Viola Industries, Inc.

306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Viola Industries-Elevator Division, Inc. and its alter ego Viola Industries, Inc. and International Union of Elevator Constructors . Case 5-CA- 15990 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 27 March 1985 Administrative Law Judge Bernard Ries issued the attached decision. The Re- spondents and the Charging Party filed exceptions and cross-exceptions, respectively, as well as sup- porting and opposition briefs. The General Counsel filed a memorandum in response to the Respond- ents' exceptions. On 3 February 1986 the Board scheduled oral ar- gument in this proceeding and related cases' be- cause they presented important issues in the admin- istration of the Act. The notice of hearing stated that the Board would entertain argument on vari- ous issues raised under Section 8(f) of the Act by the several cases. An order and supplement to notice of hearing issued on 12 March 1986. On 24 March 1986 the Respondents, the General Counsel, the Charging Party, the American Feder- ation of Labor and Congress of Industrial Organi- zations, the AFL-CIO's Building and Construction Trades Department, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Associated Builders and Contractors, Inc., the Council on Labor Law Equality, and the National Right to Work Legal Defense Foundation, Inc.2 presented oral argument before the Board. The parties and amici curiae have filed briefs and statements of position. The Board has considered the decision and the record in light of the exceptions, briefs, oral argu- ments, and statements of position and has decided to affirm the judge's rulings, findings,3 and conclu- sions as modified and to adopt the recommended Order as modified. In adopting the judge's conclusion that the Re- spondents violated Section 8(a)(5) and (1) by failing to honor and by subsequently repudiating their col- ' John Deklewa & Sons, 282 NLRB 1375 (1987), Reliable Electric Co, 286 NLRB No 83 (Nov 9, 1987) 2 The AFL-CIO, its Building and Construction Trades Department, the Teamsters, the Associated Builders and Contractors, the Council on Labor Law Equality, and the National Right to Work Legal Defense Foundation appeared as amici curiae 2 The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance 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 re- versing the findings lective-bargaining agreement with the Union, we rely on the principles announced subsequent to the judge's decision in the Board's recent holding in John Deklewa & Sons, supra. In Deklewa the Board announced the following principle with respect to 8(f) contracts: such con- tracts are enforceable through the mechanisms of Sections 8(a)(5) and 8(b)(3), and the Union there- fore enjoys a "limited" 9(a) status during the term of such a contract; they are not bars to the process- ing of valid representation petitions filed under Section 9(c) and Section 9(e); the appropriate unit normally will be the single employer's employees covered by the 8(f) agreement; and on expiration of an 8(f) agreement, the signatory union will enjoy no presumption of majority status and either party may repudiate the 8(f) bargaining relationship. In adopting these principles, the Board specifi- cally abandoned the so-called conversion doctrine according to which an 8(f) union could acquire the full status of a 9(a) majority representative by es- tablishing, for example, that a majority of the em- ployer's employees working under a contract with the union had been union members, had paid union dues, or had engaged in other conduct indicative of union support. The undisputed facts of this case show that Viola Industries-Elevator Division, Inc. (Respondent Ele- vator) entered into an 8(f) industrywide agreement with the Union in the early 1970s to obtain work- ers from the Union's hiring hall to install elevators at its worksites throughout the United States. In 1977 the parties executed a successor industry agreement that expired on 8 July 1982. Thereafter, during the summer of 1982, Respond- ent Elevator declined the Union's invitation to enter into a renewal agreement, stating that it planned to manufacture, but not to install, elevators in the future. Respondent Elevator, however, re- sumed elevator installation work with its employ- ees on a number of construction sites in October 1982, and at several other locations during 1983. This postcontract work was not performed either in accordance with the terms and conditions of the expired contract or pursuant to Respondent Eleva- tor's notification and bargaining with the Union. The judge concluded from the record evidence that the Union attained majority support among the employees of Respondent Elevator during the term of the 8(f) agreement sometime between October 1978 and March 1980.4 He found, under then-appli- cable precedent, that the Union developed or was converted into a 9(a) bargaining representative, and 4 We find it unnecessary to pass on the judge's majority finding as such finding is irrelevant in light of Deklewa, supra 286 NLRB No. 29 VIOLA INDUSTRIES 307 that Respondent Elevator's postcontract resump- tion of elevator installation work under other than contract terms and without prior notice or bargain- ing with the Union violated Section 8(a)(5) and (1). Contrary to the judge, as we have noted, under Deklewa, except for the "strictly limited" 9(a) status that a union enjoys during the term of a col- lective-bargaining agreement, the union cannot claim full and enforceable 9(a) majority representa- tive status except by a certification election or vol- untary recognition on the basis of a showing of ma- jority support and it enjoys no presumption of ma- jority status after the collective-bargaining agree- ment expires. Accordingly, subsequent to the con- tract's expiration, Respondent Elevator had no fur- ther obligation under that contract. We therefore dismiss this aspect of the complaint alleging pre-8 July 1982 violations stemming from the 1977-1982 successor agreement. The judge found that the Union made repeated efforts, in November and December 1982, to obtain Respondent Elevator's execution of the industry- union agreement. In response, Elevator's president, Bob Viola, and his attorney, on 6 December 1982, formed a new corporation with a similar name5 for the purpose of signing the contract and leading the Union into believing that the signatory was the same company as before. Based on undisputed evi- dence, the judge found the new corporation to be an alter ego of Respondent Elevator, whose execu- tion of the union contract on 14 December 1982 ef- fectively bound the Respondents thereto.6 The judge concluded from the respondents' refusal to apply the contract terms and conditions to any projects undertaken on and after that date,7 and Bob Viola's subsequent letter repudiating the con- tract on 4 November 1983, that the Respondents' actions violated Section 8(a)(5) and (1) and Section 8(d) of the Act. We agree." Thus, as noted above, 5 With respect to the newly formed corporation , called Viola Indus- tries, Inc, Bob Viola testified that for many years his firm was known in the elevator construction industry as Viola [ndustnes 6 The Respondents' exceptions and brief do not refute the underlying facts in support of the judge's alter ego finding and, in fact, concede that the effect on the Respondents of signing 1 he 14 December 1982 agree- ment was that it simply entered into a new prehire agreement r The judge excluded from his findings and remedy the Delaware City, Delaware and Hayden, Arizona projects because they were contracted to other firms, and Respondents acted as a mere subcontracting conduit on those jobs 8 We find, in agreement with the judge , that Respondents' 8(a)(5) vio- lations are not time barred because some of the conduct occurred more than 6 months before the original charge herein was filed He found that Respondents presented insufficient credible evidence that the Union had knowledge or should have known earlier of the Respondents' refusal to abide by the terms of the renewal contract , particularly in light of the Respondents' efforts to conceal information concerning their jobs after the contract expiration in July 1982 In addition, we find no merit in the Respondents ' contention that they should not be bound by the contract contention they executed on 14 December because the Union improperly pressured them into the Board in Deklewa made clear that an 8(f) agree- ment is enforceable, and may not lawfully be repu- diated by either party during its term, except as a consequence of the results of a Board representa- tion election. We therefore affirm, for the reasons set forth in Deklewa, the judge's finding of a viola- tion based on the Respondents' refusal to apply the terms of its 14 December 1982 agreement to work performed thereafter by employees of Respondent Elevator, and Bob Viola's repudiation of the agree- ment on 4 November 1983. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 4 and substitute the following for the judge's Conclusion of Law 6 and renumber the paragraphs accordingly: "6. By failing to abide by the terms of the collec- tive-bargaining agreement executed on 14 Decem- ber 1982, and by repudiating that collective-bar- gaining agreement on 4 November 1983, the Re- spondents have violated Section 8(a)(5) and (1) of the Act." THE REMEDY Having found that the Respondents have violat- ed the Act, we shall order them to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. We shall also order the Respondents to make whole, in the manner prescribed in Ogle Protection Service, 183 NLRB 682, 683 (1970), those employees of Re- spondent Elevator who performed bargaining unit work on and after 14 December 1982, by giving retroactive effect to the terms and conditions of the collective-bargaining agreement executed by the Respondents on that date, with interest on any amounts due paid in the manner prescribed in New Horizons for the Retarded.9 In accordance with Deklewa, supra, this make-whole remedy does not extend beyond the expiration date of the 1982-1987 contract. The question of whether interest must be paid on the trust fund contributions shall be left to signing First, we note the judge's finding that when Respondent El- evator advised the Union that it would no longer be installing eleva- tors but merely subcontracting that work to union firms, the Union did not protest but instead offered the Respondents a list of union firms for that purpose Moreover, we find from the evidence that the Respondents' signing of the agreement on 14 December was part of a deliberate plan to obtain contract benefits without binding Re- spondent Elevator to contract obligations In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the compliance stage of this proceeding. Merry- weather Optical Co., 240 NLRB 1213 (1979).10 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Viola Industries-Elevator Division, Inc. and its alter ego Viola Industries, Inc., Arkansas City, Kansas, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraphs 1(a) and 2(a) and reletter the remaining paragraphs accordingly. 2. Substitute the following as relettered para- graph 2(b). "(b) Make whole, with interest, the employees in the above-described bargaining unit for any loss of wages and benefits they may have suffered because of Respondent's failure to honor and apply the terms and conditions of the collective-bargaining agreement executed on 14 December 1982, includ- ing appropriate contributions to employee benefit trust funds, in accordance with the remedy section of this decision." 3. Substitute the attached notice for that of the administrative law judge. 10 Whether there are any individuals entitled to be made whole be- cause they were denied an opportunity to work because of Respondent Elevator's unlawful refusal to continue using the hiring hall is best left to the compliance stage of this proceeding. See Southwestern Steel, 276 NLRB 1569 fn 1 (1985), Clarence R. Yeager Distributing, 261 NLRB 847, 849 fn. 10 (1982), Wayne Electric, 226 NLRB 409 (1976) WE WILL NOT repudiate collective-bargaining agreements when there is no legal justification for doing so. WE WILL NOT fail to honor and apply the collec- tive-bargaining agreement executed by us and the Union on 14 December 1982, covering the employ- ees in the appropriate bargaining unit below: All elevator constructor mechanics and help- ers in the employ of Viola Industries-Elevator Division, Inc. engaged in the installation, repair, maintenance, and service of elevator equipment as defined in the collective-bargain- ing agreement between Viola Industries-Eleva- tor Division, Inc. and the Union effective for the period 14 December 1982 to 8 July 1987. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL honor and apply the terms of the col- lective-bargaining agreement executed by us and the Union on 14 December 1982. WE WILL make whole, with interest, the employ- ees in the bargaining unit for any loss of wages or benefits they may have suffered as a result of our failure to honor and apply the terms of the collec- tive-bargaining agreement executed on 14 Decem- ber 1982, from that date until its expiration on 8 July 1987, including any appropriate contributions we failed to make to employee benefit trust funds, in accordance with the Order of the Board. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. VIOLA INDUSTRIES-ELEVATOR DIVI- SION, INC.; VIOLA INDUSTRIES, INC. Annette Amato, Esq. and Mark Carissimi, Esq., for the General Counsel. Richard Anderson, Esq., and Steward L. Entz Esq. (Col- mery, McClure, Letourneau, Entz & Merriam), of Topeka, Kansas, for the Respondents. Francis J. Martorana, Esq. (O Donoghue and O'Don- oghue), of Washington, D.C., for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge. This case was heard in Baltimore, Maryland, on December 4-6, 1984.1 Essentially, the amended complaint alleges that i The original charge, naming Viola Industries, Inc as the Respondent, was filed in Region 3 on November 14, 1983, and was assigned Case 3- CA-11918 The first amended charge , designating Viola Industries Eleva- tor Division, Inc and its alter ego Viola Industries, Inc as the Employer, was filed in Region 5 on February 22, 1984, and was designated Case 5- CA-15990 A second amended charge against the same Respondents was filed in Case 5-CA-15990 on June 22, 1984, and a complaint was issued on July 9, 1984 On July 30, 1984, an amended complaint was issued On October 9, 1984, a third amended charge was filed, and on November 14, 1984, a second amended complaint was issued VIOLA INDUSTRIES 309 the Respondents are at bottom the same employing entity and since about October 1, 1982, they fraudulently concealed from the Charging Party, International Union of Elevator Constructors (the Union), the fact that they were engaging in the installation of elevator equipment at various jobsites; since about October 1, 1982, one of the Respondents unilaterally changed the existing terms and conditions of employment of the employees repre- sented by the Union; since about December 14, 1982, the Respondents have failed to comply with the terms and conditions of a collective-bargaining agreement executed by them on that date; on November 4, 1983, the Re- spondents expressly repudiated the bargaining agreement just referred to; by the foregoing conduct, the Respond- ents violated Section 8(a)(5) of the Act; in the course of the conduct described, the Respondents failed to hire in- dividuals who would have been referred to them for em- ployment had Respondents complied with the hiring hall provisions made applicable to Respondents by virtue of various collective-bargaining agreements; and by failing to so comply, Respondents violated Section 8(a)(3) of the Act. The various answers filed by Respondents deny the critical allegations of the amended complaint and ad- vance certain affirmative defenses, as discussed below. Briefs were filed by all parties about February 11, 1985. Having reviewed the entire record, having consid- ered my recollection of the demeanor of the witnesses, and having read the briefs filed by the parties, I make the following findings of fact,2 conclusions of law, and recommendations. 1. AN OUTLINE OF THE CASE This is an unusual and factually complicated case. Its principal player is Bob E. Viola, an obviously industrious businessman, who has engaged in a variety of ventures for several years from his headquarters in Arkansas City, Kansas. From at least the early 1970s, he operated a closely held corporation known as V-W Elevator Com- pany, Inc., which built and installed heavy-duty eleva- tors. In 1973, Viola testified, he concluded that it would be useful to have the Union's assistance in securing work- men to install elevators at the locations throughout the country at which V-W Elevator performed such work. Accordingly, Viola, as president of V-W, signed a short- form agreement in which the Company agreed to be bound by the industry bargaining agreement between the Union and the National Elevator Industry, Inc., covering field mechanics and helpers engaged in the installation and maintenance of elevators.3 It is clear that at that time the Union made no effort to claim that it represent- ed a majority of the employees in the bargaining unit thus created; Viola's testimony was that he discussed with the union official with whom he dealt only the 2 At certain points in the transcript of proceedings there are omissions and indecipherable garbling of words and passages Because none of the parties have remarked on these problems in their briefs, I have made no effort to repair them There are, however, certain obvious errors in the transcript of proceedings that I have noted and corrected 3 So Viola testified A document in evidence, however, indicates that V-W Elevator first became party to the union master agreement in 1971 See G C Exh 60 value to him of the Union's hiring hall. It may also be noted that in the first and succeeding contracts, the geo- graphical scope of the bargaining unit was unlimited. In 1973, V-W Elevator Company changed its name to Viola Industries-Elevator Division, Inc. (Respondent El- evator or Elevator), but continued to honor the bargain- ing agreement.4 When that agreement expired in July 1977, Bob Viola again signed a pledge to be bound by the succeeding association agreement, which was to ter- minate on July 8, 1982; on the agreement, Viola showed the new name of the employer, as set out above, and in- scribed the notation "Correct legal corporate name is shown." As Viola testified, however, the Company was generally known throughout the industry (as well as on Viola's business stationery and forms and in his advertis- mg) simply as Viola Industries. The testimony shows that, until the expiration of the 1977-1982 agreement, Viola fully complied with its terms. The next association agreement became effective on July 9, 1982, and is due to expire on July 9, 1987. The testimony shows that, pursuant to the customary practice with respect to independent signatories to the master agreement such as Viola (as opposed to members of the industry association), a business representative of the rel- evant union local-in this case, Billy Joe Geier of Local 94 in Wichita, Kansas-contacted Bob Viola in August 1982, as he had in 1977, to notify him that the national agreement had been signed and to ask him to execute a new contract binding Elevator to the master agreement. According to Geier, Viola told him that "he wouldn't need a standard agreement because he wasn't going to install elevators, he was going to manufacture." Geier passed this information along to Hector Rueda, the union regional director located in San Francisco, and for then nothing further was done. On October 8, however, Rueda also called Viola and, like Geier, was told that Elevator "was not going to be doing installations any more." A file card maintained in the national offices of the Union in Columbia, Maryland, and a memorandum sent by Rueda to those offices, show that Rueda, on October 8, notified union headquarters that Viola Industries was "no longer involved in installa- tion."5 4 Viola testified that Elevator engages in other lines of work besides the manufacture and installation of elevators, but that fact is not material to the case 5 At the hearing, Viola generally confirmed Geier's testimony, saying, "I indicated [to Geier] something about us doing more subcontracting work We weren't particularly interested in doing elevator installations " To the extent that there is a difference between the testimony of the two, with reference to whether Viola definitely stated that he was no longer going to install elevators, I would credit Geier, an impressive witness, over Viola, who clearly departed from the truth now and again during the hearing See, e g , the following colloquy on cross-examination of Viola about the second Respondent in this case, called, as discussed here- after, Industries. Q [Does Respondent Industries] have any clerical employes? A No, I do everything myself Q Who types their letters? A Oh, I type them or I hand write them Q Nobody else types for Respondent Industries? A No Q Who types for Elevator's Continued 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD That, however, was not the case. The fact was that on September 1, 1982, 5 weeks before his conversation with Rueda, Viola had signed, on behalf of Elevator, a con- tract with Brown & Root, Inc., to construct and install an elevator at an Exxon facility in Mont Belvieu, Texas. At the hearing, Viola testified that he was aware as early as August 2 that he would be installing the elevator, which means that he also misrepresented the situation to Geier in their conversation in that month. Moreover, the record also shows that on August 26, 1982, Respondent Elevator made a bid on a second elevator to be erected at the Mont Belvieu facility, after the original subcon- tractor for that elevator had to withdraw its bid. The bid included both manufacture and erection by "[o]ur instal- lation crew." Elevator was awarded this second job. Thereafter, beginning in October 1982, Elevator per- formed the installation work on these jobs by employees hired and supervised directly by Elevator. Other installa- tions directly performed by Elevator after 1982 were at a construction site in Seadrift, Texas, in April-June 1983; beginning in August 1983, at a project in Elmira, New York; and at a project in San Antonio in October-De- cember 1983. The parties stipulated at hearing that in performing the foregoing work after July 1982, Respond- ent Elevator did not abide by the terms and conditions of employment set out in the contract that expired in the month, and the record is clear that Respondent imple- mented these changes without discussing them with the Union. The other jobs with which we are concerned here, and that involve the entity known as Viola Industries, Inc., the second Respondent in this case, require a more prolix description. In December 1981, Respondent Elevator was awarded a subcontract by Lummus Construction Company to build and install an elevator at the Getty Refining and Marketing Company project in Delaware City, Dela- ware, a job that was not to start for some time. It was, Bob Viola testified, the largest elevator his Company had ever contracted for and, he further stated, he had decid- ed as early as 1981 to subcontract the installation work, for the reason that a project of this magnitude would need followup servicing, best done by a local contractor. It was against this background, Viola testified, that he consulted an attorney probably around October or early November 1982 (prior to the beginning of installation of the Getty elevator) to discuss the formation of a new corporation to "handle the subcontracting work on that type of project." The record shows that on December 1, 1982, Bob Viola, styling himself "B. E. Viola," executed articles of incorporation in Kansas for a new corporation called Viola Industries, Inc. (Respondent Industries or A I have office staff to do that Q But you do all the typing for Respondent Industries? A Yes Q. So is it safe to assume that on every letterhead where Viola Industries, Inc, is imprinted, you've done that typing? A Oh, not necessarily I may have recruited some help Q What kind of help? A Oh, my wife helps me now and then Viola later was forced to admit that certain of the Industries letters in evidence were typed by the Elevator secretary, whose initials appear on six such Industries letters in evidence Industries), which articles were filed with the Kansas secretary of state on December 6. Also in evidence is a sheet of the business stationery of the newborn Viola In- dustries, Inc. on which appear what purport to be the handwritten minutes of a corporate meeting on Decem- ber 6, stating, in full: "Bob E. Viola Pres. of Viola Indus- tries-Elevator Division, Inc. was present & elected him- self President & Secretary of Viola Industries, Inc. No further business was covered." The minutes are signed by Bob Viola twice, as "B. E. Viola, Pres." and as "B. E. Viola, Sec." The evidence further shows that, despite the refusal of Viola earlier in 1982 to become a signatory to the 1982- 1987 master bargaining agreement on behalf of Respond- ent Elevator, on December 14, 1982, on behalf of Viola Industries, Inc., he signed (as "B. E. Viola, President") an agreement to adopt the national standard bargaining contract executed in July of that year. The background to his execution of this agreement is somewhat complex. The record discloses that in January 1982, half a conti- nent away from Kansas, Business Manager Robert M. Williams of Union Local 5 in Philadelphia had received word through union channels that Viola had been awarded the Getty job in Delaware City, and had writ- ten to Viola to welcome him to the jurisdiction of Local 5 and to remind Viola of his obligations under the 1977- 1982 bargaining agreement. Williams testified that around November 18, 1982, he received a report of elevator in- stallation taking place, or about to take place, at the Getty site. Figuring that Viola had finally arrived as an- ticipated, Williams made some calls and found that Viola had neither signed the 1982-1987 national agreement nor made any recent contributions to the benefit funds. Williams then called Bob Viola in Kansas; the latter explained that he had not signed the most recent agree- ment because he was not satisfied with the way "the Union workers were performing and that he had jobs, he had work in the South and that he could go to work for nonunion general contractors and he wouldn't have to be signatory to the agreement." Williams then probably told Viola that he had been informed by the Lummus Con- struction Company that "the elevator [at the Getty job] would be installed union." Although Williams was not certain at the hearing that he had made this fact known to Viola, it seems likely that he did, since (1) he recalled that during the conversation, Viola asked him to recom- mend some local elevator installers "to install the job for him," which Williams did by reading a list of unionized installers to Viola, and (2) on November 19, Williams mailed Viola copies of the standard agreement "for you to sign," as the cover letter stated. That was Williams' last contact with the Viola operation for a while. It was apparently Williams' November 19 letter that provoked a call on December 1 by one Larry Barnes to Everett Treadway, the general president of the Union, at his offices in Maryland. Barnes is plainly some sort of high-ranking managerial employee for Respondent Ele- vator.6 According to Treadway, when he returned e An example John Herwig, the vice president for marketing of Gen- eral Elevator Company, testified to the negotiation of a contract with Re- Continued VIOLA INDUSTRIES 311 Barnes' call on December 1, Barnes stated that Elevator was "no longer going to do the work under the standard agreement themselves, that they were going to sub this out to companies that were signatory to our standard agreement." It seems likely that, even as they spoke, Ele- vator was installing an elevator on the Exxon project. After considering the matter , Treadway told Barnes that nothing would be lost if Viola signed the agreement anyway and then performed no work under it, and he urged Barnes to have Respondent become a signatory. Barnes agreed to do so and , by letter of December 2, Treadway sent Barnes "the Agreements I told you I would send .117 On December 10, Treadway again wrote to Barnes, in- quiring why he had not yet received an executed copy of the agreement . Soon thereafter, Treadway received a copy of the agreement signed on December 14 for Viola industries, Inc. by B. E. Viola. Treadway's secretary thereupon made an entry on the Viola office file card, which reflects the signing of previous contracts since 1971 by V-W Elevator Co. (Viola Industries), to show that the most recent contract was executed by the same Employer on December 14, 1982. It seems quite apparent that at this point , Treadway and any other interested union agents did, and justifiably were entitled to, assume that the agreement signed by Viola on December 14 was signed on behalf of the same employing entity with which the Union had been con- tracting for a decade or more . At the hearing, Viola con- ceded that his firm had been commonly known in the trade as "Viola Industries" for years prior to 1982 (indeed, Respondent Elevator's business stationery bears only the name "Viola Industries," rather than its corpo- rate title "Viola Industries-Elevator Division, Inc.") and further admitted that he gave no indication to the Union when he returned the signed agreement on December 14, 1982, that Viola Industries, Inc. was a new corporate form into which the State of Kansas had breathed life only 8 days earlier. Respondent Industries was not vital for very long, however. As the parties have stipulated and the evidence makes clear, Industries lived a short and limited exist- ence. Its sole function, as of the time of the hearing, had been to serve as a conduit for subcontracting out the in- stallation portion of two jobs that had been awarded to Respondent Elevator. Thus, on December 14, the same day that Bob Viola executed the Union agreement , he also signed, for both parties, a subcontract from Viola Industries -Elevator Di- vision, Inc. as purchaser to Viola Industries, Inc. as Sup- plier, covering the direct labor costs of installing an ele- vator at the Getty Delaware City project, reserving to spondents in 1982 during which Barnes exclusively spoke for and repre- sented Respondents in the negotiating process Other evidence indicates similar exercises of authority by Barnes Asked at the hearing to name any superintendents or project managers employed by Elevator in the latter part of 1982, Viola replied, "Oh, probably Larry Barnes " Barnes signed, as "Manufacturing Manager ," the August 26, 1982 proposal to Brown and Root for the second Exxon job in Texas ' Barnes did not testify Viola testified that he received a call from Treadway in November or December regarding , he thought, the Dela- ware City project I feel certain that Viola is simply mistaken on this point Elevator the obligation of furnishing all materials , tools, site facilities, supervision and incidental costs. The sub- contract fails to specify a price for the work to be done.8 Prior to this time, on November 22, soon after Viola's November 18 conversation with Business Manager Wil- liams, Larry Barnes had written to the unionized General Elevator Company in Baltimore requesting a price quo- tation of an "all inclusive hourly billing rate " for the provision by General Elevator of a mechanic and helper at the Getty job. Thereafter, on January 5, 1983, on a purchase order format that Respondent Elevator had been using for some time,9 Barnes sent General an order for a mechanic and helper team at the rate of $555 a day. It might be noted that this order, which General Eleva- tor's vice president Herwig accepted on January 6 in a letter addressed to "Viola Industries" at Respondent Ele- vator's postal box number , was technically submitted by Respondent Elevator, 10 despite the fact that Elevator had, as we have seen, purportedly subcontracted to Industries on December 14 the furnishing of "direct labor costs" on the Getty job. i i At some point, around May or June 1983 , after Gener- al Elevator had apparently not performed as expected, another local (also unionized) company, Mainco, was hired by Respondents to provide a team of installers.12 Mainco worked for some months thereafter , and Larry Barnes, according to Mainco employee William Faggan, appeared at the site "at least weekly , sometime even more often than that," but only to "observe."13 8 Signing for Respondent Elevator, Viola wrote "Bob E Viola," al- though signing for Respondent Industries , he wrote "B E Viola " The record shows that signing on behalf of these two companies, he more often than not maintained this stylistic distinction. 8 Respondent Elevator's business forms, as previously indicated, refer to the firm simply as "Viola Industries," and they also give a post office box number of 1108, an address of 3015 N Summit, Arkansas City, Kansas, and a telephone number The stationery developed for Respond- ent Industries calls that Company "Viola Indutries , Inc," indicates a post office box number of 1181, shows no street address (just Arkansas City, Kansas), and has a different telephone number 10 The stationery, as indicated, was Elevator's, and Viola testified that Barnes was employed only by Elevator i i The exhibits file shows a February 23, 1983 letter to Herwig signed by Viola on the new Company's stationery concerning an invoice dis- crepancy, in which Viola also asks Herwig to note "our correct company name and address and please do let your accounting personnel know We've asked them to make corrections on every invoice that has been sent to us, however, they choose to ignore our request " Herwig testified, however, that no Viola representative ever informed him that any new corporate entity existed, different from the Company with which he had dealt on another occasion in the past And the record shows that on August 5, subsequent to Viola's letter of February 23, Viola himself wrote a letter on Elevator stationery to Herwig referring to "the responsi- bility you took when we contracted with your company to install the ele- vator" and explaining that no further payment would be made to General Elevator "until we have completed our evaluation on what it has taken us to rework all of the improperly installed items" (emphasis added ) 12 During this period, Respondent Elevator had been installing an ele- vator with its own employees , and on different terms than those that were contained in the expired July 1977-1982 contract and also those ap- pearing in the new 1982-1987 contract This job was performed in April, May, and June 1983 at Seadrift , Texas, as noted above, other such direct work was performed by Elevator at other locations in the remainder of 1983 12 Barnes' visits would be consistent with the subcontract from Eleva- tor to Industries, which, as shown above, assigned to Elevator the fur- nishing of supervision of the direct labor to be supplied, ostensibly, by Industries 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In October, however, Faggan received a call from his Mainco office manager, who asked him to verify a report he had received that some people were working on the elevator. Faggan went to the site, where lie found the el- evator in disarray, with wires hanging out and the car operating panel dismantled. Faggan saw Barnes and an unidentified man in the pit area; the latter individual had tools and a hardhat, and was "performing some kind of work." When Faggan asked Barnes if the latter was "doing my work," Barnes denied it. Faggan approached the other man asking to see his union card, which he said he did not have. Barnes asserted that the man was an "engineer" and did not need a union card. There was also a third man apparently working on the elevator; when he approached the group, Barnes waved him off (as he had also attempted to do with the other individ- ual). Faggan estimated that dust the work of disassem- bling the elevator in the fashion he found it would have taken 1-2 days of work. General Elevator's Herwig, a most credible witness, testified without controversion to a July 1984 telephone conversation with Bob Viola about a settlement of a disputed claim; in the discussion, Viola told Herwig how Mainco had also failed to perform ade- quately and that "we had to finish the job." 14 The other job in which Respondent Industries played its conduit role related to a service elevator that Re- spondent Elevator had agreed, in January 1982, to fur- nish, at a price of $59,850, to ASARCO Incorporated for a construction site in Hayden, Arizona. On July 11, 1983, Bob Viola, again signing on behalf of both parties, exe- cuted a subcontract from Elevator to Industries covering the direct labor costs of the installation of the elevator; in this agreement, unlike the other one, a price (of $46,011) was specified. On the same day, Respondent In- dustries executed, on Industries stationery, a purchase order to Traylor Enterprises, an Arizona firm, to install the elevator for a price of $43,820. The record contains little other information about this project, except that Barnes visited the site. Viola testified that after this trans- action, Industries "didn't work out very well so it's dor- mant." Business Manager Williams testified that at some point in the first part of 1983 when General Elevator was per- forming the Getty job, he had been introduced by a General Elevator employee to a man named Ron Steel, identified to him as an employee of Viola Industries. In September 1983, when Steel had left Viola's employ and was in Texas, Steel called Williams to say that Viola "had two jobs that they were going to install nonunion," one in Elmira, New York, and the other in San Antonio, Texas. On September 16, Williams conveyed this rumor by letter to Treadway. The latter, on September 20, sent copies of the Williams letter to the appropriate union re- gional directors, asking them to investigate and report. One of them wrote Treadway on September 30 that Viola had the San Antonio contract at a cement plant, but that work had not begun. 14 On the foregoing evidence, including the implication arising from Barnes' failure to testify, I infer that Elevator was directly engaging in erection work in this instance On October 12, Williams wrote again to Treadway, this time reporting that Faggan had "found Viola Indus- tries working with non-union personnel in Delaware City, Delaware"; this report clearly was premised on the incident described supra. On November 4, 1983, Viola sent the following letter to Union President Treadway (on Industries stationery): This is to notify you that we no longer consider the agreement dated December 14, 1982 between Viola Industries, Inc. and the International Union of Elec- trical Constructors as valid. The manner and manip- ulations involved in forcing us to sign this contract was [sic] totally unethical, as well as very possibly being illegal. Viola testified that he had given no previous notice of his intention to terminate the agreement. Although the letter gives no hint of it, Viola's explanation at the hear- ing for issuing the letter was that he was dissatisfied with the poor workmanship of union labor at the Getty project. On receipt of the termination letter, Treadway turned the matter over to union counsel. On November 14, counsel filed the initial charge in this case, asserting that Viola Industries, Inc. had unlaw- fully repudiated the agreement it had signed on Decem- ber 14, 1982, and had failed to apply it where it properly applied, "including, but not limited to the premises [sic] of National Vitamin, Chemung Place, Elmira, New York." Presumably as a result of the regional investiga- tion, a first amended charge was filed on February 22, 1984, naming the employer as Viola Industries Elevator Division, Inc. and its alter ego Viola Industries, Inc., and amending the body of the charge to include the secret formation of another company, the joint repudiation of the bargaining agreement by both Violas and, in addition to the Elmira job, making reference to the Getty project and the cement plant in San Antonio. A second amended charge filed on June 22 added a specific "on or about" date-May 14, 1983-as the com- mencement date of the conduct complained of (this being the nominal 6-month 10(b) limitation date preceding the original November 14 charge), and also included a refer- ence to a "worksite in Hurley, New Mexico." A third amended charge followed on October 9, 1984, setting back the commencement date of the conduct complained of to "[o]n or about October 1, 1982." The charge states, "Charging Party recently learned of unlawful conduct between October 1, 1982 and May 14, 1983, for the first time on September 19, 1984," and Treadway testified, without objection, that he had been told by union coun- sel that the latter had filed the last amended charge be- cause "as the case progressed through the NLRB . . . it was discovered that . . . Viola had . . . done some jobs between . . . October of '82 until May of `83." H. ANALYSIS AND CONCLUSIONS A. The Alter Ego Issue The answers deny the allegations of the complaint that the two Respondents are alter egos and a single employ- er for purposes of the Act. The denials are frivolous. In- VIOLA INDUSTRIES 313 dustries is about as independent of Elevator as a puppet is independent of the hand that manipulates it. The named incorporator of Industries was Bob Viola, who owns 91 of the 100 shares of Elevator. The 1984 annual Kansas corporation report filed with respect to Industries lists the sole stockholder of Industries as "Viola Industries Elevator Div. Inc." Thus, Bob Viola effectively owns both corporations. The December 6, 1982 minutes of the first corporate meeting of Industries, set out in full above, state that Bob Viola elected himself president and secretary of Industries. The 1984 annual report for Industries, confirming Viola's testimony on the point, shows Viola as the president, with no other offi- cers, and also as the only member of the board of direc- tors.' g According to its 1984 annual report, Industries en- gages in a single kind of business: "Subcontracting of in- stallation of manlift elevators." Obviously, that limited business function was intended to be performed only on behalf of Elevator. In explaining the two "subcontracts" between Elevator and Industries, both signed by Bob Viola for each party, he conjured up an intriguing pic- ture of the preliminary negotiations: "I just worked it out with myself." The 1984 annual report also shows that as of April 20, 1984, Industries had total assets of $323.52.116 The parties stipulated that Industries has never owned any property, and all the physical manifestations of its existence reside, as Viola testified, "in one desk drawer." The parties further stipulated that Industries has never had any employees.' 7 The record is replete with testimo- ny that Larry Barnes, avowedly only an employee of El- evator, repeatedly acted in roles that should have been played exclusively by an employee of Industries. As ear- lier noted, much correspondence nominally emanating from Industries was typed by the secretary who is em- ployed by Elevator. The record contains considerable evidence that illus- trates the absence of any meaningful differentiation be- tween Elevator and Industries. For instance, on January 5, 1983, the solicitation made by ]Barnes to General Ele- vator for subcontracting the Getty job is written on Ele- vator stationery, although Viola asserts that the relation- ship was to be between Industries and General Elevator. Again, on August 5, 1983, Bob Viola wrote a letter to General on the Elevator stationery, criticizing General's failure to "uphold the responsibility you took when we contracted with your company" (emphasis added); he signed the letter on behalf of Viola Industries by Bob E. Viola. On September 16, 1983, in a followup letter on the same subject, Viola used the Industries stationery and signed on behalf of Viola Industries, Inc. by B. E. Viola. 1111 15 The 1983 corporate report for Elevator lists Bob Viola as president, his wife Carla as secretary, and Wendy S Viola Morford as treasurer, those three, plus Barry J Viola, constitute the board of directors of Ele- vator 16 A 1984 annual report for Elevator shows total assets of $1,478,000 17 In May 1983 , responding to an inquiry from the Kansas Department of Human Resources about the status of Industries , Viola wrote that the Company "never paid any wages and does not intend to " 18 Both letters were typed by Elevator's secretary Another example of the amalgamation and inter- changeability of the two corporations may be found in a December 12, 1983 letter to Mainco. Written on Indus- tries stationery and signed by Viola on behalf of Viola Industries, Inc., the letter refers to Lummus Construction Company as the "General Contractor for the Getty Project and our customer" (emphasis added). Technical- ly, of course, Lummus was Elevator's customer, not In- dustries'. The letter also speaks of having directly negoti- ated an extra payment with Lummus in settlement of a claim by Mainco, and states that the amount agreed to "is all that will be paid by either Lummus Co., Getty Co. or Viola Industries, Inc."; no mention is made of El- evator, theoretically the entity with which Industries should have been dealing and which in turn should have been doing the negotiating with Lummus. Further examples seem quite unnecessary. There can be no doubt that Industries is nothing more than a name, a certificate, a box of stationery, a bank account, and a telephone;19 it is simply a legal mask that Viola may do whenever he thinks it useful to do so. I find it difficult (and unnecessary, to even attempt to seriously discuss In- dustries and Elevator in terms of the Board's "single em- ployer" doctrine, which presupposes two or more vital entities. See, e.g., Burgess Construction, 227 NLRB 765 (1977); Peter Kiewit Sons' Co., 231 NLRB 76 (1977). It is only slightly less difficult to think about the two corpo- rations as alter egos; that concept also connotes some vi- tality in both entities, usually at different times. See Denzil S. Alkire v. NLRB, 716 F.2d 1014 (4th Cir. 1983), for a useful analysis of the alter ego cases. It is easiest, I think, to conceive of Industries as simply a dummy, an incorporeal wraith, a contrivance created by Viola to serve particular tactical ends desired by Elevator, but not designed to have legitimate economic objectives or purposes of its own. B. Union Status as of Expiration of 1977-1982 Agreement Section 8(f) of the Act authorizes "an employer en- gaged primarily in the building and construction indus- try" to enter into a collective-bargaining agreement with a union also involved in that industry even though "the majority status of such labor organization has not been established under the provisions of section 9 of this Act," and further authorizes such employers and unions to agree, as a condition of employment, to require employ- ees to obtain membership in the labor organization after 7 days of employment. The Board, with Supreme Court approval, has taken the position that a contract entered into under the 8(f) exception to the general statutory re- quirement of majoritarianism is something less than the kind of binding agreement entered into by virtue of rec- ognition extended pursuant to Section 9. In Ruttmann Construction Co., 191 NLRB 701, 702 (1971), the Board said, "[A] prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship." See also NLRB v. Iron 19 Viola testified that he maintains a separate phone for Industries, but "we don't get any phone calls " 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Workers Local 103 (Higdon Contracting Co.), 434 U.S. 335 (1976), affg. 216 NLRB 45 (1975); R. J. Smith Construc- tion Co., 191 NLRB 693 (1971), enf. denied 480 F.2d 1186 (D.C. Cir. 1973). As the quoted language indicates, an 8(f) agreement may in time mature into a "full bargaining relationship"; this occurs, in the words of the Higdon Contracting opin- ion, when the minority union actually "attains majority support in the relevant unit." 434 U.S. at 341. Some complicated case law has developed with regard to the quantum and quality of evidence necessary to the deter- mination that actual majority status has been acquired and the bargaining agreement is, accordingly, no longer "voidable" (ibid.). There are Board cases, some enforced on appeal, that have held that Section 8(f) applies only to initial, prehire, agreements, and that where construction employers enter into a series of successive bargaining agreements with construction unions, "[p]articularly .. . where . . . the previous agreement contained a lawful union-security provision," "the tests to be applied in determining the fulfillment of the bargaining obligations of the parties . . . are those generally used under Section 8(a)(5) and 8(b)(3) . . . ." Bricklayers & Masons Local 3, 162 NLRB 476, 478, 479 (1966), enfd. 405 F.2d 469 (9th Cir. 1968); accord, Dallas Building & Construction Trades Council, 164 NLRB 938, 943 (1967), enfd. 396 F.2d 677 (D.C. Cir. 1968); Williams Enterprises, 212 NLRB 880, 885 (1974), enfd. per curiam 519 F.2d 1401 (4th Cir. 1975). It would appear, however, as Administrative Law Judge Robert A. Giannasi has suggested in American Thoro-Clean, JD- 530-82, that the foregoing approach has not been applied in more recent cases, where the Board has examined the particulars of majority status, especially the union mem- bership of the employees, even though the parties have executed successive agreements. E.g., Carmichael Con- struction Co., 258 NLRB 226 fn. 1 (1981); Construction Erectors, 252 NLRB 319, 324 (1980); and other cases cited hereafter. In the first of the just-noted cases, the ad- ministrative law judge had held, citing, inter alia, Wil- liams Enterprises, supra, that "[t]he execution of the suc- ceeding contracts makes Section 8(f) irrelevant and, therefore, raises the presumption that the Union was the majority representative of the unit employees." 258 NLRB at 229. In adopting the decision of the administra- tive law judge, the Board did so for other reasons, and expressly stated that it did "not rely on, and hereby dis- avow," the conclusion set out above with regard to the legal effect of the execution of succeeding contracts. 258 NLRB at 226 fn. 1.20 In view of these post-Bricklayers developments, it seems prudent to assume that the Board no longer takes the position that the execution of successive contracts is enough to convert an 8(f) bargaining relationship into a 20 The meaning of this statement is clear enough It seems odd, how- ever, that former Members Fanning and Jenkins, who signed the deci- sions in Bricklayers & Masons Local 3, Dallas Building Construction Trades Council, and Williams Enterprises, supra, and who also, with former Member Zimmerman, constituted the panel in Carmichael, would in the latter case so summarily abandon the principle adopted in the former cases full-fledged Section 9 relationship.21 As indicated, how- ever, an 8(f) contract, while not ab initio possessing the binding quality and attributes of a 9(a) agreement, may nonetheless blossom into such maturity if and when the union "successfully seeks majority support." Higdon Con- tracting, supra, 434 U.S. at 350. As another branch of this body of law has evolved, examination into the existence of the latter phenomenon may involve two separate questions. One is the issue of what constitutes the "rele- vant unit"; the other is what evidence is sufficient to show that the union has "attain[ed] majority support." Regarding the first question, Board doctrine has come to recognize two kinds of construction employers. Where an employer is one who conducts his business by hiring new crews of workers on a "project-by-project" basis, the union "must demonstrate its majority at each new jobsite in order to invoke the provisions of Section 8(a)(5) of the Act," Dee Cee Floor Covering, 232 NLRB 421, 422 (1977), apparently despite the fact that the rec- ognition clause in the 8(f) agreement may not be so limit- ed. If, however, "an employer employs a permanent and stable workforce to work on a multisite basis, and the union, initially recognized under Section 8(f), subsequent- ly achieves majority status in that stable workforce, the employer is then under a statutory duty to recognize and bargain with that union at all projects without requiring the union to demonstrate majority status at each one. . . . [T]he union not only becomes the employees' statutory bargaining representative for all present and future sites, but, as in a typical industrial setting, also enjoys an irrebuttable presumption of majority status for the duration of the agreement." Hageman Underground Construction, 253 NLRB 60, 62 (1980). In Hageman and other cases, the Board has indicated that it applies no hard-and-fast tests for determining the existence of a "permanent and stable work force." It did specifically note in Construction Erectors, 265 NLRB 786 (1982), perhaps the Board's most expansive analysis of the area, that given the peculiar characteristics of the construction industry, the "unique situation" of which brought into being the dispensation of majoritarianism authorized by Section 8(f)22 the Board does "not require a showing that the work force is a stable group of em- ployment who work for a long period of time with no fluctuation in the overall unit" 265 NLRB at 787. In Construction Erectors, the Board reviewed the composi- tion of the unit on a monthly basis for a period of almost a year; deduced a "core group" of 15 employees (i.e., employees who had worked "during" 7 or more of the 11 months surveyed) out of the total of 47 employed during the period; and concluded that a "permanent and stable work force" existed, giving weight "particularly [to] the fact that throughout the relevant period, Re- spondent moved its employees from job to job and did not regularly assign employees to single jobs and then to no subsequent jobs," and also "find[ing] of substantial significance the existence of a basis core group" that "worked approximately 75 percent of the total number 21 The General Counsel does not advance any such argument here 22 See Higdon Contracting, supra, 434 U S at 348-349 VIOLA INDUSTRIES 315 of days on which ironworkers were employed and, again, moved from job to job." Id. at 788. In the present case, the General Counsel contends that the Union achieved majority status "sometime in 1979." The only specific evidence showing the composition and tenure of employment of the work force of Respondent Elevator, and the relationship of that work force to the Union, relates to the 18-month period between October 1978 and March 1980. Two charts submitted in evidence show that a total of 16 employees performed bargaining unit functions during that period on 17 projects at 14 lo- cations.23 Four of the employees worked full time in nearly every month; of the other 12 employees, only 1 worked in as many as 4 months (and only part-time in 2 of the 4 months), 1 worked full time in the final 3 months of the period, and the remaining 10 worked either full or part time for, in all but 1 case, 2 months. During 15 months of this period'24 the mechanics em- ployed by Respondent Elevator worked at different loca- tions concurrently. Thus, for instance, in October 1978, Elevator employed a total of six installers, two each at three sites in Colorado, Alabama, and Virginia; in No- vember 1978, it had two installers working on the Colo- rado elevator, two more erecting a second elevator at the same site, and two at the Virginia location. The rest of the months reflect similar distributions . An evaluation on a monthly basis shows that during the 15-month period reflected in Respondent Exhibit 17, Respondent in only 1 month employed as many as eight erection work- ers, and the modal figure was six.2 5 During the period, consequently, the four employees (J. Loomis, R. Sage, D. Sage, and W. Johnson) who worked full time during each of the 15 months constitut- ed at least a majority of the Elevator installation work- force in 14 of those months and a substantial majority in 6 of those months. Moreover, these 4 employees worked almost 80 percent of the total hours worked by all 15 of the workers employed during the 115-month period. In addition, Respondent Exhibit 17 shows that, for the 15 months covered, Elevator's four primary employees moved back and forth across the country according to Elevator's requirements . Employee D. Sage spent the first 11 months on a Coors project in Golden, Colorado, and the next 4 months at the "Am. Rice" job in Hous- ton. R. Sage worked at the "Ala. St. Docks" job in Mobile for the first month, spent the next 6 months on a second Coors project in Golden., Colorado, turned up the following 2 months and part of the next at the Geor- gia Power site in Milledgeville and the Pittsburgh Coal 22 The record is somewhat questionable in this respect At the begin- ning of the hearing, the parties stipulated that Respondent Elevator per- formed four major jobs between October 1978 and March 1980 In an exhibit later entered by Respondent covering nearly the same period, however, at least two more obviously majoi jobs are shown, and the time data in the latter exhibit is inconsistent with that contained in the earlier stipulation We must make do with what we have, and I base my findings on the later, and more detailed, exhibit 24 One chart, identified as G C Exh 5, lists 16 employees and their hours worked in each of the 18 months between October 1978 and March 1980 A table drawn up by Respondents in response to this exhibit shows the work locations of 15 of the 16 employees in the 15 months between October 1978 and December 1979 (R Exh 17) Why Respond- ent limited in time its responsive exhibit was not explained 25 6, 6, 6, 8, 7, 5, 5, 6, 6, 4, 6, 6, 4, 4, 4 project in Kentucky, and finished out the last 6 months on the "Am. Rice" job in Houston. W. Johnson's work experience during this time period was almost identical to that of R. Sage. Finally, J. Loomis spent the first 2 months in Danville, Virginia, then moved on, for vary- ing periods, to Mattoon, Illinois, to New Haven, West Virginia, back to Mattoon, on to Sweeney, Texas, back to New Haven, and completed the year with 3 months in Cattlesburg, Kentucky. Plainly, as in Construction Erec- tors, supra, Respondent here "moved its employees from job to job," a factor on which the Board "particularly" relied. It therefore seems quite reasonable to conclude that during the time period discussed, Elevator employed a relatively permanent and stable work force, within the contemplation of the precedents. The next question is whether that time period-October 1978 through De- cember 1979-is sufficiently relevant for present pur- poses. There is no indication in the record why the General Counsel chose to isolate the 1978-1979 period as a basis for this analysis. One might suppose that if the figures for the time period closer to the end of the 1977-1982 contract had been as persuasive as the figures produced, the General Counsel might have presented them.26 On the other hand, the possibility that they would have been less persuasive does not mean that they would have been unpersuasive.2 7 Moreover, although it is clear from,-Respondents' an- swers to the complaint, their litigation of the case, and their brief, that Respondents fully grasped the 8(f) impli- cations of this case, Respondents made no effort at the hearing to attack the representative nature of the 1978- 1979 statistics by introducing any other evidence on the issue of the stability of the employee complement.28 Ac- cordingly, as in Hageman Underground Construction, supra, 253 NLRB at 63, "[T]here is no evidence suggest- ing that Respondent ever abandoned its practice of using a stable complement to operate." Indeed, when asked at the hearing if he had "some employees that [he] moved from job to job," Bob Viola replied, "There were a couple of employees that moved to different jobs. We never forced them to. They just wanted to travel around the country, I guess." In addi- tion, there are several references in the hearing to a Jim Lummus, who I take to be J. Loomis, working for Viola 22 Here, I make the assumption that the General Counsel had all the data, an assumption that may be unwarranted in view of the questioning at the hearing relating to R. Exh 17 27 There may have been, for example, less steady installation work during the latter years of the 1977- 1982 agreement 2a At the outset of the heanng, as one of the counsel for the General Counsel explained a blackboard diagram of the chronology of the case, she said In 1979, it's at this point that we are contending the Union achieved 9(a) status Now this is a big legal dispute between the two parties as to whether a 9(a) status was actually achieved But it's our conten- tion that in the year 1979 the Union achieved 9(a) status " At the opening of Respondents' case , their counsel stated, "I think if we refer to General Counsel's time line where substantial dispute exists at point D as to whether 1979 [sic] the evidence will sustain a find- ing of a majority status among employees to effect a maturing of an 8(t) agreement to a 9(a) bargaining relationship 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD after 1980.29 At one point, asked whether Lummus was a permanent employee , Viola replied, "As long as we were signatory, we would hire him." In my view, the evidence presented, as well as the inference to be drawn from the evidence omitted, tilt in favor of a determina- tion that "the workforce is of such a nature that a show- ing of majority support made at a particular point in time reasonably can be said to have significance at a subse- quent time." Construction Erectors, 265 NLRB at 787 (1982).30 The next question involves the sufficiency of proof that the union has in fact made a "showing of majority support" in the bargaining unit. In addressing this ques- tion in a number of cases , the Board has simply held that where a majority of the employees in a stable work force were union members "at any time during the term of the collective-bargaining agreement," 9(a) status followed. Hageman Underground Construction, 253 NLRB at 62; Construction Erectors, 252 NLRB 319 fn. 2 (1980); Preci- sion Striping, 245 NLRB 169 (1979), revd. 642 F.2d 1144 (9th Cir. 1981); Williams Enterprises, supra at 885.31 A review of the evidence here shows that of the six employees who performed unit work in October and No- vember 1978, three were union members and three were not. Beginning in December 1978, however, and in the 15 months thereafter shown on General Counsel's Exhib- it 5, a majority of the employees who worked in each month were union members; and of the four "core group" employees who worked the most steadily almost throughout the 18-month period, three (and then W. Johnson beginning in July 1979) were union members throughout. 32 29 I have no doubt that the J Loomis shown on the exhibits and the Jim Lummus referred to in the testimony are the same persons, the court reporter used the latter misspelling when specific references was being made to the J. Loomis shown on the exhibits as well as when testimony independent of the charts was given about him. 30 In Hageman, supra, the Board found that the complement evidence adequately established a stable work force even though it covered only a 7-month period starting from the time the 8(t) contract was signed and was silent as to the next 11 months leading up to the employer 's repudi- ation of the agreement 91 On review of Irvin-McKelvy Co., 194 NLRB 52, (1971), the Court of Appeals for the Third Circuit said (475 F 2d 1265, 1271 (1973)). "What- ever may be the correct rule in the absence of union security and dues checkoff clauses, at least where the union 's role has by the operation of such clauses been brought home to the employees quite directly, and they have refrained from seeking a representation election , an employer is not free to repudiate his 8(1) contract during its tern " The agreements in the present case contained union-security provisions 32 It could be argued from the evidence relating to the tenure of em- ployment of the five nonmembers that the contractual union -security clause was not rigidly enforced , from which it might follow that the em- ployees who were union members during the 18-month period undertook that association voluntarily . A similar inference is possible from the evi- dence regarding the eight member-employees who only worked for a few months during the period; because the stipulation states that they were members "during each of the months that they worked," it is arguable that their membership may not have resulted from the compulsion of the union-shop clause (which allowed them a 30-day grace period), but was, rather, voluntary. On brief, Respondents make no argument that the showing of union support is qualitatively insufficient In contending that Elevator is a "project-by-project" employer and should be judged only on that basis, Respondents analyze employment on each project to ascer- tain whether the Union had "majority status on [the] project in (an) ap- propriate unit at any time during [the] period " In answering that ques- tion in the affirmative as to six different projects , Respondents look to union membership to determine majority status I reach the conclusion , on the foregoing analysis, and on the basis of the cited authorities, that at least by De- cember 1978, the Union "not only [became] the bargain- ing representative for all present and future sites but, as in a typical industrial setting, also enjoy[ed] an irrebutta- ble presumption of majority status for the duration of the agreement." Hageman Underground, supra at 62. It fol- lows from this attainment by the Union of 9(a) status that Respondent Elevator could not lawfully do what it con- cededly did, beginning a few months after the contract expiration in July 1982-effect a unilateral change in the existing terms and conditions of employment . Remodeling By Oltmanns, Inc., 263 NLRB 1152, 1161 (1982).33 Con- sequently, at the least Respondent Elevator violated Sec- tion 8(a)(5) by not applying to the projects on which it admittedly worked after July 1982 those existing terms and conditions of employment contained in the contract that expired in that month.34 C. Effect of Execution of Agreement on December 14, 1982 The General Counsel and the Union , however, have somewhat bigger fish to fry , for it is their thesis that when Respondent Industries executed the 1982-1987 agreement in December 1982, that act was the legal equivalent of execution of the agreement by Respondent Elevator. They argue, accordingly, that Respondent Ele- vator was bound to apply to all its installations after De- cember 1982 the terms contained in the most recent agreement. That seems to a be a sound contention. Bob Viola gave some seemingly questionable testimo- ny about the genesis of Industries . He told us that as early as December 1981, he had determined to subcon- tract the installation of the Getty elevator because it was to be "the biggest one we ever did" and "we wanted a local contractor to do the installation because a project of this size required follow-up service afterwards." How- ever, so far as the record shows, he took no steps toward finding a subcontractor until Business Manager Williams contacted him on November 18, 1982, at which time he asked Williams to recommend some unionized subcon- tractors. It was only shortly thereafter, on December 1, Williams having theretofore evidently secured Viola's agreement to sign the standard contract and Barnes having told Treadway on December 1 that they would sign, that Viola affixed his signature to the one -page arti- cles of incorporation of Viola Industries, Inc., which were filed with the State of Kansas on December 6. This timing is obviously suspicious , and so is the avowed purpose for forming a new corporation. The question arises as to why, if Viola wanted to subcontract sa Respondents argue on brief, citing Haberman Construction Co, 236 NLRB (1978), and Amado Electric, 238 NLRB 37 (1978), that the Gener- al Counsel must establish actual majority support "at the time of the al- leged wrongful repudiation " As the Board pointed out in Hageman, however, those cases apply only to "project-by-project " employers 253 NLRB at 62 a' It is, of course , firmly established that most bargaining agreement terms remain in effect even after the contract expires unless and until they are lawfully modified by an employer who has satisfied his bargain- ing obligation with regard to any such modifications Hen House Market No. 3 v. NLRB, 428 F 2d 133, 137 (8th Cir 1970), and cases cited VIOLA INDUSTRIES 317 out the installation work, could he not have done that by direct contracts between Elevator and other firms? In ex- plaining why he went to the trouble of creating Indus- tries, Viola said, "It was for the purpose of handling the subcontracting work on that type of project," which he later explained as "elevator installations requiring . . . International Union of Elevator Constructors people"- i.e., unionized projects. He did not explain, however, why a new corporation had to be formed for that pur- pose. It was obvious from Treadway's conversation with Barnes on December 1 that the Union would have been satisfied if Elevator simply contracted out its installations to signatory subcontractors. The evidence persuades me that, in fact, Viola and his attorneys had not been working on the formation of In- dustries as early as October, as he testified: "we had started the paper work to organize it in order to handle all the subcontracting work before this. We just pushed it on through because of this but it was started prior to this." The "this" to which Viola that alluded in the fore- going quote refers to the following circumstances that led to Industries' signing of the agreement on December 14, 1982. Viola testified that after Williams, on November 18, gave him the names of some unionized elevator compa- nies in the Delaware area, he contacted General Eleva- tor and Mainco, both organized employers, about per- forming the installation. Both firms showed interest in doing the job, but both subsequently turned it down. Al- though the hearsay rule precluded Viola from testifying about the reasons they gave for doing so, evidence sup- plied by Union Agents Treadway and Williams makes it clear that the Union put some pressure on the two com- panies not to take over the work until Viola had signed an agreement . Treadway testified that he had a call from Williams asking if it was permissible to have General El- evator or Mainco install the Getty elevator, and Tread- way told Williams "to hold off until we can see if we can sign Viola to an agreement." Similarly, in Williams' March 30, 1983 letter to Frank DiMauro, discussed in more detail hereafter, Williams Wrote, "[I]t was neces- sary for Viola to sign our Agreement or give up the work. 1135 Thus, it appears to me that the message was driven home to Viola that he would have difficulty subcontract- ing the work at Getty unless he signed the bargaining agreement.36 It was this message, I am inclined to think, that led Viola to the notion of setting up a new corpora- tion with a similar name, which the Union would believe to be the old one. It would have been obvious to Viola that the Union would not be satisfied simply to execute an agreement with a new entity that intended only to engage in pass-through subcontracting and never planned to hire employees; accordingly, he apparently deter- mined to deceive the Union by letting it believe that it ss Williams also testified to a conversation in December with Tread- way about "whether Viola could subcontract to Mainco " 36 The Respondents do not argue on brief that this pressure invalidates the agreement, evidently in recognition of the settled Board doctrine that such a defense is barred by Sec 10(b) E g, Land Equipment, 248 NLRB 685 fn 2 (1980) was simply signing a renewal contract with a entity with which it had been contracting for years.37 Whether the foregoing scenario reflects the actual se- quence of events is probably irrelevant. Given the one clear fact that Viola did knowingly lead the Union into thinking that the same Company as before was signing the agreement, and given my conclusion that, by oper- ation of law, the Union had been transformed into a 9(a) representation by December 1978, I do not see why Viola should not be held to have done what he attempt- ed to have the Union believe that he had done. He surely understood that the Union would assume that it once more had under contract the same Company as before. This, presumably, facilitated the contracting out of the Getty job, while it also, from Viola's viewpont, af- forded him a basis for later claiming , on other jobs di- rectly installed by Elevator, that the latter Company had no legal commitment to the Union. By engaging in this deception, Viola arguably succeed- ed in lulling the Union into believing that no organiza- tional efforts were needed at the Viola enterprise. In these circumstances, it seems fitting that Viola be held to the appearance he intended to create-that Respondent Elevator was executing the 1982-1987 agreement.38 As counsel for the General Counsel points out on brief, when Larry Barnes told Union President Treadway on December 1, 1982, that Viola would sign the 1982-1987 agreement, he had to be speaking on behalf of Elevator because Industries did not come into existence until 5 days later. I find, accordingly, that Bob Viola's execution of the standard agreement on December 14, 1982, effected a commitment of Respondent Elevator to the terms and conditions embodied in that agreement, and that by fail- ing to apply those terms and conditions to the projects undertaken by Elevator on and after the date, Respond- ents have violated Sections 8(a)(5) and 8(d) of the Act. I would make no similar finding as to the two projects for which Respondent Industries acted as a subcontracting conduit, namely, the Getty job in Delaware and the ASARCO job in Arizona. The record indicates that in fact the Getty job was performed by General Elevator and Mainco under ther terms of the union contract, with one slight exception hereafter discussed; it is almost as clear that that may also be said of the Arizona work (see Viola's testimony at Tr. 142). In any event, the work was not performed by employees of either of the two Viola Companies, and the complaint does not appear to encompass a claim that the actual contracting out of 97 Respondents make reference to the fact that Treadway sent copies of the 1982- 1987 agreement to Viola Industries at Industries' new post office box number, thus suggesting Treadway's awareness of the exist- ence of a new corporation Very likely, Barnes told Treadway the new number when they spoke on December 1 Since Treadway credibly testi- fied, without contradiction, that Barnes did not inform him of the forma- tion of a new corporation, there was no reason for him to believe that a new post office box indicated a new corporation 38 As indicated above, even if Elevator were not required to apply the terms of the latest agreement, it would at least have to recompense its employees and the Union for its unilateral modification, beginning in Oc- tober 1982, of the terms that continued to exist after the contract expired 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work itself violated the Act.39 The "slight exception" mentioned above is the evidence showing that, on the Getty site, the Viola firm actually performed some of the final work (in Viola's words to Herwig, "we had to finish the job"). It is appropriate to conclude that the direct performance of such work without compliance with the 1982-1987 agreement was also violative of Sec- tion 8(a)(5). Respondents also violated Section 8(a)(5) and Section 8(d) by virtue of Viola's November 4, 1983 repudiation of the December 14, 1982 agreement.40 I would not, however, conclude that Respondents violated Section 8(a)(3), as alleged in the complaint, by failing to hire in- dividuals who would have been referred pursuant to the hiring hall provisions of the bargaining agreement. The remedy sought by the General Counsel on this portion of the complaint is a make-whole order for employees who would have been hired (a determination to be made during the compliance stage of this proceeding) except for Respondents' "discrimination against them by failing, since on or about October 1, 1982, to utilize the hiring hall provisions set forth in the 1977-1982 and 1982-1987 collective-bargaining agreements." The General Counsel cites no authority for the finding and remedy requested. Charging Party's brief offers a "cf." citation to Boilermakers Local 154 (Western Pennsyl- vania Service Contractors), 253 NLRB 747 (1980), which involved operation of a discriminatory hiring hall. It does not seem to me that Respondents' failure to comply with the hiring hall provisions was any more violative of Section 8(a)(3) than their failure to comply with any other employee-benefiting provision of the agreement, but I note that the latter omissions are not similarly al- leged to be violative of Section 8(a)(3). It also appears to me that the speculative remedy requested could lead to a major windfall for some employees; the record tells us nothing about the actual operation of the hiring hall system other than that Viola used to obtain needed em- ployees by contacting the union regional director in Denver, who then made hiring arrangements all over the country. The contract only requires the employer to use the Union as "the fist source" of applicants; if the Union fails to refer qualified workmen within 48 hours, the em- ployer may hire from any source. In addition, if the em- 39 Par l l of the complaint alleges that Elevator and Industries "have failed to and refused to apply the collective-bargaining agreement to employees of the unit employed by Industries and Elevator" But the work performed under the subcontracts let by Industries was not done by "employees of the unit employed by" Industries and Elevator ao It may be noted that this action by Viola impliedly concedes that the contract he signed in December was intended to be applicable to the operations of Elevator Because Industries itself had engaged in no instal- lation work since its inception and did not intend to, there was no appar- ent reason for it to suddenly , without discernible provocation , terminate the agreement in November-unless it understood that the agreement could be construed as applying to Elevator as well At the hearing, Viola testified that he terminated the contract because of the poor work the union employees had done at Getty and ASARCO Because he had been using union labor for a decade or more, it seems somewhat unlikely that the skill level could have dropped off so drastically But even if it were true Industries had no apparent reason to cancel the contract , if union labor was inadequate , Industries could have simply stopped subcontract- ing to unionized firms, or Elevator could have stopped subcontracting to Industries ployer requests a particular worker by name, the worker "shall be" referred by the Union. Unlike Western Pennsylvania Service Contractors, supra, and some of the cases cited therein (see id. at 764), there has here been no showing that any employees have been discriminated against; the individuals employed by Viola sans use of the hiring hall may be the same ones who would have been referred by the hall. In this respect, the case seems more like Longshoremen Local 851 ILA (West Gulf Maritime Assn.), 194 NLRB 1027 (1972), cited ap- provingly by the Board in Western Pennsylvania, supra at 748 fn. 4, than the other cases cited in that decision. While not explicit on the point, a number of cases in which employers have been found guilty of failing to honor hiring hall provisions do not appear to have con- templated a make-whole remedy for some stranger em- ployees. Construction Erectors, 252 NLRB 319 (1980); Kraft Plumbing & Heating, 252 NLRB 891 (1980); Pacific Intercom Co., 255 NLRB 184 (1981). It is sufficient, I think, that the 8(a)(5) remedy will make whole those em- ployees who actually performed the work under sub- standard terms of employment. Before finally concluding the foregoing substantive matters, however, it is necessary to address a procedural argument advanced by Respondent, saved for consider- ation until now so that the reader might have as firm a purchase as possible on the complex facts of this case. D. The 10(b) Defense In their answers to the complaint, Respondents assert as an affirmative defense that "[s]ome allegations are barred by the statute of limitations." On brief, Respond- ents argue more specifically that "all allegations of unfair labor practices occurring before May 14, 1983, should be dismissed" because, for various reasons, the Charging Party assertedly received notice as early as 1982 that Re- spondents were engaging in conduct arguably violative of the Act. Section 10(b) of the Act provides, in relevant part, that "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made." The Board holds that despite the literal lan- guage of Section 10(b) the 6-month limitation period does not begin to run until "the injured party receives actual or constructive notice" of the conduct complained of. Drukker Communications, 258 NLRB 734 (1981); Car- penters (Skippy Enterprises), 211 NLRB 222, 227 (1974). Thus, the filing date of the first charge on November 14, 1983 (asserting that Viola Industries, Inc. had violated the Act by repudiating the collective-bargaining agree- ment and by failing to pay wages and benefits provided for by the agreement), would normally permit finding violative only those unfair labor practices that had oc- curred in the preceding 6-month period, beginning May 14, 1983. If, however, the Respondents had committed unfair practices prior to that date, which did not come to the Union's attention until some later time, the 10(b) period would not begin to run until that later point in time. VIOLA INDUSTRIES The Board has held in ACF Industries, 234 NLRB 1063 (1978), affd. in principle 596 F.2d 1344, 1351 (8th Cir. 1979), and again in Strick Corp., 241 NLRB 210 fn. 1 (1979), and Lehigh Metal Fabricators, 267 NLRB 568, 576 (1983), not only that the notice that starts the 10(b) period running must be "clear and unequivocal," but also that, "since Section 10(b) is a defense, the burden is on Respondent to establish notice. 1141 In the instant case, the record discloses the identity of only four union agents who were at all knowledgeable about Bob Viola, his operations, and his relationship with the Union- President Treadway, Regional Director Ruenda, and Business Managers Geier and Williams.42 All four testi- fied43 that they had no knowledge, until at least late in 1983, that Respondent Elevator was directly engaged in installation work on a nonunion basis after the expiration of the 1977-1982 agreement in July 1982. All four wit- nesses made a good impression at the hearing, and I am inclined to accept their testimony. It is, however, appro- priate to consider certain evidence that, Respondents be- lieve, may constitute a convincing demonstration of knowledge gained by appropriate officials at an early stage that Viola was operating without union constraints. First, Respondents contend that the testimony given by Business Manager Williams, and a letter dated March 30, 1983, written by Williams to Frank DiMauro, the president of the Delaware Building and Construction Trades Council, establish that the Union must have been aware early on that Respondent Elevator had unilateral- ly changed and/or failed to comply with the employ- ment terms and conditions contained in the contract that had expired in July 1982. It will be recalled that when Williams heard in No- vember 1982 about elevator activity on the Getty jobsite in Delaware, he looked into the matter and found that Viola had not signed the1nost recent agreement and had not recently contributed to the benefit funds. When Wil- liams called Viola, the latter explained, as Williams testi- fied, that he had not signed because of his dissatisfaction with the work done by union workers "and that he had jobs, he had work in the South and that he could go to work for nonunion general contractors and he wouldn't have to be signatory to the agreement." The March 30, 1983 letter from Williams to DiMauro (concerning an in- cident of suspected sabotage to Viola equipment by members of another union on the Getty job) also recites that Viola Industries had originally decided not to sign the 1982 agreement because of its displeasure with "unions giving them bad times and because of the type of work they do (usually refineries), in the South it is re- quired that all contractors be nonunion (Brown & Root, etc.)."44 In this letter, Williams went on to say: 41 Whatever the allocation of the burden of proving or disproving notice of the event, in the present case I would conclude that even if the General Counsel had to shoulder the burden of proving lack of notice, that has been done 42 Houston Local 31 Business Manager Adolph H Schumann will be discussed hereafter 41 Williams was not as explicit as the others, but his position seems clear enough 44 Evidently, Viola gave Williams a different reason for not signing the renewal contract than he gave to Geier and Rueda 319 Since Viola Industries had a contract to install the elevators on the new cracking still at Getty Oil, Delaware City, Delaware, it was necessary for Viola to sign our agreement or give up the work. Mr. Viola decided to give the unions another try and hire union members to install the elevators at Getty Oil. Viola has other work in this area as well as cities throughout our country. Subsequently, after describing the incident resulting in damage to the equipment, Williams wrote, "Those con- struction workers and the union that did the damage to the elevator equipment proved to Mr. Viola that he should have stayed non-union, that he made a mistake signing a union agreement." The letter ends, "I feel my union owes [Viola] respect as he is signatory to our Agreement and hires members of our union." A copy of this letter went to Treadway. The foregoing evidence provides no basis for inferring that "the Union" knew or should have known, in 1982 or the first part of 1983, that Respondent Elevator was in- stalling elevators in Texas and had departed from the preexisting terms of employment established by the ex- pired agreement. As for Williams' conversation with Viola in November 1982, the fact that Viola told him that he "had work in the South" and he "could" perform work under nonunion conditions does not reasonably amount to a statement that Williams should have under- stood as meaning that Viola had already engaged in such work in such a manner. The record makes clear that there are often long delays between the awarding of work in this industry and the actual construction. As in City Roofing Co., 222 NLRB 786 fn. 1 (1976), Viola's re- marks at best only indicated a "possibility" that there might be noncompliance with the preexisting terms of employment.45 Moreover, once Viola apparently told Williams that he would sign the 1982 agreement, and Williams was in- formed shortly thereafter by Treadway that Viola had done so, even if there were some ground (which I do not find) for Williams, as of November 18, to have believed that Viola had violated the Act between July and No- vember, there certainly would have been no reason for him to believe so after the latter part of November.46 As his March 30, 1983 letter states, even at that time Wil- liams believed that Viola "is signatory to our Agreement and hires members of our union."47 45 Williams testified credibly that Viola had not expressly mentioned Brown & Root to him, and he simply used that contractor as a generic example of nonunion general contractors. 46 Consequently, even if it were held that Williams (and the Union) were somehow on sufficient notice of violations beginning on November 18, and that the 10(b) limitation commenced to run at that time , it would seem that, given the intervening event of Viola's signing of the agree- ment soon thereafter, the limitation was again tolled as of late November, when Williams expected the contract to have been executed and, equita- bly, the violations dispatched into oblivion by Sec 10(b) would only be those that occurred between the start of the Exxon work in October and late November 97 I note that, although Bob Viola is shown on the March 30 letter as having been sent a copy, he apparently made no effort to indicate to Wil- liams that he was wrong in assuming , as Williams apparently does throughout the letter, that Viola Industries was itself performing the work on the Getty site 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I reach a like conclusion with respect to the conten- tion that Union President Treadway, who received a copy of the March 30 letter and who testified that he had read it, was on notice of prior violations by Viola once he had seen the copy about April 1. The references in the letter to Viola having not signed the latest agree- ment because they were "fed-up with unions giving them bad times," to "because of the type of work they do (usually refineries), in the South it is required that all contractors be nonunion (Brown & Root, etc.)," and to Viola having "other work in this area as well as cities throughout our country," did not, in my view, reason- ably inform Treadway that between July and December 14, 1982, when Viola, to Treadway's knowledge, signed the agreement, Viola had engaged in any installation work at all, much less failed to comply with preexisting contractual standards when he engaged in such work. It is true that the letter might conceivably have inspired Treadway to investigate such a possibility, but I do not believe the law of notice has been applied that stringent- ly in the past. City Roofing Co., supra. Respondent also seems to rely on certain documenta- tion pertaining to the relationship between Viola and the trustee (the First Pennsylvania Bank) to which, under the 1977-1982 contract, Viola had been making fringe benefit payments. Bob Viola received a letter from the bank, dated December 21, 1982, which stated that Viola Industries was delinquent in payments to the fund for the period "6/82 thru 10/82." Viola wrote on the letter "No Employees, Contract Was Terminated In July" and re- turned it to the bank.48 The law firm of O'Donoghue and O'Donoghue serves as legal counsel to the administrator of the trust funds and also acted in this case as counsel for the Union. On August 15, 1983, Attorney Joseph P. Boyle of the O'Donoghue firm wrote a letter to Viola Industries. The letter identified the firm as legal counsel to the funds, noted that Viola was delinquent for the month of June 1982, and made a demand for the unpaid contribution. A copy of the letter went to Geier (in whose files it re- posed, although Geier did not seem to actually remem- ber seeing it before). On August 22, 1983, Bob Viola replied to Boyle, saying that his Company had "allowed the IUEC con- tract to expire in July 1982" and further stating that the firm had "advised the fund administrator in Pennsylvania numerous times that no funds were due for that last month of June 1982." On September 28, Boyle replied, saying that contributions were owed for employees who were employed in June. Geier "believe[d]" that he re- ceived the copy of this letter, which indicates it was sent to him. On October 4, Viola patiently reiterated to Boyle that he owed nothing because he had no employees working under the agreement in June 1982. Respondents argue: "at the very minimum, the incon- sistencies should have put charging party on notice that 48 Geier, of Wichita Local 94, could not testify that he had seen a copy of the bank's letter, although a copy to Local 94 is indicated on the letter, and Geier has "seen this type of thing " Counsel for Respondents stated that no copy was found in the files of Local 94 Viola did not testi- fy that he sent to Local 94 a copy of the letter with his answer written on it something was not right as early as August 15, 1983, when a demand was served upon Viola Elevator for de- linquencies for the month of June, 1982." I do not follow this contention. There does appear to be a surface incon- sistency between the bank's December 21, 1982 letter, stating that Viola was delinquent in payment for the period "6/82 thru 10/82," and the subsequent letters from counsel for the funds declaring Viola delinquent only for June, but that seems to be an acceptance by the funds' counsel of the representation made by Viola that he had "no employees" thereafter. And whatever the counsel for the funds may have implied about his under- standing of the legal effect of the July 1982 termination of the contract, that understanding has no bearing on the state of mind of the other member or members of that same law firm who represent the Union in this case. That counsel for the funds was only claiming a delinquency for work performed prior to the expiration of the con- tract in July 1982 does not in any way suggest that coun- sel for the Union, or Geier, should somehow have known that Viola directly engaged in installation in late 1982 or early 1983. Nothing in the foregoing body of evidence49 serves as a sufficient showing that the Union knew, or should have known, that Respondent Elevator was not abiding by the old contract terms after the contract expired on July 8, 1982, or by the new contract terms after the 1982-1987 contract was signed by Viola on December 14, 1982. That it is unlikely that the Union was aware of these facts is made more certain by the evidence showing that Bob Viola made an active effort to conceal the jobs un- dertaken by Elevator in Texas after the 1982 contract ex- pired; I refer here to the evidence that Viola told both Geier and Rueda that Elevator was no longer in the in- stallation business even as he entered upon such work at the Exxon project in Mont Belvieu.50 The record makes clear, I think, that the first time any relevant union offi- cial had a glimmer that Viola might have been operating improperly came when Williams received information in September 1983 about some jobs that "they were going to install nonunion" in Elmira and San Antonio. After this came Faggan's report that Viola had been "working with nonunion personnel" in Delaware City, and then came Viola's letter of repudiation of November 4. The first charge was filed on November 14, and it was evi- dently only in the course of investigating that charge that the Union turned up the information about the other late 1982 and early 1983 work performed by Elevator in Mont Belvieu, Seadrift, Texas, and elsewhere. Thus, I agree with the General Counsel and Charging Party that the Respondents have not shown that the 49 Although Respondents make no reference in their brief to Adolph Schumann , the Houston Local 41 business manager with jurisdiction over Mont Belvieu, I credit his testimony that he had no knowledge of the work performed by Elevator at Mont Belvieu, some 35 miles from Schu- mann's location so That Viola is capable of deceit is disclosed by his November 2, 1981 bid on the Getty project, at a time when the 1977- 1982 agreement was still in effect In completing the form required by Lummus Construction, Viola marked "No" to the question of whether " Bidder is signatory to collective bargaining agreements," adding the note, "This means that our field personnel would likely not be a member of any union " VIOLA INDUSTRIES 321 Union had notice of any unfair labor practice at some time earlier than 6 months before a timely charge was filed with the Board. CONCLUSIONS OF LAW 1. Respondent Viola Industries-Elevator Division, Inc., and Respondent Viola Industries, Inc., are alter egos and have been, at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All elevator constructor mechanics and helpers in the employ of Respondent Viola Industries-Elevator Division, Inc., engaged in the installation, repair, maintenance, and service of elevator equipment as defined in the collective-bargaining agreement be- tween Respondent Viola Industries-Elevator Divi- sion, Inc. and the Union effective for the period De- cember 14, 1982, to July 8, 1987.51 4. All relevant times since December 1978, the Union has been, and is now, the exclusive representative of all employees in the above-described appropriate unit for purposes of collective bargaining. 5. On December 14, 1982, Respondents and the Union entered into a collective-bargaining agreement in which Respondents agreed to recognize the Union as the repre- sentative of the employees in the above-described unit and in which it also agreed to abide by the provisions of the master agreement between the Union and National Elevator Industry, Inc., which by its terms is effective until July 8, 1987. 6. By, since about October 1, 1982, unilaterally chang- ing the terms and conditions of employment set forth in the bargaining agreement between Respondent Elevator and the Union, which expired on July 8, 1982; by failing to abide by the terms of the collective-bargaining agree- ment covering such employees executed on December 14, 1982; and by repudiating about November 4, 1983, the aforesaid collective-bargaining agreement, Respond- ents have violated Section 8(a)(5) and (1) and Section 8(d) of the Act. 7. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having concluded that the Respondents have violated the Act in certain respects, I shall recommend that ap- propriate remedial requirements be imposed. 61 Although my recommended Order will run against both Respond- ents, I have omitted reference to Viola Industries, Inc., in the bargaining unit description because the evidence makes clear that Industries has never employed constructors and most probably will not do so in the future. To refer here to employees "in the employ" of Industries, which has never had an employee, seems unrealistic. In addition to ordering the Respondents to cease and desist from the unfair labor practices found, I shall also recommend that they be required to make employees whole for all unit work performed between October 1, 1982, and December 13, 1982, insofar as such employees were not compensated in accordance with the terms and conditions of the collective-bargaining agreement that expired on July 8, 1982, including payments to the trust funds described there. Similarly, the Respondents should be required to make whole those employees of Respond- ent Elevator who performed bargaining unit work on and after December 14, 1982, to the present, by giving retroactive effect to the terms and conditions of the col- lective-bargaining agreement executed by Respondents on that date. Any resulting backpay shall be paid with interest in accordance with the Board's customary policy,52 but the question of whether interest must be paid on the trust fund contributions shall be left to the compliance stage of this proceeding. Merryweather Opti- cal Co., 240 NLRB 1213 (1979). The foregoing require- ments, however, do not apply to the two projects at Delaware City, Deleware, and Hayden, Arizona, dis- cussed above, at which Respondent Industries contracted out the installation and maintenance work to other firms, with one exception: the foregoing remedy shall be appli- cable to the work directly performed on the Delaware City project by employees of Respondent Elevator in and about October 1982. In addition, the customary notices shall be posted by Respondents at their place of business in Arkansas City, Kansas, and at all construction sites at which Respond- ents are presently performing work. Moreover, Respond- ents shall mail copies of the notice to all employees af- fected by this Order at their last known addresses, and shall furnish signed copies to the Union for posting at its offices and meeting halls. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed53 ORDER Respondents Viola Industries-Elevator Division, Inc., and its alter ego Viola Industries, Inc., Arkansas City, Kansas, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally modifying the existing terms and con- ditions of employment that constitute mandatory subjects of bargaining at such times as there is no collective-bar- gaining agreement in effect between Respondents and International Union of Elevator Constructors (the Union) or any other labor organization that is entitled to be rec- ognized as the bargaining representative of Respondents' employees. 62 See Florida Steel Corp., 231 NLRB 651 (1977); Isis Plumbing Co., 138 NLRB 716 (1962). 68 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. 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Repudiating collective-bargaining agreements when there is no legal justification for doing so. (c) Failing to honor and apply the collective-bargain- ing agreement executed by Respondents and the Union on December 14, 1982, covering the employees in the following appropriate unit: All elevator constructor mechanics and helpers in the employ of Respondent Viola Industries-Elevator Division, Inc., engaged in the installation, repair, maintenance, and service of elevator equipment as defined in the collective-bargaining agreement be- tween Respondent Viola Industries-Elevator Divi- sion, Inc. and the Union effective for the period De- cember 14, 1982, to July 8, 1987. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and bargain with the Union as collec- tive-bargaining representative of the employees in the above-described bargaining unit. (b) Honor and apply to the employees in the above- described bargaining unit the terms and conditions con- tained in the collective-bargaining agreement agreed to by the Respondents and the Union on December 14, 1982. (c) Make whole, with interest, the employees in the above-described bargaining unit for any loss of wages and benefits they may have suffered because of Respond- ents' unlawful modification of the existing terms and con- ditions of employment on and after October 1, 1982, and until December 13, 1982, and for any loss of wages and benefits they may have suffered because of Respondents' failure to honor and apply the terms and conditions of the collective-bargaining agreement executed on Decem- ber 14, 1982, including appropriate contributions to em- ployee benefit trust funds, in accordance with the remedy section of the decision. (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at their offices in Arkansas City, Kansas, and at all jobsites where unit employees are working at the time Respondents commence compliance with the terms of this Order, copies of the attached notice marked "Ap- pendix."54 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. In addition, Re- spondents shall mail copies of the notice to all employees affected by the terms of this Order, and shall furnish signed copies of the notice to the Union for posting at its offices and meeting halls. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents have taken to comply. 64 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "