, nor AAA Fire
Sprinkler, supra, “mentions the unfair-labor-practice liability of agents
under Sec. 2(2) of the Act”—only proves our point.
(6) the use of the corporate form as a mere shell,
instrumentality or conduit of an individual or an-
other corporation; (7) disregard of corporate legal
formalities and the failure to maintain an arm’s
length relationship among related entities; (8) di-
version of the corporate funds or assets to noncor-
porate purposes; and, in addition, (9) transfer or
disposal of corporate assets without fair considera-
tion. [Id. at 735 (emphasis in original; footnotes
omitted).]
2. Application of White Oak
a. The first prong of the White Oak test
At the outset, we note that DeMartini is not even a
shareholder of Flat Dog. Rather, the P.C. is the sole
shareholder of Flat Dog. As noted above, the P.C. is
liable for the obligations of Flat Dog because the two
corporations are a single employer. However, as dis-
cussed below, the evidence is insufficient to pierce the
corporate veil of the P.C. to impose individual liability
on DeMartini for the obligations of the P.C. Further,
the evidence is not sufficient to pierce the corporate
veil of Flat Dog, so as to impose individual liability on
DeMartini for the obligations of Flat Dog.
Although the judge purported to apply the White
Oak test to determine whether the corporate veils of
Flat Dog and the P.C. should be pierced, she failed to
specifically apply the nine factors, set out above,
which inform the issue of whether the first prong of the
White Oak test is satisfied. Rather, the judge summa-
rily concluded that the first prong of the White Oak test
was satisfied because she found that “neither of Re-
spondents Flat Dog or [the] P.C. has assets that are not
easily manipulated by Respondent DeMartini,” and
that “DeMartini moved among his individual and cor-
porate officer roles without regard to corporate distinc-
tions or ceremony.” For the reasons set out below, we
find, contrary to the judge, that the first prong of the
White Oak test is not satisfied and that therefore the
corporate veil should not be pierced.
With respect to the two general considerations of the
first prong, we acknowledge that, to some degree,
DeMartini did not consistently maintain corporate re-
cords in transactions among himself and the corpora-
tions. However, we find the record devoid of evidence
of commingling of corporate and individual DeMartini
funds and assets.
Applying the nine White Oak factors, as designated
by their corresponding numerals set out above, we
make the following findings. (1) The evidence fails to
establish that Flat Dog and the P.C. were not main-
tained as entities that were separate and apart from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
DeMartini. The P.C. operated as a law firm and as a
loan-out entity for DeMartini’s services as a film pro-
ducer. Flat Dog was incorporated as a production com-
pany for a particular feature film. Contrary to the con-
tention of our dissenting colleague, DeMartini’s central
role in both corporations is alone insufficient to demon-
strate that he failed to maintain a distinction between the
corporations and his own affairs.
(2) Although the P.C. supplied Flat Dog’s initial fi-
nancing, there is no evidence that DeMartini intermin-
gled his own funds or assets with those of either corpora-
tion. Indeed, the evidence is to the contrary. Dragon, a
separate corporation with no demonstrated relationship to
DeMartini, loaned Flat Dog the money needed to pro-
duce the Film through the July 19, 1999 documented
loan agreement. Moreover, the record here does not re-
veal the intermingling of corporate and personal funds on
which the Board typically relies in piercing the corporate
veil. In White Oak, the Board cited the practice of share-
holders Jerry and Arlene Deel of using corporate assets
for personal purposes, including writing corporate checks
to support their church, to renew Jerry’s membership in
the International Hot Rod Association, to buy house-
trailer furniture for their personal benefit, and to pay the
Department of Motor Vehicles and an automobile dealer
at a time when the corporation involved owned no vehi-
cles. The Deels also used corporate funds to make pay-
ments on personal loans. Similarly, in West Dixie Enter-
prises, 325 NLRB 194 (1997), affd. 190 F.3d 1191 (11th
Cir. 1999), the corporation’s owner and its president paid
employees from personal funds, made personal loans to
the corporation, used a personal vehicle for corporate
purposes, and used corporate funds to pay for the presi-
dent’s apartment for 6 months. We find that DeMartini
engaged in no such commingling of funds or use of cor-
porate funds or assets for personal purposes.9
(3) DeMartini, however, failed to keep adequate corpo-
rate records of the transactions whereby the P.C. loaned
the services of DeMartini to Flat Dog and Flat Dog’s
payment of $35,000 to DeMartini for those services. Flat
Dog should have paid the money to the P.C. for the use
of the P.C’s agent, DeMartini. Because of the absence of
records, it is not clear that this was done. However, even
if the money were paid directly to DeMartini, that fact
alone would not warrant the extraordinary step of pierc-
ing the corporate veil.
(4) We recognize that DeMartini was the owner of the
P.C., which, in turn, owned Flat Dog, and that DeMartini
controlled both corporations. Contrary to our dissenting

9 Our dissenting colleague concludes that corporate and personal as-
sets were “obviously” commingled, but cites no evidence supporting
her conclusion.
colleague, we do not find that this fact necessarily ren-
ders “meaningless” the separate corporate and individ-
ual identities. Nor should it dominate our analysis of
the White Oak factors so as to trump other equally im-
portant factors. Further, by focusing single-mindedly
on DeMartini’s asserted control of the P.C. and Flat
Dog, the dissent repeats the judge’s error of conclud-
ing, without adequate evidentiary support, that those
corporations should be stripped of their corporate
character. In so doing, the judge and our colleague use
the fact of DeMartini’s control to override the White
Oak analysis, both ignoring the significance of the
remaining White Oak factors and running afoul of fun-
damental corporate law. Refusing to recognize a dis-
tinction between a corporation and its principal simply
because the principal necessarily controls the actions
of the corporation effectively denies the intended pro-
tections of the corporate form to an entire category of
businesses.
(5) The record shows no improper use of corporate
assets and no evidence that Flat Dog or the P.C. was
undercapitalized. There is no allegation that the loan
Flat Dog received from Dragon was insufficient to
fund the production work that Flat Dog was required to
perform.10
(6) In addition, the record does not show that Flat
Dog was used “as a mere shell, instrumentality or con-
duit” of the P.C. or DeMartini. As explained above,
DeMartini originally established the P.C. as a law firm.
One of the P.C.’s functions was to provide DeMartini’s
services for film productions on a “loan-out” basis.
Even assuming that one of the purposes of incorporat-
ing Flat Dog was to shield the P.C. and/or DeMartini
from possible liability arising from such a loan-out
arrangement, such a purpose is a legitimate one and,
without more, does not warrant a finding that Flat Dog
is a “mere shell” of either the P.C. or DeMartini that
would support piercing the corporate veil.11
(7) Although Flat Dog and the P.C. constitute a sin-
gle employer, the relationship between each and De-
Martini has not been shown to be less than arm’s
length. As explained above,12 although we found a
single-employer relationship, we found specifically

10 Cf. AAA Fire Sprinkler, 322 NLRB at 74 (startup fund of only
$10,000 evidence of undercapitalization).
11 As explained at 18 C.J.S. Corporations § 16 (1990) (footnotes
omitted):
The law permits the incorporation of a business for the
very purpose of escaping personal liability . . . and the organi-
zation of a corporation for such avowed purpose does not con-
stitute fraud, and is not, by itself, sufficient reason to pierce the
corporate veil.
12 See fn. 7 and accompanying text.
FLAT DOG PRODUCTIONS, INC. 1185
that Flat Dog and the P.C. were not functionally inte-
grated with respect to their financial transactions. There
is no evidence that DeMartini improperly transferred
funds from himself to Flat Dog or to the P.C., either
when Flat Dog was the producer of the Film or when Flat
Dog supplied production services to Dragon.
(8) There is no evidence that DeMartini diverted funds
or assets to himself from either Flat Dog or the P.C. for
noncorporate purposes.13
(9) Nor is there evidence that he transferred or dis-
posed of corporate assets without fair consideration.
DeMartini’s ultimate transfer of the rights to the Film to
Dragon after Flat Dog ceased filming was largely dic-
tated by the terms of the agreement between Flat Dog
and Dragon.14 Although DeMartini testified that he
worked on the Film in Mexico both as a representative of
Flat Dog and in his individual capacity, there is no evi-
dence that any funds were diverted from Flat Dog or the
P.C. to pay him for his work there.15
Based on the above considerations, we find that the
General Counsel has not satisfied his burden of proving
that the requirements of the first prong of the White Oak
test have been met. Ultimately, there is no evidence that
the corporate identities of Flat Dog and the P.C. have not
been kept separate and apart from each other and from
DeMartini, individually. Consequently, we find that
there was no misuse of the corporate structure as con-
templated in White Oak.
b. The second prong of the White Oak test
The judge found that adherence to the corporate form
in this case would “‘sanction a fraud, promote injustice,
or lead to an evasion of legal obligations’” under the sec-
ond prong of the White Oak test.16 The judge reasoned

13 Cf. West Dixie Enterprises, 325 NLRB at 195 (payment for apart-
ment).
14 Our dissenting colleague seems to argue that DeMartini disposed
of Flat Dog’s corporate assets without adequate compensation by fin-
ishing the Film in Mexico without further compensation after Flat Dog
had assigned the film rights to Dragon. Our dissenting colleague once
again overlooks the legal significance of the loan agreement and Flat
Dog’s obligations arising therefrom. After Flat Dog defaulted on the
loan and transferred the film rights to Dragon, Dragon could require
Flat Dog to finish production of the Film. In finding that Flat Dog was
not compensated for this work, our dissenting colleague ignores the fact
that, in exchange for the rights to the Film and Flat Dog’s completion
of it, Dragon forgave the loan amount, which was well over $1 million.
We find forgiveness of such a debt to be “fair consideration” for Flat
Dog’s work on the Film in Mexico. Moreover, we note that, at the time
of the assignment of the film rights, there was no way to predict
whether the Film would be profitable.
15 Cf. White Oak, 318 NLRB at 735 (transfer from corporation of
mining permit, a major asset, without bona fide consideration to corpo-
ration, and shareholders received personal economic benefit from the
transfer).
16 Supp. JD, sec. II,A,3, third paragraph.
that “DeMartini’s motive in shifting responsibility for
the Film to Dragon (at least superficially) and moving
its production to Mexico was to avoid the conse-
quences of its employees’ protected activities [and
t]here is no reason to suppose the unlawful motives
that resulted in employee discharges have altered.”17
Although our finding that the first prong of White Oak
is not met in itself precludes the piercing of the corpo-
rate veils of Flat Dog and the P.C., we further find that
the judge erred in her findings concerning the second
prong.
First, the judge erred in relying on the Respondents’
unlawful motivation in committing the underlying un-
fair labor practices as the basis for finding the second
prong satisfied. The Board stated in White Oak, with
respect to the second prong, that “[t]he showing of
inequity necessary to warrant the equitable remedy of
piercing the corporate veil must flow from the misuse
of the corporate form.” 318 NLRB at 735. Thus, the
inquiry properly focuses on whether fraud, etc., would
result from the Board’s recognition of the corporate
form for remedial purposes when a respondent has
been found to have misused that form, not whether the
respondent acted with an unlawful motive in the unfair
labor practices being remedied.18
Second, we have found that the record does not
show the lack of respect of the corporate form neces-
sary to warrant piercing the corporate veil. We have
specifically found that the transfer of the film rights to
Dragon, and DeMartini’s continued involvement in the
Film’s production after the transfer, relied on by the
judge and our dissenting colleague as evidence of mis-
use of the corporate form, were, in fact, based on the
terms of the loan agreement between Dragon and Flat
Dog. In addition, there is no evidence that DeMartini
used the funds or assets of the P.C. or Flat Dog im-
properly or diverted them for his personal enrichment,
so that it would be necessary to recover them from him
in order to effectuate the Board’s remedy.

17 Id. (emphasis added; footnote omitted).
18 Our dissenting colleague, like the judge, relies on DeMartini’s
involvement in the unfair labor practices in assessing whether pierc-
ing the corporate veil is appropriate. Indeed, she revisits the merits
of the underlying case to the point of suggesting that DeMartini
could and should have avoided the entire course of events by acced-
ing to the Union’s demand for recognition of Flat Dog’s employees.
Neither DeMartini nor Flat Dog was obligated to grant such recogni-
tion, and their failure to do so is irrelevant to the issue in this pro-
ceeding. We recognize that the corporations committed the unfair
labor practices through the conduct of DeMartini, but that does not
mean that the veil of those corporations can be pierced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
III. CONCLUSION
In the absence of evidence satisfying the White Oak
test, we conclude that it is not appropriate to pierce the
corporate veil to hold DeMartini personally liable for the
backpay due. As we have found above, the record in this
proceeding contains no evidence that DeMartini used the
assets of Flat Dog or the P.C. improperly. Therefore,
there is no evidence that the assets of Flat Dog or the
P.C. have been diminished by the self-dealing that may
accompany a failure to maintain the distinction between
the individual and the corporation. Under these circum-
stances, it is not appropriate to pierce the corporate veil.
In reaching this conclusion, we are mindful of the
weighty interest in making the discriminatees whole for
the losses they suffered as a result of Respondent Flat
Dog’s unfair labor practices. We are also mindful, how-
ever, of the interest in protecting the principle of limited
liability, in reliance upon which so many businesses take
up the corporate form. Where, as here, there is no show-
ing under White Oak that a shareholder has abused the
privilege of doing business in the corporate form, we
must respect the corporate entity and the shareholder’s
reasonable expectation that he or she will not lightly be
held accountable for corporate debts. For all these rea-
sons, we conclude that the extraordinary equitable rem-
edy of piercing the corporate veil is not justified and we
therefore decline to apply that remedy here.
ORDER
The National Labor Relations Board orders that the
Respondents, Flat Dog Productions, Inc. (Flat Dog Cor-
poration) and Frank T. DeMartini, P.C., a single em-
ployer, Los Angeles, California, their officers, agents,
successors, and assigns, shall make whole the individuals
named below, by paying them the amounts following
their names, plus interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Federal
and State laws:
Jason Andrew $3,508.36
Starr Barry 521.24
Andrew Bikichky 3,381.69
Kevin Boyle 3,504.95
John Bratlien 2,220.29
Mae Brunken 4,000.08
Janos Csomo 1,654.82
Brian Davis 2,843.43
Chris Dechert 990.80
Adam Dodds 0.00
Chad Herr 578.97
Matthew Jakositz 2,098.02
Rick Lawrence 2,992.32
Charlie Lenz 2,933.51
Victor Major 3,377.67
Alex Schmidt 202.55
Matt Smith 2,821.97
Ron Smith II 2,368.13
Anthony Tucker 3,768.06
Gabrael Wilson 2,098.02
Jason Young 1,555.00
TOTAL $47,419.88
MEMBER LIEBMAN, dissenting in part.
Under the test established by the Board in White
Oak Coal,1 Frank T. DeMartini (DeMartini) is prop-
erly held liable for the backpay owed to the employees
he unlawfully fired because they went on strike against
the film production company that he controlled. The
majority’s refusal to pierce the corporate veil—
DeMartini is shielded, the majority finds, by his pro-
fessional corporation, the sole shareholder in the pro-
duction company—elevates the principle of limited
liability above the effective enforcement of the Na-
tional Labor Relations Act. As the judge found,
“[e]xcercising complete and sole control over [the cor-
porate entities], . . . DeMartini moved among his indi-
vidual and corporate officer roles without regard to
corporate distinctions or ceremony.” Under the cir-
cumstances, respecting the corporate form does not
“encourage business development and entrepreneur-
ship,” as the majority suggests. Instead, it simply
makes it easier for persons who commit unfair labor
practices to profit from them. Imposing liability on
DeMartini, in contrast, is consistent with the estab-
lished rule that when agents of an employer commit
unfair labor practices on behalf of the employer, they
themselves may be held fully liable.2
I.
The record demonstrates that Respondent DeMartini
was the driving force behind the unfair labor practices

1 White Oak Coal Co., 318 NLRB 732, 735 (1995), enfd. mem. 81
F.3d 150 (4th Cir. 1996).
2 My dissent is limited to the issue of DeMartini’s personal liabil-
ity. I join the majority in adopting the judge’s analysis and findings
with regard to the backpay period, backpay amounts, and identifica-
tion of the discriminatees.
I concur in finding Frank T. DeMartini, P.C. derivatively liable as
a single employer with Flat Dog Productions, Inc. (Flat Dog). In its
analysis of the single-employer issue, the majority relies on common
ownership, common management, and common control of labor
relations, but finds that the two entities were not functionally inte-
grated. Because I agree that the other factors amply support a find-
ing of single-employer status, I find it unnecessary to address the
question of functional integration or the majority’s analysis of that
factor.
FLAT DOG PRODUCTIONS, INC. 1187
underlying this case and that the corporate entities in-
volved here were simply his instrumentalities.
Frank T. DeMartini is the sole shareholder, director,
and employee of Frank DeMartini, P.C. (the P.C.), a pro-
fessional corporation, as well as its chief executive offi-
cer, its chief financial officer, and its corporate secretary.
The P.C. holds the exclusive right to DeMartini’s ser-
vices as a film producer and “loans out” those services
for specific film projects.
The P.C. is the sole shareholder of Flat Dog Produc-
tions, which DeMartini created solely to produce a film,
ultimately called “Crocodile.” DeMartini is the sole di-
rector of Flat Dog, its chief executive officer, its chief
financial officer, and its corporate secretary. Flat Dog
secured the right to DeMartini’s services as a producer
from the P.C.—in other words, DeMartini hired himself
to produce the film. There is no record of a “loan-out”
agreement between the P.C. and Flat Dog. Nor is there
evidence that Flat Dog paid consideration to the P.C. for
access to DeMartini’s services. According to DeMartini,
Flat Dog paid him, in his individual capacity, for his ser-
vices.
An entity called Dragon Productions A.V.V. (Dragon)
loaned Flat Dog the roughly $2.2 million required to
make “Crocodile,” under an agreement allowing Dragon
to require Flat Dog to transfer its rights in the film, if Flat
Dog could not finish shooting and did not repay the loan.
After Flat Dog began production, several employees
joined a union, went on strike, and picketed the film site.
DeMartini fired the employees unlawfully (as the Board
has found3), stopped filming, and closed the production,
putting Flat Dog into default on its loan from Dragon.
Dragon, in turn, demanded repayment; in response, De-
Martini transferred the film rights to Dragon. DeMartini
testified that “there was no way we could complete the
picture because of the Union activity, so we decided to
turn the picture over to Dragon.”
Dragon resumed production of the film in Mexico,
with DeMartini serving as producer, through Flat Dog.
According to DeMartini, the production was moved from
Los Angeles “so that IATSE [the Union] could not fol-
low.” Flat Dog paid bills for the production and per-
formed other postproduction tasks, but received no pay-
ment or reimbursement. There is no evidence that Flat
Dog received any portion of the $4.2 million that
“Crocodile” made in gross revenues.
II.
Under the Board’s White Oak Coal test, “the corporate
veil may be pierced when: (1) the shareholder and corpo-

3 Flat Dog Productions, 331 NLRB 1571 (2000), enfd. 34 Fed.
Appx. 548 (9th Cir. 2002).
ration have failed to maintain separate identities, and
(2) adherence to the corporate structure would sanction
a fraud, promote injustice, or lead to an evasion of
legal obligations.” 318 NLRB at 732. Both prongs of
the test are met here. DeMartini, the P.C., and Flat
Dog are indistinguishable: the two corporations were
simply DeMartini’s tools. Shielding DeMartini him-
self from liability, in turn, unjustly rewards the actor
whose corporate instrumentalities were utilized in the
commission of unfair labor practices and means that
those violations of the law may never be fully reme-
died.
A.
Under the first prong of the White Oak Coal test,
which asks whether the shareholder and the corpora-
tion have maintained separate identities, the Board
“will consider generally (a) the degree to which the
corporate legal formalities have been maintained, and
(b) the degree to which individual and corporate funds,
other assets, and affairs have been commingled.” 318
NLRB at 735 (footnote omitted). A long list of spe-
cific factors is relevant.4 Here, the relationship be-
tween DeMartini and his corporate entities, the P.C.
and Flat Dog, is so close that the notion of separate
identities is essentially meaningless.
As explained, DeMartini owns and controls the P.C.,
which has as its primary asset the exclusive right to
DeMartini’s services as a film producer. DeMartini
created and controlled Flat Dog, which was solely
owned by the P.C., which DeMartini owned and con-
trolled. Flat Dog “acquired” the right to DeMartini’s
services from the P.C., but there is no evidence of a
“loan-out” agreement between Flat Dog and P.C. and
no documentary evidence of consideration paid. (De-
Martini testified that Flat Dog paid him $35,000 for his
services: i.e., DeMartini paid himself, through Flat
Dog.)

4 As the White Oak Coal Board explained, those factors include:
(1) whether the corporation is operated as a separate entity;
(2) the commingling of funds and other assets;
(3) the failure to maintain adequate corporate records;
(4) the nature of the corporation’s ownership and control;
(5) the availability and use of corporate assets, the absence of same,
or undercapitalization;
(6) the use of the corporate form as a mere shell, instrumentality or
conduit of an individual or another corporation;
(7) disregard of corporate legal formalities and the failure to main-
tain an arm’s-length relationship among related entities;
(8) diversion of the corporate funds or assets to noncorporate pur-
poses; and, in addition,
(9) transfer or disposal of corporate assets without fair considera-
tion.
318 NLRB at 735 (footnote omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1188
Obviously, then, the assets and affairs of DeMartini,
the P.C., and Flat Dog were commingled: everything
revolved around the services of DeMartini as a film pro-
ducer. There was nothing distinct about the personalities
and assets of DeMartini and the two companies that he
controlled. Examining specific White Oak Coal factors
brings the point home.
Certainly there was a “failure to maintain adequate
corporate records,” given the lack of documentation for
the “loan-out” agreement between the P.C. and Flat Dog
covering DeMartini’s services and for Flat Dog’s pay-
ment to DeMartini himself.
With respect to the “nature of the corporation’s owner-
ship and control,” DeMartini was the sole shareholder
and officer of the P.C., which was the sole shareholder of
Flat Dog, of which DeMartini was the only director and
officer. DeMartini’s ownership and control could not be
more complete.
The “availability and use of corporate assets”—not
least, DeMartini’s own services—was entirely in the con-
trol of DeMartini. After firing the striking employees
and stopping production on the film, for example, De-
Martini made the decision to transfer Flat Dog’s rights in
“Crocodile” to Dragon and to continue working on the
film, without compensation. It was entirely up to De-
Martini how to dispose of his services and the funds to
which he had access in connection with the production of
“Crocodile.”
The facts amply demonstrate the “use of the corporate
form as a mere shell, instrumentality or conduit” for
DeMartini himself. And it is obvious that there was no
“arm’s-length relationship among related entities”: De-
Martini was necessarily on all sides of every purported
transaction between and among himself, the P.C. (owned
and controlled by DeMartini) and Flat Dog (owned by
the P.C., which DeMartini owned and controlled, and
controlled by DeMartini). No one else could have been
involved.
With respect to the White Oak Coal factors, the major-
ity acknowledges only that DeMartini failed to keep ade-
quate corporate records of certain transactions and that
“DeMartini was the owner of the P.C. and, through the
P.C., of Flat Dog and controlled both corporations.”
The majority asserts that “[t]here is no evidence . . .
that Flat Dog was used ‘as a mere shell, instrumentality
or conduit’ of the P.C. or DeMartini.” But the record
fully supports the judge’s findings that (1) “neither . . .
Flat Dog or P.C. has assets that are not easily manipu-
lated by DeMartini” (certainly the majority identifies no
such assets); and (2) that DeMartini was “firmly and
solely in control of all Respondents’ actions, financial
affairs, and business dealings” (no one else could have
been). The P.C. and Flat Dog were DeMartini, for
every practical purpose.
B.
Because DeMartini, the P.C., and Flat Dog lacked
separate identities, the first prong of the White Oak
Coal test is satisfied here. The second prong of that
test, as explained, asks whether “adherence to the cor-
porate structure would sanction a fraud, promote injus-
tice, or lead to an evasion of legal obligations.” 318
NLRB at 732. As the White Oak Coal Board ob-
served, this “showing of inequity . . . must flow from
misuse of the corporate form” and the “individuals
charged personally with corporate liability must be
found to have participated in the fraud, injustice, or
inequity that is found.” Id. at 735. White Oak Coal’s
second prong has been met, as well.
DeMartini himself committed the unfair labor prac-
tices underlying this case—the termination of striking
employees—presumably to benefit himself and the two
corporate entities that are indistinguishable from him.
Moreover, DeMartini created a situation that threat-
ens to frustrate a make-whole remedy for the victims
of his illegality. DeMartini’s actions effectively put
Flat Dog into default on its loan from Dragon. In an
attempt to frustrate the right of Flat Dog’s employees
to win union representation, DeMartini unlawfully
fired the striking employees. As the Board has found,
this step prompted them to continue the strike as an
unfair labor practice strike. Flat Dog Productions,
supra, 331 NLRB at 1573. Faced with a strike that his
illegal conduct had prolonged, DeMartini decided to
close production of “Crocodile” in Los Angeles and to
move it to Mexico—to escape the Union, as DeMartini
has admitted. The halt of production put Flat Dog into
default and led to DeMartini’s transfer of rights in the
film, a major asset, from Flat Dog to Dragon. In his
deposition, DeMartini admitted that Flat Dog—which
DeMartini created solely for the purpose of producing
“Crocodile” using his own services—has no assets. It
is not clear how, or whether, the backpay obligation in
this case will be satisfied.
Imposing liability only on the two corporations that
DeMartini completely dominated, but not on DeMar-
tini, is an obvious injustice. DeMartini’s use of the
P.C. and Flat Dog as his instrumentalities bears a di-
rect relationship not just to the underlying unfair labor
practices, but also to the potential frustration of the
backpay remedy in this case.5 Because DeMartini con-

5 This case is easily distinguishable, then, from the situation in
Greater Kansas City Roofing, 305 NLRB 720 (1991), enf. denied 2
F.3d 1047 (10th Cir. 1993), in which the Board imposed personal
FLAT DOG PRODUCTIONS, INC. 1189
trols whatever assets the P.C. and Flat Dog may have,
there can be no assurance—absent an order against De-
Martini himself—that the corporate entities will satisfy
their backpay liability. See Reliable Electric, supra, 330
NLRB at 715.
III.
Finally, entirely apart from the doctrine of piercing the
corporate veil, it would be proper to impose personal
liability on DeMartini. Assuming arguendo that Flat
Dog may be regarded as separate from DeMartini, De-
Martini himself was Flat Dog’s agent. (This is the basis
for holding Flat Dog liable for his unlawful conduct in
firing the striking employees.) The Board, in turn, has
not hesitated to hold an employer’s agents (in addition to
the employer) liable for the unfair labor practices they
have committed.6
In Carpet City Mechanical Co., 244 NLRB 1031, 1034
(1979), for example, the Board imposed backpay liability
on the principal officer of corporation, observing that
“even if [the officer] did not own any stock of the corpo-
ration[,] he was subject to no apparent control by anyone
else with respect to the commission of unfair labor prac-
tices.” Following this approach—which does not impli-
cate corporate-veil-piercing considerations at all—would
clearly lead to holding DeMartini liable. He, too, was
“subject to no apparent control by anyone else” when he
committed the unfair labor practices involved here.7

liability on the owner of a successor company for the predecessor com-
pany’s unfair labor practices, which had been found earlier. Although
she was an investor in the predecessor, the new owner played no role in
its misconduct and was unaware of the Board’s order. There was no
causal relationship, then, between the owner’s failure to observe corpo-
rate formalities with respect to the successor company and any injustice
or evasion of legal obligations. In White Oak Coal, the Board adopted
the test articulated by the Tenth Circuit in denying enforcement to the
Board’s order in Greater Kansas City Roofing. 318 NLRB at 734.
6 See Richmond Convalescent Hospital, 313 NLRB 1247, 1261
(1994). Sec. 2(2) of the Act provides that the “term ‘employer’ in-
cludes any person acting as an agent of an employer, directly or indi-
rectly.” 29 U.S.C. § 152(2).
7 The majority argues that the doctrine of piercing the corporate veil,
as articulated in White Oak Coal and its progeny, represents the exclu-
sive means of imposing liability on an actor like DeMartini. That view
is mistaken. Where individual liability is directly predicated on the
individual’s commission of unfair labor practices—and not on his own-
ership of stock in a corporation that is otherwise liable—veil-piercing is
not involved. Joan E. Baker, The Incredible Martin Arsham Case, 21
U. Toledo L. Rev. 371, 415 (1990). Such an approach is regularly
followed by Federal courts to impose personal liability on corporate
officials for violations of Federal law. See, e.g., U.S. v. Northeastern
Pharamaceutical Co., 810 F.2d 726, 744 (8th Cir. 1986); Donsco, Inc.
v. Casper Corp., 587 F.2d 602, 606 (3d Cir. 1978). See generally I
Fletcher Cyclopedia of the Law of Corporations, Sec. 33 (2006). AAA
Fire Sprinkler, Inc. 322 NLRB 69 (1996), enfd. in part and remanded,
144 F.3d 685 (10th Cir. 1998), cited by the majority, is not to the con-
trary. As did White Oak Coal, that decision addressed the standard for
piercing the corporate veil, not for imposing liability on other grounds.
IV.
Putting aside the question of whether corporate law
somehow trumps labor law,8 even traditional veil-
piercing principles do not compel the result reached
here—despite the majority’s claim that my position
“run[s] afoul of fundamental corporate law.” We
should not compound the weakness of the Act’s reme-
dies by placing artificial obstacles in their way, as the
majority does today and as it did in a recent veil-
piercing case, A. J. Mechanical, Inc., 345 NLRB 295
(2005). The majority insists that it is “mindful of the
weighty interest in making the discriminatees whole
for the losses they suffered as a result of Respondent
Flat Dog’s unfair labor practices.” But the majority
seems blind to the fact that those unfair labor practices
were committed by, and for, the very person that its
holding shields. In such circumstances, the corporate
entity is entitled to just as much respect as it deserves:
none at all.
Brian Gee, Esq., for the General Counsel.
Barbara Fitzgerald and Vincent Floyd, Attys., for Respon-
dent, Flat Dog Productions, Inc. (Seyfarth Shaw), of Los
Angeles, California.
Donald A. Barton, Atty., for Respondent, Frank T. DeMar-
tini, P.C., of Los Angeles, California.
Frank t. DeMartini, Atty., pro per, of Los Angeles, Califor-
nia.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. On August
31, 2000, the Board issued its Decision and Order in Flat
Dog Productions, Inc., 331 NLRB 1571 (the Board’s Order),
directing, inter alia, a remedial order against Flat Dog Pro-
ductions, Inc. (Respondent Flat Dog)1 to make whole all
discriminatees who engaged in an economic strike on and
around August 17, 1999, with interest, for any loss of earn-
ings and benefits suffered as a result of the discrimination
against them. On June 11, 2002, the United States Court of

Neither case mentions the unfair-labor-practice liability of agents
under Sec. 2(2) of the Act.
8 See generally Wilson McLeod, Shareholders’ Liability and
Workers’ Rights: Piercing the Corporate Veil under Federal Labor
Law, 9 Hofstra Labor L. J. 115, 117 (1991) (arguing that “courts and
agencies have usually been reluctant to treat labor law questions
involving the corporate entity as problems that differ from corporate
law disputes, and they have consistently failed to consider whether
the rationales of corporate law make intellectual or policy sense in
the labor context”).
1 At the supplemental hearing, counsel for Respondent Flat Dog
stated the company’s accurate name is Flat Dog Corporation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
Appeals for the District of Columbia entered its judgment en-
forcing the Board’s Order in its entirety.2
Respondent Flat Dog having failed and refused to pay back-
pay to the discriminatees in accordance with the Board’s Order,
and a controversy having arisen over the amount of backpay
due under the terms of the Board’s Order, on May 22, 2003, the
Regional Director for Region 31 issued an amended compli-
ance specification and notice of hearing and thereafter a second
amended compliance specification (compliance specification).
The compliance specification added Frank T. DeMartini, P.C,
(Respondent P.C.), Frank T. DeMartini, individually (Respon-
dent DeMartini or DeMartini), and Dragon Productions A.V.V.
(Dragon) as Respondents. The compliance specification further
alleged that Respondent Flat Dog and Respondent P.C. are
affiliated business enterprises and constitute single employers
and alter ego corporations. The compliance specification fur-
ther alleges that Respondent DeMartini, Respondent Flat Dog,
and Respondent P.C. (collectively Respondents) share such a
unity of interests as to obviate adherence to corporate forms
and that Respondent DeMartini is personally liable for the re-
medial obligations of Respondents Flat Dog and P.C. At the
hearing, counsel for the General Counsel withdrew all allega-
tions relating to Dragon (compliance specification par. 5)3 and
made certain changes in the appendices to the compliance
specification.4
In their answers, Respondents deny that Respondent Flat
Dog and Respondent P.C. are affiliated business enterprises,
constitute a single employer under the National Labor Relations
Act (the Act), constitute alter ego corporations under the Act,
collectively satisfy the Board’s jurisdictional standards, and are
employers within the meaning of the Act. Respondents also
deny that Respondents held such a unity of interest and so
lacked respect for the separate corporate identities as to obviate
adherence to the corporate forms of Respondents Flat Dog and
P.C. Respondents further deny Respondent DeMartini is per-
sonally liable for the remedial obligations of Respondents Flat
Dog and P.C. Respondents affirmatively defend on grounds
that the Board lacks subject matter and personal jurisdiction
over Respondent P.C. and Respondent DeMartini, that the stat-
ute of limitations bars litigation against Respondent P.C. and
Respondent DeMartini, that the doctrine of unclean hands ap-
plies, that Respondents have not been afforded due process, that
certain alleged discriminatees were not expected to work on or
after August 17, 1999,5 and therefore are not entitled to back-
pay, and that discriminatees failed to mitigate damages.6

2 NLRB v. Flat Dog Productions, 34 Fed. Appx. 548 (9th Cir. 2002)
(not selected for publication in the Federal Reporter, No. 01-70346).
3 Counsel for the General Counsel represented that the withdrawal of
allegations was based on the Region’s inability to effect service of
process on Dragon, a Dutch Antilles’ corporation.
4 Counsel for the General Counsel presented updated revisions to the
backpay calculations of the compliance specification at the hearing.
5 All dates herein are in 1999, unless otherwise specified.
6 I granted counsel for the General Counsel’s motion to strike Re-
spondents’ answers insofar as they denied or attempted to bring into
issue the unlawfulness of the striker discharges in Flat Dog, Id. I have
addressed herein only those of Respondents’ arguments for which
evidence was presented.
Hearing was held in Los Angeles, California, on Septem-
ber 22 and 23, 2003, at which all parties appeared.7
On the entire record and after considering the briefs filed
by all parties,8 I make the following
FINDINGS AND CONCLUSIONS
I. THE BOARD’S ORDER
The Board in its unfair labor practice decision herein or-
dered, in pertinent part, as follows:
Respondent, Flat Dog Productions, Inc., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns, shall . . .
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
. . . .
(a) Make whole its employees who engaged in an
economic strike on August 17, 1999, for any and all
losses incurred as a result of Respondent’s unlawful
discharge of them, with interest. . . .9
(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the employ-
ees in writing that this has been done and that the dis-
charges will not be used against them in any way.
II. THE ISSUES
A. Liability
1. The charged entities
At all relevant times, Respondent DeMartini practiced law
within the corporate structure of Respondent P.C., which
entity was located at 3765 Motor Avenue, Room 710, Los
Angeles, California (the Motor Avenue address). At all rele-
vant times, Respondent DeMartini has been Respondent
P.C.’s chief executive officer, corporate secretary, chief fi-
nancial officer, sole director, sole shareholder, and only em-
ployee. Sometime in 1999, Respondent P.C. entered into a

7 At the hearing, Respondents P.C. and DeMartini moved to dis-
miss allegations of the compliance specification as to them on
grounds that neither had been parties in the underlying unfair labor
practice adjudication, citing Northern Montana Healthcare Center,
178 Fed.3d 1089 (9th Cir. 1999). Inasmuch as all Respondents
herein have been served with the compliance specification, have
appeared at the hearing, and have been given the opportunity to
litigate alter ego and/or single-employer status and liability for the
underlying unfair labor practices, I deny the motion. NLRB v. Deena
Artware, Inc., 361 U.S. 398, 402 (1960); NLRB v. H. P. Townsend
Mfg. Co., 101 F.3d 292, 296 (2d Cir. 1996) (“[A] party may be
found to be an alter ego without relitigating the underlying unfair
labor practices . . . .”).
8 Respondents P.C. and DeMartini join in the arguments advanced
in Respondent Flat Dog’s brief.
9 The Board affirmed the administrative law judge’s conclusion
the “the discharged strikers are entitled to backpay from the date of
the employer’s unlawful action until the date he or she would have
lawfully been laid off. Reinstatement is not an issue in this case as
production of the movie has been completed.” Flat Dog, supra at
1573. The Board left identification of the strikers to the compliance
stage of the proceedings.
FLAT DOG PRODUCTIONS, INC. 1191
development agreement for production of a low-budget film
about crocodiles attacking college students (the Film).10
Respondent P.C. incorporated Respondent Flat Dog for the
sole purpose of producing the Film. The corporate address of
Respondent Flat Dog was the Motor Avenue address.11 At all
relevant times, Respondent DeMartini served as Respondent
Flat Dog’s chief executive officer, secretary, chief financial
officer, sole director, and designated agent. The sole share-
holder of Respondent Flat Dog has been Respondent P.C. Re-
spondent Flat Dog was originally capitalized by Respondent
P.C., which secured financing from film distributor and finan-
cial lender, Dragon, by loan agreement dated July 19 (the Loan
Agreement).12 Attorney Jason Frankel of the law firm of
Barab, Kline & Coate represented Respondent Flat Dog; that
law firm also represented Dragon. As to default/disability, the
Loan Agreement provided, in pertinent part as follows:
8. DEFAULT/DISABILITY. Upon any material breach by
[Respondent Flat Dog] of any of the terms and conditions
hereof or upon the occurrence of any Event of Default here-
under, [Dragon] shall have the right to terminate this agree-
ment and require [Respondent Flat Dog] to immediately repay
the Loan. If [Respondent Flat Dog] fails to repay the Loan
within forty-eight (48) hours of demand by [Dragon],
[Dragon] has the unfettered right to require [Respondent Flat
Dog] to transfer to [Dragon] . . . any and all rights in and to
the Screenplay and Picture . . . and any other rights that [Re-
spondent Flat Dog] may have. . . . In the event of such transfer
of rights, [Dragon], at its option, may require [Respondent
Flat Dog] to complete the Picture as specified herein. Event
of Default shall mean any of the following:
. . . .
8.2 Any time when [Respondent Flat Dog] is more
than two (2) days behind the approved shooting schedule.
. . . .
8.4 The cessation by [Respondent Flat Dog] of princi-
pal photography prior to its completion. Completion of
principal photography shall mean photography of all
scenes in the approved final shooting script.
2. The production
Filming commenced in early August. Filming progress as
charted by daily production records varied from day-to-day.
The production records show that prior to August 17, setups
ranged from 11–25 per day, while film footage ranged from
1570–8260 feet per day.

10 The Film, originally named “Flat Dog” was eventually released
under the title “Crocodile” and as of the hearing date had grossed over
$4.2 million.
11 Although DeMartini testified that Respondent Flat Dog had of-
fices separate from Respondent P.C.’s Motor Avenue address, he was
vague as to details and time. I note that letters from Dragon to Respon-
dent Flat Dog were addressed to the Motor Avenue address. I conclude
the Motor Avenue address was a communal address for both corpora-
tions and, contrary to DeMartini’s testimony, that books and records for
both corporations were maintained at the Motor Avenue location.
12 Respondent P.C. currently holds a promissory note from Respon-
dent Flat Dog, having loaned Respondent Flat Dog a sum under
$10,000 in the last year.
As found in the underlying decision, on Tuesday, August
17, certain of Respondent Flat Dog’s employees declined to
cross a picket line established by International Alliance of
Theatrical Stage Employees, Moving Picture Technicians,
Artists and Allied Crafts of the United States and Canada,
AFL–CIO, CLC (the Union), and Respondent Flat Dog ter-
minated them.13
By letter dated August 19 and addressed to “All employ-
ees and Former Employees,” DeMartini wrote, in pertinent
part, as follows:
. . . all of the former employees of this corporation signed a
written employment agreement laying out their obligations
to the corporation. An unannounced wildcat strike without
formal union representation clearly breaches that written
employment agreement and is clear legal justification for
discharge.
. . . .
. . . This movie is being funded by a single person from the
middle east that some of you know and consider to be a
friend. . . .14
. . . the economics of low budget film making make it im-
possible to produce a low budget movie in California if we
are forced to pay union rates and pension, health, and wel-
fare for movies under two million dollars. . . .The logical
result of this is that movie producers have fled in droves to
Canada, Australia [etc.]. . . . Against the trend however, we
decided to make our movies in California, not in Canada,
and to provide employment for local crews rather than Ca-
nadian crews. The IATSE’s response to this is to organize
a wildcat strike, something we find impossible to under-
stand.
. . . we will not cave in to the gangster tactics being em-
ployed by IATSE. We have a full crew of honest and up-
standing people who want to work on this film at the pre-
sent time. . . .
Early in the production of the Film, production fell behind
one day. As of August 16, Respondent Flat Dog was close to
catching up on production (Although a 1-day delay was still
noted on the production records.). On and after the strike
commenced, the daily production records show the following
information:
Date Number of setups15 Number of film feet shot
August 17 10 N/A

13 Production notes state, “Upon arrival to set, production was
confronted by I.A.T.S.E. organizers & picketers causing most of the
crew…not to report to work. Producer Frank DeMartini had no
choice but to fire those individuals for breaching their contracts.”
14 The individual DeMartini referred to was Edward Chamician
(Chamician), later listed as an executive producer of the Film and
present on the Mexico set at least 2 of the 3 production weeks. De-
Martini admitted at the hearing that he did not know to what extent,
if any, Chamician was involved in the Film’s funding.
15 Every time the camera is moved counts as a setup.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
August 18 4 272016
August 19 11 240017
August 20 0 018
On August 20, after failing to reach agreement with the Un-
ion, Respondent Flat Dog closed the production in California.
DeMartini, who had had almost hourly conversations about the
situation with Dragon’s counsel, who was also counsel for Re-
spondent Flat Dog, notified him the production was shut down
on August 20. On the same day, Dragon served notice on Re-
spondent Flat Dog that it was in default of the Loan Agreement.
A letter from Dragon’s attorney (Demand Letter) dated August
20 was hand-delivered to Respondent Flat Dog and reads, in
pertinent part:
Acting on behalf of our client, [Dragon], you are
hereby notified that [Respondent Flat Dog] is in default
under paragraph 8.4 of [the Loan Agreement] . . . in that
[Respondent Flat Dog] has ceased principal photography
of the Picture before completion.
Pursuant to paragraph 8 of the Agreement, [Dragon] is
terminating the Agreement and hereby demands that [Re-
spondent Flat Dog] repay the loan . . . within forty-eight
(48) hours. [Respondent Flat Dog’s] failure to repay the
Loan may result in its loss of all rights in and to the Pic-
ture.
According to DeMartini, he was sure he had discussions with
representatives of Dragon about the Demand Letter and as there
was “no way we could complete the picture because of Union
activity, we decided to turn the picture over to Dragon.” De-
Martini met with himself as the Flat Dog board of directors,
discussed the matter with himself, and issued a “Consent.”19 In
exchange for a settlement of the production loan, Respondent
Flat Dog ceded all rights in the Film to Dragon by signing a
document entitled “Assignment of All Rights,” on August 24.20
Principal photography resumed on September 6 in Mexico,
and the Film was admittedly finished there so that IATSE could
not follow the production. Although neither Respondent P.C.
nor Respondent Flat Dog had any obligation to complete the
Film after having turned over all rights to Dragon, Respondent
Flat Dog provided production services for the Film, paying bills
and otherwise overseeing production under, according to De-
Martini, an oral agreement with Dragon. Some testimonial

16 A production note reads, “Even with skeleton replacement crew,
company managed to move along with the days’ [sic] work.”
17 A production note reads, “*Note: revised total shooting days. .
Est. finish date is Tuesday August 31, 1999.” Prior scheduled finish
date had been August 28.
18 A production note for August 20 reads, “@ 1:45 pm company of-
ficially shut down indefinitely by I.A.T.S.E.’s pressure & threatening
actions to director of photography, assoc. producer, & other crew
members. Company was forced to leave the country. Nothing was shot
today.”
19 Respondent did not produce any document to reflect the “con-
sent.”
20 The only reference to any of Respondent Flat Dog’s actions in the
minutes of its annual corporate meeting held the following June 2000,
at which only DeMartini was present, was a statement that all of the
preceding year’s acts were ratified and accepted by the corporation.
inconsistency exists in this regard. DeMartini testified that
neither Respondent P.C. nor Respondent Flat Dog had any
legal responsibility to complete the film but that he was so
obligated pursuant to (unexplicated) instructions by counsel
for Dragon. DeMartini continued as producer of the Film in
Mexico in his individual capacity and also as an officer of
Respondent Flat Dog, which served as a contractor to
Dragon upon the Film’s removal to Mexico. Again, some
inconsistency exists in the testimony concerning which entity
contracted for and which entity provided production services.
DeMartini testified, “Pursuant to the agreement where the
P.C. provided services for Flat Dog to produce the movie,
under a loan out for me, it paid the salary to . . . me . . . in the
amount of I think it was $35,000.” DeMartini explained that
he had an exclusive employment agreement with Respondent
P.C., that in order for Respondent Flat Dog to obtain his
individual services to produce the Film, Respondent Flat Dog
had to contract with Respondent P.C. for his services. De-
Martini, as the only officer of Respondent Flat Dog approved
the contract offer. DeMartini, as the officer of Respondent
P.C. approved the loan-out. DeMartini, as Respondent De-
Martini, agreed to perform the services. DeMartini per-
formed the same services in Mexico as he had in Los Ange-
les. Respondents presented no documentation of any of
these agreements.
Because of inconsistencies in DeMartini’s testimony as set
forth herein and his resistant manner in testifying, I decline
to give weight to any of his testimony unsupported by other
indicia of trustworthiness. Accordingly, I conclude that
DeMartini, as an individual and/or as the officer of Respon-
dent Flat Dog, oversaw the entire film production in Mexico
including the wrap.21 Thereafter, Respondent Flat Dog, un-
der the auspices of its sole officer, DeMartini, oversaw all
postproduction transactions in the United States; it produced
no other film.
3. Discussion
Although Respondents argue that Respondent Flat Dog
and Respondent P.C. have maintained their separate corpo-
rate entities, asserting that they have separate board meet-
ings, offices, telephone numbers, and their books and records
are kept at separate locations, I cannot accept those asser-
tions. The evidence as a whole supports a conclusion that
Respondents Flat Dog and P.C. are the alter egos of each
other and a single employer with regard to the business en-
terprise that engendered the underlying unfair labor prac-
tices, i.e., production of the Film. Respondent Flat Dog and
Respondent P.C. shared office space and had the same offi-
cer and director, DeMartini. DeMartini exercised complete
authority over both corporations and controlled all shares.
Any corporate board meetings regarding the Film were nei-
ther formal nor documented, and there is nothing to show
arms length decisionmaking. Indeed, it is unlikely such evi-

21 “Wrap” is the term used for postfilming work of returning
equipment, breaking down sets, and finishing everything up. As
explained below, I cannot accept DeMartini’s testimony that all
employees employed on the production in Mexico continued work-
ing until the wrap was completed, that is, until everything was done.
FLAT DOG PRODUCTIONS, INC. 1193
dence could exist, as neither entity has a distinct or viable cor-
porate identity separate from Respondent DeMartini.
As to Respondent DeMartini’s liability for the remedial obli-
gations of Respondents Flat Dog and P.C., the Board has found
the corporate veil may be pierced when:
(1) there is such unity of interest, and lack of respect given to
the separate identity of the corporation by its shareholders,
that the personalities and assets of the corporation and the in-
dividuals are indistinct and (2) adherence to the corporate
form would sanction a fraud, promote injustice, or lead to an
evasion of legal obligations. [White Oak Coal, 318 NLRB
732, 735 (1995).]22
Both factors are present here. First, neither of Respondents
Flat Dog or P.C. has assets that are not easily manipulated by
Respondent DeMartini. Exercising complete and sole control
over all Respondents, Respondent DeMartini moved among his
individual and corporate officer roles without regard to corpo-
rate distinctions or ceremony. His activities so blurred the lines
separating Respondents that even he had difficulty relating
within which role he handled completion of the Film in Mex-
ico. It is clear that DeMartini finished the Film in Mexico as an
amalgam of all three Respondents with DeMartini independ-
ently possessing production control over the Film in Mexico
just as he had in Los Angeles.23 Second, eMartini’s motive in
shifting responsibility for the Film to Dragon (at least superfi-
cially) and moving its production to Mexico was to avoid the
consequences of its employees’ protected activities.24 There is
no reason to suppose the unlawful motives that resulted in em-
ployee discharges have altered. With DeMartini firmly and
solely in control of all Respondents’ actions, financial affairs,
and business dealings, adherence to the corporate form would
“sanction a fraud, promote injustice, or lead to an evasion of
legal obligations.” Id.
Accordingly, I find it appropriate to pierce the corporate
veils herein, to find Respondents Flat Dog and P.C. to be alter
egos of each other, and to hold Respondent DeMartini person-
ally liable, jointly and severally, with Respondent Flat Dog and
Respondent P.C. for the backpay due in this case. See Reliable
Electric Co., 330 NLRB 714 (2000).
B. Discriminatees
1. Alleged pool of discriminatees
The underlying decision is silent as to the names of those in-
dividuals who were employed by Respondent and terminated
on August 17. The General Counsel designated 23 employees

22 The purpose of ignoring the corporate form is to satisfy liability by
reaching the personal assets of an owner or a controlling shareholder.
“. . . [the corporate] legal entity may not be disregarded except where
equitable considerations require piercing the corporate veil.” 18 Am.
Jur. 2d Corporations, Sec. 44 at 843–844 (1985).
23 DeMartini used the corporate forms of Respondent Flat Dog and
Respondent P.C., in the words of White Oak, “as a mere shell, instru-
mentality or conduit of an individual or another corporation.” 318
NLRB at 735.
24 DeMartini testified, “[T]here was no way we could complete the
picture because of union activity, so we decided to turn the picture over
to Dragon.” “We” can only mean DeMartini in his various roles.
as discriminatees. Respondent does not dispute that 11 em-
ployees who engaged in the strike on August 17 had an ex-
pectation of continued employment: Andrew Bikichky,
Kevin Boyle, Janos Csoma, Brian Davis, Jason Andrew,
Charlie Lenz, Victor Major, Matt Smith, Ron Smith II, An-
thony Tucker, and Gabrael Wilson. Respondents dispute that
the remaining 12 named discriminatees engaged in the Au-
gust 17 strike: Starr Barry, John Bratlien, Mae Brunken,
Chris Dechert, Adam Dodds, Chad Herr, Matt Jakositz, Rick
Lawrence, Alec Shepard, Alex Schmidt, David Sirianni, and
Jason Young. Further, Respondents argue that the following
employees were on-call employees (day players) without
expectation of continued employment: Starr Barry, John
Bratlien, Chad Herr, Rick Lawrence, Alex Schmidt, and Alec
Shepard. Therefore, Respondents urge, no basis exists for the
General Counsel’s assumption that these six employees
would have worked a set number of hours in the weeks fol-
lowing the strike.
Matthew S. Jakositz (Jakositz), who testified, worked as a
set dresser in the art department for the Film production. He
signed a deal memo or crew agreement (employment con-
tract) with Respondent Flat Dog, was a full-time employee,
and expected to be employed through the entire production.
His last day of work on the Film was August 16; he joined
the strike on August 17.25 On the night of August 18 or 19,
Jakositz asked Mr. DeMartini if he could have his job back.
DeMartini told him to talk to the production manager, but
had “no idea” if he did so.26
Jason Young (Young), who testified, worked for Respon-
dent Flat Dog as a set lighting technician from August 9
through 14 and August 16. He signed a deal memo with the
Company on August 9 and anticipated employment through
the end of production. Young joined the strike on August 17.
As to the following individuals, the evidence is set forth
below:
Alleged
Discriminatee
Testimony of Mr.
DeMartini
Testimony
of Jason
Young
Starr Barry Employed at some
point by Respondent
Flat Dog. Unknown
known whether he was
a striker. He worked
no more than three
Starr Barry
was on the
[picket] line.
He did not go
back in.

25 In its posthearing brief, Respondent Flat Dog inaccurately
states that Matt Jakositz testified he did not engage in the strike. His
testimony, while somewhat confused, is clear on that point; he re-
fused to cross the picket line.
26 Although DeMartini testified that offers to return to work were
made to a number of discriminatees, he did not say who had made
such offers or on behalf of what entity, and no other evidence re-
garding offers to return to work was adduced. Respondent Flat
Dog’s posthearing brief inaccurately states that Matt Jakositz con-
firmed the strikers were offered reinstatement. I find no evidence
that any valid offer to return to work was made to any discharged
employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
days on the production.
Adam Dodds Employed at some
point by Respondent
Flat Dog.27
Adam Dodds
was on the
line. He did
not go back in.
Alex Schmidt May have worked 1-2
days, total, as a day
player. Not known
whether he was a
striker.
Alex Schmidt
was on the
line. He did
not go back in.
John Bratlien Never heard of before
the compliance hearing.
John Bratlien
was on the
line. He did
not go back
in.28

27 No backpay is sought for Adam Dodds.
28 The acting compliance officer testified that Bratlien informed him
that he had signed a deal memo with Respondent Flat Dog as a full-
time electrician. I do not base my findings as to John Bratlien on this
hearsay evidence.
Chad Herr Never heard of before
the compliance hearing.
Chad Herr is a
grip. He was
on the line; he
did not go
back in.29
Rick
Lawrence
Never heard of before
the compliance hearing.
Did not recall
Rick Law-
rence.30
Alec Shepard May have worked one
day as a replacement
during August. Not
employed on August
16. Do not know
whether he was a
striker.
Did not recall
Alec
Shepard.31
David
Sirianni
May have worked one
day as a replacement
during August. Not
employed on August
16. Not known
whether he was a
striker. It is possible he
quit the production at
some point.
Did not recall
David Sir-
ianni.32
Chris Dechert May have been em-
ployed during August
and on August 17, and
may have been among
the strikers.
Thought he
was on the
line.33
Jason Young Do not recall his work-
ing more than seven
days on the production.
Do not recall ever sign-
ing off on a deal memo
for him.34
Set forth
above.

29 The parties stipulated that Chad Herr’s average weekly hours
worked was 17.15.
30 The acting compliance officer testified that Lawrence informed
him he had signed a deal memo with Respondent Flat Dog as a full-
time electrician. I do not base my findings as to Lawrence on this
hearsay evidence.
31 The parties stipulated that Alec Shepard’s average weekly
hours worked was 15.25.
32 The parties stipulated that David Sirianni’s average weekly
hours worked was 24.43.
33 The production report for August 17 shows Chris Dechert was
scheduled but did not report for work.
34 As indicated above, I have accepted Young’s testimony.
FLAT DOG PRODUCTIONS, INC. 1195
Mae Brunken Employed during Au-
gust as set decorator
and a supervisor with
authority to hire and
fire. Unknown whether
she was a striker.35
Did not recall
Mae Brunken.
2. Discussion
Respondent Flat Dog argues the General Counsel has not
met his burden of establishing the identity of the discriminatees
who are the subject of the order in the underlying unfair labor
practice decision. While discriminatees were not identified in
the underlying unfair labor practice decision, it is clear the en-
tire crew was fired when “Mr. DeMartini announced at the
picket line, ‘The Company does not recognize that the crew is
represented by the Union. The crew is in violation of their
written contracts and they’re all fired.’”36
The Board has stated,
[R]emedial questions implicate two statutory principles that
must be applied. The first principle is that the remedy should
restore the status that would have obtained if Respondent had
committed no unfair labor practice. The second principle is
that any uncertainty and ambiguity regarding the status that
would have obtained without the unlawful conduct must be
resolved against the Respondent, the wrongdoer who is re-
sponsible for the existence of the uncertainty and ambiguity
[Citations omitted.]. [Campbell Electric Co., 340 NLRB 825,
826 (2003).]
Any uncertainties in the identities of the strikers are created,
in large part, by DeMartini’s wholesale discharge of all striking
employees on August 17 and the paucity of employment re-
cords, especially the absence employment contracts, the latter
of which were in Respondent Flat Dog’s control. In these cir-
cumstances, it is particularly appropriate to resolve uncertain-
ties against Respondents. With that in mind, if the evidence
establishes that certain employees worked in the week prior to
the strike and joined the strike, I have concluded they were
encompassed by Respondent’s wholesale striker discharge and
are discriminatees. Further, although evidence may not directly
establish an employee’s presence on the picket line, if an em-
ployee worked during the days immediately prior to the strike
but did not work on August 17, I have drawn the inference that
such an employee was a striker and unlawfully discharged. As
to alleged discriminatees, Alec Shepard and David Sirianni, no
probative evidence showed them to have been employed in the

35 Respondents carry the burden of proving supervisory status. Ken-
tucky River Community Care, Inc., 532 U.S. 706 (2001); Dean &
Deluca New York, Inc., 338 NLRB 1046, 1047 (2003). Any lack of
evidence is construed against the party asserting supervisory authority.
Kentucky River Community Care, supra. DeMartini’s testimony re-
garding Mae Brunken’s authority was conclusionary and unsupported.
As I have not found him to be a credible witness, I conclude Respon-
dents have not met their burden of proving Mae Brunken’s supervisory
status.
36 Flat Dog Productions, Inc., supra at 1574.
days immediately preceding the strike or to have been strik-
ers. Accordingly, I find only the following employees to be
discriminatees:
Admitted by Respondents: Jason Andrew, Andrew Biki-
chky, Kevin Boyle, Janos Csoma, Brian Davis, Charlie Lenz,
Victor Major, Matt Smith, Ron Smith II, Anthony Tucker,
and Gabriel Wilson.
Worked in Days Preceding Strike but not on August 17:
John Bratlien (13.5 h.),37 Mae Brunken ($166.67), Chris
Dechert (1305 h.), Matt Jakositz (13.05 h.),38 Rick Lawrence
(13.00 h.), and Jason Young (13.50 h.).39
Established as Strikers through Testimony of Jason
Young: Starr Barry, Adam Dodds, Chad Herr, and Alex
Schmidt.
C. Backpay
1. The General Counsel’s calculations
For all named discriminatees, in conformity to the under-
lying decision, the General Counsel determined that the
backpay period was fully contained within the third calendar
quarter of 1999. He selected August 17 as the start date of
the backpay period and suspended the backpay period be-
tween August 20, the last day of filming in Los Angeles, and
September 6, when production recommenced in Mexico. For
backpay termination dates, the General Counsel set Septem-
ber 27 for the grip, electrical, and property departments and
September 28 for the art department, which took into account
an additional 2 and 3 days, respectively, past the close of
principal photography (September 25) to wrap the produc-
tion. This resulted in a conclusion that employees in the
grip, electrical, and property departments would have worked
23 days but for their unlawful discharges, while employees
in the art department would have worked 24 days, and all
others would have worked 21 days. I resolve the uncertainty
in when the wrap would have finished against Respondents.
DeMartini testified that all work was completed the night of
September 25. As noted above, I do not find DeMartini to be
generally credible. Moreover, the production records of
September 25 make DeMartini’s testimony implausible. The
production report of Saturday, September 25, shows the fol-
lowing: at least six sets were scheduled, six of the eight char-
acter cast worked until 7 p.m., as did the production director,
the director of photography, the key makeup and hair person.
Special effects and art department employees worked until
7:30 p.m. Evidence establishes that those individuals would
not have been involved in any wrap. Accordingly, it is rea-
sonable to infer that actual film production continued until at
least 7 p.m. on September 25 and that the wrap was com-
pleted in the days following. Respondents having proffered
no credible evidence as to when that occurred, I accept the
General Counsel’s estimation.

37 Jason Young’s credible testimony shows John Bratlien was a
striker.
38 Matt Jakositz’ credible testimony also confirmed his employ-
ment and striker status.
39 Jason Young’s credible testimony also confirmed his employ-
ment and striker status
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1196
In determining the number of hours discriminatees would
have worked, the General Counsel used comparable employee
analyses or averaged prediscrimination hours worked. In calcu-
lating the gross backpay, the General Counsel utilized the aver-
age earnings formula, multiplying hourly rate of pay by hours
per week by weeks per calendar quarter, plus hourly rate times
overtime hours per week times 1.5.40 Respondent Flat Dog
argues that the use of comparable hours from the Mexico part
of the production is not reasonable as employees in Mexico
worked longer hours and were governed by different govern-
mental overtime regulations than employees in Los Angeles
would have been. Since, as stated in Campbell, supra, the first
principle of remedial questions is that the remedy should re-
store the status that would have obtained if Respondent Flat
Dog had committed no unfair labor practice, what happened in
Mexico is significant only as it sets a pattern, in terms of hours
worked, for what would have happened had the unfair labor
practices not occurred.
Respondents argue that any backpay should end as of the
time Respondent Flat Dog ceased production of the Film and
transferred its rights in the Film to Dragon, as both actions were
lawful pursuant to Textile Workers v. Darlington Mfg. Co., 380
U.S. 263 (1965). It is true that a total cessation of business is
not an unfair labor practice even if motivated by antiunion con-
siderations. Id. Even a partial closure is unlawful only if the
purpose is to chill union activity in an employer’s remaining
operations, Id.
In Plaza Properties of Michigan, Inc., 340 NLRB 983, 989
(2003), the Board recognized a number of exceptions to the
Darlington principles:
A closure may violate the Act if it resulted from the unlawful
subcontracting of unit work [citations omitted]. The same is
true if the closure is only temporary rather than permanent.
See Bruce Duncan Co., Inc. v. NLRB, 590 F.2d 1304, 1307
(4th Cir. 1979) (Court’s reasoning in Darlington is only ap-
plicable when the closing of the plant is an actual closing and
not a temporary suspension of operations); NLRB v. Southern
Plasma Corp., 626 F.2d 1287, 1292 (5th Cir. 1980) (Darling-
ton does not permit an employer to close his business tempo-
rarily and then reopen it in order to oust the union); see also
Gallup, Inc., 334 NLRB 366 (2001), aff’d. [mem. 62 Fed.
Appx. 577] (5th Cir. 2003).

40 As to discriminatee Mae Brunken, the General Counsel used her
daily rate in calculating backpay.
Here, Respondent Flat Dog did not actually close its pro-
duction of the Film, it moved its production to Mexico.
While Respondent Flat Dog purportedly transferred rights to
the Film, Respondents continued to exercise complete con-
trol over the production upon its relocation to Mexico. In
those circumstances, the backpay obligation accruing from
Respondent Flat Dog’s unfair labor practices continued un-
abated.
2. Discussion
The general principles in determining backpay, as summa-
rized in many Board decisions including Performance Fric-
tion Corp., 335 NLRB 1117 (2001), are well established:
The General Counsel’s must show the gross backpay due
each claimant, i.e., the amount the employees would have
received but for the employer’s illegal conduct. Any back-
pay computation formula that closely approximates the
amount due, if it is not unreasonable or arbitrary in the cir-
cumstances, is acceptable. Id.; Reliable Electric Co., 330
NLRB 714, 723 (2000) (citations omitted). The comparable
or representative approach to determining backpay is an
accepted methodology. Performance Friction Corp., supra
at 1117. The differences between Mexico and California
employment conditions do not alter the reasonableness of the
comparability method, particularly as uncertainties or ambi-
guities are to be resolved in favor of the discriminatee. The
burden is on a respondent to establish any affirmative de-
fenses that would mitigate its liability, including the amount
of interim earnings to be deducted from the backpay amount
due, and any claim of willful loss of earnings. Here, the
General Counsel has met his burden of proving gross back-
pay, and Respondent has not met its burden of proving any
affirmative defenses.
I find the General Counsel’s calculations to be fair, rea-
sonable, and accurate approximations of the earnings the
discriminatees would have enjoyed had they not been unlaw-
fully terminated. See Weldun International, Inc., 340 NLRB
666 (2003).
I recommend that Respondents Flat Dog, P.C., and De-
Martini be ordered to pay the following amounts to the em-
ployees listed below plus interest accrued to the date of pay-
ment.
[Recommended Order omitted from publication.]