US Reinforcing, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 41 404 US Reinforcing, Inc., and its alter ego, U.S. Steel- workers, LLC and Iron Workers Local Union Nos. 12, 60, 33, and 440. Case 3–CA–-25314 July 31, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On February 21, 2006, Administrative Law Judge Richard A. Scully issued the attached decision. Respon- dent U.S. Steelworkers, LLC filed exceptions and a sup- porting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. I. OVERVIEW In this case, we consider whether the Respondents, US Reinforcing, Inc. (Reinforcing) and its alleged alter ego, U.S. Steelworkers, LLC (Steelworkers),1 violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to honor the collective-bargaining agreement Reinforcing entered into with Iron Workers Local Union Nos. 12, 60, 33, and 440 (the Unions) in September 2003. It is undisputed that, in or around Sep- tember 2004, Reinforcing stopped complying with the terms of the agreement; it is also undisputed that Steel- workers, which was incorporated on July 1, 2004, never honored the agreement. In the absence of exceptions by Reinforcing, we adopt the judge’s determination that Reinforcing violated Sec- tion 8(a)(5) and (1) of the Act by refusing to honor its collective-bargaining agreement with the Unions. The issue that remains is whether that agreement is binding on Steelworkers as the alter ego of Reinforcing, such that Steelworkers’ refusal to honor the agreement also vio- lated the Act. Contrary to the judge and our dissenting colleague, we find that the General Counsel failed to establish that Steelworkers was the alter ego of Reinforc- ing. Accordingly, we shall dismiss the allegations against Steelworkers.2 1 In its exceptions, Respondent Steelworkers denies that the Board has jurisdiction over it. In view of our finding that Steelworkers is not an alter ego of Reinforcing and, accordingly, has not violated the Act, we find it unnecessary to address the jurisdictional issue. 2 In light of our reversal of the judge’s alter-ego finding, we shall modify the judge’s recommended Order to limit its provisions to Rein- forcing only. We shall also modify the judge’s recommended Order to conform to the violation found and to the Board’s standard remedial II. APPLICABLE LEGAL PRINCIPLES When the General Counsel alleges that an entity is the alter ego of a respondent, subject to the latter’s legal and contractual obligations, the General Counsel has the bur- den of establishing that status. Crossroads Electric, 343 NLRB 1502 (2004), enfd. 178 Fed.Appx. 528 (6th Cir. 2006). The determination of alter-ego status is a ques- tion of fact for the Board, resolved by an examination of all of the attendant circumstances. See Southport Petro- leum v. NLRB, 315 U.S. 100, 106 (1942); and see Craw- ford Door Sales, 226 NLRB 1144 (1976). The Board considers several factors when determining whether alter-ego status has been shown. Specifically, the Board considers whether two entities have substan- tially identical ownership, management and supervision, business purpose, operation, customers, and equipment. Fallon-Williams, Inc., 336 NLRB 602, 602 (2001) (citing Crawford Door Sales Co., supra). “The Board also looks to ‘whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was to evade responsibilities under the Act.’” Liberty Source W, 344 NLRB 1127, 1136 (2005) (quoting Fu- gazy Continental Corp., 265 NLRB 1301, 1302 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984)). No single one among these factors is determinative, and not all of the indicia need be present for the Board to make a finding of alter-ego status. Id.; Standard Commercial Cartage, Inc., 330 NLRB 11, 13 (1999); MIS, Inc., 289 NLRB 491, 492 (1988). While substantially identical ownership is not a sine qua non of alter-ego status, it is an important factor. AC Electric, 333 NLRB 987, 1001 (2001), enfd. sub nom. ECM Enterprises v. NLRB, 63 Fed.Appx. 521 (D.C. Cir. 2003). Indeed, the Board has made clear that it will only language; we shall substitute a new notice to conform to the Order as modified. In addition, we shall modify the judge’s recommended remedy to require Reinforcing to reimburse unit employees for any expenses ensuing from its failure to make the required benefit contributions as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Finally, the complaint alleges that the Respondent is a construction industry employer and that it granted recognition to the Unions without regard to whether the Unions had established majority status. By fail- ing to file an answer, Reinforcing has admitted these allegations. Ac- cordingly, we find that the relationship was entered into pursuant to Sec. 8(f) of the Act and that the Unions are therefore the limited 9(a) representative of the unit employees for the period covered by the agreement. We also note that the letter of assent that Reinforcing exe- cuted bound it to any extension or renewal of the 2003–2006 collective- bargaining agreement it signed. We shall therefore amend the judge’s recommended remedy to require Reinforcing to give effect to any automatic renewal or extension of such agreement. See, e.g., HCL, Inc., 343 NLRB 981, 983 (2004). US REINFORCING, INC. 405 find alter-ego status absent common ownership in nar- rowly defined circumstances: Although common ownership is not a prerequisite for an alter ego finding, the Board has found such a rela- tionship only where both companies were either wholly owned by members of the same family or nearly totally owned by the same individual or where the older com- pany continued to maintain substantial control over the business claimed to have been sold to the new com- pany. Superior Export Packing Co., 284 NLRB 1169, 1170 (1987), enfd. mem. sub nom. Meadowlands Hy-Pro Indus- tries v. NLRB, 845 F.2d 1013 (3d Cir. 1988); see also Hill Industries, 320 NLRB 1116, 1116 fn. 1 (1996); Hartman Mechanical, Inc., 316 NLRB 395, 401-402 (1995); Perma Coatings, Inc., 293 NLRB 803, 804 (1989). Absent those limited circumstances, “the lack of substantially identical common ownership precludes a finding” of alter-ego status. Superior Export Packing Co., 284 NLRB at 1170. III. FACTS The facts relevant to an analysis of the alter-ego fac- tors are fully set forth in the judge’s decision. Because we find, as more fully explained below, that the General Counsel failed to establish the factor of common owner- ship and that none of the aforementioned exceptions ap- ply, we focus primarily on those facts relevant to this finding. A. Reinforcing Reinforcing began operations as a rebar contractor in or about May 2000. Its stock was owned by Christian Redmond, who served as vice president, and his wife Kimberly, who was president. The couple separated in August 2002 and subsequently divorced. In November 2002, Redmond developed a personal re- lationship with Denise Herheim. In May 2003, Herheim moved in to Redmond’s residence, where she cared for Redmond’s children who resided there. Redmond testi- fied that he and Herheim were a “committed couple.” After cohabitating with Redmond, Herheim did not ob- tain any ownership or management interest in Reinforc- ing. Rather, her only involvement in Reinforcing began in May 2004, when she started performing office work for Reinforcing, for which she was hourly paid. In September 2003, Redmond, acting for Reinforcing, executed the area agreement between the Unions and the Upstate Iron Employers Association, covering the period May 1, 2003, through April 30, 2006. Reinforcing ini- tially made monthly reports and contributed to the Un- ions’ fringe benefit funds but, by the spring and summer of 2004, Reinforcing was in financial trouble. As a re- sult, Redmond stopped bidding on new work and, in Sep- tember 2004, Redmond informed Gary Robb, business manager of Iron Workers Local 60, that he could not afford to stay in business. Reinforcing ceased doing business in the fall of 2004. B. Steelworkers Herheim testified that for years she was interested in going into business for herself, but lacked the capital to start a company. In mid-2004, Herheim decided to form her own rebar company, concluding that she could han- dle it because it involved only providing labor and did not involve substantial overhead or capital. She con- tacted an attorney, and incorporated Steelworkers as a limited liability company on July 1, 2004. The business was solely in her name, she provided what capital in- vestment was needed to begin operations,3 and she was the only individual authorized to conduct business on its behalf. Herheim operated Steelworkers from the residence she shared with Redmond. Steelworkers used the office space, computer, Dodge Report subscription,4 fax ma- chine, desk, and telephone that were no longer being used by Reinforcing. In exchange, as Herheim testified, she paid Redmond $100 per week for the space and equipment.5 Herheim testified that she made this pay- ment, “when I could afford to pay it.” Steelworkers used the same insurance agency and ac- countant as Reinforcing. However, there is no evidence that any ongoing financial obligations for these services were not paid by Steelworkers. Steelworkers worked in the same geographical area as Reinforcing, and served the same customers. Herheim prepared the bids for the jobs, getting advice and expla- nations from Redmond on the difficult jobs. Herheim was the only individual authorized to enter into contracts for Steelworkers and authorize its employees’ paychecks. Redmond had no ownership interest in Steelworkers. He did, however, work on almost all of Herheim’s pro- jects. Redmond hired employees subject to Herheim’s approval. Most of Steelworkers’ employees had worked for Reinforcing; the other employees were people Red- mond knew. The judge credited Herheim, who testified that she alone made the decision to go into business and also to 3 No evidence was presented that Redmond made any contributions to Herheim’s $1000 capital investment in Steelworkers. 4 Although Redmond testified that the Dodge Report could have cost several thousand dollars a year, no evidence was presented that he could have canceled his subscription and received a pro rata refund or as to the remaining value of the subscription. 5 There is no evidence that this payment was less than the prevailing market value of that which Herheim rented. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406 operate Steelworkers as a nonunion company. Her- heim’s testimony was also credited that she did not con- sult with Redmond or tell him of her plans until a couple of days after Steelworkers was formed, and that she was not motivated by a desire to help Redmond or Reinforc- ing avoid obligations under the Act. IV. ANALYSIS On these facts, we find that the judge erred in conclud- ing that Reinforcing and Steelworkers were alter egos. While many factors tending to show alter-ego status are present, the crucial factor of common ownership is not. As discussed above, although common ownership is not a prerequisite for an alter-ego finding, in its absence, the Board will only find alter-ego status in limited circum- stances. None of those circumstances exists here. Ac- cordingly, the lack of substantially identical common ownership precludes a finding that Steelworkers was an alter ego of Reinforcing. See Superior Export Packing Co., 284 NLRB at 1170. This conclusion is only bol- stered by the absence of financial control by Redmond, the absence of operational control, and the absence of a motive to avoid legal and contractual obligations. A. Absence of Common Ownership and Financial Control Reinforcing and Steelworkers do not share common ownership. Noting many of the above-related facts, the judge acknowledged this conclusion. Nevertheless, rely- ing on the facts that Redmond and Herheim lived to- gether and that Herheim cared for Redmond’s children, the judge found that “Redmond and Herheim had a close familial relationship,” and that “[u]nder these circum- stances a finding of alter ego status is not precluded.”6 Based on the evidence before us, we disagree. The judge correctly stated that the Board may infer substantially identical ownership, for purposes of alter- ego analysis, where “members of the same family” or “people in a close familial relationship” are owners of the alleged alter egos.7 Notwithstanding our dissenting col- league’s colorful “walk-like-a-duck” metaphor, Red- mond’s and Herheim’s relationship does not warrant the 6 Thus, the judge apparently based his conclusion on the first of the three exceptions we previously identified, “wholly owned by members of the same family.” 7 Indeed, the Board has frequently found that “where members of the same family are the owners of two nominally distinct entities, which are otherwise substantially the same, ownership and control of both of the entities is considered substantially identical.” Cofab, Inc., 322 NLRB 162, 163 (1996), enfd. mem. sub nom. NLRB v. DA Cloth- ing Co., 159 F.3d 1352 (3d Cir. 1998); see also Fallon-Williams, Inc., supra, 336 NLRB at 602 (“[t]he Board has not hesitated to find alter ego status even though entities had different owners, when the owners were in a close familial relationship.”). application of this inference. They have not taken the step of entering into the legal arrangement of a marriage, with the familial connection and attendant presumption of commonality of finances that such a legal arrangement may imply. In no instance has the Board applied this inference in the context of unmarried cohabitating cou- ples.8 While we do not address whether such a relation- ship can ever support an inference of substantially identi- cal ownership and control, we find that the General Counsel failed to adduce sufficient evidence to establish that Herheim’s relationship with Redmond warrants an extension of the inference here.9 The reason that the Board may infer substantially iden- tical ownership in the context of familial relationships is not simply the apparent alignment of interests that family members share. Indeed, as the Board explained in First Class Maintenance Services, 289 NLRB 484, 485 (1988): [A] finding of substantially identical ownership is not compelled merely because a close familial relationship is present between the owners of two companies. Rather, each case must be examined in the light of all the surrounding circumstances. In particular, the Board focuses on whether the owners of one company re- tained financial control over the operations of the other. [Internal citations omitted.] Applying this principle, the Board has indicated that it will only find common ownership in the “close familial relation- ship” context when “the owners of one company exercise considerable financial control over the alter ego.” Adanac Coal Co., 293 NLRB 290, 290 (1989) (finding no common ownership despite alleged alter egos being owned by broth- ers); see also Midwest Precision Heating & Cooling, Inc., 341 NLRB 435 (2004), enfd. 408 F.3d 450 (8th Cir. 2005). Thus, the inquiry at the heart of the “close familial relation- ship” inference concerns the degree of financial control the owner of one company has over the other company. The evidence does not show that Redmond “retained financial control over the operations of” Steelworkers 8 We further note that the General Counsel has neither claimed nor presented evidence that Redmond and Herheim’s personal arrangement was that of a common-law marriage. Absent such a claim by the Gen- eral Counsel or an assertion that the same familial assumptions of fi- nancial commonality should apply to common-law marriages, we find it unnecessary to address that possibility. 9 The cases cited by our colleague, Alexander Painting, Inc., 344 NLRB 1346 (2005), Mastronardi Mason Materials Co., 336 NLRB 1296, 1305 (2001), enfd. 64 Fed.Appx. 271 (2d Cir. 2003), and E.G. Sprinkler Co., 268 NLRB 1241, 1244 (1984), enfd. sub nom Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10 (2d Cir. 1984), all involved alleged alter-ego companies that were owned by married couples or brothers. As explained below, we find insufficient evidence of shared financial arrangements or control to find those cases applicable here. US REINFORCING, INC. 407 such that his relationship with Herheim warrants applica- tion of the “close familial relationship” exception. The only evidence presented regarding their relationship was that Redmond and Herheim lived together, cared for Redmond’s children, and were a “committed couple.” As noted above, no evidence was presented regarding any shared financial arrangements between the two10 or any other indicia of financial control exercised by one over the other. Rather, the undisputed and credited tes- timony is that Herheim independently incorporated and capitalized Steelworkers and was the only person author- ized to conduct business on its behalf.11 Under these circumstances, we find that the General Counsel failed to demonstrate that the relationship between Redmond and Herheim was so akin to the type of “close familial rela- tionship” the Board requires to overcome the absence of common ownership. Similarly, there is no evidence that Redmond and Her- heim consolidated their finances so as to support an as- sertion that either Reinforcing or Steelworkers were co- owned by Redmond and Herheim, or that the two busi- nesses were “nearly totally owned by the same individ- ual.” Indeed, no evidence was presented regarding any shared financial arrangements between the two. In sum, the evidence fails to show joint ownership.12 Our dissenting colleague would find that Redmond and Herheim’s relationship was sufficient to support a find- ing of common ownership, largely because Redmond was actively involved in Steelworkers’ operations. However, it is important to recognize the difference be- tween such active involvement and owning and finan- cially controlling the company. Here, although Red- mond was a key employee of Steelworkers, he was not an owner or a financial controller.13 Nor has it been shown that he participates in the profits of the company. 10 This could have included readily obtainable evidence such as shared bank accounts, or mortgages or other contracts with both names signatory. The latter could include, for example, property, health, or life insurance policies. The record is devoid of any such or similar evidence. 11 It is for these very reasons that this case is distinguishable from Kenmore Contracting Co., 289 NLRB 336 (1988), enfd. 888 F.2d 125 (2nd Cir. 1989). In that case, there was record evidence that the owners of the nonunion company were “financially dependent” on their par- ents, the owners of the union company, and that the parents had pro- vided the money to capitalize the nonunion company. 289 NLRB at 337. 12 For similar reasons, we find no support for an assertion that Rein- forcing “continued to maintain substantial control over the business claimed to have been sold to” Steelworkers. 13 Cf. Alexander Painting, Inc., supra, at 1352, where the president of one company acknowledged that her husband, the president of the company found to be its alter ego, made all the corporate decisions for her company. She further testified that, while she signed some checks and contracts for her company, she signed without question whatever Further, even as to nonfinancial matters, Redmond was not the final authority. Thus, while Redmond provided assistance and input to Steelworkers on job bids and hires, Herheim retained final authority over these deci- sions. This is consistent with the judge’s specific find- ing, mentioned above, that Herheim alone was author- ized to conduct business on Steelworkers’ behalf. Nor is this a case where the owner of the prior com- pany has capitalized the new company. Indeed, as our colleague acknowledges, only minimal capital was nec- essary to start the new business. Further, although Redmond may have been flexible with Herheim with respect to Steelworkers’ rental of office space and equipment, the evidence falls far short of showing a less than arm’s-length relationship. Given that it is the General Counsel’s burden to prove an alter- ego relationship, we find that the General Counsel has failed to substantiate that the rental rate was so far less than the prevailing market rate as to warrant a finding of a sham.14 For all the above reasons, we are not persuaded that Redmond’s involvement with Steelworkers supports a finding of common ownership. documents her husband presented her. Thus, contrary to our col- league’s description, the authority of the president’s husband in Alex- ander Painting extended far beyond managing the new company into exercising financial control. Similarly, in E.G. Sprinkler Corp., supra at 243, the duties of the husband of the new company’s owner (found to be an alter ego of the prior company) were not simply managerial, but also involved making financial decisions, including setting salaries and signing company checks and all of the company’s contracts. 14 We note that the cases which our dissenting colleague cites to show the lack of an arm’s-length relationship involve not only familial relationships between the owners of the companies found to be alter egos (McDonald’s Ready-Mix Concrete, 246 NLRB 152, 154 (1979); SRC Painting, LRC, 346 NLRB 707, 721 (2006); AC Electric, 333 NLRB 987, 1001 (2001), enfd. sub nom. ECM Enterprises v. NLRB, 63 Fed.Appx. 521 (D.C. Cir. 2003)), but also evidence of significantly more substantial financial interconnection between the earlier and the latter companies. First, in McDonald’s Ready-Mix Concrete, supra at 153, inter alia, a bill of sale and promissory note were executed by the majority shareholder of the second company for $116,000 for company equipment and office machines for which no down payment was made or security interest retained by the first company (whose majority shareholder was the father of the second company’s majority share- holder). In SRC Painting, LRC, supra, not only was there no documentary evidence between the companies, found to be alter egos, for leases, but also for the sale of equipment and for apparently substantial loans. Similarly in AC Electric, supra at 993, 1001, the evidence, inter alia, showed cancelled checks for the payment of the transfer of rights in equipment between the two companies, found to be alter egos, drawn on a bank account of both alter egos. Evidence also established that the first company sold vans to the second for sums well below market price. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408 B. Absence of Unlawful Motivation We may assume arguendo that Reinforcing went out of business for antiunion reasons.15 However, the issue is whether Steelworkers went into business with an anti- union motive, i.e., whether Steelworkers permitted Rein- forcing to remain in business through the guise of Steel- workers. The General Counsel has not shown that Steelworkers had that motive.16 Indeed, as described above, the judge credited Herheim’s testimony, including her statements that she alone made the decision to go into business, that she did not consult with Redmond or tell him of her plans until a couple of days after Steelworkers was formed, and that she was not motivated by a desire to help Redmond or Reinforcing avoid obligations under the Act.17 Neither does the evidence show that Steelworkers was created to evade Reinforcing’s contractual and statutory obligations. The dissent claims that because Herheim had the opportunity to start Steelworkers precisely be- cause Reinforcing was going out of business, this dem- onstrates that Herheim’s intent in creating Steelworkers was to assist Reinforcing in avoiding its obligations. 15 Such a decision is not unlawful. Textile Workers v. Darlington Manufacturing, 380 U.S. 263, 273–274 (1965). 16 Chairman Battista adheres to his position that the General Coun- sel must show, among other things, an intent to avoid legal obligations under the Act in order to prove alter-ego status. See Crossroads Elec- tric, Inc., supra. 343 NLRB 1502 at fn. 2. Because the General Counsel here has failed to show such intent by Herheim, he would a fortiori find that the General Counsel has failed to show an alter-ego relationship between Reinforcing and Steelworkers. 17 Cf. Alexander Painting, Inc., supra at 1349–1353 in which Alex- ander Pamphilis, the owner of Alexander Painting, incorporated Silver Palette and, less than 9 months later, transferred all shares in Silver Palette to his wife. In that case, Pamphilis admitted not only that he terminated Alexander Painting’s contract with the union because of the company’s financial problems, but also that he sought to operate Silver Palette as a nonunion company to avoid the “constrictions” and fund requirements of the union’s contract. However, even in those circum- stances, the Board found, that although Silver Palette had been used to avoid Alexander Painting’s contractual and statutory obligations, the evidence failed to show that Silver Palette was created for that purpose. Cf. also Diverse Steel, Inc., 349 NLRB 946 (2007), where the Board found that two companies were alter egos because, among other things, the second company was formed to evade the first company’s responsi- bilities under the Act. (The first company had been owned by a hus- band, wife, and the wife’s mother. The second company was owned by the wife and her father.) Among the evidence the Board relied on was: the wife’s testimony that one reason she formed the second company was because she had wanted the earlier company to go nonunion; and her husband’s testimony that his wife asked him to identify union- affiliated employees so that she could avoid hiring them. We note that in Mastronardi Mason Materials Co., supra at 1305, cited by our colleague, where the Board found that the alter-ego com- panies had an intention to avoid obligations under the Act, the second company was owned by one of two brothers who had owned the earlier company and both of whom had expressed an interest in going nonun- ion. Herheim credibly testified to the contrary. She stated that, in acting on her longstanding goal of owning a business, she was not motivated by a desire to help Red- mond or Reinforcing avoid its statutory or contractual obligations.18 C. Conclusion Finally, our colleague asserts that our conclusion re- garding alter-ego status is based solely on the absence of common ownership. As shown, we rely on this factor and others: the absence of financial control by Red- mond, the absence of operational control, and the ab- sence of a motive to avoid legal and contracted obliga- tions. Having found that the General Counsel has failed to prove an alter-ego relationship between Reinforcing and Steelworkers, we dismiss the allegations that Steelwork- ers violated Section 8(a)(5) and (1) of the Act by refusing to honor Reinforcing’s collective-bargaining agreement with the Unions, or any automatic renewal of that agree- ment. ORDER The National Labor Relations Board orders that the Respondent, US Reinforcing, Inc., Gouverneur, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to honor the collective-bargaining agree- ment entered into with Iron Workers Local Union Nos. 12, 60, 33, and 440 (the Unions) on September 8, 2003, and any automatic renewal or extension of it. The bar- gaining unit is: All journeymen and apprentice iron workers employed by the Respondent within the geographical area of the Unions; excluding all other employees, office clericals, guards, and supervisors, as defined in the Act. (b) Failing to pay its employees the contractually es- tablished wage rates. (c) Failing to make contractually required contribu- tions to the benefit funds prescribed in the collective- bargaining agreement. (d) Failing to deduct union dues and remit them to the Unions for any employees who have signed dues- deduction authorizations. 18 Cf. Alexander Painting, Inc., supra at 1352–1353, where after Pamphilus, owner of the first company, started the second company and later transferred all the stock to his wife, his wife remained nothing more than a “figure-head” for the second company. As noted above, Pamphilus testified that he sought to operate the second company as a nonunion company to avoid the first company’s contractual obligations. US REINFORCING, INC. 409 (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Give full force and effect to the terms and condi- tions of employment provided in the 2003–2006 collec- tive-bargaining agreement with the Unions and any automatic renewal or extension of it. (b) Make whole unit employees for any loss of earn- ings and other benefits resulting from the Respondent’s failure to honor the terms of the 2003–2006 agreement, and any automatic renewal or extension of it, with inter- est, in the manner set forth in the remedy section of the judge’s decision. (c) Remit the benefit fund payments that have become due and reimburse unit employees for any expenses aris- ing from the Respondent’s failure to make the required payments, in the manner set forth in the remedy section of the judge’s decision, as modified by footnote 2 of this Decision. (d) Deduct and remit to the Unions union dues for all employees who have signed dues-deduction authoriza- tions, with interest computed in the manner set forth in the remedy section of the judge’s decision. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facilities in Gouverneur, New York, copies of the at- tached notice marked “Appendix.”19 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- 19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since October 10, 2004. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER WALSH, dissenting in part. “For purposes of this case, we wholeheartedly embrace the now-infamous ‘duck test,’ dressed up in appropriate judicial garb: ‘WHEREAS it looks like a duck, and WHEREAS it walks like a duck, and WHEREAS it quacks like a duck, WE THEREFORE HOLD that it is a duck.’”—Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989). This is a classic alter-ego case. A unionized company is unable to meet its obligations under a collective- bargaining agreement and goes out of business. With no hiatus in operations, a nonunion company comes into existence at the same address to perform the same work, operating out of the same office, with essentially the same employees, supervisors, managers, equipment, and customers. The new company is ostensibly owned and operated by an individual who has absolutely no relevant business experience, but who lives with the owner of the unionized company, with whom she shares a close per- sonal relationship. The owner of the unionized company confesses to the union that “he was having a little finan- cial problem,” that “he was more or less thinking of go- ing nonunion,” and that “he wanted to go with his girl- friend [who] was going to start another company.” The facts and the law overwhelmingly support the judge’s finding that the new company is an alter ego of the unionized company. Unable to discern the obvious, the majority disagrees. In my view, the new company is unquestionably an al- ter ego, and it therefore violated Section 8(a)(5) and (1) of the Act by failing to abide by the collective-bargaining agreement previously entered into by the unionized com- pany. The majority’s decision, despite its appearance of reasoned analysis, ignores the reality staring us in the face. I dissent.1 I. FACTS US Reinforcing, Inc. (Reinforcing) was a rebar con- tractor: it provided labor to install steel rods used to rein- 1 I concur in the majority’s finding that the unionized company vio- lated Sec. 8(a)(5) and (1) of the Act by failing to abide by that agree- ment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410 force concrete structures during construction. Reinforc- ing began operating in about May 2000, and its stock was owned by Christian Redmond (Redmond) and his former wife, Kimberly Redmond (Kimberly). Redmond estimated and prepared bids, hired and fired employees, and supervised employees on the jobsites; Kimberly did the office work. They operated the business out of their home in Gouverneur, New York. They separated in Au- gust 2002 and subsequently divorced. After the separa- tion, Redmond remained in the home and continued op- erating Reinforcing alone. In November 2002, Redmond entered into a personal relationship with Denise Herheim, who worked as a clerk at a gas station convenience store. In May 2003, Her- heim moved into Redmond’s home and took care of Redmond’s children while continuing to work at the convenience store. In September 2003, Redmond executed the area agreement between the Unions and the Upstate Iron Em- ployers Association covering the period May 1, 2003, to April 30, 2006. Initially, Reinforcing met its monthly obligations to the Unions’ fringe benefit funds under that agreement, but by the spring of 2004, Reinforcing was in financial trouble. As a result, Redmond stopped bidding on new work. In September 2004, Redmond informed the Unions that he could not afford to keep Reinforcing in business. At the time, Reinforcing owed the benefit funds approximately $120,000, but had only $17,000 on hand. In May 2004, at the same time that Reinforcing began experiencing increasing financial difficulties, Herheim began doing office work for Reinforcing. She had no prior experience in the rebar business. Nevertheless, after less than 2 months on the job, Herheim contacted an attorney about starting her own rebar business. With an investment of $1000, Herheim formed U.S. Steelwork- ers, LLC (Steelworkers) on July 1, 2004,2 while she was still working for Reinforcing. Having no capital assets, Herheim began operating Steelworkers out of Redmond’s home, using the same office space, computer, Dodge Report subscription,3 fax machine, desk, and telephone that were owned either by Redmond or Reinforcing and being used by Reinforcing. Herheim testified that she rented the space, equipment, and services from Reinforcing for $100 a week, paid mostly in cash, that is, “when I could afford to pay it.” Steelworkers also used the same insurance agency and 2 All dates hereafter are 2004, unless otherwise indicated. 3 The Dodge Report was used to identify jobs on which to bid. Redmond’s testimony establishes that this report alone could cost sev- eral thousand dollars a year. accountant as Reinforcing. Steelworkers operated as a nonunion company. Within a week of its formation, Steelworkers began bidding on jobs, notwithstanding Herheim’s lack of ex- perience. In its second week, Steelworkers secured its first contract. Because Herheim had no experience in the rebar field, or, indeed, in managing a business of any kind, she was necessarily dependent upon Redmond’s expertise. When bid preparation required the examination of blueprints, Redmond explained the blueprints to Herheim. Red- mond also advised her on the size and shape of the rebar called for, and the difficulty involved in its installation. In the field, Redmond served as the foreman on Steel- workers’ first job, which ran from October 2004 to Janu- ary 2005. Redmond did all of the initial hiring for Steelworkers, with Herheim’s approval. Four of the six employees on the first job had previously been employed by Reinforcing; the other two were people Redmond knew. Prior to the hearing in this case, Steelworkers per- formed work on five other projects. Redmond was fore- man on one of those, and he worked on three of the oth- ers. Lee Hance, an employee of Reinforcing, was the job foreman on three of the jobs, and Redmond’s brother was the foreman on the remaining job. On each of those jobs, again owing to Herheim’s lack of rebar experience, she relied on the job foreman to tell her the number of em- ployees needed and anything related to the installation of the rebar. At the time that Redmond commenced working for Steelworkers, Reinforcing was completing its final job and was not bidding on any new jobs. At about the same time, the Unions learned of Redmond’s involvement with Steelworkers. When confronted by them, Redmond ac- knowledged that he was working for “Denise [Herheim]” because it was the only way that he could earn enough money to pay his arrearages to the union funds.4 Red- mond also told the Unions that he was “more or less thinking of going nonunion,” that he wanted to work for “his girlfriend [who] was going to start another com- pany,” that some of his employees would be working with him on a nonunion job, and that Reinforcing was going to go out of business because Redmond could not make a go of it at union rates. 4 The Unions offered to work out a payment plan to enable Red- mond to remain a union contractor, but Redmond did not pursue this offer. US REINFORCING, INC. 411 II. ANALYSIS A. Relevant Legal Principles “In determining whether an alter ego relationship ex- ists, the Board considers whether two entities have sub- stantially identical ownership, management and supervi- sion, business purpose, operation, customers, and equip- ment.” Fallon-Williams, Inc., 336 NLRB 602 (2001) (footnote omitted). “Another relevant factor is whether one entity was created in an attempt to enable another to avoid its obligations under the Act.” Id. “[N]o one fac- tor is determinative, nor do all of the above indicia need to be present to find that an alter ego relationship exists.” Cofab, Inc., 322 NLRB 162, 163 (1996), enfd. mem. sub nom. NLRB v. DA Clothing Co., 159 F.3d 1352 (3d Cir. 1998). “In particular, identical ownership is not a pre- requisite for finding an alter ego relationship.” Id. (foot- note omitted); cf. Crossroads Electric, Inc., 343 NLRB 1502, 1506 (2004), enfd. mem. 178 Fed.Appx. (6th Cir. 2006) (recognizing that “[t]o focus upon the formality rather than the reality would ‘distort the picture’ of what actually occurred”). B. Application of Principles A quick look at the record shows that uncontested evi- dence establishes the presence of all of the factors rele- vant to an alter-ego finding. Indeed, the majority takes issue with only two: substantially identical ownership and intent to evade responsibilities under the Act. 1. Substantially identical management and supervision Redmond managed Reinforcing, and he was intimately involved in the management of Steelworkers. As the judge found, Herheim had no experience in rebar instal- lation, and she relied on Redmond’s expertise in prepar- ing bids. He explained the blueprints to Herheim and estimated the difficulty of the jobs. Herheim also relied on Redmond to hire Steelworkers’ work force, as he had done for Reinforcing. In addition, Redmond, his brother Ryan, and Lee Hance were the supervisors for Steel- workers, and they all had performed similar duties for Reinforcing. See Alexander Painting, Inc., 344 NLRB 1346, 1353–1354 (2005) (fact that owner of union paint- ing company managed nonunion painting company owned by his wife supported alter-ego finding); E.G. Sprinkler Corp., 268 NLRB 1241, 1243 (1984) (union company owner’s hiring and firing of employees of non- union company owned by his wife supported alter-ego finding), enfd. sub nom. Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10 (2d Cir. 1984). 2. Substantially identical business purpose and operations The purpose of both Reinforcing and Steelworkers was to install rebar, and both companies operated in the same way—as contractors providing rebar installers but not the rebar itself. Both companies also operated from the same location, and there was no hiatus between the cessation of Reinforcing’s business and the commencement of Steelworkers’. See Mastronardi Mason Materials Co., 336 NLRB 1296, 1305 (2001), enfd. 64 Fed.Appx. 271 (2d Cir. 2003). In addition, both companies employed basically the same contingent of workers; most of Steel- workers’ employees had worked for Reinforcing, and the few who had not were prior acquaintances of Redmond. See Alexander Painting, supra, 344 NLRB at 1353 (same employees a factor supporting alter-ego finding). 3. Substantially identical equipment Both Reinforcing and Steelworkers operated out of Redmond’s residence, and used the same telephone, fax machine, computer, Dodge Report subscription, insur- ance agency, and accountant. See Alexander Painting, supra, 344 NLRB at 1353 (same daily business opera- tions from same building, with same fax number and some of same phone numbers support alter-ego finding). 4. Substantially identical customers Steelworkers and Reinforcing served the same cus- tomers, doing projects for at least three of the same gen- eral contractors. See Alexander Painting, supra, 344 NLRB (essentially same customers a factor supporting alter-ego finding). Indeed, Steelworkers actually ob- tained some of its jobs through bid solicitations that had been sent to Reinforcing. See, e.g., E.G. Sprinkler Corp., supra, 268 NLRB at 1244 (union company performed work on behalf of nonunion company pursuant to work order received by union company). Not surprisingly, given that they served primarily the same customers, both companies performed most of their work in the same geographical area, Central New York State. 5. Substantially identical ownership As stated above, “common ownership is not an abso- lute prerequisite to a finding of alter ego status.” Fugazy Continental Corp. v. NLRB, 725 F.2d 1416, 1420 (D.C. Cir. 1984) (emphasis in original). Common ownership, moreover, should be a lesser factor in cases like this one, where the capitalization of the enterprise is minimal. In any event, that factor is satisfied here. As the ma- jority acknowledges, the factor of common ownership can be satisfied when the owners of the alleged alter egos have a close familial relationship. See Cofab, Inc., 322 NLRB 162, 163 (1996), enfd. mem. sub nom. NLRB v. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412 DA Clothing Co., 159 F.3d 1352 (3d Cir. 1998). The judge properly found that Redmond and Herheim had such a relationship. Shortly after Redmond separated from his former wife, Herheim moved into Redmond’s residence and began taking care of his children. Redmond testified that he and Herheim were a “committed couple,” and they both testified that they had lived together for 2-1/2 years. The facts establish that Redmond and Herheim thought of themselves and functioned as a familial unit. Further support for a finding of substantially identical ownership is the evidence showing that Redmond and Herheim, and their respective businesses, did not operate at arm’s length. As stated above, either Redmond or Reinforcing owned the office space and all of the equip- ment that Herheim used to operate Steelworkers. Her- heim’s statement that she paid Redmond $100 per week, usually in cash and when she could afford it, hardly es- tablishes that Steelworkers compensated Reinforcing fairly. The Board has often found that such irregular or undocumented accounting supports a finding of alter-ego status. See, e.g., SRC Painting, LRC, 346 NLRB 707, 721 (2006) (irregular transactions, including alleged loans without documentation, sales without receipts, and lease relationships without documents or terms, indicate lack of arm’s-length relationship and support alter-ego finding); AC Electric, 333 NLRB 987, 1001 (2001) (in case of two companies technically owned separately by husband and wife, finding of substantially identical own- ership was enhanced by evidence showing stark absence of arm’s-length dealings), enfd. sub nom. ECM Enter- prises v. NLRB, 63 Fed.Appx. 521 (D.C. Cir. 2003).5 My colleagues acknowledge that the common owner- ship factor can be satisfied by evidence of financial con- trol “by the owners of one company . . . over the opera- tions of another,” but claim that the General Counsel failed to produce that evidence here. They are simply mistaken. The evidence plainly shows that Redmond exerted control over Steelworkers in crucial areas of the business. Redmond subsidized Steelworkers’ operations as needed, formulated (or, on other occasions, had indis- pensable input into) Steelworkers’ job bids, acted as a foreman on Steelworkers’ jobs, and, as a practical matter, 5 The majority points out that Herheim independently incorporated and capitalized Steelworkers. That evidence, however, is outweighed by the reality that Redmond effectively subsidized Steelworkers’ actual day-to-day operations by allowing Herheim to use Reinforcing’s assets at little or no cost. Cf. McDonald’s Ready-Mix Concrete, 246 NLRB 152, 154 (1979) (finding father’s and son’s businesses to be alter egos, even assuming truth of son’s assertion that he capitalized his corpora- tion with $20,000 of personal proceeds, in light of shared premises, employee interchange, sharing of facilities, and commonality of cus- tomers). was in charge of all personnel decisions and all decisions requiring technical knowledge of the rebar business.6 On that record, Redmond’s role in operating Steelworkers clearly amounted to financial control sufficient to satisfy the common ownership standard.7 My colleagues also make much of the fact that Red- mond and Herheim were living together but not married. They say that the absence of marriage means that there can be no “attendant presumption of commonality of finances . . . .” I know of no such presumption in Board law. And, in any event, our precedent does not require proof of a commonality of finances to establish an alter- ego relationship. Certainly, the Board has had no diffi- culty finding the common ownership standard satisfied in cases involving ownership by siblings, see, e.g., Volk & Huxley, 280 NLRB 219 (1986), enfd. sub nom. NLRB v. Amateyus, 817 F.2d 996 (2d Cir. 1987), cert. denied 484 U.S. 925 (1987), or by parents and their adult children, see, e.g., Kenmore Contracting Co., 289 NLRB 336 (1988), enfd.mem. 888 F.2d 125 (2d Cir. 1989). No pre- sumption of commonality of finances is appropriate in those situations. In sum, the record establishes that the ownership of Reinforcing and Steelworkers was substantially identical. This conclusion is supported by Redmond’s and Her- heim’s committed familial relationship, by Redmond’s financial support of Steelworkers, and by his continuing and substantial role in Steelworkers’ operations. 6. Intent to evade responsibilities under the Act Finally, there is compelling evidence that Redmond, through his involvement with Steelworkers, was seeking to evade Reinforcing’s responsibilities under the Act. As stated above, Redmond acknowledged to union represen- 6 Although Herheim’s testimony was that her approval was neces- sary for all hiring decisions, there is no evidence that Herheim ever overruled one of Redmond’s selections. Indeed, there is no evidence that Herheim ever disagreed with, modified, or overruled any manage- ment decision that Redmond made for Steelworkers. 7 The majority’s reliance on Hill Industries, 320 NLRB 1116 (1996), Hartman Mechanical, 316 NLRB 395 (1995), and Superior Export Packing Co., 284 NLRB 1169 (1987), enfd. mem. sub nom. Meadowlands Hy-Pro Industries, Inc. v. NLRB, 845 F.2d 1013 (3d Cir. 1988), is misplaced for two reasons. First, in those cases there were no familial ties at all between the alleged alter-ego companies. Second, there was no evidence in those cases that the owner of the old company exercised any significant control over the business operations of the new company. Similarly, in Adanac Coal Co., 293 NLRB 290, 294 (1989), the owner of the old company had “no real connections” with the new company, which was independently run by the new owner. The same was true in First Class Maintenance, 289 NLRB 484 (1988). Perma Coatings, 293 NLRB 803 (1989), is also distinguishable. There, unlike here, the old business was completely defunct when the new business began operating and, in addition, there was no evidence that the owner of the old business was seeking to evade any responsibilities under the Act. US REINFORCING, INC. 413 tatives that he had abandoned Reinforcing to “go nonun- ion” and work for “his girlfriend,” because he could not get enough jobs or make enough money as a union con- tractor. Those admissions are sufficient to establish unlawful motive. See, e.g., Alexander Painting, supra, 344 NLRB at 1352 (finding alter-ego status where the president of the union company admitted that he sought to terminate the company’s union contract because it was in debt and “the only hope I had of paying those debts down was to get out of the Union and start making some money”); see also Mastronardi, supra, 336 NLRB at 1305 (finding alter-ego status where the respondent’s statement that it was going “nonunion” because the union contract was too expensive indicated motive to evade bargaining responsibility under the Act). Thus, this fac- tor, too, supports the finding that Steelworkers and Rein- forcing were alter egos.8 III. CONCLUSION This is an easy case. Every one of the relevant factors militates in favor of finding alter ego status. Regrettably, the majority falls for the Respondents’ clumsy stratagem for “going nonunion,” and permits them to avoid their legal responsibilities at the expense of their employees. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to honor the collective-bargaining agreement entered into with Iron Workers Local Union 8 The majority notes that the judge credited Herheim’s testimony that she was not motivated by a desire to assist Redmond or Reinforc- ing in avoiding obligations under the Act. The judge, however, also found it unlikely that Herheim would have begun operating Steelwork- ers when and as she did if Reinforcing was not having problems meet- ing its union obligations. That finding by the judge, in conjunction with Redmond’s admissions, establishes that the factor of intent also militates in favor of finding alter-ego status. Nos. 12, 60, 33, and 440 (the Unions) on September 8, 2003, and any automatic renewal or extension of it. The bargaining unit is: All journeymen and apprentice iron workers employed by the Respondent within the geographical area of the Unions; excluding all other employees, office clericals, guards, and supervisors, as defined in the Act. WE WILL NOT fail to pay the contractually established wage rates. WE WILL NOT fail to make contractually required con- tributions to the benefit funds prescribed in the collec- tive-bargaining agreement. WE WILL NOT fail to deduct union dues and remit them to the Unions for any employees who have signed dues- deduction authorizations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed above. WE WILL give full force and effect to the terms and conditions of employment provided in the 2003–2006 collective-bargaining agreement with the Unions and any automatic renewal or extension of it. WE WILL make whole unit employees for any loss of earnings and other benefits resulting from our failure to honor the terms of the 2003–2006 agreement, and any automatic renewal or extension of it, with interest. WE WILL remit the benefit fund payments that have become due and reimburse unit employees for any ex- penses arising from our unlawful failure to make such payments, with interest. WE WILL deduct and remit to the Unions union dues for all employees who have signed dues-deduction au- thorizations, with interest. US REINFORCING, INC. Alfred Norek, Esq., for the General Counsel. Roger Bradley, Esq., of Syracuse, New York, for the Respon- dent, U.S. Steelworkers, LLC. Christian Redmond, for US Reinforcing, Inc. Jennifer A. Clark, Esq., of Syracuse, New York, for the Charg- ing Party. DECISION STATEMENT OF THE CASE RICHARD A. SCULLY, Administrative Law Judge. The origi- nal charge in this case was filed on March 10, 2005, by Iron Workers Local Union Nos. 12, 33, 60, and 440 (the Unions) and an amended charge was filed on April 26. On June 29, 2005, the Regional Director for Region 3, National Labor Rela- tions Board (the Board), issued a complaint alleging that US Reinforcing, Inc. (Reinforcing) and its alter ego, U.S. Steel- workers, LLC (Steelworkers), had committed certain violations DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414 of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Steelworkers filed a timely answer denying that it had committed any violation of the Act. A hearing was held in Syracuse, NY, on August 23, 2005, at which all parties were given a full opportunity to examine and cross-examine witnesses and to present other evidence and argument. Briefs submitted on behalf of the parties have been given due consideration. Upon the entire record, and from my observation of the demeanor of the witnesses, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION At all times material, Reinforcing was a New York corpora- tion with an office in Gouverneur, New York, engaged in busi- ness as a contractor in the construction industry installing steel rebar. During 2004, Reinforcing derived gross revenues from its business operations in excess of $100,000, of which in ex- cess of $50,000 was derived from providing services in the Commonwealth of Pennsylvania. I find that at all times mate- rial, Reinforcing was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Although Respondent Steelworkers denies that the Board has jurisdiction over it, given my findings that it is an alter ego of Reinforcing, the argument has no merit. II. THE LABOR ORGANIZATIONS INVOLVED The Respondents admit and I find that at all times material the Unions were labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts in this matter are not really in dispute. The sole is- sue is whether Steelworkers is an alter ego of Reinforcing and therefore obligated to honor the collective-bargaining agree- ment Reinforcing had with the Charging Party Unions when it performed rebar work. Reinforcing began operating as a rebar contractor, providing labor to install steel rods to reinforce concrete structures during construction, in or about May 2000. All of its stock was owned by Christian Redmond who served as vice president and his former wife Kimberly Redmond who was president. Reinforc- ing obtained work through competitive bidding on projects it learned about through industry sources and the “Dodge Re- port,” a subscription service which listed and described upcom- ing construction projects. Christian Redmond did the estimating and preparation of bids on jobs and was responsible for hiring, firing, and supervisingemployees on the jobsites. Kimberly did all of the office work, including, bookkeeping, tax returns, ac- counts receivable and payable, and secretarial duties. The busi- ness was operated out of their residence at 121 Barnes Street in Gouvemeur, New York. The couple separated in August 25 2002, and subsequently divorced. Kimberly had no actual in- volvement in the business after the separation. After Kimberly left, Redmond took over most of her office duties but also en- gaged the services of an accountant. Denise Herheim has had a personal relationship with Red- mond since November 2002. She has resided at the Barnes Street residence since May 2003 where she has cared for Red- mond’s children who reside there. She began working for Rein- forcing in May 2004, doing its office work, and was paid on an hourly basis. In or about September 2003, Redmond contacted Gary Robb, business manager of 35 Local 60, and disussed becoming a union contractor. On September 8, 2003, Redmond executed the area agreement between the Unions and the Upstate Iron Employers Association covering the period May 1, 2003, through April 30, 2006. The bargaining unit consisted of all journeymen and apprentice ironworkers employed by the Re- spondent in the geographical area of the Unions; excluding all other employees, office clericals, guards and supervisors. On September 20, 2003, Redmond and several Reinforcing em- ployees went to the Local 60 office and executed applications for membership and dues authorization cards. Under the terms of the area agreement, Reinforcing was required to make monthly reports and remit contributions to the Unions' fringe benefit funds. Initially, it did so, but by December 2004, its reports and contributions were late and eventually it ceased making payments altogether. Redmond acknowledged that by spring or summer 2004 he had concluded that Reinforcing could not get contracts or make sufficient money to sustain a work force whether it was union or nonunion. The costs were too great, the returns too small, and the company was headed for bankruptcy. He stopped bid- ding on new work in the spring of 2004. In September, 50 he told Robb that he could not afford to stay in business and that there was only about $17,000 in retention money due which could be applied to the more than $120,000 in delinquent pay- ments to the union funds. Herheim testified that several years prior to 2004 she had de- cided to go into business for herself but did not have enough money to start a company. Prior to going to work for Reinforc- ing, she had no experience in the rebar business, having worked for 6 years at a gas station and convenience store. However, in 2004, she undertook to form her own company to do rebar work since it involved only providing labor to do the rebar work on projects and did not involve a lot of overhead or re- quire a lot of capital. In June, she contacted an attorney to find out what she had to do to start her own business. Steelworkers came into existence as a limited liability company on July 1 while she was still working for Reinforcing. She testified that she made a conscious decision that Steelworkers would operate as a nonunion company. She said that she had seen the prob- lems that Redmond had as a union contractor and “when you work in a business, if you see something that doesn’t go very well, you’re not going to do it.” She said that she did not con- sult with Redmond or tell him of her plans until a couple of days after Steelworkers was formed. Steelworkers began bidding on jobs during the first week of July. Herheim operated her business at the Barnes Street prop- erty using the same computer, fax machine, desk, and telephone she used while working for Reinforcing. She said that she rented this equipment from Redmond and paid him $100 a week when she “could afford to pay it depending on whether I got paid for my contracts.” She testified that in mid-July, Steel- US REINFORCING, INC. 415 workers got its first contract and she stopped working for Rein- forcing. Steelworkers’ first project was Ithaca Apartments and the general contractor was Pike Company. Redmond was the job foreman throughout its duration, from about October to 2F, January 2005. The employees on the job were Anthony Te- honica, Lee Hance, Brad Blackburn, Ryan Redmond, Brian Smith, and Kory Bailey. The first four had previously worked for Reinforcing and the latter two were people Redmond knew. All were hired by Redmond with Herheim’s approval. The next job was at Wal-Mart in Ithaca with Redmond as foremen and Tehonica also working. Steelworkers did two jobs for Con- tinental Construction, a Messina job and Watertown Correc- tional Facility. Lee Hance was the job foreman on both and Blackburn, Redmond, and his brother Ryan worked on them. It did a job at Fort Drum on which Ryan Redmond was the fore- man and Redmond, Hance, and Blackburn worked. It final job was for Northeast at Colgate University with Hance the fore- man and Blackburn also working. Herheim prepared bids on these jobs after receiving invita- tions to bid or looking at the Dodge Report. The bid invitations were faxed to the fax number used by Reinforcing and the Dodge Report was the subscription purchased by Reinforcing. She prepared bids based on the tonnage of rebar to be installed and usually bid between 28 to 32.5 cents per pound depending on the nature of the job. When preparing a bid required examin- ing blueprints, Redmond explained the blueprints to her be- cause she had no experience using them. Redmond also advised her on the size and shape of the rebar called for and the diffi- culty involved in its installation. Similarly, since she had no experience working in the rebar field, she relied on the job foremen concerning the number of employees needed and any- thing relating to the installation of the rebar. Steelworkers did jobs in the same geographical area as Reinforcing and for some of the same general contractors, including, Northeast, Purcell, and Continental. Steelworkers paid its employees $15 to $22 per hour on nonprevailing wage jobs and provided no fringe benefits. During September and October 2004, Redmond per- formed work for Steelworkers while Reinforcing was still fin- ishing its last project and not bidding on any new contracts. Herheim admitted that while working for Reinforcing she was generally aware of the fact that reports and remittances had to be sent to the Unions on a monthly basis and while she did not prepare them she had gone over the reports that Reinforc- ing's accountant had prepared to see that they were correct. She was aware, after receiving several calls from the Unions in May and June 2004, that remittance reports were missing and that required contributions were not being made. She was also aware that Reinforcing was having financial difficulties. Gary Robb credibly testified that in September 2004, he heard that Redmond was working as a nonunion contractor. When asked about it by Robb, Redmond said that he had bid a job involving a Wal-Mart in Ithaca but did not get it. After the rebar contractor that got the job ran into difficulty and was removed from the project, Redmond was asked to finish the work. He said that he was doing so as “an open shop contrac- tor” Robb asked if this was his company and Redmond said that he was working for Herheim, as it was the only way he could earn enough money to pay his arrearages to the union funds. Robb told Redmond that he wanted him to continue as a union contractor, that the Union would attempt to work out a payment schedule, and that as a union iron worker he could not operate another nonunion enterprise. In a subsequent meeting, Robb told Redmond that the Union would be taking legal action against him and had an audit of Reinforcing done. Peter Cossack is the business manager of Iron Workers Local 12 which has jurisdiction over the area which includes Lake Placid, New York, where Reinforcing did some work. Red- mond signed a letter of consent similar to the one he signed with Local 60. In September 2004, after Reinforcing fell behind in its payments to Local 12, Cossack called Redmond about it. Redmond told him that he was going to work nonunion with his girlfriend's company and that some of his employees would also be working with him on a nonunion job. Cossack told Redmond that it sounded like an alter-ego situation which could get him into trouble, but Redmond responded that he didn't think it would be a problem. Analysis and Conclusions In determining whether an alter ego relationship exists, the Board considers several factors. They are whether the two enti- ties have substantially identical ownership, management, busi- ness purpose, operations, equipment, customers, supervisors, and shared premises and facilities. Also relevant is whether one entity was created in an attempt to enable the other to avoid its obligations under the Act, but this is not essential to a finding of alter ego status. The Board has found alter ego status even though the entities had different owners when the owners 3E were in a close familial relationship. E.g., Midwest Precision Heating & Cooling, Inc., 341 NLRB 435 (2004); Crossroads Electric, Inc., 343 NLRB 1502, 1506 (2004); Fallon-Williams, Inc., 336 NLRB 602 (2001). Each case turns on its own facts. Here, all of the factors pointing to alter ego status are 40 present. Herheim testified that she made the decision to start up Steelworkers on her own without consulting Redmond and that she was not motivated by a desire to assist him and/or Reinforcing in avoiding obliga- tions under the Act. While I credit this testimony, I find it unlikely that she would have begun operating Steelworkers when and in the manner she did if Reinforcing was not having problems meeting its obligations to the Unions. I also recognize that the business was solely in Herheim’s name, that she pro- vided what little capital investment was needed to start a rebar operation, that she submitted bids on Steelworkers behalf, and that she was the only one authorized to sign contracts and pay- roll checks. However, none of these factors are determinative of alter ego status and they are far outweighed by those that are relevant under Board law. Redmond managed Reinforcing and was involved in the management of Steelworkers. Although Steelworkers argues that Herheim alone had the final say on all the decisions affect- ing Steelworkers, she admittedly had no experience in the in- stallation of rebar and relied on Redmond’s expertise in prepar- ing bids on contracts, hiring workers, and supervising them in the field. It appears that the bids Herheim prepared involved little more than computing the bids by multiplying the number DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416 of pounds of rebar called for times between 28 and 35.5 cents per pound. Any bid that involved reading blueprints or de- pended on the size or complexity of the rebar installation re- quired Redmond’s assistance. One of Steelworkers’ Wal-Mart jobs resulted from a request by a general contractor that it take over a job that another rebar contractor had made a mess of and left the scene. Steelworkers agreed to take it on only after Redmond went to the project to check it out because It wasn’t something that was just plain and simple.” Reinforcing and Steelworkers did the identical type of work, installing steel rebar in structures under construction. Both operated out of the same address the residence at which Red- mond and Herheim resided, both entities carried on their busi- ness operations using the same telephone, fax machine, com- puter, Dodge Report subscription, and had the same insurance agency and accountant. The majority of the employees Steelworkers employed had previously worked for Reinforcing. The two employees who had not worked for Reinforcing were hired by Redmond who knew them. Redmond, his brother Ryan, and Lee Hance were the supervisors for Steelworkers. All three had performed simi- lar duties for Reinforcing. Both entities performed rebar work in the same geographical area, primarily in Central New York. While Reinforcing did some work in Pennsylvania and Steelworkers only worked in New York, I do not consider this significant. Both entities served the same customers doing projects for at least three of the same general contractors, Purcell, Northeast, and Continen- tal. Moreover, it appears that Steelworkers got some of its jobs through bid solicitations sent to Reinforcing’s telephone or fax number. While Reinforcing and Steelworkers had different owner- ship, Redmond and Herheim had a close familial relationship, residing together and caring for Redmond’s children. Under these circumstances a finding of alter ego status is not preluded. Fallon-MI/lams, Inc., above, at 602. Based on all of the forego- ing, I find that at all times material Steelworkers was an alter ego of Reinforcing. CONCLUSIONS OF LAW 1. The Respondents, US Reinforcing, Inc. and U.S. Steel- workers, LLC, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. All journeymen and apprentice iron workers employed by the Respondents in the geographical area of the Unions; exclud- ing all other employees, office clericals, guards, and supervi- sors, as defined in the Act, constitute a unit appropriate for bargaining within the meaning of Section 9(b) of the Act. 4. The Unions are the designated exclusive collective- bargaining representative of the employees within the appropri- ate unit. 5 By failing to abide by the terms of the collective- bargaining agreement with the Unions, the Respondents, US Reinforcing, Inc. and its alter ego U.S. Steelworkers, LLC, committed unfair labor practices affecting commerce in viola- tion of Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondents, US Reinforcing, Inc. and its alter ego U.S. Steelworkers, LLC, having failed and refused to give effect to the collective-bargaining agreement in effect with the Unions, must make all unit employees whole for any loss of earnings and other benefits resulting from such failure and refusal. Backpay shall be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondents shall make all payments required by the collective-bargaining agreement to the Unions’ benefit funds as prescribed in Menyweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and comply with the collective- bargaining agreement’s provisions concerning deductions of union dues and remit all amounts due to the Unions. [Recommended Order omitted from publication.]