Walton Mirror Works

National Labor Relations Board - Board Decisions

May 20, 1994

313 N.L.R.B. 1279 (N.L.R.B. 1994)

1279
313 NLRB No. 232
WALTON MIRROR WORKS
1 We grant the Charging Party’s motion to correct the misspelling
of two discriminatees’ names, Jose Lozano and Norberto Montanez.
2 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.
3 The judge’s remedy provides for contractually required payments
to the Local 206 Benefit Funds. We leave to the compliance stage
the issue of whether the Respondent must pay any additional
amounts to the Local 206 Benefit Funds in order to satisfy our
‘‘make-whole’’ remedy, including liquidated damages, interest, and
reimbursement of any attorney’s fees incurred for collection of delin-
quent contributions, if such payments are required by the collective-
bargaining agreement or the applicable trust documents for the
Funds. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
Walton Mirror Works, Inc. and Waldon Mirror
and Blinds, Inc. and Glass Warehouse Workers
and Paint Handlers Local Union 206, Inter-
national Brotherhood of Painters and Allied
Trades, AFL–CIO and United Production
Workers Union, Local 17–18, Party to the Con-
tract. Cases 29–CA–16083, 29–CA–16180, 29–
CA–16325, 29–CA–16339, 29–CA–16385–1, and
29–CA–16385–2
May 23, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On November 5, 1993, Administrative Law Judge
D. Barry Morris issued the attached decision. The Gen-
eral Counsel filed exceptions, the Charging Party filed
exceptions and a supporting brief, the Respondent filed
cross-exceptions and a supporting brief, and the Charg-
ing Party filed an answering brief to the Respondent’s
cross-exceptions.1
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified, and to adopt the recommended
Order as modified and set forth in full below.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by telling employees there would not be
a union at the new company, threatening to discharge
employees if they tried to start a union, and telling an
employee that it did not want to rehire some Walton
employees because they supported Local 206; violated
Section 8(a)(2) by recognizing and entering into a col-
lective-bargaining agreement with Local 17–18; vio-
lated Section 8(a)(2) and (3) by maintaining a contract
requiring employees to become Local 17–18 members
and deducting dues from employees’ pay for remit-
tance to Local 17–18; and violated Section 8(a)(5) by
dealing directly with employees and making unilateral
changes in terms and conditions of employment. The
judge failed to include these findings in the conclu-
sions of law, recommended Order, and/or notice. We
shall correct these inadvertent errors.
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusions of Law 7 and
8.
‘‘7. By recognizing Local 17–18 and entering into
a collective-bargaining agreement with Local 17–18,
the Respondent violated Section 8(a)(2) and (1) of the
Act.
‘‘8. By maintaining a contract with Local 17–18 re-
quiring employees to become Local 17–18 members
and deducting dues from employees’ pay for remit-
tance to Local 17–18, the Respondent violated Section
8(a)(2), (3), and (1) of the Act.’’
2. Substitute the following for the judge’s Conclu-
sion of Law 7 and renumber the subsequent para-
graphs.
‘‘9. By interrogating employees about their union
activities, by threatening plant closure, by creating an
impression of surveillance, by telling employees there
would not be a union at the new company, by threat-
ening to discharge employees if they tried to start a
union, and by telling an employee that it did not want
to rehire some Walton employees because they sup-
ported Local 206, the Respondent violated Section
8(a)(1) of the Act.’’
AMENDED REMEDY
The judge found that the Respondent negotiated
wage rates for Waldon employees which differed from
the Local 206 contract rates. The judge’s conclusions
of law also state that the Respondent’s failure to apply
the Local 206 contract terms and unilateral change of
those terms violated the Act. In accordance with stand-
ard Board procedure in these circumstances, we amend
the judge’s remedy to provide that, on the Union’s re-
quest, the Respondent shall reimburse employees for
any difference between what they were paid and what
was called for by the Local 206 contract. Any such
backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as provided in
New Horizons for the Retarded, 283 NLRB 1173
(1987).3 In addition, if any employee has executed
dues-checkoff authorizations for Local 206 and the Re-
spondent has failed to honor the authorization, we shall
order the Respondent to deduct and remit Union dues
as required by the agreement and to reimburse Local
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
206 for its failure to do so, with interest as prescribed
in New Horizons for the Retarded, supra.
The judge found that the Respondent violated Sec-
tion 8(a)(5) by failing to recall Lyndon York, Jose
Lozano, Sam Furnace, and Norberto Montanez. The
General Counsel has excepted to the judge’s failure to
provide the standard remedial language for such a vio-
lation. See, e.g., Adair Standish Corp., 292 NLRB 890
(1989), enfd. in relevant part 912 F.2d 854 (6th Cir.
1990). We modify the remedy, recommended Order,
and notice to require the Respondent to offer reinstate-
ment to these discriminatees to their former positions
or, if those positions are not available, to substantially
equivalent positions, without prejudice to their senior-
ity rights or privileges, and make them whole for any
loss of earnings and other benefits which they may
have suffered by reason of the failure to recall them,
with backpay to be computed as set forth elsewhere in
the judge’s ‘‘Remedy’’ section.
The judge found that the Respondent violated Sec-
tion 8(a)(2) and (3) by deducting Local 17–18 dues
from employees’ pay. The General Counsel has ex-
cepted to the judge’s failure to provide the standard re-
medial language for such a violation. See Human De-
velopment Assn., 293 NLRB 1228 (1989), enfd. 937
F.2d 657 (D.C. Cir. 1991), cert. denied U.S. 112 S.Ct.
1513 (1992). We modify the remedy, recommended
Order, and notice to provide that the Respondent shall
reimburse all present and former employees, who may
have been coerced into membership in Local 17–18 by
virtue of the union-security clause contained in the col-
lective-bargaining agreement with Local 17–18, for
moneys paid or withheld from them with interest com-
puted in the manner provided in New Horizons for the
Retarded, supra.
Because the Respondent’s misconduct is so wide-
spread as to demonstrate a general disregard for em-
ployee rights, we shall also amend the judge’s rec-
ommended Order to include a broad cease-and-desist
provision. See NLRB v. Windsor Castle Health Care,
13 F.3d 619 (2d Cir. 1994), citing Hickmott Foods,
242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, Walton Mirror Works, Inc. and its alter
ego Waldon Mirror and Blinds, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Glass
Warehouse Workers and Paint Handlers Local Union
206, International Brotherhood of Painters and Allied
Trades, AFL–CIO as the exclusive representative of its
employees in the appropriate unit with respect to
wages, hours, working conditions, or other terms and
conditions of employment of the employees and refus-
ing to honor the collective-bargaining agreement appli-
cable to those employees.
(b) Recognizing, entering into a contract with, and
maintaining a collective-bargaining agreement with
United Production Workers Union, Local 17–18.
(c) Interrogating its employees concerning their
union activities, threatening plant closure, creating an
impression among its employees that their union ac-
tivities were under surveillance, telling employees
there will not be a union at the new company, threat-
ening to discharge employees if they try to start a
union, or telling an employee that it does not want to
rehire some Walton employees because they supported
Local 206.
(d) Engaging in direct dealing with its employees.
(e) Making unilateral changes in the wages and
other terms and conditions of employment of its em-
ployees.
(f) Discharging employees for activities protected by
Section 7 of the Act.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively
with Local 206 as the exclusive representative of the
employees in the following appropriate unit, and, on
request, embody in a signed agreement any under-
standing reached. The appropriate unit is:
The unit as set forth in Article IA of the collec-
tive-bargaining agreement between Local 206 and
Respondent Walton which is effective by its terms
from August 1, 1988 through July 31, 1991.
(b) Honor, comply with, and abide by the terms and
conditions of the 1991–1994 collective-bargaining
agreement between Walton and Local 206, to which
Waldon is bound, retroactively to the commencement
of Waldon’s operations in the second week of Novem-
ber 1991, including making the appropriate payments,
in the manner set forth in the judge’s ‘‘Remedy’’ as
amended.
(c) Reimburse its unit employees for any dues and
other moneys it deducted from them pursuant to the
collective-bargaining agreement with Local 17–18,
with interest computed in the manner set forth in the
judge’s ‘‘Remedy’’ as amended.
(d) Withdraw recognition from Local 17–18.
(e) Make any delinquent union dues payments to
Local 206, with interest computed in the manner set
forth in the judge’s ‘‘Remedy’’ as amended.
(f) Offer George Feliciano and Luis Prunet imme-
diate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges and make them whole
1281WALTON MIRROR WORKS
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
for any loss of earnings and other benefits with inter-
est, in the manner set forth in the judge’s ‘‘Remedy’’
as amended.
(g) Remove from its files any references to the un-
lawful discharges of Feliciano and Prunet and notify
them in writing that this has been done and that the
discharges will not be used against them in any way.
(h) Offer Lyndon York, Jose Lozano, Sam Furnace,
and Norberto Montanez immediate and full reinstate-
ment to their former positions or, if those positions are
not available, to substantially equivalent positions,
without prejudice to their seniority rights or privileges,
and make them whole for any loss of earnings and
other benefits with interest, in the manner set forth in
the judge’s ‘‘Remedy’’ as amended.
(i) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(j) Post at its facility in Brooklyn, New York, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(k) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
Glass Warehouse Workers and Paint Handlers Local
Union 206, International Brotherhood of Painters and
Allied Trades, AFL–CIO as the exclusive representa-
tive of our employees in the appropriate unit with re-
spect to wages, hours, working conditions, or other
terms and conditions of employment of the employees
and WE WILL NOT refuse to honor the collective-bar-
gaining agreement applicable to those employees.
WE WILL NOT recognize, enter into a contract with,
and maintain a collective-bargaining agreement with
United Production Workers Union, Local 17–18.
WE WILL NOT interrogate our employees concerning
their union activities, threaten plant closure, create an
impression among our employees that their union ac-
tivities are under surveillance, tell employees there will
not be a union at the new company, threaten to dis-
charge employees if they try to start a union, or tell
an employee that we do not want to rehire some Wal-
ton employees because they supported Local 206.
WE WILL NOT engage in direct dealing with our em-
ployees.
WE WILL NOT make unilateral changes in the wages
and other terms and conditions of employment of our
employees.
WE WILL NOT discharge employees for activities
protected by Section 7 of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain collec-
tively with Local 206 as the exclusive representative of
our employees in the following appropriate unit, and
WE WILL, on request, embody in a signed agreement
any understanding reached. The appropriate unit is:
The unit as set forth in Article IA of the collec-
tive-bargaining agreement between Local 206 and
Respondent Walton which is effective by its terms
from August 1, 1988 through July 31, 1991.
WE WILL honor, comply with, and abide by the
terms and conditions of the 1991–1994 collective-bar-
gaining agreement between Walton and Local 206, to
which Waldon is bound, retroactively to the com-
mencement of Waldon’s operations, including making
the appropriate payments.
WE WILL reimburse our unit employees for any dues
and other moneys we deducted from them pursuant to
the collective-bargaining agreement with Local 17–18,
plus interest.
WE WILL withdraw recognition from Local 17–18.
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 General Counsel’s motion to correct transcript is granted.
2 By order dated March 18, 1993, I granted General Counsel’s mo-
tion to file an answering brief and allowed Charging Party and Re-
spondent until April 9, 1993, to file reply briefs. 3 All dates refer to 1991 unless otherwise specified.
WE WILL make any delinquent union dues payments
to Local 206, plus interest.
WE WILL offer George Feliciano and Luis Prunet
immediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges and make them
whole for any loss of earnings and other benefits, plus
interest.
WE WILL remove from our files any references to
the unlawful discharges of Feliciano and Prunet and
notify them in writing that this has been done and that
the discharges will not be used against them in any
way.
WE WILL offer Lyndon York, Jose Lozano, Sam
Furnace, and Norberto Montanez immediate and full
reinstatement to their former positions or, if those posi-
tions are not available, to substantially equivalent posi-
tions, without prejudice to their seniority rights or
privileges, and make them whole for any loss of earn-
ings and other benefits, plus interest.
WALTON MIRROR WORKS, INC. AND
WALDON MIRROR AND BLINDS, INC.
Jonathan Leiner, Esq., for the General Counsel.
Steven B. Horowitz, Esq. (Horowitz & Pollack), of South Or-
ange, New Jersey, for the Respondent.
Ralph P. Katz, Esq., of White Plains, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City during 18 days of
hearing commencing June 11, 1992, and ending December 8,
1992.1 On several charges, the first of which was filed Octo-
ber 31, 1991, a consolidated complaint was issued on April
28, 1992, alleging that Walton Mirror Works, Inc. (Walton)
and Waldon Mirror and Blinds, Inc. (Waldon) violated Sec-
tion 8(a)(1), (2), (3), and (5) of the National Labor Relations
Act (the Act). Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by General
Counsel, Charging Party, and Respondent. In addition, Gen-
eral Counsel filed a reply brief on March 2, 1993, Charging
Party filed a reply brief on April 1, 1993, and Respondent
filed a reply brief on April 7, 1993.2
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Walton, a New York corporation with an of-
fice and place of business at 61 Walton Street, Brooklyn,
New York, has been engaged in the manufacture and instal-
lation of mirrors and related products for other enterprises
and for individual retail customers. Since November 15,
1991, Respondent Waldon, a New York corporation with an
office and place of business at 220 Stewart Avenue, Brook-
lyn, New York, has also been engaged in the manufacture
and installation of mirrors and related products for other en-
terprises and for individual retail customers. Waldon has ad-
mitted that it annually receives goods valued in excess of
$50,000 from locations outside the State of New York.
Waldon’s accountant testified that the Company’s gross reve-
nues were in excess of $500,000 during its first 6 months of
operation. It has been admitted, and I find, that Respondent
Waldon is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Since I
have found below that Walton and Waldon are alter egos, I
also find that Walton is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Vulcan Trailer Mfg. Co., 283 NLRB 480, 482 fn. 5 (1987).
In addition, it has not been denied, and it is therefore deemed
admitted, and I so find, that Glass Warehouse Workers and
Paint Handlers Local Union 206, International Brotherhood
of Painters and Allied Trades, AFL–CIO (Local 206) and
United Production Workers Union, Local 17–18 (Local 17–
18) are labor organizations within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Are Walton and Waldon alter egos?
2. Did Respondent engage in threats, interrogation, and
create the impression of surveillance, in violation of the Act?
3. Did Respondent unlawfully recognize Local 17–18?
4. Did Respondent unlawfully discharge Feliciano and
Prunet?
B. The Facts
1. Background
For many years Walton manufactured and installed mirrors
from its factory at 61 Walton Street, Brooklyn, New York.
The business of the Company included cutting glass to form
mirrors, delivering the mirrors to both residential and com-
mercial customers, and fitting the mirrors onto moldings at
the customer’s residence or place of business. Joseph and
Sam Rubin were the owners of Walton. Charles Goldenberg,
Joseph Rubin’s brother-in-law, was the manager of the fac-
tory and in charge of shipping at Walton. Walton recognized
Local 206 as the collective-bargaining representative of its
production employees. The parties maintained a collective-
bargaining agreement effective by its terms from August 1,
1988, through July 31, 1991.3
1283WALTON MIRROR WORKS
Local 206 conducted negotiations with Walton in late July
and early August for a new collective-bargaining agreement.
Joseph and Sam Rubin represented Walton at these sessions.
John Karabin, business agent and treasurer of Local 206, at-
tended these sessions and credibly testified that the Rubins
said ‘‘if they have to give any kind of increases they would
surely put them out of business. They would be forced to
close down.’’ Walton offered Local 206 a 6-month extension
of the expiring contract. The employees rejected the offer on
August 8 and struck the Company for 2 days. Luis Prunet,
a Walton employee, credibly testified that during the strike
Joseph Rubin told him that he would ‘‘rather close down the
company than sign the contract.’’ On August 9 the parties
commenced further negotiations. They agreed on a contract
and the employees voted to ratify it. The new contract, which
was entitled ‘‘Memorandum of Agreement,’’ was dated Au-
gust 13, 1991, and is effective August 1, 1991, through July
31, 1994. The new contract provided increases in wages and
in welfare, pension, annuity, holiday, and in other benefits.
The contract otherwise expressly incorporated the language
of Local 206’s agreement with the Window and Plate Glass
Dealers Association (the Association). The Association con-
tract required, inter alia, that employees be laid off and re-
called by job classification seniority.
2. Closing of Walton
On October 17 the Walton facility was closed. Goldenberg
credibly testified that some representatives of a taxing au-
thority, possibly the New York State Department of Tax-
ation, appeared at the facility, told everyone to take their be-
longings and leave, and then proceeded to lock the building.
The employees stood outside the building and Goldenberg
told them ‘‘the company was going to close and that he will
let us know if they were going to reopen or not.’’ Karabin
credibly testified that on October 25 he visited the Company
at 61 Walton Street and saw the Rubins and Goldenberg
standing in front of the shop. One of the Rubins told Karabin
that ‘‘The union closed us down. We told you if we had to
give any increase we would be forced to close down.’’
Karabin replied, ‘‘I heard that the I.R.S. closed you down.’’
Rubin answered, ‘‘that was only part of it.’’
3. Alter ego status
Karabin telephoned Walton on October 21. He credibly
testified that Walton bookkeeper, Judy Monoco, answered
the phone and told him that the ‘‘company had closed down
for a few days to pick up work.’’ Goldenberg incorporated
a new company, Waldon Mirror and Blinds, on October 24.
He owns Waldon in its entirety and he and his wife are the
only officers of Waldon.
In late October and early November Goldenberg directly
contacted eight former Walton production employees to per-
form work for his new company. He negotiated individual
wage rates with them which differed from the contract rates.
He told three of these employees that he did not want a
union at his new company and there would not be a union
there. Neither Walton or Waldon ever notified Local 206
concerning the establishment of this new company nor did
they ever offer to bargain with Local 206 concerning the ef-
fects of opening the new Company.
Waldon commenced operations at 220 Stewart Avenue
during the second week of November. Goldenberg chose the
name Waldon for the new Company because he wanted it
‘‘to look the same as the old company.’’ The business of the
new Company has been the same as that of the old Com-
pany. The eight production employees who Goldenberg hired
for the new Company had all worked at Walton when that
Company closed. They performed the same work at both
Companies. In addition, when Goldenberg started the new
Company he hired six salesmen who had all previously
worked at Walton. At the commencement of operations
Goldenberg also hired John Ricciardi, who is in charge of
the drafting department. This is the same work he did at the
old Company. In addition, Goldenberg hired Judy Monaco as
bookkeeper for Waldon, the same position that she had at
Walton. He also hired Nancy Laforte as telephone operator,
the same position she held at Walton.
Waldon received five or six deliveries of glass from the
old Company during its first 2 weeks in business. The deliv-
eries came in crates which bore the label of the Carolina
Mirror Company. Carolina Mirror supplied glass to the old
Company but not to Waldon. There is no indication that
Waldon made any payments for the glass deliveries. In addi-
tion, Waldon received supplies of wood, metal moldings, and
approximately 100 finished mirrors from the old Company.
There is no evidence that Waldon made any payments for
these materials. Also, Waldon obtained a polishing machine
and a band saw from the old Company. Again, there is no
evidence that Waldon made payments to Walton for these
machines.
Waldon purchases wood, aluminum, and venetian and ver-
tical blinds from Certified Lumber, Glazier’s Hardware, and
Arkwin Home Products, respectively. These companies sold
the same materials to Walton. Several employees have seen
or handled leftover Walton job tickets while working for the
new Company. Waldon has delivered mirrors to approxi-
mately 15 individual customers who were previously cus-
tomers of the old Company and has delivered mirrors to at
least 2 commercial customers of the old Company. Waldon
has operated three of the vehicles which the old Company
financed with GMAC. Title to the vehicles remains with
Walton and recourse continues to lie against Walton. The
new Company has submitted monthly payments to GMAC
for these vehicles on the old Company’s accounts. Waldon
has made payments for health insurance on the old Compa-
ny’s Empire Blue Cross policy. Waldon has never opened
any other account with Empire Blue Cross.
4. Applicable legal principles and conclusions as to
alter ego status
In Crawford Door Sales, 226 NLRB 1144 (1976), the
Board stated the following criteria for establishing alter ego
status:
Clearly each case must turn on its own facts, but gen-
erally we have found alter ego status where the two en-
terprises have ‘‘substantially identical’’ management,
business purpose, operation, equipment, customers, and
supervision, as well as ownership.
Not all of these indicia need be present. Blake Construction
Co., 245 NLRB 630, 634 (1979), enf. granted in part and de-
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nied in part, on other grounds 663 F.2d 272 (D.C. Cir.
1981); E. G. Sprinkler Corp., 268 NLRB 1241, 1243 (1984),
enfd. sub nom. Goodman Piping Products v. NLRB, 741 F.2d
10 (2d Cir. 1984); Joseph Stern & Sons, 297 NLRB 1, 5
(1989). The Board has held that common ownership is estab-
lished if both companies are owned by members of the same
family. J. M. Tanaka Construction, 249 NLRB 238, 241 fn.
29 (1980); Superior Export Packing Co., 284 NLRB 1169,
1170 (1987); Vinisa II, Ltd., 308 NLRB 135, 137 (1992).
I find that all the legal criteria have been satisfied. Gold-
enberg was manager at the old Company and performs the
same function at the new Company. The businesses and op-
eration of the two Companies are identical. The equipment
used is the same and, in fact, some of the equipment used
at the new Company was taken from the old Company. The
new Company has approximately 15 of the same retail cus-
tomers as the old Company and at least two commercial cus-
tomers that the old Company had. Finally, the Rubins were
the owners of the old Company and Goldenberg, Joseph
Rubin’s brother-in-law, is the sole shareholder of the new
Company.
I have credited Goldenberg’s testimony that the old Com-
pany was closed by representatives of a taxing authority,
possibly the New York State Department of Taxation. Citing
P. J. Hamill Transfer Co., 277 NLRB 462 (1985), Respond-
ent argues that under such circumstances alter ego status can-
not be found. I believe that Hamill is distinguishable. In that
case the company ceased operations after its bank account
was garnisheed in satisfaction of a judgment obtained against
it. In the instant proceeding Goldenberg was unable to give
any definite information as to who closed Walton. He testi-
fied that ‘‘people from one of the tax companies or whatever
showed up and told us that they were [closing] the build-
ing.’’ When asked whether these people identified them-
selves, he testified ‘‘they were either New York State tax,
some tax people.’’ Although the information as to which tax-
ing authority closed the facility, and under what cir-
cumstances, was surely available to Respondents, that evi-
dence was not introduced into the record. Thus there is no
evidence as to the nature of the closing, whether it was tem-
porary or whether it was something that could be easily satis-
fied. Indeed, I have credited Karabin’s testimony that at the
negotiating sessions during July and August the Rubins said
that if they would have to give any increases they would be
forced to ‘‘close down.’’ I have also credited Prunet’s testi-
mony that during the strike Joseph Rubin told him that he
would rather close down the Company than sign the contract.
In addition, on October 25 when Karabin told the Rubins
that ‘‘I heard that the I.R.S. closed you down,’’ Rubin an-
swered ‘‘that was only part of it.’’ The Rubins had shown
that they did not intend to operate their business under the
terms of the new contract. I believe that the closing by the
taxing authority was used by the Rubins as a convenient ve-
hicle to close the old facility, open at a new location, and
thus attempt to avoid the obligations of the contract.
The Hamill case is further distinguishable inasmuch as in
that case there were critical differences in the nature of oper-
ations of the two companies. The new company, Brennan,
did not have Hamill’s intrastate authority to haul freight in
Illinois and provided employment only for its owners. In this
proceeding, however, the nature of the operations of the two
Companies is identical. Both the old and new Companies
manufactured and installed mirrors for retail and commercial
customers. Indeed, Goldenberg testified that he chose the
name Waldon so that it would ‘‘look the same as the old
company.’’ Waldon received glass, supplies of wood, metal
moldings, and approximately 100 finished mirrors from the
old Company without any payment to Walton. In addition,
it obtained a polishing machine and a band saw from Walton
without payment. Also, there were instances where Waldon
employees worked on leftover Walton job tickets. Finally,
Waldon has submitted monthly payments to GMAC for vehi-
cles, title to which remain with Walton, and has made pay-
ments for health insurance on Walton’s insurance policy.
Based on the above, I believe that Hamill is distinguish-
able and I find that the record has established common fam-
ily ownership, substantially identical management, business
purpose, operations, equipment, customers, and supervision.
Accordingly, I find that Waldon is the alter ego of Walton.
5. Alleged 8(a)(1) violations and recognition of
Local 17–18
Shortly after Walton closed, when Goldenberg contacted
the former production employees to ask them if they were
interested in working for the new Company, he told some of
them that he did not want a union at the new Company and
that the new Company ‘‘would not have any union.’’ When
the employees appeared at the new facility, Ricciardi distrib-
uted job applications to Feliciano and Prunet. He also gave
them authorization cards for Local 17–18 which he described
were part of the application form. Goldenberg gave four
other employees job applications which they filled out and
returned. He also introduced them to a man whom he de-
scribed as their source for medical benefits or as his business
partner. This man distributed cards which several of the em-
ployees filled out and returned. After Mullings, Burrus,
Fason, and McKinnie returned their cards, Goldenberg ap-
proached them and said ‘‘I told you guys I didn’t want no
union here . . . you stabbed me in my back.’’ He then said
that he was going to ‘‘close the business down’’ and that
anyone who tried to start a union would be ‘‘out of here.’’
In mid-November Moreano, a Local 17–18 agent, spoke to
Feliciano and Prunet in Waldon’s parking lot. The two em-
ployees and Moreano then proceeded into the facility. Gold-
enberg approached Feliciano and Prunet and asked them
‘‘who had called that union guy?’’ Approximately 2 or 3
days later, Karabin came into the parking lot prior to the
start of the workday and spoke with Feliciano and Prunet.
When the facility opened and the employees went inside,
Goldenberg approached the employees and asked ‘‘who had
called Local 206 there?’’ Feliciano credibly testified that
Goldenberg said ‘‘he was going to find out who had called
Local 206 there.’’
Kenneth Mullings appeared to me to be a credible witness.
He testified that in March 1992 Joseph Rubin told him that
he needed people to work at the new Company. Rubin asked
Mullings whether he knew anyone and Mullings asked
‘‘what happened to the old guys [who] used to work in the
old company?’’ Mullings credibly testified that Rubin replied
that he wanted ‘‘new guys because those guys want 206.
They want 206 union and he’s not getting that 206 union,
because if 206 comes back there, he’s going to close the
place down again.’’
1285WALTON MIRROR WORKS
6. Conclusions concerning alleged 8(a)(1) violations
I have found that Goldenberg told several of the employ-
ees at the time he hired them for Waldon that there would
not be a union at the new Company. This constitutes a viola-
tion of Section 8(a)(1) of the Act. See L. W. Le Fort Co.,
290 NLRB 344 (1988). I have also found that Goldenberg
threatened employees that he was going to close the business
and that anyone who tried to start a union would be ‘‘out
of here.’’ I find that these statements constitute unlawful
threats of plant closure and discharge in violation of Section
8(a)(1). See Hall Industries, 293 NLRB 785, 790 (1989).
I have also found that in mid-November Local 17–18
Agent Moreano spoke with Feliciano and Prunet in Waldon’s
parking lot. Soon thereafter Goldenberg asked Feliciano and
Prunet ‘‘who had called that union guy?’’ The record does
not show that Respondent had any basis at this time to iden-
tify Feliciano or Prunet as union supporters. I find that Gold-
enberg’s question constituted unlawful interrogation. See
Sorenson Lighted Controls, 286 NLRB 969, 976–977 (1987);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In addi-
tion, I have found that 2 or 3 days after this incident Karabin
spoke with Feliciano and Prunet in Waldon’s parking lot.
When these employees entered the facility Goldenberg asked
them who had called Local 206 there. Goldenberg then told
them that ‘‘he was going to find out who had called Local
206 there.’’ In addition to the questioning of the employees
constituting unlawful interrogation, I find that Goldenberg’s
telling Feliciano and Prunet that he was going to find out
who had called Local 206 constitutes the unlawful impres-
sion of surveillance. See Haynes Motor Lines, 273 NLRB
1851, 1855 (1985).
At the hearing, the complaint was amended to allege that
in March 1992 Respondent told employees that it would not
offer employment to employees who had previously worked
at the Walton Street facility because those employees sup-
ported Local 206. In addition, the complaint was amended to
allege that at the same time Respondent warned its employ-
ees that if Local 206 returned to the new facility Respondent
would shut down again. I have found that in March 1992 Jo-
seph Rubin told Mullings that Waldon did not want to rehire
some of the old employees because ‘‘those guys want 206.’’
I find this statement to be unlawful interference in violation
of Section 8(a)(1) of the Act. See D & K Frozen Foods, 293
NLRB 859, 873 (1989). In addition, in the same conversation
Rubin told Mullings ‘‘if 206 comes back . . . he’s going to
close the place down again.’’ I find that this constitutes an
unlawful threat of plant closure, in violation of Section
8(a)(1) of the Act. See Hall Industries, supra, 293 NLRB at
790.
7. Conclusions concerning recognition of Local 17–18
Goldenberg conceded that Waldon recognized Local 17–18
in December 1991 as the collective-bargaining representative
of its production employees and on January 16, 1992, it en-
tered into a collective-bargaining agreement with Local 17–
18. Waldon, as an alter ego of Walton, must recognize Local
206 and honor the Memorandum of Agreement which Wal-
ton entered into with Local 206. See Advance Electric, 268
NLRB 1001, 1004 (1984). Waldon’s recognition and con-
tracting with Local 17–18, under the circumstances, violated
Section 8(a)(1) and (2) of the Act. See Christopher Street
Corp., 286 NLRB 253, 257 (1987). Waldon’s collective-bar-
gaining agreement with Local 17–18 contains a provision re-
quiring the unit employees to become and remain members
of Local 17–18. The agreement also contains a provision
which requires Waldon to deduct assessments and dues from
the unit employees and to remit them to Local 17–18. I find
that Respondent’s maintenance of these provisions in its con-
tract with Local 17–18 violates Section 8(a)(1), (2), and (3)
of the Act. See Prospect Gardens of Norwalk, 177 NLRB
136, 139–140 (1969).
8. Failure to recall employees
Four other production employees were employed by Wal-
ton immediately prior to its closing, Lyndon York, Jose
Lozana, Sam Furnace, and Roberto Fontanez. These employ-
ees were not recalled by Waldon. Instead, in March 1992
Waldon hired three individuals named Mario, Patrick, and
Nacho to work as drivers and helpers. Mario worked for ap-
proximately 1 month; Patrick worked for approximately 5
weeks; and at the time of the hearing Nacho was still work-
ing for Waldon. In addition, Waldon hired a helper for em-
ployee Duke, who worked for the Company approximately
3–5 months. I find that Respondent’s hiring the four new in-
dividuals without recalling York, Lozana, Furnace, and
Fontanez, violated the layoff and recall provisions of the As-
sociation agreement which is expressly incorporated into the
Memorandum of Agreement between Local 206 and Walton.
This constitutes a violation of Section 8(a)(1) and (5) of the
Act. See Accurate Die Casting Co., 292 NLRB 982, 988–
989 (1989).
9. Discharge of Feliciano and Prunet
George Feliciano worked as an installer and Luis Prunet
as a driver/helper for Waldon. They regularly worked as a
team. On January 22, 1992, they were assigned to perform
work for four customers, the final customer being Robert
Anderson of Utica Avenue in Brooklyn. Feliciano testified
that he and Prunet arrived at Anderson’s home around 2:15
p.m. and they finished working there at about 3:30 p.m. They
drove straight to Feliciano’s home and arrived at about 4
p.m. Feliciano testified that they failed to take the customary
half-hour lunchbreak that day and they therefore reported to
Ricciardi the following morning that they had finished work
at 4:30 p.m.
Goldenberg requested that Waldon’s employees attend a
meeting on Friday, January 31, 1992. Three Local 17–18
agents conducted the meeting and all Waldon’s drivers and
helpers attended. The Local 17–18 agents began to explain
to the employees the contents of the collective-bargaining
agreement. Feliciano told the Local 17–18 agents ‘‘I don’t
need any union because I already have a union, Local 206.’’
Feliciano then took off his Local 206 hat, showed it to the
Local 17–18 agents, said ‘‘this [is] my union, Local 206’’
and then he put the hat back on his head. He and Prunet then
left to go to their truck. One of the Local 17–18 agents fol-
lowed Feliciano and Prunet to the truck and asked Feliciano
why he had been so rude. Feliciano repeated that he didn’t
need a union ‘‘because I already have my union . . . Local
206.’’ At the same time a Local 17–18 approached Prunet
and told him that he was a representative of Local 17–18.
Prunet told the agent that he ‘‘didn’t know anything about
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 17–18.’’ The agent told Prunet that he had already
signed an authorization card for Local 17–18 and Prunet an-
swered that he had not signed such a card. The agent then
gave him another card to sign and Prunet said that he
couldn’t sign it because it was written in English.
Goldenberg phoned Feliciano at home the next workday,
Monday, February 3. Goldenberg asked Feliciano to come to
the facility and to bring along Prunet. Feliciano and Prunet
met with Goldenberg that afternoon at which time Golden-
berg told the two employees that he was laying them of. The
explanation that Goldenberg gave the employees for the lay-
off was that ‘‘business was kind of slow.’’
Goldenberg testified that Feliciano and Prunet were laid
off on February 3 because business was slow and because
the employees were ‘‘stealing time from the company.’’
Goldenberg testified that he discovered that Feliciano and
Prunet were stealing time when a customer satisfaction letter
was received from Robert Anderson which indicated that
Feliciano and Prunet arrived at Anderson’s home at approxi-
mately 10 a.m. and departed at approximately noon.
Daniel White, a Waldon salesman, testified that he met
Anderson in his Utica Avenue home in early or mid-January
1992. White testified that Anderson called the office again
in February 1992 and requested additional mirrors and at that
time specifically asked for White. White then set up a second
appointment with Anderson and sometime subsequently, still
in February, met Anderson again at his Utica Avenue home.
White testified that at this meeting, in addition to placing an
order for more mirrors, White presented Anderson with a
customer survey. White testified that he read the questions
on the survey to Anderson, and after Anderson responded,
White entered the answers on the survey.
Anderson testified that Feliciano and Prunet came to his
home sometime in January to install mirrors. He testified that
they arrived early in the afternoon and they finished at ap-
proximately 3:30 p.m. Anderson further testified that either
in February or March he ordered more mirrors and several
days thereafter White came to his home. He said that White
asked him how he liked the prior service and he told him
it was excellent, at which time White wrote something down.
He further testified that White never asked him what time the
workers arrived at his home or what time they departed.
On October 15, 1992, counsel for the General Counsel,
Jonathan Leiner, wrote to counsel for Respondent advising
them that on October 13 Anderson had called Leiner and
asked him to request Feliciano to telephone Anderson. Leiner
responded that he was ‘‘unsure’’ whether he would transmit
that information to Feliciano. Anderson then commented
‘‘what if I came down there and spoke to that judge and told
him that I was lying.’’ Anderson then hung up the telephone.
Shortly thereafter Leiner telephoned Anderson and asked him
twice whether his testimony at the hearing had been truthful.
Anderson ‘‘refused to respond.’’ Based on counsel for Gen-
eral Counsel’s letter, counsel for Respondent moved to re-
open the record. By order dated November 16, 1992, I grant-
ed Respondent’s motion, the record was reopened, and a
hearing was scheduled for December 7, 1992. The record
contains evidence that counsel for Respondent attempted to
serve a subpoena on Anderson but was unsuccessful. Ander-
son did not appear at the hearing held on December 7.
10. Conclusions concerning discharge of Feliciano
and Prunet
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the Board requires that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established, the burden shifts to the
employer to demonstrate that the ‘‘same action would have
taken place even in the absence of the protected conduct.’’
I have found that at the January 31 meeting Feliciano told
the Local 17–18 agents that ‘‘I don’t need any union because
I already have a union, Local 206’’ and that he then took
his Local 206 hat and displayed it to the Local 17–18 agents.
On the same day Prunet denied having signed an authoriza-
tion card for Local 17–18 and when the Local 17–18 agent
gave him a new authorization card to sign, Prunet did not
sign it. On January 31 Respondent employed only eight pro-
duction employees. Utilizing the small plant doctrine and the
fact that Feliciano and Prunet were discharged on February
3, the next workday after January 31, I infer that Respondent
knew of Feliciano and Prunet’s sentiments concerning Local
17–18. See Food Cart Market, 286 NLRB 1016, 1018
(1987). I have also previously found that in November 1991
Karabin spoke with Feliciano and Prunet in Waldon’s park-
ing lot. Immediately thereafter Goldenberg asked Feliciano
and Prunet who had called Local 206 there. I infer from
Goldenberg’s question his displeasure with Local 206. This
is buttressed by my finding that in March 1992 Joseph Rubin
told Mullings that he did not want to employ certain employ-
ees who had previously worked at the old facility because
‘‘those guys want 206.’’ Based on the above, I find that
General Counsel has made a prima facie showing sufficient
to support the inference that protected conduct was a moti-
vating factor in Respondent’s decision to discharge Feliciano
and Prunet on February 3.
As mentioned earlier, Goldenberg testified that he laid off
Feliciano and Prunet because business was slow and because
the employees were ‘‘stealing time from the company.’’
With respect to the assertion that business was slow, I find
that Respondent has not sustained its burden. The record
shows that to the contrary, business increased. In December
1991 sales totaled $38,513; in January 1992 sales totaled
$50,220. For the month ending February 28, 1992, sales in-
creased to $52,446 and for the month ending March 31,
1992, sales increased to $92,564. While Goldenberg main-
tained that the alleged declining business which underlay the
discharges derived from the long delay between customers’
orders for mirrors and their payment for those mirrors many
months afterwards, Respondent presented no evidence to sub-
stantiate this. See Bay Metal Cabinets, 302 NLRB 152, 178–
179 (1991). In addition, Respondent Waldon hired additional
drivers and helpers in March 1992. See Alliance Rubber Co.,
286 NLRB 645, 647 (1987). Finally, if Feliciano and Prunet
were laid off because of declining business, Respondent has
not sustained its burden of showing why these two employ-
ees were laid off and not other employees instead.
The additional reason given by Goldenberg for the layoffs
was that the two employees stole time from the Company.
With respect to the testimony of Robert Anderson, because
of the events which took place concerning him after he testi-
1287WALTON MIRROR WORKS
4 Counsel for Respondent requests that I strike the testimony of
both Feliciano and Anderson because Feliciano spoke with Anderson
during the course of the hearing. Counsel argues that this constitutes
a violation of the sequestration order. Inasmuch as I am not relying
on Anderson’s testimony, it is not necessary that I determine wheth-
er his testimony should be stricken. With respect to Feliciano, his
main testimony took place on July 8 and 29, 1992, prior to the testi-
mony of Anderson. Rule 615 of the Federal Rules of Evidence pro-
vides that the ‘‘court shall order witnesses excluded so that they can-
not hear the testimony of other witnesses.’’ When Feliciano testified,
Anderson had not yet testified. Thus, it would appear that
Feliciano’s conversation with Anderson, as it relates to Feliciano’s
testimony, was not a violation of the sequestration order. See Seattle
Seahawks, 292 NLRB 899, 906–908 (1989); U.S. v. Shurn, 849 F.2d
1090, 1094 (8th Cir. 1988). Even were the conversation violative of
the sequestration order, I believe it was of a ‘‘technical’’ nature. See
Conair Corp., 261 NLRB 1189, 1207 fn. 23 (1982), enf. granted in
part and denied in part, on other grounds, 721 F.2d 1355 (D.C. Cir.
1983).
fied, I have decided not to rely on his testimony.4 I am cred-
iting Feliciano’s testimony that he and Prunet departed from
the Anderson home at approximately 3:30 p.m. With respect
to Goldenberg’s assertion that the two employees were laid
off on February 3 because Goldenberg had discovered that
they were stealing time, even were such a discovery made,
it is highly doubtful that the discovery was made by Feb-
ruary 3. February 3, 1992, came out on a Monday, the first
working day of the month. White testified that Anderson
called the office sometime in February, requesting additional
mirrors and specifically asking for White. White subse-
quently received notification from the office and White then
proceeded to set up an appointment to see Anderson. White
did not specify the dates in February in which these events
took place. It is highly unlikely that even had the call from
Anderson been received as early as February 3, that White
would have been notified that very same day, that he would
have made an appointment that same day, that he would
have actually met with Anderson on February 3, and that
Goldenberg was notified of the ‘‘stealing of time’’ that day,
prior to Goldenberg’s meeting with the two employees. In-
deed, when White was questioned as to what he did with the
survey after he left Anderson’s home, he testified ‘‘eventu-
ally I handed it in or mailed it into my office.’’ It is much
more likely that the meeting with Anderson took place later
in the month and that the results of the survey were made
known to Goldenberg later in the month. Accordingly, on
February 3 Goldenberg did not yet know of the alleged steal-
ing of time.
Goldenberg conceded that he had no evidence that these
employees stole time on any other occasions. The survey
itself indicates a possible lack of authenticity. All the Com-
pany’s other customer surveys contain an order number,
however, the survey signed by Anderson does not. Waldon
mails the surveys to the customers the day after it services
them. Yet, in this instance, White chose to carry the survey
to Anderson’s home and to fill it out with the customer. In
addition, Goldenberg noted ‘‘p.m.’’ beside Anderson’s name
on the January 22 delivery schedule. Goldenberg therefore
anticipated that Feliciano and Prunet would reach this final
customer only in the afternoon. Furthermore, Waldon’s deliv-
ery schedules for other employees support the likelihood that
Feliciano and Prunet did not complete the Anderson job until
late in the afternoon. Feliciano and Prunet made four stops
on January 22 which comprised 148 square feet of work. A
different pair of Waldon employees performed only three as-
signments on December 8, 1991, which comprised only 120
square feet but they also completed work at 4:30 p.m. that
day. A third pair of Waldon employees required until 3:45
p.m. on November 15, 1991, to perform only two assign-
ments which comprised 136 square feet. Accordingly, I find
that Respondent has not sustained its burden of showing that
the employees were discharged because they stole time from
the Company. Therefore, I find that Respondent, not having
sustained its burden, has violated Section 8(a)(1) and (3) of
the Act by discharging Feliciano and Prunet on February 3,
1992.
CONCLUSIONS OF LAW
1. Respondent Walton Mirror Works, Inc. and Respondent
Waldon Mirror and Blinds, Inc. are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 206 and Local 17–18 are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent Waldon is, for the purposes of this proceed-
ing, the alter ego of Respondent Walton.
4. The unit as set forth in article IA of the collective-bar-
gaining agreement between Local 206 and Respondent Wal-
ton, which is effective by its terms from August 1, 1988,
through July 31, 1991, constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
5. At all material times Local 206 has been the exclusive
collective-bargaining representative of the employees in the
appropriate unit, within the meaning of Section 9(a) of the
Act.
6. By failing and refusing to recognize and bargain with
Local 206 as the exclusive representative of its employees in
the appropriate unit, by failing to honor the collective-bar-
gaining agreement with respect to such employees, by failing
to apply to such employees the terms and conditions of the
agreement, by unilaterally changing existing terms and condi-
tions of employment, by bypassing Local 206 and dealing di-
rectly with the employees in the unit, and by relocating with-
out first notifying Local 206 and without giving Local 206
an opportunity to bargain collectively concerning the effects
of such relocation, Respondent has violated Section 8(a)(1),
(2), and (5) of the Act.
7. By interrogating employees about their union activities,
by threatening plant closure, and by creating an impression
of surveillance, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
8. By discharging George Feliciano and Luis Prunet for
their union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
9. By failing to recall Lyndon York, Jose Lozana, Sam
Furnace, and Roberto Fontanez, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
10. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
6 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
7 In the event sufficient positions are not available, I shall leave
to the compliance stage of this proceeding to determine which of the
employees should be recalled and the amount of backpay, if any, due
the employees. Backpay shall be computed as outlined above.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent Waldon is the alter ego of
Respondent Walton and has continued to operate the busi-
ness but has failed and refused to recognize Local 206 as the
collective-bargaining representative of its employees, or to
comply with the terms of the collective-bargaining agreement
between Local 206 and Respondent Walton, I shall order Re-
spondent Waldon to recognize Local 206 as the representa-
tive of its employees and to honor and apply the terms of
that agreement to its employees. In addition, I shall order Re-
spondent to make whole its employees by making the con-
tractually established payments required by the collective-
bargaining agreement5 and by reimbursing employees for any
expenses ensuing from Respondent’s unlawful failure to
make such required payments, as provided in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981).
Respondent, having discharged Feliciano and Prunet in
violation of the Act, I find it necessary to order Respondent
to offer them full reinstatement to their former positions, or
if such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings that they may have suffered from the time of their dis-
charges to the date of Respondent’s offers of reinstatement.
Backpay shall be computed in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).6
Respondent, having failed to recall Lyndon York, Jose
Lozana, Sam Furnace, and Roberto Fontanez, I shall order
that Respondent recall these employees to the extent it has
available positions. Those employees for whom no positions
are available shall be placed on a preferential hiring list in
accordance with their seniority.7
[Recommended Order omitted from publication.]