Cadillac Asphalt Paving Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 5 6 Cadillac Asphalt Paving Company and its alter ego or successor Cadillac Asphalt, L.L.C. and Local 247, International Brotherhood of Teamsters1 and Michigan Laborers’ District Council, La- borers’ International Union of North America, Party in Interest and Local 324, International Union of Operating Engineers, AFL–CIO, Party in Interest. Case 7–CA–46464 January 17, 2007 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH On December 16, 2004, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondents filed exceptions and supporting briefs. The General Counsel filed an answering brief, and the Re- spondents filed reply briefs.2 The General Counsel filed cross-exceptions and a supporting brief. The Respon- dents filed answering briefs, and the General Counsel filed a reply 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,3 and conclusions as 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005, and the disaffiliation of the Laborers’ International Union of North America from the AFL–CIO effective June 1, 2006. We have also modified the caption by removing reference to Case 7–CA–46565. On August 14, 2006, the Board granted the General Counsel’s motion to sever that case from this consolidated proceeding and to remand it to the Regional Director for the purpose of dismissing the complaint in that case pursuant to a non-Board settlement. The caption has been modified accordingly. 2 The Respondents filed a motion to strike portions of the General Counsel’s answering brief on the ground that the General Counsel improperly made substantive modifications to the brief he originally submitted after the Office of the Executive Secretary gave the General Counsel an opportunity to reconform its original submission as two separate briefs, as required by the Board’s rules. Although we did not invite any of the supplementation of the Gen- eral Counsel’s original brief, the February 11, 2005 letter from the Executive Secretary to the General Counsel did not expressly prohibit modifications to the resubmission. Moreover, the Respondents have failed to show any prejudice, and were, in fact, given the full time permitted by the Board’s rules to respond to the General Counsel’s resubmitted, separate briefs. In these circumstances, we deny the Re- spondents’ motion to strike. 3 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard 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. The judge mistakenly discredited the testimony of Fred Aiken, who did not testify. This error does not affect our decision. modified and to adopt the recommended Order and no- tice as modified and set forth in full below.4 I. INTRODUCTION The issues presented in this case arise from the forma- tion of a joint venture, Respondent Cadillac Asphalt, L.L.C. (LLC), by Levy Company (Levy) and Michigan Paving & Materials Company (MPMC).5 As explained below, the joint venture included the Novi, Michigan facility and the Teamsters-represented bargaining unit of drivers employed by Respondent Cadillac Asphalt Pav- ing Company (Paving), a wholly owned Levy subsidiary. The judge summarily found that the Respondents were a single employer and that Respondent LLC was an alter ego of Respondent Paving. In the alternative, he found that Respondent LLC was a “perfectly clear” Burns6 suc- cessor to Respondent Paving, and as such was bound to recognize and bargain with the Teamsters prior to mak- ing any changes in the unit employees’ terms and condi- tions of employment. The judge further found that both Respondents violated Section 8(a)(5) and (1) of the Act when they (1) failed to continue in effect the terms and conditions of the expired 1998–2003 Michigan Road Builders Association (MRBA)/Teamsters labor agree- ment by discontinuing health and welfare and pension fund contributions; (2) dealt directly with the drivers; and (3) failed and refused to recognize and bargain with the Teamsters. For the reasons set forth below, we disagree with the judge’s alter ego and single employer findings. Conse- quently, there is no basis for finding that Respondent Paving violated Section 8(a)(5).7 We affirm, however, 4 We have amended the remedy, modified the recommended Order, and substituted a new notice to reflect the violations found and the usual remedial provisions of the Board. References to the Sec. 8(a)(3) violation found by the judge in severed Case 7–CA–46565 have been deleted. 5 MPMC is a wholly owned subsidiary of a company identified in the record as Old Castle. 6 NLRB v. Burns International Security Services, 406 U.S. 272 (1972). 7 We adopt the judge’s finding that the General Counsel failed to es- tablish that Respondent Paving was bound by the 2003–2008 MRBA labor agreement. The sole basis asserted by the General Counsel to show that Paving was bound is a 1986 power of attorney purportedly binding Paving indefinitely to the results of contracts negotiated by the MRBA. However, that document was never authenticated. Instead, it was offered by the General Counsel as an exhibit with the representa- tion that it had been produced by the MRBA, a nonparty, in response to the General Counsel’s subpoena. It is undisputed that the General Counsel never called a witness, or produced any other evidence to authenticate the power of attorney, despite having subpoenaed the custodian of records for the MRBA to testify. The burden was on the General Counsel to authenticate the document and he failed to do so. Our dissenting colleague argues that the Respondents waived any authenticity objection by not timely asserting it. We disagree. The General Counsel initially sought to introduce this document into the CADILLAC ASPHALT PAVING CO. 7 the judge’s finding that Respondent LLC was a “per- fectly clear” successor and that it violated Section 8(a)(5) as described above. The judge also found that the Respondents violated Section 8(a)(2) and (1) of the Act when they (1) threat- ened drivers represented by the Teamsters with layoffs unless they transferred their union membership to either the Laborers or Operating Engineers; (2) rendered assis- tance and support to the Laborers and Operating Engi- neers; and (3) told driver Patrick Raymo that he must transfer his union membership from the Teamsters to one of the other unions in order to keep his job. We affirm the judge’s findings of unlawful threats and assistance by Respondent LLC. Inasmuch as we find no alter ego or single employer relationship between Respondent Paving and Respondent LLC, and no direct involvement by agents of Respondent Paving in these unfair labor prac- tices, we reverse and dismiss the allegations of unlawful conduct by Respondent Paving. We address these mat- ters in turn below. II. THE RESPONDENTS’ RELATIONSHIP A. Factual Background On June 30, 2003,8 Levy and MPMC entered into a joint venture agreement to create, effective July 1, Re- spondent LLC. Each company contributed various assets to the joint venture. Specifically, MPMC contributed three asphalt plants and their employees, and Levy con- tributed two facilities and their employees, including Respondent Paving, located in Novi, Michigan. Paving was wholly owned by Levy. MPMC and Levy each own 50 percent of LLC. All of Paving’s first- and second-line supervisors were retained by LLC, but senior management from MPMC replaced Levy senior man- agement atop LLC’s managerial hierarchy. Thus, Levy has no active management role in LLC’s operations. The hourly employees at Paving were represented by three unions—Teamsters Local 247 (Teamsters), Labor- record with the observation that “I don’t think any genuine question as to [its] authenticity can be raised.” The Respondents’ counsel declined the judge’s invitation to stipulate on this point—stating that “[w]ithout the custodian of records, we have no idea where, how, or whether this is the extent of all the records and where they searched”—and began to object. After the judge immediately withheld ruling on the objection, the General Counsel stated that “we’re not representing that this is accurate or comprehensive compliance with the subpoena, but merely that these are documents furnished to us from the [MRBA] pursuant to our subpoena.” (Emphasis supplied.) The judge then received the documents into evidence for the “limited purpose” of showing that the MRBA produced the documents in response to the subpoena. In these circumstances, the Respondents did not waive their right to contest the authenticity of this document as binding Respondent Paving to MRBA negotiations in 2003, by failing to raise the matter in a renewed objec- tion to its admission on the limited basis stated above. 8 All dates are 2003, unless otherwise noted. ers Local 1191 (Laborers), and Operating Engineers Lo- cal 324 (Operating Engineers). The Teamsters repre- sented Paving’s drivers for more than 30 years. At all material times, the drivers have been covered by collec- tive-bargaining agreements between Teamsters Joint Council 43 and the MRBA. On July 7, Paving held a meeting for all of its employ- ees. At this meeting, LLC’s President Dennis Rickard formally announced the joint venture and told the em- ployees that it became effective July 1. MPMC Safety Director Marlene Van Patton then gave employment ap- plications and W-4 forms to all the employees to com- plete. The employees were told that the forms were to update LLC’s records and that they could leave blank the work qualifications and experience level sections of the employment applications. The employees, including the drivers represented by the Teamsters, completed the forms and returned to work the following day without any change in operations or duties. LLC recognized the Laborers and Operating Engineers as representatives of the classifications those unions rep- resented at Paving and signed single-facility contracts with these unions. However, on July 15, drivers Steve Pierce, Patrick Raymo, Tim Taylor, and Dan O’Neill met with management officials from LLC and were told that LLC would not employ Teamsters. The officials further stated that, if those employees wanted to continue to work at LLC, they would have to join either the Laborers or Operating Engineers, depending on their duties (which are explained in detail in the judge’s decision). The fol- lowing day, Paving stopped deducting Teamsters dues and making contributions to the Teamsters funds, and LLC started making fringe benefit contributions on be- half of the drivers to the Laborers and Operating Engi- neers. After learning that LLC would no longer permit the drivers to belong to the Teamsters, Teamsters President Thomas Aloisio sent LLC General Manager Alan San- dell a letter dated July 18. The letter stated in pertinent part: Our members were informed on Tuesday that Old Cas- tle had bought out Cadillac Asphalt and if they wanted to work for Old Castle, lowboy drivers would have to join the Operating Engineers and prime truck drivers would have to join Laborers Local 1191. Please con- tact me at your earliest convenience to schedule a meet- ing to straighten out this terrible mistake and injustice to our members. On July 22, Aloisio mailed a letter to LLC demanding that LLC recognize the Teamsters as the drivers’ exclusive rep- resentative for collective-bargaining purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 In late July, after several attempts, Aloisio finally reached LLC President Rickard by telephone. During their conversation, Aloisio complained about discrimina- tion against the Teamsters and requested that LLC con- tinue to pay the drivers’ Teamsters benefits. Aloisio also offered to send Rickard a copy of the new 2003–2008 MRBA labor agreement. Aloisio followed up this conversation with a letter dated August 8, which reiterated Aloisio’s request that LLC honor the MRBA labor contract with the Teamsters. By letter dated August 21, LLC denied the existence of a collective-bargaining agreement between the Teamsters and LLC. B. Analysis 1. Respondents LLC and Paving are not a single employer or alter egos A single-employer analysis is appropriate only where two ongoing businesses are coordinated by a common master.9 In this case, LLC commenced operations on July 1, and Paving ceased operations no later than July 15. Thus, this is not a case where two ongoing busi- nesses are coordinated by a common master. We there- fore find that Respondent LLC and Respondent Paving did not constitute a single employer. The Board generally will find alter ego status where two entities have substantially identical management, business purposes, operations, equipment, customers, supervision, and ownership.10 Not all of these indicia need be present, and no one of them is a prerequisite to an alter ego finding. The Board also considers whether the second company was created in order to allow the old employer to evade responsibility under the Act.11 How- ever, unlawful motivation is not a necessary element of an alter ego finding.12 If an employer is found to be an alter ego of another employer that has a contract with a union, the alter ego is also bound by that union contract. Although common ownership is not a prerequisite for an alter ego finding, the Board has found an alter ego relationship in the absence of substantially identical ownership only where both companies were either 9 See APF Carting, Inc., 336 NLRB 73 fn. 4 (2001), enfd. mem. 60 Fed.Appx. 832 (D.C. Cir. 2003) (citing NYP Acquisition Corp., 332 NLRB 1041 fn. 1 (2000), affd. sub nom. Newspaper Guild of New York Local 3 v. NLRB, 261 F.3d 291 (2d Cir. 2001)). 10 Advance Electric, 268 NLRB 1001, 1002 (1984); Crawford Door Sales Co., 226 NLRB 1144 (1976). 11 Cofab, Inc., 322 NLRB 162, 163 (1996), enfd. sub nom. mem. NLRB v. DA Clothing Co., 159 F.3d 1352 (3d Cir. 1998); Fugazy Con- tinental Corp., 265 NLRB 1301, 1302 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984). 12 Johnstown Corp., 313 NLRB 170 (1993), enf. denied in part on other grounds and remanded 41 F.3d 141 (3d Cir. 1994), supplemental decision 322 NLRB 818 (1997). wholly owned by members of the same family or nearly totally owned by the same individual, or where the older company maintained substantial control over the new company.13 Neither of those situations is present here. Paving was wholly owned by Levy, and Levy had com- plete operational control over Paving. Under the joint venture agreement, however, LLC is owned 50 percent by Levy and 50 percent by MPMC; neither Levy nor Paving has any operational control over LLC. Rather, MPMC has complete operational control over LLC. LLC is also not managed by the same company or in- dividuals as Paving. Paving was managed and controlled by Levy and specifically by Levy employee Andy Schmidt. LLC is managed and controlled by MPMC, and Schmidt was not hired to manage LLC. Alan San- dell, a former MPMC employee, was hired as the general manager of LLC and had operational responsibility for all five operating divisions. In addition, only 6 of 15 management employees at Paving were offered employ- ment with LLC. The record does show that supervision and operations of the Teamsters unit under Paving and LLC are substan- tially identical. The record also shows that the business purposes, equipment, premises, and customers of Paving and LLC are substantially identical. However, this evi- dence does not outweigh the aforementioned evidence showing separate ownership and control and the lack of identical management, as well as the lack of evidence to suggest that LLC was formed for other than legitimate business reasons. “Simply put, too many of the critical factors traditionally relied upon by the Board to support alter ego findings are absent here.”14 We therefore re- verse the judge and find that Respondent LLC and Re- spondent Paving are not alter egos. 2. LLC is a “perfectly clear” successor to Paving The test for determining successorship under Burns and its progeny is well established: An employer, generally, succeeds to the collective- bargaining obligation of a predecessor if a majority of its employees, consisting of a “substantial and repre- sentative complement,” in an appropriate bargaining unit are former employees of the predecessor and if the similarities between the two operations manifest a “‘substantial continuity’ between the enterprises.” 13 See Superior Export Packing Co., 284 NLRB 1169, 1170 (1987), enfd. sub nom Meadowlands Hy-Pro Industries, Inc. v. NLRB, 845 F.2d 1013 (3d Cir. 1988) (Table). 14 DuPont Dow Elastomers LLC, 332 NLRB 1071, 1084 (2000), enfd. 296 F.3d 495 (6th Cir. 2002). CADILLAC ASPHALT PAVING CO. 9 Hydrolines, Inc., 305 NLRB 416, 421 (1991) (quoting Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 43, 52 (1987)); see also Ready Mix USA, Inc., 340 NLRB 946, 946–947 (2003). The Respondents do not dispute that a majority of LLC’s employees were previously employed by Paving, that all five of the Paving drivers were represented by the Teamsters, and that these employees are a representative complement under LLC. Rather, the Respondents argue that operational changes render the prior Teamsters bar- gaining unit inappropriate. We disagree. The Board’s longstanding policy is that “a mere change in ownership should not uproot bargaining units that have enjoyed a history of collective bargaining unless the units no longer conform reasonably well to other standards of appropriateness.”15 The Board places a heavy evidentiary burden on a party attempting to show that historical units are no longer appropriate.16 Indeed, “compelling circumstances are required to overcome the significance of bargaining history.”17 Applying these principles, we find, in agreement with the judge, that the Teamsters bargaining unit remains an appropriate unit at LLC’s Novi, Michigan facility. After assuming control of Paving on July 1, LLC did not erase or even diminish the amount of work performed by the drivers. Rather, the drivers continued to drive the same trucks to the jobsites, report to the same supervisors, and assist the same composite work crews of Laborers and Operating Engineers with cleaning, raking, shoveling, and other assorted utility functions. Their duties and immediate supervision remained the same through the end of the 2003 paving season. The Respondents argue that certain operational changes implemented in 2004 altered the drivers’ duties sufficiently to establish that a separate unit for drivers was no longer appropriate.18 However, it is well estab- lished that the continued appropriateness of a bargaining unit for successorship purposes is measured at the time 15 Indianapolis Mack Sales & Service, 288 NLRB 1123 fn. 5 (1988). 16 Banknote Corp. of America, 315 NLRB 1041, 1043 (1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. denied 519 U.S. 1109 (1997). 17 Mayfield Holiday Inn, 335 NLRB 38, 39 (2001) (internal quota- tions omitted), enfd. sub nom. 3750 Orange Place Ltd. Partnership v. NLRB, 333 F.3d 646 (6th Cir. 2003). 18 Specifically, the Respondents assert that they adopted the “Michi- gan Paving” business model, under which equipment operators, not lowboy truckdrivers, are responsible for transporting their own equip- ment to and from a jobsite, and distributor drivers do not solely or primarily drive a truck but instead spend a good part of their workday performing other tasks, such as raking and shoveling asphalt, alongside the laborers. the bargaining obligation attaches.19 The changes alleg- edly made by the Respondents in 2004 are thus irrelevant to our determination of the successorship issue. We further find, in agreement with the judge, that there was “substantial continuity” of operations between Pav- ing and LLC at the time LLC assumed control. To de- termine whether there is “substantial continuity” between two enterprises, the Board and courts look to the follow- ing factors: (1) whether the business of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same work- ing conditions under the same supervisors; and (3) whether the new entity has the same production process, produces the same products, and basically has the same body of customers.20 These factors are assessed primar- ily from the perspective of the employees, that is, “whether ‘those employees who have been retained will . . . view their job situations as essentially unaltered.’”21 This inquiry is primarily factual, and is based upon the totality of the circumstances.22 Upon assuming control of Paving on July 1, LLC con- tinued Paving’s operations and paving business in un- changed form, without an interruption or hiatus. As noted above, the drivers continued to drive the same trucks and perform the same duties, for the same custom- ers, under the same general working conditions, with the same immediate supervision. Thus, there can be no doubt that, from the drivers’ perspective, their job situa- tions were essentially unaltered. Therefore, we agree with the judge that Respondent LLC is a successor to Respondent Paving. Having found that LLC is a successor to Paving, we must determine when LLC’s bargaining obligation with the Teamsters matured. LLC’s bargaining obligation matured when two conditions were met: (1) LLC had hired a substantial and representative complement of employees, a majority of whom had been Teamsters unit employees; and (2) the Teamsters had made an effective demand for recognition.23 These two conditions need not occur in any particular order.24 As noted above, the Respondents do not dispute that LLC hired a substantial and representative complement of Paving’s employees, including all five of the Paving drivers represented by the Teamsters. The issue in dis- 19 See Banknote Corp. of America, supra, 315 NLRB at 1043 (evi- dence of changes in duties that actually occurred after bargaining obli- gation attached not sufficient to overturn well-established units). 20 Fall River Dyeing Corp., 482 U.S. at 43. 21 Id. (quoting Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973)). 22 Id. 23 See id. at 52. 24 MSK Corp., 341 NLRB 43, 44 (2004). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 pute is when the Teamsters first made their bargaining demand. The Board has long recognized that “a valid request to bargain need not be made in any particular form . . . so long as the request clearly indicates a desire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and condi- tions of employment.”25 Applying this standard, we agree with the judge that the Union effectively demanded recognition during the telephone conversation between Teamsters President Aloisio and LLC President Rickard in late July. As noted above, during that conversation Aloisio complained that LLC was discriminating against the Teamsters, requested that LLC continue to pay the Teamsters’ benefits, and offered to send Rickard a copy of the new 2003–2008 MRBA labor agreement. In the circumstances of this case, this was sufficient to establish a demand for recognition and bargaining. Further, Aloisio reiterated this demand in his August 8 letter to Rickard, which constituted an effective demand for rec- ognition as well.26 We also agree with the judge that Respondent LLC is a “perfectly clear” successor to Respondent Paving. As discussed above, an employer that substantially contin- ues its predecessor’s business and hires employees of the predecessor as a majority of its work force is a successor with an obligation to bargain with the union that repre- sented those employees when they were employed by the predecessor.27 The Supreme Court in Burns held that a successor employer normally is free to set initial terms and conditions of employment unilaterally. The Court also stated, however, that there would be times when it is “perfectly clear” that the successor intends to hire all of the predecessor’s employees. In those circumstances, the successor may not impose initial terms without first bar- gaining with the union representing the employees.28 In Spruce Up,29 the Board held that an employer should be 25 Marysville Travelodge, 233 NLRB 527, 532 (1977) (internal quo- tations omitted), enfd. sub nom. NLRB v. Cofer, 637 F.2d 1309 (9th Cir. 1981). 26 In finding that the Union made a valid recognition demand, we do not rely on Aloisio’s testimony that he “thought” he made an offer during the July telephone conversation to sit down and negotiate an alternative agreement with Rickard. The judge found that the Teamsters also demanded recognition and bargaining by letters dated July 18 and 22. The Respondents except to this finding, contending that they never received these letters. We find it unnecessary to pass on these contentions in light of our finding that the bargaining obligation matured based on Aloisio’s late July tele- phone call and August 8 letter. 27 Burns, supra, 406 U.S. at 280–281; Fall River Dyeing, supra, 482 U.S. at 43. 28 Burns, 406 U.S. at 294–295. 29 Spruce Up Corp., 209 NLRB 194 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975). found to be a “perfectly clear” successor, with an obliga- tion to bargain over initial employment terms, only when it has either actively or tacitly misled employees into believing that they will all be retained without a change in terms and conditions of employment, or when it has invited the predecessor’s employees to accept employ- ment without announcing its intention to set new condi- tions.30 The record clearly establishes that Respondent LLC is a “perfectly clear” successor to Respondent Paving. On July 1, LLC assumed control of Paving’s operations. On July 7, LLC President Rickard announced the joint ven- ture in a meeting with Paving’s entire work force. After Rickard spoke, MPMC Safety Director Marlene Van Patton asked all the employees to complete job applica- tions and W-4 forms to update LLC’s records. The em- ployees, including the drivers, completed and submitted their applications that day. After completing his paper- work, driver Steve Pierce asked LLC General Manager Sandell, who was also present at the meeting, about LLC’s 401(k) plan. Sandell responded that LLC did not have a 401(k) plan for hourly employees. Aside from the 401(k) remark, LLC did not announce any changes to the employees’ terms and conditions of employment at this meeting. The following day, July 8, the employees re- turned to work without any changes in operations or du- ties. Although not mentioned by the judge in his decision, LLC’s hiring process entailed no further measures. Unit driver Pierce testified that LLC did not conduct job in- terviews. There is no evidence that LLC sought addi- tional applicants from any source other than Paving’s work force. As noted above, at no time before or during the July 7 meeting did LLC mention changes to the employees’ negotiated wages, benefits, or other terms and conditions of employment. In fact, prior to this meeting, when em- ployee and Teamsters steward Pierce asked LLC agent Fred Aiken about the Respondents’ plans for the Team- sters, Aiken assured Pierce that everything would remain the same. As a result, the drivers reasonably assumed that their terms and conditions of employment would remain the same when LLC took over Paving’s opera- tions. Nothing said at the July 7 meeting dispelled their assumption.31 30 209 NLRB at 195. 31 The Paving unit employees were covered by a contract between a multiemployer association (MRBA) and the Teamsters. That contract did not provide for a 401(k) plan. Thus, to that extent, the LLC state- ment as to the absence of a 401(k) plan for LLC employees was not a change in unit terms and conditions. Concededly, at least one Team- sters-represented employee of Paving nonetheless participated indi- vidually in the 401(k) plan. However, in our view, this fact does not CADILLAC ASPHALT PAVING CO. 11 Thus, by offering job applications and W-4 forms to Paving’s employees on July 7, LLC invited the employ- ees to accept employment without announcing its inten- tion to set initial terms and conditions of employment. In these circumstances, we find, in agreement with the judge, that Respondent LLC is a “perfectly clear” succes- sor to Respondent Paving and that Respondent LLC vio- lated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Teamsters and by failing to continue the terms and conditions maintained by Pav- ing at the time of succession, i.e., the health and welfare and pension fund contributions in accord with terms of the expired 1998–2003 MRBA labor agreement.32 AMENDED CONCLUSIONS OF LAW 1. At all material times until about June 30, 2003, Re- spondent Cadillac Asphalt Paving Company (Paving) was an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. Since about June 30, 2003, Respondent Cadillac Asphalt, L.L.C. (LLC) has continued to operate the busi- ness of Paving in basically unchanged form, and has em- ployed as a majority of its employees, individuals who were previously employees of Paving. LLC is a “per- fectly clear” successor to Paving, and has been an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. 3. At all material times herein, Charging Party Local 247, International Brotherhood of Teamsters, and parties in interest Michigan Laborers’ District Council, Labor- ers’ International Union of North America, and Local 324, International Union of Operating Engineers, AFL– preclude application of the “perfectly clear” principle established by Burns. Indeed, the Respondents do not contend otherwise. They refer only to changes announced on July 15 that were relevant to imposition of the terms and conditions in Laborers’ and Operating Engineers’ contracts. As explained above, we find the announcement of these changes came after LLC had already invited the Paving employees to accept employment. 32 See Elf Atochem North America, Inc., 339 NLRB 796 (2003); Helnick Corp., 301 NLRB 128 fn. 1 (1991). We do not adopt the judge’s finding that LLC violated Sec. 8(d), which provides, in relevant part, that “where there is in effect a collec- tive-bargaining contract . . . no party to such contract shall terminate or modify such contract.” Because LLC, as a successor, has no prior agreement with the Teamsters, it could not violate Sec. 8(d) by imple- menting terms and conditions of employment that varied from the predecessor’s collective-bargaining agreement. See U.S. Generating Co., 341 NLRB 1127, 1135 (2004). The complaint does not allege that LLC violated the Act by failing to deduct and remit union dues to the Teamsters after the collective- bargaining agreement expired on June 30, 2003. In these circum- stances, we do not adopt the judge’s apparent finding that LLC violated Sec. 8(a)(5) and (1) in this respect. The remedy, recommended Order and notice have been modified accordingly. CIO, have been labor organizations within the meaning of Section 2(5) of the Act. 4. All full-time and part-time drivers employed by Paving and later by LLC at or out of the Novi, Michigan facility, but excluding all office clerical employees, guards and supervisors as defined in the Act, and all em- ployees already represented by other labor organizations, constitute an appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 5. At all times since 1973, the Teamsters has been the exclusive collective-bargaining representative of the above-described unit. 6. About July and August 2003, Respondent LLC, by its agents, Rod Elliot and Fred Aiken, at the Novi, Michi- gan facility, violated Section 8(a)(2) and (1) of the Act by threatening employees with layoffs unless they trans- ferred their union membership from the Teamsters to either the Laborers or Operating Engineers. 7. Since about July 2003, Respondent LLC, by its agents, Rod Elliot and Fred Aiken, at the Novi, Michigan facility, violated Section 8(a)(2) and (1) of the Act by rendering assistance and support to the Laborers and Op- erating Engineers by: (a) Urging unit employees to sign check-off authoriza- tions for said labor organizations. (b) Deducting money from unit employees’ wages and remitting it to the Laborers and Operating Engineers, notwithstanding the absence of employee authorizations for such deductions and remittance and notwithstanding that neither the Laborers nor the Operating Engineers is the lawfully recognized exclusive collective-bargaining representative of the unit. 8. About July 18, 2003, Respondent LLC, by its agents, Rod Elliot and Fred Aiken, violated Section 8(a)(2) and (1) of the Act by telling unit employee Pat- rick F. Raymo that he must transfer his union member- ship from the Teamsters to keep his job. 9. Respondent LLC violated Section 8(a)(5) and (1) of the Act by failing to continue in effect all of the terms and conditions of employment of its predecessor, as set forth in the expired 1998–2003 Michigan Road Builders Association labor agreement, by discontinuing health and welfare and pension contributions on behalf of unit em- ployees. 10. Respondent LLC violated Section 8(a)(5) and (1) of the Act by bypassing the Teamsters and dealing di- rectly with their unit employees by offering to provide alternative health insurance coverage. 11. Respondent LLC violated Section 8(a)(5) and (1) of the Act since June 30, 2003, by failing and refusing to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 recognize and bargain with the Teamsters as the exclu- sive collective-bargaining representative of the unit. 12. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 13. The Respondents have not violated the Act in any other manner except as specifically found herein.33 AMENDED REMEDY Having found that Respondent LLC has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action neces- sary to effectuate the policies of the Act. Specifically, we shall order LLC to recognize and, on request, bargain with Teamsters as the exclusive collective-bargaining representative of employees in the unit found here to be appropriate. We shall also order LLC to cease the unau- thorized deductions of moneys from the unit employees’ wages and remittance of the moneys to either the Labor- ers or Operating Engineers, and to make unit employees whole for any losses suffered as a result of these deduc- tions, with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Finally, having found that LLC violated Section 8(a)(5) and (1) by uni- laterally failing to remit contributions to the Teamsters health and welfare and pension funds, in accord with the provisions of the expired 1998–2003 Michigan Road Builders Association labor agreement, we shall order LLC to begin making such payments and to make all required fund payments that it has failed to make since July 15, 2003, including any additional amounts applica- ble to such payments as set forth in Merryweather Opti- cal Co., 240 NLRB 1213, 1216 fn. 7 (1979).34 We shall also order LLC to make whole the unit employees for any losses they may have suffered as a result of the fail- ure to make these payments, as set forth in Kraft Plumb- ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be com- puted in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, supra. 33 Conclusion of Law 13 is not intended to, and does not, express any view as to the merits of the allegations in severed and remanded Case 7–CA–46565. See fn. 1, supra. 34 To the extent that an employee has made personal contributions to a fund that were accepted by the fund in lieu of Respondent LLC’s delinquent contributions during the period of the delinquency, the Re- spondent LLC will reimburse the employee, but the amount of reim- bursement will constitute a setoff to the amount that Respondent LLC otherwise owes the funds. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Cadillac Asphalt, L.L.C., Novi, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully threatening employees with layoff unless they transfer their union membership from the Teamsters to either the Laborers or Operating Engineers. (b) Rendering assistance and support to the Laborers and Operating Engineers by: i. Urging unit employees to sign check-off au- thorizations for said labor organizations; and ii. Deducting money from unit employees’ wages and remitting it to the Laborers and Operating Engi- neers, notwithstanding the absence of employee au- thorizations for such deductions and remittance and notwithstanding that neither the Laborers nor the Operating Engineers is the lawfully recognized ex- clusive collective-bargaining representative of the unit. (c) Telling employees that they must transfer their un- ion membership from the Teamsters to keep their jobs. (d) Failing to maintain all of the terms and conditions of the unit employees’ employment by discontinuing payments to Teamsters health and welfare and pension funds required by the terms of the expired 1998–2003 Michigan Road Builders Association labor agreement. (e) Bypassing the Teamsters and dealing directly with their unit employees by offering to provide alternative health insurance coverage. (f) Failing and refusing to recognize the Teamsters as the exclusive bargaining representative of unit employees and refusing to bargain with the Teamsters. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the Team- sters as the exclusive representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate unit is: All full-time and regular part-time drivers employed by Respondent LLC at or out of its Novi, Michigan facil- ity, but excluding all office clerical employees, guards and supervisors as defined in the Act, and employees already represented by other labor organizations. CADILLAC ASPHALT PAVING CO. 13 (b) Make whole the unit employees, in the manner set forth in the amended remedy section of this decision, for any losses they may have suffered as a result of the Re- spondent’s unauthorized deductions of moneys from the unit employees’ wages and remittance of said moneys to either the Laborers or Operating Engineers. (c) Make all required health and welfare and pension payments to Teamsters Funds that have not been made since July 15, 2003, in accord with the terms of the ex- pired 1998–2003 MRBA labor agreement, and reimburse unit employees for any expenses ensuing from the failure to make these payments, with interest, as set forth in the amended remedy section of this decision. (d) 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 amounts due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Novi, Michigan, copies of the attached no- tice marked “Appendix.”35 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 2003. (f) 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. (g) IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 35 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.” MEMBER WALSH, dissenting in part. I agree with the majority’s findings that Respondent Cadillac Asphalt, L.L.C. (LLC) was a “perfectly clear” successor to Respondent Cadillac Asphalt Paving Com- pany (Paving), and therefore that LLC violated Section 8(a)(5) of the National Labor Relations Act (the Act) by failing to continue in effect the terms and conditions of the expired 1998–2003 Michigan Road Builders Associa- tion (MRBA)/Teamsters labor agreement. As explained below, however, I would also find that LLC, as a per- fectly clear successor, violated Section 8(a)(5) by failing to continue in effect the terms and conditions of em- ployment—the terms of the 2003–2008 MRBA labor agreement—that existed when it took over Paving’s op- erations.1 The judge and the majority have fully set out the rele- vant facts. In brief, the issues here arise from the forma- tion of LLC, a joint venture of Levy Company (Levy) and Michigan Paving & Materials Company (MPMC). The joint venture comprised three asphalt plants owned by MPMC and their employees, and two facilities owned by Levy, including Paving, and their employees. Pav- ing’s employees were represented by three unions: Teamsters Local 247 (Teamsters), Laborers Local 1191 (Laborers), and Operating Engineers Local 324 (Operat- ing Engineers). The Teamsters have represented Pav- ing’s drivers for more than 30 years, and at all material times, the drivers have been covered by collective- bargaining agreements between Teamsters Joint Council 43 and the MRBA. My colleagues and I agree that, because LLC was a “perfectly clear” successor to Paving, it violated Section 8(a)(5) of the Act when it failed to continue in effect the terms of the 1998–2003 MRBA/Teamsters labor agree- ment. My colleagues, however, adopt the judge’s find- ing that Respondent Paving was not bound by the subse- quent 2003–2008 MRBA. The judge based this finding on his determination that the General Counsel did not authenticate a power of attorney that assertedly bound the Respondents to the 2003–2008 labor agreement. The Respondents, however, waived any objection to the au- thenticity of the power of attorney. Therefore, it must be deemed authenticated, and LLC, as the perfectly clear successor to Paving, is required to offer the terms and conditions of employment that existed when it took over operations from Paving. The record shows that the MRBA produced the power of attorney pursuant to the General Counsel’s pretrial subpoena seeking all “powers of attorney” executed and submitted by or on behalf of Paving by which Paving 1 All dates hereafter are 2003, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 designated the Labor Relations Division of the MRBA to bargain on its behalf with Teamsters Joint Council 43. At the hearing, the General Counsel introduced the power of attorney in question, signed by a representative of Paving on February 6, 1986, along with an April 2003 list of contractors belonging to the Labor Relations Divi- sion of the MRBA, and a memorandum reflecting the substantive changes negotiated by the Teamsters and the MRBA for the period 2003–2008 (GC Exh. 21). LLC’s attorney objected to the receipt of the exhibit, not on authenticity grounds, but solely because the MRBA might not have fully complied with the sub- poena. The General Counsel replied that GC Exhibit 21 did not necessarily include all documents conceivably encompassed by the subpoena, but rather just those documents the MRBA had furnished in response.2 The judge received the exhibit for “that limited purpose,” and neither LLC nor Paving objected. The power of attorney bears Paving’s name and a signature on its behalf; if any party (including Paving or LLC) had concerns about the authenticity of the power of attorney, it could and should have raised them at that time. Neither Paving nor LLC offered any document that re- scinded, modified, or limited the power of attorney, nor did either one adduce any evidence casting doubt on its authenticity. Although LLC’s assertion at the hearing— that the documents in GC Exhibit 21 might not be fully responsive to the subpoena—perhaps raises a question as to the weight to be given to the power of attorney, it does not constitute a challenge to its authenticity or admissi- bility.3 Accordingly, the Respondents waived any objec- tion they had to the authentication of the document. In any event, the record establishes that the disputed power of attorney is bona fide. It was produced by the MRBA, the natural custodian of documents of this na- ture. It reads as powers of attorneys usually do, and no question has been asserted by any party concerning the authority of the signatory to sign the document on Pav- ing’s behalf. In addition, the document is an open-ended 2 It was in that context that the General Counsel informed the judge that the documents might not be “accurate or comprehensive compli- ance,” as the majority recounts. In view of the General Counsel’s statement a moment earlier that he did not think that there was “any genuine question as to authenticity,” as the majority also recounts, I think it only reasonable to conclude that the General Counsel intended “accurate” to modify “compliance”; in other words, the General Coun- sel was simply stating that the MRBA had not necessarily fully com- plied with the subpoena. 3 The MRBA’s records custodian was subpoenaed but did not appear at the hearing. However, given that neither Respondent questioned the authenticity of the power of attorney and given that the judge admitted the power of attorney into evidence, the General Counsel had no reason to initiate a subpoena enforcement action to compel the attendance of the records custodian. power of attorney, with no expiration date, and the re- cord shows that Paving was bound by successive con- tracts between the MRBA and Teamsters, which is con- sistent with Paving’s having executed the power of attor- ney to the MRBA. On June 13, 2003, the MRBA and Teamsters Joint Council 43 reached agreement on a new 5-year contract, with an effective date of June 1, 2003, 1 month before Paving’s operations were taken over by LLC. There is no evidence as of that date, or any other, that Paving had revoked the power of attorney to the MRBA or advised Teamsters Joint Council 43 that it wished to withdraw from multiemployer bargaining. Accordingly, all of the evidence strongly supports the conclusion that the power of attorney was bona fide and that it bound Respondent Paving to the 2003–2008 MRBA labor agreement. Under all of these circumstances, I would find that the Respondents waived any objection to the power of attor- ney’s authenticity, that the power of attorney bound Re- spondent Paving to the 2003–2008 labor agreement, and that Respondent LLC, as Paving’s perfectly clear succes- sor, is required to offer initial terms and conditions of employment in accord with the 2003–2008 MRBA labor agreement. 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 threaten employees with layoff unless they transfer their union membership from Local 247, International Brotherhood of Teamsters, to either Labor- ers Local 1191, Laborers’ International Union of North America, or Local 324, International Union of Operating Engineers, AFL–CIO. WE WILL NOT render assistance and support to the La- borers or Operating Engineers by: CADILLAC ASPHALT PAVING CO. 15 (1) urging unit employees to sign check-off au- thorizations for these labor organizations; and (2) deducting money from unit employees’ wages and remitting it to the Laborers and Operating Engineers, notwithstanding the absence of employ- ees’ authorizations for such deductions and remit- tance and notwithstanding that neither the Laborers nor the Operating Engineers is the lawfully recog- nized exclusive bargaining representative of the unit. WE WILL NOT tell employees that they must transfer their union membership from the Teamsters to keep their jobs. WE WILL NOT unilaterally change the terms and condi- tions of unit employees’ employment by discontinuing health and welfare and pension contributions to Team- sters funds on their behalf. WE WILL NOT bypass the Teamsters and deal directly with their unit employees by offering to provide alterna- tive health insurance coverage. WE WILL NOT fail and refuse to recognize the Team- sters as the exclusive collective-bargaining representative of the unit employees and refuse to bargain with the Teamsters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Teamsters as the exclusive representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate unit is: All full-time and regular part-time drivers employed by Respondent LLC at or out of its Novi, Michigan facil- ity, but excluding all office clerical employees, guards and supervisors as defined in the Act, and employees already represented by other labor organizations. WE WILL make whole the unit employees for any losses they may have suffered as a result of our unauthorized deductions of moneys from the unit employees’ wages and remittance of said moneys to either the Laborers or Operating Engineers. WE WILL make all required health and welfare and pen- sion payments that have not been made since July 15, 2003, and reimburse unit employees for any expenses resulting from our failure to make the required payments, with interest. CADILLAC ASPHALT, L.L.C. Linda Rabin Hammell, Esq. and Michael Silverstein, Esq., for the General Counsel. John Patrick White, Esq. and Kurt M. Graham, Esq., for the Respondent, Cadillac Asphalt, L.L.C. Russell S. Linden, Esq., for the Respondent, Cadillac Asphalt Paving Company. Thomas “Tommy” Aloisio, President, for the Charging Party, Teamsters Local Union No. 247. Eric I. Frankie, Esq., on behalf of Party in Interest, Michigan Laborers District Council. J. Douglas Korney, Esq., on behalf of Party in Interest, Local 324 Operating Engineers. Bruce Rvedisveli, on behalf of Laborers Local 1191. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on June 28 and 29, 2004, in Detroit, Michigan, pursuant to an amended consolidated complaint issued by the Regional Director for Region 7 of the National Labor Relations Board (the Board) on January 7, 2004. The complaint is based on an amended charge in Case 7–CA– 46464, filed by the Charging Party Local 247, International Brotherhood of Teamsters, AFL–CIO (the Charging Party Un- ion or the Teamsters) on August 27, 2003, and on a charge in Case 7–CA–46565 filed by the Charging Party, Patrick F. Raymo (Charging Party Raymo or Raymo) on September 2, 2003. The Michigan Laborers District Council (Laborers) and Local 324 Operating Engineers (Operators) have each inter- vened in this case as Parties in Interest. The complaint as amended at the hearing alleges that Respondent Cadillac As- phalt Paving Company (Paving) and its alter ego or successor Respondent Cadillac Asphalt, L.L.C. (L.L.C.) violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (the Act). Paving and L.L.C. have filed an answer denying that they are a single employer or an alter ego of each other and have denied the commission of any violations of the Act. Upon consideration of the testimony of the witnesses, the exhibits admitted at the hearing and the admissions and stipula- tions entered in this case and the positions of the parties as argued at the hearing and as set out in their briefs, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW1 A. The Business of the Respondents The complaint alleges and Respondents admit, and I find, that at all times material until about June 30, 2003, Respondent Cadillac Asphalt Paving Company (Paving), a corporation with an office and place of business at 27575 Wixom Road, Novi, Michigan, has been engaged in the asphalt paving of roads and parking lots, that at all material times since about June 30, 2003, Respondent Cadillac Asphalt, L.L.C. (L.L.C.), a limited liability company, with an office and place of business at 27575 Wixom Road, Novi, Michigan, has been engaged in the asphalt paving of roads and parking lots. 1 The following includes a composite of the credited testimony and the exhibits received at the hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 B. The Labor Organization The complaint alleges, Respondent admits, and I find that at all times material Local 247 International Brotherhood of Teamsters has been and is a labor organization within the meaning of Section 2(5) of the Act. I. BACKGROUND The facts of this case are largely undisputed. Cadillac As- phalt, L.L.C. (L.L.C.) was formed as a joint venture between Levy Company (Levy) and Michigan Paving & Materials Company (Michigan Paving or MPMC), with each company contributing various assets to the enterprise including Cadillac Asphalt Company (Paving) located in Wixom, Michigan, as one of five operating units within the new joint venture. The parties have stipulated that Paving is an assumed name of a division of Levy. Counsel for the General Counsel alleges that L.L.C. is a sin- gle employer and/or successor to Paving. Respondents Paving and L.L.C. contend that L.L.C. is a separate and distinct legal entity with different management and a different structure of its operations. Respondents contend that as a result of these opera- tional changes, L.L.C. no longer uses a truckdriver classifica- tion, which was represented by the Teamsters and that since the drivers’ official job duties for L.L.C. have changed, the Team- sters do not represent an appropriate unit of L.L.C.’s construc- tion employees. Respondents contend that L.L.C., no longer has a legal obligation to recognize the Teamsters as collective- bargaining representative for the truckdrivers, as those employ- ees are now part of an appropriate bargaining unit consistent with their official job duties and are represented by either the Laborers or Operators Unions. Counsel for the General Counsel also alleges that L.L.C. vio- lated Section 8(a)(1), (2), and (5) of the Act by rendering assis- tance and support to the Laborers and Operators Unions and deducting money from employees’ wages and remitting these moneys to the Laborers and Operators Unions. Respondents contend that L.L.C. never required employees to sign union authorization cards, and never pressured or coerced any em- ployees into signing up for the Laborers or Operators. L.L.C. acknowledges that it did recognize the Laborers and Operators as the bargaining representative for the two classifications of employees that it hired at its five facilities (laborers and equip- ment operators) as L.L.C. contends that employees in those classifications shared a community of interest and performed work within the jurisdiction of the Laborers and Operators and the majority of those hired were previously represented by the Laborers and the Operators. L.L.C. acknowledges that pursu- ant to its bargaining agreements with those organizations it did withhold and remit dues. L.L.C. also notes that it is charged with having construc- tively discharged employee Patrick Raymo which it denies. Counsels for the General Counsel in their brief set out their central legal theories in this case. Initially they contend that L.L.C. is a Burns2 successor and/or disguised continuance alter ego of Paving, citing the following evidence: 2 NLRB v. Burns Security Services, 406 U.S. 272 (1972). (a) The decades-old and long recognized unit of driv- ers was, and remains, an appropriate unit for the purposes of collective bargaining. (b) When Teamsters 247 made its bargaining demand about July 18, 2003, L.L.C. had hired all of Paving’s un- ionized drivers. (c) L.L.C. continued Paving’s business in basically un- changed form. (d) Paving and L.L.C. have common ownership, man- agement, business purpose, operations, equipment, cus- tomers, and supervision. (e) One of L.L.C.’s business purposes is to evade con- tractual obligations to Teamsters Local 247. The General Counsels contend that “Paving never withdrew from multiemployer bargaining and was therefore bound by the 2003–2008 labor agreement that its bargaining agent, Michigan Road Builders Association (MRBA), negotiated with Teamsters Local 247,” as: (1) L.L.C. shares Paving’s contractual obligation as its alter ego. (2) L.L.C. had a duty to honor the provisions of the 2003–2008 contract even as a Burns successor, because L.L.C. has forfeited the privilege sometimes granted to Burns successors to set their own initial terms and condi- tions; by: (a) making it ‘perfectly clear’ that it would hire all of the drivers, before apprising them that L.L.C. would not honor their Teamsters terms and conditions of em- ployment. This is known as the ‘perfectly clear’ exception to Burns; (b) committing unfair labor practices such as an- nouncing that the Teamsters union had no place in the new organization, and by requiring the drivers to join other un- ions and to relinquish their Teamsters membership and benefits. II. SEQUENCE OF EVENTS Levy was the sole owner of Paving until June 30, 2003. This ownership interest included facilities on Wixom Road in Novi, Michigan, and on Dix Road in Detroit, Michigan. Paving had offices, a maintenance garage, and storage space for trucks, pavers, rollers, graders, and other equipment at the Wixom Road facility. Paving performed asphalt paving services in- cluding milling3 and conditioning4 surfaces, on public high- ways and roads, private parking lots, and residential subdivi- sions. Three unions represented Paving’s hourly employees for col- lective bargaining. They are Teamsters Local 247, Operating Engineers Local 324, and Laborers Local 1191. At the end of June 2003, the Teamsters represented five unit employees at Paving. They were prime driver and union steward, Steve Pierce, prime drivers Patrick Raymo and Markeit Robinson and lowboy drivers Tim Taylor and Dan O’Neill. The Teamsters drove prime trucks and lowboy trucks to and from various job- 3 “Milling” is the use of a machine with big teeth to mill down to a certain depth around the old asphalt to provide room for the new as- phalt. 4 “Conditioning” involves repair or preparation work on a hard sur- face before the crew begins to pave. CADILLAC ASPHALT PAVING CO. 17 sites. A prime truck is a single-axel truck, with a cab and chas- sis, along with various pumps and levels to apply the prime bonding agent. Prime is the coating that goes on roads to bond the new asphalt to the old. The truck also contains a hose to allow the driver to hand spray the prime. The employee either sprays by hand, standing on the ground, or with a bar from inside the truck. A lowboy truck is a tractor with a long, low, gooseneck trailer that moves equipment, and sometimes mate- rial from location-to-location. L.L.C. General Manager Alan Sandell testified that Respondent continued to use these low- boys through the end of the 2003 season. The paving season usually extends from April to November. L.L.C. ordered new hydraulic, beavertail trailers, similar to lowboys for the 2004 season. The differences between the two types of trailers are mechanical ones that do not affect the function of the vehicle or the required skills of the drivers. The lowboy drivers continued to transport equipment for L.L.C. in the same manner and using the same equipment as they had for Paving. Paving drivers picked up and dropped off their trucks at the Wixom Road lot. The drivers picked up their trucks in the morning and proceeded to the jobsites. The work crews usually consisted of 6 to 8 employees, a paver operator, two screw men, one raker, two rollers, a prime truckdriver and a foreman. The foreman was the only supervisor on the jobsite except for an occasional visit from a supervisor or inspector. Upon arrival at the jobsite, the prime drivers heated the prime and as neces- sary cleaned the area with brooms and shovels which was preparation work also performed by laborers. After applying the prime, the drivers shoveled and raked asphalt, operated the rollers and performed any other task required to assist the work crews. Some times foremen instructed the drivers to perform these tasks and at other times the drivers performed them on their own initiative. Prime drivers thus regularly performed these tasks just as laborers did, and also ran screws, rollers, and loaders just as operators did. As of June 2003, Paving employed three paving foremen: Harry Hatfield, Mickey Smith, and Rick Ling. The condition- ing foremen were Walter Beard and Dave Farrell and Don Mester was a grade checker. These foremen reported to Area Operations Managers Fred Aiken, Clyde Hatfield, and Bruce Nacey. The area operations managers scheduled the Teamsters drivers to work on a daily basis. The operations managers re- ported to Vice President Rod Elliot who reported to Levy’s Corporate Vice President Andy Schmidt. Teamsters Local 247 has represented Paving’s drivers for collective bargaining over 30 years. Local 247 is a member of Teamsters Joint Council 43, which represents all Teamsters locals in the State of Michigan. At all material times Paving’s Teamsters unit has been covered by collective-bargaining agreements between Teamsters Joint Council 43 and the Michigan Road Builders Association (MRBA) an association of employers in the building trades since 1986, through May 2003. Local 247 President Thomas Aloisio testified that on April 28, 2003, Joint Council 43 and the MRBA commenced negotia- tions for a new contract. His testimony was unrebutted and I credit it. As of this date Paving had neither withdrawn a power of attorney from the MRBA, nor notified Teamsters Local 247 that it no longer wished to engage in multiemployer bargaining. Paving was listed on the MRBA. The existence of a power of attorney purportedly signed by Paving is in dispute and was not authenticated by the General Counsel at the hearing. Paving was listed on the MRBA’s roster for multiemployer bargaining with Michigan Teamsters Joint Council 43. On June 13, 2003, the MRBA and Joint Council 43 reached a tentative agreement on a new 5-year contract. As of that date Paving had not re- voked a power of attorney to the MRBA nor advised Teamsters Joint Council 43 that it wished to withdraw from multiemployer bargaining. The parties final galley-proof printed version was completed in March 2004. The new contract is retroactive to June 1, 2003, and runs through May 31, 2008. On June 30, 2003, Levy and MPMC entered into a joint ven- ture and partnership to create L.L.C. which became effective on July 1, 2003. MPMC was formerly known as Thompson- McCully which is an entity wholly owned by Old Castle. Levy and MPMC each own 50 percent of L.L.C. MPMC contributed three asphalt plants with their associated equipment in the joint venture (Clarkston, Whitmore Lake, and Belleville), with three paving crews from each facility. Levy contributed its Wixom (Paving) and Dix facilities with their associated equipment as well as some additional moneys. L.L.C.’s board of directors consists of two MPMC represen- tatives and two Levy representatives. The current chairman of the Board is Levy representative Evan Weiner. The board of directors does not control day-to-day operations of L.L.C., nor does it set labor relations policies for L.L.C. When MPMC assumed control of L.L.C.’s operations on July 1, 2003, MPMC knew that Levy had collective-bargaining agreements at Pav- ing’s Wixom Road facility with Teamsters Local 247, Opera- tors Local 324, and Laborers Local 1191. With this knowledge, L.L.C.’s Wixom Division Manager Rod Elliot executed new contracts with the Laborers and Operating Engineers for the period 2003–2008. These contracts incorporated with only slight variations, the MRBA master agreements that served as Paving’s contract with Laborers Local 1191 and Operating Engineers Local 324. Elliot crossed out “July,” and inserted “June” on the face of the Operators’ Agreement and dated the document June 1, 2003, and signed it on behalf of L.L.C.. L.L.C. also signed similar agreements with the Operators and Laborers at all of the other facilities in the joint venture. The only bargaining unit whose bargaining representative was not recognized by L.L.C. was Teamsters Local 247. There was no hiatus in operations for the transfer from Pav- ing to L.L.C.. The Paving employees worked on June 30, 2003, and on the next day, July 1, 2003. L.L.C. performs the same work as Paving including paving, milling and conditioning of public highways, private parking lots, and subdivisions. Paving and L.L.C. serve many of the same customers. Almost all hourly Paving employees were retained by L.L.C. including the five Teamsters employees, who continued to park their vehicles at the Wixom Road lot, drive the same prime and lowboy trucks, assisted in Operators and Laborers work as necessary and reported to the same foremen through the remainder of the 2003 paving season. These foremen continued to report to Area Operations Managers Fred Aiken, Clyde Hatfield, and Bruce Nacey for the remainder of the 2003 paving season which ended Thanksgiving week. Former Paving Vice Presi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 dent Elliot remained at the Wixom facility as the Wixom Divi- sion Manager. Only top-level management changed after the formation of L.L.C. and they and clerical personnel worked at off-site facilities resulting in little if any direct communications with the drivers, who used the same equipment, performed the same job functions and reported to the same supervisors for the remainder of the 2003 season. Prime truckdriver and Teamsters Union Steward Steve Pierce testified that there had been rumors among Paving em- ployees in 2003, that Paving would be purchased by Old Cas- tle/Thompson-McCully/MPMC. Pierce testified he was aware that Thompson-McCully had an unfavorable opinion of the Teamsters and he inquired of Area Operations Manager Fred Aiken, before and after the Old Castle purchase collapsed and after L.L.C. announced the joint venture, whether this would impact the Teamsters. On each occasion Aiken assured him that Paving /L.L.C. would employ Teamsters at least through the end of the 2003 season. Aiken said, “[E]verything was going to stay the same.” I credit Pierce’s testimony which was unrebutted as Aiken was not called to testify. On July 7, Respondent Paving held a meeting in Novi for its Wixom and Dix employees including the five Teamsters driv- ers and approximately 50 other Paving employees. L.L.C. President Dennis Rickard announced the L.L.C. joint venture and said that the change was effective July 1. Following this announcement MPMC’s safety director, Marlene Van Patton, took over the meeting and asked all employees to fill out em- ployment applications and W-4 forms which she said was merely to update L.L.C.’s records and told the employees to leave many of the applications’ sections blank such as the work qualifications and experience levels. Teamsters members Steve Pierce, Patrick Raymo, Markeith Robinson, Tim Taylor, and Dan O’Neill filled out the employment applications and W-4 forms at the meeting as did the other employees. Van Patton told the employees that L.L.C.’s new payroll checks had not arrived yet. Pierce testified that 3 days later on July 10, that he picked up his paycheck and noted that his and the other Team- sters members checks were Cadillac Asphalt Paving checks whereas other employees’ checks were Thompson-McCully checks. Pierce also testified that he asked about L.L.C.’s 401(k) plan. The Teamsters-MRBA contract did not provide for this benefit. Levy Paving had permitted its unionized em- ployees to participate in the Company’s 401(k) plan. Pierce was told by L.L.C.’s new General Manager Alan Sandell that L.L.C. did not have a 401(k) plan for hourly employees. Both Pierce and Raymo testified that L.L.C. did not mention any other changes in wages, benefits, or job responsibilities at the July 7 meeting. I credit their testimony which was unrebutted. On July 8, the Teamsters drivers reported to work as usual, performed the same jobs, drove the same trucks and received their schedules as usual and reported to the same foremen as before. No one from L.L.C. interviewed them for their jobs or told them when they had been hired as L.L.C. employees. On July 15, employees Pierce, Raymo, and Taylor were waiting to begin their shift because of a rain delay and Elliot told them he wanted to meet with them. L.L.C. also contacted lowboy driver Dan O’Neill who was not scheduled to work until later that day. Markeith Robinson could not be reached as a result of illness in his family. L.L.C. met with four of the five Teamsters that morning. Alan Sandell, Rod Elliot, and Fred Aiken represented management. No notice of this meeting had been given to Teamsters Local 247 President Aloisio. Elliot commenced the meeting by telling the four Teamsters employ- ees that L.L.C. would not employ Teamsters and that if they wanted to continue working at L.L.C., the prime truckdrivers would have to be represented by the Laborers union and the lowboy drivers would have to be represented by the Operators union. Teamsters Steward Pierce expressed concerns about the legality of Elliot’s order and asked to talk to Aloisio. Pierce also expressed concerns about pensions and insurance. Pierce told the management representatives that O’Neill had 21-1/2 years invested in the Teamsters pension fund which fully vests at 20 years of service. Pierce had about 16 years, Taylor had 10 years and Raymo had almost 5 years which is the minimum vesting point under the Teamsters plan. Robinson had less than 2 years of Teamsters service. He told management that he, O’Neill, and Taylor would lose substantial sums at retirement if they left the Teamsters plan. Elliot responded, “We all have to make sacrifices.” In addition Raymo told management that his wife was to undergo major surgery in the near future and that he had been assured by the Teamsters health insurance plan agents that she would be fully covered. Sandell told them that when they changed unions, they could immediately participate in Thompson-McCully’s management insurance program until they met the threshold requirements for coverage under the Laborers and Operators insurance programs. Sandell also told them that L.L.C. would guarantee their wages, that those be- coming covered by the laborer’s union would continue to re- ceive the higher Teamsters wage rate and that any future wages negotiated by the Laborers and Operators unions would be added to their existing salaries. Sandell then left the meeting and Human Resources Repre- sentative Mike Piecuch joined it shortly afterwards. He told the drivers that he had heard of their concerns, conferred with his supervisors and would ease their switch to the other unions by laying the drivers off as of this date, July 15. Pierce inquired whether the drivers should come to work the next day. Elliot replied, “[I]f Fred Aiken has no problems scheduling you to- morrow, we have no problems scheduling you.” The meeting concluded by Sandell and Elliot allowing the drivers some lim- ited time to contact their bargaining representatives. I credit the foregoing testimony of Pierce and Raymo which was unrebut- ted as Sandell and Elliot who were called as witnesses by Re- spondent did not challenge their testimony. Piecuch was pre- sent at the hearing but he was not called to testify. Teamsters Steward Pierce further testified that on July 17, Taylor called him and told him that L.L.C. management had told Robinson to switch unions that day or the next day. Pierce confirmed this with Robinson who signed a dues authorization checkoff card for the Laborers Local 1199 on July 18. On the same day Pierce called Aiken and asked, “If we refuse to switch unions are we laid off as of tomorrow.” Aiken replied yes, that is the situation. Pierce told Aiken he was not switch- ing unions and would park his truck. However later that day Aloisio persuaded Pierce to stay on the job to fight for the Teamsters recognition which he did. On the evening of July CADILLAC ASPHALT PAVING CO. 19 18, Elliot met with Raymo and told him, “There is no sense of just hee-hawing, just switch. There is no sense to keep drag- ging it out because they (L.L.C.) gave us (the drivers) a week extra in the beginning to think about it.” Elliot then gave Raymo a folder containing Laborers benefits brochures and a Laborers business representative’s business card. Raymo asked for more time and Elliot gave him the weekend to decide. Later that day Elliot met with Pierce and Pierce told him in the pres- ence of Aiken, that he would not switch unions. He also told Elliot the Labor Board was involved and asked if he should come to work on Monday. Elliot said if it was okay with Aiken, it was okay with him for Pierce to work on Monday. I credit the testimony of Pierce over that of Elliot and Aiken who denied having threatened to lay off the drivers if they did not accept either the Laborers or Operators Unions as their collec- tive-bargaining representative. On that weekend Raymo discussed the ultimatum with his wife. He testified that they decided they could not risk the loss of the Teamsters health insurance coverage because of his wife’s medical condition and did not want to risk the loss of his Teamsters pension. Raymo testified he “took the layoff” and on that Monday he called Elliot and Aiken to tell them he was taking the layoff. He also told Elliot that he wanted to spend more time with his son who had returned from military service in Iraq and that he wished to work with his wife in photogra- phy. He testified at the hearing that he was not motivated in taking the layoff because of either reason. I credit Raymo’s testimony. Teamsters Local 247 President Aloisio testified that after he was informed of the ultimatum to the Teamsters employees that he called Levy headquarters and obtained Alan Sandell’s busi- ness address and then mailed a certified letter dated July 18, to Sandell at L.L.C.’s address which states in part, “Our members were informed on Tuesday that Old Castle lowboy drivers would have to join the Operating Engineers and prime truck- drivers would have to join Laborers Local 1191. Please contact me at your earliest convenience to schedule a meeting to straighten out this terrible mistake and injustice to our mem- bers.” On July 22, Aloisio mailed a letter to L.L.C.’s Wixom Road facility and demanded that Respondent recognize Local 247 as the drivers’ exclusive bargaining representative. He also stated that a majority of the drivers had designated Local 247 as their exclusive collective-bargaining representative. Aloisio also had Pierce obtain signed Teamsters membership cards which were voluntarily signed by all five drivers and were submitted on July 22, to the Board’s Regional Office with a petition seeking a representation election. The petition was withdrawn on July 30, after he learned that the Board’s Re- gional Officer had informed Pierce that L.L.C. was already obligated to bargain with the Teamsters and there was no need to file a petition. Aliosio also testified that in late July after several attempts he spoke with L.L.C. President and Board Member Dennis Rickard and requested that L.L.C. pay the Teamsters’ benefits. He offered to send Rickard a copy of the 2003–2008 labor agreement and offered to sit down and negotiate an alternative agreement if Rickard did not like the terms of the MRBA con- tract. Rickard did not meet with Aloisio and Aloisio then mailed a certified letter to Rickard dated August 8, which states in part, “Mr. Rickard, just as you have done with the Operators and Laborers, I expect you to honor the Michigan Road Build- ers agreement as it pertains to the Teamsters. In that regard it is imperative that you immediately submit health, welfare and pension contributions on behalf of our members to the Michi- gan Conference of Teamsters Health & Welfare Fund and the Central States Pension Fund.” General Counsel contends that Aloisio’s version of the conversation with Rickard is the more credible and was consistent with his affidavit and was fact spe- cific whereas Rickard’s account was deficient of details and was uncorroborated. I credit Aliosio’s testimony as set out above. It is undisputed that since July 2003, neither Paving nor L.L.C. has paid any pension or health and welfare benefits to the Teamsters’ funds, nor have they remitted any dues to Local 247, for the Teamsters drivers. It is also undisputed that these unilateral actions were taken by Respondents without Local 247’s permission and without bargaining. Respondent has, since July, made deductions from the Drivers’ paychecks and remitted these moneys to the Laborers and Operators vacation funds. Teamsters Steward Pierce telephoned L.L.C.’s payroll de- partment shortly after the payroll deduction changes were made by Respondents and requested that L.L.C. cease making these unauthorized deductions. Pierce drafted and delivered a letter which stated in part on behalf of all five drivers, “We did not sign authorization slips for any of these deductions. We want you to cease immediately taking these deductions. We want to be reimbursed 100 percent of the deductions immediately.” Pierce testified that in early August, Aiken called him at a job- site and told him that the Laborer’s business agent was coming to the jobsite to sign him up in the Laborers union. Pierce re- fused to do so when he was contacted by the business represen- tative. Aiken denied this. I credit Pierce’s testimony. At the hearing, before the close of the General Counsel’s case, the General Counsel and the Respondents entered into the following stipulations which are designated as Joint Exhibit 3: 1. The joint venture among Levy Co., Michigan Pav- ing and Materials Co., and Cadillac Asphalt L.L.C. took effect on July 1, 2003. 2. Until about July 15, 2003, Paving made contribu- tions to the Michigan Teamsters Health & Welfare and Teamsters Central States Pension Plans on behalf of the five drivers at issue in this matter (Steven Pierce, Pat Raymo, Markeith Robinson, Timothy Taylor, and Dan O’Neill). 3. Until about July 15, 2003, Paving deducted union dues from the pay of the five drivers named above, and remitted the same to Teamsters Local 247. 4. Since about July 16, 2003, neither Paving nor L.L.C. has deducted union dues from the pay of the five drivers named above, or remitted the same to Teamsters Local 247. 5. At no time did L.L.C. receive a revocation of dues checkoff authority relative to Teamsters Local 247 from the five drivers named above. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 6. At no time did L.L.C. receive dues checkoff au- thorizations relative to Teamsters Local 247 from any of the five drivers named above. 7. Since about July 16, 2003, neither Paving nor L.L.C. has made any contributions to the Michigan Team- sters Health & Welfare or Teamsters Central S[t]ates Pen- sion Plans on behalf of the five drivers at issue in this case. 8. Since about July 16, 2003, LCC has made fringe benefit contributions on behalf of the five drivers named above, during the periods that they worked at L.L.C., to health & welfare and/or pension plans negotiated by Michigan Laborers District Council and/or Operating En- gineers Local 324, pursuant to the applicable provisions of those unions’ collective bargaining agreements with L.L.C. for the period 2003–2008. These parties also stipulated that the following individuals still work for L.L.C. as of the date of the hearing: Fred Aiken, Markeith Robinson, Dan O’Neill, and Timothy Taylor. The parties also stipulated that it was more likely that July 7, 2003 is the date of the meeting in which applications were distrib- uted. I accept these stipulations and find the date of this meet- ing was July 7, 2003. III. CONTENTIONS OF THE PARTIES A. Counsels for the General Counsel’s Position The General Counsels make several points and arguments in their brief. They contend that the Teamsters drivers unit was historically, and still is an appropriate unit for collective bar- gaining with L.L.C., citing Overnite Transportation Co., 322 NLRB 723 (1996), for the proposition that it is not necessary for a unit for bargaining to be an optimum unit but only an appropriate unit. The General Counsels cite Lincoln Park Zoo- logical Society, 322 NLRB 263, 264 fn. 1 (1996), for the propo- sition that in historical units, a successor has a heavy burden to show that changes it made in operations rendered the long- standing unit inappropriate. The General Counsels note that in the instant case, Teamsters Local 247 has represented Paving’s drivers for over 30 years. Even under the new alignment of their union affiliations, only the former Teamsters drivers oper- ate the lowboys and spray the prime. There has been no show- ing that the Teamsters’ unit lacks a sufficient community of interest to warrant appropriate unit status. The General Counsels further contend that on July 18 and continuing thereafter, Local 247 President Aloisio communi- cated legitimate bargaining demands and requests for recogni- tion to L.L.C.’s agents. They cite Stanford Realty Associates, 306 NLRB 1061, 1066 (1992), quoting from Marysville Travelodge, 233 NLRB 527, 532 (1977), for the proposition that “a valid request to bargain need not be in any particular form . . . so long as the request clearly indicates a desire to negotiate and bargain on behalf of the employees in the appro- priate unit concerning wages, hours and other conditions of employment.” The General Counsels also assert that a union official makes a legitimate bargaining demand when he informs the successor’s agent that the union represents the predecessor employees and supplies the Employer’s agent with a copy of the parties collective-bargaining agreement, citing MSK Corp., 341 NLRB 43, 45 (2004). They also assert that the filing of an 8(a)(5) refusal to bargain charge is tantamount to a valid re- quest for recognition and bargaining, citing Spring Arbor Dis- tribution Co., 312 NLRB 710, 712 (1993). The General Counsels assert that Local 247 made its bar- gaining demand after L.L.C. had hired a substantial and repre- sentative complement of its work force. By July 18, when Lo- cal 247 made its initial bargaining demand, L.L.C. had already announced the joint venture and invited Paving’s hourly em- ployees to fill out applications for the new company and con- tinued to employ nearly all of Pavings hourly workers including all five drivers who worked for L.L.C. on July 18. Thus L.L.C. employed a substantial and representative complement of Pav- ing’s Wixom drivers at the time of Local 247’s recognition and bargaining demand. This supports a finding of successorship. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 52 (1987). Thus L.L.C. has a duty to recognize and bargain with the in- cumbent union Local 247 as “the continuity of the workforce and continuity of the enterprise” are present. NLRB v. Burns Security Services, supra. The “continuity of the workforce” factor is satisfied because L.L.C. hired all five of Paving’s Wixom drivers, the entire complement of the appropriate col- lective-bargaining unit. The “continuity of the enterprise” test is satisfied because from the drivers’ perspective, they use the same facilities and equipment, report to the same supervisors, and perform the same job functions under L.L.C. as they did for Paving. Fall River Dyeing, supra at 33; Sierra Realty Corp., 317 NLRB 832, 835 (1995); Nephi Rubber Products Corp., 303 NLRB 151, 152 (1991), enfd. 976 F.2d 1361 (10 Cir. 1992); Premium Foods, Inc., 260 NLRB 708, 714 (1982), enfd. 709 F.2d 623 (9th Cir. 1983); Van Lear Equipment, Inc., 336 NLRB 1059, 1063–1064 (2001); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973); M.S. Management Associates, Inc., 325 NLRB 1154, 1155 (1998), enfd. 241 F.3d 207 (2d Cir. 2001). Levy and Old Castle entered into a transaction agreement creating L.L.C. on June 20, 2003. On July 2, MPMC nominally took charge of L.L.C. operations. However the Wixom Drivers continued to drive the same lowboy and prime trucks, to park them in the same locations, to be scheduled to work by the same area managers, and to report to the same foremen at job- sites. After L.L.C. representative Dennis Rickard formally announced the joint venture on July 7, nothing changed from the drivers’ perspective. The Teamsters drivers performed the same kinds of Paving jobs under the same working conditions and continued to serve the same public sector and private com- mercial customers. The transition from Paving to L.L.C. was invisible in July and seamless through the end of the 2003, paving season. The General Counsels further contend in brief that L.L.C. is a “perfectly clear” successor to Paving, and therefore bound by the terms and conditions set forth in Paving’s contract with Teamsters Local 247, because it offered job applications to all of Paving’s drivers and made it “perfectly clear” that it would hire all of them before informing them that L.L.C. would not honor the Teamsters’ terms and conditions of employment. L.L.C. offered job applications to all of Paving’s drivers at the July 7 meeting and on that day, the drivers completed and sub- CADILLAC ASPHALT PAVING CO. 21 mitted the applications. At no time during this meeting did L.L.C. agents mention changes in the Teamsters employees’ negotiated wages, benefits and other terms and conditions of employment. Consequently the drivers reasonably assumed their terms and conditions of employment, including their Teamsters status would remain the same. It was not until July 15, at which time the drivers had been working for L.L.C. for at least 8 days that L.L.C. advised that it would not recognize the Teamsters. By misleading the drivers into believing that there would be no change in their employment conditions prior to inviting them to apply and hiring them, L.L.C. forfeited its privilege as a Burns successor to set its own initial terms and conditions of employment. Instead L.L.C. was obligated to honor the terms and conditions set forth in Paving’s contract with Teamsters Local 247 until it bargained with Local 247 to change those terms and conditions or reached good-faith im- passe. The General Counsel also contends that under Advanced Stretchforming International, Inc., 323 NLRB 529, 530 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000), cert. de- nied 534 U.S. 948 (2001), L.L.C. also forfeited its rights to set initial terms and conditions of employment. The General Counsel contends alternatively that L.L.C. is the alter ego of Paving with a contractual duty to abide by Paving’s MRBA agreement. Paving and L.L.C. employed substantially identical management and supervision at the Wixom facility. Although L.L.C.’s upper-level managers came from MPMC, Levy’s coequal partnership status assured Levy the right to appoint one-half of L.L.C.’s board of directors. Commonality of ownership also obtains, by virtue of Levy’s 50 percent own- ership interest in L.L.C.. The business purpose, customers and operations of Paving and L.L.C. are also mutual. Paving’s Wixom facility, home to the Teamsters drivers, continued to be a fully functioning facility for L.L.C. employees during the 2003 season. The alter ego finding is justified by Paving’s and L.L.C.’s substantially identical operations and supervision, shared business purpose and premises, similar customers and equipment and overlapping ownership. By operation of law, L.L.C. is therefore bound as a party to Paving’s MRBA con- tract with Local 247. Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942); Howard Johnson Co. v. Detroit Local Joint Exec. Board, 417 U.S. 249, 259 fn. 5 (1974). The terms and conditions that L.L.C. was required to offer under the “per- fectly clear” Burns or Advanced Stretchforming rationales, and the contract to which L.L.C. is bound under the alter ego the- ory, is the 2003–2008 MRBA agreement. A participant in mul- tiemployer bargaining may only withdraw from the group if it gives timely, unequivocal, and written notice to the affected union. Retail Associates, Inc., 120 NLRB 388 (1958). The timelines requirement is met if the employer gives notice prior to the date on which negotiations are set to commence or actu- ally commence. NLRB v. Charles D. Bonanno Linen Service, Inc., 454 U.S. 404 (1982). In 1986, Paving signed an open- ended power of attorney designating the MRBA as its bargain- ing agent to negotiate and sign collective-bargaining agree- ments with Teamsters Joint Council 43, Local 247’s bargaining agent in dealings with the MRBA. The document has no expi- ration date. On April 28, 2003, Joint Counsel 43, led by Aloisio and the MRBA led by attorney Frank Mamat, opened negotiations on a new 5-year contract. A successor agreement for the term 2003–2008 was reached on June 13. Paving has never served any notice, let alone timely unequivocal, and writ- ten notice, that it wished to withdraw from multiemployer bar- gaining. Therefore Paving was bound by the 2003–2008 agreement that its bargaining agent, the MRBA, negotiated with Teamsters Joint Council 43. B. Respondents’ Position The Respondent L.L.C.’s counsels in their brief, which has been adopted by Paving, contend that counsels for the General Counsel have failed to meet their burden of establishing viola- tions of the Act. They contend that L.L.C. is not a single em- ployer, or an alter ego, as it is not managed by the same com- pany or individual as Paving. L.L.C.’s management structure has changed above the level of Wixom Division Manager El- liot. Until July 1, 2003, Paving’s operations were managed by Andy Schmidt, a Levy employee who supervised Elliot. Schmidt was not hired to manage L.L.C. L.L.C. hired only 6 out of 15 Levy management employees that had previously worked for Paving in Wixom. On July 1, 2003, Alan Sandell, a former Michigan Paving employee, was hired and began working as general manager for L.L.C. Sandell has operational responsibility over all five op- erating divisions of the L.L.C. Dan Stover, a regional manager, who also formerly worked at Michigan Paving, assists Sandell in operating the Wixom, Rawsonville, and Dix divisions. Richard Brillhart, another regional manager for L.L.C. assists Sandell with running the Clarkston and Whitmore Lake divi- sions. The division managers for all five operating divisions at L.L.C. report directly to Sandell, Stover, or Brillhart, not Schmidt. Elliot reports directly to Stover. Sandell reports to Dennis Rickard, the president of Michigan Paving, not a Paving or Levy employee. Rickard has ultimate authority over labor relations at L.L.C., although the vast majority of day-to-day decisions are made by Sandell. Although Michigan Paving and Levy each have two members on the L.L.C. board of directors, the board of directors has no control over L.L.C.’s labor rela- tions. Labor relations matters were previously handled by Schmidt or Levy’s human resources department. However L.L.C. does not have a human resources staff. Instead the divi- sion managers perform the human resources functions. L.L.C. has different employment policies than Paving. Corporate ownership is different. Paving was 100 percent owned by Levy and Levy had full operating control over Paving. Under the joint venture agreement Levy shares equity ownership of L.L.C. equally with Michigan Paving. Levy has no operating control over L.L.C. Instead, Michigan Paving has 100 percent control over all operating decisions with respect to its daily operations. Respondent cites First Class Maintenance Service, 289 NLRB 484 (1988) (finding no alter ego status where there was no substantially identical ownership, management, or su- pervision). Whereas Levy originally had 100 percent owner- ship and complete operational control over Paving, under the joint venture agreement it now has only 50 percent equity own- ership over L.L.C. and no operational contact. There is no common management or centralized control of labor relations in this case. Dennis Rickard and former Michigan Paving em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 ployee Sandell now manage operations of L.L.C., not any em- ployees from Paving or Levy. Although there is some dimin- ished common ownership, the total lack of labor relations or operational contact effectively neutralizes this factor. Although Division Manager Elliot and Area Managers Fred Aiken and Clyde Hatfield had worked for Paving in the same capacity and were hired by L.L.C., they are merely front-line supervisors and do not report to any Levy or Paving employees. Under L.L.C.’s management structure neither Levy or Paving exercise any operational control over L.L.C. or control its labor rela- tions. Respondent argues further that L.L.C.’s operations are now different. It argues that Michigan Paving owns several other paving operations in Michigan and that at these facilities, the spraying of the asphalt sealant coat is done by the laborers. The equipment operators both deliver equipment to, and oper- ate it on the worksite. L.L.C. does not have lowboy drivers transport equipment to and from the jobsite. The former low- boy drivers now perform responsibilities as operators. They drive equipment to the jobsite, operate the equipment, and drive the equipment from the jobsites. Since it was already in the middle of the paving season when L.L.C. took over, it was unable to adopt the Michigan Paving business model during the remainder of the 2003, paving season. However in the off- season L.L.C. acquired new equipment, such as lowboy trailers which allowed it to adopt the Michigan Paving business model for the 2004 paving season. Respondent also contends that there have been numerous changes in operational philosophy and corresponding changes in job duties at L.L.C. Respondent contends further that there is no evidence that L.L.C.’s forma- tion was motivated by union animus. L.L.C. has a relationship with the Laborers and Operators Unions and all construction employees are represented by these two unions and in July 2003, L.L.C. negotiated collective-bargaining agreements with the Laborers and Operators which run through 2008. Respondents cite their effort to retain the Teamsters as em- ployees and to ensure that they were accorded health insurance and did not suffer a loss in wages because of the switch from the Teamsters union to the Laborers or Operators unions. They also cite as significant that Teamsters employees Pierce and Taylor were permitted to continue to work at L.L.C. even though they refused to sign with the Laborers or Operators. Respondents contend that since L.L.C. is not a single em- ployer it is not an alter ego. Respondents argue further that L.L.C. is not a successor employer. They do not dispute that L.L.C. hired a majority of Paving’s construction employees but deny that L.L.C. is a Burns successor to Paving due to the op- erational changes that have taken place. Respondent cites Bor- der Steel Rolling Mills, Inc., 204 NLRB 814, 821 (1973), in which the Board held that the “critical question is not whether [L.L.C.] succeeded to [Paving’s] corporate identity or physical assets, but whether [L.L.C.] continued essentially the same operation, with substantially the same employee unit whose duly certified bargaining representative was entitled to statutory recognition at the time (L.L.C.) took over.” Respondent notes that in answering this question, the Board will examine: (1) whether there has been a substantial continuity of the same operations; (2) whether the new employer uses the same plant; (3) whether it has the same or substantially the same work force; (4) whether the same jobs exist under the same working conditions; (5) whether it employs the same supervisors; (6) whether it uses the same machinery, equipment, and methods of production; and (7) whether it manufactures the same product or offers the same services, citing Deferiet Paper Co. v. NLRB, 235 F.3d 581, 584 (D.C. Cir. 2000), stating that an alleged suc- cessor employer may demonstrate that a preexisting unit is no longer appropriate by showing significant revisions in plant operations and employee duties. Respondent argues that given the significant operational changes that took place, the Team- sters bargaining unit consisting solely of truckdriver employees is no longer appropriate. Respondent also contends that the General Counsel did not introduce a Board certification, or other evidence describing the Teamsters unit and that the only evidence produced on this issue was Aloisio’s testimony that the Teamsters represented “employees” at Paving for “proba- bly” 25 or 30 years. Respondent contends that it is thus unclear whether Paving ever recognized the Teamsters and, if so how and when the Teamsters unit was recognized, and what em- ployees should belong to the bargaining unit. Respondent con- tends that as of July 16, 2003, the truckdriver classification represented by the Teamsters was eliminated and ceased to exist. Since L.L.C. adopted the Michigan Paving business model, equipment operators, not lowboy truckdrivers, were responsible for transporting their own equipment to and from a jobsite. Instead, former lowboy drivers were reclassified as equipment operators and could spend a significant portion of their workday at the jobsite operating equipment such as grad- ers, pavers, and rollers, with the operators. This change in du- ties created an exact community of interest between the former lowboy drivers and operators since the employees worked side- by-side on a daily basis performing the same work. Similarly the distributor drivers did not solely or primarily drive a truck. Both Pierce and Raymo testified that driving a distributor truck did not take up an entire workday and they spent the rest of the workday performing other tasks alongside the laborers such as shoveling and raking asphalt. They were thus working out of their classification and were working within the laborers bar- gaining unit. Thus the former Teamsters represented employ- ees no longer constituted an appropriate bargaining unit. The former bargaining unit is no longer appropriate because of “changed circumstances” arising from a shift in ownership or change in business operations, citing Border Steel Rolling Mills, Inc., supra at 820–822. L.L.C. is not a Burns successor. Respondent argues further that even if L.L.C. is found to be a Burns successor, it still has the right to establish initial terms and conditions of employment for the Teamsters employees, citing Fall River Dyeing Corp. v. NLRB, supra. Respondent argues further that L.L.C. did not forfeit its right to establish initial terms and conditions of employment as it has not committed any unfair labor practices. Neither the Spruce Up nor the “perfectly clear” exceptions to Burns apply. The Teamsters employees began working for L.L.C. on July 16, 2003. Employees were issued paychecks by Paving until July 15, 2003. Thereafter they received checks from L.L.C. On July 11, 2003, Sandell informed all Teamsters members, that upon working for L.L.C., they would be subject to new terms and conditions of employment. Pierce contends that he is “rela- CADILLAC ASPHALT PAVING CO. 23 tively sure” that Sandell did not meet with the Teamsters mem- bers to discuss their further terms and conditions of employ- ment until July 15, 2003. Sandell testified he is “quite positive” the meeting took place on July 11, 2003. Elliot corroborated Sandell’s testimony, while Raymo could not recall the specific date of the meeting. Regardless of whether the meeting oc- curred on July 11 or 15, 2003, Pierce and Raymo both under- stood, prior to starting work on July 16, 2003, that the Team- sters employees would be subject to terms and conditions of employment including wages and benefits based on the Opera- tors or Laborers agreements with L.L.C. Elliot testified he never told any truckdrivers, they would have their Teamsters benefits once they became employed by L.L.C. Since L.L.C. advised Teamsters employees, prior to taking over on July 16, 2003, that it was going to establish new terms and conditions of employment, it did not forfeit its right under Burns to set initial terms and conditions of employment in the event it is found to be a successor of Paving, citing Planned Building Services, Inc., 318 NLRB 1049 (1995) (employer properly established initial terms and conditions of employment because it made lawful Spruce Up announcement). Pierce testified that prior to July 11, 2003, Aiken assured him that he and the other employ- ees would remain Teamsters for at least the 2003 paving sea- son. The Board has refused to bind an employer to erroneous comments made to employees about their future working con- ditions where it subsequently advised them prior to their hire of their actual terms and conditions of employment citing Bekins Moving & Storage Co., L.L.C., 330 NLRB 761, 763 (2000). Since L.L.C. advised Teamsters employees, prior to taking over on July 16, 2003, that it was going to establish new terms and conditions of employment, it did not forfeit its right under Burns to set initial terms and conditions of employment in the event it is found to be a successor to Paving. Bekins Moving & Storage, supra; Planned Building Services, supra. Respondent contends that there is no collective-bargaining agreement for L.L.C. to assume. L.L.C. is not bound by the Roadbuilders agreement signed by the Teamsters since it never signed the agreement, authorized anyone to sign it on its behalf, or assumed the contractual obligations, citing Howard Johnson Co. v. Detroit Local Joint Exec. Board, supra. L.L.C. never assumed the Roadbuilders agreement. The current Roadbuild- ers agreement does not contain a successor clause binding L.L.C. to the contract terms. Respondent is not bound to the Roadbuilders agreement by a “power of attorney” that Paving purportedly submitted to the Roadbuilders in 1986. Counsel for the General Counsel failed to call any witness at the hearing (even though the Roadbuilders keeper of records was subpoe- naed to appear) to authenticate the power of attorney, or ensure that other documentation did not exist, which modified, or withdrew the power of attorney. Aloisio and Pierce both testi- fied they had never previously seen the power of attorney. There is no competent evidence to bind L.L.C. to the current Roadbuilders contract with the Teamsters. Alternatively even if L.L.C. is bound by the Teamsters/Roadbuilders contract the earliest it was bound to start following the contract was spring 2004, when the Teamsters finally ratified the agreement. IV. ANALYSIS I find that L.L.C. is a single employer under the Act. In the event that the Board does not agree with this finding, I find in the alternative that L.L.C. is an alter ego under the Act. In the event the Board does not agree with this alternative finding, I find in the alternative that L.L.C. is a Burns’ successor of Pav- ing. I find that the cases cited by the General Counsel in brief are supportive of these findings. In the instant case the Team- sters Local 247 has represented the unit of drivers at Paving for over 25 years and has negotiated contracts through the repre- sentation of Council 43 of the Teamsters with the Michigan Road Builders Association (MRBA) which organization has represented the Respondent Paving. I find the evidence sup- ports a finding that L.L.C. hired the five drivers in the Team- sters unit on July 7, 2003, at the meeting of all 50 plus Paving employees when L.L.C.’s President Rickard informed all of its employees in the three bargaining units (Teamsters, Operators, and Laborers) of the joint venture and that it was effective on July 16, 2003. At that meeting MPMC’s safety director, Marlene Van Patton gave out applications to all the employees and told them to disregard filling out the work history and ex- perience sections of the applications, indicating that the appli- cations were being solicited for payroll purposes. At this time there was no mention of any withdrawal of recognition from the Teamsters for the truckdrivers. The truckdrivers continued to perform their normal work duties day-after-day thereafter making it “perfectly clear” that the five truckdrivers had been hired at the original meeting of July 7, 2003, by Rickard who addressed them. Thus, once hired without any reservations the bargaining unit was intact and Teamsters Local 247 remained as the collective-bargaining representative of the truckdrivers unit. It was not until July 15, 2003, that Respondent’s Manager Sandell announced to the drivers that it was withdrawing rec- ognition from the Teamsters Local 247. However by this time L.L.C. had already employed the five drivers and L.L.C. had an obligation to recognize and bargain with Local 247. Its with- drawal of recognition and subsequent refusals to bargain were violative of Section 8(a)(5) and (1) of the Act. It is also clear that the July 15, 2003 statement by Rod Elliot to the Teamsters employees that they could not continue to work as Teamsters but would be required to join either the Laborers or Operators Unions was coercive and violative of Section 8(a)(1) of the Act. I credit the testimony of Pierce and Raymo that the employ- ees were told they would have to join either the Laborers or Operators Unions if they wanted to continue working. These statements had a coercive effect as two of the lowboy drivers joined the operators union and driver Raymo left his employ- ment “took the layoff” under these coercive conditions. Thus Raymo was constructively discharged by Respondent as he feared he would lose the benefits of the Teamsters health insur- ance for his wife who was facing major surgery. This ultima- tum by Respondent left Raymo with a Hobson’s choice of ei- ther joining the Laborer’s union or taking a layoff, which cul- minated in Raymo’s constructive discharge. I find no merit to Respondent’s defense of this allegation that it did not use the exact verbiage of telling the employees to join the Operators or Laborers Unions or they would be fired. I find Respondent delivered the message in sufficiently specific terms that they DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 must join one of these unions if they wished to continue work- ing as Respondent’s employees. I find no merit to Respon- dent’s defense that it did not present the drivers with the Hobson’s choice. Nor do I find any merit to its contention, that since it did not discharge the other two prime drivers Pierce and Taylor that this obviates the threat issued to these employees. By its constructive discharge of Raymo, Respondent violated Section 8(a)(1) and (3) of the Act. I find the Respondents Paving and L.L.C. violated Section 8(a)(1) and (2) of the Act by rendering assistance and support to the Laborers and Operators Unions by ceasing to deduct Teamsters union dues and health and welfare and pension con- tributions from the drivers’ wages and remitting them to the Teamsters funds and by withholding moneys from the drivers’ wages and remitting them to the Laborers and Operators Un- ions. These actions were carried out in spite of the fact that the drivers had authorized dues deductions and health and welfare and pension deductions to be remitted to the Teamsters Union and in spite of the fact that the drivers had not authorized the deduction of any moneys from their wages to be remitted to the Laborers and Operators Unions. Furthermore the threats issued to the drivers that they either join the Laborers or Operators Unions or face layoff violated not only Section 8(a)(1) as unlawful threats to the exercise of their Section 7 rights under the Act but also violated Section 8(a)(2) of the Act as they con- stituted unlawful assistance to the Operators and Laborers. The actual cessation of deductions on behalf of the Team- sters and the implementation of the deductions from the drivers wages and remittance to the Laborers and Operators violated Section 8(a)(1), (2), (3), and (5) of the Act. The direct dealing of Sandlin with the employees in offering to obtain insurance coverage of the L.L.C. policies for them violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. At all material times until about June 20, 2003, Respon- dent Cadillac Asphalt Paving Company (Paving) was an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. About June 20, 2003, Respondent Paving created Respon- dent Cadillac Asphalt, L.L.C. (L.L.C.), a limited liability com- pany as a disguised continuance of Paving. Respondents are, and have been at all material times, alter egos and a single em- ployer within the meaning of the Act. Since about June 30, 2003, Respondent L.L.C. has continued to operate the business of Respondent Paving in basically unchanged form, and has employed as a majority of its employees, individuals who were previously employees of Paving. Respondent L.L.C. has con- tinued the employing entity and is a successor to Respondent Paving, and has been an employer within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 3. At all material times herein, Charging Party Local 247, In- ternational Brotherhood of Teamsters, AFL–CIO, Michigan Laborers District Council, Laborers International Union of North America, AFL–CIO, and Local 324, International Union of Operating Engineers, AFL–CIO have each been labor or- ganizations within the meaning of Section 2(5) of the Act. 4. All full-time and part-time drivers employed by Respon- dent Paving and later by L.L.C. at or out of their Novi, Michi- gan facility, but excluding all office clerical employees, guards and supervisors as defined in the Act, and employees already represented by other labor organizations, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since 1973, the Charging Party Local 247 of the Teamsters Union was the exclusive collective-bargaining representative of the unit employed by Respondent Paving. 6. About July and August 2003, Respondents by their agents Rod Elliot and Fred Aiken, at the Novi facility violated Section 8(a)(1) and (2) of the Act by threatening employees with layoff unless they transferred their union membership from the Charg- ing Party Teamsters Union to either the Laborers or Operating Engineers. 7. Since about July 2003, Respondents, by their agents Rod Elliot and Fred Aiken, at the Novi facility violated Section 8(a)(1) and (2) of the Act by rendering assistance and support to the Laborers and Operating Engineers by: (a) Urging unit employees to sign checkoff authorizations for said labor organizations. (b) Deducting money from unit employees’ wages and remit- ting it to the Laborers and Operating Engineers, notwithstand- ing the absence of employee authorizations for such deductions and remittance and notwithstanding that neither the Laborers or the Operating Engineers is the lawfully recognized exclusive collective-bargaining representative of the unit. 8. About July 18, 2003, Respondents, by their agents, Rod Elliot and Fred Aiken, violated Section 8(a)(1) and (2) of the Act by telling unit employee Patrick F. Raymo that he must transfer his union membership from the Teamsters Union to keep his job. 9. On July 21, 2003, Respondents constructively discharged their unit employee Patrick F. Raymo, in violation of Section 8(a)(1) and (3) of the Act. 10. Respondents violated Section 8(a)(1), (5), and 8(d) of the Act by failing to continue in effect all of the terms and con- ditions of the labor agreement by discontinuing dues deduc- tions, health and welfare and pension contributions on behalf of unit employees. 11. Respondents violated Section 8(a)(1) and (5) of the Act by bypassing Local 247 of the Teamsters Union and dealing directly with their unit employees by offering to provide alter- native health insurance coverage. 12. Respondents violated Section 8(a)(1) and (5) of the Act by since about June 30, 2003, failing and refusing to recognize the Local 247 as the exclusive collective-bargaining representa- tive of the unit and by refusing to bargain with the Teamsters Union. 13. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents violated the Act, they shall be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. CADILLAC ASPHALT PAVING CO. 25 Respondents shall be ordered to recognize and bargain with Teamsters Local 247, and cease the unauthorized deductions of moneys from the drivers wages and remittance of said moneys to either the Laborers or the Operators Unions and to immedi- ately reinstate the deductions from the drivers wages, and remit to Local 247 the dues and pension and health insurance contri- butions authorized to be made to Local 247. Respondents shall make the drivers whole for the moneys unlawfully deducted from their wages and shall make Local 247 and the Teamsters funds and the drivers whole for Respondent’s failure to make the authorized deductions for dues and the pension and health insurance funds and to remit them to the Teamsters funds. I find that the General Counsel has not authenticated the power of attorney which the General Counsel contends bound the Respondents to the 2003–2008 labor agreement. I accord- ingly shall issue the bargaining order for the period commenc- ing as of June 30, 2003, forward. Respondent having discriminated by discharging Patrick F. Raymo, shall be ordered to offer him reinstatement to his for- mer position, or if his former position no longer exists, to a substantially equivalent position and make him whole for any loss of earnings and benefits he sustained as a result of the unlawful discrimination against him less any net interim earn- ings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). All amounts for unlawful deductions made from the drivers’ wages and amounts unlawfully withheld by Respon- dents and all amounts for Raymo’s backpay and benefits, shall be with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]