Total Property Services

National Labor Relations Board - Board Decisions

Jun 27, 1995

317 N.L.R.B. 975 (N.L.R.B. 1995)

975
317 NLRB No. 138
TOTAL PROPERTY SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In agreeing with the judge that personal liability should not be im-
posed on Peter M. Daigle, we rely solely on his finding that the
record evidence fails to establish that Daigle, unlike James T.
Lawson, was personally involved in the ongoing operation of the
supposedly defunct Total Property Services, Inc. (TPS).
Member Browning would hold Peter Daigle personally liable in
addition to James C. Lawson. Although the record does not disclose
that Daigle was openly involved in the operation of TPS after the
dissolution of its corporate form, Daigle was the president of both
TPSNE and National Interior Contractors, Inc. (NIC), which the
judge has found were single employers with TPS. In his capacity as
a principal officer of each of the three entities, Daigle like Lawson,
manipulated the corporations and ignored their separate identities for
his own personal gain and to the detriment of the employees. Mem-
ber Browning joins her colleagues in declining to rely on the judge’s
finding that holding Daigle liable is not necessary to make the em-
ployees whole.
2 We find no merit in the Respondent’s contention that the back-
pay specification ‘‘goes beyond the time set forth in the order of the
Board.’’ The make-whole provision of the Order did not give spe-
cific dates, but referred to work performed ‘‘in or about October and
November 1990’’ on the construction site at which the Respondent
had unlawfully failed to apply the contract. This is broad enough to
encompass the backpay specification’s provision for backpay and
fringe benefit contributions through December 29, 1990.
1 Lawson acted as counsel throughout this proceeding.
2 Additionally, Total Property Services, Inc. will be referred to
herein as TPS and Total Property Services of New England, Inc. will
be referred to as TPSNE. Jointly all of these entities will be referred
to herein as the Respondent.
3 The General Counsel has moved to strike Respondent’s briefs for
failure to certify that copies were served on all parties and because
they were postmarked on the date they were due. As to the first
ground, I find that a proper certification was enclosed with the briefs
submitted to me. The second ground is technically meritorious as the
Respondent apparently did not mail those briefs until the day on
which they were due, August 23, 1994. See NLRB Rules and Regu-
lations, Sec. 102.111(b). However, as I had already read those briefs
before receipt of this motion on September 6, 1994, I find that I can-
not entirely disregard them. In any event, they essentially reiterate
arguments previously raised by Respondent in its motion to dismiss,
its affirmative defenses and at hearing so that the General Counsel
is not prejudiced by my consideration of them. Accordingly, the mo-
tion to strike is denied. See Postal Service, 309 NLRB 305 (1992).
Lawson and Daigle also submitted what was purported to be ‘‘rebut-
tal’’ briefs. As there is no provision for such briefs under the
Board’s Regulations, I have neither read nor considered those sub-
missions and strike them.
4 307 NLRB No. 60 (not reported in Board volumes).
Total Property Services, Inc. and Total Property
Services of New England, Inc. and National In-
terior Contractors, Inc. and Peter M. Daigle,
d/b/a Total Property Services, Inc. and James
T. Lawson, d/b/a Total Property Services, Inc.
and Carpenters Local No. 33, United Brother-
hood of Carpenters & Joiners of America. Case
1–CA–27908
June 27, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 16, 1994, Administrative Law Judge
Michael O. Miller issued the attached supplemental de-
cision. The Respondent filed exceptions and a brief
and the General Counsel filed an answering brief and
cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Total Property Services,
Inc., Total Property Services of New England, Inc.,
National Interior Contractors, Inc., and James T.
Lawson, d/b/a Total Property Services, Inc., Boston,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Robert DeBonis, Esq., for the General Counsel.
James T. Lawson, pro se.
Peter M. Daigle, pro se.
SUPPLEMENTAL DECISION—BACKPAY
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
matter was heard in Boston, Massachusetts, on June 27,
1994, based on a compliance specification issued by the Re-
gional Director for Region 1 of the National Labor Relations
Board (the Board) on January 31, 1994, as amended on April
7, 1994, and at hearing and answers filed on June 8, 1994,
by Peter M. Daigle (Daigle), James T. Lawson,1 (Lawson)
and National Interior Contractors, Inc. (NIC).2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by counsel for the General Counsel, Lawson, Daigle,
and NIC,3 I make the following
FINDINGS OF FACT
I. THE UNDERLYING CASE—BACKGROUND
On April 30, 1992, the Board issued its Decision and
Order in the underlying case,4 finding that Respondent Total
Property Services, Inc. (TPS) and Total Property Services of
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 TPS and TPSNE, Massachusetts and Delaware corporations re-
spectively, are general contractors engaged in the building and con-
struction industry, constructing commercial facilities and are engaged
in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act.
6 Sec. 102.56(b) provides, in relevant part, that ‘‘respondent shall
specifically admit, deny, or explain each and every allegation of the
specification, unless the respondent is without knowledge, in which
case the respondent shall so state, such statement operating as a de-
nial.’’ General denials of matters within respondent’s knowledge are
deemed insufficient. ‘‘[I]f the respondent disputes either the accuracy
of the figures in the specification or the premises on which they are
based,’’ he is required to state the basis for that disagreement and
set forth his position in detail, with appropriate supporting figures.
Sec. 102.56(c) provides that failure to answer as required by subsec.
(b) requires that the ‘‘allegation shall be deemed to be admitted to
be true and may be so found by the Board without the taking of
evidence supporting such allegation.’’
7 Ornamental Iron Works Co., 307 NLRB 20 (1992); Aquatech,
Inc., 306 NLRB 975 (1991); Meilman Food Industries, 255 NLRB
70 (1981).
8 Respondent raised this argument as poorly worded and somewhat
incomprehensible affirmative defenses. If this contention is based on
the argument that Respondent’s entities were improperly named, the
issue is resolved in subsec. (2) hereof. If Respondent intended to
argue that sufficiently related additional parties could not be added
at the compliance stage, it is simply in error. Southeastern Envelope
Co., 246 NLRB 423 (1979).
New England, Inc. (TPSNE)5 had violated Section 8(a)(5)
and (1) of the Act by failing and refusing to abide by and
apply a collective-bargaining agreement to which it was
bound to employees working on a construction project in
Boston, Massachusetts, in or about October and November
1990. It ordered these entities, whom it found to constitute
a single-integrated business enterprise and a single employer
within the meaning of the Act, to ‘‘make whole all employ-
ees for any loss of earnings resulting from Respondent’s con-
duct . . . with additional amounts to be paid into the em-
ployees’ benefit funds.’’ This Decision and Order issued on
the General Counsel’s Motion for Summary Judgment filed
when the Respondent failed to answer the complaint which,
the Board found, had been properly served on it, and failed
to respond to the Board’s Notice to Show Cause why the
General Counsel’s motion should not be granted.
The Board’s Order was enforced by a judgment of the
United Stated Court of Appeals for the First Circuit, entered
on October 27, 1992. This judgment, unpublished, was simi-
larly issued on a motion for summary entry of judgment.
II. THE ISSUES
At the hearing, counsel for the General Counsel moved to
strike Respondent’s answers to paragraphs 9 through 15 of
the specification, under Section 102.56 of the Board’s Rules
and Regulations, inasmuch as those answers failed to specifi-
cally admit or deny those allegations or assert a lack of
knowledge as to them, as required by that section.6
Paragraph 9 alleges that the backpay period commenced
around October 14 and terminated around December 29,
1990, ‘‘the period during which Respondent TPS/TPSNE
performed carpentry work at its Athletes Foot Store job lo-
cated in Fanueil Hall, in Boston, Massachusetts.’’ Respond-
ent’s answers denied that allegation ‘‘as the pleading don’t
[sic] conform to the Order of the Board . . . nor . . . to the
Judgment issued by the United States Court of Appeals.’’ In-
asmuch as Respondent’s answers appeared to deny service at
virtually every stage of the underlying case, contended that
both the Board and the court’s Orders were invalid because
of a misidentification of the employer and the jobsite, and
denied the existence of TPS and TPSNE, the motion to strike
this paragraph was denied.
Paragraphs 10 through 15 of the specification allege a rea-
sonable formula for determining the gross and net backpay
due the unit employees and the amounts due under that for-
mula (par. 10 and app. I), the backpay period for contribu-
tions to the benefit funds (par. 11), the benefit funds to
which Respondents were obligated to make contributions, the
due dates for benefit fund payments and a reasonable for-
mula for calculating Respondent’s obligations to those funds
(par. 12), Respondent’s failure to make those payments (par.
13), the amounts of fringe benefit contributions to which Re-
spondent was obligated (par. 14 and app. II), and a summary
of the Respondent’s obligations to the employees and the
fringe benefit funds (par. 15).
Respondent ‘‘[n]either admitted or denied’’ the allegations
of paragraphs 10 through 15. It contended, contrary to the
Regulations (Sec. 102.56(b) and (c)) and applicable prece-
dent, that those issues ‘‘were subject to testimony of the
party requesting’’ those wages or payments.
Respondent, although fully and carefully apprised of its
obligations and the requirements of the Rules, misperceived
or ignored those requirements. Its answers ‘‘neither admit
nor deny,’’ fail to state a valid basis for any disagreements
or offer any alternative computations. Accordingly, my rul-
ing, granting the motion to strike Respondent’s answers, is
specifically reaffirmed and I find that these allegations stand
as admitted to be true, requiring no affirmative evidence.7
These allegations, now matters of fact on which the backpay
is based, are set forth in detail in the specification, as amend-
ed and its appendices, are incorporated herein by reference
and need not be replicated in the body of this decision.
Remaining at issue are the following questions:
(1) Whether Respondent was properly served in the under-
lying proceeding?
(2) Whether the complaint, Board Order, and court judg-
ment fail to properly identify the Respondent?
(3) Whether the misidentification of the jobsite renders the
Board’s Order and the court’s judgment unenforceable?
(4) Whether NIC is a single employer with TPS/TPSNE?
(5) Whether it is appropriate to hold the individuals,
Daigle and Lawson, jointly and severally liable with TPS,
TPSNE, and NIC?
III. DISCUSSION AND ANALYSIS
A. Service
The Board found that TPS and TPSNE, a single employer,
had been properly served with copies of the charges, com-
plaints, and notices of hearing. In view of the fact that the
Order had issued on a Motion for Summary Judgment and
noting Respondent’s other positions regarding the corporate
identities,8 however, I permitted this issue to be raised. Re-
spondent bears the burden of proof in support of its affirma-
tive defenses but adduced no evidence in regard to the serv-
ice issue. The General Counsel produced the original files
containing proof that service had been made at every stage
977TOTAL PROPERTY SERVICES
of the proceeding, either by registered mail or by personal
service. Included therein was a letter from an attorney for
TPSNE, dated February 21, 1991, referencing the complaint
and notice of hearing.
To the extent that this issue is properly before me, I find
that there has been no failure of service in the underlying
case.
B. Identification of the Respondent–Continued
Existence of TPS
Both the Board’s Order and the court’s judgment identify
the Respondent as ‘‘Total Property Services, Inc. and Total
Property Services of New England, Inc.’’ It appears, from
documents on file in the office of the Massachusetts sec-
retary of state that the correct legal names are ‘‘TPS/Total
Property Services, Inc.’’ and ‘‘TPSNE/Total Property Serv-
ices of New England, Inc.’’ Based thereon, Respondent ar-
gues that there ‘‘is no such company called Total Property
Services, Inc. or Total Property Services of New England’’
and that they were, therefore, improperly named in the
Board’s Order. Implicit in this contention is the argument
that this deviation from the registered names of the corpora-
tions renders the Board’s Order somehow deficient.
Respondent’s contention is totally without merit. This in-
significant and inadvertent error caused neither confusion nor
prejudice. It was clear, at all times, to whom the charges,
complaints, and orders were directed.
Moreover, Respondent held themselves out as ‘‘Total
Property Services’’ and ‘‘Total Property Services of New
England’’ without the redundant or formal prefix of the cor-
porate initials. Daigle signed the Union’s acceptance of
agreement on behalf of ‘‘Total Property Services, Inc.,’’ the
statewide agreement was initially signed with the Employer
named as ‘‘Total Property Services, Inc. of New England,’’
the balance sheets and other supporting financial documents
which Respondent submitted to the Small Business Adminis-
tration identify it as ‘‘Total Property Service, Inc.’’ and Dun
& Bradstreet so lists it.
Under the circumstances described above, the General
Counsel had no reason or need to search the records of the
Commonwealth’s secretary of state to determine the precise
names of the entities which made up the single employer-re-
spondent. Respondent knew that it was charged with the vio-
lations, knew that a complaint had issued against it, knew
that it had been found in violation by the Board on its failure
to respond, and knew that the court had enforced the Board’s
Order. Further, it knew that a compliance specification and
notice of hearing had issued and Daigle, Lawson, and NIC
responded thereto. I find no fatal defect in the failure of the
Board or the court to identify the Respondent by the tech-
nically precise names under which its components was reg-
istered.
Included among the General Counsel’s exhibits was a
form, dated June 23, 1994, from the Massachusetts office of
the secretary of state certifying that TPS/Total Property Serv-
ices, Inc., which had been incorporated on January 1, 1986,
had been dissolved on December 31, 1990. This purported
dissolution is in direct conflict with the remainder of the
record establishing that TPS continued in existence, and in
business, long after the end of 1990.
Thus, the record contains balance sheets, profit-and-loss
statements, and other financial data submitted by TPS to the
Small Business Administration (SBA) for the years ending
June 30, 1991, 1992, and 1993. These all show significant
business activity during those years. Within SBA files is an
offer by TPS, in response to a solicitation for bids, to per-
form work at Elgin Air Force base in Florida, dated August
19, 1993. It is signed by Lawson as TPS’ president. In that
offer, TPS is shown as having a Providence, Rhode Island
address. SBA also received a letter from Lawson on behalf
of TPS, dated September 14, 1993, asserting that entity’s re-
sponsibility as a contractor. Respondent’s sole exhibit is a
certificate of change of directors or officers filed by Lawson
on May 16, 1991. That certificate purports to indicate that
Lawson had resigned as a corporate officer, director, and
stockholder of TPS/Total Property Services, Inc., effective
February 5, 1987, but had failed to file an earlier and more
timely certificate of change.
From this record, one cannot determine whether TPS
changed its state of incorporation or continued in business
after 1990 as a sole proprietorship or partnership while con-
tinuing to hold itself out as a corporation. What is clear is
that TPS continued in business, albeit with some changes in
its address, and that Lawson continued an active role in run-
ning that business.
C. Misidentification of the Jobsite
When Robert Marshall, field representative of Carpenters
Local No. 33, United Brotherhood of Carpenters and Joiners
of America (the Union), visited the Fanueil Hall Marketplace
in Boston in about October or November 1990, he observed
a construction project on what was obviously going to be a
sneaker/shoe store. He asked to speak to whomever was in
charge and questioned the person who came forward as to
the identity of the general contractor and the drywall sub-
contractor. He was told that the general contractor was Total
Property Service of New England and that the subcontractor
was a nonunion drywall contractor. Marshall stated that Total
Property Service had a union contract and was told that TPS
did but that TPSNE did not. In the course of the conversa-
tion, he was lead to believe that the store would be occupied
by Reebok; he may have asked the person he spoke with if
it was to be a sneaker store, ‘‘like a Reebok store.’’ If he
did, he was not corrected or contradicted. Marshall then
called Respondent’s office and had a similar conversation
with Lawson. Lawson denied that TPSNE had a collective-
bargaining agreement and challenged Marshall to find a link
between TPS and TPSNE.
When Marshall filed an unfair labor practice charge and
submitted an affidavit to the Board, he referred to the site
as a ‘‘Reebok’’ store. In fact, as he subsequently learned, the
site was to be occupied by the Athlete’s Foot chain of ath-
letic footwear stores.
There was only one other construction project under way
in the Fanueil Hall Marketplace when Marshall visited there.
That project did not involve either a shoe store or the Re-
spondent.
Marshall’s mistake was perpetuated in the General Coun-
sel’s complaint and in the Board’s Order, both of which
identified the work as to which Respondent failed to apply
the contract as ‘‘the Reebok store located at the Fanueil Hall
Marketplace.’’ The mistake was similarly perpetuated in the
court’s judgment, enforcing the Board’s Order.
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At hearing, Respondent acknowledged that ‘‘there’s no de-
nying that the company called TPSNE/Total Property Serv-
ices of New England had a contract with Athlete’s Foot.’’
It now contends, however, that this error precludes the find-
ing of any liability or the award of backpay against Respond-
ent. This is a valiant but unavailing effort to avoid respon-
sibility.
There is no confusion or prejudice to be found in this in-
advertent error. The worksite was described as a sneaker-type
store in the Fanueil Hall Marketplace, underway in the fourth
quarter of 1990. Respondent knew what work it was per-
forming at that location and in that period of time. That work
involved the construction of a sneaker store, albeit for Ath-
lete’s Foot, not Reebok. Respondent could have come for-
ward with this defense, if that is what it is, in response to
the charge or the complaint, denying that they performed the
work in question. It failed to do so, perhaps thinking that this
error would enable it to avoid its contractual responsibility.
I cannot find that such a minor and unprejudicial error, un-
timely raised, which would have been corrected by a routine
motion to conform the pleading to the proof if the matter had
gone to hearing, is sufficient to bar the relief to which the
employees and the Union are entitled.
D. Single Employer
As previously noted, the Board found that TPS and
TPSNE constituted a single-integrated business enterprise
and a single employer within the meaning of the Act. The
court enforced the Board’s Order and that conclusion is not
subject to question herein. The compliance specification al-
leges that NIC is a business enterprise affiliated with TPS
and TPSNE, sharing common officers, ownership, directors,
management, and supervision, with a commonly formulated
and administered labor policy, sharing common premises,
equipment and facilities, providing services to one another,
interchanging employees and holding themselves out to the
public as a single-integrated enterprise. Respondent denied
this allegation and the burden of proof is on the General
Counsel. Beech Branch Coal Co., 269 NLRB 536, 537
(1984). Respondent offered no evidence.
As the Board stated in Hydrolines, Inc., 305 NLRB 416,
417 (1991):
The Board applies four criteria in determining
whether separate entities constitute a single employer.
These criteria are: (1) interrelation of operations, (2)
common management, (3) centralized control of labor
relations, and (4) common ownership or financial con-
trol. No one of these four criteria is controlling nor
need all be present to warrant a single-employer find-
ing. The Board has stressed that the first three criteria
are more critical than common ownership, with particu-
lar emphasis on whether control of labor relations is
centralized, as these tend to show ‘‘operational integra-
tion.’’ . . . ‘‘[S]ingle employer status depends on all
the circumstances and is characterized by an absence of
an ‘arm’s length relationship found among unintegrated
companies.’’’ [Citations and footnotes omitted.]
At its incorporation, Daigle was president and a director
of TPS; Lawson was its treasurer and a director. Daigle con-
tinued to identify himself as TPS’ president through at least
1989. Both Daigle and Lawson directed the work of the unit
employees at the Athlete’s Foot store site and at other
jobsites on behalf of the TPS/TPSNE single-employer entity
in the fall of 1990. Notwithstanding Lawson’s purported ces-
sation of any role as officer, director, or stockholder in TPS
in 1987 (according to the late-filed change form), Lawson
bid on a job for TPS in August 1993, listing himself as its
president and referred to himself as TPS in a letter to the
SBA in September 1993. He similarly identified himself as
TPS’ president to Dun and Bradstreet in January 1994.
In October 1990, Daigle identified himself as the president
of TPSNE, in a letter authorizing John Daigle to negotiate
with another union. Daigle is similarly listed as president on
the Foreign Corporation Certificate on file with the Com-
monwealth of Massachusetts; Lawson is listed as its treasurer
and clerk. On a letter to the Postal Service regarding a bid,
dated May 8, 1991, and on the contractor qualification form
submitted to SBA in May 1992, Lawson is identified as the
vice president; he is similarly identified in a September 14,
1993 letter to SBA.
NIC was incorporated in mid-December 1990, just prior to
TPS’ purported dissolution. Its articles of incorporation list
Daigle as president and Daigle and members of his family
as the only officers and directors. Daigle claimed to be the
sole owner in a June 1992 application for SBA determina-
tion. In February 1993, however, Daigle identified Lawson to
a government contracting officer as the project manager and
as a co-owner and ‘‘silent partner’’ in NIC; Lawson had
similarly identified himself to a contracting officer in August
1992.
NIC is engaged in the same business as TPS and TPSNE,
general contracting in the construction and renovation of
commercial and other facilities. It utilized the same employ-
ees, with those employees receiving their pay from TPS or
TPSNE at some points and NIC at others with no expla-
nations or breaks in their employment. Regardless of what
company was paying them, those employees reported to the
same offices and the same people oversaw their work,
Lawson and Daigle. NIC also shared vehicles and equipment
with TPS.
Christopher Murphy was one of the employees working on
both the Athlete’s Foot store jobsite and a continuing project
at the McCormack Federal Building located a few minutes
walk from Fanueil Hall. In the fall of 1990, his paychecks
came from TPS. At some point toward the end of the year,
they began to originate from NIC. The employees were
aware of the different corporate names but not of any distinc-
tions between them.
In late 1991, a government contracting officer questioned
why, on a TPSNE job, TPSNE was not submitting payroll
records but NIC was. Lawson replied, explaining that NIC
was a ‘‘corporation that TPSNE has recently become affili-
ated with.’’ In other correspondence, an individual was iden-
tified as an employee of NIC with a copy of a paycheck to
him from NIC. That employees’ business card was also en-
closed; it showed him to be an employee of TPSNE. Simi-
larly, requests for solicitation documents submitted by
TPSNE in May 1991 were accompanied by checks drawn on
NIC. The checks were signed by Lawson.
The June 30, 1993 Dun & Bradstreet reports list Lawson
as president of TPS and Daigle as NIC’s president. Beyond
that, the reports are virtually identical. They report the same
979TOTAL PROPERTY SERVICES
dollar volume of sales, the same net worth and identical fis-
cal statements, to the dollar. They also reflect that, while dif-
ferent addresses are listed, they share a common mailbox.
While Respondent objected to the receipt of these reports,
procured through the Westlaw database, it offered no evi-
dence to refute their accuracy after those objections were
overruled.
I am not sure what games, if any, Daigle and Lawson
were attempting to play with their various and shifting busi-
ness entities beyond a patent effort to avoid their union-con-
tract responsibilities. I am sure, however, that the single-em-
ployer entity which had included both TPS and TPSNE has
continued to exist under one or both names and that both
Daigle and Lawson continue to be the principals of that em-
ploying entity. I am also convinced that NIC is a further ex-
tension of that entity, sufficiently closely related to
TPS/TPSNE to have derivative liability imposed on it. Coast
Delivery Service, 198 NLRB 1026, 1027 (1972). See also
Southeastern Envelope, 246 NLRB 423 (1979). NIC was ap-
parently created to supplant the dissolved corporate entity
known as TPS, it continued to pay the TPS employees, it is
owned and managed by the same individuals as TPS and
TPSNE, it performs the same work, with the same customer
base, and the same employees, tools, and other equipment.
NIC and TPSNE, at least, are interchangeable, with NIC
meeting TPSNE’s payroll and providing funds for its re-
quests for solicitation documents.
The record establishes that Daigle and Lawson determine
and administer all labor relations policy for the various enti-
ties and there is no evidence that there is anyone else in the
hierarchies of TPS, TPSNE, or NIC to do so.
Having found that NIC is a single employer with
TPS/TPSNE, the inclusion of that entity as a named respond-
ent at this stage of the litigation raises no statute of limita-
tions or service issues. Southeastern Envelope, supra.
Given the foregoing evidence, and the absence of any con-
trary proof, I am compelled to find that NIC, TPS, and
TPSNE constitute a single-integrated business enterprise and
a single employer within the meaning of the Act.
IV. INDIVIDUAL LIABILITY
The General Counsel further urges that individual liability
be imposed on Daigle and Lawson because these individuals
continued to operate TPS after its corporate structure was
dissolved and because of a pattern by them of manipulating
their corporate entities so as to avoid contractual and finan-
cial obligations. In Greater Kansas City Roofing, 305 NLRB
720 (1991), the Board reiterated its standards for piercing the
corporate veil:
Section 10(c) of the Act empowers the Board with
broad authority to fashion appropriate remedies to meet
the needs of a particular situation so that ‘‘the victims
of discrimination may be treated fairly.’’ Phelps Dodge
Corp. v. NLRB, 313 U.S. 177 (1941). As a policy mat-
ter, the task for the Board is to determine the proper
balance of the legal rights involved. When the incentive
value of limited liability . . . is outweighed by the
competing value of basic fairness to parties dealing
with a corporation, the Board should look past that cor-
poration’s formal existence and hold controlling indi-
viduals liable for ‘‘corporate’’ obligations. Labadie
Coal Co. v. Black, 672 F.2d 92 (D.C. Cir. 1982).
The General Counsel argues that the piercing of the cor-
porate veil is warranted where, as here, individuals continue
to operate as if a dissolved corporation were still in exist-
ence. Urban Laboratories, 308 NLRB 816 (1992), so holds.
Respondent opposes the imposition of such liability to
Lawson (and inferentially to Daigle, although the identical
briefs submitted on their behalf fails to make that distinc-
tion), arguing only that ‘‘The General Counsel failed to pre-
sented [sic] evidence through witnesses, affidavits and/or
documents that the Respondent Lawson was an individual
liable for the debt of another.’’
Contrary to Respondent’s claim, the General Counsel has
produced ample evidence to support individual liability, at
least as to Lawson. Thus, Lawson was an officer and director
of TPS at its inception; he purportedly ceased to occupy
those positions in 1987 but failed to timely notify the Com-
monwealth of Massachusetts of that fact. After TPS’ cor-
porate dissolution in that Commonwealth, Lawson held him-
self out as the president of an ongoing business known as
TPS. Moreover, while Lawson does not appear to have any
corporate role or ownership position in NIC, according to the
records of that corporation, both he and Daigle acknowl-
edged that Lawson was a ‘‘silent partner’’ in NIC, with both
an ownership interest and a management role. I find that the
foregoing is sufficient to hold Lawson individually liable, as
an alter ego of both TPS and NIC, in the overriding interest
of ensuring that the individuals denied their contractual bene-
fits will achieve the remedy properly due them.
I do not find the same level of proof, or necessity, with
respect to Daigle. Daigle remains the president of both
TPSNE and NIC, which are ongoing business enterprises.
There is no evidence that he was involved in the ongoing op-
eration of the supposedly defunct TPS. Moreover, the liabil-
ity of TPSNE and NIC, as part of the single employer entity,
taken together with Lawson’s individual liability, is sufficient
to fairly ensure that the employees will receive the remedial
sums which are due them, without extending personal liabil-
ity to Daigle.
Based on all of the foregoing, I find and conclude that the
discriminatees and union benefit funds suffered losses in the
following amounts, as set forth in greater detail in the
amended backpay specification, as a result of Respondent’s
failure to abide by and apply its collective-bargaining agree-
ment to its employees who were employed at the Athlete’s
Foot store construction site in the Fanueil Hall Marketplace
in Boston, Massachusetts, in October, November, and De-
cember 1990:
Net Wages Owing to Employees:
Joseph DiMarzio $3149.34
Christopher Murphy 3149.34
Scott Braccia 3801.92
Robin Littlejohn 3801.92
Mark Righini 721.44
Francis Newell 334.00
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Total Net Wages Owing $14,957.97
Net Fringe Benefit Contributions
Owing to the Funds:
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The separate entities are designated at this juncture by their cor-
rect legal names, as they were shown on their articles of incorpora-
tion.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 See fn. 9, supra.
Health and Welfare Fund $4283.76
Pension Fund 2965.68
Annuity Fund 4530.90
Boston Carpenters Apprenticeship and
Training Fund 158.68
Massachusetts Carpenters Training
Program 329.52
llll
Total Net Fringe Benefits Owing $12,268.54
I further find that TPS/Total Property Services, Inc.,
TPSNE/Total Property Services of New England, Inc.,9 Na-
tional Interior Contractors, Inc., and James T. Lawson, d/b/a
Total Property Services, Inc. are jointly and severally liable
for the sums owed pursuant to this recommended Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, TPS/Total Property Services, Inc.,
TPSNE/Total Property Services of New England, Inc.,11 Na-
tional Interior Contractors, Inc., and James T. Lawson, d/b/a
Total Property Services, Inc., shall make the employees and
the fringe benefit funds named above whole by the payment
of the sums set opposite their names, plus interest as set
forth in the remedy section of the Board’s underlying Deci-
sion and Order.