Merchants Iron & Steel Corp.

National Labor Relations Board - Board Decisions

May 30, 1996

321 N.L.R.B. 360 (N.L.R.B. 1996)

360
321 NLRB No. 47
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge found that Merchants Iron and Steel Corp. (Merchants)
and Merchants I & S Corp. were a single employer and that their
employees constituted one unit. The judge pointed out that the cri-
teria the Board normally looks to in deciding whether nominally sep-
arate businesses may be regarded as a single employer are common
management, common ownership, centralized control of labor rela-
tions, and interrelation of operations. The judge also found that the
two companies were alter egos. We note that, with respect to alter
ego status, the relevant criteria include substantially identical man-
agement, business purposes, operation, equipment, customers, super-
vision, and ownership. In our view, both sets of criteria are met here.
We need not address the issue of whether the ‘‘alter ego’’ concept
is a subset of the ‘‘single employer’’ concept, or the issue of wheth-
er one analysis is more appropriate than another in circumstances
similar to those present here.
2 We shall also modify the judge’s recommended Order in accord-
ance with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
3 Member Cohen notes that, if it is found that the contract repudi-
ated by the Respondent included an exclusive hiring hall provision,
his views as to the remedial implications of such a finding may dif-
fer from those of his colleagues. See J. E. Brown Electric, 315
NLRB 620, 624 (1994).
Merchants Iron and Steel Corp., and its alter egos
MIK Realty & Specialty Corp. and Merchants
I & S Corp., a Single Employer and Iron
Workers District Council of Western New
York & Vicinity Funds. Case 3–CA–17413
May 30, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 31, 1995, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent and the Charging Party each filed exceptions.
The Charging Party and the General Counsel each filed
an answering brief 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
We believe that the judge correctly found that the
Respondent violated the Act by, among other things,
failing and refusing to apply to its employees the terms
and conditions of the collective-bargaining agreement
between Merchants and the Union. These terms and
conditions included provisions for union security and
dues checkoff. The Union contends that, under the
contract, there is an exclusive referral system by which
the Union supplied the Respondent’s needs for labor,
and that the Respondent’s failure to adhere to this sys-
tem resulted in the Union’s loss of initiation fees and
dues. The Union argues that the remedy should be
broadened to require the Respondent to make the
Union whole for those lost fees and dues. The Union
also maintains that the Respondent should be required
to make whole would-be union-referred workers who
were deprived of work opportunities by virtue of the
Respondent’s alleged failure to adhere to the exclusive
referral system. We leave to compliance the determina-
tion as to whether an exclusive referral system existed
under the contract. We find merit in the Union’s reme-
dial contention regarding fees and dues at least to the
extent that it applies to unit employees who had exe-
cuted a valid checkoff. We shall modify the judge’s
recommended Order and the notice to provide for this
additional relief.2 We also note that, pursuant to the
judge’s recommended order, the Respondent will be
obligated to restore any hiring hall provision which
may have existed under the applicable bargaining
agreement. In that case, appropriate relief will be pro-
vided to those affected by the Respondent’s repudi-
ation of that provision.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Mer-
chants Iron and Steel Corp. and Merchants I & S
Corp., Mendon and Rochester, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Add the following paragraph 2(d) and reletter the
following paragraphs.
‘‘(d) Make whole the Union for lost initiation fees
and dues, with respect to those unit employees who
executed valid checkoff agreements, attributable to the
Respondent’s failure to apply to those employees the
terms and conditions of its collective-bargaining agree-
ment with the Union.’’
2. Replace relettered paragraphs 2(g), (h), and (i)
with the following.
‘‘(g) Preserve and, within 14 days of a request,
make available to the Board or its agents for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
‘‘(h) Within 14 days after service by the Region,
post at its facilities in Rochester and Mendon, New
York, copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and be maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
361MERCHANTS IRON & STEEL CORP.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since October
19, 1992.
‘‘(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Local 33, International Association of Bridge, Struc-
tural and Ornamental Ironworkers as the exclusive rep-
resentative of our employees in the appropriate unit
with respect to wages, hours, working conditions, or
other terms and conditions of employment of the em-
ployees, and refuse to honor the collective-bargaining
agreement applicable to those employees.
WE WILL NOT refuse to bargain with the Union by
refusing to furnish it with relevant information re-
quested by it.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL comply with the terms and conditions of
the collective-bargaining agreement between the Asso-
ciation and the Union to which we are bound, retro-
actively, and prospectively until such time as proper
and timely notice of cancellation is given in the man-
ner set forth in that agreement.
WE WILL make whole the unit employees by trans-
mitting the contributions owed to the Union’s welfare
and pension funds and by reimbursing unit employees
for any medical, dental, or other expenses ensuing
from our unlawful failure to make such contributions.
WE WILL make whole the unit employees for any
wages lost as a result of our failure to comply with the
terms of the collective-bargaining agreement, with in-
terest.
WE WILL make whole the Union for lost initiation
fees and dues, with respect to those unit employees
who executed valid checkoff agreements, attributable
to our failure to apply to those employees the terms
and conditions of our collective-bargaining agreement
with the Union.
WE WILL, on request, recognize and bargain with the
Union as the exclusive representative of the employees
in the following appropriate unit, concerning the terms
and conditions of employment:
All employees within the Union’s territorial juris-
diction who are engaged in the work described at
Article 1 (‘‘Craft Jurisdiction’’) Section (d), para-
graph D of the collective-bargaining agreement
between the Union and the Association, effective
May 1, 1992 to April 30, 1995.
WE WILL, on request, furnish the Union with the in-
formation it requested on July 9, 1992.
MERCHANTS IRON AND STEEL CORP.
AND MERCHANTS I & S CORP.
Michael J. Israel, Esq., for the General Counsel.
Robert Coady, Esq., Mendon, New York, for Respondent
Merchants I & S Corp.
James R. LaVaute, Esq. (Blitman & King), of Syracuse, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Rochester, New York, on July 12,
1993, and June 12, 1995. On a charge filed on October 19,
1992, a complaint was issued on December 22, 1992, alleg-
ing that Merchants Iron & Steel Corp. (Merchants), MIK Re-
alty & Specialty Corp. (MIK) and Merchants I & S Corp.
(I & S) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). The complaint specifically al-
leged that Respondent Merchants failed to furnish Local 33,
International Association of Bridge, Structural and Ornamen-
tal Ironworkers (the Union) with certain information re-
quested by it and failed to comply with the terms of the col-
lective-bargaining agreement effective from May 1, 1992,
until April 30, 1995. Respondent Merchants filed an answer
denying the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel, the Charging Party, and Respondent I & S on Au-
gust 11, 1995.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Rebar placing involves the placement of round steel bars of var-
ious sizes in wood forms. Concrete is then poured into the forms
and around the bars, which serve to strengthen the concrete.
FINDINGS OF FACT
I. JURISDICTION
Respondents Merchants and I & S, New York corpora-
tions, with offices and places of business in Rochester and
Mendon, New York, respectively, have been engaged in the
business of rebar placing1 and steel erection. It has been ad-
mitted, and I find, that Respondent I & S is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. In addition, I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The complaint alleges that Respondents MIK and I & S
are alter egos of, and single employers with, Respondent
Merchants and that Respondents violated Section 8(a)(1) and
(5) of the Act by repudiating a collective-bargaining agree-
ment between Merchants and the Union. The complaint fur-
ther alleges that Respondents violated Section 8(a)(1) and (5)
of the Act by refusing to provide the Union with information
requested by it concerning the relationship between Respond-
ents.
In connection with the July 12, 1993 hearing in this case,
on July 2, 1993, the General Counsel served subpoenas
duces tecum on Merchants and I & S. The Union also
served subpoenas duces tecum on the two companies. As of
the July 12 hearing Respondents had not complied with the
subpoenas. At that time I adjourned the hearing sine die to
give Respondents the opportunity to determine whether they
would comply with the subpoenas. Thereafter, based on Re-
spondents’ noncompliance with the subpoenas, the General
Counsel sought an order in Federal district court requiring
Respondents to obey the subpoenas. On September 26, 1994,
the United States District Court for the Western District of
New York entered an order requiring obedience by Respond-
ents to the subpoenas. The court order required Respondents
to appear before me at a time and place designated by me
and to produce the subpoenaed documents. Respondent Mer-
chants did not appear at the hearing on June 12, 1995. Rob-
ert Coady, president of Respondent I & S, appeared and
participated at the hearing.
2. Merchants
Respondent Merchants was engaged in the business of
rebar placing and steel erection in the construction industry
and had an office and place of business at 89 Genesee Park
Boulevard, Rochester, New York. Karyn Coady was the sole
owner of Merchants and its most recent president. She, on
behalf of Merchants, signed a Memorandum of Agreement
binding Merchants to a collective-bargaining agreement be-
tween the Union and the Building Trades Employers Asso-
ciation, a Division of the Builders Exchange of Rochester,
New York, Inc. (the Association) for the period May 1,
1992, to April 30, 1995. Merchants had previously been
bound to a collective-bargaining agreement between the
Union and the Association for the period May 1, 1989, to
April 30, 1992. On May 11, 1993, Merchants filed with New
York State a Certificate of Dissolution signed by Karyn
Coady as ‘‘President Director and Sole Shareholder.’’
3. I & S
Respondent I & S is also engaged in the business of rebar
placing and steel erection with an office and place of busi-
ness in Mendon, New York. In 1990 Michael Coady, brother
of Karyn and Robert, formed a corporation, MIK Realty &
Specialty Corp., for the purpose of buying and selling real
estate. On March 28, 1991, Robert Coady ‘‘President and
Sole Shareholder’’ of I & S filed a Certificate of Amend-
ment to the Certificate of Incorporation of MIK changing its
name to ‘‘Merchants I & S Corp.’’
4. Single employer and alter ego
Michael Downey, the Union’s business manager, credibly
testified that in June 1992 Robert Coady was job super-
intendent and estimator for Merchants. The Certificate of
Change filed by Merchants lists Robert M. Coady as vice
president of Merchants. Robert Coady conceded that he was
listed as vice president ‘‘as a convenience of the corporation
so that I could negotiate contracts with contractors.’’ He fur-
ther testified ‘‘I called myself vice President once in a
while’’ so that ‘‘I could negotiate a contract.’’ Gary Swan-
son, the union business agent, credibly testified that prior to
June 1992 he saw Robert working on a jobsite for Merchants
acting as foreman. Downey also credibly testified that be-
tween 1988 and 1992 Robert and Joseph Coady, the father
of Robert, Karyn, and Michael, attended meetings with the
Union representing Merchants on a yearly basis.
Joseph Massa, a former Merchants employee, credibly tes-
tified that in the spring of 1992 he became employed by
Merchants and was hired by Robert. He further credibly tes-
tified that he was given work assignments while working for
Merchants by both Joseph and Robert. Massa also credibly
testified that while working at the Rochester Psychiatric Cen-
ter jobsite, starting June 1992 the paychecks said ‘‘Merchants
I & S,’’ that Joseph Coady delivered supplies to that jobsite
and that while the paychecks were normally given to the em-
ployees by Robert Coady, once the paychecks were delivered
by Joseph Coady.
Robert W. Johnson Jr. credibly testified that in the spring
of 1991 he interviewed for a job at Merchants. He was inter-
viewed by Robert Coady who gave him his business card
which stated, Merchants Iron and Steel Corp., ‘‘Robert
Coady, Estimator.’’ He further credibly testified that in the
spring of 1992, after having worked for a different employer
he again contacted Merchants and spoke to Karyn Coady
concerning employment. He subsequently received a phone
call from Joseph Coady who told Johnson to appear for work
at the Rochester Psychiatric Center. He credibly testified that
at various times he saw Joseph Coady bringing supplies to
the Rochester Psychiatric Center jobsite and that Robert as-
signed work to him. Johnson credibly testified that in the
first few weeks of his employment at the Rochester Psy-
chiatric Center Joseph Coady ‘‘came out and read the draw-
ings for about the first-half of the day’’ and told Johnson
363MERCHANTS IRON & STEEL CORP.
2 Both the General Counsel and the Charging Party request that I
draw an adverse inference from Respondent’s failure to comply with
the subpoenas. Inasmuch as I have found ample evidence to sustain
findings of single employer and alter ego, I believe it is unnecessary
for me to draw such an inference. In this connection, the Charging
Party, in its brief, states ‘‘a similar adverse inference arises as to
each document covered by subpoenas issued to I & S which I & S
failed to produce.’’ I believe this request ‘‘sweeps too broadly’’ and
is unwarranted. See Riverdale Nursing Home, 317 NLRB 881
(1995).
‘‘what steel to put in what areas.’’ In addition, Johnson
credibly testified that while working at the Rochester Psy-
chiatric Center the first four or five paychecks bore the name
‘‘Merchants Iron and Steel’’ and ‘‘after that they were Mer-
chants I & S.’’ The record contains a copy of a check dated
July 9, 1992, to Robert Johnson in the amount of $400 with
the name on the check ‘‘Merchants Iron & Steel Corp.’’
The record shows that during 1992 and 1993 I & S per-
formed work for several customers who were also customers
of Merchants. These included Nory Construction Co.,
Lecesse Construction Co., DiMarco Construction Co., Massa,
Fastrak, and Lechase. In addition, almost all of the Mer-
chants employees worked on I & S projects. These included
Massa, Smith, LeGrett, and Potter. Massa worked on jobs si-
multaneously for I & S and Merchants.
5. Repudiation of collective-bargaining agreement and
request for information
Massa credibly testified that he was initially paid $6 an
hour on the Rochester Psychiatric Center project. The pre-
vailing wage rate was $27.28 per hour. The record contains
a list of job locations in which I & S performed work begin-
ning June 12, 1992, and ending July 23, 1993.
On July 9, 1992, the Union sent a letter to Merchants re-
questing information concerning its relationship with MIK.
On October 27, 1992, Karyn Coady responded on behalf of
Merchants listing herself as president and as ‘‘100 percent’’
shareholder. With respect to questions concerning MIK, her
letter stated ‘‘Cannot answer for MIK. Do not know.’’
B. Discussion and Conclusions
1. Alter ego and single employer
In Radio & Television Broadcast Technicians v. Broadcast
Service of Mobile, 380 U.S. 255, 256 (1965), the Supreme
Court, in considering which factors determine whether nomi-
nally separate business entities should be treated as a single
employer, stated:
The controlling criteria set out and elaborated in
Board decisions, are interrelation of operations, com-
mon management, centralized control of labor relations
and common ownership.
The criteria for establishing alter ego status are substan-
tially similar. Crawford Door Sales, 226 NLRB 1144 (1976);
Precision Builders, 296 NLRB 105 fn. 1 (1989). Not all of
these indicia need be present. Blake Construction Co., 245
NLRB 630, 634 (1979), enfd. in part and denied in part on
other grounds 663 F.2d 272 (D.C. Cir. 1981); E. G. Sprin-
kler Corp., 268 NLRB 1241, 1243 (1984), enfd. sub nom.
Goodman Piping Products v. NLRB, 741 F.2d 10 (2d Cir.
1984); Joseph Stern & Sons, 297 NLRB 1, 5 (1989). The
Board has held that common ownership is established if both
companies are owned by members of the same family. J. M.
Tanaka Construction, 249 NLRB 238, 241 fn. 29 (1980); Su-
perior Export Packing Co., 284 NLRB 1169, 1170 (1987);
Walton Mirror Works, 313 NLRB 1279, 1284 (1994).
With respect to interrelation of operations, Robert Coady
changed the name of MIK so that the new company, Mer-
chants I & S Corp., would be substantially similar in name
to its predecessor, Merchants Iron and Steel Corp. I have
credited Massa’s testimony that Joseph Coady, who had prin-
cipally been involved with Merchants, brought supplies to an
I & S jobsite and occasionally delivered paychecks. I have
also credited Johnson’s testimony that paychecks for employ-
ees working at Rochester Psychiatric Center, which was an
I & S jobsite, at first bore the name of Merchants and then
the name was changed to I & S. In addition, during 1992
and 1993 I & S performed work for several customers, who
were also customers of Merchants. Furthermore, almost all of
Merchants’ employees worked on I & S projects. In at least
one instance an employee worked on jobs simultaneously for
I & S and Merchants.
With respect to common management Robert Coady was
vice president, superintendent, and foreman at Merchants. He
was president of I & S. In addition, I have found that both
he and his father, Joseph, assigned work both at Merchants
and at I & S. Concerning labor relations, as president, Rob-
ert Coady clearly controlled labor relations at I & S. I have
found that he hired employees at Merchants and that both he
and his father represented Merchants at union meetings. Con-
cerning common ownership, Karyn Coady was listed as sole
shareholder of Merchants and her brother, Robert, was the
100-percent owner of I & S. As stated above, Board cases
provide that if both companies are owned by members of the
same family, common ownership is established. Accordingly,
under all of the circumstances, I believe that Respondent
Merchants and Respondent I & S are alter egos and a single
employer, within the meaning of the Act.2
2. Repudiation of the collective-bargaining agreement
Merchants was bound to a collective-bargaining agreement
between the Union and the Association for the period May
1, 1992, to April 30, 1995. It had been bound by a prior
agreement which was effective May 1, 1989, to April 30,
1992. I & S performed work in 1992 and 1993 on projects
covered by the collective-bargaining agreement. The record
shows that I & S did not employ union members or permit
workers on these jobs and failed to pay employees the con-
tractual wage rate, overtime pay, and fringe benefits. Accord-
ingly, having failed to continue in effect the terms and condi-
tions of the collective-bargaining agreement, Respondent has
violated Section 8(a)(1) and (5) of the Act.
3. Request for information
On July 9, 1992, the Union requested that Merchants pro-
vide information concerning its relationship with MIK. On
October 27 Merchants responded, providing limited informa-
tion concerning itself but furnishing no information concern-
ing MIK. The Board has long held that ‘‘an employer must
furnish information that is of even probable or potential rel-
evance to the Union’s duties.’’ Conrock Co., 263 NLRB
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See Johnson Electric Co., 196 NLRB 637 fn. 1 (1972), enfd. 472
F.2d 161 (6th Cir. 1973).
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1293, 1294 (1982), enfd. mem. 735 F.2d 1371 (9th Cir.
1984); Postal Service, 308 NLRB 358, 359–360 (1992). I
find that the information requested by the Union is relevant
to its duties. Although Respondent did, in fact, supply some
information, I find that the information was incomplete. See
Top Job Building Maintenance Co., 304 NLRB 902, 909
(1991). I conclude that by failing and refusing to supply the
Union with the information requested in its letter of July 9,
Respondent has violated Section 8(a)(1) and (5) of the Act.
See Samuel Kosoff & Sons, 269 NLRB 424, 430 (1984).
CONCLUSIONS OF LAW
1. Respondent Merchants and I & S are employers within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Merchants and I & S are a single employer
and I & S is the alter ego of Merchants.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees within the Union’s territorial jurisdiction
who are engaged in the work described at Article 1
(‘‘Craft Jurisdiction’’) Section (d), paragraph D of the
collective-bargaining agreement between the Union and
the Association, effective May 1, 1992 to April 30,
1995.
5. At all material times here the Union has been the exclu-
sive collective-bargaining representative of the employees in
the above-described appropriate unit within the meaning of
the Act.
6. By failing and refusing to recognize and bargain with
the Union as the exclusive representative of its employees in
the appropriate unit, by failing to honor the existing collec-
tive-bargaining agreement with respect to such employees,
and by failing to apply to such employees the terms and con-
ditions of the agreement, Respondent has violated Section
8(a)(1) and (5) of the Act.
7. By failing and refusing to furnish the Union with the
relevant information requested by it, Respondent has violated
Section 8(a)(1) and (5) of the Act.
8. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Inasmuch as I & S is the alter ego of Merchants and the
two are a single employer continuing to operate the same
business and have failed and refused to recognize the Union
as the collective-bargaining representative of I & S employ-
ees or to apply the terms of the collective-bargaining agree-
ment between Merchants and the Union, I shall recommend
that I & S be ordered to recognize the Union as the rep-
resentative of its employees and to honor and apply the terms
of that agreement, and any subsequent agreement, to its em-
ployees. I shall also order Respondent to make the contrac-
tually established payments to the welfare and pension funds
established by the collective-bargaining agreement, with in-
terest, in accordance with the formula set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979), and by reimbursing unit employees for any expenses
they incurred as the result of the unlawful failure to make
such required payments, as provided in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981). Respondent Merchants and I & S will
also be ordered to make their employees whole for any loss
of earnings suffered by virtue of the failure to apply the col-
lective-bargaining agreement to I & S employees3 with in-
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).4
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Merchants Iron and Steel Corp., and its
alter ego Merchants I & S Corp., Rochester and Mendon,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local 33, Inter-
national Association of Bridge, Structural and Ornamental
Iron Workers as the exclusive representative of its employees
in the appropriate unit with respect to wages, hours, working
conditions, or other terms and conditions of employment of
the employees, and refusing to honor the collective-bargain-
ing agreement applicable to those employees.
(b) Refusing to bargain with the Union by refusing to fur-
nish it with relevant information requested by it.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Comply with the terms and conditions of the collec-
tive-bargaining agreement between the Association and the
Union to which Merchants and I & S are bound, retro-
actively, and prospectively until such time as proper and
timely notice of cancellation is given in the manner set forth
in that agreement.
(b) Make whole the unit employees by transmitting the
contributions owed to the Union’s welfare and pension funds
and by reimbursing unit employees for any medical, dental,
or other expenses ensuing from its unlawful failure to make
such contributions.
(c) Make whole the unit employees for any wages lost as
a result of its failure to comply with the terms of the collec-
tive-bargaining agreement, with interest.
(d) On request, recognize and bargain with the Union as
the exclusive representative of the employees in the follow-
365MERCHANTS IRON & STEEL CORP.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ing appropriate unit, concerning terms and conditions of em-
ployment:
All employees within the Union’s territorial jurisdiction
who are engaged in the work described at Article I
(‘‘Craft Jurisdiction’’) Section (d), paragraph D of the
collective-bargaining agreement between the Union and
the Association, effective May 1, 1992 to April 30,
1995.
(e) On request, furnish the Union with the information it
requested on July 9, 1992.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities in Rochester and Mendon, New
York, copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice on forms provided by the Regional Di-
rector for Region 3, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.