Milford Services, Inc., Milford Landscaping & Maintenance, Inc., Milford Nurseries, Inc., And Eastern Leasing, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 684 (N.L.R.B. 1989)

684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Milford Services , Inc., Milford Landscaping &
Maintenance , Inc., Milford Nurseries , Inc., and
Eastern Leasing , Inc. and Laborers ' Interna-
tional Union of North America , AFL-CIO,
Local 665 . Case 39-CA-3713
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On January 4, 1989, Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
as did the General Counsel. The Charging Party
also filed a brief in support of the judge's decision
and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed 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,2
and conclusions,' and to adopt the recommended
Order as modified.4
We affirm the judge's finding that Section 10(b)
of the Act does not bar further proceedings be-
cause we find the Union was first put on notice of
a violation of the Act on July 1, 1987, when Union
Representative Nobili visited the Milford Green
i The Respondent moved to dismiss the Charging Party's brief as un-
timely We deny the motion in view of the fact that the Charging Party's
brief was timely filed pursuant to an extension of time granted the Charg-
ing Party to file a brief by March 21, 1989 See the Board's Rules and
Regulations , Sec 102 46
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
However, the Board corrects four factual errors of the judge regarding
dates Contrary to certain findings of the judge, Milford Nurseries went
bankrupt in 1984, George Kijewski signed for Milford Landscaping in
1975 the Acceptance of Agreements (binding the entity to a union con-
tract), and the Associated General Contractors contract expires in 1989,
prior to the expiration of the Connecticut Construction Industries Asso-
ciation contract in 1991
3 We find no merit in the General Counsel' s exception that the unit de-
scription contained in the judge's Conclusion of Law 4 should be expand-
ed to cover all laborers, not just those in the construction division of Mil-
ford Landscaping & Maintenance We do, however, modify Conclusion
of Law 4 and the recommended Order so that the unit is defined as fol-
lows
All laborers employed by Milford Services, Inc, and its alter ego,
Milford Landscaping & Maintenance , Inc , at construction jobsites,
excluding all other employees, professional employees , guards and
supervisors as defined in the Act
4 We modify the order to identify the entities constituting the named
Respondents as alter egos , as well as a single employer, and substitute
unit language that describes the unit by type of jobsite, not administrative
division We also substitute a notice that more closely conforms with the
judge's remedy and our Order
job, which was being performed by employees of
Milford Landscaping & Maintenance, Inc. The Re-
spondent has provided no basis to indicate that the
Union was on notice that Milford Landscaping &
Maintenance employees had performed other work
in a manner that would give notice of its alter ego
status. The information that the Union received in
1982 relating to Milford Landscaping's apparent in-
volvement in double-breasted activity is irrelevant,
because the other company involved was Milford
Nurseries, not Milford Services, and that dispute in
1982 was resolved pursuant to a settlement. Subse-
quent problems with what was perceived to be
Milford Services' use of nonunion labor and a dis-
cussion about double-breasted operations in 1985
were not sufficient to put the Union on notice of
the mingling of the two companies prior to July 1,
1987.
We also agree with the ' judge, for the reasons
stated by him, that Milford Services, Inc., and the
construction division of Milford Landscaping &
Maintenance, Inc. constitute a single employer.
However, in affirming his conclusion that the la-
borers employed in these two operations are in-
cluded in a single unit covered by the Union's bar-
gaining agreement with Milford Services, we spe-
cifically rely on his finding that these two Employ-
ers are also alter egos with regard to this aspect of
their operations.
We note that the judge incorrectly found that
Joseph Kijewski owned Milford Landscaping &
Maintenance at all relevant times during this pro-
ceeding. The evidence shows, however, that Ki-
jewski did not reacquire formal ownership of Mil-
ford Landscaping from his wife until several
months after the Union became aware of Milford
Landscaping's abrogation of the contract. We find,
however, that even during Joanna Kijewski's
period of formal ownership of Milford Landscap-
ing the active control of both companies was in the
hands of Joseph Kijewski. This satisfies the element
of common ownership. See Kenmore Contracting
Co., 289 NLRB 336 (1988).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Milford Services, Inc., and Milford
Landscaping & Maintenance, Inc., Milford, Con-
necticut, a single employer and alter egos of one
another, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
294 NLRB No. 53
MILFORD SERVICES
"(a) Failing and refusing to bargain collectively
with the Connecticut Laborers' District Council on
behalf of its local affiliates, Laborers' International
Union of North America, AFL-CIO, by failing or
refusing to apply the terms and conditions set forth
in the collective-bargaining agreement the District
Council has with the Labor Relations division, The
Associated General Contractors of Connecticut,
Inc., and in amendments or successor agreements
thereto (the AGC contract) and also in the collec-
tive-bargaining agreement the District Council has
with Connecticut Construction Industries Associa-
tion, Inc., and in amendments or successor agree-
ments thereto (the CCIA contract). to the employ-
ees in the following appropriate unit:
All laborers employed by Milford Services,
Inc., and its alter ego, Milford Landscaping
and Maintenance, Inc., at construction jobsites,
excluding all other employees, professional
employees, guards and supervisors as defined
in the Act."
2. Substitute the following for paragraph 2(c).
"(c) Post at their place of business and at each of
their construction jobsites copies of the attached
notice marked `Appendix.'3 Copies of the notice,
on forms provided by the Regional Director for
Region 34, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees 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."
3. Substitute the attached notice for that of the
administrative 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 ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to recognize and
bargain in good faith with Connecticut Laborers'
District Council of the Laborers' International
Union of North America as the exclusive repre-
sentative of our employees or fail or refuse to
honor collective-bargaining agreements applicable
to those employees in a unit consisting of:
685
All laborers employed by Milford Services,
Inc., and its alter ego, Milford Landscaping
and Maintenance, Inc., at construction jobsites;
excluding all other employees, professional
employees, guards and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL maintain and give full effect to the
contracts the Laborers' District Council has with
the Associated General Contractors of Connecti-
cut, Inc., and with the Connecticut Construction
Industries Association, Inc., and any amendments
or subsequent agreements with those parties cover-
ing the unit employees, retroactive to June 29,
1987, and including but not limited to: ,
(1) Making whole all unit employees, with
interest, for any loss of wages and benefits
they incurred because of our failure to apply
or maintain the established terms of such
agreements, including hiring hall applicants
who should have been hired.
(2) Making required payments to the various
trust funds established by these collective-bar-,
gaining agreements.
(3) Reimbursing our employees with inter-
est, for any actual costs they may have in-
curred, which ensued from our failure to make
required contributions to contractually estab-
lished trust funds.
MILFORD SERVICES, INC., AND ITS
ALTER EGO, MILFORD LANDSCAPING
& MAINTENANCE, INC.
Michael Marcionese, Esq., for the General Counsel.
Edward F. O'Donnell, Esq. and Frederick L. Dorsey, Esq.
(Siegel, O'Connor, Schiff Zangari & Rainen , P.C.), of
Hartford , Connecticut , for the Respondent.
John M. Creane, Esq., of Milford , Connecticut , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint, as amended at the hearing, alleges that the
four companies named in the caption, Milford Services,
Inc., Milford Landscaping & Maintenance, Inc., Milford
Nurseries, Inc., and Eastern Leasing, Inc., comprise a
single business enterprise and that this enterprise has, in
violation of Section 8(a)(l) and (5) of the National Labor
Relations Act (the Act) abrogated and refused to abide
by the terms of collective-bargaining agreements cover-
ing building and construction 'laborers in its employ. In
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the alternative, these companies are alleged to be alter
egos of each other.
Counsel representing these companies have denied that
they constitute a single employer or that they are alter
egos of each other. They also have asserted, as an affirm-
ative defense, that further proceedings are time barred by
reason of the limitations contained in Section 10(b) of the
Act.
The hearing was held in Hartford, Connecticut, on
August 22, 23, and 24, 1988. On the entire record, in-
cluding my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by
the General Counsel, by the Charging Party, and by the
Milford Services, Inc., et al., I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
The pleadings establish, and I find, that each of the
four companies named above is a nonretail concern that
meets the nonretail standard set by the Board for assert-
ing jurisdiction.
I further find, based on the pleadings, that the Unions
alleged as labor organizations in the complaint are labor
organizations as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The facts are not in material dispute. As the names of
several of the corporations involved are so similar to
each other and also to names used by a sole proprietor-
ship, and in order to keep them in focus, I have, for the
most part, used the full name of each business entity in
this decision.
A. The Business Entities and Labor Relations History
George Kijewski owns the four corporations involved
in this case. He started a landscaping business in 1968 as
a sole proprietor, doing business as Milford Landscaping
& Maintenance. He testified that he has, since then, in-
corporated and reincorporated his business and changed
its name . He was unable to recall when he first incorpo-
rated the business or reincorporated it or changed its
name . The following chronology, as disclosed mostly by
documentary material in evidence, throws some light on
the changes.
On October 8, 1971, Kijewski, as or on behalf of Mil-
ford Landscaping, signed a document entitled, "Con-
necticut Laborers' District Council Agreements Building
and Site-Heavy, Highway and Tunnel-Acceptance of
Agreements and Declaration of Trust. That document,
and others substantially identical to it, are referred to
below as the Acceptance of Agreements. Therein, it is
recited that the "undersigned Employer" approves the
agreement dated May 26, 1975, between the Associated
General Contractors of Connecticut, Inc., and the Con-
necticut Laborers' District Counsel on behalf of its affili-
ates. (The Charging Party is one of those affiliates.) That
Acceptance of Agreements also related that the under-
signed Employer, "Milford Landscaping" approves any
successor agreement to the May 26, 1975 agreement and
that the agreements shall continue in effect with terms as
they "shall be set out from time to time" unless the un-
dersigned Employer "gives the union notice of desired
change or termination of a particular collective bargain-
ing agreement in keeping with the application notice pro-
visions contained therein." No such notice was ever
given. The current agreement between the Associated
General Contractors of Connecticut, Inc., and the Labor-
ers' District Council expires on March 31, 1991. That
contract is commonly referred to as the AGC contract
and it covers road construction work.
The October 8, 1975 Acceptance of Agreements form
also applied to the collective-bargaining agreement be-
tween the District Council and the Connecticut Con-
struction Industries Association. That agreement is com-
monly referred to as the CCIA contract. It covers build-
ing construction work; the most recent one expires on
the same date as the AGC contract. No termination
notice was ever given as to the CCIA contract.
On March 24, 1976, Kijewski signed an Acceptance of
Agreements as or on behalf of "Milford Landscaping &
Maintenance ." No termination notice was ever given as
to the AGC or CCIA contract referred to in that docu-
ment.
Kijewski testified that he signed the October 8, 1975
Acceptance of Agreements in order to be able to hire la-
borers on the job he was performing that fall for a con-
tractor named Fusco, and that he signed the March 24,
1976 Acceptance of Agreements in order to have labor-
ers on that job when it resumed in the spring of 1976. He
testified that he did not recall if he had done more than
one job as a union contractor under the name "Milford
Landscaping."
On June 13, 1977, Kijewski, as general manager of
Milford Nurseries, Inc. signed a document entitled, "In-
terim Agreement." Therein, Milford Nurseries, Inc.
agreed with the Connecticut Laborers' District Council
on behalf of its affiliates to keep in force the AGC and
CCIA contracts then in effect and to apply the terms of
successor AGC and CCIA contracts. The record does
not disclose the circumstances under which that Interim
Agreement was signed.
Kijewski testified that he thought he started Milford
Nurseries, Inc. in about 1980. As just noted, he signed an
Interim Agreement in 1977 on behalf of that company.
On February 23, 1978, Kijewski signed an Acceptance
of Agreements on behalf of Milford Nurseries, Inc. The
record does not disclose the circumstances relating to his
signing that document.
Kijewski testified that in the early 1980s he incorporat-
ed his landscaping business , using the name Milford
Landscaping & Maintenance, Inc. The reason therefor is
discussed in another section below.
On September 18, 1981, Kijewski signed another Ac-
ceptance of Agreements form-this time on behalf of
Milford Nurseries, Inc.; again the record does not reflect
the attendant circumstances.
In 1982, Local 665 of the Laborers International
Union, the Charging Party in this case, filed a grievance
against Milford Nurseries, Inc., which claimed that it had
violated the 1981-1984 AGC contract. Local 665 Busi-
ness Manager Ronald Nobili testified that Kijewski re-
MILFORD SERVICES
sponded to that grievance by asserting that the work in
dispute was being done by "Milford Landscaping."
Nobili testified that he "never bought" that explanation
or Kijewski's argument that "there were two compa-
mes."The Local 665 agreement was settled on October
14, 1982, when Milford Nurseries, Inc., signed a docu-
ment entitled, "Agreement." Therein, the Agreement is
referred to as a side agreement to the 1981-1984 AGC
contract. Milford Nurseries, Inc. promised, inter alia, to
furnish Local 665 with a list of all jobs it does in Local
665's area and to pay a lump sum as compensation to
hiring hall applicants who would have been referred
from Local 665's hiring hall
In the next 2 or 3 years, Nobili had several discussions
with Kijewski. These had to do with "typical [contract]
enforcement problems" involving the use of nonbargain-
ing unit employees on jobs. Nobili's testimony is that
these matters had come to his attention when stewards
informed him that "the company" was on jobs with non-
unit employees. Nobili also testified that he had no idea
then that "Milford Landscaping and Maintenance, Inc."
existed or that it was a separate corporation with its own
employee payroll containing nonunit employees. His tes-
timony was that he was of the belief that Kijewski had
but one company and that its name began with the name
"Milford "
Milford Landscaping & Maintenance , Inc is principal-
ly involved in the business of providing interior and exte-
rior horticultural maintenance services at existing com-
mercial buildings. The exterior services include grass cut-
ting and spraying chemicals.
The State of Connecticut issued a certificate of disso-
lution, which certified that Milford Landscaping & Main-
tenance, Inc. was dissolved as of March 15, 1985, for
"failure to file [two] successive returns." As described
below, however, Kijewski has since submitted bids and
been awarded work while using the name Milford Land-
scaping & Maintenance, Inc
In 1984, Milford Nurseries, Inc. went bankrupt and is
no longer in business . Its name was included in the cap-
tion of this case presumably for background purposes.
The General Counsel seeks relief based on the contention
that "unit work for Milford Landscaping [& Mainte-
nance, Inc.]" was done in violation of AGC and CCIA
contracts.
In the spring of 1985, Nobili telephoned Kijewski at
the start of the construction season to express the hope
that their relationship would be a good one. In that con-
versation, Kijewski told Nobili that Nobili was "a good
educator" in that he had educated Kijewski as to how to
set up two distinct companies, one of which could "take
on the union work " Nobili responded by saying that he
did not think it was possible for Kijewski to,have two
separate companies and that he hoped, in any event, that
there would be no need to "have any enforcement pro-
ceeding," an obvious reference to the filing of a griev-
ance. In their telephone conversation, Kijewski informed
Nobili that he had a person, Donald Dickson, who
would oversee the union work.
About a month later, Nobili met Kijewski on a jobsite
where Kijewski introduced Dickson to Nobili. Kijewski
also told Nobili then that the name of the new company
687
was Milford Services, Inc. From that point on, Dickson
or his secretary telephoned Nobili's office whenever re-
ferrals were requested from Local 665's hiring hall.
Local 665 has had no interest in representing employ-
ees who perform interior or exterior horticultural mainte-
nance services at existing commercial buildings.
B. The Milford Green Job
On July 1, 1987, while driving in Milford, Connecti-
cut, Nobili saw 8 to 10 laborers laying sod at the Milford
Green, a public area. He also observed a truck with the
word "Milford" on it, together with a logo that he rec-
ognized as one used by Kijewski. He also recognized Ki-
jewski's son, Joe, as one of the laborers. As he began
speaking with them, Donald Dickson arrived and asked
Nobili what he was doing there. In response, Nobili
asked Dickson what he was doing there, stating that he
had just been told by one of the laborers that the job was
nonunion. Dickson answered that he just happened to be
driving by.
The General Counsel placed in evidence a $15,000
contract awarded by the city of Milford to Milford
Landscaping & Maintenance, Inc. for re-sodding Milford
Green (Kijewski gave a confused account that the work
was done under an oral subcontract.) The laborers on its
payroll who performed the work under that contract re-
ceived $6 an hour until inspectors from the State of Con-
necticut investigated The laborers who worked the last
3 days of that job had their hourly rate increased for
those days from $6 to $13.50, the prevailing rate under
the Davis-Bacon Act.
Kijewski testified that laborers in the employ of Mil-
ford Services, Inc. typically perform landscaping func-
tions at construction sites where they use shovels and
rakes to spread large quantities of topsoil to grade. That
was essentially the type of work being done at Milford
Green. Donald Dickson testified that the laborers-in the
construction division of -Milford Landscaping & Mainte-
nance, 'Inc. perform the same type of work that is done
by laborers in the employ of Milford Services, Inc. The
divisional operations of the former are discussed in the
next section.
C. The Single Employer/Alter Ego Issue
The General Counsel contends that Kijewski's corpo-
rations comprise a single employer for purposes of the
Act or, in the alternative, that his corporations are alter
egos of each other. In particular; Milford Landscaping &
Maintenance, Inc. and Milford Services, Inc. are alleged
to be a single employer, or alter ego, who have abrogat-
ed the AGC contract (to which Milford Services, Inc. is
bound) by having failed to apply that contract to the la-
borers on the Milford Green job. The answer, as amend-
ed, avers essentially that Milford Landscaping & Mainte-
nance, Inc. can lawfully, employ laborers to perform such
work at wage rates and benefits it itself sets, as it is a
separate entity not bound to the AGC contract. The
General Counsel has presented other contentions as alter-
natives and they are'also discussed below.
Kijewski has owned and controlled the four companies
named above and other companies that he operated as a
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sole proprietor. It appears that the first corporation he
set up was Milford Nurseries , Inc. in 1977 as' he signed
collective-bargaining agreements using that corporate
name then.
In 1980, Kijewski set up another corporation , Milford
Lanscaping & Maintenance, Inc. It appears that that cor-
poration was set up to render the interior and exterior
horticultural maintenance services that he had been
doing previously as a sole proprietor . He testified that he
estblished this corporation in 1980 as part of a divorce
settlement whereby his divorced wife would take over
that business and he would run Milford Nurseries, Inc.
In fact, however , his ex-wife never became involved in
any of the operations and he continued in control of all,
as before . He and his former wife have since remarried
and in late 1987 he resumed sole ownership of Milford
Landscaping & Maintenance , Inc. As noted earlier, Mil-
ford Nurseries, Inc. went bankrupt in 1987 and in effect
was superseded by Milford Services, Inc.
The point-to all the foregoing and to the recital earli-
er as to Kijewski having begun operations in 1968 as a
.sole proprietor and doing business under various trade
names very similar to the corporate names-is that all
those arrangements involved essentially internal changes
and even Kijewski had great difficulty in trying to track
them . From outward appearances , the name "Milford"
was prominent as was the Milford logo.
As noted below , a significant factor in deciding a
single employer or alter ego issue involves the control of
labor relations policies . On that point, Kijewski 's testimo-
ny discloses that Milford Services , Inc. performs "union
work"; the employees on its payroll are paid and receive
benefits, all according to the provisions of the AGC or
CCIA contracts . Employees on the payroll of Milford
Landscaping & Maintenance, Inc. are paid within pay
ranges set by Kijewski for their respective job classifica-
tions, and receive fringe benefits as determined by him;
managers under Kijewski have discretion to hire employ-
ees at wage rates within the pay ranges he has set.
Eastern Leasing , Inc. is a corporation solely owned
and controlled by Kijewski. It has title to the trucks,
equipment, and real estate used jointly by Milford Land-
scaping & Maintenance, Inc. and Milford Services, Inc.
All of Kijewski's corporations occupy the same office,
use the same logo, share the same clerical staff, and
employ the same accountant who allocates costs among
the respective corporations. Thus, the accountant has de-
termined that $1000 a month is to be charged against
Milford Services, Inc. and credited to Milford Landscap-
ing & Maintenance, Inc. to compensate the latter for
clerical services rendered Milford Services , Inc. by em-
ployees on the latter's payroll . No record is kept of the
actual time they spend performing such services. No
written lease exists for the use by either of these corpora-
tions of the real estate. The trucks used by them are
maintained by mechanics listed on the payroll of Milford
Landscaping & Maintenance, Inc.
As to employee interchange , the record discloses that,
throughout 1987 , Milford Services , Inc. had a total of 60
employees on its payroll , most with total earnings of sev-
eral thousand dollars or less . As the record indicates that
these employees were for the most part referred from
hiring halls, it is obvious that most were short-term em-
ployees . Only seven Connecticut employees on its pay-
roll earned in excess of $15,000. Three of these (George
Kijewski , Construction Manager Donald Dickson, and
Chief Estimator Michael Reader) regularly performed
duties also for Milford Landscaping & Maintenance and
two more were also on the latter's payroll for 1987. Ki-
jewski and Dickson testified that when Milford Services,
Inc. had no "union" work its long-term employees were
transferred to work for Milford Landscaping & Mainte-
nance, Inc.
Dickson was construction manager of Milford Serv-
ices, Inc. and also manager of the construction division
of Milford Landscaping & Construction Maintenance,
Inc. The latter has three other divisions. One consists of
its mechanics who service the trucks owned by Eastern
Leasing , Inc. and used by both Milford Services, Inc.
and Milford Landscaping & Maintenance , Inc. Another
division is its interior division and finally there is the
grounds and maintenance division . The interior division
is responsible for furnishing and maintaining horticultural
items inside commercial buildings; the grounds and main-
tenance division is responsible for maintaining exterior
landscapes of commercial buildings , by cutting grass and
spraying chemicals and similar work. Most of the 400-
500 customers of Milford Landscaping & Maintenance,
Inc. were serviced by the interior division and the
grounds and maintenance division . Its construction divi-
sion had , in 1987 , about the same number of construction
contracts as did Milford Services, Inc.
Milford Landscaping & Maintenance, Inc. relies on
various factors to support its view that it is not a single
integrated business enterprise with Milford Services, Inc.
Thus, it points out that it follows a definite procedure in
interviewing job applicants whereas Milford ' Services,
Inc. obtains most of its employees by way of referrals
from union hiring halls; it has a separate disciplinary pro-
cedure; it has a different payroll and different supervisors
(except for Construction Manager Dickson and Chief Es-
timator Reader); and it does not bargain collectively
with any union . The General Counsel 's view is that sev-
eral of those very differences point up the violations of
the Act alleged in the complaint.
D. Analysis
The General Counsel and the Union contend, in es-
sence , that Kijewski has set up a "double-breasted" oper-
ation to enable him to evade , whenever possible, the ob-
ligations Milford Services, Inc. has under its AGC and
CCIA contracts. Milford Landscaping & Maintenance,
Inc. contends essentially that, as it is much larger than
Milford Services, Inc. and has multifaceted operations, it
is an entity separate and distinct from Milford Services,
Inc. and thus can lawfully perform the same type of
work, as a nonunion subcontractor, that Milford Serv-
ices, Inc. performs.
Before addressing those contentions , I will discuss
briefly several other contentions submitted by the Gener-
al Counsel.
The General Counsel urges that Milford Landscaping
& Maintenance , Inc. was bound to the current AGC and
MILFORD SERVICES
CCIA contracts by virtue of both its having signed Ac-
ceptance of Agreements in 1975 and 1976 and also its not
having given any notices of termination as to any renew-
als of these contracts. The evidence before me, however,
indicates that Kijewski was a sole proprietor doing busi-
ness as "Milford Landscaping" until he incorporated the
business in 1980. I note too that the 1975 and 1976 Ac-
ceptances were not signed by any corporation. I note
also that Milford Landscaping & Maintenance, Inc. has
been dissolved by the State of Connecticut and that a
possible result thereof is a reversion to the sole propri-
etorship. Cf. 19 Am.Jur.2d, Corporations § 2282-2907.
But cf. also Carpet City Mechanical Co., 244 NLRB 1031,
1035 (1979); and F & W Oldsmobile, 272 NLRB 1150
(1984).
The General Counsel has also urged that Milford
Services, Inc. is 'the successor to Milford Nurseries, Inc.
and thereby bound to honor the union contracts or that
Milford Nurseries, Inc., Milford Services, Inc., and Mil-
ford Landscaping & Maintenance, Inc. together consti-
tute them as the successor to the "original Milford Land-
scaping which signed the first contract with the Union in
1975." No useful purpose is served by exploring those
contentions as Milford Services, Inc. admittedly is direct-
ly bound to the AGC and CCIA contracts.
To return to the basic issue, the General Counsel and
the Union assert that Milford Services, Inc. and Milford
Landscaping & Maintenance, Inc. comprise a single inte-
grated enterprise in the performance of road landscaping
and building construction landscaping work and thus
cannot lawfully function as a double -breasted operation.
The General Counsel separately offers an alter ego argu-
ment in asserting that the evidence establishes that Ki-
jewski set up the double-breasted operation to evade
contract commitments to the Union. Milford Landscap-
ing & Maintenance, Inc. asserts that it is not a single em-
ployer with or alter ego of Milford Services, Inc. and
also that, even were both found to be a single employer,
the employees of both do not constitute a single appro-
priate bargaining unit.
The principles governing the issues raised by the fore-
going contention are clear . Thus, the Board has stated in
Walter N. Yoder & Sons, 270 NLRB 652 fn. 2 (1984):
A "double-breasted" operation is one in which a
contractor operates two companies , one unionized
and the other nonunionized. Depending on how the
companies are structured and operated , each may
be a separate corporation or else both may be so
interrelated that they constitute a single employer
or one may be the alter ego of the other. A collec-
tive-bargaining contract signed by one of the com-
panies would not bind the other if each were a sep-
arate corporation, but would bind the other if both
constituted a single employer and the employees of
both companies constitute a single appropriate bar-
gaining unit or the nonsignatory company is an alter
ego of the signatory company.
See also Peter Kiewit Sons, Inc., 231 NLRB 76 (1977);
and Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988), for
detailed discussions of the single employer -single bar-
689
gaining unit issue . See Kenmore Contracting Co., 289
NLRB 336 (1988), for a detailed discussion of the alter
ego issue.
In Geo. V. Hamilton, supra at 1337, the Board stated
that the standards for determining the existence of a
single employer relationship are well settled and it sum-
marized them as follows:
In determining whether two or more businesses
are sufficiently integrated so that they may be fairly
treated, for jurisdictional and other purposes, as a
single enterprise [there are] four principal factors (1)
common management; (2) centralized control of
labor relations; (3) interrelation of operations; and
(4) common ownership or financial control. .. .
[N]o single criterion is controlling, although it con-
siders the first three, which evidence operational in-
tegration , more critical than the fourth , common
ownership.
The Board went on to state in that case that, of the
above-mentioned first three criteria relating to operating
integration , particular emphasis has been placed on cen-
tralized control of labor relations.
In determining alter ego status, the Board considers
whether companies have substantially identical owner-
ship, management, business purpose, operations, custom-
ers, equipment, and supervision, together with the
motive of an employer. Kenmore Contracting Co., supra.
Kijewski owns and is president of both Milford Land-
scaping & Maintenance, Inc. and Milford Services, Inc.
It is helpful now to focus clearly on the different ap-
proaches the parties take as to the other relevant factors.
Milford Landscaping & Maintenance, Inc. points out that
its principal business in installing and maintaining horti-
cultural displays inside commercial buildings (via its inte-
rior division) and in servicing the lawns outside commer-
cial buildings (via its grounds and maintenance division).
The great bulk of its customers utilize these operations.
Only some six to eight companies in 1987 engaged its
construction division as a subcontractor.
The General Counsel and the Union put aside the
work done by the interior division and the grounds and
maintenance division . Instead, they concentrate on draw-
ing parallels between the functions of the. construction
division and the functions of Milford Services, Inc.
The core issue is, as framed by the General Counsel
and the Union, whether or not the operations of Milford
Landscaping & Maintenance , Inc. in its construction di-
vision is with Milford Services , Inc., a single employer
or its alter ego . Both had the same manager, Dickson;
both perform the same type work; both were subject to
the same individuals who controlled these labor policies,
Kijewski and Dickson ; both interchanged employees and
supervisory personnel. The only difference is that the
construction division of Milford Landscaping & Mainte-
nance, Inc . was established to operate as a nonunion
entity, whereas Milford Services, Inc. honored its AGC
and CCIA contracts. The intent to operate as a nonunion
company does not, without more, manifest an unlawful
purpose, but in context with the operations of its union
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counterpart is further evidence of alter ego status. See
Advance Electric, 268 NLRB 1001, 1004 (1984).
All the laborers employed in the construction division
of Milford Landscaping & Maintenance , Inc. perform
substantially the same type of work at building construc-
tion or road construction sites as do the laborers em-
ployed by Milford Services ; they are commonly super-
vised, interchange with them, and are employed by a
company that is owned and controlled by the same indi-
vidual who owns and controls Milford Services, Inc. In
view of the fact that these companies share the same fa-
cilities and vehicles , have the same logo and possess
other identical attributes and as their basic difference is
that the laborers of Milford Landscaping & Maintenance
Inc.'s construction division are nonunion whereas the la-
borers of Milford Services, Inc. are represented, I find
that Milford Landscaping & Maintenance, Inc., in its op-
eration of its construction division is, with Milford Serv-
ices, Inc., a single employer within the meaning of the
Act. To hold, as Milford Landscaping & Maintenance,
Inc. would have me hold, that the operations of its other
divisions should be controlling in deciding the single em-
ployer issue is to give paramount consideration to form.
For essentially the same reasons, I fmd that the laborers
in the construction division of Milford Landscaping &
Maintenance, Inc. and the laborers employed by Milford
Services, Inc. constitute a unit appropriate for purposes
of collective bargaining.
Under the principles stated above , I thus find that Mil-
ford Landscaping & Maintenance , Inc. was bound to the
AGC and CCIA contracts of Milford Services, Inc., and
its failure to honor them constitutes an unfair labor prac-
tice violative of Section 8(a)(1) and (5) of the Act. The
evidence before me also supports a finding that the
former is the alter ego of the latter . The cryptic remark
by Kijewski to Nobili in 1985 that he has been educated
as to how to operate two companies , when viewed in
context with the foregoing analysis and with Dickson's
asking Nobili what he was doing at the Milford Greens
job and when viewed also in relation to Kijewski's stated
intent to have a nonunion operation-all establish a
strong prima facie showing that it was Kijewski 's intent,
in operating Milford Landscaping & Maintenance, Inc.'s
construction division, to avoid the obligations Milford
Services, Inc. has under the AGC and CCIA contracts.
E. The 10(b) Issue
Milford Landscaping & Maintenance, Inc. separately
contends that the statute of limitations set out in Section
10(b) of the Act bars further proceedings here. It con-
tends that the Union was on notice in 1985 , long before
the start of the limitations period, that Kijewski would
operate a nonunion company alongside his union compa-
ny. No evidence was offered by it, however , to establish
that it was doing so to the Union 's knowledge until July
1987 . Thus, the evidence fails to sustain the Section 10(b)
defense. See Viola Industries, 286 NLRB 306 (1988).
CONCLUSIONS OF LAW
1. Milford Landscaping & Maintenance, Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Milford Services , Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. Milford Landscaping & Maintenance, Inc., via its
construction division , and Milford Services, Inc. are a
single employer for purposes of the Act and alter egos of
each other.
4. All laborers employed in the construction division
of Milford Landscaping & Maintenance, Inc. and em-
ployed by Milford Services , Inc., excluding all other em-
ployees, professional employees, guards, and supervisors
as defined in the Act constitute a unit appropriate for
collective bargaining.
5. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
6. Milford Landscaping & Maintenance, Inc. has com-
mitted an unfair labor practice within the meaning of
Section 8(a)(1) and (5) of the Act by having abrogated
and having failed and refused to honor the AGC and
CCIA contracts covering its employees employed in the
unit described in paragraph 4 above, which contracts are
binding on it as a single employer with, and alter ego of,
Milford Services, Inc.
7. The processing of the allegations of the complaint is
not barred by Section 10(b) of the Act.
REMEDY
Milford Landscaping & Maintenance, Inc. and Milford
Services, Inc., as a single employer , shall be ordered to
cease and desist from engaging in conduct undermining
their obligation to honor the AGC and CCIA contracts
and to instead give full force and effect to these con-
tracts and to amendments and subsequent agreements
thereto with respect to laborers they employed, retroac-
tive to June 29, 1987, in the following unit, appropriate
for collective bargaining:
All laborers employed by them as a single employer
at construction jobsites, excluding all other employ-
ees, professional employees, guards and supervisors
as defined in the Act.
As a single employer, these companies will be required
to take the actions necessary to fulfill these contractual
commitments , including but not limited to:
(1) Reimbursing former and current employees for any
loss of wages or benefits they may have incurred since
June 29, 1987, by reason of the failure of these compa-
nies to apply to those employees the established terms
and conditions of the AGC and CCIA contracts , with in-
terest, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(2) Reimbursing those employees for actual costs they
incurred (such as payments to health care providers and
to third party insurees) by reason of the failure of those
companies to make required contributions to agreed-on
MILFORD SERVICES
health care and insurance plans, with interest as comput-
ed. New Horizons, supra.
(3) Reimbursing hiring hall applicants (who would
have been employed but for the failure of these compa-
nies to represent, since June 29, 1987 , referrals as provid-
ed for in the AGC and CCIA contracts) for any loss or
wages or benefits they may have incurred and for actual
costs they incurred, as described above, by reason of the
failure of these companies to make required contributions
to agreed-on health care and insurance plans . Interest on
lost wages and benefits and on actual costs shall be as-
sessed and shall be computed as in New Horizons, supra.
(4) Making all required payments to various trust
funds established by the AGC and CCIA contracts. In-
terest, if any, shall be determined in the manner set forth
in Merryweather Optical Co., 240 NLRB 1213 (1979).
Copies of the attached notice shall be posted at the
principal place of business of Milford Landscaping &
Maintenance , Inc., and Milford Services , Inc., and at
their construction jobsites. In addition, they will furnish
signed copies of the notice to enable the Union to post
them at its office and meeting places . See Apex Decorat-
ing Co., 275 NLRB 1459, 1474 (1978).
On these findings of fact and conclusions of. law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Milford Landscaping & Maintenance,
Inc., and Milford Services , Inc., as a single employer,2
Milford, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the Connecticut Laborers District Council on behalf of
its local affiliates , Laborers' International Union of North
America, AFL-CIO, by failing or refusing to apply to
the employees in the unit described in the remedy sec-
tion above the terms and conditions set forth in the col-
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 pur-
poses.
2 No order shall issue as to Milford Nurseries , Inc. as it is defunct and
none as to Eastern Leasing , Inc., as it is but a holding company . Further,
although I have determined that the Respondent Companies are alter
egos, it is unnecessary to designate them here as such as the remedial
provisions are the same.
691
lective-bargaining agreement the District Council has
with the Labor Relations division, the Associated Gener-
al Contractors of Connecticut, Inc. and in amendments
or successor agreements thereto (the AGC contract) and
also in the collective-bargaining agreement the District
Council has with Connecticut Construction Industries
Association, Inc. and in amendments or successor agree-
ments thereto (the CCIA contract).
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the, following affirmative action necessary to
effectuate the policies of the Act.
(a) Maintain and give effect to the AGC and CCIA
contracts, retroactive to June 29, 1987, including but not
limited to the matters specified in the remedy section
above.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at their place of business and at each of their
construction jobsites copies of the attached notice
marked "Appendix."3 Copies of the notice, on forms
provided by the Regional Director for Region 34, after
being signed by the Respondent's authorized representa-
tive, 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 materi-
al.
(d) Sign and return to the Regional Director sufficient
copies of the notice, for posting by the Union, if it is
willing , at its offices and meeting places, including all
places where notices for members are customarily
posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
a 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 Nation-
al 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."