Air Vac Industries, Inc.

AIR VAC INDUSTRIES Air Vac Industries, Inc., Leeward Constructors, Inc., Air Vac Environmental Limited , Triple A Leas- ing Inc., and Edward Jost and Alicia Jost and Local Union No. 282, affiliated 'with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-7887 14 January 1987 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 May 1984 Administrative Law Judge Raymond P. Green issued the attached supplemen- tal decision.' The Respondents filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a brief in opposition to the Respondents' exceptions and in support ' of the cross-exceptions. The Respondents filed a reply brief to the General Counsel's cross-exceptions. On 21 November 1985, pursuant to the Board's remand order of 6 November 1984 (not- reported in Board volumes), the judge issued the attached second sup- plemental decision, to which no exceptions were filed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental and the second supplemental decisions and the record in light of the exceptions and briefs and has decid- ed to affirm the judge's rulings, fmdings,2 conclu- sions, as modified, and to adopt his recommenda- tions with respect to backpay, as modified. In his supplemental decision the, judge recom- mended that the backpay period terminate on 30 June 1982, the date on which the parties' supple- mental contract expired. In so recommending, he noted that the provisions of a collective-bargaining agreement, exclusive of certain items not relevant here, survive the expiration of a contract until such time as a new agreement is made, impasse is reached, or the union waives its bargaining rights.3 The judge noted that the Union notified the Re- spondents, by letter dated 22 April 1982, that it wished to modify the supplemental contract, set to i The original Decision and Order is reported at 259 NLRB 336 (1981) S The Respondents have excepted to some,of the judge's credibility findings The Board's established policy is not to overrule an admimstra- live law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces pus 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 re- versing the findings. a See, e.g., Sacramento Union, 258 NLRB 1074 (1981). 703 expire 30` June 1982, and that the Respondents re- ceived this notice and did not respond to it. The judge also noted,' however, that thereafter the Union made no attempt to seek negotiation of a new contract or to reassert its bargaining rights. He found that the Union, by its inaction, had waived its bargaining rights and, that the Respond- ents, neither having a, party, with which to bargain nor being required to continue the terms of the contract indefinitely, were free to change the terms and conditions of employment after 30 June 1982. Moreover, noting that the, Union had never con- tended that the Respondents had failed to bargain in 1982, the judge concluded that he was without authority to find that any alleged, failure to bargain after the contract's expiration was unlawful. Ac- cordingly, he recommended that the backpay period terminate as of 30 June 1982. We disagree. It is well settled that a waiver of bargaining rights must be "clear and unmistakable." Here, where there is evidence that the Union timely re- quested bargaining in writing and that the Re- spondent received this request and failed to comply with it, we do not find evidence of a clear and un- mistakable waiver that supports the conclusion that the Respondent was relieved of its obligation to bargain with the Union. Further, having found that the Union did not waive its bargaining rights, we find that the Respondent was obligated to,continue the terms of the expired contract until it negotiated in good faith with the Union to a new agreement or to impasse. We note, however, that there is no evidence of such negotiations in the record. Thus, as we have found that the Union did not waive its bargaining rights and as there is no evidence that the parties negotiated a new contract or bargained to impasse, we shall extend the backpay, period until such time as the parties bargain in good faith and a new agreement or impasse is reached.5 Accordingly, we shall adopt the judge's findings with respect to backpay due employees Hayes, Hensel, Sallie, Simpson, Hotton, Volkert, Boerner, Warren, Claudio, George Sutherland, Bergbuchler, Baxter, Komorowski, Reus, Dugan, Felpo, and Beaton6' through 30 June 1982. However, in light 4 See, e.g., New York Mirror, 151 NLRB 834 (1965). 5 Based on this analysis we reject the General Counsel 's suggestions to end the backpay period either 6 months or 1 year after the 30 June 1982 supplemental contract 'expiration date. B In accordance with the General Counsel's exceptions, however, we shall make the following mathematical changes in several of the backpay computations recommended by the judge. Thus, the applicable contract rate for Hayes and Hensel during the third quarter of their employment in 1980 is $7.50 per hour, rather than $7.25 per hour, and the number of adjusted hours of backpay for Hensel during the first quarter of his em- ployment in 1980 is 79 25 rather than 78.25. These corrections, however, do not alter the other figures found for Hayes and Hensel. Based on the Continued 282 NLRB No. 91 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of our decision to extend the backpay period, we find merit to the General Counsel's exceptions that certain adjustments to the recommended backpay order are warranted. Thus, we fmd that employees Wayne Bombara, Wayne Sutherland, Daniel That- ford, and Peter Coviello, employees hired after 30 June 1982, are included in the class of employees entitled to backpay. We also fmd that employees George Sutherland, Peter Beaton, and Paul Ko- morowski, for whom the judge recommended backpay through 30 June 1982, are entitled to the payment of additional wages and benefits for the periods of time they continued to be employed by the Respondents after 30 June 1982. Finally, we find merit to the General Counsel's exception that the judge erred in failing to fmd that Thomas That- ford was entitled to backpay. The record shows that, at the hearing, the Respondents admitted to Thomas Thatford's driver status and that Thatford was employed, as a driver, from 1980 through 1982. We shall leave the computation of backpay due Bombara, Wayne Sutherland, Daniel Thatford, Coviello, and Thomas Thatford, and that of any additional backpay due George Sutherland, Beaton, and Komorowski, in accordance with this decision, to compliance. ORDER The National Labor Relations Board orders that the Respondents, Air Vac Industries, Inc., Lee- ward Constructors, Inc., Air Vac Environmental Limited, Triple A Leasing, Inc., and Edward Jost and Alicia Jost, Smithtown, New York, their offi- cers, agents, successors, and' assigns, shall 1. Make whole each , of the employees named below by payment to them of backpay in the amounts set forth opposite their names, plus inter- est computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977), and accrued to the ' date of payment, minus tax withholdings re- quired by Federal and state laws:7 corrected backpay total of $39, rather than $40 as provided by the judge, the correct amount of total backpay including wages, annuities, and un- compensated overtime, holiday, and vacation pay due employee Sallie is $143, rather than $144 The correct amount of backpay hours for em- ployee Simpson during the second quarter of 1980 is 9, rather than 0, and the correct applicable contract rate for Simpson in the third quarter of 1980 is $7.50, rather than $7 25. These corrections, however, do not alter the other figures shown for Simpson. The correct amount of backpay due Boerner during the third quarter of his employment in 1980 is $48 63, rather,than $54. This correction does not otherwise alter the other figures shown for Boerner The correct uncompensated overtime due Berg- buchler is $361, rather than $366, the correct uncompensated holiday pay due him is $375, rather than $367, and the correct backpay due him is Employee Backpay Daniel Hayes $444 Charles Hensel 940 Thomas Sallie 143 Thomas Simpson 602 Brian Hotton 4048 Fruedden Volkert 1167 Robert Boerner 930 Scott Warren 488 Jeffrey Claudio 659 George Sutherland 4684 George Bergbuchler 4371 Michael Baxter 746 Paul Komorowski 3507 Stephen Reus 2522 Scott Dugan 323 Michael Felpo - 192 Peter Beaton / 2910 2. Make whole the employees named below by payment on their behalf of contributions into the fringe benefits funds named below in the amounts set forth opposite their names, plus any additional amounts.8 Employee Welfare Fund I Pension Fund Daniel Hayes .................................. $ 683 0 Charles Hensel.. :............................. 1291 0 Thomas Sallie ................................. 225 0 Thomas Simpson ............................ 171 0 Brian Horton .................................. 3700 0 Fruedden Volkert .......................... 857 0 Robert Boerner ................ .............. 839 0 Scott Warren .................................. 664 0 .Jeffrey Claudio ............................... 297 0 George Sutherland ......................... 1832 $408 George Bergbuchler ...................... 2843 36 Michael Baxter ............................... 447 0 Paul Komorowski .......................... 1128 402 Stephen Reus .................................. 2098 0 Scott Dugan ................................... 397 0 Michael Felpo ............................... 347 0 Peter Beaton ................................... 829 385 $1528 Thus, the correct total backpay including wages, annuities, and uncompensated overtime, holiday, and vacation pay due him is $4371, rather than $4370 The correct total backpay due employee Reus is $891, rather than $819, and the total welfare fund contributions due him are $2098, rather than, $2884. Thus, the total backpay due Reus including wages, annuities, and uncompensated overtime, holiday, and vacation pay is $2522, rather than $2450. Finally, the correct total amount of annuities due George Sutherland is $873, rather than $853. This correction does not alter other figures shown for Sutherland. The backpay computations as set forth in full, including the corrections, are attached as Appendix 7 The figures in the backpay column consolidate wages, annuities, and uncompensated overtime, holiday, and vacation pay 8 Merryweather Optical Co , 240 NLRB 1213 (1979). AIR VAC INDUSTRIES APPENDIX 'A 705 No. of Con- Back- Wel- Pen- Uncompen- Uncompen- Uncompen- Name of period Straight OT Adj Rate tract Diff pay Annu- fare sion sated OT sated sated Employee Time Hours Hours Earned Rate - Due ity Fund Fund Due Holidays Vacation Hrs Due Due Daniel 1980 Hayes. (a)*........... Ql..... 90 0 90 $7.00 $7.25 $.25 $22 50 27 $132 0 $40 Q2..... 194.50 38 251.50 7.00 7.25 .25 62.87 70 340 0 9 Q3..... 56 0 56 7.00 7 50 .25 28.00 22 90 0 0 (b)** ........ 1980 0 0 0 0 $58 0 Ql..... 48 0 48 7.00 7.25 .25 12.00 14 70 0 0 0 58 Q2..... 32 3 36.50 7.00 7.25 .25 9.12 11 51 0 0 0 0 Total............ 135.00 144 683 0 49 0 116 Charles 1980 Hensel. (a)*........... Ql..... 147 4.50 153.75 7.00 7.25 .25 38.44 46 222 0 15 58 58 Q2..... 448.50 40.50 509.25 7.00 7.25 .25 127.31 147 715 0 16 0 174 Q3..... 149.50 2.50 153.25 7.00 7.50 .25 76.63 61 245 0 21 0 60 (b)** ........ 1980 Q1..... 65 9.50 79.25 , 7.00 7.25 .25 19.80 22 109 0 0 0 0 Total............ 262.00 276 1291 0 52 58 292 Thomas 1980 Sallie. (a)*........... Qi'..... 48 0 48 7.00 7.25 .25 12.00 14 70 0 0 0 (b)** ........ 1980 Q1 ..... 90 8 102 7.00 7.25 .25 25.00 29 143 0 0 0 0 0 Q2..... 8 0 8 7.00 7.25 .25 2.00 3 12 0 0 0 0 Total............ 39.00 46 225 0 0 0 58 Thomas 1980 Simp- son. (a)*........... Q1..... 194.50 0 194.50 7.00 7.25 .25 48.63 58 284 0 7 58 58 Q2..... 133.50 9 147 7.00 7.25 .25 36.75 43 208 0 0 0' 58 Q3..... 112 5.50 120.25 7.00 7.50 .25 60.13 47 190 0 0 60 60 (b)** ........ 1980 Ql..... 24 0 24 7.00 7.25 .25 6.00 7 35 0 0 0 0 Total............ 152.00 155 717 0 7 118 176 Brian 1980 Hotton. (a)*........... Q3..... 264 29 307 7.00 7.50 .50 153.50 123 495 0 0 Q 120 Q4..... 435 43.5 500 7.00 7.50 .50 250.00 200 806 0 19 60 240 1981 Ql..... 123 3.5 128 7.00 7.50 .50 64,00 51 206 0 20 120 60 Q2..... 316 29 360 7.00 7.50 .50 180.00 144 580 0 13 0 180 Q3...... 520 81.5 642 7.00 7.50 7.90 , .40 257 520 838 0 0 316 Q4..... 421 27 462 7.50 7.90 .40 185.00 462 744 0 40 63 190 (b)** ........ 1980 Q3.... 19 0 19 7.00 7.50 .50 9.50 8 31 0 0 0 0 Total............ 1099.00 1508 3700 0 92 243 Frued- 11980 den Vol- kert. 1106 (a)*........... Q3..... 57 9 70.5 9.00 7.90 0 0 66 106 0 4.50 0 0 Q4..... 453 8.50 466 9.00 7.90 0 0 462 745 0 130.50 288 216 Total............ 528.00 851 0 135 288 216 Robert 1980 Boerner. (a)*........... Q2..... 156 0 156 6.00 7.25 1.25 195 00 47 228 0 13 0 58 ........... 156.50 22.50 190.25 7 7.25 .25 47.56 54.00 " 282 0' 0 0 58 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q3..... 80 11 .50 97.25 7.00 7.50 .50 48.63 37 148 0 101 0 0 (b)** ........ Q3..... 137.50 0 137.50 6.00 7.25 1.25 171 .88 41 201 0 0 0 58 Total............ 463.00 179 839 0 114 0 174 Scott 1980 Warren. (a)*........... Q1..... 56 5 63 7.00 7.25 .25 15.88 18 87 0 0 0 0 Q2..... 305 16.5 329 7.00 7.25 .25 82.44 96 470 0 4 0 116 (b)** ........ Q1..... 72 0 72 7.00 7.25 .25 18.00 22 105 0 0 58 58 Total ............ 116.00 136 664 0 4 58 174 Jeffrey 1980 Clau- dio. Q1..... 158 17 184 7.00 7.25 .25 46.00 55 297 0 22 58 58 George 1980 Suth- erland. Q4..... 14.50 0 14.50 5.00 7.50 2.50 36.00 6 23 0 0 0 0 Q4 406 0 406 7.00 7.50 .50 203.00 162 655 0 38 120 180 coned. 1981 Q1 ..... 16 0 16 7.00 7.50 .50 8.00 6 26 0 11 60 0 1982 Q1..... 200 0 200 4.00 7.90 3.90 780.00 200 323 0 0 63 0 Q2..... 499 0 499 4.00 7.90 3.90 1946.00 499 805 408 51 63 252 Total ............ ' 2973.00 873 1832 408 100 243 495 George 1980 Berg- buchler. Q4..... 320 97 465.5 7.00 7.50 .50 232.75 167 516 0 38 0 240 1981 Q1..... 95 0 95 7.00 7.50 .50 47.50 38 153 0 34 0 0 Q2..... 435 36 489 7.00 7.50 .50 244.50 188 701 0 49 60 180 Q3..... 516 115 688 7.00 7.90 .90 619.00 516 832 0 43 63 190 Q4..... 347 76 462 7.50 7.90 .90 185.00 347 559 0 177 181 190 1982 Q2..... 51 0 51 4.00 7.90 3.90 199.00 51 82 36 25 63 0 Total............ 1527.00 1307 2843 36 361 375 800 Michael 1981 Baxter. Q3..... 40 5 48 7.00 7.90 .90 43.00 45 73 0 8 0 0 Q4..... 204 13 223 7.00 7.90 .90 201.00 217 350 0 32 0 126 1982 Q1..... 15 0 15 4.00 7.90 3.90 59.00 15 24 0 0 0 0 Total............ 303 277 447 0 40.00 0 126 Paul, 1980 Ko- morowski. Q4..... 96 34 147 5.00 7.25 2.25 331.00 52 210 0 25 0 58 1982 Q1..... 160 0 160 4.00 7.90 3:90 624.00 160 258 0 0 0 63 Q2..... 409 0 409 4.00 7.90 3.90 1595 .00 409 660 402 0 0 190 Total............ 2550.00 621 1128 402 25.00 0 311 AIR VAC INDUSTRIES Stephen 1980 707 "cub. Q3..... 120 52 198 7.00 7.50 .50 99.00 69 ' 277 0 0 0 60 Q4..... 416 84 542 7.00 7.50 .50 271.00 200 806 0 30 60 240 1981 Q2..... 152 35 204 7.00 7.50 .50 102.00 75 302 0 86 0 60 Q3..... 394 48 466 7.00 7.90 .90 419.00 442 713 0 119 0 190 To ............ 891.00 786 2098 0 235 60 550 Michael 1980 Felpo. Q3..... 40 10 55 7.00 7.25 .25 14.00 20 81 0 0 0 0 Q4,.... 80 16 104 7.00 7.25 .25 26.00 38 155 0 36 0 58 To 1............ 40.00 58 236 0 36 0 58 Peter 1982 Beaton. Q 1..... 120 0 120 4.00 7.90 3.90 468.00 120 194 0 0 0 63 Q2..... 394 0 394 4.00 7.90 3.90 537.00 394 635 385 75 63 190 To 1............ 005.00 514 829 385 75 63 253 Scott 1981 Dugan. Q2..... 189 15 212 7.00 7.50 .50 106.00 82 329 0 19 0 60 Q3..... 40 2 43 7.00 7.90 .90 39.00 17 68 0 0 0 0 To ............ 145.00 99 397 0 19 0 60 (a) * While an payroll of Air Vac Environmental. (b) ** While an payroll of Leeward. SUPPLEMENTAL DECISION RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on September 12, October 26 and 28, and December 12, 13, and 16, 1983, and January 4, 1984. The initial backpay specification and notice of hearing was issued by the Regional Director of Region 29 on January 31, 1983, and was amended on various oc- casions thereafter. The final amendments were filed with the General Counsel's brief, and on May 1 and 21, 1984. On consideration of the entire record in this supple- mental proceeding, including consideration of the briefs filed by the parties, the prior decision of the Board, and my observation of the demeanor of the witnesses,' I snake the following FINDINGS AND CONCLUSIONS I. BACKGROUND The initial complaint in this matter alleged that Air Vac Industries, Inc., Leeward Constructors, Inc., and Air Vac Environmental Limited, as asingle employer, had violated Section 8(a)(1) and (5) of the Act by refus- ing to execute a collective-bargaining agreement which had previously been negotiated with the Union. It also alleged that the Respondents offered and promised bene- fits to its employees, threatened 'partial closure of its business, threatened layoffs, and bargained directly' with the employees. i I was not favorably impressed by the testimony or demeanor of the Respondents' witness Edward Jost In my opinion he was an evasive wit- ness and to the extent that his testimony conflicts with the testimony of other witnesses or evidence, I shall not credit him. After a hearing held on December 8, 1980, Adminis- trative Law Judge Howard Edelman issued a decision on June 29, 1981. He concluded, inter alia, that: 1. Respondents Air Vac Industries, Leeward Construc- tors, and Air Vac Environmental constituted alter egos and therefore a single employer having a single appropri- ate bargaining unit consisting of drivers. 2. The Union was the exclusive collective-bargaining representative of all drivers employed by the three com- panies. 3. On October 23, 1979, the Respondents and the Union had reached agreement on a supplemental con- tract covering the wages, terms, and conditions of em- ployment of the Respondents' drivers to be effective from January 1, 1980, to June 31, 1982. 4. The Respondents, ' notwithstanding the agreement described above, failed and refused to execute the agree- ment or carry out its terms and conditions. 5. The Respondents -illegally bargained directly and in- dividually with employees in the bargaining unit and of- fered them certain benefits. 6. The Respondents illegally threatened their employ- ees with partial closure of,their business and with layoffs. In his recommended Order, the judge ordered, inter alia, that the Respondents: 1. Recognize the Union as the bargaining representa- tive of the employees in the appropriate unit (i.e., the drivers). 2. Execute the supplemental contract that had been agreed to, on October 23, 1979. 3. Give the aforesaid contract retroactive effect, as of January 1, 1980. 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Jointly and severally make whole the employees in the bargaining unit for any loss of earnings or benefits they may have suffered by reason of the Respondents' failure to implement the supplemental contract. On November 18, 1981, the Board at 259 NLRB 336 affirmed the administrative law judge's decision and adopted his recommended Order. Thereafter, on June 14, 1982, the Respondents filed a motion to the Board re- questing that the case be reopened to receive in evidence a letter written on July 31, 1981, by the Union's presi- dent, John Cody. The Respondents asserted that if the letter were received in evidence, it would establish that the Union, as of July 31, 1981, had abrogated the con- tract that the Respondents had previously been ordered to sign. It is obvious that this letter was sent by the Union after the Respondents had refused to execute or implement the contract. It also appears, at least on the basis of the Respondents' offer of proof, that the letter was sent after the employees had engaged in a strike to protest the Respondents' refusal to sign the agreement, and after the Respondents had replaced the strikers with new employees. The letter read: This letter is to inform you that any tentative, or permanent agreement that was made by Local 282 and your corporation, and/or subsidiary represented by your company is hereby fmis. In its motion the Respondents argued: It is contended that such evidence would cause the Board to reconsider its decision and conclude that the respondents had not violated Section 8(a)(1) and (5) of the Act by refusing to sign and execute a col- lective bargaining agreement with Local 282. Even were the Board to conclude that respondents and Local 282 had reached an agreement with respect to a collective bargaining agreement it is contended that the introduction of Exhibit "A" (Cody's letter) would have caused the Board to conclude that such agreement would have been of no force and effect as of July 31, 1981. Thus, it is contended that upon the introduction of the aforesaid exhibit in a re- opened record, the Board would, at the 'very least, modify its Decision and Order with respect to re- spondents' duties and obligations to Local 282 and to the employees covered by the terms of such agreement. On July 7, 1982, the Board issued an Order denying the Respondents' motion to reopen the record on the grounds that the motion was untimely and lacked merit. On'September 17, 1982, the Second Circuit Court of Ap- peals enforced the Board's Order in 259 NLRB 336. H. CONTENTIONS OF THE PARTIES In essence, the General Counsel's formula for backpay is relatively simple. Basically, what she set out to prove was the identity of those employees who had been em- ployed in the bargaining unit since January 1, 1980 (i.e., drivers), and to show the difference between what they would have earned had the contract been implemented from what they actually earned. Although the Respond- ents raise a number of defenses relating to the duration of the backpay period and whether particular individuals were employed in bargaining unit jobs, they do not chal- lenge the arithmetic computations made by the General Counsel that have finally been amended after the hearing closed. The General Counsel also contends that, in addition to the three Respondents named in the underlying case, a fourth company called Triple A Leasing Inc. should also be liable as an alter ego of the original Respondents. She further argues that Edward and Alicia Jost, as the joint owners, directors, and officers of the respective corpora- tions, should be held individually liable for the backpay. The Respondents make the following contentions: (1) They argue that in July 1980, the employees en- gaged in a "wildcat strike," which therefore had the effect of abrogating the collective-bargaining agreement. The Respondents contend that the backpay period should therefore terminate as of July 1980. (2) The Respondents alternatively contend that the Union abrogated the contract on July 31, 1981, when Union President Cody sent a letter advising that the agreement "is hereby finis." This date is therefore posit- ed as an alternative date when the backpay period should end. (3) The Respondents contend that even if the forego- ing two points are rejected, the backpay period should end on the termination date of the contract that was June 31, 1982. In this respect, the Respondents argue that they cannot be held liable for contractual obligations after the contract expired. They assert that this is par- ticularly true in this case because the Union made no se- rious effort to bargain for a new contract to replace the expired contract and the Union never alleged that the Respondents, in this respect, had bargained in bad faith. Thus, according to the Respondents, as the contract ex- pired on June 31, 1982, and as no new, contract was ne- gotiated thereafter, there can be no basis for the General Counsel's assertion that the contractual wages and bene- fits should be extended beyond the contracts' termination date. With respect to the above, the General Counsel asserts that for backpay purposes the terms and conditions of the contract should continue in force and effect for a reasonable period of time beyond its expiration date. She argues two alternative periods; for 1 year beyond the ex- piration date, or alternatively for 6 months beyond its ex- piration date. (4) The Respondents assert that subsequent to the wildcat strike, certain employees were hired with the un- derstanding that they would not be covered by the col- lective-bargaining agreement and that they accepted such employment with the understanding that they would not be entitled to the contract's rate of pay or fringe benefits. (5) The Respondents assert that certain of the employ- ees listed in the backpay specification either were never employed as drivers or were employed in other capac- ities for part of their employment. In this respect, there was testimony presented by both sides as to the employ- ment duties of certain employees. It is noted that the General Counsel concedes that any employee who was AIR VAC INDUSTRIES 709 not employed as a driver would not be in the bargaining unit and would therefore not be entitled to backpay. Similarly she concedes that any employee who during a discreet period of time only did nondriving work, would not be entitled to backpay during that period of time. However, she contends that when an employee, during periods of his employment, did both driving and non- driving work, he should be construed as a dual function employee, thereby covered by the contract and therefore entitled to backpay. (6) The Respondents deny that Triple A Leasing is an alter ego of the originally named Respondents. They also assert that Edward and Alicia Jost should not be person- ally liable. It is also contended that neither Triple A Leasing nor the Josts should even be parties to this pro- ceeding as they never were charged in the initial pro- ceeding as having violated the Act. III. PRELIMINARY CONCLUSIONS On October 25, 1983, I granted in part the General Counsel's motion to strike certain of the Respondents' defenses. I reaffirm my ruling of October 25, although as to the wildcat strike issue, my rationale is now different. My conclusions in these respects are as follows: 1. The Respondents argued that the backpay period should end on July 31, 1981, on the receipt of Cody's letter (described above), in which he stated that the agreement "is hereby finis." However, on July 7, 1982, the Board denied the Respondents' motion to reopen the record in the initial proceeding. As the Respondents in that motion sought to show that this letter abrogated the contract and as the Board denied the motion both on the merits and as being untimely, it seems to me that the Board has already passed on this issue and that it there- fore is not properly before me. 2. The Respondents contended that by virtue of a "wildcat strike" in July 1980, the collective- bargaining agreement was rescinded thereby cutting off backpay from that point. Initially, in her motion to strike this defense, the Gen- eral Counsel noted that the alleged wildcat strike oc- curred more than 4 months before the hearing in the un- derlying case. She argued, therefore, that this was a fact known to the Respondents which should have been raised in the initial hearing before Judge Edelman. On the other hand, the Respondents point out that during that hearing, the judge precluded evidence regarding the strike. Vii In Marathon Electric Mfg. Corp., 106 NLRB 117,1, 1180 (1953), affd. 223 F.2d 338, 341 (D.C. Cir. 1955), the Board held that when a union is responsible fora trike in breach of a contract's no strike clause, the unio iZould forfeit its bargaining rights and the employes, could cancel the contract until such time as the strike was ter- minated . The Board also held, in the circumstil4ttes of that case, that when the strikers had been lawfo* dis- charged and the union no longer represented a n}prity, the employer could lawfully withdraw recognition. In my opinion the present case is distinguishable from Marathon Electric. Thus, even if the Respondeni!s c ould prove the existence of the strike, such proof wck 1 not constitute a valid defense. First, the Respondents asserted that the strike was a wildcat strike in the sense that it was the employees and not the Union who were respon- sible. Thus, unlike the facts of Marathon Electric, in which the union was held to be responsible for the strike, no such contention is made herein . As it is the Union and not the employees which is party to the col- lective-bargaining agreement, it cannot be said that unau- thorized actions by the employees could serve to rescind the agreement. Second, the underlying issue in this case was the refusal by the Respondents to execute and en- force the terms and conditions of the collective-bargain- ing agreement . In this regard, the Respondents' offer of proof clearly indicated that the employees engaged in the strike because of their Employers' refusal to sign the contract. Accordingly, as the strike occurred only be- cause of the Employers' repudiation of the contract, I reject as without merit their contention that the strike action released the Respondents from their duties to exe- cute and honor the agreement. Cf. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1950). 3. In accordance with my conclusions that neither the Cody letter of July 31, 1981, nor the alleged wildcat strike of July 1980 can serve to abrogate the contract, it follows that the Respondents were not free to bargain di- rectly with employees within the bargaining unit and were not free to make private agreements with such em- ployees to the effect that they were not to be covered by the terms and conditions of the collective- bargaining agreement. Indeed any such agreements, if made, would have been contrary to the specific terms of the Board's Order in the underlying case. Accordingly, this defense is also rejected.2 IV. THE CORPORATE STRUCTURE AND THE RELATIONSHIP OF THE JOSTS TO THE CORPORATIONS In the underlying case, the judge found that Leeward Constructors, formed in 1970, and Air Vac Industries, formed in 1971, were owned jointly by Edward and Alicia Jost (each owned 50 percent of the shares), and were engaged in the business of performing maintenance and rehabilitation work on drain and sewer systems for various municipalities, mainly on Long Island. He fur- ther found that in November 1977, Air Vac Industries began performing work for private construction compa- 2 In its answer, the Respondents contended that employees Thomas Sallie, Charles Hensel , and David Hayes were discharged for cause and therefore not entitled to any backpay beyond the dates of their respective discharges This issue, however, is not before me as the General Counsel, in this proceeding, is not seeking any backpay for these employees beyond the dates of their discharge With respect to the discharges of the foregoing employees , I note that an unfair labor practice charge was filed on their behalf alleging that their discharges were violative of the Act However , those charges were deferred by the Regional Director because the Union initiated arbitration proceedings in which the arbitrator ruled that the discharges constituted breaches of the contract When the Respondents refused to comply with the arbitration award, the Union filed a lawsuit to confirm the award At the time of this hearing, that lawsuit was still pending In regard to the above , the General Counsel, while not seeking back- pay for these individuals beyond the date of their discharges, nevertheless reserved the right to initiate subsequent backpay proceedings if the ques- tion regarding their discharges was neither fully dealt with in the arbitra- tion proceeding or in any unfair labor practice proceeding which might become necessary. 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nies, as a result of which it entered into a contract with the Union covering its drivers. The judge concluded that pursuant to an oral agreement with the Union, Air Vac Industries was to perform work for construction compa- nies whereas Leeward was to confine its work to the public sector. In accordance with this agreement, em- ployees when they worked on construction jobs were to be covered by the labor agreement whereas employees would not be covered by the contract when they per- formed work for municipalities. According to the judge, in 1979, certain of the em- ployees became dissatisfied with the arrangement because some were not getting the benefit of the collective-bar- gaining agreement. Accordingly, after a strike, Edward entered into a supplemental agreement, to become effec- tive on January 1, 1980, which was to encompass the drivers employed by Air Vac Industries and Leeward, ir- respective of where the employees worked. It was this agreement that Edward repudiated in January 1980 when he notified the employees of his refusal to sign it. In January 1980, Edward transferred the employees on Leeward's payroll to the payroll of, another company, Air Vac Environmental, which had been formed in 1979 and which was also owned by the Josts. This new com- pany, which was located at the same premises as Air Vac Industries and Leeward, was held to be an alter ego of Leeward by the judge in the underlying case.3 In addition to the above, the record in the present case reveals the existence of several other corporations owned and operated by the Josts, some of which were in exist- ence at the time of the hearing in the initial case and some of which came into being at a subsequent time. Thus, according to Edward, LAV Truck Repair was formed in 1976 and was the entity that purchased the trucks and equipment used by Air Vac Industries and Leeward. He testified that this corporation, which had no employees, was owned equally by himself and his wife and that they both were the sole directors and offi- cers of the' corporation. Edward also testified that he and his wife are the sole shareholders, directors, and officers of a corporation called 45 Terry Road Inc., which was formed in 1980 and which existed for the purpose of owning the facility where Leeward, Air Vac Environ- mental, and Triple A did business. Additionally, Edward testified that he was the owner of a corporation called Leeward Charters (formed in 1975-1976) and was also the owner of a company called Air Vac of Virginia that purportedly did work in that State. This record shows that in early 1981, the Josts formed yet another corporation called Triple A Leasing Inc., in which Edward and Alicia Jost were equal shareholders and were the company's directors and officers. This transaction occurred within a month of the hearing in the underlying case. Also on January 4, 1981, the trucks and equipment which, according to Edward had origi- nally been,purchased by LAV and registered to Air Vac Industries, were transferred without consideration to Triple A. As a consequence, it appears that LAV, Air s As noted above the judge also concluded that Air Vac Industries, Leeward, and Air Vac Environmental constituted a single employer having a single bargaining unit. Vac Industries, and Leeward became defunct (albeit no formal dissolution occurred), and their functions were taken over by Air Vac Environmental and Triple A. In this regard it appears that as of January 4, 1981, there were in operational existence, Triple A which employed no one but which held title to the trucks and equipment utilized by Air Vac Environmental which employed the work force. At the same time, 45 Terry Road Inc. con- tinued in existence as the owner of the property used by the other two corporations. Later, in May 1983, the Josts formed one more corporation called Leed Properties, which apparently exists for the purpose of owning prop- erty at 230 Main Street, Sayville, Long Island. As found in the prior case, Air Vac Environmental was the alter ego of Leeward and both were held to be a single employer with Air Vac Industries. As demonstrat- ed in the present case, there is little doubt that Air Vac Environmental was formed in an attempt to escape the bargaining agreement obligations of Air Vac Industries and Leeward and to avoid financial obligations incurred under that agreement. By the same token, I have no doubt that Triple A was created for the same purpose; to wit, to insulate the Respondents' assets from various li- abilities, including, backpay liability.4 Thus, Triple A was 4 I note the following testimony of Edward Jost: Q Mr. Jost, is it a fact that with respect to the town of Hunting- ton, that Triple A does the exact type of work previously done by Air Vac Industries? A. To a certain degree, yes Q. To a certain degree? Isn't it totally the same? A Not quite. JUDGE GREEN. What is the difference between Triple A and LAV? A LAV has financial problems. JUDGE GREEN. What does that mean? A. Financially its unsound JUDGE GREEN: Does it owe a lot of money to a lot of people? A Yes JUDGE GREEN- Are there outstanding loans that have not yet been paid? Are there lawsuits against LAV? A I don't think there are any lawsuits at present. JUDGE GREEN: LAV was dormant, and Triple A leasing. A Took its place. ,glylyUDJUDGE GREEN: And when was Triple A formed? 911.1 an1A. When LAV was in trouble. JUDGE GREEN And it was in trouble because people were suing it 0811 , IA. Right. sdi ,(Z(. . 93Ii1J2 JUDGE GREEN: Why do you have all these corporations? What blrto sic) the point? For insurance purposes1 bluoo k. Air Vac Industries and Leeward are no longer doing any bust- •3s$ at ss LAV is the one doing business. Those two corporations have }o Zip replaced by two, namely Triple A and Air Vac Environmental. Zip the main reason that was done is that originally Air Vac Indus- es held a union contract, Leeward did non-union work, so the two ' i1C fe not combined, they were separate entities. moil 5. When these two corporations ceased to do any work because 3Ilro6)f2the boycott etc , they couldn't pay their bills, and they had enor- Q^ggous debt against them, no credit and they weren 't able to function. Oft ^1ldey were replaced by the youngest, which was the healthiest at the )5$2s ata, which was Environmental AIR VAC INDUSTRIES formed immediately after the heafmg before Judge Edel- man and substantial assets were transferred, without pay- ment to that Company from Air Vac Industries. More- over, the record shows that it had no reason for being other than to hold title to assets which were, in fact, uti- lized thereafter by Air Vac Environmental, a party held liable in the original case. I am therefore persuaded that Triple ,AL was formed solely for the purpose of sheltering the assets of the original Respondents and to shield such assets from attachment in the event backpay was or- dered.`' As such, I conclude that Triple A was properly made a party in this supplemental proceeding and should be held liable for backpay. I also reject, as without merit, the contention that Triple A should not be made a party because it was not named in the initial proceedings. G & M Lath & Plaster Co., 252 NLRB 969, 978 (1980); South- eastern Envelope Co., 246 NLRB 423 (1979). I shall also conclude that the Josts should be held per- sonally liable for the reasons set forth below: The lead case dealing with the question whether the corporate veil can be pierced is Riley Aeronautic Corp., 178 NLRB 495 (1969).6 In Riley the Board stated at 501: "[E]asily the most distinctive attribute of the cor- poration is its existence in the eye of the law as a legal entity and artificial personality distinct and separate from the stockholders and officers who compose it." Wormser, Disregard of the Corporation Fiction and Allied Corporation Problems (Baker, Voorhis and Company, 1927), p. 11. "The insulation of a stockholder from the debts and obligations of his corporation is the norm, not the exception." N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398, 402- 403, Nevertheless, the corporate veil will be pierced whenever it is' employed to perpetrate fraud, evade existing obligations, or circumvent a statute. Isaac Schieber, et -al., individually, and Allen Hat Co., 26 NLRB 937, 964, enfd. 116 F.2d (C.A. 8). Thus, in the field of labor relations, the courts and Board have looked beyond organizational form where' an individual or corporate employer was no more than an alter ego or a "disguised continuance of the old employer" (Southport Petroleum Co. v. N.L.R.B., 315 U.S. 100, 106); or was in active concert or par- ticipation in a scheme or plan of evasion (N.L.R.B. v. Hopwood,Retinning Co., 104 F.2d 302, 304 (C.A. 2)); or siphoned off assets for the purpose of render- ing insolvent and frustrating a monetary obligation such as backpay (N.L R:B. v. Deena Artware, Inc., supra, 361 U.S. 398); or so integrated or intermin- gled his assets and affairs that "no distinct corporate lines are maintained." (Id. at 403). As noted above, the Josts are and have been the share- holders, directors, and officers of Air Vac Industries, Air 5 I would not be surprised if, subsequent to this hearing, the Josts transferred assets to one of the other corporations such as Leed Proper- ties, or created new corporations. 6 See also Contris Packing Co, 268 NLRB 193 (1983); Campos Slacks, Inc., 266 NLRB 492 (1983); Concrete Mfg. Co., 262 NLRB 727 (1982),,G & M Lath & Plaster Co, 252 NLR]5 969 (1980); Chef Nathan Sez' Eat Here, 201 NLRB 343 (1973). 711 Vac °Environmental, Leeward, Triple A, and a number of other related corporations including 45 Terry Road Inc., which owns the facility where the Respondents do business. There is substantial evidence in this record that the Josts have utilized these corporations not merely for their business affairs, but also for their personal affairs as well. Thus, the record discloses that the personal car of Alicia Jost (a Lotus bought in 1979 for about $15,000), was initially registered to Air Vac Industries and thereaf- ter transferred to her about 1982. Although Edward claims that Alicia paid Air Vac $2000 for the car, there are, no records or other documents proving this assertion. Further, the record shows that-installment payments for this car have been made both by Air Vac Industries and Air Vac Environmental. The record also shows that Edward owns a Mercedes Benz car purchased in 1979 through a loan from the Chemical Bank. Here too, the evidence shows that on a regular basis, payments to the Chemical Bank (about $500 per month), have been made by Triple A and Air Vac Environmental. In addition to the use of corporate funds to pay for the private (and rather expensive) automobiles used by the Josts, the evidence shows that Triple A and Air Vac En- vironmental have made substantial payments to pay for the mortgage on the Josts' private home. Further, both companies have made payments to a yacht club of which Edward is a member and a golf club of which he is a member and no assertion was made by the Respondents that these expenses were business related. The record shows that these payments, as well as other sizeable cash disbursements to the Josts, have been made without any formal written authorization or documentation to show the extent, nature, or purpose of such disbursements. In effect, it is apparent that the Josts have utilized their var- ious corporations as a private bank, feeling free to com- mingle their own personal assets and liabilities along with corporate assets and debts. I have already conclud- ed that Air Vac Environmental was set up to avoid debts and liabilities incurred by the Josts' other companies, namely Air Vac Industries, Leeward, and' LAV. Further, I have already concluded that Triple A was created in an attempt to shield certain assets of the foregoing com- panies from attachment in the event that they were held liable as a result of the underlying case. Because it is my opinion that the Josts have had a history of creating new corporations and shifting assets whenever there is the likelihood that their existing corporations may be com- pelled to pay their debts, there exists a clear 'and present danger, that they will continue to create new, and as yet unnamed, corporate entities for the purpose of evading the legal' obligations owed by their existing corporations. Therefore, given the evidence in this case,' it is conclud- ed that all these circumstances warrant piercing the cor- porate veil in order to holdthe Josts individually liable. V. THE BACKPAY PERIOD As noted above, I have rejected as without merit the Respondents' assertions that (1) the backpay period should terminate as of July 1980 when the wildcat strike occurred, or (2) as of July 31, 1981, when the union president, John Cody, sent his letter to the Company. 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends that in this type of case the employees of the companies should receive the con- tractual benefits beyond the expiration date of the con- tract. In this respect, she asserts that these contractual benefits should be'extended for 1 year beyond the con- tract's termination date (June 31, 1983) or, alternatively, for 6 months beyond the expiration date of the contract. The Respondents on the other hand argue that since the backpay period is premised on the failure by the compa- nies to enforce the contract, any contractual obligations should perforce terminate when the contract expired. The Respondents argue that this conclusion must be reached especially in the circumstances of this case, be- cause on the contract's termination, the Union did not seek to negotiate for any new contract. With respect to the above, the evidence shows that on April 22, 1982, a clerical employee of the Union, pursu- ant to the notice provisions of Section 8(d) of the Act, sent a letter to Edward notifying him that the Union de- sired to modify the contract which was to expire on June 30, 1982. Although Edward denies receiving this letter, his denial is not credited as his signature appears on the postal return receipt. Nevertheless, the evidence also shows that after this letter was sent (and not re- sponded to by Edward), the Union made no further ef- forts to communicate its desire to negotiate for a new contract. Also I am not aware that the Union made any contentions to the Board's Regional Office that the Re- spondents had refused to bargain.' Pursuant to applicable Board precedent, the provisions of a collective-bargaining agreement, exclusive of such items as checkoff and union-security provisions, survive the expiration of the contract until such time as a new agreement is made, or until an impasse is reached, or until it is legally discharged in some other manner from its obligations to bargain with a labor organization. Acme Wire Works, 251 NLRB 1567, 1568 (1980). In Hen House Market No. 3 v. NLRB, 428 F.2d 133 (8th Cir. 1970), the court enforced the Board's Order requiring the respond- ents to make payments to various funds even after the expiration of the collective-bargaining agreement. It re- jected the respondents' reliance on . H. K Porter Co. v. NLRB, 397 U.S. 99 (1970), and stated: The order does not compel petitioner to agree to any new or different contract provision;, it simply requires him to abide by an obligation once extant by reason of the binding contract but then continu- ing on after its expiration, in limited form, not by reason of the contract itself but because of the dic- tates of the policy embodied in the National Labor Relations Act.8 The rationale for this principle does not rest on a modification of any theories of traditional contract law. 7 Had the Union wanted to allege that the Respondents had refused to bargain in 1982, it could either have filed a new unfair labor practice charge or asked the Board's Regional Office to seek contempt of the court's order enforcing the Board's Order in the underlying case 8 See also Alle Arecibo Corp., 264 NLRB 1267, 1274 (1982), Wayne's Dairy, 223 NLRB 260 (1976), Sioux Falls Stock Yards, 236 NLRB 543, 546-547 (1978). Rather it rests on the proposition enunciated in Fibre- board Paper Products Corp. v. NLRB, 379 U.S. 203, 206 (1964), that an employer, having an obligation to bargain with a union, may not unilaterally modify its employees' existing terms and conditions of employment without bargaining in good faith with the union. Thus, such terms and conditions of employment which are in exist- ence as of the expiration date of a labor contract contin- ue to exist, not because the contract's life is extended per se, but because they represent the terms and conditions of employment then extant, which therefore cannot be unilaterally changed absent a new agreement, an impasse, a waiver, or some other legitimate condition. In this regard, the Board in Sacramento' Union, 258 NLRB 1074, 1075 (1981), stated: The Board has held that an employer's duty to bargain over changes in established terms and con- ditions of employment is not relieved by the expira- tion of a collective-bargaining agreement. Although the expiration of a contract may permit an employ- er to negotiate new and different terms, it may not, absent an impasse or waiver by the Union, unilater- ally change established practices with respect to mandatory subjects of bargaining, even if these practices may have constituted a deviation from the letter of the parties' expired agreement. Thus, con- trary to the Administrative Law Judge's rationale, the relationship of the Union's general laws govern- ing priority vis-a-vis the expired contract is not de- terminative of whether Respondent was free to es- tablish its own priority criteria upon expiration of the contract. Rather, the issues before us are wheth- er Respondent's conduct constituted a departure from its past practice which significantly affected the terms and conditions of employment of the bar- gaining unit and whether such action was taken without bargaining with the Union. In the present case had the parties commenced negoti- ations for a new contract, the backpay, period would have been defined as terminating either on the date when a new contract was reached or when an impassed oc- curred. The problem here is that notwithstanding the Union's letter of April 22, 1982, the Union made no fur- ther effort to seek negotiations and `bargaining never ensued. In short, the Company contends that it had no obligation to continue the contract's terms in perpetuity when the Union never made a serious effort to bargain. In effect, therefore, the Respondents seemingly assert that the Union had waived its right to bargain when it failed to take any further action after April 22 or after the contract had expired. In the circumstances of this case, I am inclined to agree with the Respondents' contention on this point. It seems to me that the obligation to maintain the existing terms of a collective-bargaining agreement beyond its ex- piration date is founded on the principle that an employ- er may not unilaterally change those existing conditions of employment, absent a new contract, impasse, waiver, or some other event which would discharge the employ- er's obligation to bargain. As it is my opinion that the AIR VAC INDUSTRIES Union did not make any serious effort to seek renegoti- ation of its expired contract or to protect its bargaining rights thereafter, it therefore was impossible for a new contract to be made or for an impasse to be reached. In- asmuch as the Respondents, by virtue of the Union's in- action, had no party to bargain with, I do not believe it was obligated to maintain in effect the existing contract for an indefinite period. I therefore find that the Union had waived its bargaining rights regarding the Respond- ents' changes in wage rates and other conditions of em- ployment insofar as they were represented in the expired contract. Given my opinion that the Union had waived its right to bargain over the Respondents' failure to continue the contractual wage rates and fringe benefits, I do not accept the General Counsel's argument that the terms and conditions of the expired contract should be contin- ued either for 1 year or for 6 months after its expiration. In support of her contention that a 1-year period is ap- propriate, the General Counsel analogizes this case to Mar-Jac Poultry Co., 136 NLRB 785 (1962). However, I do not think that such an analogy is apposite as the rule in Mar Jac Poultry is applicable to an entirely different circumstance. That is, in Mar-Jac Poultry the Board or- dered that the certification year set out in Section 9 of the Act'should be extended fir an additional year when a company refused to bargain after the union had won an NLRB-conducted election. The alternative period of 6 months proposed by the General Counsel is, to my_mind, equally, unpersuasive. In this regard, it appears that the General Counsel is seeking to extend the contract's terms and conditions for a period consistent with the statute of limitations set out in Section 10(b) of the Act. The prob- lem here is that the Union never contended that the Re- spondents had refused to bargain at any time, and I therefore am without power to hold that any alleged fail- ure to bargain after the contract's expiration was' unlaw- ful. Accordingly, I shall recommend that the backpay period terminate as of June 30, 1982. VI. THE CLASS OF EMPLOYEES ENTITLED TO BACKPAY In view of my conclusion that the backpay period should terminate as of June 30, 1982, those employees who were hired after that date would not be entitled to backpay. These employees are Wayne Bombara, Wayne Sutherland, and Daniel Thatford. As previously indicated, the class of employees enti- tled to backpay are all drivers employed by the Re- spondents. In this regard there is no dispute that certain employees were in fact drivers at all relevant times herein. These are Daniel Hayes, Charles Hensel, Thomas Sallie,9 Thomas ' Simpson, Brian Hotten, and Fruedden Volkert. Accordingly, I find that the amounts owed to these individuals are as follows: 9 As noted above in fn. 2, the General Counsel is not seeking, in this proceeding, backpay for Thomas Sallie; Charles Hensel, and David Hayes, after their respective discharges, Also noted is that at the hearing, the General Counsel deleted Steven Riggs from the backpay specification. 713 Name of Employee Backpay10 Welfare Fund Pension Fund' I 1. Daniel Hayes ............... $444 $683 0 2. Charles Hensel ........... 940 1291 0 3. Thomas Sallie .............. 144 225 0 4. Thomas Simpson ........ 608 717 0 5. Brian Hotten ............... 4048 3700 0 6. Fruedden Volkert ....... 1167 851 0 With respect to Robert Boerner, the evidence shows that he was hired on April 1, 1980, and ceased working for the Respondents on August 22, 1980. The credible evidence establishes that he was principally employed as a driver, although on occasion he also worked as a labor- er (the parties agree that laborers were not covered by the contract). As the evidence shows that during the period of his employment, Boerner was principally em- ployed as a driver, and to a lesser extent as a dual-func- tion employee, it is concluded that his terms and condi- tions of employment were, at all relevant times, gov- erned by the provisions of the contract.12 Accordingly, the total amount of backpay due him would be $930 and the amount of the welfare fund contribution due would be $839. Scott Warren was initially hired in 1977 as a laborer. However, as of the commencement of the backpay period he was employed as a driver and he ceased work- ing' for the Respondents in July 1980. Prior to his leaving the Respondents, he was exclusively assigned, for a few months, to operating a TV truck, which job category is not covered by the labor agreement. As such, the Gener- al Counsel in her brief, amended the backpay specifica- tion to delete this latter period (the third quarter of 1980). Therefore, it is concluded that'the total backpay due to Warren is $488 and that the Respondents' debt to the welfare fund is $664. With respect to Jeffrey Claudio, the evidence shows that he was hired in the first quarter of 1980 and that he was taught to be a driver by,, Daniel Hayes. Although conceding that Claudio was employed as a driver (on the payroll of Leeward Constructors), , the Respondents argue that he only worked in North Carolina and there- fore was not covered by the contract. I disagree, as there is nothing in the contract and no other evidence to show that the contract was limited in a geographic manner. Therefore, because the evidence shows that Claudio was 10 The backpay figures in this column consolidate wages, annuities, un- compensated overtime, uncompensated holidays, and uncompensated va- cations. 11 Moneys owed for welfare fund and pension fund contribution should be made payable to such funds on behalf of the accounts of the respective employees. 12 Ordinarily employees who do nonbargaining unit work as well as bargaining unit work (i e., dual-function employees), are included in the bargaining unit if they regularly perform duties similar to those per- formed by unit employees for periods of time sufficient to establish a community of interest See, e.g., Berea Pubhshing Co, 140 NLRB 516 (1963); Faulks Bros Construction Co., 176 NLRB 324 (1969); Royal Com- municating Graphics, 176 NLRB 163 (1969). I note too that the Respond- ents have not shown that the contracting parties intended to exclude such dual-function employees from, contractual coverage 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employed by Leeward as a driver, I shall conclude that he is entitled to the backpay as asserted by the General Counsel. Accordingly, the total amount of backpay due to Claudio is $659 and the amount due to the welfare fund is $297. The evidence shows that George Sutherland was hired by Air Vac, Environmental as a driver. Like Robert Boerner, although Sutherland may have worked inter- mittently as a laborer, he nevertheless was principally employed as a driver during his term of employment. Accordingly, I conclude that the total amount of back- pay owed to him is $4684, that the amount owed to the welfare fund is $1832, and that the amount owed to the pension fund is $408. George Bergbuchler initially was hired as a laborer. However, after 1 month, he became a driver and worked in that capacity until he left the Respondents' employ. As the record showed that during the first month of his employment, Bergbuchler was not employed in a bar- gaining unit job, the General Counsel amended the back- pay specification to reflect this fact. Accordingly, I fmd that the total backpay owed to him is $4370, that the amount of the welfare fund contribution owed is $2843, and the amount of the pension fund contribution owed is $36. Regarding Michael Baxter, the evidence establishes that he was hired by Air Vac Environmental and worked for approximately 8 months. Edward testified that Baxter worked as a driver for only a few days until he had an accident. However, the credible testimony of Baxter was that he primarily worked as a driver throughout the term of his employment except for a few days when he first learned to drive the trucks, a few days when he worked in the yard, and a few days when he worked as a helper. Based on Baxter's testimony, which I credit, I shall fmd that he is entitled to backpay in accordance with the specification. Therefore, it is con- cluded that he is owed $746 and that the amount owed to the welfare fund is $447. With respect to Peter Coviello, the evidence at the hearing showed that although he was hired in the spring of 1982, he worked as a driver for only the last 3 months of his employment (i.e., the summer of 1982). As it there- fore appears that Coviello only worked as a driver after the backpay period 'ended, I shall conclude that no money is owed to him. Regarding Paul Komorowski, the record shows that he was initially hired by Air Vac Environmental in the fourth quarter of 1980, but did not work again until his reemployment in early 1982. According to Edward, Ko- morowski was initially hired as a laborer and did not become a driver until 1983. Komorowski did not testify in this proceeding, although Peter Beaton, who was em- ployed by the Respondents from February 1982 to De- cember 1982, testified that Komorowski drove a vactor truck on jobs in Brookhaven during that period. Also, Stephen Reus, who was employed by the Respondents during the third and fourth quarters of 1980, testified that he observed Komorowski driving a truck during 1980. Therefore, based on the evidence as a whole, I shall conclude that Komorowski was a driver during his employment. Accordingly, I shall conclude that he is owed total backpay in the amount of $3507 and that the Respondents owe $1128 and $402 respectively to the welfare and pension funds. The record establishes that Stephen Reus was hired and employed as a driver since the summer of 1980. Al- though the Respondents assert that he should not receive backpay during certain periods-when he worked for Air Vac Environmental in New Jersey and Boston, Massa- chusetts, I reject this contention for the same -reasons dis- cussed above with respect to Claudio. Therefore, I con- clude that Reus is owed total backpay in the amount of $2450 and that the Respondents owe welfare fund contri- butions in the amount of $2884. Although Edward claims that Scott Dugan never worked as a driver, the credible testimony of Dugan was that after being a laborer for I week, he was transferred to a driving position. Therefore, I conclude that Dugan is entitled to the backpay sought on his behalf as set forth in the amended specification. As such, I conclude that he is owed total backpay in the amount of $323 and that the Respondents owe welfare fund contributions in the amount of $397. With respect to Michael Felpo, hired in the third quar- ter of 1980, the credible testimony of Felpo establishes that he drove a vactor truck during the period of his em- ployment at Air Vac Environmental. Therefore, I con- clude that he is entitled to total backpay in the, amount of $192 and that the Respondents owe contributions to the welfare fund in the amount of $236. As to Peter Beaton, the evidence shows that he began his employment in the first quarter of 1982 for Air Vac Environmental. He credibly testified that during the entire period of his employment he worked about 75 per- cent of his time as a driver and the remaining 25 percent as a laborer. For the same reasons discussed above with respect to Boerner, it is concluded that Beaton was a dual-function employee covered by the terms and condi- tions of the contract. As such I conclude that he is enti- tled to backpay, in the amount of $2910 and that the Re- spondents owe welfare and pension fund contributions respectively of $829 and $385. In addition to the above, it further is recommended that the Respondent pay interest on the above amounts at the appropriate rate of interest in accordance, with Florida Steel Corp., 231 NLRB 651 (1977), such interest to accrue commencing with the last day of each calendar quarter of the backpay period on the amounts due and owing for each quarterly period as set forth above, and continuing until the date this decision is complied with, minus the withholdings required by Federal and state laws. [Appendices A and B omitted from publication.] SECOND SUPPLEMENTAL DECISION RAYMOND P. GREEN, Administrative Law Judge. This supplemental proceeding was heard by me in July 1985 pursuant to a remand order by the Board in November 1984. Initially, I had issued a decision and recommended Order in May 1984 holding that the Respondents owed moneys to certain of its employees as well as to certain trust funds based on the Respondents' failure to abide by AIR VAC INDUSTRIES the terms of a collective-bargaining; agreement-between' it and the Union. The Respondents asserted during the initial backpay proceeding and in its exceptions to the Board that the backpay period should end- 31 July 1981. They made this claim based on a letter sent from the Union's president John Cody to Air Vac which the Respondents contend manifested the Union's intention to terminate the collec- tive-bargaining agreement. For reasons stated in my ear- her backpay decision, I conclude that this defense had no merit. Nevertheless, by Order dated 6 November 1984, the Board concluded that this asserted defense warranted a further hearing to receive record testimony. Although I initially set the hearing for 11 January 1985, the hearing was adjourned on several occasions pursuant to requests by both the General Counsel and by the Respondents' counsel. In this regard, the General Counsel asked for certain adjournments because one of her prospective witnesses (Andy Boggia) was too ill to appear. He ultimately ' died before the hearing was held and his pretrial affidavit was received into evidence, with due consideration for the limited weight it may be accorded. Customs Coated Products, 245 NLRB 33 (1979). Counsel for the Respondents also requested a number of adjournments which raised a rather different and unusual issue as described below. By mailgram dated 14 May 1985, the Respondents' counsel asked for an adjournment of the hearing then scheduled to commence on 23 May. This mailgram read: Due to fact undersigned was unable to contact client Edward Jost for two months until evening of May 12 and as client has obtained employment in California and will not be in the State of New York at same time as undersigned until July 16, request adjournment any time in period July 16 July 29, 1985. At present have no way of contacting client. The above adjournment request was vigorously op- posed by the General Counsel. Nevertheless I granted it until 16 July. On 10 July 1985 I received a copy of a mailgram sent by the Respondents' counsel to his client. This read as follows: Due to inability to reach you and as a result of your failure to pay longstanding legal fees I cannot repre- sent you on July 16, 17 and July 19. I would sug- gest you call me at office or home to advise for rep- resentation in the above matters. Must hear from you by Friday July 12. No later. On 16 July 1 reopened the hearing in this case where- upon the Respondents' counsel informed me that he was owed substantial legal fees by Edward and being a single practitioner could no longer represent him. (Edward was, not present.) He therefore made a motion to withdraw from the case and also moved for a further adjournment so as to give Edward time to obtain other legal represen- tation. Considering with great sympathy counsel's predica- ment, I also had to consider that this case was now more than 5 years old (from the filing of the charge), That the 715 same'•law firm had represented these Respondents during that entire period of time, and that there was no reasona- ble assurance that Jost would be able to obtain another lawyer. Balancing the equities, I therefore decided to deny counsel's motion to withdraw and his concommi- tant motion for an adjournment. See, e.g., U.S. v. Maines, 462 F.Supp. 15 (1978).1 The Respondents' counsel then remained for the remainder of the day and made various legal arguments concerning the General Counsel's evi- dence.2 On the following morning, the hearing was moved to the Danbury Federal Penitentiary to take the testimony of John Cody who was there in temporary residence. Al- though the Respondents' counsel ,did not appear, Edward, to my surprise, did. After Cody testified, I told Edward that if he wanted to present evidence on his own behalf, he could do so, but had to do so under oath. He was given an opportunity to call his attorney but was unable to reach him._ When he thereupon asked for an- other adjournment, which I declined, Edward decided not to testify. The hearing was thereupon closed.3 Turning to the merits of the controversy requires that I briefly recapitulate the case's history. On 18 November 1981 the Board (259 NLRB 336) affirmed the administra- tive law judge's decision in which he held that certain of the Respondents, as a single employer, had refused to execute a collective-bargaining agreement which had been agreed to on 23 October 1979. The judge therefore recommended, inter alia, that the Respondents execute the contract and give effect to it retroactive to 1 January 1980. He also ordered that the Respondents make its em- ployees whole for the difference between their actual earnings and what they should have earned under the aforesaid contract. The initial backpay proceeding held before me in 1983 and 1984 dealt with the amount of money owed by the Respondents. The only issue before me at this time concerns a letter sent by Cody to Air Vac Industries on 31 July 1981. This letter read as follows: This letter is to inform you that any tentative or permanent agreement that was made between Local 282 and your corporation, and or subsidiary repre- sented by your company is hereby finis. However, in the event you want to lease bare trucks to any Union firm, that firm shall be obligat- ed to employ a Union teamster to operate i said vehi- cle. The Respondents argue that by sending this letter, Cody manifested an intention to terminate the collective- bargaining agreement . Therefore, the Respondents argue 1 See also Lovvern v Johnston, 118 F 2d 704, cert. denied 314 U.S. 607. z During the hearing on 16 July, I received a mailgram from Edward dated 15 July. It read- Due to the poor state of my finances I have not been able to pay my attorney fees.- He will no longer represent me until such time that I can pay him. I therefore ask for an adjournment of the proceeding until I can make other arrangements or pay him. After the hearing closed, I received a letter from Edward requesting an extension of time to file briefs In this letter, he states, inter alia, "be- cause of the complexity of this case, I have no alternative but to stay with Kimmell and Ziskin." 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that with such notice of contract termination, there can be no further backpay after 31 July 1981. The General Counsel and the Charging Party argue that the letter in question did not manifest an intention to abrogate the collective-bargaining agreement and pre- sented evidence to support their contention.4 After the Respondents refused to execute the contract which had been agreed to in October 1979, the employ- ees commenced a strike in July 1980. Subsequently, in May or June 1981 Edward asked Cody to allow his com- panies to operate at unionized construction sites. Edward represented to, Cody that his striking employees no longer wished to return to work and that any new em- ployees hired would become union members. Cody then agreed to allow Edward to work at union represented construction sites while allowing the Board to process the unfair labor practice case alleging the Respondents' refusal to execute the collective-bargaining agreement. Sometime in the spring of 1981, Cody was informed that the Respondents' employees wanted their jobs back with backpay. `In July 1981 Cody met with Edward and asked him to reinstate the employees with backpay and to comply with the contract. When Edward refused, 4 As the 31 July letter from Cody to Air Vac cannot, of itself, be con- strued as a contract, it follows that the parol evidence rule is not applica- ble Cody told him that the verbal agreement allowing Ed- ward's companies to work at unionized construction' sites was canceled. According to Cody, the 31 July letter merely confirms this conversation with Edward wherein he canceled any permission the Union gave Edward's companies to work at unionized construction sites. He testified that he did not intend in any way to annul or terminate the collective-bargaining agreement, the en- forcement of which the Union was then pressing in an unfair labor practice case before this Agency. As Cody's evidence was not contested by the Re- spondents, and otherwise seems plausible to me,5 I con- clude that the Respondents have not shown that the Union, by the 31 July letter, intended to terminate the collective-bargaining agreement. I therefore' find no merit to the Respondents' contention that the backpay period should be cut off as of 31 July 1981. Accordingly, I reaffirm my original recommended Order.5 - s I have, of course, considered the fact that Cody has, within the past 5 years, been convicted of a felony. See Fed R.Evid. 609, "Impeachment by Evidence of Conviction of Crime." 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.