Twin Cities Electric, And Big G Electric & Engineering, Inc.

1014 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD Twin Cities Electric, and Big G Electric & Engineer- ing, Inc. and International Brotherhood of Elec- trical Workers, Local Union 1547, AFL-CIO. Case 19-CA-19883 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 29, 1989, Administrative Law Judge Richard J. Boyce issued the attached decision and erratum. The Respondent ' filed exceptions, a sup- porting brief, and a motion to reopen record, and the General Counsel filed an opposition to the Re- spondent's motion. 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 brief's and has decided to affirm the judge's rulings, findings, 3 and conclusions4 and to adopt the recommended Order. In affirming the judge's finding that Twin Cities Electric and Big G Electric are alter egos, based in part on the finding of common ownership , we note that the Board makes its assessment of such common ownership based on all the surrounding circumstances, where ownership is held by separate i Twin Cities Electric neither filed an answer to the complaint nor was separately represented in this proceeding. 2 The Respondent moved to reopen the record for admission of docu- ments to bolster the credibility of its witnesses and to support its conten- tion that the companies making up the named Respondent are separate entities rather than alter egos We deny the Respondent 's motion on the ground that this evidence is neither newly discovered nor previously un- available We observe, however, that our affirmance of the judge's ulti- mate findings would not be altered , even were the record to contain such documents a The Respondent has excepted to the judge's resolutions of credibility, findings of fact, and conclusions of law on the ground that he failed to credit uncontradicted testimony by some of the Respondent 's witnesses. The Board does not treat self-serving testimony as conclusive merely be- cause it is not contradicted by direct evidence. See David 's, 271 NLRB 536, 538 at In 17 (1984) Furthermore, 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. Additionally , we are satisfied that the Respondent 's contentions that the judge was biased are without merit . There is nothing in the record to suggest that his conduct at the hearing, his resolutions of credibility, his rulings, or the inferences he drew were affected by any bias or prejudice 4 In this proceeding, the General Counsel alleged and the judge found that the Respondent violated Sec 8(a)(5) and ( 1) since about December 23, 1987 , by refusing to recognize and bargain with the Union The judge found this violation based on the Respondent's midterm repudiation of its contract in July 1987 , even though no charge was filed until June 23, 1988, because: ( 1) the 10(b) defense was not raised and is therefore waived, Penn Corp. 239 NLRB 45 ( 1978); and (2) each failure to comply with an agreement is a separate and distinct violation , Farmingdale Iron Wor/ s, 249 NLRB 98 ( 1980). Member Cracraft relies solely on (I) above family members. Our agreement with the judge's alter ego finding here is based on the following evi- dence. Big G continued Twin Cities' business, uti- lizing the same assets and equipment , and took over the Twin Cities' contract with Solar Turbine. As of the hearing, that contract accounted for 95 percent of Big G's billings. Furthermore, Gregory Gabriel Sr., the 100-percent owner of Twin Cities, who with each of his five sons became a one-sixth owner of Big G, is the only member of Big G's management team with experience as an electrical contractor and the only one who has a state license as an electrical administrator. Thus, Gabriel Senior was retained by Big G as the state-licensed admin- istrator and to perform the crucial jobs of cost esti- mator for job bidding and supervisor at its major jobsite. We find this case factually similar to Ken- more Contracting Co., 289 NLRB 336 (1988), in which the Board found a business owned by two children to be an alter ego of their parents' busi- ness, where the parents remained active in what was purportedly the children's business. We like- wise find this case distinguishable from two others where the Board found no alter ego relationship, i.e., First Class Maintenance, 289 NLRB 484 (1988), which involved a son 's formation and operation of a business similar to but wholly separate and inde- pendent from that of his parents, and Adanac Coal Co., 293 NLRB 290 (1989), in which a sole propri- etor of one company also owned 10 percent of an- other business in which his father, the 60-percent owner, exercised sole management authority. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Twin Cities Electric, and Big G Electric & Engineering, Inc., Soldotna, Alaska, their officers, agents, successors, and assigns, shall take the action set forth in the Order. Daniel R. Sanders; Esq., for the General Counsel. Paul L. Davis, Esq., of Anchorage, Alaska, for the Re- spondent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Kenai, Alaska, on October 18 and 19, 1988. The complaint, based on a charge filed by Interna- tional Brotherhood of Electrical Workers, Local Union 1547, AFL-CIO (Union) alleges that Twin Cities Elec- tric' and Big G Electric & Engineering, Inc. (Twin i Twin Cities Electric's name appears as corrected during the trial 296 NLRB No. 129 TWIN CITIES ELECTRIC Cities and Big G, respectively), as alter egos and a single employer, have violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) since about Decem- ber 23, 1987, by refusing to recognize and bargain with the Union as the collective-bargaining representative of certain of their employees, and by concomitantly failing and refusing to abide by a bargaining agreement that Twin Cities previously had assented to.2 Big G, answering as a separate entity, admits that it and Twin Cities have failed and refused to recognize and bargain with the Union and to abide by the agreement, but denies that it and Twin Cities are alter egos and a single employer, and affirmatively alleges that Twin Cities "terminated its relationship with the [Union] and therefore is not bound by the terms of the . . . agree- ment." Twin Cities did not file an answer , nor was it separately represented at trial. 1. JURISDICTION, LABOR ORGANIZATION Twin Cities and Big G are electrical contractors in Soldotna, Alaska. Big G came into being in January 1988, and Twin Cities purportedly became inactive, in anticipation of going out of business, in February 1988. Twin Cities had 1987 revenues exceeding $50,000 from a joint venture known as Jansen-Gorsuch, which in turn meets the Board's direct-inflow jurisdictional standard. Through September 1988, Big G issued billings exceed- ing $500,000; and, by the time of the trial, had begun to perform at a Kodiak Island Coast Guard facility under a contract worth over $600,000. Based on my conclusion below that Big G is Twin Cities' alter ego, and that they thus are a single employ- er, I now conclude that the two, jointly, are an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. I also conclude that the Union is a labor organization within Section 2(5) of the Act. II. THE ALLEGED MISCONDUCT A. Evidence Twin Cities is a proprietorship owned by Gregory Ga- briel Sr. and his wife, Edithanne . Gabriel Sr. had done electrical contracting-"a few homes , mostly industrial, some commercial"-under that style for a number of years up to the week ending February 4, 1988, when he ostensibly suspended operations and began dismantling the enterprise . He testified that Twin Cities remains in existence only to pay off its debts, and that it is "done" once that is accomplished. Twin Cities was involved in one job-a $280,000 project for Solar Turbines at a Tesoro Petroleum facili- ty-as of February 4. It had begun the job the previous November, with a crew comprised of Gabriel Sr. and two sons, and was far from finished . Twin Cities had one other job in 1987-on a school project in Soldotna- which lasted from June to September . Apart from Gabri- el Sr., it had eight different electricians (journeyman or helper) on that job, including five Gabriel sons. 12 2 The charge was filed June 23, 1988, and the complaint issued August 1015 In 1975, Gabriel Sr . entered into a so-called letter of assent by which he authorized the Alaska Chapter of the National Electrical Contractors' Association (NECA) to be Twin Cities' representative in collective bargaining with the Union and consented to be bound by the "inside agreement" between the Union and NECA . Twin Cities subsequently observed a succession of agreements be- tween NECA and the Union until the June 1987 outset of the school job, when compliance ceased . The prevail- ing agreement was effective from February 10, 1986, to June 30, 1988.3 Twin Cities never thereafter complied with the agreement or recognized the Union. The letter of assent , by its terms, "remain[ed] in effect until terminated by [Twin Cities'] giving written notice to" NECA and the Union within a prescribed timeframe. Gabriel Sr. did not follow that procedure , instead orally advising a union business representative, Tim Evans, on about July 15, that Twin Cities was operating nonunion on the school job and intended to do the same at Solar Turbines. The Union thereupon filed a grievance protest- ing Twin Cities' disregard of the exclusive hiring hall provisions in the Union-NECA agreement, and the trusts administering fringe benefit contributions under the agreement sued over Twin Cities ' cessation of pay- ments.4 Big G, as noted, came into existence in January 1988, and, with Gabriel Sr. as foreman , it took Twin Cities' place on the Solar Turbines project, starting about March 15 . That was Big G's first "big job."5 Its Solar Turbines complement grew to over 20 in May, and num- bered about 10 at the time of the trial. Big G never rec- ognized the Union or complied with the Union-NECA agreement. Big G's articles of incorporation were executed by three of Gabriel Sr.'s sons-Gregory Jr., Brian, and Bruce-on January 21, and the State of Alaska issued a certificate of incorporation on the 26th. The articles name as corporate directors, in addition to the three in- corporators, Gabriel Sr., Edithanne, and two other sons, Christopher and Joseph . Bylaws were executed by the three incorporators on March 2; and, in a directors' meeting that day, the same three were elected corporate officers-Gregory Jr. as president , Brian as vice presi- dent, and Bruce as secretary -treasurer. Edithanne re- signed her directorship on March 23, reducing the board to its present makeup. The six remaining directors are Big G's only share- holders, each nominally owning equal portions . The five sons reportedly invested $4000 apiece for their shares. Gabriel Sr. paid for his, according to Gregory Jr., by de- ducting $4000 from the moneys owed him in connection with Big G's purchase of Twin Cities' assets, described below. The stock certificates are dated July 1, 1988. 2 The agreement covered wiremen , technicians, splicers, and material handlers I conclude that a unit so constituted , whether the employer be Twin Cities, Big 0, or both, is appropriate for purposes of the Act 4 The record does not disclose the precise status of these matters at the time of the trial 5 Big G previously had done $3405 of work on a residence in Kenai, and $624 for a real estate firm in Soldotna 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By letter dated May 24, responding to an earlier letter from an attorney for Big G,6 the Union's business man- ager, Gary Brooks, noted that Gabriel Sr.'s name "ap- pears as a principal" both on Twin Cities' letter of assent and for Big G, then stated: Given the identical nature of work performed by the two entities and the fact that Twin Cities was signatory with IBEW and Big G is not, my suspi- cion grows even greater that the rationale for form- ing the new company was specifically to circum- vent the terms and conditions of the collective bar- gaining agreement in existence between Twin Cities and IBEW. IBEW would seek constructive dia- logue toward answers to these suspicions and a pos- sible agreeable resolution in the event my concerns have foundation prior to other legal recourse. To that extent your prompt attention to this matter would be greatly appreciated. The record does not disclose whether the requested dialogue ensued. On June 1-about a week after Brooks' letter-Twin Cities and Big G, by Gabriel Sr. and Gregory Jr., re- spectively, entered into a buy-sell contract whereby Twin Cities formally transferred to Big G assorted tools and machinery, three van-type motor vehicles and two utility trailers, and Twin Cities' interest in the Solar Tur- bines project. As mentioned, Big G had been on that project since about March 15, and doubtless used much of this equipment from the start.' Twin Cities in return was to receive $65,000-in the form of $10,000 in cash and a promissory note for the balance, at 10-percent in- terest, to be paid in monthly installments of $1019.13, starting June 15. The contract includes the provision that it is "not to be construed as a transfer of the business op- eration as a going concern, nor of the liabilities or obli- gations of the business or its owners." The record is devoid of documentation that funds ever were trans- ferred pursuant to this contract. Gabriel Sr. would have it that his negotiations with the sons leading to the buy-sell contract were "at arm's length"; that "it got down to probably a knock-down, drag-out argument"; and that he rejected their first offer, causing them to up it "a little bit," making it "okay." Similarly, Christopher recounted that Big G did not give Gabriel Sr. "any special deals"; "quite the contrary," that the negotiations were "heated" and that Gabriel Sr. ,.at one point during the negotiations was upset with what we were offering him and, in fact, left the room." Gregory Jr. testified that Big G considered leasing items of the sort covered by the buy-sell contract, or buying new, before deciding that "the best alternative was to purchase Twin Cities Electric's tools"; and that, having checked prices with suppliers, he "would say" that Big G paid "very close" to fair market value. Brian likewise opined that Big G paid fair market value, and Joseph in- jected that Big G would have gone elsewhere had his fa- ther's price been excessive.8 Gregory Jr. testified that Twin Cities' interest in the Solar Turbines project accounted for $28,000 of the $65,000 owed by Big G under the buy-sell contract, and that figure was not "actually nailed down until probably April or so"-well after Big G had undertaken the project. The $28,000 was 10 percent of Twin Cities' original estimate for the job, he explained, "which we figured would have been the profit that would have been made [by Twin Cities] had the job gone at the estimate." The record does not disclose Twin Cities' billings or re- ceipts from the project. It suggests, however, that it had done only a small portion of the prescribed work. Greg- ory Jr. recalled that it had performed " some preliminary ground work." Asked how Big G expected to benefit by taking Twin Cities' place on the Solar Turbines project, since it was holding back none of Twin Cities' expected profit for itself while assuming the overhead entailed to complete the job, Gregory Jr. testified that "it was pretty much as- sured that" proceeds were "going to exceed $280,000" because of change orders; and that Big G was counting on that for its profit. While Gregory Jr. did not give his reasons for that expectation, it apparently was realistic. Big G's Solar Turbines billings had soared to $643,741 by the end of September. Gregory Jr. testified that Big G acquired Twin Cities' interest in the Solar Turbines project before "follow[ing] up" with Solar Turbines to ensure its getting the work. Concerning the followup, he averred that he and his father met with two Solar Turbines officials sometime in February, "probably"' for an hour or two, reporting that Big G had been "formed" and had "purchased" Twin Cities' interest in the project. The officials ' "main ques- tion" concerned the nature of Big G, he recounted, and they "were all in favor of it" upon being told that "it was all the Gabriel boys," including Joseph with his new degree in electrical engineering," along with Gabriel Sr. The meeting concluded, according to Gregory Jr., with "a handshake on a time-and-material contract," not "a hard contract" in writing. Gabriel Sr. did not mention such a meeting in his testi- mony. By letter dated March 1, accompanying Twin Cities' final bill to Solar Turbines, he stated, however: [F]or your records this will be the final billing that you will receive from Twin Cities Electric. All future billings will be from BIG G ELECTRIC & ENGINEERING, INC., P.O. Box 4257, Soldotna, Alaska 99669. Our new phone number is (907) 262- 4700. Should you have any questions, please do not hesitate to contact me. 9 The earlier letter, apparently dated February 24, is neither in evi- dence nor described on the record. T Patrick O'Connell , Big G's office manager, testified that transfer of title to the vehicles "took place in April " Gabriel Sr testified that Big G first used them "sometime around the end of February, first part of March." a Big G has acquired about $26 ,550 worth of equipment "over and above" that from Twin Cities, including a van-type vehicle ($ 13,885), a trailer ($3515), a hi-pot tester ($3492), and a computer ($2350) The record gives no date for these purchases 9 Joseph received a bachelor of science degree in electrical engineering from Gonzaga University, Spokane, Washington , in December 1987. TWIN CITIES ELECTRIC Gregory Jr. testified that Big G's directors never dis- cussed the possibility that Solar Turbines would reject it as Twin Cities' replacement. He assertedly "felt confi- dent"-"it seemed pretty much the course"-that Big G would get the work , basing his feeling on a "kind of neg- ative reassurance, the fact that they [Solar Turbines] didn't know what they were doing." 10 Joseph testified, on the other hand, that Big G's getting the job "seemed to [be] real shaky," whereas Bruce, noting that Big G was "on the job" well before it signed the buy-sell agree- ment, declared that he saw no problem-"we knew we had the job." But, asked if Solar Turbines could replace Big G at will, given their time-and -materials understand- ing, Bruce conceded, "I suppose they could." Also on June 1, Gabriel Sr . and Big G, by Gregory Jr., executed a formal agreement by which Big G en- gaged Gabriel Sr. "as a foreman and electrical contract- ing administrator." It provided, variously, that Gabriel Sr. would be "subject to the general supervision and pur- suant to the orders, advice, and direction of' Big G; that he would be paid $22 .50 per hour, plus $1,018 .93 month- ly for the use of his electrical administrator's license; and that Big G would provide him with $100,000 in life in- surance during the 4-year term of the agreement, which was to start July 1. The record does not say whether this agreement changed, or merely formalized, the relation- ship between Big G and Gabriel Sr. As mentioned earli- er, he was Big G's foreman on the Solar Turbines project from the onset. Electrical contractors in Alaska are required by law to have someone at their disposal with an electrical admin- istrator's license . Gregory Jr. testified that the leasing of such licenses by contractors is "very common "; and that, in essence, was "the relationship" between Big G and Gabriel Sr. with regard to his license. He also testified that the monetary consideration-$ 1,018.93 per month- was "what we would be willing to pay or what he would be willing to accept," and "comparable" to the norm. He added that Big G considered other licensees, as well, finally choosing Gabriel Sr. "because he is my father" and "it would have been probably . . . a breach of etiquette or something to bring in an outsider who had the same tools, so to speak." The record contains no documentation that Big G in fact has made the pre- scribed monthly payments. Concerning Gabriel Sr.'s hourly wage of $22.50, Greg- ory Jr. testified that it "basically [is] what the nonunion pay scales are in the oilfield." Neither he nor anyone else supplied a rationale for the life insurance. Gabriel Sr. testified that he decided to "shut down" Twin Cities at "probably the end of '87 and the start of '88, somewhere in there." His stated reason was: "We just couldn't make it. There's no way that we could make it . . . going by what the accountant was telling me." He amplified that Twin Cities was unable to obtain financing, without which it could not maintain a payroll or obtain materials and supplies pending the collection of accounts receivable. 11 He testified that he went "so far 10 Gregory Jr. did not explain what he meant by this 11 Gabriel Sr. later appended that "health concerns" also contributed to his decision 1017 as to get bankruptcy papers" in July 1987, but decided against that, "probably because of pride." The accountant, Charles Obendorf, C.P.A., testified to the same effect, asserting that the bank on which Twin Cities had relied for financing "went under"; that his ef- forts to obtain financing for Twin Cities from two other banks were unsuccessful ; that he did not believe Twin Cities capable of completing the Solar Turbines job "be- cause it was going to require a substantial number of electricians at one point . . . and they were not able to obtain financing for that kind of payroll"; and that he was "very blunt with the Gabriels that, hey, I'm not sure that you're gonna make it." Obendorf did not reveal with any specificity how or when he communicated that assessment. Gabriel Sr. and/or Obendorf testified that, beyond the absence of financing, Twin Cities' economic woes stemmed from several developments : the failure of the general contractor on the school job to pay Twin Cities in full; the lawsuit over Twin Cities' cessation of fringe benefit contributions, which tied up $21,000 owing from the school job;12 repossession, effective January 1, 1988, of the property housing Twin Cities' office and shop, and from which Gabriel Sr. had been receiving rental income; an Internal Revenue Service determination that Gabriel Sr. owes $75,000 on "phantom income" attend- ant that repossession ; and an $80,000 judgment against him out of a real estate matter on Kodiak Island. Obendorf stated that Twin Cities/Gabriel Sr. also owes about $72,000 to the Small Business Administra- tion, about $15,000 to an electrical supply house, and "a fair amount of money" to his firm "for accounting serv- ices." He enlarged that Twin Cities had engaged his firm "to help watchdog [its] accounts" in about 1982, when it was "close to bankruptcy"; and that his firm has "been paying the bills . . . doing the payrolls, and helping act as [Twin Cities'] controller" ever since. He added that his firm now is not only "collecting whatever receivables are still there and available, and . . . making payments to the creditors as [it] get[s] the money in," but that Gabriel Sr. "is bringing some money in every week out of his paycheck and we are . . . applying it first against his home utility bills and making sure that the state gets paid [for a loan] on the house and the SBA on their loan." Gregory Jr. testified that discussions among the five brothers about forming a business began to "evolve in more serious form early in 1987"; that the discussions "began heating up" in December, upon Joseph's gradua- tion from college ("They really began to take on a new meaning with him and his electrical engineering degree."); and that the brothers decided, during a meet- ing in January 1988, to "pool together [their] resources and [their] talent" and take the plunge. The record is silent with respect to Gabriel Sr.'s role, if any, in these deliberations. Gregory Jr. related that, having been "designated" by the others "to begin getting the ball rolling," he quit his job with another electrical contractor and "began the task of putting together a corporation ." The "first thing" 12 Gabriel Sr depicted this as a "minor part" of the problem 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD so he testified, was to talk to an attorney "about forming a corporation"; the "next step was to obtain financing" through the Soldotna branch of the First National Bank of Anchorage, "based on a percentage of our receiv- ables" from Solar Turbines;' 3 the "next step" was to ar- range for workers' compensation insurance, a surety bond, and other state-required insurance ; the "next step" was to lease space for an office and shop; and the final "step" was to procure tools. Gregory Jr. did not state with any exactitude when he performed these tasks; and, aside from its organic documents , Big G did not place in the record any documents of the sort customarily gener- ated by transactions of this sort.14 Gregory Jr. testified that investing in Twin Cities, rather than forming Big G, "wasn't a possibility." He ex- plained that Twin Cities' building "had been foreclosed upon," that "there were some judgments against Twin Cities," and that it consequently had "no possibility of establishing any type of credit or financing .' 5 Bruce, ob- serving that Gabriel Sr.'s "management skills weren't all that great" and seeing Twin Cities as "a sinking ship" with "absolutely no credit," asserted that investing in it would have been "throwing good money after bad." Brian, remarking that Gabriel Sr.'s management skills ,.were poor" and that Twin Cities was "financially unsta- ble," equated the investing of $4000 in it with "giving someone $4,000 to put on a blackjack table ." Christo- pher, another devotee of the "sunken ship" analogy, commented, "[T]here was nothing that we could have done to save" Twin Cities. All of Big G's management and policy decisions are handled by the board of directors , according to Gregory Jr. Gabriel Sr. offered that his views do not "carry any weight" with the other directors "because [he] got a past history of probably failing a little bit." Gregory Jr. testi- fied that, while his father's technical suggestions are "highly regarded because of his years of experience as a contractor," his "input" concerning "the course of man- agement-perhaps financing, insurance, or purchasing of a tool"-is not "as highly regarded as maybe it should be" because of the Twin Cities "situation." He expanded that Gabriel Sr. used the "glove-box of his truck [as] his file cabinet" and had mismanaged Twin Cities-"espe- cially in the last year of business . . . like when he per- ceived withdrawing from the Union and . . . didn't submit in writing, just loose ends like that." Brian, too, commented that Gabriel Sr.'s glove-box "was his filing cabinet," and that his contributions to Big G are "in the field . . . not his management decisions." 's Obendorf indicated in his testimony that he did not query this lender when seeking financing for Twin Cities 14 Asked the part Gabriel Sr played in these matters, Gregory Jr. tes- tified that "he was actually out of town for most of it in Calgary getting away from it all, basically " Apart from his further testimony that the Calgary trip occurred sometime after the February meeting he and his father had with the Solar Turbines officials, the record does not reveal the timing or duration of the Calgary trip 15 Asked if Twin Cities could have completed the Solar Turbines job, Gregory Jr testified that he did not think so, because it lacked, among other things, "the management structure to cover that scope of a project with the tight deadlines " Bruce then testified that "there is no real completion schedule available ", that "they've had a . couple in the past that have just been changed ", and that, upon realizing how much is "left to do," Solar Turbines "extends the completion date." As mentioned above, Brian and Bruce disparaged their father's management skills as "poor" or not "all that great." The minutes of their March 23 meeting disclose that the directors authorized Gregory Jr., Bruce, and Joseph "to sign for line of credit loans," and authorized those three, plus Brian, "to sign corporate checks." 16 Patrick O'Connell, Big G's office manager, testified, without rec- onciling the discrepancy, that all the directors except Gabriel Sr. possess both authorities; and that, as he sees it, Gabriel Sr. is excluded because the sons do not "trust him, because they [don't] want to let the books get away." Brian likewise testified that only Gabriel Sr. is excluded.'7 Gabriel Sr. testified that he "did everything," adminis- tratively and in the field, when Twin Cities was active. He particularized: The structure was, myself and my wife owned it. And then, for the office personnel, it was myself and my wife and-not my wife too much, 'cause she didn't have that kind of time. And then we had an accountant for the office. . . . [M]y daughter would do the billing and take it into the accountant, and he would list it and send it in. The accountant would also receive all the mail. . . . I would do the bidding, all the office . . . management, the expedit- ing. And then, going down from the office to field work, I would do all the installation, plus be the foreman on the job. . . . I would have to do all the billings, the progress payment schedules. I'd have to be in on the meetings, progress meetings; go right down to driving the vans and picking up materials from the suppliers, putting the job in, and closing the jobs out. Gabriel Sr. testified that he also did all of Twin Cities' interviewing and hiring. He reputedly is "less responsible for things at Big G." As its licensed electrical administrator, however, he is ul- timately "responsible . . . for the electrical work"-"the end product," as he put it-on all its jobs . But he does not do any of the hiring, he testified, nor prepare bids or progress schedules, contact suppliers, move employees from job to job, schedule work, or determine employee pay or hours. As Big G's foreman on the Solar Turbines job, his responsibilities assertedly "are to lay the job out, [to] make sure the men are working, [that they are] doing the job that they're supposed to be doing ." He ad- mittedly has firing authority on that job, as well. Gabriel Sr. and Bruce testified that Bruce and Joseph do Big G's hiring; Bruce, that he allocates personnel among jobs; Gregory Jr., that he, Brian , and Joseph do job estimates; and Joseph, that his father is "not held re- sponsible for any of Big G's office activities. i6 With two signatures being required on checks exceeding $1000 17 Gabriel Sr is 53 years old, and, to my lay perception, is in full com- mand of his faculties. The five sons range in age from Gregory Jr.'s 27 to Christopher's 22. TWIN CITIES ELECTRIC Gregory Jr. acknowledged that "a consideration" in creating Big G was to "help out . . . father and his fi- nancial difficulties . . . to help him out in a time of crisis." Brian contended , however, that while Gabriel Sr. realized "a benefit . . . because of the decision" to form Big G, that was not a factor. "Business is business," Brian explained, "and that was a business decision." Christopher and Joseph more or less echoed Brian. Gregory Jr. testified that , whereas Twin Cities did not venture far afield, Big G aspires to become "one of the ... major electrical contractors in the state ." Through September 1988, Big G had worked on 12 jobs. But, apart from the almost $650,000 it had billed Solar Tur- bines, its total billings for those several jobs were only $27,897. Its first substantial job, excluding Solar Tur- bines, is that at the Kodiak Island Coast Guard facility. Its bid, as previously noted, exceeded $600,000, and it re- putedly was informed of the award on about April 1. The only work on the project to the time of trial, how- ever, was Brian's installation of a "temporary power hook-up" in August. Gregory Jr. testified that Big G was then "gearing up" to send a crew to Kodiak. Gregory Jr., Bruce, and Brian all resigned from the Union in early 1988. Gregory Jr. testified that he re- signed because "the Union was not taking care of the members or the contractors of this local area" ; and that the resignations, in addition, were "part of [a] negotiation strategy." He elaborated: Our original intention was to do work through the IBEW on a job-by-job basis, where we could have more leverage as far as negotiating wages and .. . conditions basically in the oil-field , which is, as far as I know, virtually all nonunion. And it was just kind of taking the hard-line stance and-and trying to-to negotiate some sort of an agreement, and that in fact didn't happen and we ended up doing all the work nonunion, anyway. Bruce testified that he left the Union to become a part of Big G because, having just become a journeyman, he was "way low on the books" at the Union 's hiring hall, "which means a year, maybe two years, before eventual employment began in the Kenai -Soldotna area." 18 Brian testified that he resigned in part because he "felt [he] was being discriminated against by the apprenticeship school." But "mainly," he stated, "it was to ... become [his] own boss [and] to . . . work with [his] brothers, which has always been one of [his] ultimate goals." When Gabriel Sr. told the Union's Evans that Twin Cities would be operating nonunion, he also said that he was "upset" that the Union had not taken one of his sons, presumably Brian, into an apprenticeship program, and exclaimed that he was going to employ members of his family "no matter what the IBEW said or did." 19 le Until quitting to go with Big G, however, Bruce had been working steadily, since the preceding April or May, for Hooper Electric at Nlklskl High School 19 Evans, disabled from an accident, did not testify Counsel stipulated that, if called, he would have testified to this effect . Gabriel Sr , although disclaiming a clear recollection of the exchange , admittedly told Evans that Twin Cities "could no longer employ union people," and "men- 1019 Earlier, in 1985, Gabriel Sr. had sought the Union's con- sent to pay Twin Cities' electricians at the "maintenance rate" of $21 per hour, instead of $25. The Union refused, impressing him that it was not "looking out for the con- tractors." Asked his reasons for Twin Cities' going nonunion, Gabriel Sr. testified: "[L]iterally we were broke. . . . I couldn't pay anybody. I didn't have any money to pay." He averred, with respect to the later decision to shut down Twin Cities, that he "couldn't have gone on," union or nonunion , because of his economic plight. Big G's office and shop are located across the road from Twin Cities' preforeclosure location. It did not in- herit Twin Cities' telephone number or Federal tax number. One of the vans subject to the June 1 buy-sell contract continued to display Twin Cities' markings until about the time of the trial. Gregory Jr. testified that cost was "one consideration " in its not being repainted sooner, another being the impracticality of "releasing the manpower" to do it. B. Conclusions and Reasons This is a construction-industry case. Section 8(t) of the Act permits an employer and a union engaged primarily in that industry to enter into a bargaining agreement, re- gardless of the union's majority status, without violating the Act. The Board "require[s] the party asserting the existence of a [Section] 9(a) relationship"-i.e., a rela- tionship derived from the union's majority status-"to prove it."20 In the construction industry, moreover: Such showing is accomplished only by traditional means, i.e., a Board election or voluntary recogni- tion based on a prior demand for recognition sup- ported by a showing of majority employee sup- port.21 The present record contains no such showing. The Union-NECA agreements binding on Twin Cities be- cause of the letter of assent, including the 1986-1988 agreement, consequently derived their legitimacy from Section 8(f). The recent Board decision, John Deklewa & Sons,22 therefore applies. The Board stated in Deklewa: When parties enter into an 8(f) agreement, they will be required, by virtue of Section 8(a)(5) and Section 8(b)(3), to comply with that agreement unless the employees vote, in a Board-conducted election, to reject (decertify) or change their bargaining repre- sentative. Neither employers nor unions who are party to 8(f) agreements will be free unilaterally to repudiate such agreements.23 The Board continued: tioned" the Union's failure to take his son into an apprenticeship pro- gram Evans' stipulated rendition deserves belief in the circumstances 20 Kephart Plumbing, 285 NLRB 612 (1987), quoting from John Deklewa & Sons, 282 NLRB 1375, 1385 fn. 41 (1987). 21 Kephart Plumbing, supra at 612. 22 Cited in fn 20, supra 23 282 NLRB at 1385. 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Even absent an election, upon the contract's expira- tion, the signatory union will enjoy no majority pre- sumption and either party may repudiate the 8(f) re- lationship. The signatory employer will be free, at all times, from any coercive union efforts, including strikes and picketing, to compel the negotiation and/or adoption of a successor agreement.24 Twin Cities thus violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and concomi- tantly repudiating the 1986- 1988 agreement in mid- term.25 The question remains whether Big G is Twin Cities' alter ego, responsible for Twin Cities' misconduct and bound by its contractual commitment. The Board stated in Advance Electric:26 Although each case turns on its own facts, we gen- erally have found alter ego status where the two en- terprises have "substantially identical" management, business purpose, operation, equipment, customers, and supervision , as well as ownership. The Board added , in the same decision:27 Other factors which must be considered in deter- mining whether an alter ego status is present in a given case include "whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was to evade responsi- bilities under the Act." The Board also has stated that no one factor is "the sine qua non of alter ego status."28 Applying the foregoing overlay of principle to the present situation, I conclude that Big G indeed is Twin Cities' alter ego. It inarguably has the same business pur- pose and uses much of the same equipment; and, with about 95 percent of its billings through September stem- ming from the Solar Turbines project, it had a virtually identical clientele for a number of months. Supervision likewise is substantially the same, given the predomi- nance of the Solar Turbines job, Gabriel Sr.'s continu- ation on that job much as before, and Big G's carryover 24 Id. at 1386 25 See, in addition to Deklewa and Kephart Plumbing, cited above in fn 20: Bufco Corp, 29! NLRB 1015 (1988), BFC Corp., 285 NLRB 583 (1987), Precision Striping, 284 NLRB 1110 (1987), W. L. Miller Co., 284 NLRB 1180 (1987), Jack Welsh Co., 284 NLRB 378 (1987); American Thoro-Clean, 283 NLRB 1107 (1987), Ken Hash Construction, 283 NLRB 822 (1987). The 6-month limitation period set forth in Sec. 10(b) does not foreclose a violation, even though the initial withdrawal and repudiation occurred more than 6 months before the Union filed its charge. No one has raised the 10(b) issue, and, as stated in Penn Corp, 239 NLRB 45, 45 fn 1 (1978), Sec 10(b) "is an affirmative defense and , if not timely raised, is waived." Moreover, each failure to comply with the agreement within the 10(b) period is "a separate and distinct violation " Farmingdale Iron Works, 249 NLRB 98, 99 ( 1980). See also Chemung Contracting Corp., 291 NLRB 773, 774 (1988) 29 268 NLRB 1001, 1002 ( 1984), quoting from Denzil S. Alkire, 259 NLRB 1323, 1324 (1984) 27 At 268 NLRB 1002 The inside quotation is from Fugazy Continental Corp, 265 NLRB 1301, 1302 (1982). 28 Fugazy Continental Corp., supra at 265 NLRB 1301 See also Conti- nental Radiator Corp., 283 NLRB 234, 235 (1987). dependence upon his electrical administrator's license.29 The same can be said of ownership, even though none of the sons had or has a proprietary interest in Twin Cities, for "the Board often treats ownership by other family members as personal ownership" in situations of this sort. 30 The record supports the inference, moreover, that Ga- briel Sr. and his sons brought Big G into being, at least in important part, to escape Twin Cities' ties to the Union.3 t Gabriel Sr. had felt since 1985, when the Union denied him permission to institute the maintenance wage rate, that it was not "looking out for the contractors." His desire to escape became manifest in 1987, when Twin Cities repudiated the agreement; and, vowing to employ family members "no matter what the IBEW said or did," he told the Union' s Evans that Twin Cities was going nonunion . But, far from breaking the Union's hold, those actions prompted a grievance protesting Twin Cities' disregard of the hiring hall and a lawsuit over its nonpayment of fringe-benefit contributions. Gabriel Sr.'s problems thus were compounded, and his resolve to escape doubtless intensified. Big G's emergence and Twin Cities' deactivation followed. Other indicia that union avoidance (or manipulation) underlay Big G's creation are Gregory Jr.'s revelation that his and his brothers' resignations from the Union were "part of [a] negotiation strategy" to extract conces- sions on behalf of Big G; Gregory Jr.'s admission that "a consideration" was to "help out ... father and his finan- cial difficulties"; and, perhaps most telling, the failure of Big G and Gabriel Sr./Twin Cities to come up with cru- cial documentation of their alleged arrangement-i.e., the buy-sell contract and Gabriel Sr.'s employment agree- ment-until June 1, and only after the Union's May 24 letter challenging Big G's independence from Twin Cities.32 Big G's alter ego status is additionally suggested by these considerations: (a) Its creation was temporally proximate to Twin Cities' shutdown.33 (b) It undertook a major project-the Solar Turbines job-left unfinished by Twin Cities.34 (c) Gabriel Sr. continued to play a prominent role, as witness his participation with Gregory Jr. in the meeting with Solar Turbines officials whereby Big G succeeded Twin Cities on that project; and his March 1 letter to Solar Turbines informing it that future billings would be from Big G, in which he closed: "Should you have any questions, please do not hesitate to contact me." 29 NLRB Y. Burgess Construction Corp., 596 F.2d 378, 385 (9th Cir. 1979) 30 Bryar Construction Ca, 240 NLRB 102, 104 ( 1979) See also NLRB Y. Stowe Spinning Co, 336 U S 226, 227 (1949) ("Interlocking directorates and family ties make the four equal to one for our purposes."); Gilroy Sheet Metal, 280 NLRB 107 fn 2 (1986); Truck & Dock Services, 272 NLRB 592 fn . 2 (1984), Advance Electric, supra at 268 NLRB 1004 91 Another reason perhaps being to insulate anticipated large Solar Turbines proceeds from creditors of Twin Cities/Gabriel Sr That, too, would support an alter ego finding. Fullerton Transfer & Storage, 291 NLRB 426 (1988) 32 William N Taylor, Inc., 288 NLRB 1049 fn 4 (1988) 33 Continental Radiator Corp, supra 34 Gilroy Sheet Metal, supra TWIN CITIES ELECTRIC (d) The Twin Cities assets acquired by Big G were not independently appraised.35 (e) The value allocated to Twin Cities' interest in the Solar Turbines job, $28,000, betrays a less-than-arm's- length, if not sham, transaction. Not only did the $28,000 represent Twin Cities' projected profit for the entire job (leaving no room for profit to Big G absent change orders), but Big G supposedly had no assurance that it would get the work and ended up with only a time-and- materials, terminable-at-will (albeit lucrative) arrange- ment. (f) The record contains no documentation that funds ever were transferred pursuant to the buy-sell contract or to that feature of the employment agreement with Ga- briel Sr. concerning his electrical administrator's license. Nor does it include documentary verification that Big G, as a separate entity, entered into the several transactions attributed to it by Gregory Jr. regarding financing, bond- ing, workers' compensation, procurement of office/shop space, etc. (g) Big G enjoyed the use of Twin Cities' equipment for at least several weeks without the usual business for- malities and apparently free of charge. 36 It also had suc- ceeded Twin Cities on the Solar Turbines job well before the value of Twin Cities' interest was determined and the buy-sell contract entered into. Finally, the testimonial efforts of Gabriel Sr. and the several sons to portray an arm's-length situation were singularly devoid of conviction . For instance, Gabriel Sr.'s testimony that he had "a knock-down, drag-out ar- gument" with the sons over the value of Twin Cities' assets was palpably contrived, as was Christopher's claim that the negotiations were "heated" and that his father became so "upset" that he "left the room." Gregory Jr.'s testimony that Big G explored leasing or buying new rather than using Twin Cities' assets, and that it consid- ered obtaining an electrical administrator's license other than through Gabriel Sr., likewise reeked of invention. The purported exclusion of only Gabriel Sr. from check signing and line-of-credit authority for Big G, and com- panion characterizations of him as a feckless boob in business matters, came across as counterfeit, as well.In sum, the evidence that Big G is Twin Cities' alter ego, and that they consequently are a single employer, is con- siderable and impressive. The contrary evidence, weak- ened by the suspect credibility of its purveyors, is at once less substantial and less persuasive. The two enti- ties, jointly, therefore are responsible for Twin Cities' unfair labor practices and are bound by its contractual commitment to the Union. CONCLUSIONS OF LAW 1. Twin Cities and Big G (jointly, "Respondents") are in the construction industry and are engaged in com- merce within Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. Respondents are alter egos and a single employer. as Eagle Express Co., 272 NLRB 501, 502 ( 1984). 36 William N. Taylor. Inc.. supra 1021 4. All journeyman and apprentice wiremen, techni- cians, splicers, and material handlers employed by Re- spondents, excluding all other employees, guards, and su- pervisors as defined in the Act, constitute an appropriate bargaining unit. 5. By withdrawing and withholding recognition from the Union and by failing and refusing to abide by their 1986-1988 collective-bargaining agreement with the Union, Respondents violated Section 8(a)(5) and (1) of the Act. 6. The unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I shall recommend that they be or- dered to cease and desist and to take specified affirmative action designed to effectuate the policies of the Act. I shall recommend that they be ordered to make their em- ployees whole, as prescribed in Ogle Protection Service,37 for any losses they may have suffered as a result of Re- spondents' failure, since December 23, 1987,38 to adhere to the 1986- 1988 collective-bargaining agreement,99 with interest to be computed as prescribed in New Horizons for the Retarded 40 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed41 ORDER The Respondents, Twin Cities Electric and Big G Electric & Engineering, Inc., Soldotna, Alaska, their offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing and withholding recognition from International Brotherhood of Electrical Workers, Local Union 1547, AFL-CIO as the exclusive collective-bar- gaining representative of their employees in the appropri- ate unit described below, during the term of a collective- 97 183 NLRB 682 (1970) 38 December 23 being the start of the 6-month period before the charge was filed Farmingdale Iron Works, supra at 249 NLRB 99. sa As earlier mentioned, John Deklewa & Sons permits a party to repu- diate its 8(f) relationship on the expiration of an agreement The record contains no evidence that Respondents effectively repudiated their rela- tionship or agreement with the Union, or timely withdrew bargaining au- thority from NECA. I therefore leave to the compliance phase of this proceeding whether they, as alter egos and a single employer, are bound by any subsequent or successor agreements under Deklewa principles. William N. Taylor, Inc, supra at 288 NLRB 1050 40 283 NLRB 1173 (1987). Under New Horizons, 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 Because the provisions of benefit fund agreements are variable and complex, the Board does not provide at this stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund contri- butions Any additional amounts owed are to be determined in accord- ance with Merryweather Optical Ca, 240 NLRB 1213, 1216 fn. 7 (1979). 43 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 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining agreement ; or failing and refusing to abide by their 1986-1988 collective-bargaining agreement and any successor agreements with Local Union 1547, as such representative. The appropriate unit is All journeyman and apprentice wiremen, techni- cians, splicers, and material handlers employed by Respondents, excluding all other employees, guards, and supervisors as defined in the Act. (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) Comply, retroactively to December 23, 1987, with the terms and conditions of the 1986-1988 collective-bar- gaining agreement, and any successor agreements, in- cluding wage rates, fringe benefit payments, hiring hall provisions, and union-security requirements. (b) Make whole employees covered by the 1986-1988 agreement, and any successor agreements, as set forth in the remedy section of this decision , for any losses suf- fered as a result of Respondents ' misconduct. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or helpful to determine the backpay due under this Order. (d) Post at their Soldotna, Alaska office and shop copies of the attached notice marked "Appendix."42 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by Respond- ents' authorized representative, shall be posted by Re- spondents immediately upon receipt and maintained for 60 consecutive days, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondents have taken to comply. 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 or- dered us to post and abide by this notice. WE WILL NOT withdraw and withhold recognition from International Brotherhood of Electrical Workers, Local Union 1547, AFL-CIO, as the exclusive collec- tive-bargaining representative of our employees in the appropriate unit described below, during the term of a collective-bargaining agreement; and WE WILL NOT fail and refuse to abide by our 1986- 1988 collective-bargain- ing agreement and any successor agreements with Local Union 1547, as such representative . The appropriate unit is: All journeymen and apprentice wiremen, techni- cians, splicers, and material handlers employed by us, excluding all other employees, guards, and su- pervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL comply, retroactively to December 23, 1987, with the terms and conditions of the 1986-1988 collec- tive-bargaining agreement, and any successor agreements with Local Union 1547, including wage rates, fringe ben- efit payments, hiring hall provisions, and union-security requirements. WE WILL make our employees whole for losses in- curred, with interest, because of our failure to abide by the terms and conditions of the 1986-1988 collective-bar- gaining agreement or applicable successor agreements with Local Union 1547, including wage rates and fringe benefit payments, hiring hall provisions, and union-secu- rity provisions. 42 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 " TWIN CITIES ELECTRIC, AND BIG G ELEC- TRIC & ENGINEERING, INC.