Omnitest Inspection Services, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1990

297 N.L.R.B. 752 (N.L.R.B. 1990)

752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Omnitest Inspection Services, Inc. and Patrick Bar-
rett
Ommtest Inspection Services, Inc.; Amspec Techni-
cal Services, a Partnership; Amspec Technical
Services, Inc. and Local 2B, International
Union of Operating Engineers, AFL-CIO, and
United Association of Journeyman and Appren-
tices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO,
Party in Interest. Cases 22-CA-14369 and 22-
CA-14673
February 16, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 12, 1988, Administrative Law Judge
James F Morton issued the attached decision Re-
spondents Amspec Technical Services, a partner-
ship, and Amspec Technical Services, Inc, a single
employer (Amspec), 1 filed exceptions to the
judge's decision and a supporting bnef, 2 as well as
a brief in opposition to the General Counsel's
motion and supporting memorandum to reopen the
record for the purpose of amending the consolidat-
ed complaint
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 bnefs3 and
has decided to affirm the judge's rulings, findings,4
Respondent (Dimmest Inspection Services, Inc neither appeared nor
was represented by counsel in this proceeding
2 Respondent Amspec has requested oral argument The request is
denied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties
3 Following the Issuance of the judge's decision, the General Counsel
moved to reopen the record and amend the complaint in order to name
Daniel McCool, president and part-owner of each of the named Respond-
ents, as an individual party-respondent, based on alleged newly discov-
ered evidence showing that Amspec has gone out of business, and that
McCool is removing all of his personally owned assets, i e, equipment
and vehicles, from that Company Respondent Amspec's counsel, on
behalf of McCool, opposes amendment of the complaint, arguing, inter
al's, that It is precluded by Sec 10(b) of the Act and would be prejudi-
cial to McCool, wno was neither named in the charge or complaint nor
given nonce that he could be held liable as a party-respondent
The Board has discretion to grant motions to amend the complaint
after the close of the hearing (Sec 102 17 of the Board's Rules and Regu-
lations, Green Construction of Indiana, 271 NLRB 1503 (1984)) Although
in the exercise of this discretion we shall deny this motion, our action
does not preclude the General Counsel from raising the Issue of
McCool's personal liability in the compliance stage of this proceeding
See Concrete Mfg Co, 262 NLRB 727 fn 5 (1982), Southeastern Envelope
Co, 246 NLRB 423 (1979)
4 Respondent Amspec has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive 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 re-
versing his findings
and conclusions, as modified, and to adopt the rec-
ommended Order as modified 5
1 The judge found that Amspec was created as
an alter ego of Respondent Ommtest Inspection
Services, Inc (OTIS), and that it therefore legally
succeeded to OTIS' collective-bargaining agree-
ment with Local 2B, International Union of Oper-
ating Engineers, AFL-CIO (Local 2B) He accord-
ingly found that Amspec's withdrawal of recogni-
tion and repudiation of Local 2B's bargaining
agreement with OTIS violated Section 8(a)(5) and
(1) of the Act, and that its subsequent recognition
and execution of a contract (containing union-secu-
rity provisions) with United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefittmg Industry of the United States and
Canada, AFL-CIO (UA), violated Section 8(a)(2),
(3), and (1) of the Act We adopt the judge's find-
ings and conclusions for the reasons set forth
below
In March 1985, Daniel McCool, two other indi-
viduals, and a European financial group formed
OTIS for the purpose of conducting nondestructive
testing of the structural soundness of oil storage
tanks, pipelines, structural steel, and other solid ob-
jects by use of X-ray cameras, dyes, and ultrasonic
equipment As far as the record shows (see fn 18,
below), ownership of OTIS was held 60 percent by
the European group, 20 percent by McCool, and
10 percent by each of the other two individuals
McCool, a resident of the Chicago area, established
OTIS' testing business in leased premises in Wood-
bndge, New Jersey During the period relevant to
this proceeding, the Woodbndge facility operated
under the daily supervision and management of
Operations Manager Paul Owen McCool testified
that he used his Chicago residence as headquarters
for OTIS but maintained daily telephone contact
with the Woodbridge facility and visited it 1 week
each month
In April 1985, McCool hired as employees two
members of Local 2B, and signed a collective-bar-
gaining agreement with that Union, effective retro-
actively to March 15, 1985 The agreement provid-
ed, inter aim, for union security, employee refer-
rals, and a guaranteed 40-hour workweek for a unit
of all employees engaged in nondestructive testing
of pipelines and related work, and in "local" or
"call-out" work
From the outset, OTIS was financially depend-
ent on the European investment group which ini-
tially transmitted funds to McCool to cover payroll
costs on receipt of McCool's biweekly report on
5 The recommended Order and notice are modified to correctly identi-
fy the Party in Interest in this proceeding
297 NLRB No 118
OMNITEST INSPECTION SERVICES 753
OTIS' operations 8 Subsequently, in September or
October 1985, the European group established a
$100,000 line of credit with a Chicago bank for
that purpose About that same time McCool en-
tered into an agreement for OTIS to lease and use
McCool's personally owned vehicles and radio-
graphic equipment 7 In January 1986, 8 according
to McCool, OTIS had almost reached a break-even
point with respect to operational costs, but had not
yet begun to produce any profits to repay the cap-
ital invested by the European group, and in Febru-
ary OTIS began to experience serious cash flow
problems 9 Communications between McCool and
the European investors in April reveal that the
latter were unwilling or unable to provide further
financing, and on April 29, they advised McCool
by telex that they could no longer provide any fi-
nancing and "requested [him] to cease trading with
immediate effect "" McCool nevertheless contin-
ued his efforts to keep OTIS in operation 11 In late
May, McCool met with Local 2B representatives
to discuss a number of grievances filed with Local
2B by two brothers, Patrick and James Barrett,
who were former OTIS employees At that meet-
ing McCool agreed to pay Patrick Barrett for 16
hours of claimed pay, to recall the brothers to
work "at the first opportunity," and also to abide
by the referral hiring procedure in the Local 2B
contract 12 In that same meeting, McCool respond-
ed to Local 2B's demand for OTIS' then-delin-
quent contributions to its health and welfare and
pension funds, by advising the Union to abandon
8 According to McCool's testimony, he was required by the European
investment group to obtain prior approval from It before bidding certain
jobs and before making purchases in excess of $5000
7 McCool testified that OTIS' initial objective was chiefly to perform
pipeline work, which was his reason for teaming up with the European
investors who had the requisite financial capability and pipeline equip-
ment (crawlers), however, OTIS did not obtain the amount of pipeline
work that had been anticipated As a consequence, the bulk of OTIS'
jobs Involved radiographic X-ray testing of pipe and materials at refiner-
ies and in construction
8 All dates hereafter are 1986 unless otherwise Indicated
9 McCool testified that he Instructed OTIS' manager Owen in late Jan-
uary to lay off all the employees, and to retain only those who were will-
ing to work on a job-by-job basis (rather than a guaranteed 40-hour
week) As discussed Infra, the discharge of Patrick Barrett in February is
the subject of an 8(a)(3) and (1) violation found by the judge
" The record shdws that among OTIS debts was a $70,000 debt to
McCool under the equipment leases
" OTIS retained employees John Coulson and Terry Tamahashl, who
were hired in March In May OTIS hired David Gosendorfer, and also
placed a help-wanted advertisement for "X-ray technician—Level I and
Level II"
is Thereafter, in the first week of June, Owen called to request an em-
ployee referral from Local 2B's business representative Russell, and Rus-
sell referred Gary Whisenhunt, who was hired Russell called Owen a
few days later to ask why the Barrett brothers had not been recalled
Owen told Russell he had changed his mind about hiring the Barretts,
and also that he was leaving OTIS A few days later, Russell visited the
Woodbndge facility and spoke with OTIS employees Coulson Gemen-
dorfer, and Whtsenhunt On this visit, Coulson informed Russell that
Owen no longer was the OTIS supervisor and that Coulson was his re-
placement
those grievances, saying that if it did not, he would
close OTIS and open a new company
On July 23, Local 2B's International representa-
tives met with McCool, at McCool's request, to
discuss the status of OTIS and the current con-
tract McCool made the following statements that
OTIS could not afford to make the health and wel-
fare and the pension fund payments, that he had
been talking with UA representatives about enter-
ing into a contract with that union, and that he
might close OTIS and open a new company at the
same location A representative of Local 2B tele-
phoned the pension fund official during the course
of the meeting and announced that the Union
would accept a $10,000 payment in settlement of
OTIS' fringe benefit fund arrearages (which it cal-
culated at $22,000) No agreement was reached at
that meeting In August, OTIS' lawyer wrote to
offer a $4000 payment on behalf of "the liquidated
company" The offer was not accepted
McCool testified that he closed OTIS on June
30, and that on the following day he and Coulson
began operating substantially the same business as a
partnership named Amspec Technical Services
(Amspèc) McCool owned 80 percent of the part-
nership and Coulson owned the rest Geisendorfer
and Whisenhunt, who were the only employees of
OTIS when it closed, were hired as Amspec's em-
ployees Coulson became the operations manager
of Amspec and the supervisor of its employees He
also solicited business, handled other managerial
tasks, and performed field testing At least at the
outset of its operations, Amspec retained the
Woodbridge office location of OTIS," paid its em-
ployees at the Local 2B wage rates, and serviced
some of OTIS' customers As of July 1, McCool
leased to Amspec the vehicles and equipment that
were formerly leased to OTIS, but with Amspec's
name painted on the vehicles In October, Amspec
and UA executed a collective-bargaining agree-
ment covering Amspec's Woodbndge employees
and containing union-security provisions On De-
cember 31, the Amspec partnership was dissolved
and replaced by Amspec Technical Services, Inc
(Amspec) On July 1, 1987, Amspec began paying
the UA contract wage rates to its employees
The judge found Amspec—both as a partnership
and a corporation—to be an alter ego of OTIS
The judge determined that McCool was the princi-
pal owner of both companies as of July 1 because
the European conglomerate had "walked away" by
is McCool testified that Amspec occupied a trailer office that he
moved onto the premises behind the building that OTIS had previously
occupied, however, the address and telephone number for Amspec re-
mained the same as that for OTIS until approximately October, when
Amspec moved Its office to a different location
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
then," and that McCool exercised overall central
control over OTIS and Amspec The judge noted
the absence of a hiatus between the close of OTIS
and the start of Amspec, and that Amspec and
OTIS had common customers, operated out of the
same location, had the same employees and man-
agement, used the same equipment, and did the
same type of work 15 Further, he found that
McCool's threats to close OTIS and form a new
company and deal with a different union, made to
Local 2B representatives after OTIS' purported
cessation of operations, demonstrated that McCool
was motivated by a desire to evade its contractual
and bargaining obligations with Local 2B
The record in this case compels affirmance of
the judge's finding that Amspec is an alter ego of
OTIS Thus, McCool shut OTIS down on
Monday, June 30, and started up Amspec's oper-
ations without interruption on the next day, per-
forming the same type of "call out" work" for
OTIS' same customers (AMI and IMTT)," with
OTIS' three employees, including Supervisor Coul-
son, and using OTIS' same leased equipment
(owned by McCool), as well as OTIS' business ad-
dress, telephone number, stationery, and business
slogan As the foregoing shows, there were no
changes in business management, purpose, prem-
ises, equipment, customers, or market
Assuming McCool owned only 20 percent of
OTIS," the record overwhelmingly establishes
that he effectively controlled OTIS' overall and
daily operations He alone had authonty to draw
checks on the corporate checking accounts within
the United States, and he alone had authonty over
The judge found that McCool's de facto control and management of
OTIS, notably his ownership of the major business assets, le , the equip-
ment and vehicles he leased to OTIS, and his sole control over OTIS
after the European investors "walked away," constitute the type of con-
trol that is a sufficient substitute for ownership when considering the
alter ego Issue Hydro Logistics, 287 NLRB 602 (1987)
15 judge noted, however, that Amspec also trained its employees
in other testing techniques in order to perform additional testing services
for its customers
16 Contrary to the Respondent's reliance on Amspec's eventual train-
ing and performance of higher technical test procedures, It is clear that
OTIS, in May and June, and Amspec, in July, performed similar testing
work for the same customers
" The testimony of Coulson reveals that OTIS performed work for
these customers in June and that Amspec continued working for them in
July, there is no specific evidence showing whether such work was per-
formed on June 30 or July 1
18 record is unclear with respect to McCool's alleged minority
ownership interest in OTIS because McCool failed to comply with the
General Counsel's subpoena of the corporate minutes, containing an in-
formal stock subscription statement, that might have established his actual
ownership Interests in Otis However, documentary evidence, in the form
of correspondence between McCool and a representative of the foreign
Investors, suggests that McCool might have been a de facto majority
shareholder in OTIS and that the foreigners' Investment was carned on
OTIS books as long-term corporate debt rather than initial capitalization
In view of our finding below that McCool exercised de facto control
over OTIS, we find It unnecessary to resolve McCool's formal ownership
Interest in OTIS
the corporation's accounts receivable and payable
The only limitation of record on McCool's author-
ity was the requirement of advance approval
before bidding certain jobs, and for purchases in
excess of $5000, neither of these applied, as a prac-
tical matter, to OTIS' performance of "call out"
work 12 Moreover, there is a paucity of evidence
pertaining to management activity or participation
in corporate meetings by representatives of the for-
eign investment group In any event, McCool
clearly had unfettered authority following the
April 29 pullout by the foreign investors Accord-
ing to McCool's own testimony, when the Europe-
ans cut off continued financial assistance, he main-
tained operations for several months on the
strength of accounts receivable, which he indicated
were customarily paid 45 to 60 days after the work
was performed 22 We further find that McCool's
hiring of additional employees, his continued oper-
ations, and most particularly his ultimatum to
Local 2B in June that OTIS would cease oper-
ations if Local 2B did not retract its demands for
delinquent fringe benefit payments evidence an in-
tention on his part to maintain normal business op-
erations We accordingly agree with the judge that
this evidence of McCool's control over OTIS is
sufficient as a substitute for actual ownership 21
We likewise find no merit in the Respondent's
argument that the economic difficulties preceding
OTIS' shutdown militate against the alter ego
status found by the judge There is ample evidence
of McCool's irritation with the restrictive terms
and conditions of Local 2B's contract, including
the 40-hour-per-week guarantee, the higher wage
rates, and the required monetary contributions to
the health and welfare and pension funds 22 The
record is replete with evidence that McCool, as the
entrepreneur of OTIS, failed to comply with these
contractual obligations and disregarded the Local
2B hiring referral list The evidence compels a
finding that McCool was strongly motivated to
remove OTIS from its bargaining relationship with
Local 2B McCool employed his unchecked au-
thority as president and sole manager of OTIS
after April 29 to keep OTIS afloat so that he could
position himself to capitalize on all of its assets, as
19 appears from the record that McCool's relationship with the for-
eign investment group resembled that of a borrower to a bank, McCool
made twice monthly drawdowns based on current payroll needs and re-
ported on the status of work in progress and the accounts receivable and
payable
20 From this statement and the absence of any evidence referring to a
capital infusion Into Amspec, there is a strong implication that OTIS' re-
ceivables bankrolled Amspec from its inception
21 Hydro Logistics, supra
22 The UA contract that McCool subsequently executed contained
lower wage rates and no provisions for a minimum hourly guarantee per
week or monetary contributions to union funds
OMNITEST INSPECTION SERVICES 755
an ongoing business, for his continued benefit as a
majority owner of Amspec Thus, by retaining the
same address, telephone number, 23 stationery, and
personnel, McCool deliberately held himself out to
the public as continuing the same business In fact,
McCool's only evasion was with respect to his ef-
forts with Local 2B, i e, meeting to discuss the
status of OTIS in July when he had already closed
down that company and had begun operating as
Amspec
We accordingly adopt the judge's findings that
Amspec, as an alter ego of OTIS, became bound to
the agreement with Local 2B, and committed all
the violations found by the judge 24
2 We agree, for the reasons set forth below,
with the judge's finding that Respondent OTIS un-
lawfully discharged employee Patrick Barrett for
joining Local 2B
Patrick Barrett was initially hired in September
1985 for 16 days by Supervisor Owen, who let him
go with the explanation that he could not be re-
tained unless Owen first obtained authorization
from OTIS President McCool Thereafter, accord-
ing to Barrett's credited testimony, 23 Owen tele-
phoned during the first week of January to say that
McCool had authorized his employment on a per-
manent basis, and that Barrett could report to work
the next day, January 7, to fill a newly vacated
job 26 Thereafter, Barrett worked in excess of 40
hours each week, was paid the contractual wage
rate for a level I radiographer, and in the last week
in January joined Local 2B, in accordance with the
contract's union-security provisions
Barrett reported to Owen in September 1985,
and again in January, that the stubs attached to his
paychecks were blank On both occasions, Owen
explained that that was probably due to a computer
error On February 7, Barrett again received a
23 McCool admitted that he retained the same telephone line because
he could not afford a 5500 deposit to obtain a new telephone number for
Amspec in July
24 We affirm the judge's finding that OTIS violated Sec 8(a)(5) and (1)
by failing to make its contractually obligated payments to Local 2B's
health and welfare and pension funds, or any other appropriate payments,
and, as set forth Infra, violated Sec 8(a)(3) and (1) based on its discnmi-
natory discharge of Patnck Barrett As part of the make-whole remedy
for the Respondent's failure to make the above fringe benefit fund contri-
butions, the Respondent shall be required to make these fnnge benefit
funds and the employees whole for all losses suffered as a result of the
Respondent's conduct See Kraft Plumbing d} Heating, 252 NLRB 891
(1980), enfd 661 F 2d 940 (9th Cif 1981) We shall leave to the compli-
ance stage of the proceeding the determination of whether the Respond-
ent must pay any additional amounts into these fringe benefit funds See
Merryweather Optical Co, 240 NLRB 1213 (1979)
25 Owen did not testify McCool, who had no specific recollection of
Barrett other than having met him in Woodbridge on one occasion, testi-
fied only that in late 1985 he Instructed Owen not to hire any employees
because of OTIS' grave financial condition, and also that Barrett was not
qualified by skill or experience to have been hired as a level I technician
in the first place
25 Employee Wilson, a level I technician, had just departed from the
Woodbridge facility
blank paystub, and said to Owen, "[y]ou're not
taking taxes out, you're not putting anything on my
pay stubs" Owen responded, "Well, you're a sub-
contractor," to which Barrett retorted, "No, you
hired me," reminding Owen of the telephone con-
versation in January in which Owen said he had
McCool's approval to hire Barrett Owen denied
engaging in such a conversation, and Barrett re-
plied that he had already joined the Union Barrett
testified that Owen "seemed a little upset about
that and he said I shouldn't have done that be-
cause you're not an employee here, you have no
right to join the Union ff
A week later, Barrett returned from working in
the field, and Owen angrily asked what he was
doing there since he had previously been laid off
Barrett said that he had not been told that he was
laid off, and Owen replied that he was on layoff
and would be called back when he was needed
The following week Barrett returned for his pay-
check and asked Owen when he might be recalled
to work Owen replied that Barrett should not
expect to be recalled because OTIS no longer
needed him, but declined to answer Barrett's fur-
ther question about why OTIS no longer needed
him 67 Barrett then asked about pay still due him
for 2 days, including 1 vacation day, and Owen re-
sponded that Barrett was not a full-time employee
and so was not entitled to vacation pay
We find, in agreement with the judge, that the
General Counsel established a prima facie case of
unlawful discrimination The credited evidence
shows that Barrett's employment in January was
authorized by McCool to be on a permanent basis,
and that he was hired to fill a level I technician va-
cancy Yet on February 7 Owen told Barrett, in re-
sponse to Barrett's inquiry about certain omissions
from his paystubs, that he was not an employee but
a subcontractor Until then, Barrett had no inkling
that OTIS considered him to be a subcontractor,
let alone someone in a category different from its
employees represented by the Union, and in fact
earlier in September 1985 and again in January,
Owen impliedly assured Barrett about his employee
status by blaming similar payroll stub omissions on
computer error No reason was given Bar_rett by
Owen on February 7 for this switch in reasons or
for OTIS suddenly taking the position that Barrett
was not an employee But the surreptitious treat-
ment of Barrett for payroll purposes from the
outset of his employment, coupled with OTIS' at-
27 Barrett testified that about the time of his layoff he learned from the
company where he was then working that only two-thirds of that job
was complete Other evidence previously noted shows that OTIS adver-
tised for and lured a number of employees after Barrett s layoff in Febru-
ary but that he was never recalled
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tempt to portray him as a subcontractor, and
OTIS' refusal to abide by the contract with Local
2B, 28 warrant the inference that OTIS' treatment
of Barrett as other than a unit employee was moti-
vated by a desire to evade the restnctive contract
terms imposed by its collective-bargaining agree-
ment with the Union And having gone so far in
furtherance of that motivation as to falsely desig-
nate Barrett as a subcontractor, OTIS was willing
to take whatever further steps were necessary—in-
cluding discharge as subsequent events bore out—
to deny Barrett the coverage of the contract and
his representation by the Union under the contract
Thus, because Barrett persisted in claiming employ
ee status on February 7 by reminding Owen that
he had earlier mentioned McCool's approval of
Barrett's hire and because Barrett informed Owen
that he had joined the Union, it became apparent
to OTIS' management that only by discharging
Barrett could Barrett be excluded from coverage
and representation under the collective-bargaining
agreement We infer union animus from this course
of events
Furthermore, there is explicit evidence of that
animus in Owen's '[yoil] shouldn't have done that"
response to Barrett's announcing his union mem-
bership 29 Indeed, that rebuke of Barrett not only
revealed Owen's displeasure with him for joining
the Union but it also foretold the consequences that
swiftly befell Barrett for his having done so
Within the week he was permanently laid off and
denied vacation pay, both of which actions came
without prior notice and without any explanation
other than Owen's false statement that Barrett was
not a permanent employee The suddenness and
summary nature of these actions suggest an unlaw-
ful motive given the circumstances of OTIS' at-
tempts to treat Barrett as a contractor or nonumt
29 OTIS refused e g to hire through the union luring hall to provide
the guaranteed 40 hour workweek and to make timely contributions to
welfare and pension funds as required by the contract Documentary evi
dence on the record—showing that the Union claimed a total of
$21 703 62 as delinquent contractual contnbunons by OTIS to the health
and welfare and combined pension funds for the period from March 1985
through June 1986 and that the fund trustees were awarded a default
judgment of $22 352 04 on December 12—reveals that OTIS failed almost
from the outset to make any contractually required payments The record
further indicates that because call out work is sporadic OTIS was unable
early on to guarantee 40 hour workweeks
29 We find no merit in the Respondent s contentions that the judge er
roneously Inferred union animus from the statement by Owen that Barrett
should not have joined the Union because he was a subcontractor rather
than an employee and that the judge s animus finding is negated by the
amicable relations that obviously existed in February between OTIS and
Local 2B (in which all of OTIS other employees were members) On the
contrary given that the denomination of Barrett as a subcontractor was
without substance and that OTIS failures to make contractual health and
welfare and pension payments and to guarantee a 40 hour workweek
were chronic we find that at most nothing other than the appearance of
an amicable relationship existed between OTIS and Local 2B when Bar
rett was discharged
employee Finally, the Respondent has not made
out a Wright Line defense, i e, has not demonstrat
ed that Barrett would have been discharged in the
absence of his union activities 39 We accordingly
adopt the judge s conclusion that Barrett was dis-
charged in violation of Section 8(a)(3) and (1) for
having joined Local 2B 31
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Ommtest Inspection Services, Inc,
Amspec Technical Services, a partnership, and
Amspec Technical Services, Inc, Woodbndge,
New Jersey, their officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified
1 Substitute the following for paragraph 1(d)
"(d) Recognizing United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
tmg Industry of the United States and Canada,
AFL-CIO (UA) as the representative of the em-
ployees in the above unit, unless and until UA is
certified by the Board as the exclusive collective
bargaining representative"
2 Substitute the attached notice for that of the
administrative law judge
39 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cm
1981) cert denied 455 US 989 (1982)
Si In light of the basis for our finding that Barrett was discharged for
antiunion reasons as set forth above we find it unnecessary to pass on the
question whether the wife of Daniel McC-ool was an officer or agent of
OTIS and we specifically disavow any of the judge s findings based on
the March 7 telephone conversation between Barrett and Mrs McCool
or on her testimony in this proceeding
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
Section 7 of the Act gives employees these nghts
To organize
To form, join, or assist any union
To bargain collectively through representa
fives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
OMNITEST INSPECTION SERVICES 757
WE WILL NOT terminate the employment of any
of our employees because they joined Local 2B,
International Union of Operating Engineers, AFL-
CIO (Local 2B)
WE WILL NOT withdraw recognition from Local
2B as the exclusive representative of our employees
employed by OTIS/Amspec at our Woodbridge,
New Jersey facility who are engaged in nonde-
structive testing of pipelines and in related work
and in "local" or "call-out" work
WE WILL NOT fail or refuse to give effect to our
collective-bargaining agreement with Local 2B
covering employees in the unit described above
WE WILL NOT recognize United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO (UA) as the representative of
our employees in the above unit, unless and until
UA is certified by the Board as their exclusive col-
lective-bargaining representative
WE WILL NOT give effect to the collective-bar-
gaining agreement with UA which covers the same
employee unit
WE WILL NOT require our employees, under a
union-security clause, to become members of UA
unless and until UA is certified by the Board as de-
scribed above
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
nghts guaranteed you by Section 7 of the Act
WE WILL offer immediate and full reinstatement
to Patrick Barrett to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or pnvileges previously enjoyed, and make
him whole, with interest, for any loss of earnings
and other compensations he may have suffered by
reason of his having been unlawfully terminated
from employment
WE WILL expunge from our files all references
to the unlawful layoff of Patrick Barrett and notify
him that this has been done and that evidence of
the unlawful treatment accorded him will not be
used as a basis for any future personnel action
against him
WE WILL withdraw and withhold recognition
from UA as the representative for the purpose of
collective bargaining of the employees in the unit
described above unless and until UA shall have
been certified by the Board as such representative
WE WILL give effect to our collective-bargaining
agreement with Local 2B covering the unit of em-
ployees described above
WE WILL recognize and bargain collectively
with Local 2B as the exclusive representative of
our employees in the foregoing unit
WE WILL transmit to Local 2B the contributions
to the health and welfare fund and the pension
fund, as required by the Local 2B contract
WE WILL make whole the unit employees for
any losses they suffered from the failure and refusal
of OTIS/Amspec to continue to honor the collec-
tive-bargaining agreement with Local 2B
OMNITEST INSPECTION SERVICES,
INC , AMSPEC TECHNICAL SERVICES,
A PARTNERSHIP, AMSPEC TECHNICAL
SERVICES, INC
Gary A Carlson, Esq , for the General Counsel
Roxolana Harasymiw, Esq , of Chicago, Illinois, for
Amspec Technical Services, Inc and for Amspec
Technical Services, a partnership and Amspec Techni-
cal Services, Inc
Barry Levine, Esq (Gruenberg, Sounders & Levine), of St
Louis, Missouri, for Local 2B, International Union of
Operating Engineers, AFL-CIO
Nicholas R Femia, Esq (O'Donoghue & O'Donoghue), of
Washington, D C, for United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge The
complaint in these cases, which were consolidated for
heanng, alleges that Amspec Technical Services, a part-
nership, and Amspec Technical Services, Inc constitute
a single business enterprise, that this enterprise is a dis-
guised continuance of Ommtest Inspection Services, Inc ,
and that the overall business entity has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act (the
Act) The answer, filed to the complaint and amended at
the heanng, raises these issues (a) whether Amspec
Technical Services, a partnership and Amspec Technical
Services, Inc (Amspec) are the alter ego of Ommtest In-
spection Services, Inc (OTIS), (b) whether Patrick Bar-
rett's employment was terminated because he joined
Local 2B, International Union of Operating Engineers,
AFL-CIO (Local 2B), (c) whether OTIS/Amspec, as
one employer, has unlawfully withdrawn recognition
from Local 2B as the collective-bargaining representative
of its employees, (d) whether OTIS/Amspec also unlaw-
fully recognized United Association of Journeymen and
Apprentices of the Plumbing and Pipefittmg Industry of
the United States and Canada, AFL-CIO (UA) and un-
lawfully entered into a collective-bargaining agreement
with it
The heanng was held on 22 and 23 July 1987, in
Newark, New Jersey On the entire record, including my
observation of the demeanor of the witnesses, and after
due consideration of the briefs filed by the General
Counsel and Amspec, I make the following
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION STATUS
The pleadings, as amended at the hearing establish
and I thus find that Amspec s operations in 1987 meet
the Board s nonretail standard for the assertion of juns
diction I further find based on the amended pleadings
that Local 2B and UA are labor organizations as defined
in Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
OTIS and Amspec performed tests on various objects
to determine if they were structurally sound or needed
repairing X ray cameras ultrasonic equipment dye pen
etrants and magnetic particles were some of the devices
in these tests As it does not damage the objects being
examined the technique is referred to generally as non
destructive testing and is used to check oil storage tanks
pipelines structural steel and other solids
B The Formation of OTIS
In 1984 and early 1985, Daniel McCool who was
working then in the United States for a company not in
volved herein met with representatives of Local 2B and
discussed with them his prospects of opening up his own
company in New Jersey He stated that he had financial
backing in Europe
In March 1985, OTIS hired as first employees and
they worked out of premises in Woodbndge, New
Jersey They were members of Local 2B On 15 March
1985 McCool, the president of OTIS, signed Articles of
Agreement with Local 28 This collective bargaining
agreement was to be effective until 1 October 1987
The minutes of the first meeting held by the share
holders of OTIS state that OTIS was incorporated on 3
April 1985 The minutes reflect also that McCool held 20
percent of OTIS shares, a European conglomerate 60
percent an attorney 10 percent and another individual 10
percent The conglomerate provided OTIS with a
$100,000 credit line placed with a Chicago bank
McCool lives in a suburb of Chicago In addition the
European conglomerate transmitted moneys to cover
payroll costs of OTIS employees after receiving biweek
ly reports from McCool on OTIS operations
It appears that OTIS was never able to produce a
profit which could repay any part of the capital ad
vanced it by the conglomerate and that it had trouble
meeting ts operating expenses In February 1986, it
began to experience a cash flow problem It was in Feb
ruary that Patrick Barrett was laid off allegedly because
he joined Local 2B
C Barrett s Discharge
1 The evidence
Barrett had worked 1 1/2 weeks for OTIS in Septem
ber 1985 He was told by OTIS' manager then at the
Woodbridge facility Paul Owen that McCool would
have to approve his being employed on a permanent
basis and that when McCool s approval was obtained he
would be called back In January 1986 Barrett was called
and told that McCool s approval had been secured He
returned on 7 January 1986 All dates hereafter are for
1986 unless specified otherwise Barrett was then a level
1 assistant radiographer In late January he joined Local
28
Barrett s first several paychecks reflected that none of
the usual amounts had been deducted from his wages
The pay stubs attached to these checks contained no no
tations to show that Federal income taxes social security
taxes or other sums had been deducted On the first two
occasions, he asked Owen why no deductions had been
made and was informed that there was a problem with
the computer that would be straightened out On about 7
February, he received another paycheck, again without
any deductions from the gross wages He asked Owen
for an explanation and was told that he was a subcon
tractor Barrett replied that he was not a subcontractor
as Owen had hired him Barrett also told Owen ap
parently to reinforce his view that he was an employee,
not a subcontractor that he had joined Local 2B Owen
then stated that he should not have done that because he
was not an employee Barrett worked several days in the
following week
On 14 February, Barrett went to the Woodbridge
office Owen asked him what he was doing there as he
had already been laid off Barrett replied that he had not
been told he was laid off Owen then said that he was on
layoff and would be called back when needed
A week later Barrett returned for his paycheck He
asked Owen when he could expect to be called back to
work Owen advised him not to expect a call Barrett
then asked about 2 days pay he claimed was due him,
one of which was a vacation day Owen responded that
Barrett was not a full time employee and was not enti
tled to vacation pay Barrett in fact had worked as least
40 hours each week for OTIS since January 1986 The
parties have stipulated that Owen was a supervisor as de
fined in Section 2(11) of the Act and an agent for OTIS
Barrett did not get a call to report to work On 7
March he telephoned OTIS office in Illinois to speak to
Daniel McCool president of OTIS That office is also
McCool s residence McCool s wife Leslie, answered
Counsel for Amspec objected to this line of inquiry on
the ground that Mrs McCool s statements were inadmis
sible as hearsay General Counsel contends she was an
agent and that her statements constitute an admission
Those contentions are discussed later herein In the tele
phone discussion Mrs McCool told Barrett her husband
was not at home and asked if she could help The call
except for several interruptions apparently not of any
significance, lasted 80 minutes Barrett s account as to
their discussion differs from Leslie McCool s
Barrett testified as follows He told her that he was
due 2 days pay and asked her why he had not been re
called She told him that she did not know anything
about the claim for two days pay and that she would
talk to her husband about it As to his being fired she
told him that he jomed the Union too fast and they
can t afford to pay (his) wages She explained at length
OMNITEST INSPECTION SERVICES 759
that the company was new, that the employees were put-
ting in for time when they were in the shop, that they
should go home instead and that they should work only
when actually at work in the field She referred to Bar-
rett's brother (who also worked for OTIS) as a staunch
union supporter and said that its he had pushed Barrett
into joining the Union, he "literally slit [Barrett's]
throat" Barrett did little talking For the most part,
Leslie McCool talked about how unfair the employees
were
Leslie McCool's account follows Barrett was "very
distraught" He said he had just come home from the
office, that Owen had fired him, that Owen almost
struck him, that they were yelling and screaming at each
other, and that Owen kicked him out of the office be-
cause he was nothing but a troublemaker Barrett wanted
to ask her husband why Owen fired him She told him
that she was surprised that he had been hired as her hus-
band was having problems meeting his payroll He said
he had paid $300 to join the Union He did talk about his
brother "starting up the company" and said that after
they all had "pulled together," he did not understand
why there was a layoff She repeated that the employees
cannot be asked to work if there is no money to meet the
payroll (At one point, in her testimony, Mrs McCool
gave a lengthy account of the financial troubles she and
her husband faced as a result of their personal guarantees
and the failure of the "Europeans" to deliver moneys to
the company It is not clear whether she was then re-
counting her discussion on the phone with Barrett or
whether she was offering an explanation as to why she
had told Barrett that the company had trouble meeting
its payroll ) She denied that she made any reference to
unions -
On cross-examination, Leslie McCool denied having
told Barrett that her husband had no more "union-relat-
ed" work in the New Jersey area However, a position
letter she typed and which was submitted by OTIS' at-
torney during Region 22's investigation of the underlying
unfair labor practice clearly contained a statement that
she had informed Barrett that there was no more "union-
related" work in New Jersey
I credit Barrett's testimony First, it is unlikely that
Barrett had told her, as she testified, that he had just
been fired that day after having a heated argument with
Owen, he had last worked for OTIS several weeks pre-
viously Secondly, Mrs McCool's testimony as to a ref-
erence to "union-related" work was contrary to an earli-
er statement that she had typed Lastly, her demeanor
was consistent with Barrett's testimony that she did most
of the talking during a lengthy telephone call
Barrett was never recalled to work OTIS in fact ad-
vertised later for level 1 technicians and hired several
Daniel McCool testified that he had instructed Owen
in late 1985 not to hire any employee as OTIS was in
financial difficulty McCool further testified that a level 1
technician must have passed an examination given by
OTIS The evidence on the last part, however, is that,
helpers assist technicians on the job and also study a
manual in which they are tested No final certification
issues, as is done in other countries where tests are ad-
ministered by an authority, not by the employing entity
I find that Barrett, when employed by OTIS, worked as
a level 1 technician in fact if not in title
2 Analysis
General Counsel contends that Barrett was discharged
on 14 February because he had earlier joined Local 2B
Counsel for Amspec asserts that the evidence does not
support that contention
The Supreme Court considered whether the Board
may hold, as it had, that an employer has committed an
unfair labor practice where it finds that the General
Counsel has proved that an employee's protected con-
duct was a substantial or motivating factor in his dis-
charge and whether that employer can then avoid being
adjudicated a violater by showing that it would have dis-
charged the employee regardless of the discriminatory
motivation The Court held that the Board's allocation of
the burden of proof is clearly reasonable NLRB v
Transportation Management Corp, 462 U S 393 (1983)
To establish a prima facie showing that Barrett was dis-
charged because he joined Local 2B, the General Coun-
sel must show that Barrett joined Local 2B, that OTIS
knew of this and that there is a connective between his
discharge and his having joined Local 2B as demonstrat-
ed by evidence of, for example, union hostility, timing,
or the use of a pretextual reason Cf Country Boy Mar-
kets, 287 NLRB 234 fn 7 (1987) and cases cited therein
The evidence before me establishes that Owen had in-
formed Barrett on 7 February that he should not have
joined Local 2B as he was not an employee and that, a
week later, when Owen again saw Barrett, he exhibited
anger, laid Barrett off without giving him any reason,
and denied that Barrett was entitled to any vacation pay
on the ground that he was not a full-time employee al-
though Barrett had been working on a full-time basis
The clear inference I draw from the foregoing is that
Barrett's joining Local 2B was a motivating factor in his
layoff I thus find that General Counsel has made out a
prima facie case of unlawful discrimination
In view of the foregoing, it is unnecessary to decide
whether or not the statements of Mrs McCool to Barrett
on 7 March are binding on OTIS Were it essential for
me to decide that issue, I would find that she was then
its agent and that her statements were admissible against
OTIS' interest and were not hearsay Her statements
would then have constituted further evidence in support
of a prima facie showing by General Counsel See Jones
Evidence, § 13 36 (6th ed 1972) where it is stated that,
although agency cannot be inferred from the mere exist-
ence of the marital relation, yet the law will more read-
ily presume an agency and sometimes imply a larger au-
thonty than if no such relation existed These inferences
are founded on the fact that the acts are such as are
usual and customary to perform in circumstances of the
character disclosed In the case before me, Mrs McCool
answered at OTIS' principal office, she displayed a con-
siderable knowledge of its financial operations in the
course of giving testimony, her statements to Barrett are
essentially corroborative of Owen's earlier statement, and
the statements by her also mirror statements by her hus-
band given in the course of his testimony I note also
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Mrs McCool is vice president of Amspec, the al
leged alter ego of OTIS That matter is discussed Infra I
note further that the Board has found that an individual
acted as a corporation s agent where among other fac
tors a familial relationship has been shown See Indian
Head Lubricants 261 NLRB 12 18 (1982)
As the General Counsel has established a prima facie
that Barrett s employment had been terminated on 14
February 1986 because he had joined Local 2B the
burden is upon OTIS to show that absent the discnmi
natory motivation Barrett would still have been dm
charged While OTIS filed no answer to the complaint
or entered an appearance at the hearing Amspec (Its al
leged alter ego) did offer some evidence bearing on this
point However that evidence has little probative
weight The record before me contains no persuasive
evidence that Barrett would not in any event, have been
employed thereafter Rather, the evidence indicates that
OTIS could readily have used his services thereafter I
find that there has been no showing that Barrett would
have been discharged, even if he had not joined Local
2B I then conclude that Barrett has been terminated on
and since 14 February 1986 because of his membership in
Local 2B
D The Alter Ego and Related Issues
1 The evidence
Daniel McCool testified that OTIS, while about to
reach a break even point on its operational costs could
never hope to recoup the capital invested by the Europe
an conglomerate On 29 April 1986, the conglomerate
sent a telex to McCool advising that It could no longer
provide any financing and it requested (him) to cease
trading with immediate effect Amspec s counsel stated
at the opening of the hearing that the conglomerate
just walked away leaving things as they were McCool
however kept OTIS going on his own As noted above
OTIS advertised for employees in May and hired new
employees On 29 May 1986 McCool met with Local
2B s representatives to discuss several grievances that
Local 2B had filed under its contract with OTIS Agree
ment was reached on some points However, when
Local 2B pressed McCool for payment of delinquent
contributions to the health and welfare fund and the pen
sion fund under its contract he urged Local 2B to aban
don the grievances saying that if it did not he would
close OTIS and open a new company
On 7 July McCool wrote on behalf of OTIS to Local
2B s International stating that it was important that a
meeting be held to discuss the status of his corporation
and the current contract The meeting was held on 23
July OTIS delinquencies to the health and welfare fund
and to the pension fund were brought up for discussion
McCool advised that OTIS could not afford to make
these payments McCool then informed Local 2B that he
had been talking with UA representatives about entering
into a contract with the UA and that he might close
OTIS and open a new company at the same location
Local 2B urged him not to close down It contacted the
pension fund s officials and then offered to settle the de
linquencies for a $10 000 payment to the funds The
meeting ended on a noncommittal note In mid August
OTIS counsel wrote Local 2B that the liquidated com
pany offered $4000
The reference to a liquidated company pertains to de
velopments that took place on about 1 July and thereaf
ter McCool testified that OTIS ceased to operate on 30
June Amspec started operating the next day at the same
location that OTIS had with the same employees under
the same manager at the same wage rates, and they
worked for substantially the same customers The cam
eras vehicles and other equipment that McCool in his
individual capacity, had leased to OTIS were leased on 1
July to Amspec the signs on the vehicles were changed
to Amspec McCool holds an 80 percent interest in
Amspec the manager at Woodbridge John Coulson, has
the other 20 percent Coulson has not received any dis
tnbution of any profits as yet On 1 July to 31 Decem
ber Amspec operated as a copartnership It was dis
solved on 31 December and operated thereafter as a cor
poration A certificate of incorporation was issued on 7
January 1987 McCool, his wife Leslie and Coulson are
the corporate officers
OTIS failed to file its annual report with the State of
Illinois or pay franchise taxes On 2 September the MI
nois Secretary of State dissolved OTIS for this failure
In October, Amspec signed a contract with the UA
covenng the Woodbridge employees That contract con
tams union secunty provisions but those provisions have
not been enforced On 1 July 1987 Amspec began paying
its employees the rates under the UA contract
3 Analysis
The factors to be weighed in determining whether one
company is the alter ego of another are whether or not
they have a common business purpose, the same type of
operation common customers same location, common
management, common ownership and whether or not
the alleged alter ego was created in order to evade re
sponsibilities under the Act See Hydro Logistics Inc 287
NLRB 602 (1987) and cases cited
The evidence before me compels a finding that
Amspec is the alter ego of OTIS There was no hiatus
between the cessation of OTIS operations according to
McCool s account and the start of Amspec s McCool
the president of both OTIS and Amspec met with Local
2B after OTIS purportedly had ceased operations and
threatened that OTIS would go out of business and that
he would form a new company and sign a UA contract
In July Amspec had the same employees the same man
agement and common customers as OTIS it did the
same type work it used the same cameras and equip
ment For all practical purposes McCool was the pnnci
pal owner of both OTIS and Amspec as of 1 July By
then, the European conglomerate had walked away
from any prospect of recouping its investment For that
matter Coulson s 20 percent ownership interest in
Amspec may prove to be of no great significance than
the interest held by that conglomerate, in view of
McCool s overall control and as the major assets of
Amspec are items he personally owned and leased to
Amspec In any event it is well settled that the type of
OMNITEST INSPECTION SERVICES 761
control exercised by McCool is a substitute for owner-
ship when considering the alter ego issue See Hydro Lo-
gistics, supra
Amspec's basis contention, in urging that it is not
OTIS' alter ego, is that Amspec does not test pipelines
and instead does only "local" work whereas OTIS did
some pipeline testing There is no question, however, but
that Local 2B's contract with OTIS expressly covered
both of those testing phases
There is no real question but that McCool formed
Amspec ' to evade OTIS' obligation to contribute to the
health, welfare and pension funds as required under the
Local 2B contract and to evade the restrictive aspects of
that contract which called for, inter aim a 40-hour-week
guarantee
I find that Amspec is the alter ego of OTIS and shall
refer to them as OTIS/Amspec By purporting to go out
of business and by instead recognizing UA as the repre-
sentative of the same unit covered by the Local 2B con-
tract, OTIS/Amspec unlawfully withdrew recognition
from Local 2B as the exclusive collective-bargaining rep-
resentative of the unit of employees, and unlawfully as-
sisted UA by granting it recognition instead See Ana
Colon, Inc , 266 NLRB 611 (1983) Further, as the UA
agreement contains union-security provisions, OTIS/-
Amspec thereby unlawfully encouraged its employees to
join UA Ana Colon, supra Finally, OTIS/Amspec, in
violation of its duty to bargain collectively with Local
2B, has faded and refused to transmit contributions to the
health and welfare fund and the pension fund as required
by its collective-bargaining agreement with Local 2B
CONCLUSIONS OF Li.tw
1 Ommtest Inspection Services, Inc (OTIS), Daniel
McCool and John Coulson, a copartnership trading as
Amspec Technical Services, and Amspec Technical
Services, Inc (the copartnership and the corporation re-
ferred to herein as Amspec) are each an employer en-
gaged in commerce within the meaning of the Section
2(2), (6), and (7) of the Act
2 Local 2B, International Union of Operating Engi-
neers, AFL-CIO (Local 2B) and United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-
CIO (UA) are each a labor organization as defined in
Section 2(5) of the Act
3 OTIS and Amspec are alter egos of each other
(OTIS/Amspec)
4 OTIS/Amspec has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) by having termi-
nated the employment of its employee Patrick Barrett,
because he became a member of Local 2B
5 OTIS/Amspec has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act
by having withdrawn recognition from Local 2B as the
1 Amspec offered evidence that Coulson initiated the formation of
Amspec I reject that contention The totality of the circumstances and
even their respective personalities make it clear that McCool was the en-
trepreneur and Coulson the subordinate
exclusive representative for purposes of collective bar-
gaining of the employees in a unit composed of
All employees at the OTIS/Amspec facility in
Woodbridge, New Jersey who are engaged in non-
destructive testing of pipelines and in related work
and in "local" or "call-out" work excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act
6 OTIS/Amspec has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act
by having repudiated the collective-bargaining agree-
ment it has with Local 2B covering the unit of employ-
ees described above and by having failed or refused to
transmit contributions to the health and welfare fund and
to the pension fund as required by that contract
7 OTIS/Amspec has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3) of the
Act by having recognized UA and executed a contract
with it covering the same unit of employees described
above at a time when OTIS/Amspec is obligated instead
to continue to recognize Local 2B exclusively as the rep-
resentative of the employees, and by having encouraged
membership in UA by virtue of the union-security provi-
sions in its contract with UA
8 These unfair labor practices effect commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that OTIS/Amspec has engaged in and
is engaging in certain unfair labor practices within the
meaning of Section 8(a)(1), (2), (3), and (5) of the Act, I
shall recommend Issuance of an order that It cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act
OTIS/Amspec shall be ordered to immediately rein-
state Patrick Barrett to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
loss of earnings and other compensation he may have
suffered because of his unlawful termination of employ-
ment Backpay shall be computed in accordance with the
formula and in the manner prescribed by the Board in
F W Woolworth Cc, 90 NLRB 289 (1950), with interest
to be paid, in accordance with the Board's decision in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 2
OTIS/Amspec shall also be ordered to make the unit
employees whole for any losses they suffered as a result
of its failure or refusal to continue to honor its collec-
tive-bargaining agreement with Local 2B, with such
amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), with interest as
computed as set out above
2 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 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I shall also recommend that OTIS/Amspec cease and
desist from recognizing UA as the representative of the
employees in the unit described above, from giving effect
to its collective-bargaining agreement with UA, from
withdrawing recognition from Local 2B, from failing
and refusing to give effect to its collective-bargaining
agreement with Local 2B, and from failing to transmit
contributions to the funds required by Local 2B contract
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Ommtest Inspection Services, Inc
and its alter ego Daniel McCool and John Coulson, a co-
partnership d/b/a Amspec Technical Services and
Amspec Technical Services, Inc —all referred to hereaf-
ter as OTIS/Amspec, Woodbridge, New Jersey, its offi-
cers, agents, successors, and assigns, shall
I Cease and desist from
(a) Terminating the employment of any employee be-
cause he joined Local 2B, International Union of Operat-
ing Engineers, AFL-CIO (Local 2B)
(b) Withdrawing recognition from Local 2B as the ex-
clusive representative of all employees employed by
OTIS/Amspec at its Woodbridge, New Jersey facility
who are engaged in nondestructive testing of pipelines
and in related work and in "local" or "call-out" work
(c) Failing and refusing to give effect to its collective-
bargaining agreement with Local 2B covering employees
in the unit described above
(d) Recognizing United Association of Journeymen
and Apprentices of the Plumbing and Pipelines Industry
of the United States and Canada, AFL-CIO (UA) as the
representative of the employees in the above unit, unless
and until UA is certified by the Board as their exclusive
collective-bargaining representative .
(e) Giving effect to its collective-bargaining agreement
with UA which covers the same employee unit
(f) Requiring its employees, under a union-security
clause, to became members of UA unless and until UA is
certified by the Board as described above
(g) In any other manner interfering with, restraining,
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
effectuate the policies of the Act
(a) Offer immediate and full reinstatement to Patrick
Barrett to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
3 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
to his seniority or any other rights or privileges previ-
ously enjoyed, and make him whole for any loss of earn-
ings and other compensations he may have suffered by
reason of his having been unlawfully terminated from
employment, in the manner set forth in the remedy sec-
tion of the decision
(b) Expunge from its files all references to the unlaw-
ful layoff of Patrick Barrett and notify him that this has
been done and that evidence of the unlawful treatment
accorded him will not be used as a basis for any future
personnel action against him
(c) Withdraw and withhold recognition from UA as
the representative for the purpose of collective bargain-
ing of the employees in the unit described above unless
and until UA shall have been certified by the Board as
such representative
(d) Give effect to its collective-bargaining agreement
with Local 2B covering the unit of employees described
above
(e) Recognize and bargain collectively with Local 2B
as the exclusive representative of the employees in the
foregoing unit
(f) Transmit to Local 2B the contributions to health
and welfare fund and the pension fund, as required by
the Local 2B contract
(g) Make whole the unit employees, in the manner set
forth in the remedy section of this decision for any losses
they suffered from the failure and refusal of
OTIS/Amspec, to continue to honor the collective-bar-
gaining agreement with Local 2B
(h) 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
(0 Post at its facility in Woodbridge, New Jersey,
copies of the attached notice marked "Appendix "
Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent'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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
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 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"