Diverse Steel, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 90 946 Diverse Steel, Inc. and Pinnacle Steel, Inc., alter egos and International Association of Bridge, Struc- tural, Ornamental, and Reinforcing Iron Work- ers Local 321, AFL–CIO. Case 26–CA–20799 April 30, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On March 21, 2003, Administrative Law Judge Marga- ret G. Brakebusch issued the attached decision. The Re- spondents filed exceptions and a supporting brief. The General Counsel and the Union each filed cross- exceptions, supporting briefs, and answering briefs to the Respondents’ exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.2 The judge found, and we agree, that Respondent Pin- nacle Steel was an alter ego of Respondent Diverse Steel, and that these Respondents violated Section 8(a)(5) and (1) when Pinnacle failed to apply the terms of Diverse’s collective-bargaining agreement to its ironwork employ- ees.3 In finding that Pinnacle and Diverse were alter egos, the judge concluded that “Pinnacle ultimately be- came the means by which Diverse could [] continue to do business without the limitations and expenses of the Un- ion contract” and that “since May 2002, Pinnacle has functioned as a disguised continuance of Diverse.” We agree with those findings. The judge, however, failed to also find that Pinnacle was created for the purpose of evading the Union. Contrary to the judge, we find that the record supports a finding that one of the reasons for 1 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 preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We shall modify the judge’s recommended Order to include in- statement and make-whole relief for those employees who would have been referred from the Union’s hiring hall to the Respondents for em- ployment were it not for the Respondents’ unlawful conduct. We shall also include the appropriate remedial language for the violations found. We shall substitute a new notice to conform to the language of the Order. 3 We also agree with the judge that the Respondents did not violate Sec. 8(a)(3) and (1) by refusing to recall Diverse’s employees to work on the Rave 18 Theater Project. forming Pinnacle was to avoid Diverse’s contractual and statutory obligations under the Act. The Board generally will find alter ego status where two entities have substantially identical management, business purposes, operations, equipment, customers, supervision, and ownership.4 Not all of these indicia need be present, and no one of them is a prerequisite to an alter ego finding.5 Although unlawful motivation is not a necessary element of an alter ego finding, the Board also considers whether the purpose behind the creation of the alleged alter ego was to evade responsibilities under the Act.6 Where there is evidence that the second com- pany was formed to take over the business of the first— in order to reduce its labor costs by repudiating the un- ion’s collective-bargaining agreement—the Board has found that the second company was formed with the unlawful motive of avoiding the first company’s respon- sibilities under the Act. Midwest Precision Heating & Cooling, Inc., supra, 341 NLRB at 439. Here, the relevant facts are that Troy Noe, his wife Gwen Noe, and Gwen Noe’s mother, Joan Drilling, in- corporated Diverse Steel in May of 1997 to perform structural steel erection, rebar installation, rigging, and machinery moving work. At all times relevant, Diverse was a member of the association of steel erector employ- ers and signatory to the Union’s collective-bargaining agreement. In February 1998, Pinnacle Steel was incor- porated by Gwen Noe and her father, John Drilling, to perform the same type of work as Diverse. After Pinna- cle began operations, Diverse ceased operations. Pinna- cle has never recognized any union as representative of its employees. On August 30, 2001, Gwen Noe docu- mented her resignation as a corporate officer of Diverse with the State of Arkansas. In November 2001, Pinnacle began work within the Union’s jurisdiction. The judge correctly found that Diverse and Pinnacle shared substantially identical ownership, business pur- 4 Cadillac Asphalt Paving Co., 349 NLRB No. 5, slip op. at 3 (2007); Advance Electric, 268 NLRB 1001, 1002 (1984); Crawford Door Sales Co., 226 NLRB 1144 (1976). 5 Cadillac Asphalt, supra, slip op. at 3. 6 Cadillac Asphalt, supra, slip op. at 3; Midwest Precision Heating & Cooling, Inc., 341 NLRB 435, 439 (2004), enfd. 408 F.3d 450 (8th Cir. 2005); 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). Chairman Battista adheres to his position that the General Counsel must show, among other things, an intent to avoid legal obligations under the Act in order to prove alter ego status. See Crossroads Elec- tric, Inc., 343 NLRB 1502 fn. 2 (2004), enfd. 178 Fed. Appx. 528 (6th Cir. 2006). However, in light of the evidence of improper motive here, discussed infra, Chairman Battista finds it unnecessary to address whether a finding of alter ego status would be warranted in the absence of unlawful motive. DIVERSE STEEL, INC. 947 poses, operations, equipment, customers, supervision, and management. However, the judge also found that there was insufficient evidence to conclude that Pinnacle was specifically created with the intention to avoid Di- verse’s contractual obligations. Contrary to the judge, we find that there is sufficient evidence to establish that Pinnacle was formed in part in order to avoid Diverse’s contractual and statutory obligations under the Act. The record shows that Gwen Noe stated that she wanted to resign from Diverse because she felt her hus- band, Troy Noe, did not get his “money’s worth” from the Union. Union secretary Doris Mae Eoff testified that Gwen Noe told her that, according to Diverse’s account- ant, Diverse would be better off if it went nonunion. The chairman of Arkansas Best Contractors’ Association, Boyd Sanders, stated that, during a meeting with Troy Noe to discuss negotiations with the Union, Noe stated, “Well, this is all I can do and if I can’t get a contract for this, I’ll just have to open shop.” In addition to those three statements, all of which the judge credited, Gwen Noe testified that: (1) one of the reasons she formed Pin- nacle was because she wanted Diverse to go nonunion and that she urged Troy Noe to follow this advice; (2) her concern was “mainly a financial issue”; and (3) her accountants (and others) advised her to get Troy Noe to leave the Union because the benefits required under the collective-bargaining agreement were too costly. Troy Noe testified that, to ensure Pinnacle did not become unionized, Gwen Noe consulted with him before making hiring decisions in order to determine whether he knew a particular applicant from his previous involvement in organizing and “salting” jobs for the Union. Troy Noe further testified that Pinnacle employed Diverse’s unit employees on the Rave 18 Theatre Project, and did not pay them benefits required under Diverse’s collective- bargaining agreement. Considered as a whole, the foregoing evidence estab- lishes that Pinnacle was formed in an attempt to evade Diverse’s responsibilities under the Act, because the Re- spondent felt that Diverse’s labor costs were too great. Thus, in addition to the reasons cited by the judge for finding Diverse and Pinnacle to be alter egos, we find that the formation of Pinnacle in order to avoid Diverse’s responsibilities under the Act further supports an alter ego finding. See Midwest Precision Heating & Cooling, Inc., supra at 439.7 7 In finding an unlawful motive, Chairman Battista notes that there is a distinction between the economic motive of seeking to avoid per- ceived high labor costs and the antiunion motive of seeking to avoid the union. Where, as here, the labor costs are embodied in a contract with the union, the distinction is sometimes not clear. In the instant case, the Respondent did not go to the Union in an effort to seek to reduce labor ORDER The Respondents, Diverse Steel, Inc. and Pinnacle Steel, Inc., Roland and Little Rock, Arkansas, their offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain col- lectively with the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 321, AFL–CIO, in an appropriate unit of Iron- workers, by refusing to apply the terms and conditions of its collective-bargaining agreement, including wage rates and fringe benefit fund contributions to the employees and by abrogating the agreement. (b) 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) Within 14 days of the date of this Order, offer full and immediate employment to those work applicants who would have been referred to the Respondents for employment through the Union’s hiring hall were it not for the Respondents’ unlawful conduct. (b) Make whole those work applicants who would have been referred to the Respondents for employment through the Union’s hiring hall for any loss of earnings and other benefits they may have suffered by reason of the Respondents’ failure to hire them, in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). (c) Honor and abide by the terms and conditions of its executed collective-bargaining agreement with the Union since May 2002, and make whole its employees repre- sented by the Union for any loss of pay and other bene- fits suffered as a result of Respondents’ refusal to apply the collective-bargaining agreement to all unit employ- ees. Backpay shall be computed as set forth in Ogle Pro- tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as computed in New Horizons for the Retarded, supra. (d) Pay all contractually required fringe benefit fund contributions not previously paid, in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 (1979). In addition, make all unit employees whole for any expenses resulting from the failure to make such contributions, with interest, as set forth in Kraft Plumb- costs. Rather, the Respondent used a ploy to get rid of the Union by artificially creating a new company to replace the old one. In these circumstances, Chairman Battista agrees that the Respondent acted with an unlawful antiunion motive. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948 ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay and benefit contributions due under terms of this Order. (f) Within 14 days after service by the Region, post at their place of business and at each of their jobsites copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondents’ au- thorized representative, shall be posted by the Respon- dents and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondents have gone out of business or closed the facility involved in these proceedings, the Respondents shall duplicate and mail, at their own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since May 2002. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondents have taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 8 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.” FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail or refuse to recognize and bargain collectively with the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 321, AFL–CIO, in an appropriate unit of Iron- workers, by refusing to apply the terms and conditions of our collective-bargaining agreement, including wage rates and fringe benefit fund contributions, to the em- ployees and by abrogating the agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer full and immediate employment to those work applicants who would have been referred to us for employment through the Union’s hiring hall were it not for our unlawful conduct. WE WILL make those work applicants who would have been referred to us for employment through the Union’s hiring hall whole for any loss of earnings and other bene- fits they may have suffered by reason of our failure to hire them, plus interest. WE WILL honor and abide by the terms and conditions of our collective-bargaining agreement with the Union since May 2002 and WE WILL make whole our employees for any loss of pay and other benefits suffered as a result of our refusal to apply the collective-bargaining agree- ment to unit employees and to unit work, plus interest. WE WILL pay all contractually required fringe benefit fund contributions not previously paid and make whole unit employees for any expenses resulting from our fail- ure to make such contributions, plus interest. DIVERSE STEEL, INC. AND PINNACLE STEEL, INC., ALTER EGOS Rosalind Eddins, Esq., for the General Counsel. Oscar E. Davis Jr., Esq., for the Respondent. James E. Nickels, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MARGARET G. BRAKEBUSCH, Administrative Law Judge. The charge was filed by the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers DIVERSE STEEL, INC. 949 Local 321, AFL–CIO (Union) on July 9, 2002.1 An amended charge was filed by the Union on October 30, 2002, and the complaint issued on October 31, 2002. An amendment to com- plaint and notice of hearing issued on February 7, 2003. The complaint alleges that about May 2002 Pinnacle Steel, Inc. (Pinnacle) was resurrected by Diverse Steel, Inc. (Diverse) as a substitute instrument to and a disguised continuation of Di- verse. The complaint alleges that Pinnacle and Diverse (Re- spondent) are, and have been at all material times, alter egos and a single employer within the meaning of the National La- bor Relations Act (the Act). The complaint further alleges that Respondent withdrew its recognition of the Union as the exclu- sive collective-bargaining representative of certain employees of Respondent and has since refused to recognize or bargain with the Union. The complaint also alleges that Respondent refused to recall any of the unit employees to work on the Rave 18 Theater Project in Little Rock, Arkansas, because its em- ployees joined and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. I heard this matter in Little Rock, Arkansas, on February 13 and 14, 2003. The General Counsel, the Union, and the Re- spondent filed briefs, which I have considered. On the entire record, including my observation of the demeanor of the wit- nesses, and after considering the briefs, I find that Respondent engaged in certain conduct in violation of Section 8(a)(5) and (1) of the Act. FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in the building and construction industry performing structural steel erection in central Arkansas at its facility in Roland, Arkansas. Respon- dent stipulated that during a relevant 12-month period Diverse and Pinnacle have provided services to general contractors within the State of Arkansas who have met the Board’s juris- dictional standards by their purchases and services provided outside the State of Arkansas. Based on the stipulation and there being no evidence to the contrary, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Issues The threshold issue in this case is whether Pinnacle and Di- verse have been alter egos and/or single employers within the meaning of the Act. Once General Counsel has established the existence of an alter ego or single employer, the issue then becomes the extent to which Pinnacle is liable for Diverse’s contractual obligations and Diverse’s unfair labor practices under the Act. General Counsel also alleges that Diverse and Pinnacle have violated Section 8(a)(3) and (1) of the Act by refusing to recall any of the unit employees of Diverse to work on the Rave 18 project performed by Pinnacle. General Coun- sel submits that Respondent failed to recall these employees 1 All dates are in 2002 unless otherwise indicated. because they joined and assisted the Union and because they engaged in concerted activities. B. Background In January 1994, Troy Noe formed Central Arkansas ReBar, Inc. (ReBar), a company specializing in the reinforcement of steel within concrete structures. Troy Noe was the president and sole stockholder and his wife, Gwen Noe, was the corpora- tion’s secretary/treasurer. In May 1997, Troy Noe, Gwen Noe, and Gwen Noe’s mother; Joan Drilling, incorporated Diverse Steel, Inc. to do structural steel erection, rebar installation, rig- ging, and machinery moving. Noe testified that he discontin- ued the work of ReBar with Diverse Steel Inc. (Diverse) being more of a change in name and the addition of structural steel work. Troy Noe is the sole owner of all Diverse stock. Not only has his name appeared on Diverse’s corporate tax return, but he applied for, and met the State’s requirements for Di- verse’s yearly renewal of its contracting license. Noe has had a relationship with the Union since 1982 or 1983. He became an apprentice instructor for the Union in 1990 or 1991 and continued to teach until 2000. The record is without dispute that Diverse was a member of the association of steel erector employers. The most recent contract between the Union and the Arkansas Best Contractors and the Arkansas Commercial and Industrial Builders and Steel Erectors Associa- tion covered the period from May 1, 2001, to May 1, 2003. The agreement provided that the Union will refer all employees and wage rates and fringe benefits will be paid consistent with the collective-bargaining agreement. The agreement was signed by Thomas Marsh for the Union. Boyd Sanders; chairman of the Arkansas Best Contractors, and Troy Noe; chairman of the Arkansas Commercial and Industrial Builders and Steel Erec- tors Association, signed the agreement on behalf of the em- ployers. Noe estimated that as an employer he has been delinquent in paying health and welfare contributions since at least 1992 or 1993. On March 15, 2002, the Trustees of the Iron Workers of Saint Louis District Council Annuity Trust, Trustees of the Iron Workers Saint Louis District Council Pension Fund Trust and Trustees of the Iron Workers Saint Louis District Council Wel- fare Plan filed suit against both Rebar and Diverse for failure to pay the requisite and past due benefit contributions. C. The Formation of Pinnacle Steel, Inc. Gwen Noe testified that while she had initially been a full partner with her husband and a corporate officer in Diverse she ceased to be a corporate officer in December 1997. She ex- plained that elections were held for office in 1997 and she asked that she not be considered for office. Neither Gwen Noe nor Troy Noe identified any other individuals who ever served or sought to be Diverse corporate officers other than the three original incorporating officers. Gwen Noe acknowledged, however, that here she did not document her resignation as corporate officer with the State of Arkansas until August 30, 2001. Respondent submitted into evidence a letter dated Au- gust 30, 2001, that was signed by Joan Drilling. The letter, addressed to Diverse, confirmed Drilling’s resignation as an officer of Diverse and acknowledged her understanding that she DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950 forfeited all her rights to any profits or stock in Diverse.2 Gwen Noe testified that she resigned her office with Diverse because her husband wanted to bid on jobs that she thought were too big for the Company. She added that she also felt that he was not getting his “money’s worth” from his relationship with the Union. Despite having resigned her office, she has continued to do Diverse’s bookkeeping and to maintain its payroll re- cords. She has authority to sign for certification of payment to contractors with whom Diverse does business. Noe also admit- ted that prior to the benefit funds’ lawsuit in 2002 she spoke with the funds’ attorney about working out a payment plan for Diverse to repay the deficit benefit funds. Pinnacle Steel, Inc. (Pinnacle) was incorporated in February 1998. Gwen Noe testified that she is president of Pinnacle and that she and her father; John Drilling, are the sole owners of Pinnacle. There is no dispute that since its inception Pinnacle has not recognized the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers Local 321, AFL–CIO or any other union as representative of its em- ployees. Pinnacle’s articles of incorporation list Gwen Noe, John Drilling, and Joseph Jackson as the Company’s incorpora- tors. Troy Noe testified that Jackson first came to work for Diverse in 1997 and that Noe took him “under his wing.” Gwen Noe described Jackson as a friend who showed an inter- est in the business but “didn’t have anything financially to bring to the company.” Pinnacle filed an application form for Certificate of Authority for the State of Louisiana in August 1998 and filed for Louisiana contracting licenses in 2000 and 2001. To date, Pinnacle has never performed any work in the State of Louisiana. Gwen Noe testified that initially Pinnacle did not intend to perform work in Arkansas and it was not until approximately 1999 that Pinnacle obtained a contracting license to work in the State of Arkansas. Pinnacle performed two jobs in 1998 and one 2-month job in 1999. In 2000, Pinnacle per- formed one job that lasted for 2 days and three additional jobs that were each completed in 1 day. The Company’s records reflect that no work was performed during 2001. Gwen Noe testified that the Company was not able to take any jobs for a period of a year and a half because Joe Jackson had not wanted to travel. During the interim, however, he continued to work for Diverse. Gwen Noe testified that she takes care of the day-to-day management of Pinnacle. Her father lives in Russellvill, Arkan- sas; approximately 75 miles away from the Company’s head- quarters. She testified that Troy Noe has no ownership in Pin- nacle and that he only functions in a supervisory/consultative role. D. Pinnacle Begins Working in the Little Rock Area and Di- verse Ceases to do Work Prior to 2002, Pinnacle performed all jobs outside Little Rock, Arkansas, and outside the Union’s jurisdiction. In No- vember 2001, Pinnacle entered into a contract with East- Harding General Contractors to perform work on what was identified as the Cantrell West project in Little Rock, Arkansas, and within the Union’s jurisdiction. The subcontract from the 2 Drilling was not presented to testify in the hearing. general contractor was written specifically to the attention of Troy Noe. Noe admitted that after Pinnacle bid for the job, East-Harding’s estimator called him and discussed the job. Noe testified that Joe Jackson was scheduled to leave a Diverse job and take over the supervision of the West Cantrell project. Both Gwen Noe and Troy Noe testified that approximately a month before the West Cantrell job was to begin, Jackson left Diverse and informed Pinnacle that he could not do the West Cantrell job. Gwen Noe testified that when she went to Troy Noe and asked him what she should do he suggested that Pin- nacle subcontract the work to Diverse. With Diverse as the subcontractor, Pinnacle completed the project between Febru- ary and May 2002. This was the last job performed by Diverse and the last time that Diverse utilized the Union to obtain em- ployees. On April 23, 2002, Diverse submitted a proposal to General Contractor Vratsinas Construction Company (VCC) to perform work on the Rave 18 Theatre Project in Little Rock. Diverse was awarded the contract and the project began on May 30, 2002. Diverse began unloading the trucks on the jobsite on June 3. Noe testified that after Diverse was awarded the Rave 18 work he received notice of the premium amount due for worker’s compensation coverage, which was more than he was able to pay. He testified that he went to the general contractor and explained that he could not do the job because he did not have the requisite insurance coverage. Noe told VCC that the only way that he could do the job was if Pinnacle had the con- tract. Noe recalled that the general contractor assured him that the agreement had been with Noe and that the VCC didn’t care whether Diverse or Pinnacle was the subcontractor. Pinnacle submitted a proposal dated June 3. Pinnacle’s proposal mir- rored3 that which had been earlier submitted by Diverse with two exceptions; Pinnacle’s cost exceeded Diverse’s by $69,370 and Pinnacle’s proposal did not include a requirement to pay the prevailing wage rate. Pinnacle was awarded the contract and performed the work from June 2 until November 20, 2002. Troy Noe supervised the work as superintendent for Pinnacle. E. The Formation of Wildcat Crane and Rigging In July 2001, Wildcat Crane and Rigging Inc. (Wildcat) was incorporated in the State of Arkansas. Gwen Noe testified that the company is solely owned by her and her father, John Drill- ing. Noe acknowledged that while her husband is not involved with the company, he recommended that she start the company. Wildcat is an equipment rental company that primarily rents equipment to Diverse and Pinnacle. Gwen Noe recalled only two occasions when equipment had been rented to anyone other than Diverse or Pinnacle4 and the rentals involved equipment other than the skycap or crane. The record reflected that the major pieces of equipment used in the steel erection process are the skytrack, crane, and welder. Gwen Noe admitted that only Diverse and Pinnacle have rented the skytrack and crane from Wildcat. The equipment now owned by Wildcat was acquired from Diverse and Troy Noe. Either Gwen Noe or Troy Noe 3 The two proposals contained almost identical spacing, formatting, font size, and wording. 4 There had been no charge for one of the rentals. DIVERSE STEEL, INC. 951 initially purchased the equipment using their own personal credit. While Wildcat did not purchase the equipment from Diverse, Wildcat rents the equipment to Diverse for less than market value. Pinnacle also rents the equipment for less than market value. Troy Noe testified that Diverse ceased to own this equipment when Wildcat was created.5 He testified that he had not wanted the equipment or the vehicles to be in his name for purposes of liability and that Wildcat had been created to shield him from personal liability. He acknowledged, however, that in February 2002 a statement confirming ownership and insurance was submitted by Diverse to the Bank of the Ozarks and he admit- ted that he used the Wildcat equipment in an attempt to secure a loan for Diverse. The record contains documentation of current liability insur- ance coverage for five separate vehicles. The insured is shown to be Troy Noe of Wildcat Crane and Rigging. Pinnacle is shown as additionally insured on these policies. The coverage related to four of the vehicles specifies the listed drivers as Troy Noe, Joseph Jackson, and Gwen Noe. III. FACTUAL AND LEGAL CONCLUSIONS A. Whether Pinnacle and Diverse are Single Employers and/or Alter Egos General Counsel submits that Pinnacle is a disguised con- tinuation of Diverse and the two entities have held themselves out to the public as a single-integrated business enterprise, such that they are alter egos and a single employer. General Counsel alleges that Diverse and Pinnacle have been affiliated business enterprises with common officers, ownership, directors, man- agement, and supervision; have formulated and administered a common labor policy; have shared common premises and fa- cilities; have provided services for and made sales to each other; and have interchanged personnel with each other. The Board and the courts have applied the alter ego doctrine in those situations where one employer entity will be regarded as a continuation of a predecessor, and the two will be treated interchangeably for purposes of applying labor laws. The most obvious example occurs when the second entity is created by the owners of the first for the purpose of evading labor law responsibilities; but identity of ownership, management, super- vision, business purpose, operation, customers, equipment, and work force are also relevant in determining alter ego status. See Fallon-Williams, Inc., 336 NLRB 602 (2001), C.E.K. In- dustries Mechanical Contractors v. NLRB, 921 F.2d 350, 354 (1st Cir. 1990). While the Board considers whether one entity was created in an attempt to enable another to avoid its obliga- tions under the Act, the Board has consistently held that such a motive is not necessary for finding alter ego status. Crawford Door Sales Co., 226 NLRB 1144 (1976). In looking at the various factors shared by the entities, the Board has noted that no one factor is controlling or determinative. NLRB v. Wel- come-American Fertilizer Co., 443 F.2d 19, 21 (9th Cir. 1971). The existence of such status ultimately depends on “all circum- stances of the case” and is characterized as an absence of an 5 He acknowledged, however, that he routinely changes the oil in the welding machines now owned by Wildcat. “arms’ length relationship found among unintegrated compa- nies” Operating Engineers Local 627 v. NLRB, 518 F.2d 1040, 1045–1046 (D.C. Cir. 1975), affd. on this issue sub. nom. The single-employer doctrine is found when two ongoing businesses are treated as a single employer based on the ground that they are owned and operated as a single unit. See Penntech Papers v. NLRB, 706 F.2d 18 (1st Cir. 1983), cert. denied 464 U.S. 892 (1983). While most of the alter ego criteria remain relevant, motive is normally irrelevant. In finding single- employer status, the Board has typically looked to whether there is (1) common ownership; (2) common management; (3) functional interrelation of operations; and (4) centralized con- trol of labor relations. See Broadcast Employees Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255 (1965). Not all of the criteria need be present to establish a single-employer status6 and no single criterion is controlling7. As with deter- mining an alter ego status, single-employer status “ultimately depends upon ‘all circumstances of the case’ and is character- ized by the absence of an ‘arms-length relationship found among unintegrated companies.’” See Mercy Hospital of Buf- falo, 336 NLRB 1282, 1285 (2001). See also Hahn Motors, 283 NLRB 901 (1987). 1. Ownership, management, and supervision Respondent asserts that Troy Noe is the sole owner of Di- verse and that Gwen Noe and her father, John Drilling, are the sole owners of Pinnacle and Wildcat. Gwen Noe testified that she not only makes the decisions concerning Pinnacle’s job bids, but she also goes to the general contractors to pick up building plans, types and prepares bids, submits the bids, and signs the contracts on behalf of Pinnacle. She also maintained that she visits the jobsites two or three times each day during the work projects. She explained that her father is an iron- worker and that she gained experience by watching the con- struction process. Respondent also submitted evidence to show that Gwen Noe took the structural steel erection examination for the Louisiana Contractors Licensing Board in December 1998. While she had not passed the examination, she scored 55 out of a possible score of 70. 2. Toy Noe and Diverse’s relationship with Pinnacle Despite Noe’s assertion that she operates Pinnacle independ- ently of her husband, the evidence reflects the contrary. Troy Noe testified that his only relationship with Pinnacle has been as a subcontractor and an employee. He testified that as an employee of Pinnacle, he takes direction from John Drilling and as a superintendent; he oversees the work on Pinnacle’s jobsites. While he asserts that he is paid by salary, he gave no other information as to the amount or the frequency of pay- ment. Troy Noe’s testimony, however, demonstrates the sig- nificant role that he plays in Pinnacle’s management. Troy Noe testified that Joe Jackson first began working for him at Diverse in 1997 after Jackson completed college. In discussing Jack- son’s involvement in the two companies, Noe was asked and answered the following: 6 Denart Coal Co., 315 NLRB 850, 851 (1994), enfd. 71 F.3d 486 (4th Cir. 1995). 7 Canned Foods, Inc., 332 NLRB 1449, 1449 (2000). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952 Q. At some point in time, were there discussions be- tween yourself, Mr. Jackson, and your wife as to potential even involvement in him in her company? A. Yes, once I felt confident of him running a job without me being there or a lot of phone conversations, I was going to let Gwen and John hire him. I was going to— Respondent’s counsel then interrupted his witness and at- tempted to rehabilitate and redirect his response by inquiring who made the hiring decisions for the respective companies. Noe then testified that he made the decision for Diverse and that his wife and his father-in-law made the decisions for Pin- nacle. Despite counsel’s redirection, I believe that Noe’s initial response was the more candid response and reflective of his true perception of his relationship with Pinnacle. Respondent asserts that Troy Noe became Pinnacle’s project manager for the Rave 18 project on June 3, 2002. Noe testified that as superintendent for Pinnacle, he is responsible for pro- duction and assuring that quality control standards are met on the particular job. He contended, however, that even as the superintendent he was never involved in labor relations deci- sionmaking for Pinnacle. He testified that he had no involve- ment in determining wages or benefits and that Foreman Paul Britton did all of the hiring. Gwen Noe, however, testified that Troy Noe directly supervised Britton. Although Troy Noe asserts that he has no involvement in Pinnacle’s labor relations, he admitted that his wife solicited his opinion with respect to hiring certain employees. Noe added that because he had been involved in organizing and “salting” jobs for the union his wife would ask him if he knew an applicant and she would not hire him if he were known to Noe. Noe then quickly added that this had not occurred because, “[of] course, you can’t really dis- criminate on jobs like that when it comes to salting.” The subcontract agreement between Pinnacle and East- Harding Inc. for the Cantrell West project in January 2002 was specifically directed to the attention of Troy Noe at Pinnacle’s box office address. The subcontract agreement between Pinna- cle and East-Harding, Inc. for the Morrillton Medical Clinic in April 2002 was also directed to the attention of Troy Noe at Pinnacle’s box office address. Gwen Noe acknowledged that prior to Troy Noe’s becoming project manager for Pinnacle on the Rave 18 job in June 2002 he had been active and supervised other Pinnacle projects. Troy Noe supervised Pinnacle’s 1998 Wal-Mart job in Selmer, Tennessee, Pinnacle’s April 2002 Morrillton Medical Clinic job in Morrillton, Arkansas, as well as the February 2002 Cantrell West job that was subcontracted to Diverse. Toy Noe also recalled that he supervised Pinnacle’s job in Rogers, Arkansas, in September 1998. Troy Noe acknowledges that he looks for jobs for Pinnacle and will sometimes take blue prints to his father-in-law for potential jobs. Noe explained that he has a personal relation- ship with all of the general contractors’ estimators and they usually call him about potential jobs whether the bid is from Diverse or Pinnacle. Gwen Noe confirms that her husband assists her with preparing bids and proposals and that she gen- erally discusses her bid with her husband before she submits the proposal. Gwen Noe recalled that the general contractor contacted her husband about the Alltell Distribution job. He came to her with the information and they bid the job together. The job was performed by Pinnacle in November and Decem- ber 2002. Gwen Noe admitted that many of the jobs that Pin- nacle was able to obtain were, in part, related to her husband’s reputation and business with Diverse. She admitted that the general contractor’s main condition for Pinnacle’s getting the Rave 18 job was the assurance that Troy Noe would run the job. I also note that Pinnacle did not require Diverse to sign any contract for the subcontracting of the Cantrell West project. Troy Noe testified that the last job performed by Diverse was the Cantrell West project that was subcontracted from Pinnacle and completed by May 23, 2002. Invoices from NES Equip- ment Services, however, reflect that three booms and a scissor lift were rented to Diverse for the Rave 18 project from June 3 to 20, 2002. Noe asserted that NES must have simply put Di- verse’s name on the invoice by mistake, however, he never contacted NES to tell them that they had incorrectly billed Di- verse. 3. Gwen Noe’s continuing involvement with Diverse Gwen Noe asserts that she withdrew as an officer of Diverse in 1997 and has had no ownership or management authority since that time. She asserts that while she has continued to do bookkeeping, payroll, and perform other secretarial functions she has done so without management authority. Gwen Noe, however, continues to have authorization to sign checks for Diverse. Minutes from Diverse directors’ meetings submitted by Respondent reflect that Gwen Noe continued to attend the meetings until at least September 28, 2002. Minutes from the December 22, 2001 directors’ meeting document Gwen Noe’s meeting with Diverse’s worker’s compensation carrier about its cancellation of coverage for Diverse. The minutes from the January 26, 2002 meeting include the statement that Diverse is barely making payroll and that the Company borrowed money from Troy and Gwen Noe’s personal savings account and from their children’s accounts to make payroll. Notes from the meet- ing on May 26, 2002, reflect that Gwen Noe tried to work out a payment plan with Diverse’s new worker’s compensation car- rier. It is also noted that Gwen Noe had been unsuccessful in obtaining a loan or line of credit from a specific bank. Gwen Noe also acknowledged that prior to the Union’s trust funds filing suit against Diverse in March 2002, she had spoken with the funds’ attorney about a plan for Diverse to pay a $1000 each month toward back due benefits. Troy Noe also acknowl- edged that notes from Diverse’s directors’ meeting of June 30, 2001, document Gwen Noe having contacted OSHA to work out a fine reduction for Diverse. 4. Equipment The equipment used by Pinnacle is the same equipment that was used by Diverse and initially purchased or acquired by Troy Noe and Gwen Noe using their personal credit. Gwen Noe acknowledged that Troy Noe purchased the skytrack now used by Pinnacle in 1997 or 1998 and he purchased the crane now used by Pinnacle in 2000. Her father originally gave the welding machines that are now used by Pinnacle to Troy Noe. There is no evidence that Pinnacle ever owned any steel erec- tion equipment of its own and apparently used Diverse’s until DIVERSE STEEL, INC. 953 July 2001. The record is without dispute that after the incorpo- ration of Wildcat in July 2001, the ownership of Diverse’s equipment was transferred to Wildcat without compensation. Wildcat has subsequently leased the equipment to Diverse and Pinnacle for less than market value. Although Gwen Noe testi- fied that Wildcat could rent the skytrack, crane, and welding machines to companies other than Pinnacle or Diverse, she could recall only two incidences when this has occurred. In one of the two examples, no rent was actually charged for the use of a stud box. She explained, “I did not charge them rent on that, as they had done a favor for us.” She did not explain nor was she asked whom she meant by “us.” During testimony, as Gwen Noe was describing Wildcat’s equipment, she was asked and answered as follows: Q. Okay, Where did you acquire the equipment? A. The skytrack was purchased by Troy, I believe, in ‘97 or early ‘98. The crane was also purchased by Troy sometime in 2000. One of the welding machines was given to me or given to the company by my father, And — Q. When you say the company, which company are you— A. Wildcat. Q. Wildcat A. Well, they were originally given to Troy when he first started Central Arkansas Rebar. As indicated by her response, Gwen Noe appears to ac- knowledge a continuity of ownership beginning with Rebar and continuing to Wildcat, a company that is alleged to be separate and apart from Troy Noe and Diverse. Gwen Noe testified that while Diverse carried the insurance on the equipment prior to 2001, Pinnacle has covered the insur- ance premiums since Wildcat’s formation. 5. Continuity of work force The record reflects that Joe Jackson began working for Di- verse in 1997 and continued to work for Diverse until 2002. After Pinnacle was formed in 1998, Jackson additionally began working for Pinnacle and at some point was designated as Pin- nacle’s vice president. Gwen Noe confirmed that there was a period between November 2000 and February 2002 when Pin- nacle was not able to do any jobs because Jackson did not want to travel out of town. During that time, however, he continued to work for Diverse. Gwen Noe also acknowledged that em- ployees Robert Glastetter and Paul Britton worked for both Pinnacle and Diverse. 6. Business purpose, operations, and customers There is no dispute that there is no difference in the scope of work performed by Pinnacle and Diverse. Both companies have a common business purpose of erecting commercial steel structures. Admittedly, Pinnacle’s clients were primarily cli- ents of Diverse and both companies have used the same ven- dors. Union Business Manager Thomas Marsh testified that several years ago Noe offered to allow Marsh to rent equipment using his account with a vendor. When Marsh received the bill, Pinnacle was shown to be the customer. At that time Marsh was unaware of Pinnacle’s existence. When he questioned Troy Noe about Pinnacle, Noe denied any knowledge of the identity of Pinnacle. Noe testified that he had denied the existence of Pinnacle to Marsh because he didn’t think that it was any of Marsh’s business. 7. Overall similarity and interrelatedness The overall record reflects a significant overlap and interre- latedness in ownership, management, and supervision for both companies. Throughout the relevant period, Troy Noe has supervised and managed projects for both Diverse and Pinna- cle. He has actively assisted his wife in bidding and seeking work for Pinnacle. While he contends that he is not involved in the labor relations decisionmaking of Pinnacle, he also admitted that only when he was confident that Jackson was capable of running a job did he “let Gwen and John [hire] him.” Con- trastly, Gwen Noe continued to play an active role for Diverse by negotiating with insurance carriers, lending institutions, and the Union’s trust funds for repayment of Diverse’s back due benefits. She has continued to have authority to write and sign checks on behalf of Diverse and is responsible for completing substantial portions of Diverse’s bookkeeping and payroll re- cords. The record reflects that both Joe Jackson and Paul Brit- ton served in supervisory capacities for both companies. Re- spondent contends that Troy Noe has sole ownership of Diverse and that Gwen Noe has joint ownership of Pinnacle with her father. January 2002 minutes from the Diverse’s directors meeting, however, reflect that Diverse borrowed money from Troy and Gwen Noe’s personal saving account as well as from the saving account of their children to make Diverse’s payroll. While Gwen Noe may assert that she has no ownership interest in Diverse, her actions belie such denial. For Gwen Noe to subsidize her husband’s company from her personal savings and her children’s’ savings is more indicative of ownership than mere employee status. I also note that the Board has found that where other alter ego factors exist, ownership of two com- panies by members of the same immediate family is deemed to be “substantially identical” ownership. Kenmore Contracting Co., 289 NLRB 336, 337 (1988), enfd. 888 F.2d 125 (2d Cir. 1989). See also J.M. Tanaka Construction, 249 NLRB 238, 242 fn. 29 (1980), enfd. 675 F.2d 1029 (9th Cir. 1982). Despite Respondent’s establishment of Wildcat to buffer li- ability, both Diverse and Pinnacle have used the same equip- ment. Although Respondent asserts that Wildcat now owns the equipment, no compensation was given to Diverse for the change in ownership. See Valley Electric, Inc., 336 NLRB 1272 (2001), where the Board took specific note of the fact that no money ever changed hands in any of the transactions includ- ing the sale or transfer of assets such as vehicles, real property or company stock. Diverse has continued to claim ownership as evidenced by its 2002 documentation for a loan application. Although Respondent asserts that Diverse and Pinnacle leased the equipment from Wildcat, such leasing was based on less than the market value. The facts of the present case are con- trary to those of Friederich Truck Service, 259 NLRB 1294, 1300 (1982), where the Board did not apply the alter ego doc- trine. Among the factors relied on by the Board in Friederich in finding an arm’s-length relationship was the fact that market value was used for equipment rental. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954 The record reflects that vendors and customers have contin- ued to treat the companies as the same entity. Gwen Noe ad- mitted that many of the jobs that Pinnacle was able to obtain were based in part on her husband’s reputation and business with Diverse. Bid responses to Pinnacle have been directed to the attention of Troy Noe and Pinnacle’s name was substituted for Diverse or Troy Noe for equipment rental. When Diverse could not perform the work on the Rave 18 project because of inadequacy of insurance coverage, the general contractor in- sisted on Troy Noe’s presence on the project and it didn’t mat- ter whether the company was Diverse or Pinnacle. The only major difference in the two companies appears to be the fact that while Pinnacle has employed some of the same employees as Diverse and Pinnacle has not utilized the Union for ironworker’s referral and has not paid union wages and benefits. The Board has recognized the fact that two companies that use a different complement of employees does not militate against a finding of alter ego status. Based on the Board’s ra- tionale in Angelus Block Co., 250 NLRB 868 (1980), it appears that such factors are the products of a status designed and im- plemented by Respondent and results from the failure of the Respondent to apply the Union contract to Pinnacle’s employ- ees. Additionally, I note Troy Noe’s admission that because of “salting” concerns, Gwen Noe consulted with him on potential hires and did not want to hire employees that were known to him because of his union affiliation. The overall record evidence establishes that Diverse and Pinnacle have substantially identical ownership, business pur- pose, operation, supervision, and management. In so finding, I note that both entities are family-owned commercial steel erec- tion companies with Troy Noe functioning in a major role in the overall operation and management of both companies. Both companies use identical equipment and receive the same favorable treatment from a third family-owned company. Both companies perform work for the same customers, based in large part upon Troy Noe’s reputation and past business relation- ships. Both companies use the same vendors who treat them as a single enterprise. The Companies have functioned inter- changeably. Pinnacle subcontracted to Diverse to perform the Cantrell West project without requiring a written subcontract- ing agreement. In the alternative, Pinnacle performed the work that Diverse began but could not complete on the Rave 18 pro- ject. Respondent argues that Gwen Noe and her father are Pin- nacle’s sole owners and they make policy decisions while also providing day-to-day personal oversight on Pinnacle’s jobs. The evidence, however, reflects that Gwen Noe’s father lives 75 miles away from Little Rock and it is Troy Noe to whom Gwen Noe turns for assistance with day-to-day decisionmak- ing. Admittedly, she consults with Troy Noe as to what appli- cants have union backgrounds, what general contractors to trust, as well as to seek his assistance with preparing bids. Respondent cites a number of cases where the Board rejected a finding of single-employer status, relying on the absence of common control of labor relations. Respondent argues that the circumstances are the same in the instant case. While Troy Noe testified that he has no involvement in the labor relations mat- ters of Pinnacle, the evidence does not support this assertion. Noe specifically admitted that Gwen Noe consults with him about the union background of Pinnacle applicants before they are hired. Troy Noe also admitted that Gwen Noe and her fa- ther hired Joe Jackson only after he determined that Jackson had the ability to handle the job in issue. Accordingly, the evi- dence reflects that Troy Noe is significantly involved in Pinna- cle’s labor relations matters. Respondent argues that the record does not establish that Di- verse had any desire to run away from obligations under its collective-bargaining agreement with the Union by utilizing Pinnacle. Respondent further asserts that absolutely no animus has been established by a preponderance of evidence. Gwen Noe admitted that one of the reasons that she wanted to resign her office with Diverse was her feeling that her husband did not get his “money’s worth” from his union affiliation. Union sec- retary Doris Mae Eoff testified that during a conversation with Gwen Noe in April 2002 Gwen remarked that their accountant had told Diverse that they would be better off if they went non- union. Noe candidly testified, “[T]here was no telling what may have come [out] of my mouth.” She went on to explain that if she had said it, it was her opinion and what she felt at the time. As chairman of the Arkansas Best Contractors’ Associa- tion, Boyd Sanders attended meetings with Troy Noe and the other contractors in advance of their negotiations with the Un- ion. Sanders recalled that he had heard Troy Noe state in one of the prenegotiation strategy meetings “Well, this is all I can do and if I can’t get a contract for this, I’ll just have to open shop.” Sanders added that while he recalled only one time that Noe made such a statement, one of the other contractors in the association made that statement in almost every meeting. Based upon the alleged statements by Gwen and Troy Noe it is apparent that they considered the benefits of Diverse being nonunion. I don’t find however, that these statements alone support a finding that Pinnacle was specifically created with the intention to avoid Diverse’s bargaining obligation. The Board has however, found two business entities to be alter egos and held the alter ego employer liable for the predecessor’s contrac- tual obligations and unfair labor practices, even when evidence of antiunion animus or an intent to evade contractual obliga- tions was neither apparent nor shown to have been a factor in the creation of the alter ego. See Johnstown Corp., 313 NLRB 170, 171 (1993), affd. in pertinent part sub nom.; A & P Brush Mfg. Corp., 323 NLRB 303, 309 (1997). Accordingly, while animus is a factor that has been considered, its absence does not preclude a finding of alter ego status. The Board has found that the collective-bargaining agree- ment of one entity does not attach and bind the single employer because there is a single-employer finding. See Samuel Kossoff & Sons, Inc., 269 NLRB 424, 429 (1984). The Board has also determined that the criteria for finding a single employer are not the same as those used in determining the scope of the unit. See Acoustics, Inc., 270 NLRB 1046 (1984). Respondent ar- gues that in the instant case, the question of whether employees of Diverse and Pinnacle constitute an appropriate bargaining unit was not legally or factually addressed by either the General Counsel or the Union in either the pleadings or the ensuing hearing. Respondent thus argues that for this reason alone no violation based on single-employer status is appropriate since the burden of proof and persuasion rests with the General DIVERSE STEEL, INC. 955 Counsel and/or the Union to establish all necessary criteria. Because I find Pinnacle to be the alter ego of Diverse, it is not necessary that I resolve the single employer or the appropriate unit issue. Respondent further argues that Diverse had no alternative but to cease operations when it did because it could not legally continue to operate under Arkansas law without workers’ com- pensation insurance for its employees. Respondent acknowl- edges, however, that the presence of a legitimate reason for change in ownership has not precluded the Board from finding an alter ego. Respondent argues that the circumstances of the present case are distinguishable from Metalsmith Recycling Co., 329 NLRB 124 (1999), where the Board found alter ego status even though the respondent argued that there was a le- gitimate reason for its establishment of the successor company. Respondent points out that in Metalsmith there was evidence of independent 8(a)(1) violations and the Board found that the successor employer was not compelled to resume operation by government ordinances. While Respondent correctly points out these distinctions in Metalsmith and the current case, the Board has nevertheless continued to find that the mere presence of a legitimate business reason for a change in corporate status does not preclude an alter ego finding. See Walton Mirror Works, 313 NLRB 1279 (1994), where the predecessor company was found to be closed by a government taxing authority and more recently Michael’s Painting, Inc., 337 NLRB 860 (2002), where one of the reasons for operating the successor company was to operate without the substantially higher insurance pre- miums that would have been charged to the predecessor. In summary, once an employer is found to be an alter ego of an- other, the labor obligations of the original employer are deemed to be shared by, and become that of, its alter ego regardless of the predecessor’s motivation for creating the alter ego, and both will be held liable, as a single employer, for any violations of the Act. Branch International Services, 327 NLRB 209, 219 (1998). Accordingly, Respondent’s claim that Pinnacle should not be compelled to assume Diverse’s bargaining or contractual obligations with the Union or held liable for any unfair labor practices committed by Diverse, because Pinnacle was purport- edly created for a legitimate business reason or because Diverse had a legitimate business reason for not performing the work is rejected. Volk & Huxley, 280 NLRB 219, 226 (1986). Based on the record evidence discussed above, I do not find that Diverse and Pinnacle have functioned independently nor dealt with each other in an arm’s-length relationship. Finding that both companies have substantially identical ownership, business purpose, operation, customers, equipment, supervi- sion, and management, I find Pinnacle to be the alter ego of Diverse. In making this finding, I note that the record is with- out evidence of any independent 8(a)(1) violations or specific evidence that Pinnacle was formed in 1998 for the sole purpose of evading Respondent’s contractual and bargaining obliga- tions. Diverse, in fact, entered into a subsequent collective- bargaining agreement with the Union in 2001 after the forma- tion of Pinnacle. Troy Noe testified at length about his history with the Union and his experiences in training apprentices. He also talked about his own disillusionment with the Union and his opinion that there was no longer the union brotherhood of years past nor were there union craftsmen as before. As Gwen Noe testified, she did not believe that Diverse had gotten its “money’s worth” from its affiliation with the Union. Initially, Pinnacle did little work in comparison to Diverse and even had a period of a year and a half when it attempted no work at all. While Gwen Noe may not have created Pinnacle specifically for the purpose of evading the Union, it is apparent that Pinna- cle ultimately became the means by which Diverse could con- tinue to do business without the limitations and expenses of the Union’s contract. The record reflects that since about May 2002 Pinnacle has functioned as a disguised continuance of Diverse and an alter ego to Diverse. B. Pinnacle’s Contractual Obligations as an Alter Ego In the complaint, General Counsel alleges that about May 20, 2002, Respondent withdrew its recognition of the Union as the exclusive collective-bargaining representative of the unit and on or about May 20 refused to recall any of the unit employees of Diverse to work on the Rave 18 project. The evidence re- flects no written or verbal withdrawal of recognition by Di- verse. The evidence reflects that Respondent simply ceased to perform work as Diverse but continued as Pinnacle. Function- ing as Pinnacle, Respondent did not apply the terms of the ex- isting collective-bargaining agreement, including the require- ment that the Union be used as a source of referral for iron- workers and the payment of contract wages and benefit contri- butions. When two facially different companies are found to be an alter ego of each other, the collective-bargaining agreement of one actively binds the other. See E.G. Sprinkler Corp., 268 NLRB 1241 fn. 1, 1244 (1984). Thus, two nominally separate businesses may be regarded as a single enterprise if one is the alter ego or “disguised continuance” of the other. If alter ego status is found to exist, the labor obligations of the original employer is deemed to be shared by its alter ego and both will be held liable as a single employer for any violations of the Act. See Redway Carriers, Inc., 301 NLRB 1113, 1115 (1991). Thus, as the record establishes that Pinnacle failed to apply the terms of the union contract to its ironworker employees, I find that Diverse and Pinnacle have violated Section 8(a)(5) and (1) of the Act by their failure to do so. C. The 8(a)(3) Allegations Finally, the complaint alleges that Respondent violated Sec- tion 8(a)(3) and (1) by refusing to recall any of the unit em- ployees of Diverse to work on the Rave 18 Theater Project in Little Rock, Arkansas, because the employees joined and as- sisted the Union and engaged in concerted activities and that Respondent did so to discourage employees from engaging in these activities. A finding that an employer’s decision or action discriminated against employees in violation of Section 8(a)(3) generally requires a showing that antiunion animus was a moti- vating factor in that decision. In the instant case, there is no alleged independent 8(a)(1) violations nor any evidence of specific antiunion animus. Neither Troy Noe’s discussions with other employers preceding bargaining in 2001 nor Gwen Noe’s statement to the Union’s office secretary rise to the level of animus sufficient to support a finding of an 8 (a)(3) viola- tion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956 Additionally, no evidence was presented of specific unit em- ployees who would have been recalled to the Rave 18 project or evidence of specific employees who attempted to apply and were rejected because of their union affiliation. While I find that Pinnacle violated Section 8(a)(5) and (1) of the Act by its failure to abide by Diverse’s contractual obligations, I do not find that Pinnacle violated Section 8(a)(3) of the Act. Under the test set forth in Wright Line,8 the General Counsel must initially establish a prima facie case that Pinnacle’s decision not to recall specific employees to the Rave 18 project was moti- vated, at least in part, by the employees’ protected activity. I do not find sufficient evidence to support such a finding in this case. CONCLUSIONS OF LAW 1. Respondent Diverse Steel Inc., is now and at all times ma- terial herein, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Pinnacle Steel, Inc. is the alter ego of Diverse Steel, Inc. 3. International Association of Bridge, Structural, Ornamen- tal and Reinforcing Iron Workers Local 321, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. 4. All ironworkers as referenced in the collective-bargaining agreement9 between the Union and the Arkansas Best Contrac- 8 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982). 9 While the collective-bargaining agreement sets out the geographi- cal jurisdiction applicable to the agreement and numerous other provi- sions with specificity, the agreement does not define the specific inclu- sions and exclusions of the appropriate unit. tors and the Arkansas Commercial and Industrial Builders and Steel Erectors Association including those employed by Di- verse Steel, Inc. and Pinnacle Steel, Inc. constitute a unit ap- propriate for collective bargaining within the meaning of Sec- tion 9(b) of the Act.10 5. At all times material here, the Union has been the exclu- sive collective-bargaining representative of all employees in the unit found appropriate in conclusion of law 4 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By failing and refusing to apply the terms and conditions of the collective-bargaining agreement entered into by the Un- ion and Diverse Steel, Inc., to all employees employed in the bargaining unit found appropriate in conclusion of law 4, both Respondent Diverse and Pinnacle violated Section 8(a)(5) of the Act. 7. The unfair labor practices set forth in conclusion of law 6 violated Section 8(a)(5) and (1) of the Act and affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not violate Section 8(a)(3) of the Act as alleged in the complaint. REMEDY Having found that the Respondent has engaged in certain un- fair labor practice conduct in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.] 10 Respondent admits that Diverse recognized the Union as the col- lective-bargaining representative for the unit employees covered by the May 1, 2001 collective-bargaining agreement.