Bell Energy Management Corp. Bell Sheet Metal Corp., B & E Sheet Metal, And Bell Heating And Air Conditioning, Inc.

168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bell Energy Management Corp , Bell Sheetmetal Corporation, B & E Sheetmetal, and Bell Heat ing and Air Conditioning, Inc and Local 295- 295C, International Union of Operating Engi neers, Air Conditioning & Refrigeration, AFL- CIO and Sheet Metal Workers International Union Association, Local Union 38, Party to the Contract Case 2-CA-21385 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 8 1986 Administrative Law Judge Steven Davis issued the attached decision The Re spondent i Bell Energy Management Corp Bell Sheetmetal Corporation B & E Sheetmetal and Bell Heating & Air Conditioning Inc filed excep tions and a supporting brief The General Counsel filed an answering brief cross exceptions and a brief in support of the cross exceptions The Re spondent thereafter 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 2 findings and conclusions as modified below and to adopt the recommended Order 3 As set forth more fully in the judge s decision the facts establish that the Respondent became a member of a multiemployer association known as the Association of Master Refrigeration & Air Conditioning Contractors Inc (Association) in early 1984 In order to become a member the Re spondent agreed to be bound by a collective bar gaining agreement that existed between the Asso ciation and Local 295-295C International Union of Operating Engineers Air Conditioning & Refnger ation AFL-CIO (Local 295) The Respondent honored the terms of this contract through its expi ration date of March 31 1984 When this contract expired the Respondent agreed to be bound by a successor agreement that was effective from April 1 1984 through March 31 1987 The Respondent abided by the terms of this contract until approxi i The judge found that the named Respondents constitute a single em ployer and are alter egos within the meaning of the Act No exceptions to these findings were filed 2 The Respondent has excepted to the judge s ruling permitting the ad mission of certain duplicates into evidence Having reviewed the entire record we find that the judge properly admitted the duplicates into evi dence because no genuine question exists regarding the authenticity of the originals nor the accuracy of the duplicates 2 The General Counsel s request for a visitatonal clause is denied See Cherokee Marine Terminal 287 NLRB 1080 (1988) mately August 1985 when it ceased making certain fund contributions and dues checkoff payments When Local 295 notified the Respondents owner Alfred Bell on November 19 1985 that the Re spondent was 3 months late in making fund contra butions and dues payments Bell stated that the Re spondent was no longer honoring the Local 295 contract because it had signed a contract with Sheet Metal Workers International Union Associa tion Local Union 38 (Loco 1 38) Indeed the Re spondent had signed a contract with Local 38 on November 13 1985 4 and has since abided by the terms of that contract which was effective from July 1 1984 to June 30 1987 Despite Local 295 s protests on November 19 1985 the Respondent withdrew recognition from Local 295 and repudiat ed the contract It however did send Local 295 payment for the delinquent September October and November contributions and dues assessments in December 1985 The judge found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from and repudiating its collective bargaining agreement with Local 295 In reaching his conclu Sion the judge initially indicated that he could not decide from the record whether Section 8(f) s pro visions applied to the Respondent as an employer engaged primarily in the building and construction industry 5 Nonetheless the judge found that even if Section 8(f) applied to the Respondent Local 295 was presumptively the majority representative of the Respondents employees for the duration of the contract between Local 295 and the Respond ent 6 Consequently he concluded that the Re spondent could not lawfully repudiate this contract or withdraw recognition from Local 295 The Respondent has excepted to the judge s fail ure to find that it is a construction industry em ployer within the meaning of Section 8(f) and to 4 The events leading up to the execution of the contract between the Respondent and Local 38 are fully set forth in the judge s decision 5 Sec 8(f) provides in relevant part as follows It shall not be an unfair labor practice, for an employer engaged primarily in the building and construction industry to make an agree ment covering employees engaged (or who upon their employment will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established maintained or assisted by any action de fined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been estab lished under the provisions of section 9 of this Act prior to the making of such agreement 6 In making this determination the judge relied on the principles set forth in Authorized Air Conditioning Co 236 NLRB 131 fn 2 (1978) The Board stated in that decision that when a single employer joins a multi employer association and adopts that associations collective bargaining agreement the single employers unit merges into the multiemployer unit so that the relevant unit becomes that of multiemployer association We note that in John Deklewa & Sons 282 NLRB 1375 (1987) the Board overruled Authorized Air Conditioning and its progeny to the extent that they applied the merger doctrine in 8(t) cases 291 NLRB No 23 BELL ENERGY MANAGEMENT CORP the judges conclusion that it could not lawfully withdraw recognition from and repudiate its con tract with Local 295 Contending that the record establishes that it is a construction industry em ployer under Section 8(1) the Respondent argues that the contract it signed with Local 295 was a prehire agreement that was voidable at any point The General Counsel has excepted to the judge s failure to find that the Respondent is not a con struction industry employer within the meaning of Section 8(f) She argues that the Respondent was not primarily engaged in the building and construc tion industry when it signed the relevant agreement with Local 295 in early 1984 because it primarily serviced air conditioning systems For the reasons set forth below we find that Section 8(f) is inappli cable and that the Respondent violated Section 8(a)(5) and (1) by repudiating its contract with and withdrawing recognition from Local 295 As the Respondent seeks the protection of the exception set forth in Section 8(f) it has the burden of proving that it is an employer primarily engaged in the building and construction industry Painters Local 1247 (Indio Paint) 156 NLRB 951 fn 1 (1966) On the basis of the record before us we cannot find that the Respondent has met its burden Although the Respondent has offered the testimo ny of its owner Alfred Bell to support its conten tion we agree with the judge s finding that Bell s testimony was contradictory and confusing Bell testified initially that 75 percent of his business during early 1984 consisted of air conditioning service work at Caldor department stores pursuant to a service contract The balance he testified consisted of the fabrication and installation of heat ing and air conditioning duct work Thereafter Bell testified that service work constituted only 33- 50 percent of his business during that period 7 Fur thermore although the multiemployer association s attorney N George Turchin testified that employ ers belonging to the Association generally per formed construction work he indicated that he did not know the specific type of work performed by the Respondent As we are unable to determine the type of work primarily performed by the Respond ent on the record before us we are unable affirma tively to find that the Respondent has proved that it is an employer primarily engaged in the building and construction industry We therefore reject the Respondents contention that its contract with Local 295 was an 8(f) prehire agreement We fur 7 The judge erroneously found that Bell in his later testimony stated that installations accounted for 75 to 80 percent of his business in early 1984 The record establishes that Bell actually testified that 75 to 80 per cent of his installation work during this period occurred in buildings that were already erected 169 ther find that the Respondent has not advanced any lawful reason for repudiating its contract with and withdrawing recognition from Local 295 Ac cordingly we affirm the judge s finding that the Respondent violated Section 8(a)(5) and (1) We also adopt the judge s finding that the Re spondent, unlawfully assisted Local 38 in violation of Section 8(a)(2) and (1) As the contract that the Respondent entered into with Local 38 contained a union security clause we also adopt the judge s finding that the Respondent violated Section 8(a)(3) and (1) by enforcing that clause Although the Respondent has argued that it was entitled to enter into an 8(f) prehire agreement with Local 38 we have rejected the Respondents argument that Section 8(f) applies to it 8 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices we will order that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act We will order the Respondent to cease recog nizing Local 38 and honoring its contract with Local 38 and will order the Respondent to comply with the terms of its 1984-1987 collective bargain ing agreement with Local 295 We will also order the Respondent to transmit the required contribu tions to the welfare and pension funds as required by the collective bargaining agreement between Local 295 and the Respondent 9 We will further order the Respondent to make the employees whole for any losses they may have suffered as a result of the Respondents failure to comply with the collective bargaining agreement with Local 295 as of November 19 1985 Local 295 and the em ployees will be made whole for their losses in the manner prescribed in Ogle Protection Service 183 8 Even if we had concluded that the Respondent was a construction industry employer within the meaning of Sec 8(1) we would still find that the Respondents agreement with Local 38 violated Sec 8(a)(2) be cause 8(f) s terms prohibit the execution of an agreement that is the result of unlawful assistance See Oilfield Maintenance Co 142 NLRB 1384 1385-1386 (1963) Bear Creek Construction Co 135 NLRB 1285 1286 (1962) 9 Because the provisions of employee benefit fund agreements are van able and complex the Board does not provide at the adjudicatory stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments Therefore any additional amount owed with re spect to the welfare fund and the pension fund will be determined in ac cordance with the procedure set forth in Merryweather Optical Co 240 NLRB 1213 1216 fn 7 (1979) The Respondent will also reimburse its employees for any expenses en suing from its failure to make contributions to the funds established by the collective bargaining agreement between Local 295 and the Respond ent Kraft Plumbing 252 NLRB 891 fn 2 (1980) enfd 661 F 2d 940 (9th Cir 1981) Our make whole remedy includes the requirement that the Respondent remit to Local 295 all dues and fees it should have deducted from em ployees wages and remitted pursuant to the terms of the collective bar gaining agreement 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 682 (1970) with interest on any amounts due paid in the manner prescribed in New Horizons for the Retarded to ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Bell Energy Management Corp Bell Sheetmetal Corporation B & E Sheetmetal and Bell Heating and Air Con ditioning Inc Mahopac New York its officers agents successors and assigns shall take the action set forth in the Order 10 283 NLRB 1173 ( 1987) Interest on and after January 1 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 January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) Richard L De Steno Esq for the General Counsel Jeffrey S Dubin Esq Lake Success New York for the Respondent DECISION STATEMENT OF THE CASE STEVEN DAVIS Administrative Law Judge Pursuant to a charge filed on 4 December 1985 and a first amend ed charge filed on 28 January 1986 by Local 295-295C International Union of Operating Engineers Air Condi tioning & Refrigeration AFL-CIO (Local 295) a com plaint was issued by Region 2 of the National Labor Re lations Board on 31 March 1986 against Bell Energy Management Corp Bell Sheet Metal Corporation B & E Sheetmetal and Bell Heating and Air Conditioning Inc The complaint alleges essentially that Respondents (a) are alter egos and a single employer 1 (b) refused to abide by the contract with Local 295 which they en tered into as employer members of the Association of Master Refrigeration & Air Conditioning Contractors Inc (Association) (c) entered into a contract with Sheet Metal Workers International Union Association Local Union 38 (Local 38) having a union security clause not withstanding that Local 38 had not been designated by a majority of the unit employees (d) solicited an employee to organize a meeting with other employees in order to induce them to abandon their support for Local 295 and to encourage them to join Local 38 and (e) interrogated an employee about a union meeting Respondents answer denies the material allegations of the complaint and raises certain affirmative defenses that will be discussed infra The case was heard before me on 21 and 22 May 1986 in New York City 1 Inasmuch as I find that Respondents are a single employer I will refer to them hereafter as Respondent On the entire record including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION Respondent admits that each of the named companies collectively performs services valued in excess of $50 000 directly for other firms located outside New York State and that each of them is and has been an em plover engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act Respondent also admits that Local 38 and Local 295 are labor organizations within the meaning of Section 2(5) of the Act I accordingly find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act and that Locals 38 and 295 are labor organizations within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICE A Respondents Status as a Single Employer and Alter Ego Alfred Bell went into business in 1980 The corporate name chosen for the Company was Bell Heating and Air Conditioning However that name was not available so the Company was incorporated under the name Bell Energy Management Corp Because Bell still wanted to use the name Bell Heating and Air Conditioning he op erated thereafter as Bell Energy Management Corp d/b/a Bell Heating and Air Conditioning Bell also formed another company B & E Sheetmetal with a partner That partnership was not successful and it was discontinued and not incorporated but in early 1984 Bell used the name B & E Sheetmetal in various transactions including that related to Local 295 and the Association About May 1984 Bell formed Bell Sheetmetal Corpo ration but he did not operate under that name until about November 1985 when he signed a contract with Local 38 Bell testified that he has essentially two companies Bell Energy Management d/b/a Bell Heating and Air Conditioning which does installation and service of air conditioning ventilation and heating systems in residen tial commercial and industrial buildings and Bell Sheet metal Corporation a sheetmetal department which fabn cates and installs the ductwork used for such systems Bell stated that when ductwork is required Bell Sheet metal Corporation acts as the subcontractor to Bell Energy Management but no separate contracts for serv ice are signed in behalf of Bell Sheetmetal Corporation The employees needed for Bell Sheetmetal Corpora tion s operations were obtained from Bell Energy Man agement Bell first testified that he does business now with those two companies with the same employees However he later testified that in November 1985 he had different employees in the two Companies and he BELL ENERGY MANAGEMENT CORP 171 maintained separate records payrolls and employment lists for the two operations Bell testified that he owns all the assets of Bell Energy Management and Bell Sheetmetal His home is the office of the Companies and his garage is their shop It was stipulated that at all material times the named respond ents have occupied and done business from the same office and have the same phone number and that at all times Bell has controlled all aspects of the Companies operations including establishing labor relations policies He further stated that in early 1984 Bell Energy Man agement paid the bills for all of his operations B Bell Joins the Association On 19 January 1984 the Association sent a letter to Bell Heating and Air Conditioning welcoming it as a new member of the Association and requesting that it execute certain documents On 23 January and 8 February Bell signed applica tions for membership in behalf of Bell Energy Manage ment Inc and B & E Sheetmetal respectively The ap plication states I [We] hereby apply for membership in the Ass n of Master Refrigeration & Air Conditioning Contrac tors Inc I [We] understand that as a condition [sic] membership and continued membership I [We] shall abide by the By Laws of the Association I [We] agree to be bound by and to comply with the terms of any agreement now existing or which may hereafter be entered into between the Association and the International Union of Operating Engineers Local 295 AFL-CIO with the same force and effect as though I [We] had executed same as a party Bell accordingly agreed to be bound by the current contract between the Association and Local 295 which was effective from 1 April 1981 to 31 March 1984 He abided by and honored its terms until its expiration Respondents three employees Sebastian Sora Angelo Peragine and William Berndt executed application cards for Local 295 on 25 December 1983 and 5 January and 24 February 1984 respectively About 1 April 1984 Bell executed a document in behalf of B & E Sheetmetal in which he ratified accept ed and agreed to be bound by the collective bargaining agreement entered into on 1 April between the Associa tion and Local 295 That contract effective from 1 April 1984 to 31 March 1987 states SUSPENSION OF ASSOCIATION MEMBERSHIP The undersigned member is in good standing with the Association and shall be bound by this contract only as long as he remains in good standing How ever it is specifically understood and agreed that in the event such member of the Association is ex pealed suspended or resigns as such member of the Association the Union at its option shall have the right to declare the contract null and void as to such member who has been expelled suspended or has resigned from the Association The undersigned Employer agrees to notify the Union by certified mail within thirty (30) days of his suspension or resignation Said Employer agrees that he will ne gotiate and enter into an individual collective bar gaining agreement with the Union covering his em ployees within thirty (30) days At the time that Bell signed the ratification agreement he executed in behalf of Bell Energy Management Inc promissory notes payable quarterly to the Association as dues He abided by and honored the terms of the new contract until about August 1985 making contributions for welfare pension dues and assessments on behalf of certain employees 2 Bell conceded that a few months before November 1985 he ceased complying with the Local 295 contract and stopped making fund contribu tions and dues checkoff payments to that union C Respondent and Local 38 Charles Hertel the president and business manager of Local 38 stated that in October or November 1984 he saw two employees at a jobsite He asked them who they worked for They said they worked for Bell Hertel asked them if they were interested in joining a union The two men did not reply That was Hertel s only contact with Bell s employees until July or August 1985 when he was called by Bell Hertel stated that Bell told him that he wanted to meet with him to discuss a contract and asked the procedure for signing a contract About 2 or 3 days later Bell and Hertel met Bell told him that he had a contract with Local 295 but he was forming a new company and wanted to sign a contract with Local 38 3 They dis cussed wages benefits and the cost to Respondent and Bell stated that the Local 38 benefits were comparable to those of Local 295 The meeting ended with Hertel saying that he would check to see if Bell could sign a contract and Bell stating that he would (a) take care of Local 295 (b) speak to his employees and (c) call Hertel One or two weeks later Bell called Hertel and told him that he wanted to meet to discuss a contract They met in August and Bell was given copies of the Local 38 contracts Bell told Hertel that he would speak to his employees about being represented by Local 38 Bell called thereafter and told Hertel that his workers were willing to meet with him to speak about Local 38 In September Hertel met with five of Bell s employ ees at the shop and told them of Local 38 s contract terms and fringe benefits and answered their questions about medical coverage In early October Hertel met with three employees in his office and again answered their questions concerning medical coverage at which time they signed applications for membership Thereaf 2 The last monthly contributions report sent by Respondent to Local 295 is for August 1985 All the reports list the Company as B & E Sheet metal or B & E Sheetmetal Corp 3 This was apparently a reference to Bell Sheetmetal Corp which was incorporated in May 1984 but not operated until the relationship with Local 38 began 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ter Hertel told Bell that three workers joined Local 38 and on 30 October he sent Bell contracts for signature The contracts were signed on 13 November and are effective from 1 July 1984 to 30 June 1987 They were signed by Bell in behalf of Bell Sheetmetal Inc but the printed portion of one contract lists the contracting party as Bell Heating Ventilation Air Conditioning 4 Since the execution of the contracts Respondents have abided by all their terms Hertel stated that Local 38 enforces its union security clause which essentially requires membership in that Union as a condition of continued employment within 8 days of hire or the effective date of the contract Bell s version of his contracts with Hertel is as fol lows Bell testified that he called Hertel in late spring or summer 1985 because that Union contacted his workers at certain jobsites and he (Bell) was told by them that they were interested in Local 38 Bell met with and told Hertel that he had a contract with Local 295 but that the employees no longer desired representation by Local 295 and he wanted to explore the possibility of signing a contract with Local 38 Bell then told his employees that from the point of view of the Company which hoped to do large commer cial and industrial work it would prefer Local 38 to Local 295 Bell also told them that the Company would grow with Local 38 that they could attend school 5 re ceive better benefits and would be better off with Local 38 Bell called Hertel and told him that he spoke to the employees Hertel said that he wanted to meet with them Bell then told employee James De Palma that Hertel wanted to speak to them Bell suggested that be cause De Palma was part of the group interested in Local 38 he should coordinate the meeting so that Bell would not be involved Bell called Hertel and told him that the men agreed to meet with him and De Palma would handle the arrangements Bell stated that following the meeting which he did not attend Hertel told him that his employees supported Local 38 Bell further stated that 1 day after the meeting he asked De Palma how did everything go? or what happened? or what s going on? De Palma told him what happened and said that the workers decided to join Local 38 D Respondent Repudiates the Local 295 Contract William Guanno the treasurer and field agent of Local 295 testified that on 19 November 1985 he phoned Bell and told him that he was 3 months in ar rears in dues assessments and pension and welfare pay ments to that Union and asked him to become current Bell replied that he did not have to honor the Local 295 contract because he was signing a contract with Local 38 6 Guarino protested that Bell had a contract with That is the party to whom Hertel sent all his correspondence As of at least May 1984 Local 295 had no apprenticeship program On 3 May 1984 the Association sent a letter to its members which stated that an apprenticeship program was in the planning stages 6 At that time Bell had already signed the Local 38 contracts Local 295 and could not recognize Local 38 Bell replied that his employees would benefit from membership in Local 38 as it has an apprenticeship program 7 and that some had signed with local 38 and that he (Bell) pre ferred Local 38 Local 295 s officials called Hertel and accused that union of raiding Bell s shop On 10 December Bell sent a letter to Local 295 which stated that B & E Sheetmetal was no longer in business and sent checks for final payment for dues assess ments pension and welfare funds for the months of Sep tember October and November The checks were drawn on the account of Bell Energy Management Corp Bell conceded that as of 10 December when he sent the letter Respondent had not stopped performing its usual air conditioning heating and sheetmetal work III ANALYSIS AND DISCUSSION A Preliminary Matters 1 Copies of certain documents Respondent objected to the receipt in evidence of cer tarn documents because they were photo copies and not the originals I affirm my hearing rulings overruling the objections and receiving the documents in evidence a The documents dated January 1984 The first document is a letter dated 19 January 1984 from the Association to Bell properly addressed to Re spondent at its address The letter welcomed him as a new member of the Association and stated that enclosed was inter alia an application form that he should sign The next document was the application form dated 23 January 1984 signed by Bell in which he applied for membership in the Association and agreed to be bound by the current contract N George Turchin attorney for the Association who is the only person responsible for the administration of the Associations activities testified that the documents came from the office of the Association which is also his office He sent the 19 January letter and verified the in formation such as the executed application that was re ceived by his office He further stated that the originals were in his office and that he made the copies on a pho tostat machine in his office and sent them to General Counsel who then offered them at the hearing In addition Bell testified that in January 1984 he joined the Association and abided by the then current contract which ran until 31 March 1984 He thus in effect affirmed that he executed the membership applica tion b The contracts and related documents The two contracts between the Association and Local 295 from 1981 to 1984 and from 1984 to 1987 produced at the hearing were according to Turchin duplicate originals of the original documents The original docu ments signed by the presidents of the Association and 7 See fn 5 supra BELL ENERGY MANAGEMENT CORP 173 Local 295 were seen by Turchin in his office and typed there Duplicate originals were made by Turchin s office by photocopying the originals The duplicates were then sent to the Associations members The originals of the contracts may be in the possession of Local 295 but Tur chin was not certain The final questioned document on the letterhead of Local 295 is the agreement by Bell dated I April 1984 to ratify accept and be bound by the contract between the Association and Local 295 entered into that day Turchin testified that the original may have been signed in his presence but inasmuch as it is a Local 295 document that union would keep the original and he re tamed a copy Bell testified evidently referring to the ratification agreement that he signed an ageeement to be bound by the Association contract of 1 April 1984 In addition he stated that he entered into a collective bargaining rela tionship with Local 295 in January 1984 and honored that contract and also honored until November 1985 the subsequent contract dated 1 April 1984 Rule 1003 of the Federal Rules of Evidence states that A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circum stances it would be unfair to admit the duplicate in lieu of the original In addition the Second Circuit has held that And if it appears as it does here that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof and that fraud or imposition reasonably is not to be feared the reason upon which the best evidence rule rests ceases with the consequence that in that situation the rule itself must cease to be applicable An over technical and strained application of the best evidence rule serves only to hamper the in query without at all advancing the cause of truth The fundamental basis the Supreme Court has said Upon which all rules of evidence must rest- if they are to rest upon reason-is their adaptation to the successful development of the truth Funk v United States 290 U S 371 372 381 There is not the slightest reason to suspect that this funda mental basis was affected in the present instance [US v Manton 107 F 2d 834 845 (2d Cir 1939)] Based on the above particularly the testimonial eve dence by Bell virtually admitting all of these documents and the fact that there is no material dispute regarding the content of those documents I affirm my rulings re ceiving them in evidence 8 8 Time Share Vacation Club v Atlantic Resorts 735 F 2d 61 (3d Cir 1984) and US v Rohalla 369 F 2d 220 (7th Or 1966) cited by Re spondent are distinguishable because in both cases the disputed docu ment the original or a copy was not offered in evidence An affidavit and testimony were offered instead US v Alexander 326 F 2d 736 (4th Cir 1964) is also distinguishable In that case a copy of the document 2 Matters alleged in the complaint but not in the charges The Respondent argues that inasmuch as no 8(a)(3) al legation appears in the original or first amended charge the inclusion of an 8(a)(3) allegation in the complaint was improper and that allegation must be dismissed The charges allege that Respondent violated Section 8(a)(1) (2) and (5) by (a) refusing to bargain with Local 295 by failing to abide by the terms of its contract and withdrawing recognition and (b) recognizing and bar gaining with Local 38 at a time when Local 38 did not represent an uncoerced majority of employees Both charges contain the language by the above and other acts the above named employer has interfered with re strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act The complaint alleges that Respondent violated Sec tion 8(a)(2) of the Act by entering into a contract with Local 38 and that Respondent violated Section 8(a)(3) of the Act by entering into a contract with Local 38 con taming a union security clause when Local 38 had not been designated by an uncoerced majority of the employ ees Respondent asserts that the 8(a)(3) allegation in the complaint not present in the charges is not closely relat ed to or of the same class of violation as those alleged in the charges I do not agree The Supreme Court stated in NLRB v Fant Milling Co 360 US 301 307-309 (1959) To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights This would be alien to the basic purpose of the Act Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad in vestigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it There can be no justification for confining such an inquiry to the precise particu larizations of a charge Here we hold only that the Board is not precluded from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board [Citation omitted ] In Clark Equipment Co 278 NLRB 498 (1986) the Board in finding that specific allegations were properly set forth in the complaint although they were not con tamed in the charge reaffirmed its holding in Texas In dustries 139 NLRB 365 366 (1962) enfd in relevant part 336 F 2d 128 (5th Cir 1964) was improperly made causing material parts of it to be absent The copy was then altered by the addition of those missing items 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is well established that a charge is not a plead ing but merely serves to initiate a Board investiga tion to determine whether a complaint shall be issued Subject only to the requirement that there must be some relationship between the allegations in the complaint and the language of the charge it is the function of the complaint and not the charge to serve notice upon a respondent of the particular conduct alleged to be violative of the Act The Board has recently stated that [s]o long as the charge itself is timely the complaint may allege any matter closely related to the controversy as growing out of the charged conduct or related to the ocntroversy which produced the charge or which relates back to or defines the charge more precisely Raytheon Co 279 NLRB 245 (1986) The Second Circuit has agreed with this view NLRB v Dinion Coil Co 201 F 2d 484 491 (2d Cir 1952) Here the charges allege a violation of Section 8(a)(2) in Respondents recognizing and bargaining with Local 38 when that Union did not represent an uncoerced ma jonty of employees Thus the charges allege the improp er recognition and bargaining engaged in between Re spondent and Local 38 The complaint also alleges as a part of that improper dealing that Respondent violated Section 8(a)(2) by entering into the contract with Local 38 Respondent does not complain about that allegation of the complaint apparently because an 8(a)(2) violation was alleged in the charge However Respondent complains that the 8(a)(3) alle gation in the complaint-that the contract contained a union security clause and was entered into and main tamed when Local 38 did not represent an uncoerced majority of the employees-was not in the charge It is clear that the 8(a)(3) allegations in the com plaint-the execution of a contract containing a union se cunty clause with a minority union-are directly related to and the consequence of the improper recognition and bargaining alleged in the charges Thus in fact the com plaint deals with the same event as the charge-the im proper recognition and bargaining with Local 38 Sher wood Ford 264 NLRB 863 865 (1982) The execution of the contract and the inclusion of a union security clause relate to and grow out of the course of conduct-the recognition and bargaining with Local 38-which was alleged in the charges The Board in holding that where as here an 8(a)(3) allegation was properly included in a complaint although absent from a charge concluded In the circumstances the allegation of the complaint in question is interrelated in kind and time with those specifically set forth in the charge and there exists a legally sufficient relationship between the subject [matter] of the charge and that of the com plaint [Olympic Medical Corp 236 NLRB 1117 1122 (1978)] On the foregoing I find no merit to Respondents con tention that the complaint paragraphs alleging violations of Section 8(a)(3) should be dismissed 9 B The Alter Ego and Single Employer Issues The General Counsel alleges that about November 1985 Bell Sheetmetal was established by B & E Bell Energy and Bell Air Conditioning as a subordinate in strument to and a disguised continuation of those Com panies and since that time all the Respondents have been affiliated businesses with common officers owner ship management and supervision have formulated and administered a common labor policy affecting the em ployees of the companies have shared common premises and facilities have interchanged personnel have provid ed services for each other and have held themselves out as a single integrated business enterprise and are alter egos and a single employer within the meaning of the Act The factors for finding single employer and alter ego status are much the same Mine Workers Local 1329 (Alpine Construction) 276 NLRB 415 fn 3 (1985) The Board stated in Contee Sand & Gravel Co 274 NLRB 574 585 (1985) The Board finds more than one enterprise to be a single employer where there is common ownership and financial control which is actual rather than po tential common management interrelation of oper ations and centralized control of labor relations But it is not essential that all of these elements be present As to whether an enterprise is the alter ego of another the Board looks to a greater number of factors such as whether the enterprises have substantially identical ownership management business purpose operation equipment customers and supervision of employees There is also an additional factor which the Fifth Circuit describes in Carpenters Local 1846 v Pratt Farnsworth 690 F 2d 489 508 (5th Cir 1982) in the following words However the focus of the alter ego doctrine unlike that of the single employer doctrine is on the existence of a disguised continuance or an at tempt to avoid the obligations of a collective bar gaining agreement through a sham transaction or technical change in operations [Citations omit ted ] However absent a disguised continuance the Board generally finds alter ego status only where the two enter prises have substantially identical ownership business purpose management supervision customers operation and equipment T E Elevator Corp 268 NLRB 1461 (1984) e Electrical Workers IBEW Local 46 (NECA) 277 NLRB 1235 (1985) cited by Respondent is inapposite That case involved a situation where no charge had been filed against an employer but that employer was named in the complaint BELL ENERGY MANAGEMENT CORP The evidence establishes that Alfred Bell owns all the assets of Bell Sheetmetal Corp and Bell Energy Man agement d/b/a Bell Heating and Air Conditioning his two main companies In addition he owns another com pany B & E Sheetmetal which he used in his relation ship with the Association and Local 295 Bell Sheetmetal Corp is the subcontractor for Bell Energy Management and employees needed for Bell Sheetmetal were obtained from Bell Energy Management Bell s home is the office for all the companies and his garage is its shop All of the companies have occupied and done business from the same office and have the same phone number and Bell has controlled all aspects of the companies operations including establishing labor relations policies Bell Energy Management paid the bills for all of his oper ations Based on the above facts the evidence could not be clearer that because all companies operated at the same location and because of the identity of ownership finan cial control common management and supervision inter relation of operations and centralization of control of labor relations and also identical employees customers operation and equipment between all the Respondent companies I find and conclude that Respondents Bell Engery Management Corp d/b/a Bell Heating and Air Conditioning Bell Sheetmetal Corporation and B & E Sheetmetal all constitute a single employer and are alter egos of each other Elevator Sales & Service 278 NLRB 627 633 (1986) Rogers Cleaning Contractors 277 NLRB 482 489 (1985) Super Save 273 NLRB 20 28 (1984) J M Tanaka Construction 249 NLRB 238 241 (1980) Crawford Door Sales 226 NLRB 1144 (1976) I also find that Bell Sheetmetal Corporation was uti lized as a disguised continuance of Respondents oper ations in order to avoid its obligations as an Association member to honor the collective bargaining agreement be tween the Association and Local 295 J M Tanaka supra Thus when Bell advised Local 295 in December 1985 that B & E Sheetmetal was no longer in business he knew as he conceded at the hearing that Respondent had not ceased performing its usual work Rather Re spondent continued performing such work utilizing Bell Energy Management which had never ceased work and Bell Sheetmetal Corporation which although dormant since its incorporation in May 1984 was resurrected in November 1985 (1 month before the letter was sent) to contract with Local 38 for the same type of work done by B & E Sheetmetal when it was under contract with Local 295 Inasmuch as all the Respondent companies constitute a single employer and alter egos it is clear that Respondent Bell Sheetmetal Corporation acted as a disguised continuance of Respondent B & E Sheetmetal in avoiding its obligations under the Local 295 Associa tion contract C The Alleged Refusal to Bargain There is no dispute that Respondent was a member of the Association and agreed to be bound by and comply with the terms of the contract between the Association and Local 295 expiring on 31 March 1984 and the suc ceeding contract which ran from 1 April 1984 to 31 March 1987 In fact it did honor and comply with those 175 contracts until about September 1985 when it ceased making payments to the funds of the Union and when in November 1985 it refused to abide by the 1984-1987 contract Its answer admits that since about November 1985 it refused to abide by the 1984- 1987 collective bar gaining agreement The Board stated in Elevator Sales & Service 278 NLRB 627 (1986) Absent mutual consent or unusual circumstances withdrawal of an employer from a duty established multiemployer bargaining unit can be effected only by an unequivocal written notice to the union ex pressing a sincere intent to abandon the multiem ployer unit and pursue negotiations on an individual employer basis Such written notice must be given prior to the commencement of negotiations Retail Associates Inc 120 NLRB 388 (1958) Here there was no attempt at withdrawal from the Association or from the Association unit and there was no mutual consent or unusual circumstances warranting such withdrawal Rather as Respondent concedes it re pudiated its agreement with Local 295 In December 1985 it sent final payments to that Union for the pen ods it owed with the statement that B & E Sheetmetal was no longer in business Under these facts I find and conclude that by refusing to abide by the current contract between the Association and Local 295 effective from 1 April 1984 to 31 March 1987 and by withdrawing recognition from that Union Respondent violated Section 8(a)(5) of the Act Wm Chalson & Co 252 NLRB 25 (1980) In addition at the time that Respondent advised that B & E Sheetmetal was no longer in business it was con tinuing to engage in the same type of work with its other companies specifically Bell Sheetmetal Corporation In fact when the final payments were sent to Local 295 due to the alleged cessation of business of B & E Sheetmetal Respondent had already been in contractual relationship for nearly 1 month with Local 38 through Bell Sheet metal Corporation I thus find that Bell Sheetmetal Cor poration was utilized as a disguised continuance of B & E Sheetmetal in an effort by Respondent to evade its ex isting bargaining relationship with Local 295 and to evade its contractual and statutory obligation to Local 295 G & M Lath & Plaster Co 252 NLRB 969 (1980) Respondent raises several defenses to the alleged refus al to bargain the (1) inappropriateness of the unit (2) failure of the General Counsel to prove the majority status of Local 295 and (3) defense that Section 8(f) of the Act permitted it to repudiate the contract Respondent argues that the General Counsel has not proven the appropriateness of the collective bargaining unit alleged or that Local 295 represented a majority of Respondents employees or the employees in the Asso ciation unit The unit alleged as appropriate in the complaint and as set forth in the Association contract with Local 295 is as follows 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All employees employed by the employer members of the Association of Master Refrigeration & Air Conditioning Contractors Inc in the States of New York New Jersey and Connecticut excluding non working foremen plant guards office help sales or supervisors as defined in the Act It is clear that the appropriate unit is the Association unit Local 295 has been recognized as the collective bar gaining agent for the employees in this unit for at least 15 years There is no evidence that Local 295 s majority has ever been questioned 10 the contract recognizes Local 295 as the majority representative and Respond ent recognized that Union in that unit The Board recently stated that It is well established that a union enjoys an irre buttable presumption of majority status during the term of a collective bargaining agreement An em ployer therefore does not have the right to with draw recognition of a union during this period on the basis of a good faith doubt or even actual proof of loss of a union s majority status Inasmuch as the contract between the Respondent and Local 417 had not expired the Respondents good faith doubt of Local 417 s majority status was not a defense to its refusal to recognize Local 417 s rpresentative status [Sisters of Mercy Health Corp 277 NLRB 1353 1353-1354 (1985) ] Accordingly the assertion that a majority of the Re spondent s employees were not members of or represent ed by Local 295 in April 1984 or that they withdrew their support for Local 295 later is immaterial because the appropriate unit is the Association unit Wm Chalson & Co supra at 33 Belknap Glass Co 240 NLRB 1315 (1979) Wayne Electric 226 NLRB 409 (1976) Sheridan Creations 148 NLRB 1503 1505 (1964) In addition the Second Circuit noted that the fact that an employer may have had no union employees at the time of its with drawal from an association unit is irrelevant to respond ent s duty to bargain and to execute the completed agreement NLRB v John J Corbett Press 401 F 2d 673 (2d Cir 1968) Moreover Section 10(b) of the Act bars any inquiry into the majority status of Local 295 when it entered into the Association contract Machinists Local 1424 (Bryan Mfg Co) 362 U S 411 (1960) Morse Shoes 231 NLRB 13 (1977) Respondent asserts that as an employer engaged in the building and construction industry the agreement it rati feed and adopted in April 1984 was a prehire contract that it could repudiate at any time before Local 295 rep resented a majority of its employees or a majority of the Associations employees Respondent further argues that inasmuch as there has been no proof that Local 295 rep resented a majority of the employees in either unit it properly repudiated the Local 295 contract and validly 10 The fact that as of 1 September 1984 Local 295 no longer had ,funs diction in New Jersey is irrelevant to this case Jurisdiction over that State ceased after the current contract was in effect entered into a prehire agreement with Local 38 I do not agree Section 8(f) was enacted in order to immunize employ ers in the building and construction industry from the provisions of Section 8(a)(5) when they enter a prehire agreement with and recognize unions that do not repre sent a majority of employees in an appropriate unit R J Smith Construction 191 NLRB 693 694 (1971) Congress recognized that the occasional nature of employment in the industry gave rise to unique needs Teamsters Local 83 (Stanley Matuszak) 243 NLRB 328 330 (1979) Those needs included the employers ability to have available a supply of skilled craftsmen ready for quick referral in the uniquely temporary transitory and sometimes sea sonal construction industry and the employer s need to know his labor costs before making the estimate on which his bid will be based Jim McNeff Inc v Todd 461 U S 260 266 (1983) Prehire agreeements do not give rise to a presumption of majority status on behalf of the union Where a union fails to prove that it has obtained majority status among employees in an appropriate unit an employer may with draw recognition from the union without violating Sec tion 8(a)(5) of the Act Thus a prehire 8(f) contract is not binding on an employer until such time as the union demonstrates that it enjoys the support of a majority of employees in an appropriate unit NLRB v Iron Workers Local 103 (Higdon Contracting) 434 U S 335 (1978) However once a union represents a majority of em ployees in an appropriate unit the union although ini tially recognized under Section 8(f) then becomes the employees statutory bargaining representative and enjoys an irrebuttable presumption of majority status for the duration of the agreement Hageman Underground Construction 253 NLRB 60 62 (1980) A threshold question is the nature of Respondent s business for 8(f) s provisions apply only to an employer engaged primarily in the building and construction indus try The Board has defined that industry as being where the work involves the provision of labor whereby mate pals and constituent parts may be combined on the build ing site to form make or build a structure Teamsters Local 83 supra at 331 Bell testified that his Company performs service and installation (construction) work He stated that in early 1984 75 percent of his business was the servicing of the air conditioning units at Caldor department stores pursu ant to a service contract The rest of his business consist ed of residential and some commercial installations whereby heating and air conditioning duct work was fabricated at his shop and heating and air conditioning units were installed in existing buildings He further stated that the Company has not done any installations on new commercial buildings in which the units are in stalled as the building is erected but it has done installa tions on new residential buildings Bell s testimony was contradictory and confusing however as he later stated that in the same period in stallations were 75-85 percent of his business and 33-50 percent was servicing of Caldor stores He added that at BELL ENERGY MANAGEMENT CORP 177 the time of the hearing two thirds of his business was in stallations Association Attorney Turchin testified that he did not know the specific types of work performed by Respond ent but that Association members and their employees generally perform construction work including air con ditioning heating ventilation and sheetmetal work and to a lesser degree plumbing work He further stated the employees perform all phases of air conditioning includ ing the installation and repair of new units in commercial and residential buildings heating and ventilation work on existing buildings and buildings being constructed plumbing work and the manufacture and installation of sheetmetal to be installed in new and existing structures Turchin also stated that the Association contracts with Local 295 are not prehire contracts Given the nature of the testimony particularly con cerning Respondents business I am unable to make a finding whether Respondent is an employer engaged pn marily in the building and construction industry However even assuming that Respondent is an em ployer primarily engaged in the building and construc tion industry if Local 295 represented a majority of em ployees in an appropriate unit at any time during the contracts term that Union would be the statutory repre sentative of the employees Hageman supra I cannot find that Local 295 represented a majority of the employees of Respondent The only evidence regard ing that unions representation of Respondents employ ees are (1) Local 295 authorization cards for Sora Pera gine and Berndt dated 25 December 1983 and 5 January and 24 February 1984 respectively (2) monthly contn bution reports to that Union for February 1984 through August 1985 and (3) a payroll sheet for the week ending 7 April 1984 Bell testified that he began operations in 1980 and that Peragine was his first employee 11 Bell and Peragine worked together and Pete Koerner was then hired 12 Sora was hired in late 1981 William Berndt was hired in December 1983 13 Bell testified that when the Company had three em ployees presumably Peragine Koerner and Sora they did all types of work Thus there was a point at which Respondent employed only three people-Peragine Koerner and Sora Of those two were members of Local 295 Peragine and Sora and the Union would therefore have represented a majority of Respondent s employees However the record is silent concerning ex actly when Respondents unit consisted of only three workers What makes matters more confusing is that while Respondent reported to Local 295 for purposes of fund contributions that it employed only three and then two people during the period February 1984 to August 1985 14 its payroll for 7 April 1984 shows that it em 11 Peragine s card indicates that he began work in mid 1980 12 Koerner was still on the payroll as of April 1984 13 Based on the statement on his authorization card that he was hired 2 months before its execution la From February 1984 to May 1984 Peragine Sora and Berndt In June 1984 Peragine left From June 1984 to August 1985 Berndt and Sora were reported ployed seven or eight unit employees 15 of whom only two-Peragine and Sora-were members of Local 295 Local 295 Agent Guarino testified that in the fall of 1985 the Union first became aware that Respondent had more employees than were being contributed for It ac cordingly has not been proven that Local 295 represent ed a majority of the Respondents employees at any time Higdon supra However because Respondent was part of the multi employer bargaining unit Local 295 s majority status with respect to Respondent itself is immaterial as its em ployees would constitute only a small segment of the ap propriate unit I find based on the long bargaining histo ry between the Association and Local 295 that that Union was presumptively the majority representative of the employees in the Association unit I further find that the presumption of majority status was not rebutted Therefore Respondent was not free to withdraw recog nition or repudiate the bargaining agreement G & M Lath & Plaster Co 252 NLRB 969 979 (1980) Amado Electric 238 NLRB 37 fn 1 (1978) Authorized Air Condi tioning 236 NLRB 131 fn 2 (1978) In addition the Board has held that Section 8(f) is merely a preliminary step that contemplates further action for the development of a full bargaining relation ship Ruttmann Construction Co 191 NLRB 701 702 (1971) Higdon supra and that Congress intended that section to apply to an initial attempt by a union and an employer to commence such a relationship Brick layers Local 3 (Eastern Washington) 162 NLRB 476 478 (1966) The Board in that case added Thus the entire legislative history of Section 8(f)(1) is couched in terms of prehire ageeements a ref erence which can have no meaning in the situation where as here the parties are continuing an exist ing bargaining relationship under which employees have previously been hired Particularly is this so where as in this case the previous ageeement con tained a lawful union security provision Additional ly one of the most frequently cited portions of the legislative history of Section 8(f) reveals that the Congress envisioned its prehire provisions as apply ing only to the situation where the parties were at tempting to establish a bargaining relationship for the first time It thus appears that the Association Local 295 con tract embodying a long term bargaining relationship under which employees in the Association unit had pre viously been hired and regarding whom a union security clause had been applied is not subject to attack under Section 8(f) Williams Enterprises 212 NLRB 880 885 (1974) Dallas Building Trades 164 NLRB 938 943 (1967) As set forth above I find and conclude that in view of the collective bargaining agreement in existence the Union was entitled to an irrebuttable presumption of ma jonty status for the duration of the contract According 5 There was some question whether one was a supervisor and wheth er another was a clerical employee 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ly Respondent was not free to withdraw recognition from the Union or to repudiate the collective bargaining agreement in midterm By doing so Respondent violated Section 8(a)(5) and (1) of the Act Hageman Underground Construction supra at 63 Respondent asserts that after it repudiated its Associa tion Local 295 contract it properly entered into a pre hire agreement with Local 38 I reject that argument Even assuming that Respondent is an employer engaged primarily in the building and construction industry Sec tion 8(f) states that its provisions are not available if the contracting union has been assisted by any action of the employer I will find infra that Respondent assisted Local 38 by (1) making the initial contact with Local 38 (2) soliciting an employee to organize a meeting with Local 38 (3) making its premises available to a Local 38 representative for the purpose of holding a meeting to organize its employees and (4) contracting with Local 38 when it was not designed by an uncoerced majority of Respondents employees and while bound to maintain recognition of Local 295 during the term of the contract in violation of Section 8(a)(2) of the Act I accordingly find that Respondent could not have and did not lawfully enter into any contract or an 8(f) con tract with Local 38 D The Alleged Unlawful Assistance to Local 38 and Conversations with Employees The complaint alleges that Bell (1) solicited an em ployee to organize a meeting with other employees for the purpose of inducing them to abandon their support for Local 295 and encouraging them to join Local 38 and (2) interrogated an employee about a union meeting that employees had attended on or about the previous day In addition the General Counsel urges in his beef that I find that Respondent violated Section 8(a)(2) of the Act by making the initial contacts with Local 38 en couraging employees to support Local 38 and making its premises available to Local 38 Without reciting all the evidence set forth above it is clear and I find that Bell initiated the contact with Local 38 for the purpose of entering into an agreement with that Union I reject his testimony that he called Local 38 official Hertel because Local 38 contacted his workers at certain jobsites and told him (Bell) that they were inter ested in joining I cannot credit Bell s testimony because Hertel who I credit in this regard credibly stated that his only contact with the men was about 8 to 9 months before Bell s call to him and the contact consisted of his asking them who they worked for They answered truth fully but did not reply when Hertel asked if they were interested in joining a union It does not appear likely that Bell s employees were contacted by other Local 38 officials or representatives as Hertel would certainly have become aware of the contact and if they were as interested in Local 38 as Bell claimed Hertel would deft nitely have taken steps to organize them prior to the call from Bell 9 months later In addition if as Bell claims his employees were so interested in Local 38 before his call to Hertel (a) Bell would not have had to give Local 38 such a strong endorsement-telling them that the Company preferred Local 38 and would grow with rep resentation by the Union and they would be better off could attend school and receive better benefits and (b) employees would have known about Local 38 s benefits and would not have had to question Hertel at two meet rags concerning medical coverage Thus the catalyst for the contact with Local 38 was not the employees alleged interest in that Union but was Bell s intent as he told Hertel to start a new Com pany and sign with Local 38 and his admitted reason that he believed that the Company would grow with Local 38 That new Company was Bell Sheetmetal Cor poration which although incorporated 1 year earlier and not used was revived for the purpose of contracting with Local 38 After Bell met with Hertel and discussed wages bene fits and the cost to Respondent Bell told employee De Palma that Hertel wanted to speak with the employees Bell suggested that because De Palma was part of the group that was interested in Local 38 he (De Palma) should coordinate the meeting so that Bell would not be involved Bell then told Hertel that his meeting with em ployees would be arranged by De Palma The meeting was held at Respondents premises and Bell was told by Hertel that his employees supported Local 38 One day after the meeting Bell asked De Palma how did everything go? or what happened? or what s going on? and De Palma told him what hap pened and said that the workers decided to join Local 38 It is well settled that an employer violates Section (a)(2) of the Act when it renders unlawful assistance to a union The Supreme Court has held in Machinists Local 35 v NLRB 311 U S 72 (1940) that in finding such a violation there must be an inference that the employer s assistance denied the employees their right to complete and unhampered freedom in choosing a bargaining repre sentative without regard to their employers wishes It is clear that by making the initial contact with Local 38 Respondent made the choice of representative for the employees notwithstanding that they had already select ed Local 295 previously I accordingly find and con clude that Respondent violated Section 8(a)(2) of the Act Farmers Energy Corp 266 NLRB 722 (1983) enfd 730 F 2d 1098 (7th Cir 1984) Freeman C Gaffney Inc 205 NLRB 1012 1019 (1973) In addition by soliciting De Palma to organize the meeting with Local 38 and by encouraging its employees to support that Union Respondent assisted Local 38 in violation of Section 8(a)(2) Midwestern Mining 277 NLRB 221 (1985) Elias Mallouk Realty Corp 265 NLRB 1225 1229 (1982) Komatz Construction 191 NLRB 846 851 (1971) I also find that by making its premises available to a Local 38 representative for the purpose of holding a meeting to organize its employees Respondent violated Section 8(a)(2) of the Act I cannot find however that Bells questions to De Palma about the previous day s meeting with Local 38 constituted unlawful interrogation Under the circum stances of this case where I find that Bell was the cats BELL ENERGY MANAGEMENT CORP lyst for and engineered the representation by Local 38 and where he favored that union and encouraged his em ployees to join that union it cannot be said that his ques tioning of De Palma about a meeting that Bell helped ar range the result of which he already knew1° and the purpose of which (representation by Local 38) he sought is coercive interrogation that reasonably tended to interfere with the employees Section 7 rights Ross more House 269 NLRB 1176 (1984) The complaint also alleges that Respondent violated Section 8(a)(2) of the Act by executing a contract with Local 38 about 13 November 1985 containing a union security clause at a time when Local 38 was not desig nated by an uncoerced majority of Respondents employ ees When Respondent entered into the contract with Local 38 it was then a member of the Association and bound to the Association Local 295 contract which was then in effect and Local 295 was entitled to an irrebuta ble presumption of majority status at that time Thus by executing the agreement with Local 38 Respondent gave unlawful assistance to that Union in violation of Section 8(a)(2) of the Act because Local 38 did not rep resent an uncoerced majority of the employees of em ployer in the Association bargaining unit Independent Assn of Steel Fabricators 231 NLRB 264 275 (1977) Stockton Door Co 218 NLRB 1053 1055 (1975) Oilfield Maintenance Co 142 NLRB 1384 (1963) Because that agreement contained a union security clause Respondent also violated Section 8(a)(3) of the Act THE REMEDY Having found that Respondent Bell Energy Manage ment Corp Bell Sheetmetal Corporation B & E Sheet metal and Bell Heating and Air Conditioning Inc as alter egos and as a single employer engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and that it take cer tarn affirmative action to effectuate the policies of the Act Respondent shall be required to cease recognizing Local 38 and honoring its contract with Local 38 and shall be required to honor the contract it adopted be tween the Association and Local 295 Respondent shall also be required to make whole the employees employed by it in the bargaining unit and the funds established under the Association Local 295 collective bargaining agreement and Local 295 for any losses they may have suffered as a result of Respondents repudiation of the collective bargaining agreement with interest Fox Paint ing Co 263 NLRB 437 (1982) and cases cited there In terest is to be paid in on the amounts owing and is to be computed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962) 16 Before his question of De palms Hertel had already told Bell that at the meeting the employees supported Local 38 CONCLUSIONS OF LAW 179 1 Bell Energy Management Corp Bell Sheetmetal Corporation B & E Sheetmetal and Bell Heating & Air Conditioning Inc constitute a single employer and are alter egos of each other and at all times material have been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 295 and Local 38 are labor organizations within the meaning 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 employees employed by the employer members of the Association of Master Refrigeration and Air Conditioning Contractors Inc in the States of New York New Jersey and Connecticut excluding non working foremen plant guards office help sales or suprvisors as defined in the Act 4 At all relevant times Local 295 has been and is now the exclusive representative of all employees in the above described appropriate unit for the purposes of col lective bargaining 5 By failing and refusing to recognize and bargain with Local 295 and failing and refusing to apply the terms and conditions of the current collective bargaining agreement to the employees of Respondent in the bar gaining unit described above by repudiating the current collective bargaining agreement and by withdrawing rec ognition of Local 295 as the bargaining representative of its employees in the bargaining unit described above and by utilizing Bell Sheetmetal Corporation as a disguised continuance of other Respondent companies in an effort to evade its existing bargaining relationship and to evade its contractual and statutory obligations to Local 295 Respondent violated Section 8(a)(5) and (1) of the Act 6 By recognizing Local 38 as the collective bargaining representative of its employees by entering into and maintaining an agreement requiring employees to be members of Local 38 when Local 38 did not represent an uncoerced majority of the employees in an appropri ate unit by soliciting an employee to organize a meeting with other employees for the purpose of inducing them to abandon their support for Local 295 and encouraging them to join Local 38 by making the initial contacts with Local 38 by encouraging employees to support Local 38 and by making its premises available to Local 38 Respondent violated Section 8(a)(2) and (1) of the Act 7 By entering into and maintaining an agreement with Local 38 requiring membership in Local 38 as a condi tion of employment when Local 38 did not represent a majority of the employees in an appropriate unit Re spondent violated Section 8(a)(3) and (1) of the Act 8 The unfair labor practices of Respondent as de scribed above affect commerce within the meaning of Section 2(6) and (7) of the Act 9 Respondent has not violated the Act by interrogat ing an employee about a union meeting 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record I issue the following recommend edt7 ORDER The Respondent Bell Energy Management Corp Bell Sheetmetal Corporation B & E Sheetmetal and Bell Heating and Air Conditioning Inc Mahopac New York its officers agents successors and assigns shall 1 Cease and desist from (a) Giving assistance and support to Sheet Metal Workers International Union Association Local Union 38 or any other labor organization by soliciting employ ees to organize meetings with other employees for the purpose of inducing them to abandon their support for Local 295-295C International Union of Operating Engi neers Air Conditioning & Refrigeration AFL-CIO and encouraging them to join Local 38 by making the initial contacts with Local 38 by encouraging employees to support Local 38 and by making its premises available to Local 38 or in any other manner proscribed by Section 8(a)(2) of the Act (b) Recognizing or contracting with Local 38 as the representative of any of its employees for purposes of collective bargaining unless and until the labor organiza tion has been certified by the National Labor Relations Board as the exclusive representative of such employees (c) Giving effect to performing or in any way enforc ing its contract with Local 38 effective 1 July 1984 to 30 June 1987 or any modifications extension or renewal thereof or any other contract agreement or understand ing entered into with Local 38 unless and until said labor organization shall have been certified by the Board as the exclusive representative of the employees (d) Failing and refusing to recognize and bargain col lectively with Local 295 as the exclusive bargaining rep resentative of its employees in the bargaining unit con sisting of All employees employed by the employer members of the Association of Master Refrigeration and Air Conditioning Contractors Inc in the States of New York New Jersey and Connecticut excluding non working foremen plant guards office help sales or supervisors as defined in the Act (e) Failing and refusing to apply the terms and condi tions of the current collective bargaining ageement be tween Local 295 and the employer Association to the employees of Respondent in the bargaining unit de scribed above (f) Repudiating the current collective bargaining agree ment and withdrawing recognition of Local 295 as the bargaining representative of its employees in the bargain ing unit described above (g) Utilizing Bell Sheetmetal Corporation or any other company as a disguised continuance of other Companies 17 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 of Respondent in an effort to evade its existing bargain ing relationship and evade its contractual and statutory obligations to Local 295 (h) 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) Forthwith implement and apply the terms and con ditions of the contract between Local 295 and the em ployer Association from 1 April 1974 to 31 March 1987 to its employees in the bargaining unit described above (b) Make whole its employees in the bargaining unit and Local 295 for lost dues and for any losses of wages or health benefits coverage as the result of repudiating the terms of the contract with interest (c) Make whole its employees in the bargaining unit by paying to the various fringe benefit funds payments that should have been made pursuant to the provisions of the agreement between Local 295 and the employer Associa tion (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 its Mahopac New York facility copies of the attached notice marked Appendix 18 Copies of the notice on forms provided by the Regional Director for Region 2 after being signed by the Respondents author ized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 8 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation a] 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give assistance and support to Sheet metal Workers Internation Union Association Local Union 38 or any other labor organization by soliciting employees to organize meetings with other employees for the purpose of inducing them to abandon their sup- port for Local 295-295C International Union of Operat BELL ENERGY MANAGEMENT CORP 181 ing Engineers Air Conditioning & Refrigeration AFL- CIO and encouraging them to join Local 38 by making the initial contacts with Local 38 by encouraging em ployees to support Local 38 and by making its premises available to Local 38 or in any other manner proscribed by Section 8(a)(2) of the Act WE WILL NOT recognize or contract with Local 38 as the representative of any of our employees for purposes of collective bargaining unless and until the labor organs zation has been certified by the National Labor Relations Board as exclusive representative of such employees WE WILL NOT give effect to perform or in any way enforce our contract with Local 38 effective 1 July 1984 to 30 June 1987 or any modification extension or re newal thereof or any other contract agreement or un derstanding entered into with Local 38 unless and until the labor organization shall have been certified by the Board as the exclusive representative of the employees WE WILL NOT fail or refuse to recognize and bargain collectively with Local 295 as the exclusive bargaining representative of our employees in the bargaining unit consisting of All employees employed by the employer members of the Association of Master Refrigeration & Air Conditioning Contractors Inc in the States of New York New Jersey and Connecticut excluding non working foremen plant guards office help sales or supervisors as defined in the Act WE WILL NOT fail or refuse to apply the terms and conditions of the current collective bargaining agreement between Local 295 and the employer Association to our employees in the bargaining unit described above WE WILL NOT repudiate the current collective bargain ing agreement and withdraw recognition of Local 295 as the bargaining representative of our employees in the bargaining unit described above WE WILL NOT utilize Bell Sheetmetal Corporation or any other company as a disguised continuance of other of our Companies in an effort to evade our existing bar gaining relationship and evade our contractual and statu tory obligations to Local 295 WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL forthwith implement and apply the terms and conditions of the contract between Local 295 and the employer Association effective from 1 April 1974 to 31 March 1987 to our employees in the bargaining unit described above WE WILL make whole our employees in the bargaining unit and Local 295 for lost dues and for any losses of wages or health benefit coverage as the result of repudi ating the terms of the contract with interest WE WILL make whole our employees in the bargaining unit by paying to the various fringe benefit funds pay ment that should have been made pursuant to the provi sions of the agreement between local 295 and the em ployer Association BELL ENERGY MANAGEMENT CORP BELL SHEETMETAL CORPORATION B & E SHEETMETAL AND BELL HEATING AND AIR CONDITIONING INC