Metro Foods, Inc. And Brice Bros., Inc.

METRO FOODS 1107 Metro Foods, Inc. and Brice Bros., Inc. and Freight Checkers, Clerical Employees and Helpers, Teamsters Local Union No. 856 , International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 20-CA-20928 and 20-CA-20982 July 26, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 30, 1987, Administrative Law Judge Earldean V. S. Robbins issued the attached decision. Respondent Metro Foods, Inc. (Respond- ent Metro) filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and i Respondent Metro has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admmistra- 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. In sec. III,H, par 6, of her decision, the judge found that Office Man- ager Lee's questioning of employee Danette Petersen on January 15, 1987, whether Petersen would go with Owner Leo Englert to Metro or stay with the Union was coercive and therefore violated Sec. 8(axl) and (3) of the Act. However, in par. 8 of her conclusions of law, the judge determined that the interrogation violated only Sec. 8(axl). The com- plaint alleged that Lee's questioning of Petersen violated only Sec 8(axl). Accordingly, we correct the inadvertent error in sec. III,H, par 6, of the fudge's decision and find that the interrogation violated only Sec. 8(aXl). 2 In its exceptions, Respondent Metro argues that the facts in Victor Valley Heating & Air Conditioning, 267 NLRB 1292 (1983 ), where no alter ego relationship was found, present a stronger basis for making an alter ego finding than the facts in the instant case We disagree. In Victor Valley, the husband and wife owners of a company had a collective-bar- gaming agreement with a union. The husband, as president and manager of the company, decided to terminate part of the company's operations because of unprofitability caused by competition from nonunion business During the time of this decision, the husband and wife's son, with his parents' assistance and a large monetary gift from the son's grandmother, formed a company engaged in the same type of business being terminated by his parents. The parents' former secretary became the bookkeeper and secretary for the new company and the son hired his brother-in-law, a former employee of the son's parents, as his superintendent. The son bought equipment no longer needed by his parents because of their partly terminated operations, and the parents referred customers to their son. The Board adopted the judge's decision finding that the parents' assist- ance to their son involved routine matters and did not include direction of employees, business management, or control of any daily operations. At the son's company, the brother-in-law alone was responsible for hiring, firing, and assigning work. At the parents' company, the husband was singularly in charge of labor matters. The parents also had no finan- cial stake or ownership interest in their son's company and the son's com- pany received no financial benefit from the parents' business . Although the husband was registered as his son's responsible managing officer, the registration was a mere paper transaction designed to qualify the new company for a state license. The registration did not give the husband any financial interest or ownership in the new company. conclusions2 and to adopt the recommended Orders as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Metro Foods, Inc. and Brice Bros., Inc., San Francisco, California, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(f). "(f) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. In the instant case, Leo Englert created Metro Foods, Inc. to benefit himself and to avoid his contractual obligations with the Union . We note that Englert had substantial ownership interests in both Brice Bros., Inc. and Metro Foods, Inc., was the dominant voice in labor relations matters at both companies, and openly espoused his desire to rid himself of the Union. Accordingly, we find that Victor Valley is clearly distinguishable from the instant matter and we adopt the judge's conclusion that Brice Bros., Inc. and Metro Foods, Inc. are alter egos. ® The General Counsel has requested that the order include a visitator- ud clause. We find no need for such a remedial provision in the circum- stances of this case. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 4 In per. 4 of her Remedy, the judge recommended issuing a broad cease-and-desist order against the Respondents. In her Order, however, the judge issued a narrow cease -and-desist order. Because we agree with the judge that a broad order is appropriate under the circumstances of this case, we shall modify the Order and issue a new notice to employees. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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. WE WILL NOT refuse to recognize and bargain with the Union as the exclusive representative of our employees in the appropriate unit with respect 289 NLRB No. 134 1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to wages, hours, working conditions, or other terms and conditions of employment of the em- ployees, or refuse to honor the collective-bargain- ing agreement applicable to those employees, or fail to apply to such employees the terms and con- ditions of the agreement. WE WILL NOT bypass the Union and bargain di- rectly with our employees with regard to the terms and conditions of their continued employment. WE WILL NOT refuse to furnish the Union with requested information regarding the alleged closure of our South San Francisco, California facility, and the alleged sale and disposition of certain of our assets, capital, and goodwill, and WE WILL NOT provide the Union with misleading inaccurate in- formation in response to such requests. WE WILL NOT discourage membership in the Union, or any other labor organization, by termi- nating our employees because they are represented by the Union or any other labor organization, or because they are covered under a collective-bar- gaining agreement, or by otherwise discriminating against our employees, in regard to hire, tenure, or employment, or other terms and conditions of em- ployment. WE WILL NOT coercively interrogate our em- ployees about their union activities and sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize Freight Checkers, Clerical Employees and Helpers, Teamsters Local Union No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO as the exclusive collective-bargain- ing representative of our employees in the apro- priate unit described below and, on request, meet and bargain with the aforesaid Union concerning wages, hours, pension, and welfare benefits, and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed document. The appropriate unit is: All employees covered by the collective bar- gaining agreement between the Union and the San Francisco Produce Association and the Terminal Dealers' Association, effective by its terms from February 1, 1986 to February 1, 1989. WE WILL acknowledge that we are bound by the collective-bargaining agreement between the Union and the San Francisco Produce Association and the Terminal Dealers' Association effective by its terms from February 1, 1986, to February 1, 1989, andWE WILL abide by the terms of said agreement, both retroactively and prospectively. WE WILL make our employees whole by paying retroactively the wage rates provided for in our collective-bargaining agreement with the Union and by paying all contractually required contribu- tions to the various trust funds established by the collective-bargaining agreement and by reimburs- ing employees for any expenses they may have in- curred because of our failure to make such re- quired payments. WE WILL offer each of the employees named below immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his or her seniority or any other rights or privi- leges previously enjoyed and WE WILL make him or her whole for any loss of earnings and other benefits resulting from his or her discharge, less any net interim earnings, plus interest. Harry Barsanti Danette Petersen Lillian Fenech Arturo Cadena Cucu Franco Liborio Leon Oscar Canizales John Ensey Steve Mosunic Willie Reyes Franklin Tying Arthur Meier William Singleton William Prieto Robert Ikeda WE WILL remove from our files any reference to the unlawful terminations and notify each of the employees in writing that this has been done and that the termination will not be used against them in any way. METRO FOODS, INC. AND BRICE BROS., INC. Nancy E. Watson, for the General Counsel. Randolph C. Roeder (Littler, Mendelson, Fastiff & Tichy), of San Francisco, California, for the Respondents. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This case was heard before me on 8 through 11 June 1987 in San Francisco, California. The initial charge in Case 20-CA-20928 was filed by Freight Checkers, Clerical Employees, and Helpers, Teamsters Local Union No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) and served on Metro Foods, Inc. and Brice Bros., Inc. (Metro, Brice, Brice Bros., or Re- spondents). On 22 January 1987 a first amended charge in Case 20-CA-20928 was filed by the Union and served on Respondents on 9 March 1987. The initial charge in Case 20-CA-20982 was filed by the Union and served on Respondents on 10 February 1987, and a first amended charge in the case was filed by the Union and served on METRO FOODS Respondents on 9 March 1987. The consolidated com- plaint, which issued on 13 April 1987 alleges that Re- spondents have violated Section 8(axl), (3), and (5) of the National Labor Relations Act (the Act). The basic issues are: 1. Whether Metro and Brice are alter egos and a single employer within the meaning of the Act. 2. Alternatively, whether Metro is a successor to Brice obligated to recognize and bargain with the Union and, if so, whether it has failed in this obligation. 3. Whether Respondents unlawfully terminated certain named employees or, alternatively, if Respondents are not alter egos or a single employer , whether Metro Foods has unlawfully refused to hire those employees. 4. Whether Respondents have unlawfully refused to furnish the Union with certain requested information. 5. Whether Respondents have bypassed the Union and dealt directly with employees by soliciting employees to abandon the Union and enter into individual employment contracts. On the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ents, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material until 31 January 1987, Brice Bros., Inc., a California corporation, with an office and place of business in south San Francisco, California (the Brice facility), has been engaged in the nonretail sale and distribution of produce. At all times material since 1 Feb- ruary 1987, Metro Foods, Inc., a California corporation, with an office and place of business in San Francisco, California (the Metro facility), has been engaged in the nonretail sale and distribution of produce. During the 12- month period ending 1 February 1987, Brice Bros., in the course and conduct of its business operations, sold and shipped from its south San Francisco, California fa- cility products, goods, and materials valued in excess of $50,000 directly to enterprises located within the State of California, each of which is directly engaged in interstate commerce. Based on a projection of its operations since 1 February 1987, at which time it commenced its oper- ations, Metro, in the course and conduct of its business operations, will annually sell and ship from its San Fran- cisco, California facility products, goods, and materials valued in excess of $50,000 to enterprises located within the State of California, each of which is directly engaged in interstate commerce. The complaint alleges, Respondents admit, and I find that Brice Bros., until 31 January 1987, and Metro Foods, since 1 February 1987, each has been an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' At the conclusion of the hearing, I left the record open for the pur- pose of receiving a list of the Metro employee complement during its first month of operations by name, classification, hire date, and separation date where applicable. That list, marked as G.C. Exh. 34, is received into evidence. II. LABOR ORGANIZATION 1109 The complaint alleges, Respondents admit, and I find that the Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Brice Operations Brice Bros. has been in business as a wholesale produce distributor operating out of the Golden Gate Produce Terminal in south San Francisco for more than 25 years. In 1978, Leo Englert and Frank Luporini each acquired a 50-percent interest in Brice Bros. At that time Brice Bros. was a member of a multiemployer bargaining group, bound by a collective-bargaining agreement with the Union. In 1980, 1983, and 1986, successively, 3-year contracts were entered into by the Association and the Union. At no time did Brice Bros. make an attempt to withdraw from the multiemployer bargaining unit, and there is no evidence that prior to the incidents involved Brice made any attempt to encourage its employees to abandon the Union. Englert testified that at the time he and Luporini ac- quired Brice they anticipated that responsibility for Brice's operations would be divided. Englert would be responsible for the buying and selling of produce and Luporini would be responsible for labor and the ware- house. However, Englert admits this division of responsi- bility was never successful. According to him, Luporini did not carry out his responsibilities to Englert's satisfac- tion, and he admits that during the past 5 to 7 years he has made negative comments regarding Luporini to em- ployees. Brice employees Danette Petersen , William Sin- gleton, Harry Barsanti, Franklin Tying, and Gregory Thompson testified that Englert often made derogatory remarks about Luporini to employees and instructed them to ignore Luporini's orders. Tying testified that on a number of occasions Englert threatened to discharge him and other employees if they did not ignore Lupor- ini's orders. According to them, Englert said he was the boss and that employees should only follow his instruc- tions or that of Office Manager Beverly Lee or the Night Warehouse Supervisor Gregory Thompson. Eng- lert did not deny giving such instructions. According to Thompson, Englert decided whether employees should work overtime. Singleton and Tying testified that Eng- ler interviewed and hired them.2 He also assigned Sin- gleton the truck he was to drive. Further, there was a notation on the driver's schedule to see Englert regard- ing any changes. The Brice facility was located in the Golden Gate Produce Terminal (the terminal). The terminal, located on 16.4 acres in south San Francisco, is comprised of 2 long buildings, 2 stories high, divided into approximately 72 stalls, and occupied by in excess of 20 produce whole- salers. The buildings are surrounded by docks on three sides with each stall having a door opening onto the 2 Tying testified that he asked Luporini if there were any job openings, and Luporim told him he would have to speak to Englert. 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dock. Some of the wholesalers are engaged in large volume operations requiring delivery to customers. Others are smaller operations that sell mainly out of their stalls in the terminal, referred to as selling "on the street." Although Brice did some limited selling "on the street," most of the products it sold were delivered di- rectly to its customers. Brice, which occupied three stalls in the terminal with a total of 5400 square feet, operated much the same as all other large produce distributors in the market. It pur- chased produce from various brokers through a process of bargaining for the best price possible from a supplier. Englert was the person who negotiated prices with produce brokers for the purchase of produce and deter- mined the price for which Brice would sell to its custom- ers. Luporini did this only when Englert was on vaca- tion or because of illness. Luporini did the purchasing of frozen produce and of "shorts"-items purchased at the last minute on the street because they were perishable or to fill in missing items on a particular order. Luporini was also responsible for selling "on the street." Howev- er, it is undisputed that Englert discouraged such selling. Luporini was also responsible for handling the donation of distressed goods to senior citizen groups. Additionally, he oversaw the repacking of delicate produce such as av- ocados, much of which he did himself. As to sales, the general practice of large wholesale produce distributors, including Brice and Metro, is to so- licit a commitment from a customer to purchase produce. Many large customers have a policy of seeking bids from three wholesale distributors during any one period of time. On a weekly basis, the distributor sets the price it will charge a customer for each item of produce. When the price is communicated to the customer, the customer decides what item it will purchase from the distributor. In general, a customer will continue to order from the same distributor if the price is competitive and the quality of the produce and the service is satisfactory. If any of these three factors does not meet the customer's requirement, the customer may switch to another distrib- utor. However, if a customer finds a distributor satisfac- tory as to all three factors, then the customer may use the distributor as its prime supplier for years. Brice had a group of customers who purchased on a regular basis and some who purchased only sporadically. In January 1986 Brice's employee complement consist- ed of four drivers, one utility man, six porters,3 two salesmen, and two office employees. The porters worked principally at night, placing and rotating stock in the freezers and iceboxes, repacking produce, and loading the trucks for deliveries. They also sorted produce and repacked certain delicate items. Much of the repacking was done by Luporini. The drivers began work at 4 or 5 a.m. and made deliveries until the early afternoon. Each driver was assigned a regular route, which covered a particular geographical area. The utilityman worked both as a porter and a driver. The office employees were supervised by Beverly Lee, an admitted supervisor. The porters were supervised by Night Supervisor Greg Thompson. Brice's customers placed their orders either by tele- phoning Brice or by responding to calls initiated by Eng- lert or the Brice office personnel. Then invoices are pre- pared by Brice office personnel stating the items ordered, after which porters removed the required produce from the freezer and/or icebox and loaded it onto the truck. Once the truck was loaded, the driver delivered the produce to the customer. Identical or similar procedures are used by Metro and all wholesale distributors who de- liver produce to customers. B. The Decision to Dissolve Brice, Sell the Brice Facility, and Distribute the Brice Assets According to Englert, he and Luporini began discuss- ing the dissolution of Brice Bros. in 1986 because they were growing further and further apart, and Luporini wanted to retire. They considered the possibilities of Englert buying out Luporini, of Luporini buying out Englert, and then selling or dissolving the business. After unsuccessful attempts to settle on either of the other op- tions, they decided to dissolve the business. The principal assets of Brice Bros. was the warehouse and, according to Englert, it took approximately a year to a year and a half to find a buyer for the warehouse. They did finally find a buyer who paid $525,000 for the warehouse. Ne- gotiations for the sale of the warehouse was completed around the first week in October. Escrow closed around the end of November. The terms of the dissolution pro- vide, inter alia, that, at his election, Englert would re- ceive all trucks and equipment owned by Brice in con- sideration for his assumption of all financial obligations and liabilities pertaining to such trucks and equipment. It was further agreed that upon final liquidation Englert, or "his new corporation," would buy Brice's remaining in- ventory for a price of 10 cents per box above actual cost. The agreed-on figure that Englert paid for the inventory, according to him, was $98,000. The agreement further provided that Englert and Luporini receive equal interest in all other assets of Brice and share equally in all other Brice fixed and contingent liabilities. C. Rumors and Statements About the Closing of Brice Around October or November 1986,4 rumors began circulating that Brice would be moving. Danette Peter- sen testified that around that time she asked Lee if Brice was moving. Lee said they were thinking about it, that she and Englert had looked at a warehouse that would have a lunchroom and a private office for Lee. Lee fur- ther said she would like for Petersen to go with them when they moved. Petersen asked if Englert was going to stay in the Union. Lee said no. Petersen said she had been in the Union 6 years and wanted to stay in because of the benefits she had. Petersen also testified that, in November or December, she asked Luporini if Englert was going to stay in the Union. Luporini said he did not think so, but he did not know whether Englert could get away with it. During a later conversation, according to Petersen, she asked Lu- * All dates in September through December will be in 1986 and in Jan- " It appears that this figure probably includes repackers . uary through March will be in 1987 METRO FOODS porini what he was going to do. Luporini said he was going to retire. During a third conversation, Petersen asked Luporini if he had heard of any job openings. Lu- porini said Englert might need someone at his new place. Petersen again asked if Englert was going to stay with the Union. Luporini said no. On another occasion, ac- cording to Petersen, she told Luporini she had applied for another job and asked what he thought about that. Luporini said he would not hesitate to take another job because Englert would only think of himself. In another conversation, Luporini told Petersen the place had been sold. Petersen also testified that, at the beginning of Jan- uary, she asked Lee what her benefits would be if she moved with Lee. Lee said she did not know any of that yet. Employee William Singleton testified that in Septem- ber or October he began to hear rumors from customers that the Brice warehouse was for sale , and customers began to ask him what was going on. He told Englert customers were saying they had heard Brice was closing, and they should not buy from Brice. Englert said Brice was not closing, was not going to go out of business, and Singleton should not say anything to the customers other than that Brice was not closing. In early November, ac- cording to Singleton, Englert said a customer told him one of the drivers said Brice was closing , and he as- sumed it was Singleton. Singleton denied this. Englert said, "[I]n the future, if anybody asks you, we are not closing." Singleton also testified that the week before Thanks- giving Englert called him into his office and told him he was going to move the Company to another location in the area, that he was going to sell the warehouse, and the new company he was going to open would be non- union. Englert said he was going to take only a few of his key employees with him. He said Leonardo Cadena would be head driver and take care of the San Jose and south route. Cuco Franco would be head porter. William Reyes would be head of the prepared department, Steve Mosunic would be a porter, and Singleton would be a driver and salesman. Englert also said the company was going to be nonunion, that he would not be able to pay what the employees were being paid in the Union, but he was going to supply a benefits package as good or better than the Union's. He said he realized Singleton would not remain with him if he did not make as much money, so he was offering Singleton a job as a salesman in which he would make a 2-percent commission, have a car, an expense account, and a gas card . Englert said there would also be a salary involved, but he did not know yet what the salary would be. Englert said Single- ton should talk to Arthur Meier, the head salesman for Brice, so that Meier could fill Singleton in on informa- tion. Englert said because that week was very busy, a holiday week, Singleton should wait until the following week to talk to Meier. According to Singleton, Englert further said he was going to get rid of Luporini. He said the union wages were killing him, and he could not afford to pay union prices; that the health and welfare was way out of line. He said he was going to get rid of some of the dead- wood like Harry Barsanti, that Barsanti had 5 weeks' va- cation every year and Englert could not afford to pay that. Englert said Barsanti's health and welfare and pen- sion programs were all paid up in the Union, but Brice still had to pay it and that bugged him; that he did not want to pay that money. He said he could not compete with other nonunion houses such as Gallei Produce, Ralph Foods, and B&C Produce; but by going nonunion he could compete. He further said that within 2 years the entire industry would be nonunion . Singleton also testi- fied that, in one of their conversations, Englert asked him not to say anything to anyone because he was only taking his key employees, and he did not want everyone to know. He said he wanted to get rid of the deadwood. Gregory Thompson testified that in June 1986 he asked Luporini if the rumors about Brice Bros. being sold were true. Luporini said yes, they were in the proc- ess of trying to sell the business, and that his wife wanted him to leave the produce business because he was not making any money . He said they were trying to sell the stalls and had received a bid, but Englert was holding out for another $50,000 in cash above the value of the stalls, so that he would have a nest egg to start a new company. Thompson also testified that in mid-June Englert told him he was trying to get out of the produce market and away from the Union because he was not making any money. He said he would finally get the chance to make some money once he got Luporini out of the business. He said he would have to move out of the market and away from the Union if the Company was going to sur- vive. Englert continued to mention that he was looking for another warehouse and, on one occasion in Septem- ber, took Thompson to a warehouse in south San Fran- cisco that he was considering purchasing . Englert said that was what he could have if they got away from the Union and out of the market. D. Notification to the Union and to Employees of the Closing ofBrice and Negotiations with the Union with Respect Thereto On 2 October Englert sent a letter to Union Repre- sentative Robert Rosa, which states: This is notification to the International Brotherhood of Teamsters, Local 856, of the dissolution of Brice Bros. Inc. within 6 months. Please contact us so that we can meet and arrange the appropriate prep- arations. At the time, Rosa was on extended sick leave so there was no response to this letter. On 30 December Peter Cooke, a management representative for Brice and the association of which Brice was a member , sent a mail- gram to the Union, the body of which reads : "If you wish to meet with Brice Bros . prior to its being dissolved and closed on or before January 31 please contact me." Rosa testified that he first became aware of the possi- bility that Brice Bros. might be closing when he returned from sick leave in mid-December and was given the Oc- tober letter from Brice. According to Rosa, around the last week in December, he called Cooke, told him he had information that Brice Bros . was going to continue 1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in business either under that name or a new name and would like to meet with Englert to ask some questions. Cooke agreed, and they scheduled a meeting for 12 Janu- ary. The meeting was held as scheduled. Present for the Employer were Luporini and Cooke. Present for the Union were Rosa and Union President Jack McLaughlin. Cooke said Englert had broken his foot and could not attend. Luporini said he was going to retire. According to Rosa, Cooke said Englert was going to go out of busi- ness. Rosa asked if they were planning to sell the equip- ment and accounts, and if they had notified the accounts that Brice was closing. Luporini said their attorney was going to work on a letter to be sent to all the accounts. Rosa asked if anyone from Brice was going to go with Englert. Cooke asked, "Go where?" Rosa inquired whether Lee was going to go with Englert. Cooke said no. Rosa then asked if Lee had any ownership interest in Brice. Luporini said no. Rosa said it was his understand- ing that Brice Bros. was going to continue in business either under that name or some other name, that and the Union had been told they were going to move into a warehouse in south San Francisco. Cooke said he had not heard anything about that, and that he had been as- sured that Englert was going out of business. Rosa said he wanted to meet with Englert because he was not sat- isfied with the answers he was getting. Cooke said he would contact Englert. Rosa said he wanted to talk about severance pay. Cooke mentioned either a $2000 or $4000 lump sum at that time. After some discussion Cooke proposed a $10,000 figure and said if they went to a $10,000 figure the Union would have to back off, and that the Union could disburse the money any way it wanted, but would have to agree not to pursue the matter further. Later that day Cooke and Rosa spoke by telephone in an attempt to set up a meeting for 23 January. Rosa testi- fied that he told Cooke he would be willing to talk about severance pay. He also testified that he said he suspected Englert was really continuing in business, and that Cooke should ask Englert. Neither Cooke nor Luporini testified. On 15 January all Brice employees received the fol- lowing notice with their paychecks: To our employees: As per our union contract, you are hereby offi- cially advised that Brice Bros. Inc., will ceased [sic] to exist and discontinue your employment on or about January 31, 1987. If you need assistance on extended medical cov- erage, please contact Joanne, at Local 856, 863- 7607. According to Rosa, prior to the 23 January meeting, he spoke with Union Attorney Marie Rangone regarding his doubts that Brice was really closing and asked her to give him some questions to use during the meeting. On 21 January Rangone sent a letter to Englert, the body of which states: This office represents Teamsters Local 856. With respect to the closure of your business, about which you notified the Union on or about October 2, 1986, the Union has received information that you are in fact intending to carry on the same or a similar business in another location at the produce market. However, at a meeting to discuss the impact of the alleged closure of the business last week, you did not appear, and your representative Mr. Cooke was unable to answer our questions about the likelihood of your continuing to operate the business. As you are aware, our contract is binding upon you in the event you extend your business to another location; moreover, we feel that you are not being forthright in bargaining with the Union with respect to clo- sure, if in fact closure of the business is your real intent. Therefore, we have this date filed unfair labor practice charges with the National Labor Relations Board. Our initial demand is for all information about the future, if any, of Brice Bros.' current busi- ness, whether or not the business is to be carried on under the same name or in the same location, or not, as the case may be. Thank you for your prompt response. The letter and the enclosed unfair labor practice charge were received by the Union on 22 January. The meeting was held as scheduled on 23 January. Present were Rosa, Englert, Cooke, and Respondents' at- torney, Randolph Roeder. According to Rosa, after they began discussing the closing of Brice Bros., he read a list of questions that had been dictated to him by Rangone. He first asked, "What stage of the dissolution are you in at the present time?" Englert said he was closing by the end of the month, but gave no further explanation. Rosa asked, "Have you sold the property? If so, to whom?" Englert said this was none of Rosa's business and refused to answer. Rosa asked, "Have you sold the goodwill of the company." Englert said he was working on it. Rosa asked, "Have you sold the business accounts, etc." Eng- lert said he was trying to sell the accounts, the trucks, the office equipment, etc., but did not say to whom he was tryingto sell them. Rosa asked, "Are any of the offi- cers of the corporation or anyone related to them going to continue in the business either under the name of Brice Bros. or any other name?" Englert said no, but gave no further explanation. At this point, according to Rosa, either Roeder or Cooke asked for a caucus. Rosa left the office and, after 10 or 15 minutes, he was invited to return. Cooke ex- plained that Roeder was there to handle the charges that had been filed against the Company, and Cooke would handle the closing of the Company and any severance pay issue. They then commenced discussing severance pay. Rosa made a demand of 1 week's pay for each year of service with the Employer. Cooke said that was unac- ceptable. Cooke said Brice could go as high as a $5000 lump sum, but the Union would have to agree to not pursue the matter any further; and, if the Union did agree to take the $5000 lump sum, the Union could dis- burse it anyway it saw fit. Rosa asked what Englert was going to do in the future. Englert either said it was none of Rosa's business or he was not sure . Rosa cannot re- METRO FOODS 1113 member which he said . No agreement was reached on the severance pay issue that day. Rosa said he had meet- ings in Honolulu the following week and when he re- turned they could meet to talk about severance pay and anything else necessary . He also said the contract would still be enforced . Rosa asked if they were going to pay all the employees their vacation, health and welfare, and pension. Englert said Lee was working on that. Rosa asked if Englert was going to take any of the employees with him. Englert said no. Thereafter, the Union made no further contact with Respondents. Englert testified that after introductions Rosa asked why Roeder was there and remarked that Englert had brought in the heavy hitters. They then started talking about the closure of Brice Bros . Rosa asked to whom the business had been sold. Englert said they did not sell the business, they sold the warehouse . Rosa asked what they were going to do with the accounts. Englert said they were uncertain. Rosa asked what they were going to do with the equipment and the trucks. Englert said they are for sale and asked if Rosa knew anyone interested in pur- chasing the trucks. He also told him the office equipment was for sale. As to what his plans were, Englert said he was uncertain. They then began discussing severance pay. Rosa asked for $90,000. Cooke said no one in the produce industry had ever given severance pay and cited several examples. Rosa then reduced his demand to $50,000. Englert said that was totally unacceptable as Respondent was not making any money and did not have that type of money, that the sale of the building was going to pay debts . Englert then offered $2000 to $3000, which the Union could disburse any way it de- sired if they "could just clean all of the mess up and be done with everything." According to Englert, Rosa left very bitter and said, "I'll get you no matter where you go. I know what you're going to do, I know you are moving across the freeway." One of Respondents' repre- sentatives mentioned they would like to clear this matter up since Brice would be out of business in a few days. Rosa said he was going on a trip. No date was set for a future meeting, and there have been no further communi- cations between Respondents and the Union. E. Englert's Decision to Commence Operations as Metro and the Decision as to Which Brice Employees Would Move to the Metro Facility Englert testified that as of 2 October he was uncertain about the future. Some of the options he was considering at that time was going to work for someone, taking a long vacation, acquiring a new partner, or buying into another business . He was also considering getting out of the Golden Gate produce terminal because the location was too open to the observation of the competition and the facilities there were too small and antiquated for the business. He further testified that, prior to finding the lo- cation at 1325 6th Street in San Francisco at the very end of January, he had not decided to start a new oper- ation. Yet, he admits that incorporation papers for Metro were filed with the State of California probably at least 3 weeks prior to 1 February. "Englert's newly formed cor- poration" was referred to in the Brice October Share- holders' Agreement and the Plan of Complete Liquida- tion and Dissolution of Brice Bros., Inc. Also Rosa testi- fied that immediately after the conclusion of the 23 Janu- ary meeting employee Lillian Fenech gave him an ad- dress of the warehouse in which Metro was located when it commenced operations, and told him someone from the telephone company had just called and said telephones would be installed at that address. Further, Thompson testified that prior to the Christ- mas holidays he and Englert discussed on a continual basis which employees should be moved to the new company. Englert asked him to get together a crew that would form a foundation for the new warehouse. They discussed the people that Thompson thought should be on this crew-Cuco Franco (also known as Joaquin A. Lames), Willie Reyes, Arturo Cadena (also known as Leonardo), and Steve Mosunic. According to Thomp- son, as he mentioned the names that he wanted on his crew, Englert said he did not know whether Steve would be making the move. Thompson said Englert could not make the move without Thompson's support, and Thompson could not make the move without Steve Mosunic's support, that it was going to be a package deal with the five porters giving him support to snake the move. According to Thompson, Englert said he did not know, first of all, whether the new company would be able to afford Mosunic and, second, whether Mosunic was a "union man" or not. Englert said Cadena and Reyes were coming with him. He did not know whether Bill Singleton or Harry Barsanti would be . Thompson said,' "Leo, how can you replace Harry, he's been driv- ing in the Bay Area for 40 years." Englert said, "It's going to take me 15 to 20 years just to remember what he's forgotten about where stops are." They discussed Singleton and then being able to take care of the city route, handle the customers, and keep them busy. Eng- lert said Franklin Tying would go whether he was paid $9 or $13.50 an hour. Thompson then mentioned the re- packing crew, and Englert said they could find repackers anywhere. They also discussed the office staff. Englert said he definitely wanted to take Petersen to the new company, but he would not take Lillian Fenech. On the day after the notices of termination were given to employees, according to Thompson, Englert told him Singleton and Barsanti had gone to the Union and they were out of the move, that they would not be coming over to the new company. Englert said Tying would come along but Singleton and Barsanti were definitely out because they had gone to see the Union. Thompson said it would be real bad to lose Barsanti. Englert said there was no way he was going to bring anyone who was a union man along to the new company . Thompson asked, "How are you going to stop this?" Englert said, "If I get to the new place and open the doors and the union shows up I'm just going to shut the doors." Thompson further testified that later he asked Englert if he had made a decision on Mosunic. Englert said he did not know yet. Thompson said the crew was asking him about the wages and benefits at the new company. Englert said Thompson should tell them everything 1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would stay the same . Thompson further testified that on the Wednesday before the move he asked Englert again what the situation was with pay and benefits . At that time, Englert told him the highest paid employee in the company would be making $500 a week with no medical benefits. Thompson said that would not cut it , that he had a family that he could not support on $500 a week. Englert said, "There is nothing I can do, I'm on a budget, my hands are tied, and that's what the highest paid people are going to be getting , $500 a week." Thompson asked whether this was gross or net . Englert said it was net. According to Thompson , he had been averaging between 15 and 20 hours a week overtime, which gave him a gross of a little over $ 1100 a week. He also had health and welfare and pension benefits under the union contract. Petersen testified that on the day she received notice that Brice would be closing Lee asked if she had decided whether to go with them or stay with the Union. Peter- sen said she was going to try for a union job at the city of San Bruno and she would wait to hear about that. Lee said she was going to hire four girls in the office, that she did not know what Petersen's position would be nor what the salary or benefits would be, but she would like for Petersen to come with her and Englert. Despite the definite plans to dissolve Brice Bros., the negotiations with the Union, and the notice to employ- ees, Brice customers were never notified that the Com- pany was being dissolved. Rather, according to several customers, they received assurances that the business was continuing despite the rumors . Thus, Linda Dionne, the buyer for the Santa Clara purchasing department, testi- fied that, when she questioned Englert regarding the rumor she had heard about Brice closing Englert, as- sured her that Brice was not going out of business, that they were simply changing location and names because one of the partners had retired. Englert further assured her there would be no interruption in service and that she had no cause for concern. Keiko Kovacs of Sky Chefs testified that around the end of January he heard that Friday would be the final day of business for Brice. Since he did not want to take the chance of not having a Saturday delivery, he decided to order from another source . When one of the office employees at Brice telephoned to inquire why he had not placed an order, he told her about the rumors he had heard. Shortly thereafter, Englert called and told him he was not going out of business, that he was just changing names and moving his location to downtown San Fran- cisco. He said the deliveries would remain the same. Larry Brindley, who was then the buyer at the United Airlines Flight Kitchen at the San Francisco Airport, testified that 1 or 2 days before Brice closed Art Meier told him that as of Monday Brice was moving to a new location and becoming Metro Foods. Brindley asked if the price and delivery procedures would be the same, and Meier said yes. However, during the last week in January , employees began to receive conflicting signals as to Respondents' intentions. Thus, Petersen testified that a few days before 31 January Lee telephoned her at home while she was on sick leave and asked her to clean out her desk be- cause they were going to close up and sell everything. Petersen asked, "Are you going to be among the unem- ployed like me?" Lee said yes, she was going to go to Palm Springs for about 3 weeks, but Petersen should give her a call because Lee might have something for her later. Petersen asked who would pay all the bills and take care of the work. Lee said Luporini was going to do it and they were going to have a post office box. Pe- tersen asked what was going to happen to all the billings and where was all the money going to go. Lee said they had opened a post office box for the mail. Petersen further testified that when she returned to Brice Bros. on Friday, 30 January, to clean out her desk, she answered the telephone once . The caller identified himself and said he wanted to open a new account with Brice. Petersen put the customer on hold and told Lee "this customer wants to set up an account ; I thought you were closing; why are they setting up a new account." Lee said the people that were taking over were going to keep all the customers. Then Englert took the call. Sin- gleton testified that during the last week of January Eng- lert was telling everyone that the trucks and the invento- ry had been sold to an unnamed company in San Jose. Englert did not testify about any specific conversations with employees regarding the closing or moving of Brice Bros., the opening of Metro, or whether Brice Bros. em- ployees would move with him to the new operation. However, he did testify that he asked certain Brice em- ployees, that he felt were very efficient , worthwhile em- ployees, to work for him in the new operation . Accord- ing to him, he did not ask Harry Barsanti, Lillian Fenech, or Danette Petersen about working for him in a new business primarily because he wanted aggressive people to work for him. Further, according to him, their union sympathies had nothing to do with it as they were all in the Union when he spoke to them . Lee did not tes- tify. F. The Move to the Metro Facility and the Commencement of the Metro Operations Metro occupies a 28,000-square-foot facility in San Francisco, about 14 miles from the old Brice facility and about 5 miles from its nearest competitor . It has three of- fices on one level as compared to four offices on two levels at the Brice facility . The telephone system is new and there is a FAX system connecting the facility with Englert's home, something that Brice never had. Initial- ly, Metro had only one large icebox whereas Brice had two freezers and three iceboxes. According to Englert, this necessitated having to store some of the produce in Brice refrigerated trucks. A second box was obtained about 6 weeks after the move and a third one was in the process of being completed at the time of the hearing. Although the Brice boxes afforded multilevel storage, it appears that the Metro facility presently has more refrig- erated storage area than did Brice . It also has more dock area. The move to the Metro facility commenced on 30 Jan- uary. Thompson testified that on Monday and Tuesday of the last week of January Englert told him that with the exception of three GMC trucks, all vehicles, forklifts, METRO FOODS 1115 and everything in the warehouse that was not attached to the walls would have to be moved. On 30 January Englert put Thompson in charge of the move . Accord- ing to Thompson, Englert said Thompson should load all the products into the trucks and transfer it from one warehouse to the other. However, it was not until that afternoon that Englert told Thompson they would be moving into a warehouse in the China Basin area, and it was not until midnight that he learned the name of the new company. At that time, according to Thompson, Englert telephoned and gave him specific instructions about what was being moved . Englert further instructed him to back the three GMC trucks against the side fence at the Brice facility so that on Monday morning when the Union came around they would see the black trucks backed in against the fence and think that Englert had actually gone out of business . Englert admits that the equipment used by Metro was the same equipment that had been at Brice Bros. This includes the trucks, one electric forklift, two manual pallet jacks, and a series of dock plates.5 However, he denies he told Thompson to park the trucks in a manner that would deceive the Union. According to him, the trucks were always parked that way. The trucks used by Metro are still registered in Brice's name. 6 Also, Metro continues to use gasoline credit cards that were issued to Brice. Further, at the time it commenced its operation, Metro had none of the licenses and health permits required for the operation of the busi- ness, and the only customers it had were former Brice customers. Metro continues to service these customers' except for those it lost because of unreliable deliveries. According to Englert, as of the time of this hearing it had retained only about 50 percent of Brice's customers. Metro has acquired some new customers , however, it is undisputed that it draws its customers from the same market as did Brice. The payroll records show that of the nine employees hired by Metro on 1 February seven,s were former Brice Bros. employees.9 During the first week of Metro's oper- ation, 12 additional employees were hired , only 1 of whom had been formerly employed by Brice. It is undis- puted that the Metro employees had essentially the same classification and job functions as those at Brice. Drivers Cadena, Reyes, and Tying; porters Ensey and Franco; salesmen Meier and Ikeda; and Office Supervisor 5 Dock plates are ramps. 6 Englert testified that Luponni refused to sign the necessary papers to change the title because he did not want his wife to learn about it 7 Petersen testified that she called the Brice telephone number in early February and got a taped message in Englert's voice, which said, "Hello, this is Bnce Brothers. If you'd like to leave your order or message, please leave it at the sound of the tone. Thank you." s This number includes Franklin Tying who did not actually report for work until 2 or 3 days later. However, his name is carried on the payroll as of 1 February. 6 According to the testimony of Peterson and Thompson, as of the end of January, Respondents' employee complement consisted of five dnv- ers-Harry Barsanti , Arturo Cadena, Willie Reyes, Franklin Tying, and William Singleton; six porters and repackers-Cuco Franco (also known as Joaquin Lames) Libono Leon (also known as Ballentine), Oscar Cani- zales, Steve Mosumc, William Preto, and John Ensey; two salesmen- Arthur Meier and Robert Ikeda; and two office employees-Danette Pe- tersen and Lillian Fenech Lee began working for Metro on 1 February. Driver Tying began 2 or 3 days later . Of the 14 persons em- ployed by Metro during its first week of operation who were not former Brice employees, only 2-a salesman and a porter-are still in Metro's employ. Three left during the first week of operation, two by the end of the second week, and three by the end of the month. One left at the end of March and one by mid-April. Of the four employees hired during Metro 's second week of op- eration, two had left within 2 weeks, one had left by March, and one by mid-April. Of the 11 employees hired during the third week of operations, 1 lasted only I day, 4 had left by the end of the month , 2 by mid-March, 1 by the end of March, and 3 were still employed at the time of hearing. Of the two employees hired during the fourth week of operation, one had left by the end of the month and one within 2 weeks. Thus, Metro started with an employee complement of mine. Its employee comple- ment was 18 during the first week of operations. There were 20 during the second week ; 18 during the third week; and 22 during the fourth week . t ° Throughout this period, only eight of the employees were former Brice employees. By the time of the hearing , according to Ron Fong, Metro's total employee complement had stabilized at approximately 20, roughly the same number employed by Brice-including 4 drivers, 4 repackers, 4 porters, 3 salesmen, and 3 office clericals, Lee, Fong, and Englert. As to supervision, Lee was employed by Metro on 1 February as office manager, the same position she held at Brice. However, it appears from the record that no other office employees were hired during Metro's first month of operation. Thompson, the night supervisor at Brice, decided not to move to Metro because of the drastic re- duction in pay, and a night supervisor was not hired until 25 February when Steven Bazzini started work as night manager. Bazzini left on 14 March and Thompson commenced work as night supervisor on 16 March. Ac- cording to him, he performed the same job functions at Metro as he had at Brice-overseeing the warehouse op- erations at night and supervising the porters . His author- ity over the porters was the same as it had been at Brice. Thompson also testified that he received no instructions to handle anything differently at Metro then at Brice. The only change in the ordering procedure was that the FAX machine was used to transmit information to Eng- lert's home as to items, which needed to be purchased "on the street" so he could go directly to the Golden Gate Produce Terminal to make purchases without first coming to the Metro facility . At Brice, he had to come into the facility to obtain that information . Thompson further testified that although Metro had lost some of the Brice customers, as of March 16, Metro had only one customer who had not been a Brice customer . The forms used were the same except for the name on the headings in the month before Brice closed. According to Thomp- son, there were five porters and three repackers on his shift. When he worked at Metro, there were four porters and three repackers on his shift. 10 Fong testified that the employee complement during the first week was about 35 employees and remained at that level for about 6 weeks. 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Englert testified that he devotes 100 percent of his time to the buying and selling of produce. Lee has total responsibility for the office and Ron Fong has total re- sponsibility for labor matters at Metro. He also testified that he and Fong made the decision about which Brice employees would move over to Metro and that Fong made the decision about wage rates at Metro without any input from Englert. According to him, Fong was re- tained by Brice as a consultant to assist in the closing of Brice and it was in his position as consultant that he made the determination about wage rates. He admits, however, that he discussed the wage rates with Fong and had to approve them. He then testified that it was Fong's final decision about what the wage rate would be. When questioned further, he testified that he and Fong discussed a wage range but it was Fong's decision about what to do. He admits that he would demand an expla- nation from Fong if he paid wages outside a certain range. He also admits that he made the determination that employees would not receive benefits for the first 3 months. Further, Thompson testified that when he tried to negotiate an additional 50 cents an hour in pay to compensate for loss of benefits, Fong told him he would have to get approval from Englert. Fong testified that his responsibilities at Metro have been fairly constant throughout his employ-he seeks job applicants from various sources, reviews the applications, and decides who to hire. He has hired approximately 50 employees and, according to him, the final decision is his. According to him, he comes into the warehouse almost every evening for a half hour to an hour "to look around, talk to people, and watch what's going on." He also functions as a sales representative." Fong first testified that he discussed general wage ranges with Englert. However, when pressed to testify specifically about that discussion, he testified that they had no discussion. According to him, he would decide on a wage rate and later tell Englert what it was. He admits that he did discuss with Englert a general wage increase he wanted to grant. He also admits that he and Englert agreed on a 2-percent commission for salesmen. He denies that, prior to 1 February, he spoke to any of the former Brice employees or that they were hired prior to 1 February. When questioned how these employees knew to report to work, he testified, "I grabbed one of the list and begged them to come in." Fong also denied that he and Englert ever discussed what his job would be. According to him he was re- tained by Brice as a consultant principally to assist Brice in selling equipment. Later Englert asked if he would help with Metro. He agreed and worked as a consultant to Metro for about a month. After about a month, he put himself on the payroll. However, according to Fong, he and Englert never discussed in what way he was to help. Fong testified that he is a self-motivator , so at some point he decided in what way he could be helpful but never shared this decision with Englert. When ques- tioned how he happened to start hiring employees for Metro, Fong testified that when he arrived at the Metro 11 This job differs from that of the regular salesmen in that Fong also makes collections and qualifies customers as to credit applications facility on Sunday morning, 1 February, it was totally disorganized. No one was working. No one was sched- uled to report to work. So he got out a phone list and started to call everyone he knew with produce-related experience, including former Brice employees. When people came in to work, he had them sign in on a yellow pad. In some instances he discussed the wage rate with the employee and in other instances he did not. If a wage rate was discussed, he wrote it on the yellow pad next to the employee's name. According to him, he only told Englert what the wage rate was when it was time to do payroll. Franklin Tying denies ever discussing wages with Fong. According to him, on the last day of Brice's oper- ation, Englert asked him to start work for Metro the fol- lowing day at $9 an hour. After some hesitation, Tying said he would; however, he did not report to work the following day, 1 February. Lee telephoned him and then connected him with Englert who asked why he had not reported to work. Englert asked him to start at 3 a.m. and said that at the end of his shift they would talk seri- ously about pay.' 2 Then Lee got on the phone and gave him the address of the Metro facility and directions for getting there . He heard Englert say something in the background and then Lee said, "By the way, your pay will be $10." Tying testified that he drove the same truck for Metro on the same route as he had for Brice. On the first day he reported to work, Englert introduced him to Fong and said Fong was Tying's new boss. According to Tying, Fong basically does the hiring. He does not direct employees in the warehouse. On the 5 a.m. shift on which Tying works, Englert directs employees.' 3 He has never seen Fong tell drivers what to do insofar as their routes and schedules are concerned. This is done by Englert. Thompson testified that Fong hired him at $12 an hour with no benefits. When he tried to negotiate an addition- al 50 cents an hour, Fong said he would have to get Englert's approval. Thompson also testified that al- though Fong makes out the weekly schedules for drivers and porters he does not actually direct employees in the warehouse. G. Conclusions Concerning Alter Ego Status The threshold question here is the relationship be- tween Brice and Metro. The complaint alleges that Metro is a disguised continuance and alter ego of Brice or, in the alternative, that Metro is a successor to Brice. However, the General Counsel's primary theory is alter ego. The controlling law is well established. A determi- nation whether two employers are alter egos, of necessi- ty, must turn on the facts of the particular case. The fac- tors to be considered are: (1) interrelation of operations; (2) common management; and (3) common ownership and centralized control of labor relations. Thus, the 18 Even though Tying's affidavit relates several telephone conversa- tions during this 2-to-3 day period, no reference is made to a direct tele- phone conversation with Englert However, Englert does not specifically deny this conversation 's At the time of the hearing, Ensey was night manager METRO FOODS Board has generally found alter ego status where the two enterprises have substantially identical management, business purpose, operation, equipment, customers, and supervision as well as ownership. Crawford Door Sales Co., 226 NLRB 1144 (1976); Denzil S. Alkire, 259 NLRB 1323 (1982); Advance Electric, 268 NLRB 1001 (1984); Mar-Kay Cartage, 277 NLRB 1335 ( 1985); Super Save, 273 NLRB 20 (1984). No one factor is controlling and all need not be present. Complete identity in ownership is not a requisite, particularly when ownership resides in members of the same family. Crawford Door Sales Co., supra. However, centralized control of labor relations is the most important single factor . J. M. Tanaka Construc- tion Y. NLRB, 675 F.2d 1029 (9th Cir. 1982). A further consideration is whether the new company was created "to evade responsibilities under the Act." Fugazy Conti- nental Corp., 265 NLRB 1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984). Here, it is clear that Metro has the same business pur- pose and mode of operation as did Brice. They both en- gaged in the wholesale distribution of produce in the same geographical area. They both made purchases in the same manner from the same pool of suppliers. Metro continued to use the Brice gasoline credit cards and Metro gas purchases are billed to Brice . In at least one instance, the bill was sent to Brice in care of Metro. For at least several months Metro did not have any of the li- censes required by the local, state, and Federal govern- ments. It is immaterial that Metro's facility is larger than, and in a different location from, the Brice facility. They are both warehouse facilities with refrigeration and freez- er capacity. They use an identical mode of receiving produce, storing it, and preparing it for and delivering it to customers. Furthermore, this method of operation is not affected in any significant manner by the fact that Metro is not located within the terminal . The only effect is that certain aspects of the operation, such as buying "shorts," are less convenient. Thus "shorts" are still pur- chased from within the terminal. The difference is now the purchase of "shorts" requires travel to the terminal. I therefore find that Metro and Brice had a substantially identical business purpose and mode of operation. The record establishes that when Metro commenced operations it continued without hiatus to service the Brice customers. Indeed, the only customers Metro had were Brice customers. It was only later that Metro lost some of these customers because the quality of produce and the reliability of service were unsatisfactory. Fur- ther, it was several months before Metro acquired a new customer and, in obtaining this new customer and identi- fying potential customers, Metro draws from the same market as did Brice. Accordingly, I find that Metro and Brice had substan- tial identical customers. It is undisputed that with the ex- ception of refrigeration and freezer units ,14 Metro uti- lized the same equipment as had Brice, and because re- frigeration and freezer capacity was inadequate for the inventory, some of the produce was stored initially in Brice trucks. Further, the titles and registration on the 14 The Brice refrigeration and freezer units were attached to the walls and included in the sale of the Brice facility. 1117 Brice trucks were not changed to reflect ownership by Metro and the registration of several vehicles was re- newed in Brice's name. Similarly, Brice and Metro had management and su- pervision, which, though somewhat different, had a sub- stantial thread of commonality and the same person con- tinued in control of labor relations. The record clearly establishes that Englert had dominant responsibility for the management, including labor relations, of Brice. He participated in multiemployer bargaining with the Union and handled labor relations matters with the Union. In fact, he admits to these responsibilities with Brice but claims that he assumed labor relations responsibilities there only because Luporini was not reliable and that at Metro he relinquished all such responsibilities to Ronald Fong. This contention is not supported by the record. Eng- lert admits he decided not to give employees benefits; it was also his decision to give salesmen 2-percent commis- sion, and he admits he and Fong discussed a wage range prior to a determination of specific wage rates. Further, Respondents' reliance on the testimony of Englert and Fong is misplaced. I found both of them to be evasive, unreliable witnesses who attempted to tailor their testi- mony so as to downplay Englert's involvement in labor relations matters at Metro. Further, much of their testi- mony was inherently improbable. Thus, Englert testified that he only decided to open Metro in the last few days of January. Yet, he admits he had been looking for a new warehouse for at least 2 weeks before he had spoken to employees regarding working for his new company and had arranged for telephone installation to commence on 23 January. He testified he did not know the number of employees at Metro, but changed his testi- mony when asked to explain how he could work with a small complement of employees and not have some idea about the size of the employee complement. I found Fong's testimony to be highly improbable. Thus, he testified that when Metro opened no employees were working and no employees had been hired. Yet Metro had produce valued at $98,000 in the warehouse and customers were expecting deliveries. I find it incred- ible that an experienced business person would have failed to hire some employees to handle this produce. I also find incredible Fong's testimony that Englert re- tained him as a consultant to Metro, yet they never dis- cussed what Englert expected him to do; and his testimo- ny that he had never been given authority by Englert to hire employees, that he was a self-motivator who had ar- rogated to himself such authority and who could set wages at whatever level he desired even though both he and Englert admitted that some parameters existed. I conclude that the only reason for such testimony was to shroud the truth that Englert had, and exercised, author- ity over such matters. Based on the entire record and on my credibility find- ings, I find that Englert was the dominant voice in labor relations and other management matters at both Brice and Metro. In the circumstances, I find that the only dif- ference in supervision and management between Brice and Metro was that Fong handled many personnel mat- 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ters and made out the schedule for the drivers . Admit- tedly, Lee's function was the same . The record does not reveal the identity of a night supervisor until mid-March when Thompson was hired . I credit Thompson that his duties and responsibilities at Metro were the same as they had been at Brice . I found him to be an honest, straightforward witness who impressed me as endeavor- ing to tell the truth. In these circumstances , I find that Metro's management and supervision are substantially identical to that of Brice. Respondent argues that Metro and Brice cannot be alter egos because the ownership is different , and be- cause Englert and Luporini negotiated at arm 's-length about the dissolution and distribution of assets of Brice. However, as noted above, complete identity in owner- ship is not a requisite. Further, in these circumstances it is immaterial that negotiations as to the distribution of assets may have been at arm's-length. As found above, Englert was half owner and the dominant force in Brice. He is sole owner and the dominant force in Metro. Thus, there is a substantial continuity in the control of Brice and Metro. Accordingly, I find the ownership of Brice and Metro to be substantially identical for purposes of determining alter ego status. The remaining consideration is whether Metro was created for legitimate reasons or to evade responsibilities under the Act. Here, the record is clear that the sale of Brice was initially motivated, at least in part, by Lupor- ini's desire to retire and Englert 's desire to rid himself of Luporini. However, it is equally as clear that once Lu- porini's retirement became an imminent possibility, most critical decisions thereafter were heavily influenced by Englert's desire to rid himself of the Union. In this regard, I credit the employee witnesses that for several years Englert had spoken to employees of his desire to get rid of Luporini and the Union and to get out of the Terminal away from his competitors. I also credit Thompson as to his conversations with Englert . Thus in mid-June, Englert told him he was trying to get out of the produce market and away from the Union because he was not making money and would have to do so in order to survive. Englert also told Singleton the new company would be nonunion, that union wages, which he could not afford to pay, were killing him, and that the union health and welfare plan was way out of line. He further said he could not afford to pay the contractual vacation, health and welfare, and pension to Respond- ents' most senior employee nor could he compete with nonunion employers. This is all indicia of a motivation to evade responsibilities under the Act. Buttressing this conclusion is the secrecy and deceit with which Englert effected the creation of Metro. Thus, prior to the 15 January notices, he only told a few select employees. He did not inform customers, despite certain indications of customer concern regarding rumors that Brice was closing. Furthermore, Englert and Cooke spe- cifically told Union Representative Rosa that Brice was going out of business and Englert had no intentions of continuing in the business under another name. Also, Englert instructed Thompson to park certain trucks at the Brice facility so it would appear to the Union that Brice had actually gone out of business . In these circum- stances, I find that one of the principal motivating fac- tors in the decision to close Brice and open Metro was Englert's desire to evade responsibility under the Act to bargain with the Union and to honor Brice's collective- bargaining agreement. Based on the foregoing , I find that Brice and Metro are alter egos . Mar-Kay Cartage, supra. H. Conclusions Concerning Alleged Violations It is undisputed that Metro has never recognized the Union as the collective-bargaining representative of its employees and that it has , at all times, failed to pay wages and benefits required under Brice's collective-bar- gaining agreement. As I have found that Metro is the alter ego of Brice, it has at all times since 1 February 1987, when it commenced operations, been obligated to bargain with the Union as the collective-bargaining rep- resentative of its employees , and to abide by the collec- tive-bargaining agreement between the Union and the San Francisco Produce Association and the Terminal Dealers' Association . Accordingly, I find that by failing to recognize and bargain with the Union and to honor the collective-bargaining agreement , Respondents have violated Section 8(a)(1) and (5) of the Act. The complaint alleges that Respondents violated Sec- tion 8(a)(1) and (5) of the Act by refusing to furnish the Union requested information regarding the alleged clo- sure of the Brice facility and the alleged sale and disposi- tion of certain of Brice's assets, capital, and good will. It is undisputed that the Union requested and Respondents refused to furnish such information . Respondents argue that because of the Union's 3 months' delay in requesting the information, it is obvious that the purpose of the re- quest was not to assist the Union in "effects " bargaining, but rather was sought to buttress the Union's claim that Brice was not really closing . Further, Respondents con- tend the questions asked were an attempt to bargain over the decision to close, which Respondents are not obligat- ed to do. First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). I disagree . It is well established that an employer's duty to bargain encompasses an obligation to provide information needed by the collective-bargaining representative of its employees for the proper perform- ance of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Here, the information requested clearly related not to a decision to close , but rather to whether Brice was in fact closing or whether the business was continu- ing through a successor or alter ego. Such information is clearly relevant. Hawg-N-Action, Inc., 268 NLRB 616 (1984). I also reject Respondents argument that it had no obli- gation to furnish the requested information because the information sought related to the unfair labor practice charge. In support thereof, Respondents cite American Oil Co., 171 NLRB 1180 (1968). I fmd that case inappo- site. There, the union argued that the payroll records re- quested were needed in connection with the formulation of union demands in contract negotiations scheduled to commence 3 months later . The administrative Judge found, under the circumstances, that this reason was a pretext and that the union was seeking the information in connection with the pressing of the unfair labor practice METRO FOODS proceedings. Accordingly the judge in finding the refusal to furnish the records was not unlawful, concluded (above a 1188): "There are ways to procure relevant evi- dence in the possession of an adverse party . . . but the '8(ax5)-request' route is not one of them." Here, the in- formation sought was requested both before and after the filing of this unfair labor practice charge. Further, in view of the "imminent" closing of the Brice facility, l a the layoff of unit employees, the severance pay negotia- tions, and the information the Union had indicating that Englert was moving to a new facility, the Union's obvi- ous need for the requested information was immediate. Accordingly, I find that by not furnishing the Union the information sought, and by furnishing misleading infor- mation to the Union regarding its intentions to open Metro, Respondents have violated Section 8(axl) and (5) of the Act. In view of my crediting employee witnesses about their conversations with Englert, I fmd that Englert so- licited them to abandon the Union and enter into individ- ual employment contracts. I, therefore, fmd that Re- spondents bypassed the Union and dealt directly with unit employees in violation of Section 8(aXl) and (5) of the Act. As I have found that Metro is an alter ego of Brice created to evade Respondents' responsibilities under the Act, I also fmd that the Brice employees were terminat- ed on 31 January because they were represented by the Union in an attempt by Respondents to evade their con- tractual and statutory obligations. Accordingly, I fmd that they were unlawfully terminated in violation of Sec- tion 8(axl) and (3) of the Act. Further, based on the undenied testimony of Petersen, which I credit, I fmd that Lee's questioning of Petersen on 15 January whether she would go with them to the new facility or stay with the Union was coercive in that it required her to make her union sympathies known and to abandon the Union or be terminated. I, therefore, find that Respondents violated Section 8(axl) and (3) of the Act. CONCLUSIONS OF LAW 1. Metro Foods, Inc. and Brice Bros., Inc. are employ- ers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Freight Checkers, Clerical Employees and Helpers, Teamsters Local Union No. 856, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Metro is the alter ego of Respondent Brice, established for the purpose of evading Respond- ents' responsibilities under the Act. 4. The following employees of Respondents constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All employees covered by the collective-bargaining agreement between the Union and the San Francis- 15 The collective-bargaining agreement provides that it is binding on successors, assigns, etc. 1119 co Produce Association and the Terminal Dealers' Association, effective by its terms from 1 February 1986 to 1 February 1989. 5. At all times material the Union has been the exclu- sive collective-bargaining representative of the employ- ees in the appropriate unit set forth above within the meaning of Section 9(a) of the Act. 6. Respondents violated Section 8(a)(5) and (1) of the Act by: (a) Refusing to recognize and bargain with the Union as exclusive representative of its employees in the appro- priate unit by refusing to honor the collective-bargaining agreement with respect to such employees, and failing to apply to such employees the terms and conditions of the agreement. (b) Bypassing the Union and bargaining directly with the employees regarding the terms and conditions of their continued employment. (c) Refusing to furnish the Union with requested infor- mation regarding the alleged closure of Respondents' south San Francisco, California facility, and the alleged sale and disposition of certain of Respondent Brice Bros., Inc.'s assets, capital, and good will, which information is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the unit; and providing the Union with misleading or inaccurate information when responding to certain aspects of the Union's request for information. 7. Respondents violated Section 8(a)(1) and (3) of the Act by terminating the employees in the appropriate unit described above because they were represented by the Union and because they were covered by a collective- bargaining agreement. 8. Respondents violated Section 8(a)(1) of the Act by coercively interrogating an employee as to union activi- ties and sympathies. 9. The above violations are unfair labor practices af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have violated Section 8(aX5), (3), and (1) of the Act, I shall order that Re- spondents cease and desist from engaging in the conduct found unlawful and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent Metro is the alter ego of Respondent Brice and has continued to operate its business, but has failed and refused to recognize the Union or to apply the terms of the collective-bargaining agreement between the Union and Brice, I shall recom- mend that Metro recognize and, on request, bargain with the Union as the exclusive representative of the employ- ees in the appropriate unit; that Metro acknowledge that it is bound by the collective-bargaining agreement be- tween the Union and the San Francisco Produce Asso- ciation and the Terminal Dealers' Association, effective by its terms from 1 February 1986 to 1 February 1989; that it abide by the agreement; and that it make the em- ployees in the appropriate unit whole by paying retroac- 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tively the wage rates provided for in its collective-bar- gaining agreement with the Union and by paying all con- tractually required contributions to the various trust funds established by the collective-bargaining agree- ment" and by reimbursing employees for any expenses they may have incurred because of Respondents' unlaw- ful failure to make such required payments, as provided in Kraft Plumbing & Heating, 252 NLRB 891 fn. 1 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Having found that Respondents unlawfully discharged their employees named below in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Re- spondents be ordered to offer each of them immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his or her seniority or any other right and privilege previously enjoyed, and make each of them whole for any loss of earnings he or she may have suffered by reason of the discrimination against them by payment to them of sums of money equal to that which they normally would have earned absent the discrimination, less net interim earnings during such period, computed on a quarterly basis in the manner established in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as described in Florida Steel Corp., 231 NLRB 651 (1977), and New Horizons for the Retarded, 283 NLRB 1183 (1987). See generally Isis Plumbing & Co., 138 NLRB 716 (1962). Harry Barsanti Steve Mosunic Danette Petersen Willie Reyes Lillian Fenech Franklin Tying Arturo Cadena Arthur Meier Cucu Franco William Singleton Liborio Leon William Prieto Oscar Canizales Robert Ikeda John Ensey As the unfair labor practices committed by the Re- spondents are of a character striking at the very heart of the Act, I shall recommend that Respondents be ordered to cease and desist from infringing in any other manner on the rights guaranteed in Section 7 of the Act. On these findings of fact and conclusions of law and on the entire record,17 I issue the following recommend- ed18 16 Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a "make -whole" remedy We, there- fore, leave to further proceedings the question of how much interest Re- spondents must pay into the benefit fund in order to satisfy our "make- whole" remedy These additional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the doc- uments governing the fund at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return on investment of the por- tion of funds withheld, additional administrative costs, etc, but not col- lateral losses See Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979). 17 Certain errors in the transcript are noted and corrected 18 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 ORDER The Respondents Metro Foods, Inc., and Brice Bros., Inc., San Francisco, California, their officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with the Union as the exclusive representative of its employees in the ap- propriate unit with respect to wages, hours, working conditions, or other terms and conditions of employment of those employees, refusing to honor the collective-bar- gaining agreement applicable to those employees, and failing to apply to such employees the terms and condi- tions of the agreement. (b) Bypassing the Union and bargaining directly with the employees regarding the terms and conditions of their continued employment. (c) Refusing to furnish the Union with requested infor- mation regarding the alleged closure of Respondents' south San Francisco, California facility, and the alleged sale and disposition of certain of Respondent Brice Bros., Inc.'s assets, capital, and good will, and providing the Union with misleading or inaccurate information in re- sponse to such requests. (d) Discouraging membership in the Union, or any other labor organization, by terminating its employees because they are represented by the Union or any other labor organization, or because they are covered under a collective-bargaining agreement, or by otherwise dis- criminating against its employees in regard to hire, tenure of employment, or other terms and conditions of employment. (e) Coercively interrogating their employees about their union activities and sympathies. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize Freight Checkers, Clerical Employees and Helpers, Teamsters Local Union No. 856, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America AFL-CIO as the exclu- sive collective-bargaining representative of its employees in the appropriate unit described below and, on request, meet and bargain with the aforesaid Union concerning wages, hours, pension, and welfare benefits, and other terms and conditions of employment; and, if an under- standing is reached, embody it in a signed document. The appropriate unit is: All employees covered by the collective -bargaining agreement between the Union and the San Francis- co Produce Association and the Terminal Dealers' Association, effective by its terms from 1 February 1986 to 1 February 1989. (b) Acknowledge that it is found by the collective-bar- gaining agreement between the Union and the San Fran- cisco Produce Association and the Terminal Dealers' As- sociation effective by its terms from 1 February 1986 to METRO FOODS 1121 1 February 1989, and abide by the terms of agreement, both retroactively and prospectively. (c) Make its employees whole by paying retroactively the wage rates provided for in its collective -bargaining agreement with the Union and by paying all contractual- ly required contributions to the various trust funds estab- lished by the collective-bargaining agreement and by re- imbursing employees for any expenses they may have in- curred because of Respondents' unlawful failure to make such required payments. (d) Offer each of the employees named below immedi- ate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to his or her seniority or any other right and privilege previously enjoyed, and make each of them whole for any loss of earnings he or she may have suffered by reason of the discrimination against them in the manner set forth in the remedy sec- tion. Harry Barsanti Danette Petersen Lillian Fenech Arturo Cadena Cucu Franco Liborio Leon Oscar Canizales John Ensey Steve Mosunic Willie Reyes Franklin Tyng Arthur Meier William Singleton William Prieto Robert Ikeda (d) Remove from its files any reference to the unlaw- ful terminations and notify each of the employees in writing that this has been done and that the terminations will not be used against them in any way. (e) 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. (f) Post at its facility in San Francisco, California, copies of the attached notice marked "Appendix." 1 e Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Re- spondents' authorized representatives, shall be posted by Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order, what steps have been taken to comply. 19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the 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."