SRC Painting LLC

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 707 (N.L.R.B. 2006)

SRC PAINTING, LLC
346 NLRB No. 67
707
SRC Painting, LLC, PBN, LLC, and Liquid Systems,
and James Wierzbicki, Karen Wierzbicki, Ed-
mund Wierzbicki, Eric Wierzbicki, Constance
Wierzbicki, and Erin Wierzbicki, Individually
and International Union of Painters and Allied
Trades, District Council No. 7, AFL–CIO. Cases
30–CA–16577–1 and 30–CA–16813–1
March 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 14, 2005, Administrative Law Judge Jo-
seph Gontram issued the attached decision. The General
Counsel filed limited exceptions and a supporting brief.
Exceptions were also filed by Respondents Edmund
Wierzbicki and Liquid Systems, LLC, by Respondent
Erin Wierzbicki, and by Respondents James, Karen, Eric,
and Constance Wierzbicki. The General Counsel filed an
answering brief, and answering briefs were also filed by
Respondents Edmund Wierzbicki and Liquid Systems,
LLC and by Respondents James, Karen, Eric, and Con-
stance Wierzbicki.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt his recommended Order as modi-
fied and set forth in full below.2
The judge found that the three corporate respondents—
SRC Painting, LLC (SRC Painting), PBN, LLC (PBN),
and Liquid Systems, LLC (Liquid Systems)—were alter
egos of each other3 and that the corporate respondents
violated Section 8(a)(1), (3), and (5) of the Act.4 The

1 Respondents Edmund Wierzbicki and Liquid Systems have ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, Inc.,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the find-
ings.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and, pursuant to the General Coun-
sel’s exceptions, to make clear that the Respondents’ liability is joint
and several. We shall substitute a new notice to conform to the Order
as modified.
3 There are no exceptions to the judge’s finding that SRC Painting
and PBN are alter egos. Respondents Edmund Wierzbicki and Liquid
Systems except to the judge’s finding that Liquid Systems is an alter
ego of SRC Painting and PBN.
4 There are no exceptions to the judge’s findings of unfair labor
practices or to his finding that Liquid Systems did not violate Sec.
8(a)(3) by reducing the number of employees.
judge further found that each of the six individual re-
spondents is individually liable for the unfair labor prac-
tices.5
We agree with the judge, for the reasons set forth in
his decision, that Liquid Systems is an alter ego of SRC
Painting and PBN.6 We further agree with the judge that
Erin Wierzbicki is individually liable for Liquid Sys-
tems’ unfair labor practices.7 We further agree with the
judge, for the reasons set forth in his decision, that Ed-
mund Wierzbicki is individually liable for the unfair la-
bor practices.8 However, as explained below, we reverse
the judge’s findings that Karen and Constance Wierz-
bicki are individually liable for the unfair labor practices.
The Individual Liability of Respondents Karen
and Constance Wierzbicki
Whether the Board will pierce the corporate veil to
hold an individual liable for corporate unfair labor prac-
tices is governed by the analysis set forth in White Oak

5 There are no exceptions to the judge’s findings that James and Eric
Wierzbicki are individually liable for the unfair labor practices or that
Erin Wierzbicki is individually liable for the unfair labor practices of
SRC Painting and PBN. Respondent Erin Wierzbicki excepts to the
judge’s finding that she is individually liable for the unfair labor prac-
tices of Liquid Systems. Respondents Edmund Wierzbicki and Liquid
Systems except to the judge’s finding that Edmund Wierzbicki is indi-
vidually liable for the unfair labor practices. Respondents James,
Karen, Eric, and Constance Wierzbicki except to the judge’s findings
that Karen and Constance Wierzbicki are individually liable for the
unfair labor practices.
6 Chairman Battista adheres to his position that the General Counsel
must show, among other things, an intent to avoid legal obligations
under the Act in order to prove alter ego status. See Crossroads Elec-
tric, Inc., 343 NLRB 1502 fn. 2 (2004). However, the Respondents
here do not press this contention and Chairman Battista accordingly
concurs in his colleagues’ finding of alter ego status without reaching
the motive for Liquid Systems’ creation.
7 In finding that Erin Wierzbicki is individually liable for Liquid
Systems’ unfair labor practices, we rely on the judge’s finding, which
we adopt, that Liquid Systems is an alter ego of SRC Painting and PBN
and on the judge’s unexcepted-to finding that Erin Wierzbicki is indi-
vidually liable for the unfair labor practices of SRC Painting and PBN.
SRC Painting and PBN, as alter egos of Liquid Systems, are liable for
Liquid Systems’ unfair labor practices. Erin Wierzbicki is individually
liable for SRC Painting’s and PBN’s unfair labor practices. Accord-
ingly, Erin Wierzbicki is individually liable for Liquid Systems’ unfair
labor practices through her liability for SRC Painting’s and PBN’s
unfair labor practices.
8 A. J. Mechanical, Inc., 345 NLRB 295 (2005), is distinguishable.
In that case, the Board found that the owner of the respondent corpora-
tion was not individually liable for the corporation’s unfair labor prac-
tices. However, in A. J. Mechanical, the evidence, particularly the
timing of the unfair labor practice charges, failed to demonstrate that
the asset distributions to the owner (pursuant to a lawfully-adopted
corporate liquidation plan) met the test for piercing the corporate veil.
See discussion infra. In the instant case, by contrast, the evidence,
including the timing of the unfair labor practice charges, demonstrates
that the asset distributions for noncorporate purposes did meet the test.
Member Liebman, consistent with her dissent in A. J. Mechanical, finds
the factual distinction between that case and the present one immaterial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
Coal Co., 318 NLRB 732 (1995), enfd. mem. 81 F.3d
150 (4th Cir. 1996). Under White Oak, the General
Counsel must prove both parts of a two-prong test. Id. at
734. Under the first prong, the Board analyzes whether
the corporation and the individual have failed to maintain
their separate identities. Id. at 735. Under the second
prong, the Board analyzes whether third parties may be
damaged by this failure—that is, whether “adherence to
the corporate form would sanction a fraud, promote in-
justice, or lead to an evasion of legal obligations.” Id.
This potential damage to third parties includes “the di-
minished ability of the [corporation] to satisfy [its] statu-
tory remedial obligations.” Id. “The showing of ineq-
uity necessary to warrant the equitable remedy of pierc-
ing the corporate veil must flow from misuse of the cor-
porate form.” Id. In order to satisfy the second prong,
however, the individual alleged to be individually liable
must have “participated in the fraud, injustice, or ineq-
uity.” Id.
In the instant case, the judge found that the identities
of the three corporations were commingled with the iden-
tities of the Wierzbicki family members. The judge also
found that corporate assets were distributed for noncor-
porate purposes, thereby diminishing the corporations’
ability to satisfy their obligations, including their obliga-
tions to remedy their unfair labor practices.
With regard to the requirement that the individual must
have “participated in the fraud, injustice, or inequity,” the
judge found that Respondents James, Eric, Erin, and
Edmund Wierzbicki each actively participated in the
operations of the corporate respondents, including the
distribution of corporate assets for non-corporate pur-
poses. The judge did not address the issue of whether
Respondents Karen or Constance Wierzbicki likewise
actively participated in the operations of the corporate
respondents. Instead, the judge noted evidence showing
that the corporate respondents distributed corporate as-
sets to and on behalf of Karen and Constance for noncor-
porate purposes—that is, the corporate respondents paid
cash to Karen totaling over $5000, paid Karen’s car
payments, made mortgage payments on Karen’s princi-
pal residence as well as mortgage and utility payments
on Karen’s alternate residence, paid cash to Constance
totaling over $21,000, and made payments on a car
owned by either Constance or Erin. Relying upon these
corporate payments to Karen and Constance for noncor-
porate purposes, the judge concluded that Karen and
Constance had participated in the diminution of corpo-
rate assets and therefore were individually liable for the
corporations’ unfair labor practices. We disagree.
Under White Oak, the mere receipt of corporate pay-
ments for noncorporate purposes does not establish that
Karen or Constance participated in the abuse of the cor-
poration. As the Tenth Circuit explained in NLRB v.
Greater Kansas City Roofing,9 whose analysis the Board
explicitly adopted in White Oak: “[A] necessary element
of the [piercing-the-corporate-veil] theory is that the
fraud or inequity sought to be eliminated must be that of
the party against whom the doctrine is invoked, and such
party must have been an actor in the course of conduct
constituting the abuse of corporate privilege.” 2 F.3d at
1053 (quoting from 1 Fletcher, Cyclopedia of Corpora-
tions § 41.20, at 639 (1990)). For this reason, a person’s
passive receipt of benefits that derive from a diversion of
corporate assets for noncorporate purposes does not, by
itself, demonstrate participation in the fraud, injustice, or
inequity sufficient to establish individual liability under
the second prong of the White Oak analysis. See Smith
Barney, Inc. v. Strangie, 192 F.3d 192 (1st Cir. 1999)
(finding wife who may have personally benefited from
husband’s diversion of corporate assets for noncorporate
purposes not individually liable); Firstmark Capital
Corp. v. Hempel Financial Corp., 859 F.2d 92, 95 (9th
Cir. 1988) (finding wife who personally benefited from
husband’s diversion of corporate assets for noncorporate
purposes not individually liable). In other words, where
the individual alleged to be liable plays no active role in
the corporation’s operations, that individual has not ef-
fectively become the business entity simply upon receipt
of funds or other corporate assets, and accordingly can-
not be held liable for the corporation’s obligations.10
Here, the General Counsel failed to present any evi-
dence that Karen or Constance played an active role in
the operations of any of the three respondent corpora-
tions. They did not even perform routine clerical func-
tions or rank-and-file painting work. They did not be-
come the business entity. Accordingly, even though they
received assets from the corporations, they are not indi-
vidually liable for the business entities’ obligations.
The General Counsel argues that Constance should be
held individually liable because SRC Painting and PBN
used a room in Constance’s house as their office but fre-
quently failed to make monthly rental payments, and that
Constance took no action in response to this failure.11

9 2 F.3d 1047 (10th Cir. 1993).
10 We note that there is no allegation or evidence that Karen or Con-
stance is an owner of any of the corporations, and we accordingly do
not address the issue of whether corporate ownership would satisfy the
participation requirement.
11 SRC Painting operated from mid-2000 through mid-2003; PBN
operated from mid-2003 through early 2004. The 2002 and 2003 SRC
Painting ledgers and the 2003 PBN ledger were introduced into evi-
dence. The ledgers show rent payments to Constance of $2000 in
January, February, March, April, May, July, and September 2002, of
$3000 in February 2003, and of $2500 and $2000 in July 2003.
SRC PAINTING, LLC 709
The General Counsel argues that Constance forewent
monthly rent payments to which she was legally entitled
and that by doing so she “actively aided” the corpora-
tions, thereby satisfying the White Oak participation re-
quirement. The contention lacks merit.
Assuming arguendo that Constance aided the corpora-
tions by not seeking additional rent, such action would
not satisfy the White Oak participation requirement. As
the Board stated in White Oak: “The showing of inequity
necessary to warrant the equitable remedy of piercing the
corporate veil must flow from the misuse of the corpo-
rate form. Further, the individuals charged personally
with corporate liability must be found to have partici-
pated in the fraud, injustice, or inequity found.” Id. at
735. Here, the effect of Constance’s alleged aid to the
corporations would have been to increase, not decrease,
the corporate assets available to satisfy the corporations’
obligations to third parties. That is, her failure to collect
rent meant more financial assets remained with the cor-
porations. Accordingly, Constance’s alleged participa-
tion in the corporations’ operations did not extend to
corporate operations falling within the second prong of
the White Oak analysis and therefore does not satisfy the
participation requirement. See NLRB v. Greater Kansas
City Roofing, supra, 2 F.3d at 1055 (where net of
owner’s transactions with corporation showed that owner
contributed rather than withdrew corporate assets, owner
not individually liable for corporation’s obligations).
For these reasons, we find that Respondents Karen and
Constance Wierzbicki are not individually liable for the
corporate respondents’ unfair labor practices.12
ORDER
The National Labor Relations Board orders that Re-
spondents SRC Painting, LLC, PBN, LLC, and Liquid
Systems, LLC, their officers, agents, successors, and
assigns, and Respondents James Wierzbicki, Edmund

12 Member Liebman observes that the General Counsel has not ar-
gued that Karen and Constance Wierzbicki are individually liable under
a fraudulent transfer theory of liability—that is, that Karen and Con-
stance received corporate assets without consideration under circum-
stances rendering them liable to corporate creditors to the extent of the
value of the transferred assets. See F & W Oldsmobile, 272 NLRB
1150, 1151 (1984) (applying fraudulent transfer theory despite use of
piercing-the-corporate-veil terminology); Marsco, Inc., 287 NLRB 923,
928 (1987), enf. denied on other grounds 873 F.2d 884 (6th Cir. 1989);
Brandon v. Anesthesia & Pain Management Associates, Ltd., 419 F.3d
594 (7th Cir. 2005) (Posner, J.) (articulating the different bases—
fraudulent transfer and piercing the corporate veil—for imposing indi-
vidual liability for corporate obligations). The Board, consequently,
has made no findings or conclusions here concerning the merits of such
a theory, and it may be relevant to satisfaction of the Respondents’
make-whole obligations under the Board’s order. Fraudulent convey-
ances may also be pursued under the Federal Debt Collection Procedure
Act, 28 U.S.C. § 3304, 3306.
Wierzbicki, Eric Wierzbicki, and Erin Wierzbicki, indi-
vidually, their agents, successors, and assigns, shall
jointly and severally
1. Cease and desist from
(a) Failing and refusing to recognize International Un-
ion of Painters and Allied Trades, District Council No. 7,
AFL–CIO (the Union) and to bargain collectively with
the Union as the exclusive bargaining representative of
unit employees.
(b) Failing and refusing to apply the terms and condi-
tions of the collective-bargaining agreement between the
Union and SRC Painting effective June 1, 2002, to May
31, 2004 (the Agreement), and any automatic renewals or
extensions of the Agreement, including failing and refus-
ing to make payments for or to the Union’s health, wel-
fare, vacation, apprenticeship, pension, and other funds
as required by the Agreement.
(c) Bypassing the Union as the exclusive representa-
tive of the employees in the bargaining unit and dealing
directly with those employees over their terms and condi-
tions of employment.
(d) Discharging or otherwise discriminating against
any employee for supporting the Union or engaging in
protected activities.
(e) Threatening employees with adverse employment
actions, including discharge, for engaging in union ac-
tivities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All painters, drywall finishers, wall coverers, and simi-
lar or related classifications, excluding guards and su-
pervisors as defined in the Act.
(b) Continue in full force and effect the Agreement,
and any automatic renewals or extensions of it, unless
and until an agreement is reached or there is an impasse
on all mandatory subjects of bargaining.
(c) Make all delinquent payments to the Union’s
health, welfare, vacation, apprenticeship, pension, and
other funds as required by the Agreement, moneys which
have not been paid and which would have been paid in
the absence of the Respondents’ unlawful unilateral dis-
continuance of such payments on and after April 30,
2003, and reimburse employees for any expenses result-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
ing from the failure to make the required payments, in
the manner set forth in the remedy section of the judge’s
decision.
(d) Make whole unit employees for any loss of earn-
ings and other benefits they may have suffered as a result
of the Respondents’ failure to comply with the Agree-
ment since April 30, 2003, in the manner set forth in the
remedy section of the judge’s decision.
(e) Within 14 days from the date of this Order, offer
Brent George full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(f) Make Brent George whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the judge’s decision.
(g) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful discharge,
and within 3 days thereafter notify Brent George in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
their places of business and at each of their jobsites cop-
ies of the attached notice marked “Appendix.”13 Copies
of the notice, on forms provided by the Regional Director
for Region 30, after being signed by the Respondents'
authorized representative(s), shall be posted by the Re-
spondents 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 Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, Liquid Systems has gone out of business or
closed its place of business at 3142 94th Place, Pleasant
Prairie, Wisconsin, the Respondents shall duplicate and
mail, at their own expense, a copy of the notice to all

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
current employees and former employees employed by
the Respondents at any time since April 30, 2003.
(j) Sign and return to the Regional Director sufficient
copies of the notice for posting by the Union, if it is will-
ing, at its office and meeting halls, including all places
where notices to members are customarily posted.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to recognize and bargain
with the International Union of Painters and Allied
Trades, District Council No. 7, AFL–CIO (the Union) as
the exclusive bargaining representative of our unit em-
ployees.
WE WILL NOT fail or refuse to apply the terms and con-
ditions of the collective-bargaining agreement between
the Union and SRC Painting effective June 1, 2002, to
May 31, 2004 (the Agreement), and any automatic re-
newals or extensions of the Agreement.
WE WILL NOT fail or refuse to make contributions for or
to the Union’s health, welfare, vacation, apprenticeship,
pension, and other funds as required by the Agreement.
SRC PAINTING, LLC 711
WE WILL NOT bypass the Union as the exclusive repre-
sentative of the employees in the bargaining unit, and WE
WILL NOT deal directly with those employees over their
terms and conditions of employment.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union or any other
union.
WE WILL NOT threaten employees with adverse em-
ployment actions, including discharge, for engaging in
union activities.
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 recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All painters, drywall finishers, wall coverers, and simi-
lar or related classifications, excluding guards and su-
pervisors as defined in the Act.
WE WILL continue in full force and effect the Agree-
ment, and any automatic renewals or extensions of it,
unless and until an agreement is reached or there is an
impasse on all mandatory subjects of bargaining.
WE WILL make all delinquent payments to the Union’s
health, welfare, vacation, apprenticeship, pension, and
other funds, as required by the Agreement, including any
additional amounts due the funds, monies which have not
been paid and which would have been paid in the ab-
sence of our unlawful discontinuance of such payments
on and after April 30, 2003, and WE WILL reimburse em-
ployees for any expenses resulting from our failure to
make the required payments.
WE WILL make whole unit employees for any loss of
earnings and other benefits they may have suffered as a
result of our failure to comply with the Agreement since
April 30, 2003.
WE WILL, within 14 days from the date of the Board’s
Order, offer Brent George full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Brent George whole for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Brent George and, WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
SRC PAINTING, LLC, PBN, LLC, LIQUID
SYSTEMS, LLC, JAMES WIERZBICKI, EDMUND
WIERZBICKI, ERIC WIERZBICKI, AND ERIN
WIERZBICKI
Miann B. Navarre, Esq. and Brent E. Childerhose, Esq., for the
General Counsel.
Franklin M. Gimbel, Esq. and Oliver Kaufman, Esq. (Gimbel,
Reilly, Guerin & Brown), of Milwaukee, Wisconsin, for
Respondents, James, Eric, Karen, and Constance Wierz-
bicki.
Frederick L. Zievers, Esq. (Zievers, Marry & Dowse, S.C.), of
Kenosha, Wisconsin, for Respondent, Erin Wierzbicki.
Piermario Bertolotto, Esq. and William Nickolai, Esq. (Rizzo &
Diersen, S.C.), of Kenosha, Wisconsin, for Respondents
Edmund Wierzbicki and Liquid Systems, LLC.
Donald H. Cardinali, Business Representative, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case was
heard in Milwaukee, Wisconsin, on December 6–9, 2004, and
March 6–8, 2005. The International Union of Painters and Al-
lied Trades, District No. 7, AFL–CIO (the Union or the Charg-
ing Party) filed charge Case 30–CA–16577 against SRC, LLC1
on September 3, 2003. The charge was amended four times,
most recently on August 19, 2004.2 A complaint was issued on
March 30. The Union filed charge Case 30–CA–16813 against
Liquid Systems on April 28. The charge was amended twice,
most recently on August 19. On September 24, an amended and
consolidated complaint was issued in both cases.
The complaint alleges that PBN, LLC (PBN) was started as a
disguised continuation or alter ego of SRC Painting, LLC (SRC
Painting), and that Liquid Systems, in turn, was started as a
disguised continuation or alter ego of SRC Painting and PBN.
The complaint alternatively alleges that PBN is a successor to
SRC Painting, and Liquid Systems is a successor to SRC Paint-
ing and PBN. The complaint alternatively alleges that SRC
Painting, PBN, and Liquid Systems constitute a single em-
ployer.
The complaint also alleges that James Wierzbicki, his wife
Karen, his son Eric, and Eric’s wife Constance, his son Ed-
mund, and his daughter Erin (collectively, the Wierzbickis)
acted as alter egos of PBN, SRC Painting, and Liquid Systems,
and are personally liable for remedying the unfair labor prac-
tices of those companies.
The unfair labor practices alleged in the complaint are that the
Respondents (1) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by failing and refusing to transmit
dues to the Union and contributions to the Union’s health, wel-

1 In the hearing, this company was called SRC, Inc. Accordingly,
that designation will be used in this decision.
2 All dates are in 2004, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
fare, vacation, apprenticeship, and pension funds, by refusing to
honor the terms of the collective-bargaining agreement with the
Union, and by refusing to recognize and bargain with the Union;
(2) violated Section 8(a)(1) by threatening an employee with
discharge if the employee did not relinquish his union apprentice-
ship; and (3) violated Section 8(a)(1), (3), and (4) by laying off
an employee and by eliminating unit employees in order to re-
duce the Respondents’ obligations under the Act.
James, Eric, and Erin admit that they are supervisors and
agents of SRC Painting and PBN; that they have controlled the
day-to-day management, labor relations policies, business opera-
tions, and financial resources of SRC Painting and PBN; that they
have failed to maintain the legal identities of SRC Painting and
PBN distinct from themselves; that they have commingled their
personal assets with the corporate assets of SRC Painting and
PBN; and that, by failing to maintain the separate corporate iden-
tities of SRC Painting and PBN, they have engaged in fraud,
injustice, and evasion of their legal obligations under the Act.
(Amended and consolidated complaint, pars. 7, 8, 10, and 12; Tr.
746–749.) They also admit that PBN is an alter ego of SRC
Painting. Edmund admits that he is a supervisor and agent of
Liquid Systems pursuant to Section 2(11) and (13) of the Act.
With respect to identifying the party or parties who would be
liable for the alleged unfair labor practices, the remaining issue
for decision is whether Liquid Systems is the alter ego of or
successor to or single employer with SRC Painting or PBN.
Nevertheless, in order to appreciate and understand the rela-
tionship of Liquid Systems to SRC Painting and PBN, it is
necessary to describe those companies and the Wierzbickis’
involvement with SRC Painting and PBN. Moreover, while the
Respondents do not concede the unfair labor practice charges,
they have not seriously disputed the facts underlying the
charges and have not addressed these charges in their posthear-
ing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Wierzbickis, and Liquid Systems, I
make the following
FINDINGS OF FACT
I. JURISDICTION
SRC Painting and PBN were engaged in the painting subcon-
tracting business and had an office and place of business at the
residence of Eric Wierzbicki at 3020 94th Place, Pleasant Prairie,
Wisconsin. Liquid Systems is engaged in the painting subcon-
tracting business and has a place of business at the residence of
Edmund Wierzbicki at 3142 94th Place, Pleasant Prairie, Wis-
consin. Liquid Systems admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Moreover, SRC Painting and PBN engaged in
the same business as Liquid Systems, although SRC Painting and
PBN had more business and a larger work force than Liquid
Systems. Accordingly, I find that SRC Painting and PBN are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.3 The Union has represented the fol-

3 The amount and extent of Liquid Systems’ business is equal to or
less than SRC Painting and PBN because the business of Liquid Sys-
lowing unit employees of SRC Painting, and has entered into a
series of collective-bargaining agreements with SRC Painting:
“All painters, drywall finishers, wall coverers, and similar or
related classifications, excluding guards and supervisors as de-
fined in the Act.” I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
James Wierzbicki is 55 years old, and he has been married to
Karen Wierzbicki for 37 years. James and Karen have three
children, Edmund (31 years old), Eric (28 years old), and Erin
(26 years old). The last time James reported any income from
working was approximately 1985, when he was about 35 years
old. Prior to 1985, James was in the painting business. He was
injured in a car accident in approximately 1985. He claims to
be disabled as a result of that car accident, and has collected
social security disability benefits since that time. Despite his
claim to the Social Security Administration that he is disabled,
James refers to his working status as “retired.” (Tr. 32.)4
Since approximately 1985, James has owned no real prop-
erty. Nor has he owned or held any liquid personal property,
such as bank accounts, although, curiously, when he was asked
if he held any bank accounts, he replied, “None. None in my
name.” (Tr. 33.) He later corrected that statement by denying
he held bank accounts in anyone else’s name. Since approxi-
mately 1985, James has not owned any vehicles or any other
item of personal property that has value or could be converted
to cash. James has not filed Federal income tax returns for at
least the past 4–5 years.
James claims to be disabled and unable to work. James has
made this claim to the Social Security Administration, and as a
result, he receives approximately $1400 per month from the
Social Security Administration for his claimed disability. Karen
works part time as a gift shop clerk. She works 20 hours a week
and earns approximately $9 per hour. Despite this limited in-
come, James and Karen reside in a single-family house, and
they drive and have unrestricted access to at least three vehi-
cles. Their sons, Eric and Edmund, own James and Karen’s
residence; their daughter, Erin, owns the cars they drive. James
spends much of his time at a house in Trego, Wisconsin. Ed-
mund owns the Trego property. The ownership and location of
the Wierzibickis’ residences are:

tems appears to be limited to its subcontracting work for New England
Builders at the Harbor Park project, while SRC Painting and PBN had
work in addition to the Harbor Park project. SRC Painting and PBN
filed no answer to the present complaint and were not represented at the
hearing. However, in light of the admissions of James, Eric, and Erin,
who were present and represented at the hearing, regarding their control
of and fraudulent use of SRC Painting and PBN, all parties had notice
of the jurisdictional allegations and sufficient opportunity to oppose or
litigate these jurisdictional allegations.
4 References to the transcript of the hearing are designated as Tr.
SRC PAINTING, LLC 713
Name Residence Owner
James, Karen,
and Erin
6801 22nd Avenue,
Kenosha, WI
Eric and Ed-
mund
James and Karen Ridge Road, Trego, WI Edmund
Eric and Con-
stance
3020 94th Place, Pleas-
ant Prairie, WI
Constance
Edmund 3142 94th Place, Pleas-
ant Prairie, WI
Erin
James Wierzbicki is a forceful, intelligent, self-confident in-
dividual who is devoted to his family and to the painting busi-
ness he has built around his family. And while his demeanor
displayed these characteristics, his demeanor just as clearly
displayed an uninhibited mendacity when testifying about his
and his family’s business affairs. His family members followed
his lead.
B. The Wierzbicki Businesses
1. SRC, Inc.
Southport Remodeling and Construction, Inc. (SRC, Inc.)
was started in 1994.5 Throughout SRC, Inc.’s existence, its
offices were located at James Wierzbicki’s residence, 6801
22nd Avenue, Kenosha, Wisconsin. SRC, Inc.’s business was
primarily painting, although it also did some remodeling. Eric
Wierzbicki testified that he started SRC, Inc. when he was ap-
proximately 17 years old, and that he was the president and 100
percent owner. Eric testified that the only help his father pro-
vided to the business was assistance on some bids. That testi-
mony is not credible.6 SRC, Inc. did work similar to the work
James did before he began collecting social security disability
benefits. He had no previous experience starting or operating a
business, bidding for or obtaining jobs, handling financial and
administrative matters, or managing employees.
Eric testified that he does not “think” his father was paid for
his work on behalf of SRC, Inc. (Tr. 241.) That testimony is not
credible. Eric hedged his testimony because he undoubtedly
knew that his father could not work and get paid for it while he
was collecting social security disability benefits. The only rea-
son Eric would hedge on the answer is if James was paid be-

5 Eric testified that he obtained the company, which was inactive,
from a friend, and that he did not pay any money for the transfer. In this
decision, the start of SRC is deemed to have occurred on the date of
this transfer.
6 All facts found here are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been
made from a review of the entire testimonial record and exhibits with
due regard for logic and probability, the demeanor of the witnesses, and
the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). As to
those witnesses testifying in contradiction of the findings, their testi-
mony has been discredited, either as having been in conflict with the
testimony of reliable witnesses or because it was incredible and unwor-
thy of belief or as more fully explained in the text. With respect to the
testimony regarding what occurred at meetings or discussions with
members of the Wierzbicki family, I have also taken into account the
economic dependence of employees on employers, with awareness of
an employee’s attentiveness to intended implications of his employer’s
statements which might be more readily dismissed by a disinterested
party. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
cause there would be no need to qualify the answer if James
was not paid. Moreover, whether his father received compensa-
tion from SRC, Inc. is something Eric would likely remember
without regard to Eric’s ownership of the Company. Eric’s
testimony that he does not think his father was paid is not credi-
ble.
Eric Wierzbicki manages his personal affairs much like his
father. Eric is married to Constance and has one child. Eric
claims that he has no income. He has not filed a Federal income
tax return since at least 2000. He does not have a bank account,
and he has not had one since at least 2000. Eric owns no vehi-
cles, but like his father, he currently drives any one of three
vehicles. When asked if he currently has any assets, Eric re-
plied, “Nope.” (Tr. 233.) Eric’s wife, Constance, like his
mother, is employed. Constance has been employed as a medi-
cal technologist for approximately 5 years. She claims to work
about 48 to 56 hours per week and earns $21.60 per hour. Con-
stance drives either of two vehicles.
There were two supervisors/managers at SRC, Inc.—James
and Eric Wierzbicki. Eric did painting work and he acted as the
foreman. James supervised SRC, Inc.’s operations, he super-
vised the completion of the contracts, and he supervised the
work force. One of the workers James hired was Andrew Kel-
lerman. James set Kellerman’s wage at between $8–10 per
hour. Kellerman was about 18 years old when James hired him.
Kellerman was a high school friend of Eric and had become
friends with the Wierzbicki family.
2. SRC Painting, LLC
SRC, Inc. ceased operating in the summer of 2000, and the
business was taken over by SRC Painting. In July or August
2000, James Wierzbicki told Kellerman that he wanted to close
SRC, Inc. because the Painter’s Union District Council 30, a
union from Chicago, was suing it. James said he wanted to
form a new company, which would be called SRC Painting,
LLC. James told Kellerman that he (James) needed help, and he
wanted Kellerman to be the figurehead president and nominal
owner of SRC Painting. James would be the real owner as well
as “the brains of the operation.” (Tr. 623.) In return, James
promised Kellerman a car, the use of a gas card, and an in-
crease in pay.
SRC Painting was essentially a continuation of SRC, Inc.
The same people were in control of both companies, many of
the employees were the same, and the same job that comprised
approximately 90 percent of SRC, Inc.’s work, viz., the con-
tract with New England Builders at Harbor Park, comprised a
similar percentage of SRC Painting’s work. SRC, Inc. trans-
ferred equipment to SRC Painting, but there is no evidence that
any consideration was paid by SRC Painting for the transfer.
James used his personal attorney, Frank Parise, who is re-
lated to James, to draw up the documents making Kellerman
the figurehead president and owner of SRC Painting. Included
in those documents was a hold-harmless agreement signed by
James and Kellerman, which provided that Kellerman had no
control over SRC Painting, that Kellerman could not make any
business decisions for the Company without the written permis-
sion of James, and that Kellerman was not responsible for SRC
Painting’s debts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
The General Counsel called Parise as a witness and subpoe-
naed the hold-harmless agreement, but Parise refused to pro-
duce the agreement because of James and Erin’s assertion of
the attorney-client privilege. Moreover, Parise refused to pro-
duce the agreement, either to Kellerman or the General Coun-
sel, in spite of his testimony that Kellerman was his client. Kel-
lerman believes that Parise never represented him. Kellerman
never sought representation from Parise, he never paid Parise
any money, and he never signed a fee agreement. He had never
met Parise until the day James drove him to Parise’s offices.
Several times, Kellerman asked Parise to provide him with a
copy of the hold-harmless agreement and any other documents
Kellerman may have signed, his most recent request being at
the hearing. Parise refused every request.
Parise either represented Kellerman, in which event he was
obligated to provide his client with a copy of whatever docu-
ments his client signed and requested, or Parise did not repre-
sent Kellerman, in which event the attorney-client privilege
would not shield such documents from disclosure because con-
fidentiality would be waived by James, Erin, and Parise’s initial
disclosure of the document to Kellerman. Nevertheless, Parise
refused to produce the documents. Parise either failed to appre-
ciate the conflict of interest he faced, or he did appreciate it and
elected to disobey the Board’s subpoena at the urging of his
family members, James and Erin. Without regard to the impro-
priety of Parise’s actions, Kellerman generally described the
provisions of the hold-harmless agreement. Moreover, Keller-
man was a credible witness, and his description of the hold-
harmless agreement is consistent with his testimony describing
James’ conception and formation of SRC Painting.
As noted, it is not necessary to consider the impropriety of
Parise’s actions in accepting the credible testimony of Keller-
man regarding the hold-harmless agreement. Nevertheless,
Parise’s actions tend to corroborate the complete control exer-
cised by James Wierzbicki in all matters pertaining to James’
and his family’s businesses. Moreover, since Kellerman had
already testified, before Parise testified, about some of the pro-
visions of the hold-harmless agreement, and since James, Eric,
and Erin would concede that they controlled the management,
policies, and operations of SRC Painting and PBN, there was
no apparent reason for the Wierzbickis to refuse to produce the
agreement unless it contained provisions in further contraven-
tion of their final position in this case, viz., that James, Eric,
and Erin had no authority in or involvement with Liquid Sys-
tems and that Liquid Systems was not an alter ego of or succes-
sor of SRC Painting or PBN.
Throughout its existence, the offices of SRC Painting were
located at Eric’s residence, 3020 94th Place, Pleasant Prairie,
Wisconsin, in a separate room in the back of the residence.
Kellerman was only allowed in SRC Painting’s offices when
another member of the Wierzbicki family was there. Keller-
man’s actual position at SRC Painting was the lead painter and
occasional foreman, and he would sometimes run errands for
James. Erin was the office manager of SRC Painting. She kept
the books, she distributed paychecks, and she paid union bene-
fits. Edmund worked mostly as a painter. Eric supervised all the
jobs except for the Harbor Park job. And, as James had done
for SRC, Inc., James oversaw all operations of SRC Painting.
Erin is currently a full-time student, and she is collecting
State unemployment compensation from her employment at
SRC Painting.7 Erin worked at SRC Painting from 2000 to
2003, and during this time she claims that she was paid $1000 a
week. However, she testified in a deposition before the hearing
that she was paid only $15 an hour at SRC Painting, but this is
just one of many instances where her testimony does not appear
to be accurate.
Although Erin kept SRC Painting’s books, she professed ig-
norance about many of the entries she made in those books. Her
entries reflect frequent payments from SRC Painting to the
Wierzbickis, many labeled as rent and loan repayments, but
also including Erin’s salary of more than $1000 per week. (In
salary alone, Erin made more than twice as much as Keller-
man.) Included in these payments was $2000 per month paid to
Constance for the use of the back room in her residence and
$2500 per month to Edmund for allegedly storing paint supplies
in his garage. Edmund also received payments from SRC Paint-
ing labeled as interest income, rent, general, accounts payable,
payroll, and split. Constance received payments labeled as re-
imbursed expenses, rent, accounts payable, and general. Erin
received payments labeled as note payable Erin, note payable
of[ficer], split, payroll, general, misc., and accounts payable.
Karen Wierzbicki received at least one payment labeled as
accounts payable, she received a $1000 payment that she could
not explain, and she received a $4000 payment labeled as note
payable Erin. Some of the payments to Edmund, Constance,
and Erin were made without corresponding check numbers
(e.g., GC Exh. 23, p. 52), indicating that such payments were
simply a means of generating cash for Edmund, Constance, and
Erin. (See below.)
Erin acknowledged that SRC Painting’s books show that she
loaned over $240,000 to the Company in 2002, for which she
received many corresponding “repayments,” but she offered no
credible explanation of where she allegedly obtained $240,000
to lend to SRC Painting. Moreover, there are no rental or loan
documents that would tend to corroborate the validity or accu-
racy of any such payments or loans to or from Erin or the
Wierzbickis. At times, Erin claimed to have borrowed money
from SRC Painting, but she could not explain why or what she
did with the money. (Tr. 176.) Erin also claimed that she bor-
rowed $30,000 from SRC Painting to build her house, but there
was no documentation of or terms to the alleged loan, such as
interest rate or due date. Other times, the books show that pay-
ments were made directly to a Wierzbicki, such as Edmund, but
Erin, who maintained these books, had no explanation for the
payments. (Tr. 166.)
In spite of Erin’s position as the office manager and the per-
son who kept the books, there were many entries in SRC Paint-
ing’s financial records, including payments to Erin and other
members of the Wierzbicki family, which she would not or
could not explain. On the other hand, and thanks to the explana-

7 Notwithstanding Erin’s application to the State of Wisconsin for
unemployment compensation benefits, there is no evidence that she was
ever discharged or involuntarily laid off by SRC Painting. Indeed, the
evidence shows that she left her employment with SRC Painting and
PBN voluntarily in order to attend school.
SRC PAINTING, LLC 715
tion by Andrea Rogowski, the office manager of PBN who had
been instructed by Erin, Erin did have a method for obtaining
cash from SRC Painting. This cash was used, at least in part, to
pay employees’ wages, thus enabling the Wierzbickis to further
evade the Company’s obligations to other governmental au-
thorities. Erin generated cash by designating such cash with-
drawals as fictitious expenses of and payments to SRC Paint-
ing’s supplier, ICI.8 These fictitious expenses are noted in SRC
Painting’s books by the absence of a check number.
Erin, James, Eric, and Edmund were not credible witnesses.
They have frequent contact with one another; for example,
James speaks with Edmund every day, they all live near each
other and in each other’s houses, they are closely involved in
the operation of the family’s businesses, and they receive all
their income from those businesses. From the similarity of their
testimony, it seemed as if James, Eric, Erin, and Edmund met
before the hearing and discussed what they should say and not
say at the hearing. For example, James, Eric, and Erin consis-
tently maintained throughout their testimonies that Kellerman
was the owner and president of SRC Painting and the person
who ran the company and negotiated their pay and the rent they
received from SRC Painting. However, after the General Coun-
sel presented evidence showing that the Wierzibickis controlled
the operations of SRC Painting and PBN, James, Eric, and Erin
admitted that they did control the day-to-day management,
labor-relations policies, business operations, and financial re-
sources of SRC Painting and PBN. The Wierzbickis’ contrary
testimony was consistent, but misleading, and was designed to
give a false impression of the persons—the Wierzbickis—who
actually controlled and manipulated the corporations.
Erin exhibited a good recollection of matters when she was
asked questions by the Respondents’ attorneys, but a poor rec-
ollection when she was asked questions by the General Coun-
sel. She was evasive, as were James, Eric, and Edmund. And,
the Wierzbicki family, led by James, was present throughout
her testimony. Indeed, the family members, including James,
were present when each of the Wierzbickis testified. Moreover,
Edmund was noticeably hostile to the General Counsel
throughout his testimony. He seemed to take offense that the
government, through the present complaint, should be involved
in his family’s businesses, and especially this proceeding in-
volving a charge brought by a union.9

8 Using fictitious payments to ICI was the way Erin instructed An-
drea Rogowski to generate cash when Erin trained Rogowski on keep-
ing the books for PBN.
9 An example of Edmund’s incredible testimony, which also, per-
haps, shows the attitude he exhibited on the witness stand is the follow-
ing:
Q. Now, did you ever loan PBN any money?
A. I believe so.
Q. Okay. When did that occur?
A. Probably when PBN was a company.
Q. Okay, so—you said that they ended in November of 2003
and they operated for about a year—so roughly some time in
2003, how much money did you loan PBN?
A. I don’t remember.
Q. Could you give us a ballpark?
A. I don’t remember.
Another example of the Wierzbickis’ consistency while ad-
vocating a misrepresentation is that each of the Wierzbickis
concealed the fact that Kellerman was merely the nominal
president of SRC Painting, and that he had no real ownership or
authority in the corporation. Erin claimed, for example, that she
negotiated her salary with Kellerman and that she conferred
with Kellerman on the Company’s financial matters. This tes-
timony was false and was intended to convey the false impres-
sion that Kellerman controlled SRC Painting and that the
Wierzbickis did not. The Wierzbickis testified similarly with
respect to PBN and Scott Maurer. (See below.) However, after
other witnesses testified and revealed that the Wierzbickis con-
trolled SRC Painting and PBN, James, Eric, and Erin conceded
their actual control of SRC Painting and PBN. However, these
concessions were not made until after James, Eric, and Erin
testified and knowingly gave false impressions about their roles
and Kellerman’s role in SRC Painting, as well as their roles and
Maurer’s role in PBN.
Although James, Eric, and Erin conveyed false impressions
about their authority and control over SRC Painting and PBN,
their testimonies concerned an issue they had not yet conceded.
Edmund, on the other hand, testified in a similar false and mis-
leading fashion concerning his family’s involvement with SRC
Painting and PBN, but his testimony was given after the con-
cessions were made. Thus, after James, Eric, and Erin conceded
that they controlled the day-to-day management, labor relations
policies, business operations, and financial resources of SRC
Painting and PBN, Edmund testified that he can only guess that
his brother Eric owned SRC, Inc., but he knows that Kellerman
owned SRC Painting and Maurer owned PBN (Tr. 757–763).
Many other portions of Edmund’s testimony are not credible.
For example, Edmund claims he does not remember if he ever
received any money from SRC Painting except wages for paint-

Q. Who did you loan the money to.
A. PBN.
Q. And what kind of documents do you have to memorialize
the loan?
A. Whatever you have probably got there. I don’t have any.
Q. Who did you negotiate the loan with—what person?
A. I don’t remember
Q. What interest rate was given to the loan?
A. Don’t remember.
Q. So there was no written documentation to accompany any
loan that you provided to PBN, is that correct?
A. I didn’t say that. I said I don’t remember.
Q. What kind of work did you perform for PBN?
A. I didn’t work for PBN.
Q. Okay, so you were never employed by PBN?
A. Nope.
Q. Other than rent that you described, you received no other
compensation from PBN?
A. Don’t remember.
Q. You never worked on a PBN job site?
A. Can you rephrase that question again?
Q. Sure. Did you ever work on a PBN job site?
A. Yes, I have.
(Tr. 765–766.) Edmund then explained that he had worked for PBN at the
Harbor Park jobsite, contradicting his preceding statement that he had not
worked for PBN. The foregoing is just an example of the type of testimony
given by Edmund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
ing, despite SRC Painting’s records, prepared by his sister,
Erin, showing that he received substantial payments under dif-
ferent labels such as interest income, rent, general, and ac-
counts payable. Edmund also states that he does not remember
whether he ever loaned money to SRC Painting. This statement
is not plausible. Moreover, it is not credible, especially in view
of Edmund’s attempt throughout his testimony to dissociate
himself from SRC Painting and PBN. Also, if Edmund truly
had no ownership interests in these companies, there is little
likelihood he would lend money to either of them because (1)
there is no evidence he possessed or had earned sufficient
money to lend money to the corporations, and (2) Edmund is
unaware of any terms to the loans, including interest. The
unlikelihood that Edmund would lend money to the corpora-
tions is also increased by the hundreds of thousands of dollars
that already had been allegedly loaned to the companies by his
sister, Erin.
Edmund admits receiving $2500 a month in rent from PBN,
allegedly to store paint in his garage, but he denies knowing
how that rental amount was determined. Moreover, he claims
that he does not remember whether he ever actually stored paint
in his garage. He claims to know that he loaned money to PBN,
but he claims not to remember how much money he lent, when
it was lent, who he negotiated the loans with, what the interest
rates were, or whether there was any documentation of such
loans. On balance, and in consideration of his failure to re-
member much of what he did for SRC Painting and PBN; his
vague testimony regarding any involvement by himself or
members of his family in either of those companies; and his
demeanor, especially his apparent hostility toward the Govern-
ment, the Union, and the process; Edmund was not a credible
witness.
SRC Painting continued in operation from approximately
2000 until the summer of 2003. Edmund testified that he
worked as a painter for SRC Painting throughout its existence,
and he was paid union scale. It is curious, therefore, that on
Edmund’s 2002 Federal income tax return he reported no in-
come from wages or salaries. (GC Exh. 56.)
SRC Painting’s books reflect many payments by the com-
pany to satisfy the personal expenses of the Wierzbickis, in-
cluding James, Karen, Eric, Constance, Edmund, and Erin.
These personal expenses include car payments, mortgage pay-
ments, personal credit cards, home appliances, house repairs,
home utilities, payments for the construction of the house Erin
owns and in which Edmund lives, union dues for Eric and Ed-
mund, and school payments for Erin. In conclusion, and consis-
tent with the concessions of James, Eric, and Erin, the Wierz-
bickis commingled their funds with the funds of SRC Painting
and used SRC Painting to overtly and covertly extract money
from the company in disregard of the corporate form.
SRC Painting’s books also reflect payments to and from
SRC, Inc. (E.g., GC Exh. 23, p. 51; GC Exh. 22, pp. 5, 6, 7, 10,
12, 13, 18.) However, these “payments” lack a corresponding
check number in SRC Painting’s books. Accordingly, although
these payments may have been used to generate cash for the
Wierzbickis, similar to the cash payments to Edmund, Con-
stance, and Erin, the use of SRC, Inc. to conceal such cash
payments by SRC Painting demonstrates the Wierzbickis’ con-
trol over and the intermingling of accounts between these com-
panies.
After Kellerman left SRC Painting, Erin contacted him and
told him she wanted him to sign a document acknowledging
that he had resigned and that he was transferring ownership to
her. Kellerman did as he was told.
3. PBN, LLC
SRC Painting operated from the summer of 2000 until ap-
proximately the summer of 2003. SRC, Inc. and SRC Painting
were signatories to collective-bargaining agreements with the
Union. The term of the most recent collective-bargaining agree-
ment between SRC Painting and the Union was from June 1,
2002, to May 31, 2004. Nevertheless, by the spring of 2003
James wanted to oust the Union and to operate a nonunion
company. Accordingly, SRC Painting made its last monthly
contribution to the Union’s health, welfare, pension, and other
funds in March 2003. As of April 30, 2003, SRC Painting has
failed and refused to comply with the provisions of its collec-
tive-bargaining agreement with the Union.
In July 2003, James held a meeting with SRC Painting’s em-
ployees in a restaurant in Kenosha. Present at the meeting were
James Wierzbicki and painters Justin Lois, Scott Christianson,
and Brent George. At the meeting, James Wierzbicki told the
employees that SRC Painting was going to change to a new
company, and that the new company would be a nonunion
company. Lois and George said that they wanted to remain a
union shop. George asked James if George would be allowed to
continue his apprenticeship program with the Union. James
replied that George had the choice of either continuing with the
apprenticeship program or quitting the program, and that if
George quit the Union’s apprenticeship program, James would
increase his pay to the full-scale journeyman wage.
James Wierzbicki also told the employees that they would
keep their jobs in the new company and that everything would
stay the same. He explained that the workers would lose their
union benefits, such as pension and health care benefits, but he
promised that he would provide a new health care plan for the
workers. James explained that if the new company did not have
to pay the workers as much money in benefits, it would be able
to pay the workers more money in wages.
The changeover from SRC Painting to PBN was seamless.
Both companies had the same employees (with some excep-
tions), the same managers and supervisors, the same bookkeep-
ing (although not the same bookkeeper), the same accountants,
the same owners, the same operation, and the same work. The
major differences were (1) James Wierzbicki disposed of Kel-
lerman and replaced him with Maurer, and (2) as dictated by
James, the new company was nonunion.
James Wierzbicki signed and sent a letter to Joel Spaulding
advising him that the contract with New England Builders
would not be completed by SRC Painting, but rather, would be
completed by PBN. (GC Exh. 4.) There is no evidence that
James sent this letter on anyone’s authority other than his own.
This letter supports a determination that James controlled SRC
Painting and PBN.
Approximately 3 weeks after the meeting in the Kenosha res-
taurant, a meeting was held at SRC Painting’s office in Eric’s
SRC PAINTING, LLC 717
residence. Present were James, Eric, Edmund, and Erin Wierz-
bicki, together with painters Donald Hall, Scott Maurer, Justin
Lois, and Brent George, and Foreman Scott Christianson. Pay-
checks in the name of the new, nonunion company, PBN, were
distributed. James said that the name of the new company was
PBN, which stood for “paint by numbers.” James told the
workers that their new health insurance, which would replace
the insurance they formerly had through the Union, would be
effective September 1. George asked James about his appren-
ticeship program. James replied that George had not had a lot
of time in the Union and not a lot of money in the pension fund,
so George would not lose a lot of money if he dropped out of
the Union. James repeated that he would increase George’s
wage to compensate for his loss of union benefits.
About 2 weeks later, George telephoned Eric about the ap-
prenticeship program. Eric did not return George’s call, but
James responded by meeting with George at Harbor Park.
James told George that if he wanted to attend school to com-
plete the apprenticeship program, he would have to work for
someone else. However, George told James that he found a
school not affiliated with the Union, which was open to all
applicants, union and nonunion. James then agreed to allow
George to attend the school.
After this conversation between James Wierzbicki and Brent
George, James met with Christianson and told him to fire
George. Christianson did not want to fire George so he did not
immediately carry out James’ directive. However, shortly be-
fore Thanksgiving 2003, Christianson laid off George. Except
for a 2-week period in January 2004 when George was recalled,
George was not rehired.
As noted above, PBN was essentially a continuation of SRC
Painting, except it was a nonunion company. PBN took over
and completed the same work that SRC Painting had begun and
was doing—the Harbor Park project. (GC Exh. 55, p. 2.) The
same person operated and controlled the business, James
Wierzbicki. James Wierzbicki again used a childhood friend of
his son to install as the nominal, but fictitious, owner of the
company. Edmund continued to work as a painter for PBN as
he had for SRC Painting. PBN used the same painters as had
worked for SRC Painting, and these painters did not need to
apply for work at PBN. They simply continued working as if
there had been no change. And, James, Edmund, Eric, and Erin
continued to extract money from PBN, as they had from SRC
Painting, through rent payments,10 undocumented loans, unex-
plained payments on account, and payment of personal ex-
penses. In addition, PBN used the same offices as SRC Paint-
ing—the back room of Eric’s residence.
However, Erin stopped being the office manager because she
had returned to school in 2002. To replace Erin as the office
manager, James hired Andrea Rogowski, who had been a friend
of Erin and the Wierzbicki family. When James hired
Rogowski, he also told her that PBN was going to be nonunion.
Otherwise, as James told Brent George, “Everything would stay

10 The rent payments to Edmund were allegedly for the storage of
paint in Edmund’s garage, although Edmund could not remember
whether paint was stored in his garage. (Tr. 760.)
the same. The same employees would still perform the same
work.” (Tr. 393.)
As noted above, James Wierzbicki found a friend of his
youngest son, Eric, to install as the nominal owner of his new-
est company. This person was Scott Maurer, a childhood friend
of Eric’s who was also a friend of the Wierzbicki family.
Maurer was 28 years old, the same age as Eric, at the time
Maurer was made the president and owner of PBN. Maurer had
been employed as a laborer and a painter with SRC, Inc. and
SRC Painting. James told Maurer that he, James, wanted to be a
partner with Maurer, and that Maurer would be paid a percent-
age of each job performed by PBN. These statements were not
true. James also told Maurer that PBN would be nonunion and
that James would obtain the business for PBN and handle the
money. These statements were true.
James Wierzbicki installed Maurer as the nominal owner and
president of PBN, but Maurer never became an actual owner of
or partner in PBN, and he was not paid a percentage of the
work undertaken by PBN. Maurer had no access to PBN’s re-
cords or financial documents, and, like Kellerman was treated,
he had no access to PBN’s offices unless a member of the
Wierzbicki family was present. Indeed, Maurer had as little
authority in PBN as Kellerman had in SRC Painting, which is
to say, none.
As he had done for SRC Painting, James retained Frank Pa-
rise to handle the legal work in forming PBN. James also con-
tacted New England builders to advise them that PBN would
take over SRC Painting’s obligations under the contract. The
accountant for PBN was the same as it was for SRC Painting.
This accountant, Scott Olson, is also the accountant for other
members of the Wierzbicki family.
PBN continued to operate until the next Wierzbicki com-
pany, Liquid Systems, was started. However, the record is not
clear exactly when PBN stopped operating and Liquid Systems
began. In November, Rogowski told Maurer that PBN had no
money in its bank account and that employee withholding taxes
were not being paid. Accordingly, Maurer sought legal assis-
tance. Maurer resigned from his position at PBN, and he closed
the PBN checking account after using personal funds to replen-
ish the overdrawn account. The Internal Revenue Service sub-
sequently contacted Maurer and advised him of his potential
liability for PBN’s failure to pay withheld taxes of approxi-
mately $30,000. Nevertheless, PBN/Liquid Systems painters
continued working throughout this period with no apparent
break in service, change in duties, or location of work.
After Maurer left PBN in November, the Wierzbickis con-
tinued to work at Harbor Park and fulfill PBN’s contract. How-
ever, when New England Builders put out new contracts for
bid, the Wierzbickis decided to make their bids through a new
corporation.
4. Liquid Systems, LLC
Liquid Systems, LLC formally came into existence on March
5, 2004, with Edmund Wierzbicki as the only owner and mem-
ber of that company. (GC Exh. 57.) Besides its incorporation,
there is no evidence that Liquid Systems engaged in any other
formal corporate activity, such as the adoption of bylaws. Liq-
uid Systems’ place of business is either at Edmund’s residence
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD718
or his automobile. Notwithstanding its later date of formation,
Liquid Systems submitted proposals dated February 27, 2004,
to paint buildings 11, 12, and 15 at Harbor Park. Thus, Liquid
Systems was operating and bidding on projects before it was
formally organized or authorized to operate.
Edmund Wierzbicki testified that he submitted the February
27, 2004 proposals to Joel Spalding of New England Builders.
Edmund testified he spoke to Spalding before Liquid Systems
was organized, but he could not remember any details about the
alleged conversation. Spalding is the senior project manager
and secretary-treasurer for New England Builders, which is the
general contractor at Harbor Park. On April 1, 2004, New Eng-
land Builders, in a subcontract signed on its behalf by Joel
Spalding, awarded Liquid Systems the painting contract for
buildings 11, 12, and 15 at Harbor Park. Under this contract,
Liquid Systems would receive in excess of $270,000 from New
England Builders for painting work at the three buildings. (GC
Exh. 62.)
Like his brother Eric, who claims to have started SRC, Inc.
with no previous experience starting or operating a business, or
bidding for or obtaining jobs, or handling financial or adminis-
trative matters, or managing employees, Edmund claims to
have started Liquid Systems with a similar lack of qualifica-
tions. Since his graduation from college in 1999, Edmund
worked exclusively as a painter or laborer. He worked for SRC,
Inc. where he did painting and wallpapering and was paid less
than $10 an hour.11 Edmund could only guess that he worked 4
or 5 years for SRC, Inc. He next worked for SRC Painting from
2000 to 2003, where he did painting and was paid union scale.
Edmund does not dispute that he had no or virtually no quali-
fications to operate Liquid Systems, much less to obtain a
$270,000 painting contract from New England Builders before
his company had ever done a single painting job. For example,
in his attempt to divorce himself from any meaningful in-
volvement with SRC Painting and PBN, he states in his
posthearing brief that he had no managerial or supervisory role
in SRC Painting, and that no evidence was introduced showing
that Edmund was anything more than a painter employed by
SRC Painting. (Posthearing Br., p. 6.) Edmund also argues that
the General Counsel produced no evidence showing that he
played any part in the management of PBN. Id. at 7.
Liquid Systems employs only three painters: Edmund,
Christianson, and Casey Grams, although Eric occasionally
does painting work in addition to his managerial responsibili-
ties. All of these painters had been employed by PBN; Edmund,
Eric, and Christianson also had worked for SRC Painting. Ed-
mund’s role and duties stayed the same at Liquid Systems as
his role and duties had been for SRC Painting and PBN. For all
of the companies, Edmund did spray outs, rerolls, and touch
ups at the Harbor Park project. Every painter employed by Liq-
uid Systems had previously worked for SRC Painting or PBN.
Some of the equipment used by Liquid Systems had been used
by SRC Painting and PBN. The work Liquid Systems performs

11 Further detracting from Edmund’s credibility, he testified that he
did not know who owned SRC, and could only guess that his brother,
Eric, owned SRC.
at the Harbor Park project is the same work that PBN per-
formed, the only difference being the buildings being painted.
Moreover, Eric maintains a managerial position with Liquid
Systems, and his responsibilities are essentially the same at
Liquid Systems as they were at PBN. New England Builders’
superintendent, Dennis Kamps, primarily deals with Eric in
matters involving Liquid Systems’ work at Harbor Park. Eric
also attends the weekly meetings at the construction site for
foremen. Kamps believes that Eric is the owner of Liquid Sys-
tems, and he describes Edmund’s role in Liquid Systems as a
painter.
New England Builders, through Spalding, awarded Liquid
Systems the $270,000 contract to paint buildings 11, 12 and 15
at Harbor Park. Edmund testified that he had previously painted
Spalding’s house, and there was no evidence whether Spalding
paid for the painting of his house, or if so, how much. This
personal interest affects Spalding’s credibility, but it does not
necessarily explain why Spalding would have awarded such
substantial contracts to a company allegedly owned, managed,
and operated by a person so devoid of qualifications. Unless, of
course, it is inferred that Edmund’s painting of Spalding’s
house was a quid pro quo for the grant of the contracts by New
England Builders to Liquid Systems. No such inference is
made. Moreover, that rather harsh alternative enhances and
increases the probability of the findings and inferences that are
made, viz., that Spalding primarily granted Liquid Systems
these contracts because he knew that James Wierzbicki, the
person with whom he had dealt in matters involving SRC Paint-
ing and PBN, and who controlled those corporations, was also
the person who was behind and controlled Liquid Systems.
Edmund’s alleged earnings under Liquid Systems could
hardly be more different than his alleged earnings, or lack of
earnings, under SRC Painting. Edmund testified that, at Liquid
Systems, he simply takes money out of the company whenever
he needs it. However, Edmund did not fully describe why he
“needed” the unusually large amounts of money he withdrew
from the company. Liquid Systems’ records disclose that for
the first 9 months of its existence, Edmund withdrew approxi-
mately $121,000 from the Liquid Systems account, all for his
personal use. Edmund denies that any of this money went to his
father, his mother, his sister, his brother, or his brother’s wife.
These denials are not credible.
In 2002, Edmund reported on his Federal income tax return
total income of approximately $14,000, none of which was
wages. Yet, for 2004, Edmund claims to have received at least
$121,000 (not counting any earnings he had during the period
January to March 2004), all for his personal use and without
any apparent change in his standard of living. Moreover, and in
addition to Edmund’s cash income, Liquid Systems paid his
personal expenses, such as his student loans, his home utilities,
his home cable, his truck, and his telephone.
In view of Edmund’s lack of credibility, considering his fa-
ther’s control of SRC Painting and PBN, and considering his,
his father’s, and his siblings’ use of those corporations to ex-
tract money and pay personal expenses, I believe the opposite
of Edmund’s testimony is more likely the truth, and that much
of the cash Edmund withdrew from Liquid Systems was with-
drawn for the benefit not only of himself, but for the benefit of
SRC PAINTING, LLC 719
his father and mother, James and Karen, and his siblings, Eric
and Erin. See NLRB v. Walton Mfg. Co., supra at 408; Reigel
Electric, 342 NLRB 847, 849 (2004).
During the 5 years before Liquid Systems was formed,
James Wierzbicki employed Edmund as a laborer and painter in
the family’s painting businesses. During those years, Edmund’s
father, and his younger brother and sister admitted that they
controlled the day-to-day management, labor relations policies,
business operations, and financial resources of SRC Painting
and PBN; that they failed to maintain the legal identities of
SRC Painting and PBN distinct from themselves; that they
commingled their personal assets with the corporate assets of
SRC Painting and PBN; and that, by failing to maintain the
separate corporate identities of SRC Painting and PBN, they
engaged in fraud, injustice, and evasion of their legal obliga-
tions under the Act. During the years Edmund was employed
by SRC Painting and PBN, he and his family members used
various devices to siphon money from the businesses. It is not
plausible that in 2004 Edmund would suddenly become the
only member of this Wierzbicki group (i.e., James, Eric, Erin,
and Edmund) to earn money. Nor is it plausible that in 2004
Edmund would suddenly become the only member of the
Wierzbicki family to receive money from the family’s painting
business. James had long operated and controlled the family
businesses. Liquid Systems was another family business em-
ploying the same painters, using the same equipment, and
working the same job. Observing the Wierzbickis on the wit-
ness stand and testifying in front of one another, it is apparent
that James is the leader, the initiator, and the person in charge
of the family businesses, and that Eric, Erin, and Edmund fol-
low in step.
When Edmund was asked about whether his family members
were involved in Liquid Systems or whether they received any
money from that business, Edmund exhibited none of the un-
certainty, vagueness, and forgetfulness that he displayed when
answering all other questions about his and his family mem-
bers’ involvement with SRC Painting and PBN. Edmund ada-
mantly denied that his family members received money from
Liquid Systems. This change in demeanor further detracts from
Edmund’s credibility. Moreover, Edmund’s testimony that his
family members were not involved in Liquid Systems contra-
dicts James’ statement to New England Builders that “they,”
the Wierzbickis, had started Liquid Systems. (Tr. 297.)
Edmund’s assured testimony denying that his family mem-
bers received money from Liquid Systems was not candid. For
example, Liquid Systems pays the mortgage on the property in
Trego, which is where James spends approximately 90 percent
of his time. Liquid Systems also pays for the utilities and tele-
vision at the Trego residence. There is no evidence that James
pays rent to Edmund for living at the Trego property. More-
over, Edmund’s tax return fails to report rental income from the
Trego property. Thus, James directly benefits from Liquid Sys-
tems’ mortgage, utilities, and television payments for the house
in which he lives. In addition, Liquid Systems makes the
monthly payments for one of the vehicles owned by Erin, al-
though Edmund tried to nullify the effect of such payments by
claiming that he borrows that vehicle from Erin.
Edmund was unable to explain who prepared approximately
33 Liquid Systems’ checks that had been stamped with his
signature. Edmund was unable to explain what he did with the
money he withdrew from Liquid Systems. He could not explain
what he did with any of his cash withdrawals from Liquid Sys-
tems, including a $7003 withdrawal on April 5, 2004. And, he
could only guess that a withdrawal of $11,500 on October 25,
2004, was used to pay “for lawyers or something.” (Tr. 817.)
Such testimony, from the person who is allegedly the only
owner and officer of Liquid Systems, is not credible. However,
the credibility of such testimony increases with the realization
that Edmund did not control or truly own Liquid Systems.
James owned and controlled Liquid Systems, as he had owned
and controlled SRC Painting and PBN. Moreover, Edmund’s
inability to explain who had prepared 33 Liquid Systems’
checks also contradicts his own testimony that he was the only
person who writes Liquid Systems’ checks. Edmund had little
control over Liquid Systems’ handling of, and accounting for,
financial matters.
Moreover, the limited records of Liquid Systems, pertaining
to Edmund’s supposition that Liquid Systems’ $11,500 pay-
ment to him in October was for attorney fees, support the find-
ing that James, not Edmund, was the true owner of Liquid Sys-
tems. These records disclose that on October 12, 2004, check
number 1107 was issued to the attorney who represented
James, Karen, Eric, and Constance during the present proceed-
ing. Liquid Systems lists this check as “Professional Fees.” (GC
Exh. 68, p. 23.) However, the $11,500, unnumbered “check,”
supposedly dated October 25, 2004, that Edmund believed was
for attorney fees, was not listed under professional fees. Rather,
the payment was simply listed as one of the many withdrawals
by Edmund. (GC Exh. 68, pp. 4 and 14.) Thus, Liquid Systems
identifies the legal expenses of James and Eric, and their wives,
as professional fee expenses. However, the supposed legal ex-
penses of Edmund are not listed as an expense, much less a
professional fee expense. This accounting by Liquid Systems
supports the finding that James is the owner of Liquid Systems,
not Edmund.
In addition, Edmund’s certainty with regard to such implau-
sible and incredible matters as James and Eric’s alleged nonin-
volvement in the affairs of Liquid Systems, in conjunction with
his demeanor, his hostility and his resentment toward the Gen-
eral Counsel, the Union, and the process, which was noted
above, leads me to believe that the opposite of his testimony is
the truth. See NLRB v. Walton Mfg. Co., supra at 408 (noting
that certain testimony may be uttered with such arrogance or
defiance as to give the assurance that the testimony is a fabrica-
tion); Mar-Kay Cartage, 277 NLRB 1335, 1340 (1985). Ac-
cordingly, Edmund’s testimony confirms my finding that James
controls Liquid Systems, and that Liquid Systems is operated
by and for the benefit of James, Karen, Eric, Constance, Erin,
and Edmund, just as SRC Painting and PBN were.
III. ANALYSIS
A. Alter Ego
SRC Painting recognized the Union as the exclusive repre-
sentative of its painters, and it was a party to collective-
bargaining agreements with the Union. The most recent collec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD720
tive-bargaining agreement expired on May 31, 2004. PBN be-
gan operating in approximately the summer of 2003, and Liq-
uid Systems began operating approximately in the winter or
spring of 2004. PBN and Liquid Systems did not recognize the
Union as the exclusive representative of its painters, they did
not comply with the provisions of SRC Painting’s collective-
bargaining agreement with the Union, and they did not bargain
with the Union regarding any employment conditions of their
painters.
PBN did not have a duty to recognize the Union as the ex-
clusive representative of its painters, to comply with the provi-
sions of the collective-bargaining agreement, and to bargain
collectively with the Union unless it was the alter ego of, or
was a single employer with, or was a successor to, SRC Paint-
ing or PBN. Similarly, Liquid Systems did not have a duty to
recognize the Union, to comply with the collective-bargaining
agreement, or bargain with the Union unless it was the alter ego
of, or was a single employer with, or was a successor to, SRC
Painting or PBN. The single-employer doctrine generally ap-
plies to companies that concurrently perform the same or simi-
lar function, and where one company recognizes the Union and
the other does not. Stardyne, Inc. v. NLRB, 41 F.3d 141, 152
(3d Cir. 1994); NLRB v. Hospital San Rafael, 42 F.3d 45
(1994). The alter ego doctrine generally applies where a nonun-
ion company replaces a union company. Id.
In the present case, PBN replaced SRC Painting by taking
over the work SRC Painting had been doing at the Harbor Park
project. Upon being replaced by PBN, SRC Painting ceased
operating. Similarly, Liquid Systems replaced PBN by taking
over the painting work at the Harbor Park project. Upon being
replaced by Liquid Systems, PBN ceased operating. Accord-
ingly, the alter ego doctrine will be examined to determine if
PBN is the alter ego of SRC Painting and if Liquid Systems is
the alter ego of PBN.12
A corporation will be deemed the alter ego of a predecessor
corporation if there was not “a bona fide discontinuance and a
true change of ownership” or if there was “merely a disguised
continuance of the old employer.” Southport Petroleum Co. v.
NLRB, 315 U.S. 100, 106 (1942). Alter ego cases
involve a mere technical change in the structure or identity of
the employing entity, frequently to avoid the effect of the la-
bor laws, without any substantial change in its ownership or
management. In these circumstances, the courts have had little
difficulty holding that the successor is in reality the same em-

12 The record is unclear regarding the precise dates that SCR Paint-
ing, PBN, and Liquid Systems started and stopped operating. During
these changeover periods, it is possible that SRC Painting and PBN, on
the one hand, and PBN and Liquid Systems, on the other, were ongoing
businesses coordinated by a common master. NLRB v. Hospital San
Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 1994). Accordingly, the single-
employer doctrine could be examined to determine if SRC Painting or
PBN and Liquid Systems are single employers. This examination will
not be undertaken in this decision because of the uncertainty of the
factual predicate for applying the doctrine, viz., the concurrent opera-
tion of the relevant corporations, and because the remedy would not be
affected under the single-employer doctrine if the alter ego doctrine
were found to be applicable.
ployer and is subject to all the legal and contractual obliga-
tions of the predecessor.
Howard Johnson Co. v. Hotel & Restaurant Employees, 417
U.S. 249, 259 (1974). The determination of alter ego status is a
question of fact for the Board. Southport Petroleum Co., supra.
The factors that are considered in determining alter ego
status include whether “the two enterprises have ‘substantially
identical’ management and supervision, business purpose, op-
erations, equipment, customers, as well as ownership.” Midwest
Precision Heating & Cooling, 341 NLRB 435 (2004); Craw-
ford Door Sales Co., 226 NLRB 1144 (1976). Intent to evade
responsibilities under the Act is an additional factor that must
be considered, but a finding of antiunion animus is not required
in order to find an alter ego relationship. Fugazy Continental
Corp., 265 NLRB 1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir.
1984). No single factor is determinative and not all the indicia
need be present for the Board to conclude that one entity is the
alter ego of another. Standard Commercial Cartage, Inc., 330
NLRB 11, 13 (1999).
James, Eric, and Erin admit that PBN is the alter ego of SRC
Painting. Although Edmund has made no such admission, nei-
ther does he dispute PBN’s alter ego status. The admission by
James, Eric, and Erin was made in conjunction with their ad-
mission that they are supervisors and agents of SRC Painting
and PBN, and that they have controlled the day-to-day man-
agement, labor relations policies, business operations, and fi-
nancial resources of SRC Painting and PBN. Moreover, and
without detailing the facts set forth herein, the evidence is more
than sufficient to support the concessions of PBN’s alter ego
status. The next question is whether Liquid Systems is the alter
ego of PBN or SRC Painting. Liquid Systems’ alter ego status
is opposed by Edmund, but is not disputed by James, Eric, or
Erin.
At Liquid Systems, Eric continued the supervisory and
managerial duties he had at PBN and SRC Painting.13 Eric was
the primary Liquid Systems’ representative who interacted with
New England Builders during Liquid Systems’ performance of
its contract. Eric attended the weekly construction meetings at
Harbor Park on behalf of Liquid Systems. Indeed, Dennis
Kamps, the site superintendent for New England Builders, be-
lieved that Eric was the owner of Liquid Systems and that Ed-
mund worked for Liquid Systems as a painter.
The business purpose and operation of Liquid Systems is
identical to the business purpose and operation of PBN and
SRC Painting. Moreover, all the employees who worked for
Liquid Systems had previously worked for PBN. Liquid Sys-
tems is the same operation as PBN, and essentially the same as
SRC Painting except on a smaller scale. See Marquis Printing
Corp., 213 NLRB 394, 401 (1974).
It is unclear whether the equipment used by Liquid Systems
is the same equipment used by PBN and SRC Painting. Ed-
mund identified four pieces of equipment used by Liquid Sys-
tems. He testified that he purchased a Graco 1000 pump from

13 Edmund claims that Eric was not paid for his work at Liquid Sys-
tems. Without regard to the incredibility of this claim, the fact remains
that Eric worked for Liquid Systems.
SRC PAINTING, LLC 721
Eric in 1998 or 1999. Edmund does not claim to have had a
painting business in 1998 or 1999, and he did not explain why
he would have purchased this pump in this time period. Ed-
mund produced no receipt for the purchase of this pump. Ed-
mund claimed that he purchased another Graco 1000 pump in
2001 or 2002 from a person by the name of Barry Brown.
Again, Edmund did not explain why he had originally pur-
chased this equipment nor did he produce a receipt.
Edmund claimed to have purchased two additional pieces of
equipment after Liquid Systems was formed. However, he pro-
duced no receipts for these alleged purchases. Moreover, SRC
Painting and PBN had simply stopped operating when the
Wierzbickis decided to form successor corporations. But, there
is no evidence relating to the disposal of the equipment owned
and used by those corporations. On balance, it is likely that
PBN and SRC Painting had previously used some, and possibly
all, equipment used by Liquid Systems. However, the evidence
is unclear. Accordingly, this factor neither adds to nor detracts
from an alter ego finding.
The customer of Liquid Systems was the same customer of
PBN and SRC Painting, viz., New England Builders. Indeed,
Liquid Systems, PBN, and SRC Painting worked on the same
project for New England Builders—the Harbor Park project.
Thus, SRC Painting, PBN, and Liquid Systems constitute “’the
same business in the same market.’” Fugazy Continental Corp.,
supra at 1301–1302, quoting International Harvester Co., 247
NLRB 791 (1980).
Liquid Systems employed Christianson, who had been a
foreman at SRC Painting and PBN. Although Edmund also
claimed to be a supervisor for Liquid Systems, there is no cor-
roborating evidence of his supervisory actions or duties. Ed-
mund was not a credible witness, and this bald claim is not
accepted. Except for Eric and Christianson, there is no credible
evidence of any other supervisor for Liquid Systems, and both
Eric and Christianson had been supervisors for SRC Painting
and PBN.
James Wierzbicki owned SRC Painting and PBN despite his
installation of Kellerman and Maurer as the nominal owners.
Edmund is the owner of Liquid Systems. In spite of this appar-
ent difference in ownership between James and his son, Ed-
mund, the common ownership factor is not defeated. As the
Board stated in Kenmore Contracting Co., 289 NLRB 336, 337
(1988), enfd. 888 F.2d 125 (2d Cir. 1989), “a finding of com-
mon ownership may be made where, although the same indi-
viduals are not shown to be owners of each corporation, the
corporations are solely owned by members of the same family.”
Ownership by members of the same family does not compel a
finding of substantially identical ownership. “However, it ‘mili-
tates in favor of an alter ego finding’ where, as here, other rele-
vant factors are shown.” Midwest Precision Heating & Cool-
ing, supra (quoting Cofab, Inc., 322 NLRB 162, 163 (1996),
enfd. 159 F.3d 1352 (3d. Cir. 1998). James Wierzbicki and his
three children owned and controlled SRC Painting, PBN, and
Liquid Systems. James told New England Builders that the
Wierzbickis had started Liquid Systems. Accordingly, common
ownership is established and militates in favor of an alter ego
finding.
There is also a significant lack of an arm’s-length relation-
ship between these corporations and the Wierzbickis. For ex-
ample, there is no documentary evidence of the purchase or sale
of painting equipment by the corporations or the Wierzbickis.
This absence of bills of sale and receipts is irregular and indi-
cates a lack of arm’s-length relationship. See Fugazy Continen-
tal Corp., supra at 1302. Moreover, SRC Painting paid rent to
Constance, and SRC Painting and PBN paid rent to Edmund,
but there are no lease documents or terms to those lease rela-
tionships. Erin allegedly made loans to SRC Painting and PBN,
but there are no documents establishing such loans. Thus, Erin
received substantial payments from SRC Painting and PBN,
allegedly for repayment of loans, but since the loans cannot be
documented, there is no support or corroboration to disclose
when such alleged loans would be paid back. Erin could con-
tinue to siphon money from the corporation, supposedly tax-
free as loan repayments, until the corporation was drained of
assets. These transactions are without documentation, are ir-
regular, and indicate a lack of arm’s-length relationship. The
lack of arm’s-length relationships between the Wierzbickis and
the corporations suggest alter ego status. Valley Electric, 336
NLRB 1272, 1275 (2001); Reigel Electric, supra.
The temporal proximity between PBN’s cessation of busi-
ness and Liquid Systems’ creation, together with Liquid Sys-
tems’ takeover of the Harbor Park project that PBN had been
doing, are additional factors suggesting the alter ego status of
Liquid Systems. Twin Cities Electric, 296 NLRB 1014, 1020
(1989); Cofab, Inc., 322 NLRB 162, 163 (1996).
With respect to motivation, the question is “whether the pur-
pose behind the creation of the alleged alter ego was legitimate
or whether, instead, its purpose was to evade responsibilities
under the Act.” Fugazy Continental Corp., supra at 1302.
James Wierzbicki created PBN for the purpose of evading SRC
Painting’s responsibilities under its collective-bargaining agree-
ment with the Union. However, there is no direct evidence of
antiunion animus in the creation of Liquid Systems.
On the other hand, there was no evidence showing that Liq-
uid Systems was created for legitimate reasons. Moreover,
there is the curious circumstance that Liquid Systems is 100
percent owned by Edmund. Of his siblings and his father, the
one person least qualified to own and operate a painting com-
pany is Edmund. There is no apparent reason why Edmund
would start, own, and operate a painting company as opposed
to any one of his siblings or his father. The single reason that
comes to mind is that Edmund had no involvement in the man-
agement or control of SRC Painting and PBN. Thus, if any one
of the Wierzbickis who did control those companies were to be
found liable for SRC Painting or PBN’s violations of law (and,
James, Eric, and Erin conceded during the hearing their indi-
vidual liability for any unfair labor practices committed by SRC
Painting and PBN), then Liquid Systems might be protected if
it were owned by the one sibling, Edmund, who did not exer-
cise such control over SRC Painting and PBN.
Moreover, Edmund did not explain why Liquid Systems was
formed or why he decided, or someone decided for him, to be
its owner. In these circumstances, an adverse inference regard-
ing motive might be appropriate. See Custom Mfg Co., 259
NLRB 614, 615 fn. 7 (1981) (where the Board noted that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD722
absence of a credible explanation for changes in the corporate
entity, coupled with other factors, undermined the Respon-
dent’s contention that it was not an alter ego); cf. Liberty
Source W, 344 NLRB 1127 (2005) (where the judge made an
adverse inference, but the Board did not rely on the adverse
inference in affirming the judge’s decision). Nevertheless, no
adverse inference is applied herein. Accordingly, the evidence
does not show that the purpose behind the creation of Liquid
Systems was legitimate or was to evade responsibilities under
the Act. However, as with other indicia, a showing of improper
motive is not necessary to a finding of alter ego status. Fugazy
Continental Corp., supra; Johnstown Corp., 313 NLRB 170,
171 (1993), remanded sub nom. Stardyne, Inc. v. NLRB, 41
F.3d 141 (3d Cir. 1994), on remand 322 NLRB 818 (1997).
Considering all of the circumstances in the creation, forma-
tion, and operation of Liquid Systems; in view of Liquid Sys-
tems, SRC Painting, and PBN’s substantially identical man-
agement, business purpose, operation, customer, supervision,
and ownership; considering all of the other circumstances, such
as the Wierzbickis disregard of corporate formalities and blur-
ring of the corporations’ structures in their operation of SRC
Painting, PBN, and Liquid Systems; I find that Liquid Systems
is a disguised continuance of and the alter ego of SRC Painting
and PBN.
B. Individual Liability
The corporate veil may be pierced when: “(1) the share-
holder and corporation have failed to maintain separate identi-
ties, and (2) adherence to the corporate structure would sanc-
tion a fraud, promote injustice, or lead to an evasion of legal
obligations.” White Oak Coal Co., 318 NLRB 732 (1995). In
assessing the first prong, the Board considers “(a) the degree to
which the corporate legal formalities have been maintained, and
(b) the degree to which individual and corporate funds, other
assets, and affairs have been commingled.” Id at 735. Factors to
consider in making these determinations are:
(1) whether the corporation is operated as a separate entity;
(2) the commingling of funds and other assets; (3) the failure
to maintain adequate corporate records; (4) the nature of the
corporation’s ownership and control; (5) the availability and
use of corporate assets, the absence of same, or under capitali-
zation; (6) the use of the corporate form as a mere shell, in-
strumentality or conduit of an individual or another corpora-
tion; (7) disregard of corporate legal formalities and the fail-
ure to maintain an arm’s-length relationship among related
entities; (8) diversion of the corporate funds or assets to non-
corporate purposes; and, in addition, (9) transfer or disposal of
corporate assets without fair consideration.
Id. James, Eric, and Erin have conceded their personal liability
for the actions of SRC Painting and PBN. In any event, the
evidence amply demonstrates that the corporate veil of SRC
Painting and PBN should be pierced to hold James, Eric, and
Erin personally liable. With respect to Liquid Systems, the
majority of the foregoing nine factors has been established, and
the evidence demonstrates that Edmund and Liquid Systems
have failed to maintain separate identities.
If an individual freely withdraws funds from a corporation,
without supporting documentation or other indicia of an arm’s-
length relationship, then the corporation’s separate identity is
blurred. Reliable Electric Co., 330 NLRB 111 (2000). Edmund
withdrew money at will from Liquid Systems. Indeed, he testi-
fied that he withdrew money whenever he needed it.
Edmund commingled his own funds with Liquid Systems’
funds, which is shown by Liquid Systems’ payment of Ed-
mund’s personal expenses, such as his telephone bill, his stu-
dent loans, his home mortgage, his Direct TV and cable bill, his
home utilities, and the purchase of a $1000 camera for Ed-
mund’s trip to Fiji. Moreover, there was a disregard of corpo-
rate legal formalities and there was a diversion of the corporate
funds or assets to noncorporate purposes to the extent that Liq-
uid Systems’ funds were commingled with personal funds.
Liquid Systems failed to maintain adequate corporate re-
cords. For example, Edmund withdrew approximately $121,000
during the first 9 months of Liquid Systems’ existence. These
withdrawals were made on approximately 42 separate occa-
sions. (GC Exh. 68.) However, there is no check number listed
for any of the 42 withdrawals by Edmund, leading to the infer-
ence that all of Edmund’s withdrawals were in cash. The use of
cash, especially by a corporation and the owner of the corpora-
tion, demonstrates a failure to maintain adequate corporate
records. In addition, the effect of this failure to maintain ade-
quate corporate records is reflected in Edmund’s ignorance of
the purpose(s) for any of his withdrawals.
The formal documents show that Edmund is the owner and
operator of Liquid Systems, but the facts show that Eric man-
ages the company while Edmund’s real status is a painter.
Moreover, James had previously installed nominal, figurehead
owners in Liquid Systems’ two predecessor corporations while
he maintained actual ownership and control of those corpora-
tions. Thus, James had established a pattern that was consistent
with the creation of Liquid Systems—installing persons, with-
out qualifications and without consideration, to ownership and
management positions, while retaining actual control for him-
self. The evidence, together with all reasonable inferences from
the evidence, shows that James repeated this pattern with Liq-
uid Systems, except that here he installed his son as the figure-
head rather than a nonfamily member.
Liquid Systems was also used as a conduit to benefit James
and Karen, as well as Edmund. This is demonstrated by Liquid
Systems’ payment of the mortgage for Edmund’s Trego prop-
erty where James resided for 90 percent of his time and Karen
resided part time. Liquid Systems also paid the utilities’ bills
for the Trego property. Liquid Systems was also used as a con-
duit to benefit Erin or Constance. This is shown by Liquid Sys-
tems’ monthly payments for a vehicle owned by Erin and a
Jeep owned by either Erin or Constance. Edmund did not know
whether the payment was for Erin’s or Constance’s Jeep, but
this uncertainty did not appear to concern him.
The second prong of the test for piercing the corporate veil is
whether adherence to the corporate structure would sanction a
fraud, promote injustice, or lead to an evasion of legal obliga-
tions. White Oak Coal Co., supra. Moreover, the second prong
must have some causal relationship to the first prong. “In other
words, the fraud, injustice, or evasion of legal obligations must
SRC PAINTING, LLC 723
flow from the misuse of the corporate form.” AAA Fire Sprinkler,
322 NLRB 69, 74 (1996), citing White Oak Coal, supra at 735.
Liquid Systems’ corporate documents fail to reflect any
property or money contributed by Edmund when Liquid Sys-
tems was formed. (GC Exh. 57.) Edmund testified, from a
handwritten note he prepared in connection with the present
litigation, that he contributed certain equipment. However,
neither Edmund nor Liquid Systems produced records to cor-
roborate the purchase of this equipment by Liquid Systems or
its value. There was no credible evidence of any capitalization
of Liquid Systems when it was formed or subsequent corporate
ownership of assets. A corporation’s under-capitalization ad-
versely affects its ability to satisfy remedial and backpay obli-
gations. Accordingly, under-capitalization, one of the factors
demonstrating Liquid Systems’ (and the Wierzbickis’) misuse
of the corporate form, would cause Liquid Systems to evade its
legal obligations.
Liquid Systems’ payment of Edmund’s mortgage, utilities,
telephone bills, and personal expenses, its payment of James
and Karen’s living expenses, and its payment of Erin or Con-
stance’s automobile expenses show that the corporation is dis-
sipating its assets for noncorporate purposes. Thus, Liquid Sys-
tems is less likely to be able to fulfill and comply with any
adverse order or judgment, especially one requiring the pay-
ment of back wages. Accordingly, all of this evidence relating
to capitalization, ownership of assets, and dissipation of funds
support the second prong of the White Oak Coal standard be-
cause respecting the corporate form would likely lead to Liquid
Systems’ evasion of legal obligations.
The Wierzbickis’ actions in rendering Liquid Systems unable
to satisfy a judgment against it apply equally to their operation
of SRC Painting and PBN. Those corporations were started and
shut down for no apparent legitimate purpose. SRC Painting
was started to enable SRC, Inc. to evade payment of an obliga-
tion to a union in Chicago. And, James Wierzbicki made clear
that the purpose of PBN was to get rid of the Union. SRC
Painting and PBN paid money to, and paid the personal ex-
penses of, James and Karen, Eric and Constance, Erin, and
Edmund. There is no evidence that those companies have any
remaining assets. Thus, the evidence relating to SRC Painting
and PBN, the companies for which Liquid Systems is an alter
ego, also supports the second prong of the standard.
The Board has also applied the second prong’s “promote in-
justice” factor affirmatively by stating that the corporate veil
will be pierced when “justice so requires, ’where the individ-
ual’s personal affairs and the company’s affairs have been so
intermingled that corporate boundaries have been effectively
blurred.’” Best Roofing Co., 311 NLRB 224, 226 (1993) (quot-
ing Greater Kansas City Roofing, 305 NLRB 720 fn. 3 (1991)).
Although this particular example appears to be similar to one or
more of the factors used in determining the first prong, it is not
the same as any of those factors. The credible evidence in this
case demonstrates that the personal affairs of the Wierzbickis
and their corporations’ affairs have been so intermingled that
the boundaries of those corporations have been effectively
blurred. Accordingly, justice requires that the corporate veil be
pierced.
“[I]ndividuals charged personally with corporate liability
must be found to have participated in the fraud, injustice, or
inequity that is found.” White Oak Coal Co., supra at 735.
James, Eric, Erin, and Edmund participated in the injustice and
inequity. They participated through their creation, ownership,
operation, use, and receipt of funds and benefits from SRC
Painting, PBN, and Liquid Systems. Karen and Constance also
participated in the injustice and inequity found herein through
their receipt of funds and benefits from these corporations.
Karen received cash payments from SRC Painting, as well as
car payments. Karen also benefited from Liquid Systems’ pay-
ment of the mortgage and expenses on the Trego property
where Karen lived part time. Constance received rent and home
expense payments from SRC Painting. She possibly received
payments for her Jeep from Liquid Systems. Edmund’s uncer-
tainty on this matter demonstrates the fluidity of the Wierz-
bickis’ relationships with the corporations.
Karen and Constance received money and payments of per-
sonal expenses from the corporations. These benefits were, at
least in part, for noncorporate purposes. As a result of these
payments, the legal obligations of the corporations, including
Liquid Systems, would be evaded if the corporate structure
were recognized. Accordingly, Karen and Constance are liable,
together with their spouses and Erin and Edmund, for the unfair
labor practices found herein.
C. Section 8(a)(1)14
Employers violate Section 8(a)(1) of the Act when they
threaten employees with job loss or loss of work as a result of
their union activities. Golden State Foods Corp., 340 NLRB
382 (2003). The complaint charges that about mid-September
2003, PBN, acting through James Wierzbicki, threatened an
employee with discharge if the employee did not voluntarily
give up his union apprenticeship.
In approximately September 200315 after George had called
Eric to speak about his union apprenticeship program, James
met with George at Harbor Park and told him that if he wanted
to attend school to complete the apprenticeship program, he
would have to work for someone else. Thus, James threatened
George with discharge if he did not give up his union appren-
ticeship program. This threat violates Section 8(a)(1).
D. Section 8(a)(3) and (1)—Discharge of Brent George
When an employer is alleged to have violated Section 8(a)(3)
in discharging an employee, the General Counsel has the bur-
den of proving by a preponderance of the evidence that anti-
union sentiment was a motivating factor in the discharge. To
meet this burden, the General Counsel must offer credible evi-

14 During the course of the hearing, including posthearing briefs, the
Respondents have not opposed or addressed the unfair labor practice
allegations in the complaint.
15 James’ initial meeting with SRC Painting’s employees at the
Kenosha restaurant occurred in July. About 3 weeks later, the Wierz-
bickis held a meeting at SRC Painting’s offices in Eric’s residence.
About 2 weeks later, James met with George. Accordingly, the meeting
occurred in approximately September, and this is substantially consis-
tent with the complaint allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD724
dence of union or other protected activity, employer knowledge
of this activity, and the existence of antiunion animus. Once
such unlawful motivation is shown, the burden shifts to the
employer to prove its affirmative defense that the alleged dis-
criminatory discharge would have taken place even in the ab-
sence of the protected activity. The ultimate burden of proving
discrimination always remains with the General Counsel.
Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
George engaged in protected activity by asking James
Wierzbicki on several occasions to allow George to complete
the Union’s apprenticeship program. Animus is demonstrated
by James’ various reactions to George’s requests, including
James’ statement that if George wanted to complete the appren-
ticeship program, he would have to work for someone else.
After James’ last conversation with George about the appren-
ticeship program, James went to Christianson and told him to
fire George. Christianson did not immediately discharge
George, but he did discharge George shortly before Thanksgiv-
ing. George was not recalled except for a 2-week period in
January 2004. Accordingly, the General Counsel has estab-
lished a prima facie case of unlawful discrimination.
The Respondents did not attempt to disprove any of the facts
constituting this charge. James testified, but he did not address
George’s discharge. In addition, and like the other unfair labor
practices set forth in the complaint, the Respondents have not
addressed this charge in their posthearing briefs. The unop-
posed evidence establishes that PBN discharged George, and
has failed to recall him, because of his protected union activity.
Accordingly, PBN violated Section 8(a)(3) and (1) of the Act.
E. Section 8(a)(5) and (1)—Contributions to the Union’s
Welfare and Other Funds
An employer violates Section 8(a)(5) and (1) of the Act by
failing to contribute to the appropriate union funds as required
by its collective-bargaining agreement. Alexander Painting,
344 NLRB 1346 (2005). The Respondents do not dispute that
the last payment to the Union’s health, welfare, vacation, ap-
prenticeship, pension, and other funds, as required by the col-
lective-bargaining agreement between SRC Painting and the
Union, was in March 2003, and that no further payments were
made. SRC Painting, as well as its respective alter egos, PBN
and Liquid Systems, was obligated to make those payments on
April 30, 2003, and thereafter pursuant to its collective-
bargaining agreement. Accordingly, the Respondents, SRC
Painting, PBN, and Liquid Systems, violated Section 8(a)(5)
and (1) of the Act.
F. Section 8(a)(5) and (1)—Failing to Honor the
Collective-Bargaining Agreement
An employer violates Section 8(a)(5) and (1) of the Act by
failing to honor the terms of its collective-bargaining agree-
ment. Alexander Painting, supra. The Respondents do not dis-
pute the failure of PBN and Liquid Systems to comply with the
terms of the collective-bargaining agreement between SRC
Painting and the Union. Indeed, PBN was created for the spe-
cific purpose of taking over SRC Painting’s business without
the Union. And, Liquid Systems simply took over PBN’s busi-
ness when PBN’s figurehead owner departed. The Respondents
also do not dispute that SRC Painting stopped complying with
its collective-bargaining agreement as of April 30, 2003. Ac-
cordingly, the Respondents, SRC Painting, and its alter egos,
PBN and Liquid Systems, violated Section 8(a)(5) and (1) of
the Act by failing to honor the terms of the collective-
bargaining agreement between SRC Painting and the Union,
which was effective from June 1, 2002, to May 31, 2004.
G. Section 8(a)(5) and (1)—Bypassing the Union and Dealing
Directly with Employees
An employer violates Section 8(a)(5) and (1) by bypassing
its employees’ exclusive representative and dealing directly
with the employees regarding terms and conditions of employ-
ment. Midwest Precision Heating & Cooling, supra. When
James Wierzbicki was forming PBN, he met twice with SRC
Painting’s employees without a union official. He told the em-
ployees that they would lose the health care and pension bene-
fits they received from the Union, but that he would provide a
new health care plan for them. He also told them he would
increase their wages because of the money he would save by
not making payments to the Union’s funds. James offered Brent
George a raise if George would quit the Union’s apprenticeship
program. The dishonesty of these statements and promises is
not relevant to the violation, which was complete when James
dealt directly with the employees concerning these terms and
conditions of employment. Accordingly, PBN, and its alter ego,
Liquid Systems, violated Section 8(a)(5) and (1).
H. Intentionally and Unlawfully Reducing the
Number of Unit Employees
The complaint charges that Liquid Systems intentionally re-
duced the number of unit employees in an effort to reduce its
obligations under the Act. Although the evidence indicates that
Liquid Systems employed fewer than all of PBN’s employees,
the record was not fully developed for this charge. In particular,
there is insufficient evidence to establish that the reduced num-
ber of employees was for the unlawful purpose alleged in the
charge. Accordingly, I will recommend that this charge be dis-
missed.
CONCLUSIONS OF LAW
1. Respondents SRC Painting, PBN, and Liquid Systems are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The International Union of Painters and Allied Trades,
District No. 7, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Liquid Systems is the alter ego of SRC Painting
and PBN. Respondent PBN is the alter ego of SRC Painting.
4. Respondents SRC Painting, PBN, and Liquid Systems are
jointly and severally liable for the unfair labor practices found
in this proceeding.
5. Respondents James, Karen, Eric, Constance, Erin, and
Edmund Wierzbicki are personally liable for the unfair labor
practices committed by the corporate Respondents as found in
these proceedings.
SRC PAINTING, LLC 725
6. At all material times, the Union has been the designated
exclusive collective-bargaining representative of the employees
of SRC Painting, and its alter egos, PBN, and Liquid Systems,
in the following appropriate bargaining unit within the meaning
of Section 9(b) of the Act:
All painters, drywall finishers, wall coverers, and similar or
related classifications, excluding guards and supervisors as
defined in the Act.
7. Respondents PBN and James Wierzbicki violated Section
8(a)(1) of the Act by threatening an employee that he would
have to work for someone else if he did not refrain from pro-
tected, union activities.
8. Respondent PBN violated Section 8(a)(3) and (1) of the
Act by unlawfully discharging Brent George.
9. Respondents SRC Painting, PBN, and Liquid Systems vio-
lated Section 8(a)(5) and (1) of the Act by:
(a) Failing and refusing to recognize and bargain with the
Union.
(b) Failing to make payments for or to the Union’s health,
welfare, vacation, apprenticeship, pension, and other funds as
required by the collective-bargaining agreement between the
Union and SRC Painting for the period June 1, 2002, through
May 31, 2004 (Agreement).
(c) Failing to continue in full force and effect the terms and
conditions of the Agreement by failing to apply the Agreement
to the unit employees.
(d) Bypassing the Union as the exclusive representative of
employees in the bargaining unit and dealing directly with em-
ployees over terms and conditions of employment.
10. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(3)
and (1) of the Act in its discriminatory discharge of Brent
George, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondents violated Section 8(a)(5)
and (1) of the Act by failing and refusing to recognize and bar-
gain with the Union, the Respondents will be ordered to recog-
nize the Union as the exclusive representative of its unit em-
ployees and, on request, to meet and bargain in good faith with
the Union. The Respondents also shall abide by and give full
force and effect to the agreement, and any automatic renewals
or extensions of it, unless and until an agreement is reached or
there is an impasse on all mandatory subjects of bargaining.
Having found that the Respondents violated Section 8(a)(5)
and (1) of the Act by failing to make payments for or to the
Union’s various welfare funds as required by the Agreement,
the Respondents must make all contractually-required pay-
ments that they have failed to make, including any additional
amounts due to the funds on behalf of the unit employees in
accordance with Merryweather Optical Co., 240 NLRB 1213
(1979). The Respondents shall reimburse unit employees for
any expenses resulting from their failure to make the required
contributions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Horizons for
the Retarded, supra.
Having found that the Respondents violated Section 8(a)(5)
and (1) of the Act by failing and refusing to apply the terms and
condition of the Agreement, the Respondents shall be required
to make whole the unit employees for any loss of earnings and
other benefits they may have suffered as a result of the Respon-
dents’ failure to comply with the agreement since April 30,
2003, in the manner set forth in Ogle Protection Service, with
interest as prescribed in New Horizons for the Retarded, supra.
Additionally, and in view of the nature of employment in the
painting/construction industry, and in view of the purported
location of Liquid Systems’ place of business, which is at Ed-
mund Wierzbicki’s residence or his automobile, and of SRC
Painting’s and PBN’s places of business at Eric Wierzbicki’s
residence, I find that posting notices at the Respondents’ place
of business is inadequate to inform the Respondents’ present
and former employees of their rights under this Decision and
Order. Therefore, I shall order that in addition to posting the
attached notice at their place of business, the Respondents will
post copies of the notice at their jobsites, and furnish signed
copies of the notice to the Union for posting at the Union’s
office and meeting places. See Kenmore Contracting Co., 289
NLRB 336, 339–340 (1988), enfd. 888 F.2d 125 (2d Cir. 1989).
[Recommended Order omitted from publication.]