Milford Services, Inc., Milford Landscaping & Maintenance, Inc., Milford Nurseries, Inc., And Eastern Leasing, Inc.

684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Milford Services, Inc., Milford Landscaping & Maintenance, Inc., Milford Nurseries, Inc., and Eastern Leasing, Inc. and Laborers' Interna- tional Union of North America , AFL-CIO, Local 665. Case 39-CA-3713 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On January 4, 1989, Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, as did the General Counsel. The Charging Party also filed a brief in support of the judge's decision and the Respondent 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,2 and conclusions,' and to adopt the recommended Order as modified.4 We affirm the judge's finding that Section 10(b) of the Act does not bar further proceedings be- cause we find the Union was first put on notice of a violation of the Act on July 1, 1987, when Union Representative Nobili visited the Milford Green i The Respondent moved to dismiss the Charging Party's brief as un- timely We deny the motion in view of the fact that the Charging Party's brief was timely filed pursuant to an extension of time granted the Charg- ing Party to file a brief by March 21, 1989 See the Board's Rules and Regulations, Sec 102 46 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 reversing the findings However, the Board corrects four factual errors of the judge regarding dates Contrary to certain findings of the judge, Milford Nurseries went bankrupt in 1984, George Kijewski signed for Milford Landscaping in 1975 the Acceptance of Agreements (binding the entity to a union con- tract), and the Associated General Contractors contract expires in 1989, prior to the expiration of the Connecticut Construction Industries Asso- ciation contract in 1991 3 We find no merit in the General Counsel's exception that the unit de- scription contained in the judge's Conclusion of Law 4 should be expand- ed to cover all laborers, not just those in the construction division of Mil- ford Landscaping & Maintenance We do, however, modify Conclusion of Law 4 and the recommended Order so that the unit is defined as fol- lows All laborers employed by Milford Services, Inc, and its alter ego, Milford Landscaping & Maintenance , Inc , at construction jobsites, excluding all other employees, professional employees , guards and supervisors as defined in the Act 4 We modify the order to identify the entities constituting the named Respondents as alter egos, as well as a single employer, and substitute unit language that describes the unit by type of jobsite, not administrative division We also substitute a notice that more closely conforms with the judge's remedy and our Order job, which was being performed by employees of Milford Landscaping & Maintenance, Inc. The Re- spondent has provided no basis to indicate that the Union was on notice that Milford Landscaping & Maintenance employees had performed other work in a manner that would give notice of its alter ego status. The information that the Union received in 1982 relating to Milford Landscaping's apparent in- volvement in double-breasted activity is irrelevant, because the other company involved was Milford Nurseries, not Milford Services, and that dispute in 1982 was resolved pursuant to a settlement. Subse- quent problems with what was perceived to be Milford Services' use of nonunion labor and a dis- cussion about double-breasted operations in 1985 were not sufficient to put the Union on notice of the mingling of the two companies prior to July 1, 1987. We also agree with the ' judge, for the reasons stated by him, that Milford Services, Inc., and the construction division of Milford Landscaping & Maintenance, Inc. constitute a single employer. However, in affirming his conclusion that the la- borers employed in these two operations are in- cluded in a single unit covered by the Union's bar- gaining agreement with Milford Services, we spe- cifically rely on his finding that these two Employ- ers are also alter egos with regard to this aspect of their operations. We note that the judge incorrectly found that Joseph Kijewski owned Milford Landscaping & Maintenance at all relevant times during this pro- ceeding. The evidence shows, however, that Ki- jewski did not reacquire formal ownership of Mil- ford Landscaping from his wife until several months after the Union became aware of Milford Landscaping's abrogation of the contract. We find, however, that even during Joanna Kijewski's period of formal ownership of Milford Landscap- ing the active control of both companies was in the hands of Joseph Kijewski. This satisfies the element of common ownership. See Kenmore Contracting Co., 289 NLRB 336 (1988). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Milford Services, Inc., and Milford Landscaping & Maintenance, Inc., Milford, Con- necticut, a single employer and alter egos of one another, their officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). 294 NLRB No. 53 MILFORD SERVICES "(a) Failing and refusing to bargain collectively with the Connecticut Laborers' District Council on behalf of its local affiliates, Laborers' International Union of North America, AFL-CIO, by failing or refusing to apply the terms and conditions set forth in the collective-bargaining agreement the District Council has with the Labor Relations division, The Associated General Contractors of Connecticut, Inc., and in amendments or successor agreements thereto (the AGC contract) and also in the collec- tive-bargaining agreement the District Council has with Connecticut Construction Industries Associa- tion, Inc., and in amendments or successor agree- ments thereto (the CCIA contract). to the employ- ees in the following appropriate unit: All laborers employed by Milford Services, Inc., and its alter ego, Milford Landscaping and Maintenance, Inc., at construction jobsites, excluding all other employees, professional employees, guards and supervisors as defined in the Act." 2. Substitute the following for paragraph 2(c). "(c) Post at their place of business and at each of their construction jobsites copies of the attached notice marked `Appendix.'3 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material." 3. Substitute the attached notice for that of the administrative law judge. 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. WE WILL NOT fail and refuse to recognize and bargain in good faith with Connecticut Laborers' District Council of the Laborers' International Union of North America as the exclusive repre- sentative of our employees or fail or refuse to honor collective-bargaining agreements applicable to those employees in a unit consisting of: 685 All laborers employed by Milford Services, Inc., and its alter ego, Milford Landscaping and Maintenance, Inc., at construction jobsites; excluding all other employees, professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL maintain and give full effect to the contracts the Laborers' District Council has with the Associated General Contractors of Connecti- cut, Inc., and with the Connecticut Construction Industries Association, Inc., and any amendments or subsequent agreements with those parties cover- ing the unit employees, retroactive to June 29, 1987, and including but not limited to: , (1) Making whole all unit employees, with interest, for any loss of wages and benefits they incurred because of our failure to apply or maintain the established terms of such agreements, including hiring hall applicants who should have been hired. (2) Making required payments to the various trust funds established by these collective-bar-, gaining agreements. (3) Reimbursing our employees with inter- est, for any actual costs they may have in- curred, which ensued from our failure to make required contributions to contractually estab- lished trust funds. MILFORD SERVICES, INC., AND ITS ALTER EGO, MILFORD LANDSCAPING & MAINTENANCE, INC. Michael Marcionese, Esq., for the General Counsel. Edward F. O'Donnell, Esq. and Frederick L. Dorsey, Esq. (Siegel, O'Connor, Schiff Zangari & Rainen, P.C.), of Hartford, Connecticut, for the Respondent. John M. Creane, Esq., of Milford, Connecticut, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint, as amended at the hearing, alleges that the four companies named in the caption, Milford Services, Inc., Milford Landscaping & Maintenance, Inc., Milford Nurseries, Inc., and Eastern Leasing, Inc., comprise a single business enterprise and that this enterprise has, in violation of Section 8(a)(l) and (5) of the National Labor Relations Act (the Act) abrogated and refused to abide by the terms of collective-bargaining agreements cover- ing building and construction 'laborers in its employ. In 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the alternative, these companies are alleged to be alter egos of each other. Counsel representing these companies have denied that they constitute a single employer or that they are alter egos of each other. They also have asserted, as an affirm- ative defense, that further proceedings are time barred by reason of the limitations contained in Section 10(b) of the Act. The hearing was held in Hartford, Connecticut, on August 22, 23, and 24, 1988. On the entire record, in- cluding my observation of the demeanor of the wit- nesses, and after due consideration of the briefs filed by the General Counsel, by the Charging Party, and by the Milford Services, Inc., et al., I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS The pleadings establish, and I find, that each of the four companies named above is a nonretail concern that meets the nonretail standard set by the Board for assert- ing jurisdiction. I further find, based on the pleadings, that the Unions alleged as labor organizations in the complaint are labor organizations as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The facts are not in material dispute. As the names of several of the corporations involved are so similar to each other and also to names used by a sole proprietor- ship, and in order to keep them in focus, I have, for the most part, used the full name of each business entity in this decision. A. The Business Entities and Labor Relations History George Kijewski owns the four corporations involved in this case. He started a landscaping business in 1968 as a sole proprietor, doing business as Milford Landscaping & Maintenance. He testified that he has, since then, in- corporated and reincorporated his business and changed its name . He was unable to recall when he first incorpo- rated the business or reincorporated it or changed its name. The following chronology, as disclosed mostly by documentary material in evidence, throws some light on the changes. On October 8, 1971, Kijewski, as or on behalf of Mil- ford Landscaping, signed a document entitled, "Con- necticut Laborers' District Council Agreements Building and Site-Heavy, Highway and Tunnel-Acceptance of Agreements and Declaration of Trust. That document, and others substantially identical to it, are referred to below as the Acceptance of Agreements. Therein, it is recited that the "undersigned Employer" approves the agreement dated May 26, 1975, between the Associated General Contractors of Connecticut, Inc., and the Con- necticut Laborers' District Counsel on behalf of its affili- ates. (The Charging Party is one of those affiliates.) That Acceptance of Agreements also related that the under- signed Employer, "Milford Landscaping" approves any successor agreement to the May 26, 1975 agreement and that the agreements shall continue in effect with terms as they "shall be set out from time to time" unless the un- dersigned Employer "gives the union notice of desired change or termination of a particular collective bargain- ing agreement in keeping with the application notice pro- visions contained therein." No such notice was ever given. The current agreement between the Associated General Contractors of Connecticut, Inc., and the Labor- ers' District Council expires on March 31, 1991. That contract is commonly referred to as the AGC contract and it covers road construction work. The October 8, 1975 Acceptance of Agreements form also applied to the collective-bargaining agreement be- tween the District Council and the Connecticut Con- struction Industries Association. That agreement is com- monly referred to as the CCIA contract. It covers build- ing construction work; the most recent one expires on the same date as the AGC contract. No termination notice was ever given as to the CCIA contract. On March 24, 1976, Kijewski signed an Acceptance of Agreements as or on behalf of "Milford Landscaping & Maintenance." No termination notice was ever given as to the AGC or CCIA contract referred to in that docu- ment. Kijewski testified that he signed the October 8, 1975 Acceptance of Agreements in order to be able to hire la- borers on the job he was performing that fall for a con- tractor named Fusco, and that he signed the March 24, 1976 Acceptance of Agreements in order to have labor- ers on that job when it resumed in the spring of 1976. He testified that he did not recall if he had done more than one job as a union contractor under the name "Milford Landscaping." On June 13, 1977, Kijewski, as general manager of Milford Nurseries, Inc. signed a document entitled, "In- terim Agreement." Therein, Milford Nurseries, Inc. agreed with the Connecticut Laborers' District Council on behalf of its affiliates to keep in force the AGC and CCIA contracts then in effect and to apply the terms of successor AGC and CCIA contracts. The record does not disclose the circumstances under which that Interim Agreement was signed. Kijewski testified that he thought he started Milford Nurseries, Inc. in about 1980. As just noted, he signed an Interim Agreement in 1977 on behalf of that company. On February 23, 1978, Kijewski signed an Acceptance of Agreements on behalf of Milford Nurseries, Inc. The record does not disclose the circumstances relating to his signing that document. Kijewski testified that in the early 1980s he incorporat- ed his landscaping business, using the name Milford Landscaping & Maintenance, Inc. The reason therefor is discussed in another section below. On September 18, 1981, Kijewski signed another Ac- ceptance of Agreements form-this time on behalf of Milford Nurseries, Inc.; again the record does not reflect the attendant circumstances. In 1982, Local 665 of the Laborers International Union, the Charging Party in this case, filed a grievance against Milford Nurseries, Inc., which claimed that it had violated the 1981-1984 AGC contract. Local 665 Busi- ness Manager Ronald Nobili testified that Kijewski re- MILFORD SERVICES sponded to that grievance by asserting that the work in dispute was being done by "Milford Landscaping." Nobili testified that he "never bought" that explanation or Kijewski's argument that "there were two compa- mes."The Local 665 agreement was settled on October 14, 1982, when Milford Nurseries, Inc., signed a docu- ment entitled, "Agreement." Therein, the Agreement is referred to as a side agreement to the 1981-1984 AGC contract. Milford Nurseries, Inc. promised, inter alia, to furnish Local 665 with a list of all jobs it does in Local 665's area and to pay a lump sum as compensation to hiring hall applicants who would have been referred from Local 665's hiring hall In the next 2 or 3 years, Nobili had several discussions with Kijewski. These had to do with "typical [contract] enforcement problems" involving the use of nonbargain- ing unit employees on jobs. Nobili's testimony is that these matters had come to his attention when stewards informed him that "the company" was on jobs with non- unit employees. Nobili also testified that he had no idea then that "Milford Landscaping and Maintenance, Inc." existed or that it was a separate corporation with its own employee payroll containing nonunit employees. His tes- timony was that he was of the belief that Kijewski had but one company and that its name began with the name "Milford " Milford Landscaping & Maintenance, Inc is principal- ly involved in the business of providing interior and exte- rior horticultural maintenance services at existing com- mercial buildings. The exterior services include grass cut- ting and spraying chemicals. The State of Connecticut issued a certificate of disso- lution, which certified that Milford Landscaping & Main- tenance, Inc. was dissolved as of March 15, 1985, for "failure to file [two] successive returns." As described below, however, Kijewski has since submitted bids and been awarded work while using the name Milford Land- scaping & Maintenance, Inc In 1984, Milford Nurseries, Inc. went bankrupt and is no longer in business . Its name was included in the cap- tion of this case presumably for background purposes. The General Counsel seeks relief based on the contention that "unit work for Milford Landscaping [& Mainte- nance, Inc.]" was done in violation of AGC and CCIA contracts. In the spring of 1985, Nobili telephoned Kijewski at the start of the construction season to express the hope that their relationship would be a good one. In that con- versation, Kijewski told Nobili that Nobili was "a good educator" in that he had educated Kijewski as to how to set up two distinct companies, one of which could "take on the union work " Nobili responded by saying that he did not think it was possible for Kijewski to,have two separate companies and that he hoped, in any event, that there would be no need to "have any enforcement pro- ceeding," an obvious reference to the filing of a griev- ance. In their telephone conversation, Kijewski informed Nobili that he had a person, Donald Dickson, who would oversee the union work. About a month later, Nobili met Kijewski on a jobsite where Kijewski introduced Dickson to Nobili. Kijewski also told Nobili then that the name of the new company 687 was Milford Services, Inc. From that point on, Dickson or his secretary telephoned Nobili's office whenever re- ferrals were requested from Local 665's hiring hall. Local 665 has had no interest in representing employ- ees who perform interior or exterior horticultural mainte- nance services at existing commercial buildings. B. The Milford Green Job On July 1, 1987, while driving in Milford, Connecti- cut, Nobili saw 8 to 10 laborers laying sod at the Milford Green, a public area. He also observed a truck with the word "Milford" on it, together with a logo that he rec- ognized as one used by Kijewski. He also recognized Ki- jewski's son, Joe, as one of the laborers. As he began speaking with them, Donald Dickson arrived and asked Nobili what he was doing there. In response, Nobili asked Dickson what he was doing there, stating that he had just been told by one of the laborers that the job was nonunion. Dickson answered that he just happened to be driving by. The General Counsel placed in evidence a $15,000 contract awarded by the city of Milford to Milford Landscaping & Maintenance, Inc. for re-sodding Milford Green (Kijewski gave a confused account that the work was done under an oral subcontract.) The laborers on its payroll who performed the work under that contract re- ceived $6 an hour until inspectors from the State of Con- necticut investigated The laborers who worked the last 3 days of that job had their hourly rate increased for those days from $6 to $13.50, the prevailing rate under the Davis-Bacon Act. Kijewski testified that laborers in the employ of Mil- ford Services, Inc. typically perform landscaping func- tions at construction sites where they use shovels and rakes to spread large quantities of topsoil to grade. That was essentially the type of work being done at Milford Green. Donald Dickson testified that the laborers-in the construction division of -Milford Landscaping & Mainte- nance, 'Inc. perform the same type of work that is done by laborers in the employ of Milford Services, Inc. The divisional operations of the former are discussed in the next section. C. The Single Employer/Alter Ego Issue The General Counsel contends that Kijewski's corpo- rations comprise a single employer for purposes of the Act or, in the alternative, that his corporations are alter egos of each other. In particular; Milford Landscaping & Maintenance, Inc. and Milford Services, Inc. are alleged to be a single employer, or alter ego, who have abrogat- ed the AGC contract (to which Milford Services, Inc. is bound) by having failed to apply that contract to the la- borers on the Milford Green job. The answer, as amend- ed, avers essentially that Milford Landscaping & Mainte- nance, Inc. can lawfully, employ laborers to perform such work at wage rates and benefits it itself sets, as it is a separate entity not bound to the AGC contract. The General Counsel has presented other contentions as alter- natives and they are'also discussed below. Kijewski has owned and controlled the four companies named above and other companies that he operated as a 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sole proprietor. It appears that the first corporation he set up was Milford Nurseries, Inc. in 1977 as' he signed collective-bargaining agreements using that corporate name then. In 1980, Kijewski set up another corporation, Milford Lanscaping & Maintenance, Inc. It appears that that cor- poration was set up to render the interior and exterior horticultural maintenance services that he had been doing previously as a sole proprietor . He testified that he estblished this corporation in 1980 as part of a divorce settlement whereby his divorced wife would take over that business and he would run Milford Nurseries, Inc. In fact, however, his ex-wife never became involved in any of the operations and he continued in control of all, as before. He and his former wife have since remarried and in late 1987 he resumed sole ownership of Milford Landscaping & Maintenance, Inc. As noted earlier, Mil- ford Nurseries, Inc. went bankrupt in 1987 and in effect was superseded by Milford Services, Inc. The point-to all the foregoing and to the recital earli- er as to Kijewski having begun operations in 1968 as a .sole proprietor and doing business under various trade names very similar to the corporate names-is that all those arrangements involved essentially internal changes and even Kijewski had great difficulty in trying to track them. From outward appearances, the name "Milford" was prominent as was the Milford logo. As noted below, a significant factor in deciding a single employer or alter ego issue involves the control of labor relations policies. On that point, Kijewski's testimo- ny discloses that Milford Services , Inc. performs "union work"; the employees on its payroll are paid and receive benefits, all according to the provisions of the AGC or CCIA contracts. Employees on the payroll of Milford Landscaping & Maintenance, Inc. are paid within pay ranges set by Kijewski for their respective job classifica- tions, and receive fringe benefits as determined by him; managers under Kijewski have discretion to hire employ- ees at wage rates within the pay ranges he has set. Eastern Leasing, Inc. is a corporation solely owned and controlled by Kijewski. It has title to the trucks, equipment, and real estate used jointly by Milford Land- scaping & Maintenance, Inc. and Milford Services, Inc. All of Kijewski's corporations occupy the same office, use the same logo, share the same clerical staff, and employ the same accountant who allocates costs among the respective corporations. Thus, the accountant has de- termined that $1000 a month is to be charged against Milford Services, Inc. and credited to Milford Landscap- ing & Maintenance, Inc. to compensate the latter for clerical services rendered Milford Services, Inc. by em- ployees on the latter's payroll. No record is kept of the actual time they spend performing such services. No written lease exists for the use by either of these corpora- tions of the real estate. The trucks used by them are maintained by mechanics listed on the payroll of Milford Landscaping & Maintenance, Inc. As to employee interchange, the record discloses that, throughout 1987, Milford Services, Inc. had a total of 60 employees on its payroll, most with total earnings of sev- eral thousand dollars or less. As the record indicates that these employees were for the most part referred from hiring halls, it is obvious that most were short-term em- ployees. Only seven Connecticut employees on its pay- roll earned in excess of $15,000. Three of these (George Kijewski, Construction Manager Donald Dickson, and Chief Estimator Michael Reader) regularly performed duties also for Milford Landscaping & Maintenance and two more were also on the latter's payroll for 1987. Ki- jewski and Dickson testified that when Milford Services, Inc. had no "union" work its long-term employees were transferred to work for Milford Landscaping & Mainte- nance, Inc. Dickson was construction manager of Milford Serv- ices, Inc. and also manager of the construction division of Milford Landscaping & Construction Maintenance, Inc. The latter has three other divisions. One consists of its mechanics who service the trucks owned by Eastern Leasing, Inc. and used by both Milford Services, Inc. and Milford Landscaping & Maintenance, Inc. Another division is its interior division and finally there is the grounds and maintenance division . The interior division is responsible for furnishing and maintaining horticultural items inside commercial buildings; the grounds and main- tenance division is responsible for maintaining exterior landscapes of commercial buildings , by cutting grass and spraying chemicals and similar work. Most of the 400- 500 customers of Milford Landscaping & Maintenance, Inc. were serviced by the interior division and the grounds and maintenance division. Its construction divi- sion had, in 1987, about the same number of construction contracts as did Milford Services, Inc. Milford Landscaping & Maintenance, Inc. relies on various factors to support its view that it is not a single integrated business enterprise with Milford Services, Inc. Thus, it points out that it follows a definite procedure in interviewing job applicants whereas Milford' Services, Inc. obtains most of its employees by way of referrals from union hiring halls; it has a separate disciplinary pro- cedure; it has a different payroll and different supervisors (except for Construction Manager Dickson and Chief Es- timator Reader); and it does not bargain collectively with any union. The General Counsel's view is that sev- eral of those very differences point up the violations of the Act alleged in the complaint. D. Analysis The General Counsel and the Union contend, in es- sence, that Kijewski has set up a "double-breasted" oper- ation to enable him to evade , whenever possible, the ob- ligations Milford Services, Inc. has under its AGC and CCIA contracts. Milford Landscaping & Maintenance, Inc. contends essentially that, as it is much larger than Milford Services, Inc. and has multifaceted operations, it is an entity separate and distinct from Milford Services, Inc. and thus can lawfully perform the same type of work, as a nonunion subcontractor, that Milford Serv- ices, Inc. performs. Before addressing those contentions, I will discuss briefly several other contentions submitted by the Gener- al Counsel. The General Counsel urges that Milford Landscaping & Maintenance, Inc. was bound to the current AGC and MILFORD SERVICES CCIA contracts by virtue of both its having signed Ac- ceptance of Agreements in 1975 and 1976 and also its not having given any notices of termination as to any renew- als of these contracts. The evidence before me, however, indicates that Kijewski was a sole proprietor doing busi- ness as "Milford Landscaping" until he incorporated the business in 1980. I note too that the 1975 and 1976 Ac- ceptances were not signed by any corporation. I note also that Milford Landscaping & Maintenance, Inc. has been dissolved by the State of Connecticut and that a possible result thereof is a reversion to the sole propri- etorship. Cf. 19 Am.Jur.2d, Corporations § 2282-2907. But cf. also Carpet City Mechanical Co., 244 NLRB 1031, 1035 (1979); and F & W Oldsmobile, 272 NLRB 1150 (1984). The General Counsel has also urged that Milford Services, Inc. is 'the successor to Milford Nurseries, Inc. and thereby bound to honor the union contracts or that Milford Nurseries, Inc., Milford Services, Inc., and Mil- ford Landscaping & Maintenance, Inc. together consti- tute them as the successor to the "original Milford Land- scaping which signed the first contract with the Union in 1975." No useful purpose is served by exploring those contentions as Milford Services, Inc. admittedly is direct- ly bound to the AGC and CCIA contracts. To return to the basic issue, the General Counsel and the Union assert that Milford Services, Inc. and Milford Landscaping & Maintenance, Inc. comprise a single inte- grated enterprise in the performance of road landscaping and building construction landscaping work and thus cannot lawfully function as a double-breasted operation. The General Counsel separately offers an alter ego argu- ment in asserting that the evidence establishes that Ki- jewski set up the double-breasted operation to evade contract commitments to the Union. Milford Landscap- ing & Maintenance, Inc. asserts that it is not a single em- ployer with or alter ego of Milford Services, Inc. and also that, even were both found to be a single employer, the employees of both do not constitute a single appro- priate bargaining unit. The principles governing the issues raised by the fore- going contention are clear. Thus, the Board has stated in Walter N. Yoder & Sons, 270 NLRB 652 fn. 2 (1984): A "double-breasted" operation is one in which a contractor operates two companies, one unionized and the other nonunionized. Depending on how the companies are structured and operated , each may be a separate corporation or else both may be so interrelated that they constitute a single employer or one may be the alter ego of the other. A collec- tive-bargaining contract signed by one of the com- panies would not bind the other if each were a sep- arate corporation, but would bind the other if both constituted a single employer and the employees of both companies constitute a single appropriate bar- gaining unit or the nonsignatory company is an alter ego of the signatory company. See also Peter Kiewit Sons, Inc., 231 NLRB 76 (1977); and Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988), for detailed discussions of the single employer-single bar- 689 gaining unit issue. See Kenmore Contracting Co., 289 NLRB 336 (1988), for a detailed discussion of the alter ego issue. In Geo. V. Hamilton, supra at 1337, the Board stated that the standards for determining the existence of a single employer relationship are well settled and it sum- marized them as follows: In determining whether two or more businesses are sufficiently integrated so that they may be fairly treated, for jurisdictional and other purposes, as a single enterprise [there are] four principal factors (1) common management; (2) centralized control of labor relations; (3) interrelation of operations; and (4) common ownership or financial control. .. . [N]o single criterion is controlling, although it con- siders the first three, which evidence operational in- tegration, more critical than the fourth, common ownership. The Board went on to state in that case that, of the above-mentioned first three criteria relating to operating integration, particular emphasis has been placed on cen- tralized control of labor relations. In determining alter ego status, the Board considers whether companies have substantially identical owner- ship, management, business purpose, operations, custom- ers, equipment, and supervision, together with the motive of an employer. Kenmore Contracting Co., supra. Kijewski owns and is president of both Milford Land- scaping & Maintenance, Inc. and Milford Services, Inc. It is helpful now to focus clearly on the different ap- proaches the parties take as to the other relevant factors. Milford Landscaping & Maintenance, Inc. points out that its principal business in installing and maintaining horti- cultural displays inside commercial buildings (via its inte- rior division) and in servicing the lawns outside commer- cial buildings (via its grounds and maintenance division). The great bulk of its customers utilize these operations. Only some six to eight companies in 1987 engaged its construction division as a subcontractor. The General Counsel and the Union put aside the work done by the interior division and the grounds and maintenance division. Instead, they concentrate on draw- ing parallels between the functions of the. construction division and the functions of Milford Services, Inc. The core issue is, as framed by the General Counsel and the Union, whether or not the operations of Milford Landscaping & Maintenance, Inc. in its construction di- vision is with Milford Services, Inc., a single employer or its alter ego. Both had the same manager, Dickson; both perform the same type work; both were subject to the same individuals who controlled these labor policies, Kijewski and Dickson; both interchanged employees and supervisory personnel. The only difference is that the construction division of Milford Landscaping & Mainte- nance, Inc. was established to operate as a nonunion entity, whereas Milford Services, Inc. honored its AGC and CCIA contracts. The intent to operate as a nonunion company does not, without more, manifest an unlawful purpose, but in context with the operations of its union 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD counterpart is further evidence of alter ego status. See Advance Electric, 268 NLRB 1001, 1004 (1984). All the laborers employed in the construction division of Milford Landscaping & Maintenance, Inc. perform substantially the same type of work at building construc- tion or road construction sites as do the laborers em- ployed by Milford Services; they are commonly super- vised, interchange with them, and are employed by a company that is owned and controlled by the same indi- vidual who owns and controls Milford Services, Inc. In view of the fact that these companies share the same fa- cilities and vehicles, have the same logo and possess other identical attributes and as their basic difference is that the laborers of Milford Landscaping & Maintenance Inc.'s construction division are nonunion whereas the la- borers of Milford Services, Inc. are represented, I find that Milford Landscaping & Maintenance, Inc., in its op- eration of its construction division is, with Milford Serv- ices, Inc., a single employer within the meaning of the Act. To hold, as Milford Landscaping & Maintenance, Inc. would have me hold, that the operations of its other divisions should be controlling in deciding the single em- ployer issue is to give paramount consideration to form. For essentially the same reasons, I fmd that the laborers in the construction division of Milford Landscaping & Maintenance, Inc. and the laborers employed by Milford Services, Inc. constitute a unit appropriate for purposes of collective bargaining. Under the principles stated above, I thus find that Mil- ford Landscaping & Maintenance, Inc. was bound to the AGC and CCIA contracts of Milford Services, Inc., and its failure to honor them constitutes an unfair labor prac- tice violative of Section 8(a)(1) and (5) of the Act. The evidence before me also supports a finding that the former is the alter ego of the latter . The cryptic remark by Kijewski to Nobili in 1985 that he has been educated as to how to operate two companies, when viewed in context with the foregoing analysis and with Dickson's asking Nobili what he was doing at the Milford Greens job and when viewed also in relation to Kijewski's stated intent to have a nonunion operation-all establish a strong prima facie showing that it was Kijewski's intent, in operating Milford Landscaping & Maintenance, Inc.'s construction division, to avoid the obligations Milford Services, Inc. has under the AGC and CCIA contracts. E. The 10(b) Issue Milford Landscaping & Maintenance, Inc. separately contends that the statute of limitations set out in Section 10(b) of the Act bars further proceedings here. It con- tends that the Union was on notice in 1985 , long before the start of the limitations period, that Kijewski would operate a nonunion company alongside his union compa- ny. No evidence was offered by it, however, to establish that it was doing so to the Union's knowledge until July 1987. Thus, the evidence fails to sustain the Section 10(b) defense. See Viola Industries, 286 NLRB 306 (1988). CONCLUSIONS OF LAW 1. Milford Landscaping & Maintenance, Inc. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Milford Services, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Milford Landscaping & Maintenance, Inc., via its construction division, and Milford Services, Inc. are a single employer for purposes of the Act and alter egos of each other. 4. All laborers employed in the construction division of Milford Landscaping & Maintenance, Inc. and em- ployed by Milford Services, Inc., excluding all other em- ployees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for collective bargaining. 5. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 6. Milford Landscaping & Maintenance, Inc. has com- mitted an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act by having abrogated and having failed and refused to honor the AGC and CCIA contracts covering its employees employed in the unit described in paragraph 4 above, which contracts are binding on it as a single employer with, and alter ego of, Milford Services, Inc. 7. The processing of the allegations of the complaint is not barred by Section 10(b) of the Act. REMEDY Milford Landscaping & Maintenance, Inc. and Milford Services, Inc., as a single employer, shall be ordered to cease and desist from engaging in conduct undermining their obligation to honor the AGC and CCIA contracts and to instead give full force and effect to these con- tracts and to amendments and subsequent agreements thereto with respect to laborers they employed, retroac- tive to June 29, 1987, in the following unit, appropriate for collective bargaining: All laborers employed by them as a single employer at construction jobsites, excluding all other employ- ees, professional employees, guards and supervisors as defined in the Act. As a single employer, these companies will be required to take the actions necessary to fulfill these contractual commitments, including but not limited to: (1) Reimbursing former and current employees for any loss of wages or benefits they may have incurred since June 29, 1987, by reason of the failure of these compa- nies to apply to those employees the established terms and conditions of the AGC and CCIA contracts , with in- terest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (2) Reimbursing those employees for actual costs they incurred (such as payments to health care providers and to third party insurees) by reason of the failure of those companies to make required contributions to agreed-on MILFORD SERVICES health care and insurance plans, with interest as comput- ed. New Horizons, supra. (3) Reimbursing hiring hall applicants (who would have been employed but for the failure of these compa- nies to represent, since June 29, 1987, referrals as provid- ed for in the AGC and CCIA contracts) for any loss or wages or benefits they may have incurred and for actual costs they incurred, as described above, by reason of the failure of these companies to make required contributions to agreed-on health care and insurance plans. Interest on lost wages and benefits and on actual costs shall be as- sessed and shall be computed as in New Horizons, supra. (4) Making all required payments to various trust funds established by the AGC and CCIA contracts. In- terest, if any, shall be determined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979). Copies of the attached notice shall be posted at the principal place of business of Milford Landscaping & Maintenance, Inc., and Milford Services, Inc., and at their construction jobsites. In addition, they will furnish signed copies of the notice to enable the Union to post them at its office and meeting places. See Apex Decorat- ing Co., 275 NLRB 1459, 1474 (1978). On these findings of fact and conclusions of. law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Milford Landscaping & Maintenance, Inc., and Milford Services, Inc., as a single employer,2 Milford, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with the Connecticut Laborers District Council on behalf of its local affiliates, Laborers' International Union of North America, AFL-CIO, by failing or refusing to apply to the employees in the unit described in the remedy sec- tion above the terms and conditions set forth in the col- ' 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. 2 No order shall issue as to Milford Nurseries, Inc. as it is defunct and none as to Eastern Leasing, Inc., as it is but a holding company . Further, although I have determined that the Respondent Companies are alter egos, it is unnecessary to designate them here as such as the remedial provisions are the same. 691 lective-bargaining agreement the District Council has with the Labor Relations division, the Associated Gener- al Contractors of Connecticut, Inc. and in amendments or successor agreements thereto (the AGC contract) and also in the collective-bargaining agreement the District Council has with Connecticut Construction Industries Association, Inc. and in amendments or successor agree- ments thereto (the CCIA contract). (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the, following affirmative action necessary to effectuate the policies of the Act. (a) Maintain and give effect to the AGC and CCIA contracts, retroactive to June 29, 1987, including but not limited to the matters specified in the remedy section above. (b) 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. (c) Post at their place of business and at each of their construction jobsites copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Sign and return to the Regional Director sufficient copies of the notice, for posting by the Union, if it is willing, at its offices and meeting places, including all places where notices for members are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. a 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."