Nelson's Storefront Systems

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 534 (N.L.R.B. 1991)

534
304 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We deny the Respondent’s motion to reopen the record for recommended
order as a deposition in an unrelated matter taken several months after the
hearing in this case.
2 In affirming the judge’s ruling granting the General Counsel’s alternative
motion to strike a posthearing exhibit and related arguments submitted by the
Respondent, we do not rely on whether the Respondent’s principal official,
Terry Nelson, had a valid, persuasive reason for failing to appear at the hear-
ing in response to the General Counsel’s subpoena. As noted in the judge’s
decision, the Respondent’s attorney at the hearing was provided a full oppor-
tunity to develop a record and he chose to proceed with the record as devel-
oped.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
The Respondent has also stated in its exceptions that the judge misconstrued
the notice reopening provision of the collective-bargaining agreement between
the Sheet Metal Contractors’ Association and the Union. The Respondent is
correct. Under art. XXII of the multiemployer agreement, that agreement
would continue in effect from year to year unless written notice of reopening
was given not less than 90 days prior to expiration, rather than within 90 days
of expiration as stated by the judge. This technical correction, however, has
no bearing on whether the Respondent, an individual employer signatory to
a separate supplemental agreement, gave timely notice of its termination of the
collective-bargaining agreement. As an individual party to the collective-bar-
gaining agreement, the Respondent, by the terms of the supplemental agree-
ment, was allowed to terminate the agreement only within 30 days following
its receipt of each new collective-bargaining agreement. The Respondent did
not avail itself of this contractual right after receiving a copy of the newly
negotiated 1990–1992 collective-bargaining agreement, and it is therefore
bound to the terms of the 1990–1992 agreement.
4 We note that on May 10, 1988, the Respondent executed a document vol-
untarily recognizing the Union as the collective-bargaining representative
under Sec. 9(a) of its sheet metal workers based on a contemporaneous show-
ing of majority status. The Respondent has not raised in this proceeding any
contention that the Union was not the employees’ majority representative. We
therefore do not rely on the judge’s references to principles set forth in John
Deklewa & Sons, 282 NLRB 1375 (1987), with respect to nonmajority bar-
gaining relationships established pursuant to Sec. 8(f) and apply Board law
under Sec. 9(a) of the Act.
5 The General Counsel has excepted to the remedy ordered by the judge to
the extent that it covers only the Respondent’s delinquencies in payments to
the Union’s Health and Welfare and Pension Funds. We agree that the remedy
is too limited; it covers neither the Respondent’s failure to pay contractually
required wages nor delinquencies in the Respondent’s contractually required
payments to other fringe benefit funds that are mandatory subjects of bargain-
ing. Accordingly, we shall require the Respondent to make unit employees
whole, with interest, for any loss of wages and benefits they may have sus-
tained as a result of the Respondent’s unlawful contract repudiation in the
manner specified in Ogle Protection Service, 183 NLRB 682 (1970) and New
Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also require the
Respondent to remit all payments it owes to fringe benefit funds that are man-
datory subjects of bargaining and to reimburse employees for any expenses
they may have incurred because of the Respondent’s failure to make those
payments, as prescribed in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). The amounts to be paid into
the benefit funds and any interest thereon shall be determined as specified in
Merryweather Optical Co., 240 NLRB 1213 (1979).
Nelson’s Storefront Systems, Inc. and Viking Glass
Company, Inc., alter egos and Sheet Metal
Workers’ International Association Local No.
73. Cases 13–CA–29064 and 13–CA–29320
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On January 14, 1991, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent, Nelson’s Storefront Systems, Inc. and
Viking Glass Company, Inc., filed exceptions and a
supporting brief and requested leave to add to the
record a deposition taken after the hearing. The Gen-
eral Counsel filed exceptions and a supporting brief, a
brief in response to the Respondent’s exceptions, and
an opposition to the Respondent’s motion for leave to
file the posthearing deposition.
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 briefs1 and has
decided to affirm the judge’s rulings,2 findings,3 and
conclusions4 and to adopt his recommended Order as
modified.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nel-
son’s Storefront Systems, Inc. and Viking Glass Com-
pany, Inc., alter egos, Lemont, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Refusing to bargain with the Union by failing
and refusing to make contractually required payments
to the Health and Welfare and Pension Funds and to
other Union funds that are mandatory subjects of bar-
gaining.’’
2. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Pay all delinquent Health and Welfare and Pen-
sion Fund payments, and other fund payments that are
mandatory subjects of bargaining, as required by the
parties’ relevant collective-bargaining agreements.
‘‘(b) In the manner set forth in the remedy section
of this decision, make unit employees whole for any
losses resulting from the Respondent’s failure to ad-
here to the relevant collective-bargaining agreements,
including reimbursing them for any loss of wages and
benefits and expenses arising from the Respondent’s
failure to pay health insurance benefits and make other
contractually required fund contributions that are man-
datory subjects of bargaining.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
535NELSON’S STOREFRONT SYSTEMS
1 All following dates will be in 1989 unless otherwise indicated.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT repudiate our automatically renewed
collective-bargaining agreement with Sheet Metal
Workers’ International Association Local No. 73 by
failing and refusing to recognize and bargain with the
Union as collective-bargaining representative of our
employees.
WE WILL NOT refuse to bargain with the Union by
failing and refusing to make contractually required
payments to the Health and Welfare and Pension
Funds and to other funds that are mandatory subjects
of bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL pay all delinquent Health and Welfare and
Pension Fund payments, and other fund payments that
are mandatory subjects of bargaining, as required by
the parties’ relevant collective-bargaining agreements.
WE WILL make our unit employees whole for any
losses resulting from our failure to adhere to the rel-
evant collective-bargaining agreements, including reim-
bursing them for any loss of wages and benefits, and
for expenses arising from our failure to pay health in-
surance benefits and other contractually required fund
contributions that are mandatory subjects of bargain-
ing, plus interest.
Jessica T. Willis, Esq., for the General Counsel.
Richard Goldner, Esq., of Naperville, Illinois, and John F.
Horvath, Esq., of Chicago, Illinois, for the Respondent.
Robert T. Oleszkiewicz, Esq., of Chicago, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Chicago, Illinois, on July 16, 1990. Sub-
sequent to an extension of the due date, briefs were filed by
Respondent and the General Counsel. The proceeding is
based upon charges filed November 3, 1989,1 and March 6,
1990, by Sheet Metal Workers’ International Association
Local No. 73. The Regional Director’s consolidated com-
plaint dated April 11, 1990, alleges that Respondent Nelson’s
Storefront Systems, Inc., and its alter ego Viking Glass Com-
pany, Inc., of Lemont, Illinois, violated Section 8(a)(1) and
(5) of the National Labor Relations Act by withdrawing rec-
ognition of and repudiating the collective-bargaining agree-
ment and refusing to abide by the terms and conditions set
forth in that agreement with the Union. Hearing was sched-
uled to commence March 29, 1990, however, Respondent
failed to submit an answer to the initial complaint served De-
cember 15, 1989. An additional service of the complaint and
notice of hearing was made January 2, 1990, and again the
Respondent failed to submit an answer. The Union filed an
additional charge in Case CA–29320 alleging that the Re-
spondent violated Section 8(a)(1) and (5) of the Act since on
or about Nelson’s inception in September 1989 by continuing
to fail and refuse to recognize the Union as the exclusive
collective-bargaining representative of the unit under Section
9(a) of the Act and by continuing to repudiate the collective-
bargaining agreement and by failing and refusing to abide by
the terms and conditions set forth in that agreement.
At the commencement of the hearing on July 16, 1990,
Respondent’s counsel orally moved to postpone the hearing
indefinitely alleging that Respondent’s President, Terry Nel-
son, had been in a serious automobile accident in June 1989,
and was incapable of testifying due to his emotional and
mental status. Counsel also expressed a willingness to stipu-
late information into the record and 15 joint exhibits were
thereafter received into evidence. In support of his motion
Respondent introduced a letter dated July 12, 1990, ad-
dressed to ‘‘Whom It May Concern’’ signed by Maria C.
Paliteo, M.D., as attending psychiatrist. The letter asserted
that Nelson was being treated for depression and
posttraumatic stress disorder, was taking antidepressant medi-
cation, that he was vulnerable and reactive under stress to the
point of loss of control, and that testifying in court might
trigger deterioration and explosive behavior. In response to
the court’s inquiry, counsel disclosed that Nelson presently
was running the business as its principal (and only) operating
manager (with some assistance from his wife and step-
daughter). Respondent’s motion for a continuance was denied
and the proceeding moved forward in an attempt to develop
a record sufficient to resolve the issues without requiring
Nelson’s attendance in response to the General Counsel’s
subpoena. During the presentation of the General Counsel’s
case in chief, the Respondent introduced and had received
two exhibits regarding 1988 tax records. After the General
Counsel rested, the Respondent introduced a financial state-
ment, which was received, and an unsigned letter purported
to be a communication from former Vice President Dennis
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Plaskett to Nelson, which was rejected. Respondent then said
it had nothing further to present. The court then asked:
Is Respondent prepared to make a defense based on the
record as it exists in his arguments of the law, based
on the exhibits of record?
Counsel for the Respondent replied:
Yes, your Honor. Again, based on my client’s, I will
say inability to testify competently, this attorney on his
behalf will make the argument based on what has been
introduced into evidence at this time.
On brief, Respondent, now represented by different coun-
sel then at the hearing, included a proposed Exhibit 5, an un-
signed affidavit by Nelson. By letter received September 7,
10 days after the brief due date of August 28, a signed and
notarized copy of the same affidavit was submitted. By mo-
tion dated that same day the General Counsel asked that the
brief be stricken, or in the alternative, that proposed Exhibit
5 be stricken and that arguments related thereto be not con-
sidered and/or rejected. By pleading dated October 15, Re-
spondent answered and contends that its brief and proposal
exhibit are proper.
Under the circumstances presented, I conclude that the Re-
spondent was given ample opportunity to present evidence
and witnesses and it is not shown that it was not allowed to
develop a record sufficient to allow a presentation of its ar-
guments on brief. Otherwise, Respondent does not show why
the information sought to be provided is relevant nor does
it show good cause why it should be allowed to present an
untimely affidavit from a witness it declined to bring forward
in response to the General Counsel’s subpoena.
Although the matter of compliance with the subpoena was
not pursued because of the development of the record
through the stipulation of exhibits, it is apparent that Re-
spondent’s principal official, Nelson, did not have a persua-
sive, valid reason for his failure to appear. In this regard it
is noted that his doctor’s letter is lacking in proof of authen-
ticity and Nelson’s purported incompetent condition is con-
tradicted by the showing that he is fully capable of running
and does run all aspects of Respondent’s business. If the
matter had not proceeded as agreed to by Respondent’s
counsel, it would have been necessary to give the General
Counsel the opportunity to have Nelson’s purported condi-
tion evaluated by its own psychiatrist. Otherwise, the Re-
spondent has not sought appropriate good cause, permission
from the court to file any supplemental material and, at the
hearing, Respondent made no attempt to arrange for any pos-
sible alternative to Nelson’s appearance in court and Re-
spondent made no attempt to have any other person with
some knowledge of the business, such as Nelson’s wife or
former business associate, testify regarding any aspect of the
controversy.
The circumstances presented are not such that could allow
discretionary disregard of timely and proper procedure and
they are not circumstances that show that the Respondent
somehow was precluded from properly and fully litigating
the complaint against it. Accordingly, the General Counsel’s
alternative motion is granted and Nelson’s affidavit and all
matter in Respondent’s brief relative thereto are hereby
stricken.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the installation of glass with
sheet metal frames. It annually purchases and receives goods
and materials valued in excess of $50,000 directly from
points outside Illinois and at all times material it is, and has
been an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union is party to a master collective-bargaining agree-
ment with the Sheet Metal Contractor’s Association which
covers 350 to 400 contractors in the Chicago area. Respond-
ent is party to this agreement. As set forth in the agreement,
the Union represents employees in the following appropriate
unit:
All employees engaged in (a) the manufacture, fabrica-
tion, assembling, handling, alteration, repairing and
servicing of all ferrous or non-ferrous metal work of
U.S. No. 10 gauge or its equivalent or lighter gauge
and all other materials used in lieu thereof and of all
air-veyor systems and all air handling systems regard-
less of material used including the setting of all equip-
ment and all reinforcements therewith; (b) all lagging
over insulation and all duct lining; (c) testing and bal-
ancing of all air handling equipment and duct work; (d)
the preparation of all shop and field sketches used in
fabrication and erection, including those taken from
sketches, and (e) all other work included in the jurisdic-
tional claims of the Sheet Metal Workers Association
including the operation of computerized equipment used
in but not limited to the performance of the work de-
scribed above excluding supervisors as defined in the
Act.
Respondent became party to the master agreement in No-
vember 1983 by virtue of a supplemental agreement signed
by Terry Nelson as president of Viking Glass Company, Inc.
By signing the supplemental agreement Respondent agreed to
be bound to the terms and conditions of the master agree-
ment along with all renewals, future amendments, and ad-
denda thereof. It also provided that the Respondent could ter-
minate the agreement only upon written notice to the Union
during the 30-day period following Respondent’s receipt of
any newly negotiated agreement.
Although the Union was not obligated to secure additional
supplemental agreements to continue Respondent’s bargain-
ing obligations under the contract, Business Agent Leroy
Esposito testified that he solicited an additional supplemental
agreement from Viking in January 1985 because Viking
Glass Company had moved its business operations to a new
location. Dennis Plaskett, as vice president of Viking signed
the additional supplemental agreement in January 1985 and
thereby reaffirming Viking Glass Company’s bargaining obli-
gations under the contract.
537NELSON’S STOREFRONT SYSTEMS
2 Lisa Erklin does not appear to have been hired by Nelson’s Storefront Sys-
tems, Inc. according to a comparison of Jt. Exhs. 15(g) and (h). The Wage
Report filed for the third quarter of 1989 lists Heidi Maynard as working for
Viking Glass Company (Jt. Exh. 15(g)). The wage report filed for the 1st quar-
ter of 1990 by Nelson’s Storefront Systems, Inc. and does not list Heidi May-
nard (Jt. Exh. 15(h)). Maynard and Nelson share the same social security num-
ber and therefore, absent contrary evidence in the record, should be presumed
to be the identical employee.
In May 1988, at the request of the Union (and with spe-
cific reference to the Deklewa proceeding, infra), Terry Nel-
son as president of Viking executed a document entitled
‘‘Acknowledgment of the representative status of Sheet
Metal Workers Local Union No. 73 Sheet Metal Workers’
International Association, AFL–CIO’’ by which Respondent
voluntarily recognized the Union as the exclusive bargaining
representative of a majority of its sheet metal employees pur-
suant to Section 9(a) of the Act. Prior to Nelson’s execution
of the document, the Union had solicited authorization cards
from all sheet metal employees of the various contractors
who were party to the contract. Based on this objective evi-
dence of majority support, the Union solicited voluntary 9(a)
recognition from the contractors who were party to the con-
tract and Nelson recognized the Union as the 9(a) bargaining
representative of his employees by signing and submitting
the ‘‘Acknowledgement’’ document mailed to him by the
Union in order to protect itself in recognition of the Board’s
decision in John Deklewa & Sons, 282 NLRB 1375 (1987).
Respondent periodically failed to meet its contractual obli-
gation to make contributions to the Union’s health and wel-
fare and pension benefit fund and, during June 1989, the
Union learned that Nelson was using nonunion employees to
perform bargaining unit work. When Business Representative
Esposito confronted Nelson during early June, Nelson told
Esposito that Nelson intended to get rid of the Sheet Metal
Workers’ Union just as he had done with the Glaziers’
Union.
Shortly thereafter, Esposito received a letter dated June 15,
from Nelson in which Nelson purported to repudiate the con-
tract and withdraw recognition from the Union (see the dis-
cussion, infra). Esposito did nothing further with the letter
because this attempted repudiation was untimely, as it was
mid-term in the contract (the contract then in effect did not
expire until May 31, 1990).
On September 21, Nelson appeared before the employer
association union joint arbitration board on the matter of his
failure to make payments to the Union’s health and welfare
fund. Nelson informed the panel that he was operating Vi-
king nonunion and had been doing so since June. When Tim-
othy Roche, union president, informed Nelson that he could
not unilaterally abrogate the contract mid-term, Nelson ex-
plained that he had terminated the contract by letter dated
June 15, which was sent to Lee Esposito. Roche informed
Nelson that the Union had no notice of his attempted repudi-
ation prior to this meeting and Nelson was told that his at-
tempted termination was ineffective because it was untimely,
and that Nelson was still obligated to make contributions to
the Union’s funds as called for by the contract.
The day after Respondent verbally announced its termi-
nation of the contract during the joint arbitration board meet-
ing, Nelson filed articles of incorporation for Nelson’s Store-
front Systems, Inc.
Nelson, as president of Viking Glass Company, Inc. filed
an article of incorporation with the State of Illinois in 1982
and stated that Viking’s business purpose was the ‘‘sale and
installation of glass, aluminum and related products.’’ Dennis
Plaskett was vice president and both Nelson and Plaskett
were identified as shareholders. Nelson filed articles of incor-
poration with the State of Illinois on behalf of Nelson’s
Storefront Systems, Inc. on September 22, 1989, and its busi-
ness purpose as stated in its articles of incorporation was to
‘‘furnish and install glass, architectural aluminum products,
windows and entrance systems; including doors, door frames
and door hardware. The buying and selling of real estate.
General contracting.’’ The record, however, contained no
evidence Nelson’s Storefront Systems, Inc. bought and sold
real estate.
After its incorporation in September Nelson’s Systems,
through Terry Nelson, assumed all of Viking’s contractual
obligation for an ongoing construction project located at the
Chicago area Chatham Ridge Shopping Center in an agree-
ment dated November 1. Nelson’s Systems also assumed re-
sponsibility for other, ongoing Viking projects including two
Cub Food Store projects located in Chicago Heights, Illinois,
and Seaway Bank, two South Loop Distribution Center
projects and the Chatham Ridge II, project all located in Chi-
cago. Invoices for each of the above projects show Viking
Glass Company and Nelson’s Storefront Systems, Inc. shared
the same business address.
On November 17, Nelson’s Systems assumed the remain-
ing months of Viking’s lease. Nelson executed the lease as-
sumption agreement and signed as president of both compa-
nies.
On January 24, 1990, Nelson’s Systems, through Terry
Nelson, purchased Viking’s inventory of office equipment.
Nelson signed the sales agreement as president of both com-
panies. On that same day, Nelson executed an additional
agreement for both companies where by Nelson’s Systems
agreed to purchase shop tools and equipment from Viking in-
cluding a break metal machine, cutting chip saws, wet sand-
er, drill press, grinds, scaffolds, van, hammer drills, ladders,
and a radial arm saw.
Joint Exhibit 8 appears to document payments and depos-
its by and between the two companies throughout November,
December 1989 and January 1990 and Joint Exhibit 9 shows
payment by Nelson’s System to Illinois Bell to clear Vi-
king’s account before it took over the phones. Joint Exhibit
10 is an invoice for payment in full to Viking by Mark IV
Realty for work performed, dated March 30, 1990, 6 months
after Nelson’s Systems was incorporated. The invoice is writ-
ten on stationery bearing the name Viking Glass Company,
Inc. at the top and was signed by Terry Nelson as president
of Viking Glass Company.
Joint Exhibits 15(g) and 15(h) are quarterly employee con-
tribution and wage reports filed by Respondent for the third
quarter, 1989 and frist quarter 1990 respectively and show
that Nelson’s Systems continued to employ all but one
former Viking Glass Company employee.2
Esposito testified that subsequent to Nelson’s Systems in-
corporation he continued to observe Viking vehicles and em-
ployees performing bargaining unit work at jobsites through-
out January and February 1990. Esposito testified that he
spoke with employees at a jobsite located in February 1990
and asked about whether they worked for Viking (Esposito
presented himself as a general contractor looking for a price
quote). Esposito was told that Viking was now Nelson’s Sys-
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tems and was given a piece of stationery bearing a Nelson’s
System letterhead and phone number and was told to contact
Terry Nelson for a quote.
Upon expiration of the collective-bargaining agreement
then in effect, on or about June 1990 Respondent was mailed
a copy of the newly negotiated agreement between the Union
and the Contractor’s Association. The newly negotiated
agreement is effective from June 1, 1990, to May 31, 1992.
Respondent made no attempt to terminate the contract by
giving the requisite notice to the Union during the 30-day pe-
riod following Respondent’s receipt of the agreement as
called for by the agreement.
III. DISCUSSION
The record here clearly shows that the companies con-
trolled by Terry Nelson have failed to meet contractual obli-
gations to the Union. On brief the Respondent presents nu-
merous arguments in defense of its actions, these arguments,
however, are consistently at odds with established Board law.
First, it asserts that Nelson’s Systems is not the alter ego
of Viking Glass. To the contrary, I find that the record clear-
ly shows that Nelson’s Systems was created by its President
Terry Nelson to evade bargaining obligations which arose
out of the collective-bargaining agreement between Viking
Glass and the Union. Alter ego status must be found where,
as shown here, the two assertedly separate enterprises have
‘‘substantially identical’’ management, business purpose, op-
erations, equipment, customers, supervision, and ownership.
Advance Electric, 268 NLRB 1001, 1002 (1984). Here, Terry
Nelson is president and principal shareholder of both enter-
prises. Both enterprises share identical employees, office
equipment, tools, machinery, business address, customers,
and business purpose and Nelson’s Systems assumed Vi-
king’s lease, debts, and contractual obligations. Moreover, it
is shown that Nelson’s Systems was created on September
22, 1989, in an attempt to evade bargaining obligations be-
tween Viking Glass and the Union, after Respondent first
made an ineffective attempt to repudiate the contract and
withdraw recognition of the Union and after Nelson appeared
before the joint arbitration board on September 21, see
Fugazy Continental Corp., 265 NLRB 1301 (1982). Nelson’s
Systems then assumed all of Viking’s remaining business op-
erations and the new corporation continued to lease the same
property, employ the same employees, utilize the same office
machinery, tools, and equipment and share the same cus-
tomers, business address, and business purpose. Accordingly,
I find that Nelson’s Systems is the alter ego of Viking Glass
and that it is responsible under the obligation of the bargain-
ing agreement with the Union, see also Capitol Steel & Iron
Co., 299 NLRB 484 (1990), and cases cited therein.
Respondent asserts that it is not bound by any agreement
because it is now a corporation whose place of business is
in a county outside of Cook and Lake Counties, Illinois,
where Local 73 of the Union hold area jurisdiction. Respond-
ent has the burden of proving a change in the identity or the
appropriateness of its employees’ bargaining representative,
Insulfab Plastics, 274 NLRB 817, 821 (1985), and here its
mere assertion regarding the Union’s status fails to show any
meaningful change relevant to the parties’ agreement, espe-
cially in view of the fact that the work performed by the Re-
spondent is shown to have occurred at specific jobsites in
Cook and Lake Counties, making Nelson’s corporate location
essentially irrelevant. Accordingly, it is concluded that Re-
spondent’s change in its corporate location had no effect on
the validity of the agreement between it and the Union.
The Respondent also argues that any agreement automati-
cally terminated 30 days after the Union’s receipt of Nel-
son’s letter on behalf of Viking Glass which was sent on
June 15, 1989, within 30 days of an addendum to the agree-
ment which took effect June 1, 1989.
The agreements signed by Nelson and other representative
of the Respondent containing a provision which states that it
would remain in effect until served with ‘‘written notice on
the other party by certified mail, return receipt request, of its
desire to terminate this agreement’’ and ‘‘only during a pe-
riod of 30 days following employer’s receipt of each new
collective-bargaining agreement.’’ Here, however, there is no
indication that the addendum (which reflects only the up-
dated wage scale to then take effect), constitutes a ‘‘new col-
lective bargaining agreement’’ nor is their any showing that
the letter of June 15 otherwise met the certified mail require-
ments.
Moreover, the letter itself is ambiguous and does not clear-
ly refer to a desire to terminate the parties agreement but in-
stead refers to a ‘‘current financial situation that will not
allow me to employ members of Sheet Metal Local No. 73,’’
that ‘‘I would rather be disinvolved than have you take me
to court for large amounts of unpaid benefits,’’ and a state-
ment that:
It is not necessary for me to cancel the agreement that
was signed by Terry Sweeney approximately five years
ago. He was not a corporate officer and he was never
given a letter of resolution authorizing him to sign con-
tracts or agreements of any kind.
A Terry Sweeney did sign a supplemental agreement for
Viking Glass on November 1, 1983, however, Terry Nelson
himself signed an identical document on the same day as
‘‘president’’ of Viking. Plaskett signed a supplemental agree-
ment as vice president of Viking on January 1, 1985, and
Nelson himself signed (at the Union’s request) an acknowl-
edgment of representative status of Local 73 on May 10,
1988, and, accordingly, I find that Nelson’s (and Plaskett’s)
endorsements of the supplemental agreements noted above
make any question about Sweeney’s authority irrelevant and
I find that any assertion that no valid agreement exist is
baseless.
Under these circumstances, I also find that the letter of
June 15 was not a clear, effective, or valid satisfaction of an
contractual provisions that would automatically or otherwise
act to terminate the collective-bargaining agreement in 30
days or at any time.
Respondent also urges, in the alternative, that Nelson’s
discussion of the contract termination during his appearance
before the joint arbitration board constituted a ‘‘conference’’
regarding the letter of termination and thereby allowed the
agreement to end on September 21 when the conference was
terminated by either party, in accordance with the language
of the agreement. This argument is inapposite inasmuch as
the wording of the agreement referring to a ‘‘conference’’ is
precondition upon a written notice of reopening given within
90 days of the expiration date, a condition not properly met
herein. Moreover, the so called ‘‘conference’’ was not a con-
539NELSON’S STOREFRONT SYSTEMS
3 Because the provisions of employee benefit fund agreements are variable
and complex, the question of whether the Respondent must pay any additional
amounts into the benefit funds in order to satisfy our ‘‘make- whole’’ remedy
must be left to the compliance stage. Merryweather Optical Co., 240 NLRB
1213 (1979).
4 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 objec-
tions to them shall be deemed waived for all purposes.
ference relative to any notice of reopening between the par-
ties to the agreement but was before a joint arbitration board
whose duties at this meeting were not shown to embrace
consideration of termination of the collective-bargaining
agreement itself.
Respondent’s final alternative contention is that the letter
of June 15 and the verbal notice before the joint arbitration
board manifest an intent to terminate and were sufficient to
terminate the agreement as of May 31, 1990, the date the
then-current agreement expired. This argument again fails to
recognize the lack of proper and timely written notice as well
as the inappropriateness of the parties at the arbitration con-
ference vis-a-vis the contract and I conclude that Nelson’s
acts failed to perfect Respondent’s alleged intent to terminate
its contractual relationship, especially since all that was re-
quired was the taking of the simple step of providing written
notice in the time period prior to the current agreement expi-
ration date (and in order to avoid the automatic renewal pro-
visions), in accordance with the provisions of the agreement.
In summation, I find that Respondent clearly became party
to the collective-bargaining agreement between the Contrac-
tor’s Association and the Union by virtue of supplemental
agreements signed in 1983 and 1985 and when in May 1988
it voluntarily recognized the Union as the 9(a) bargaining
representative of a majority of Respondent’s employees
based upon objective proof offered by the Union as to its
representation status. Respondent therefore was not free to
unilaterally repudiate the contract midterm or withdraw rec-
ognition from the Union. Respondent’s bargaining obliga-
tions arising under the contract continued to run after Re-
spondent’s first attempted repudiation in its letter to the
Union dated June 15, 1989, through the present time and Re-
spondent was prohibited from unilaterally repudiating the
contract midterm, see John Deklewa & Sons, supra, and Z-
Bro, Inc., 300 NLRB 87 (1990).
The bargaining agreement is enforceable through applica-
tion of Section 8(a)(5) of the Act and either party is prohib-
ited from unilateral repudiation of the agreement until it ex-
pires or until that employer’s unit employees vote to reject
or change their representative. Here, Nelson’s Systems, as
alter ego to Viking Glass assumed these continued bargain-
ing obligations. The collective-bargaining agreement between
the parties had not expired but was only in midterm at the
time of Respondent asserted attempts to repudiate and with-
draw recognition in both June and September 1989, and Re-
spondent’s bargaining obligations continued to run. There is
no evidence that Respondent made any attempts to terminate
the contract upon its expiration in May 1990. The contract
was renegotiated by the Contractor’s Association and it is
currently in effect until May 31, 1992. Respondent therefore
continues to be bound to the agreement, see Fortney &
Weygandt, Inc., 298 NLRB 863 (1990).
Respondent was precluded from unilaterally terminating
the contract at any time after its expiration in May 1990, by
any means other than those provided in the agreement itself.
Respondent therefore continues to be bound until expiration
of the current agreement and accordingly, I find that the
General Counsel has shown that Respondent has attempted to
withdraw recognition and to repudiate the contract midterm,
that it has refused to recognize the Union, and has further
refused to abide by the terms and conditions of the agree-
ment by failing and refusing to make required contributions
to the Union’s health and welfare and pension benefits funds,
and that it has thereby violated Section 8(a)(1) and (5) of the
Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent Nelson’s Storefront Systems, Inc., and Vi-
king Glass Company, Inc., are alter egos and a single, con-
tinuous employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent was bound by the automatic renewal
clause of both the 1983 and 1985 supplemental agreements
between it and the Union.
4. By repudiating the automatically renewed 1985 agree-
ment on or about June 15, 1988, and by withdrawing rec-
ognition of the Sheet Metal Workers’ International Associa-
tion Local No. 73 as the exclusive 9(a) bargaining represent-
ative of a majority of Respondent’s employees in the bar-
gaining unit, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
5. By ceasing during the term of the contract to make con-
tractually required payments to the health and welfare fund,
and the pension fund, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act it is recommended that the Respondent be ordered to
cease and desist therefrom and to take the affirmative action
described below which is designed to effectuate the policies
of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that it be ordered to abide by the terms and con-
ditions set forth in the collective-bargaining agreement with
the Sheet Metal Workers’ International Association Local
No. 73 and that Respondent make whole the appropriate
funds and the unit employees by making all contributions to
the health and welfare fund and the pension fund, as pro-
vided in the collective-bargaining agreement that have not
been paid and that would have been paid but for the Re-
spondent’s unlawful discontinuance of payments.3 Respond-
ent shall also be ordered to reimburse the unit employees for
any expenses ensuing from its failure to make such pay-
ments, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
with interest computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ORDER
The Respondent, Nelson’s Storefront Systems, Inc. and Vi-
king Glass Company, Inc., Lemont, Illinois, alter egos, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating its automatically renewed collective-bar-
gaining agreement with Sheet Metal Workers’ International
Association Local No. 73 by failing and refusing to recog-
nize and bargain with the Union as collective-bargaining rep-
resentative of Respondent’s employees.
(b) Refusing to bargain with the Union by failing and re-
fusing to make contractually required monetary payments to
the health and welfare and pension fund, without having af-
forded the Union an opportunity to bargain about such acts
and conduct and the effects of such acts and conduct.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay all delinquent health and welfare fund and pension
fund payments as required by the parties’ collective-bargain-
ing agreement.
(b) Make unit employees whole for any losses resulting
from the Respondent’s failure to adhere to the collective-bar-
gaining agreement, including reimbursing them for expenses
ensuing from the Respondent’s failure to pay the health in-
surance benefits pursuant to the collective-bargaining agree-
ment in the manner set forth in the remedy section of this
decision.
(c) 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 ana-
lyze the amount of payments due under the terms of this
Order.
(d) Post at its facility in Lemont Illinois, copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 13 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondents have
taken to comply.