James Troutman & Associates, And Sync-Pop, Inc.

120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD James Troutman & Associates, and Sync-Pop, Inc. and Motion Picture and Videotape Editors' Guild Local 776, International Alliance of The- atrical and Stage Employees Sync-Pop, Inc. and C. Dellinger and Susan Holz- born and Tom Whiting. Cases 31-CA-16176, 31-CA-16346, 31-CA-16462, 31-CA-16518, and 31-CA-16733 July 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On November 29, 1989, Administrative Law Judge Richard J Boyce issued the attached deci- sion The Respondents filed exceptions without a supporting brief, the General Counsel filed an answer to, and motion to strike, exceptions, and the Respondents filed a document opposing the Gener- al Counsel's motion to strike 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 has decided to affirm the judge's rulings, findings,' and conclu- sions for the reasons set forth below, and to adopt the recommended Order Section 102 46(b)(1) of the Board's Rules and Regulations sets forth the minimum requirements with which exceptions to an administrative law judge's decision must comply in order to merit consideration by the Board An excepting party must (1) specifically set forth the questions of pro- cedure, fact, law, or policy to which exception is taken, (2) identify the portion of the judge's deci- sion in dispute, (3) cite precisely pages in the record supporting the excepting party's exception, and (4) concisely state the grounds for exception If a supporting brief is filed, the exceptions document shall not contain argument or case citation, but, If no supporting brief is filed the exceptions document shall also include the citation of au- thorities and argument in support of the excep- tions, in which event the exceptions document shall be subject to the 50-page limit as [set forth] for briefs [Sec 102 46(b)(1) ] The Respondents filed exceptions without a sup- porting brief The Respondents' opposition docu- ment acknowledges that the brief submitted to the judge, which is attached to the exceptions docu- ment, is not submitted to the Board in support of , The Respondents' request for oral argument is denied the exceptions 2 Thus, the exceptions document must, in addition to satisfying the first four require- ments listed above, support the contentions with "the citation of authorities and argument" Id The Respondents' exceptions document is 100 pages and contains 218 exceptions Exceptions 1 through 215 specify the portion of the judge's deci- sion that is claimed to be erroneous Part of each exception is a comment The Respondents appar- ently suggest either (1) that it is sufficient to identi- fy the portion of the judge's decision to which ex- ception is taken or (2) that the comments satisfy the Rule's requirements that argument and citation to the record be included If the exceptions suf- fered merely from technical deficiencies, the Board might well proceed to the merits of the case, as it is within the Board's perogative to consider excep- tions that do not fully comport with the Rules so long as there is substantial compliance 3 However, after carefully reviewing each of the Respondents' exceptions, the Board finds that they are so deficient as to warrant striking Most of the exceptions cite no legal authority and no transcnpt pages or any other record evidence that purported- ly would support the contention that the judge erred Further, the exceptions fail to allege with particularity on what grounds the judge's purport- edly erroneous findings should be overturned De- spite the comments, the Board has been unable, based on the exceptions document, to determine what the grounds for the exceptions are, what the Respondents believe the facts of the case to be, or what the Respondents' legal arguments are 4 In Alto° Painting Corp. 238 NLRB 366 (1978), the Board stated If a party intends to place a matter in issue, it is incumbent upon that party to notice such 2 Indeed, it could not be, for such a supporting brief would exceed the 50-page limit and the Respondents have not obtained permission to exceed the length limit Additionally, we observe that the Respondents are incorrect that the Board's Rules set no page limit on exceptions Sec 102 46(bX1) clearly states that an exceptions document unaccompanied by a supporting brief is subject to the 50-page limit unless permission to exceed the limit is ob- tamed Notwithstanding the Respondents' failure to seek permission to file its nonconforming exceptions document we shall, nevertheless, not reject it on that basis 3 Monarch Machine Tool Co, 227 NLRB 1265 fn 2 (1977) 4 Indeed, we note that the exceptions are "so ambiguous as to be total- ly ineffective to adequately appnse the Board" of the nature of the alle- gations raised NLRB v &fistula Bros Lumber Co. 253 F 2d 371, 374 (9th Cir 1958) Cf NLRB v Southwest Security Equipment Corp, 736 F 2d 1332 (9th Cif 1984), cert denied 470 U S 1087 (1985) (exceptions which objected to judge's finding and conclusion of law regarding refer- ral and were supplemented 15 days later by bnef raising legal issue of the survivability of the hiring hall clause were timely filed under Sec 102 46(b) The Instant case Illustrates the need for this rule The hearing lasted 19 days, the record Includes over 3100 transcript pages as well as approximately 100 accepted and 100 rejected exhibits, many of which contain numerous pages Undoubtedly, the issues litigated were factually as well as legally complex 299 NLRB No 19 JAMES TROUTMAN & ASSOCIATES 121 contentions to the Board with specificity By its "exceptions" here, Respondent would have the Board engage in a fishing expedition to de- termine what, if any, problems, irregularities, or manifest error ensued The Board has neither the obligation nor the re- sources to engage in such a fishing expedition It is the excepting party's duty to frame the issues and present its case to the Board 5 Accordingly, we find that the Respondents' ex- ceptions fail to put in issue any of the findings of the judge We therefore grant the General Coun- sel's motion to stnke the exceptions, and we adopt the judge's decision 6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, James Troutman & Associates, and Sync-Pop, Inc , Bur- bank and Glendale, California, their officers, agents, successors, and assigns, shall take the action set forth in the Order 5 In addition to the case cited in the text, see Worldwide Detective Bureau, 296 NLRB 148 (1989), Bonanza Sirloin Pit, 275 NLRB 310 (1985), Fiesta Printing Co, 268 NLRB 660 (1984), and Ditch Witch of Central Illinois, 248 NLRB 452 (1980) We recognize that in many of the cases we cite, the Board faulted the excepting party for failing to identify the portions of the judge's decision that were claimed to be erroneous and that the Respondents' exceptions do identify the portions of the judge's decision to which exception is taken Nonetheless, as our decision and our rules make clear, the except- ing party's obligation does not end with a wholesale listing of specific pages and lines in the judge's decision to which exception is taken It must be possible for the Board to understand from a reading of the ex- ceptions why the excepting party believes that the Judge erred and what significance the purported error has on the outcome of the case If the Board is unable to determine the grounds on which a party believes the judge's findings should be overturned, the Board cannot be required to search the record as an advocate for the excepting party To the extent that exceptions 2, 6, 18, 22, 24, 29, 30, 31, and 154 ar- guably comply with Sec 102 46(b), we find that they lack ment or the Respondents have failed to show how these exceptions would affect the judge's conclusions See Worldwide Detective Bureau, supra at 3 fn 3 Mon Pam Rubin, Esq, for the General Counsel James W McCord, Esg (Vars, Pave, McCord & Freed- man), of Encino, California, for Respondent 'Trout- man Michael K Schnuer, Esg (Schmier & Schmier), of Los Angeles, California, for Respondent Sync-Pop Ira L Gottlieb, Esq (Taylor, Roth, Bush & Geffner), of Los Angeles, California, for Local 776 DECISION STATEMENT OF THE CASE RICHARD J BOYCE, Administrative Law Judge This matter was tned in Los Angeles, California, over 19 days, starting on March 8, 1988, and concluding on Janu- ary 26, 1989 1 The consolidated complaint, based on charges filed by Motion Picture and Videotape Editors' Guild Local 776 (Local 776), International Alliance of Theatncal and Stage Employees (IATSE), and by three individuals, Craig Dellmger, Susan Holzborn, and Tom Whiting, al- leges in essence that James Troutman & Associates (JT&A) and Sync-Pop, Inc (Sync-Pop) are alter egos and a single employer, or, alternatively, that Sync-Pop is JT&A's successor, and that they violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) by (a) Sync-Pop's refusal, since its inception in Octo- ber 1986, to assume the bargaining obligations de- volvmg upon it as JT&A's alter ego or successor, (b) Sync-Pop's failure, since at least March 3, 1987, to submit contractually-mandated reports and contnbutions to pension and health-and-welfare trusts, (c) Sync-Pop's failure, since May 1987, to comply with its contractual obligation to submit to arbitra- tion, (d) Sync-Pop's refusal to comply with arbitration awards adverse to JT&A, (e) JT&A's failure to honor Local 776's requests of October 23, 1986, that it bargain concerning the effects on its employees of changes in its operations, and that it provide Local 776 with specified infor- mation regarding JT&A's circumstances, and, (t) Sync-Pop's failure to honor Local 776's re- quest of January 23, 1987, that it provide Local 776 with specified information regarding Sync-Pop's cir- cumstances The complaint further alleges that Sync-Pop violated Section 8(a)(2) and (1) of the Act on about October 20, 1986, when its president, Clancy Troutman, "urged its employees to sign IATSE authonzation cards", and that Sync-Pop violated Section 8(a)(1) in March or April 1987 when Clancy "threatened" Susan Holzbom, an em- ployee, "with discharge and other adverse consequences because a grievance was filed by the Union concerning her" I JURISDICTION JT&A and Sync-Pop are California corporations JT&A was engaged in postproduction sound editing in the film industry until purportedly becoming inactive in October 1986 Sync-Pop came into being that same month, and since has been engaged in the same business JT&A's 1986 revenues exceeded $50,000 from produc- tion companies whose annual revenues from outside Cali- fornia exceed $50,000 Sync-Pop, in its first year, realized revenues exceeding $50,000 from outside California Trial dates were March 8 to 11, March 21 to 23, March 29, April 26, September 22 and 23, November 8 to 10, and December 20 and 21, 1988, and January 24 to 26, 1989 The delay from April 26 to September 23 was to enable the General Counsel to obtain subpoena-enforcement orders in Federal district court 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on my determination below that Sync-Pop is JT&A's alter ego, I conclude that the two, jointly, are an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATIONS I conclude that Local 776 and IATSE, its parent orga- nization, are labor organizations within Section 2(5) of the Act III THE RELATIONSHIP BETWEEN JT&A AND SYNC- POP A Evidence JT&A had been in the postproduction sound business for about 4 years until ostensibly shutting down on about Friday, October 10, 1986 James Troutman (Jim) was its sole owner, president, and ultimate decision maker It was awash with economic problems as of October 1986—it reportedly owed $750,000 in back payroll taxes to the Internal Revenue Service, it was nearly $120,000 behind in contnbutions to pension and health and wel- fare trusts as required by union contract, it was party to three grievance matters later to result in awards against it totaling about $82,000, and it recently had been unable to meet its payroll Its last location, which it had occu- pied for a month or so, was a building on Clybourn Avenue in Burbank It previously had been headquar- tered on Chestnut Street, and also occupied leased space on Lake Street, both in Burbank Sync-Pop emerged as a corporate entity earlier the week that JT&A closed, and began performing postpro- duction sound services, at a facility on West Broadway in Glendale, on Monday, October 13 In November, to accommodate the extraordinary requirements of the tele- vision miniseries, "Amerika," it expanded into the space on Lake Street formerly used by JT&A, which it used for several months Jim's son, Clancy, now in his late twenties, is Sync-Pop's president and supposedly has been in charge from the beginning Jim's daughter, Casey, is Sync-Pop's vice president and corporate secre- tary The record contains no hint that she has participat- ed notably in the management of the enterpnse She did not testify 2 Clancy testified that he and Casey are Sync-Pop's sole shareholders, that he "believe[s]" that each owns 10,000 shares, and that he is "guessing" that the shares were issued in October Asked the amount of his investment, 2 Sync-Pop classified Casey as an apprentice on an employee list given IATSE on about October 20, 1986, then informed IATSE by letter of October 24 that she should not have been on the list As if to convey the impression, in any event, that she is a hands-on administrator, Casey signed Sync-Pop's brief Oddly the typeface on the signature page does not match that on the rest of the document—a possible indication that her signing was a strategic afterthought A footnote accompanying Casey's signature states "Albeit still repre- sented by counsel, Sync-Pop intends no slight by submitting this docu- ment Itself as it had to make the strategic decision to conserve its limited financial resources for subsequent proceedings despite its prayer that such will be unnecessary" This is a ruse (the point of which one can only sur- mise) For all its unlawyerly recklessness (some of which have dealt with by separate order of this date granting the General Counsel's motion to stnke), the bnef bears the unmistakable imprint of an attorney Clancy testified, "I'm guessing about $14,000, maybe— maybe a little more" Casey "contributed $8000 to Sync- Pop in the form of a loan," according to Clancy 3 Clancy testified that Jim has never invested in or lent money to Sync-Pop Jim Did not testify 4 Clancy testified, variously, that he had "always wanted to own [his] own company", that he "was trying to figure out ways for starting a company up "about 2 weeks before JT&A's demise, that he spoke with Jim about his aspirations "about three weeks prior to when everything actually hit", 5 that he is "not really sure when [he] decided to put everything together", that he made the decision before speaking with Jim, and that he decided "after JT&A was no longer in business" Clancy continued that he is "not sure" if Sync-Pop was incorporated before JT&A's cessation, that he is "guessing" he and Casey discussed incorporating and lo- cating space after JT&A had closed, that he also is "guessing" he decided on the Sync-Pop name after seeing an attorney, which he thinks was on October 6, that he thinks—"I'm guessing"—JT&A was still func- tioning when he conferred with the attorney, that he thinks—"again, I'm not sure"—the search for a Sync- Pop facility began "after" JT&A had quit, that he thinks Casey found the West Broadway location, that he thinks he waited till after JT&A's closure to solicit business for Sync-Pop, but "might have" proceeded earlier, that he thinks—"but, again, I'm not sure"—JT&A's finish and Sync-Pop's beginning were separated by "a week in there, maybe two", and, at length, that he does not "re- member that time that well" JT&A's complement in its final day or two consisted of approximately 36, not counting Jim 6 Sync-Pop's, in its first 2 weeks, numbered about 31, counting Clancy and Casey, but not Jim Clancy conceded under cross-ex- amination, after earlier testifying that less than half of Sync-Pop's employees had come from JT&A, that "almost every one of' the initial 31 or so previously "had worked for" JT&A, and that all but 6 had been with JT&A at the end 7 By about December 1, largely because of the demands made by "Amenka," Sync-Pop's payroll ballooned to over 50, where it remained into February 1987—of whom roughly 90 percent had worked for JT&A JT&A's workload at the end consisted mainly of two television series, "Heart of the City" for 20th Century Fox and "Jack & Mike" for MGM Its supervising sound editors on those series were Don Flick and Dave Cald- well, respectively Sync-Pop succeeded JT&A on both, 3 Clancy testified that Casey since has repaid the loan The record does not reveal the lender's identity or any other particulars 4 Sync-Pop represents in its bnef "The presently ongoing tax litigation caused Jim's tax lawyers to discourage Jim from testifying herein to pro- tect his positions and constitutional rights" Neither Sync-Pop nor JT&A explained his absence dunng the trial 5 Clancy amplified 'I mean when everything came down on [Jim] at once, having no money, bouncing the checks, when everything started to fall apart" 6 This figure derives from the weight of alternative evidence, JT&A's payroll and other records having vanished sometime before the trial Sev- eral of JT&A's employees were laid off in its final days and weeks 7 Eschewing Clancy's concessions on cross, Sync-Pop states in its brief that "less than half of Sync-Pop's employees came from JT&A " JAMES TROUTMAN & ASSOCIATES 123 effective the first week at West Broadway, retaining Flick and Caldwell m their supervisory roles The record contains no evidence, nor gives any reason to suppose, that the contracts between JT&A and the pro- duction companies were redone to make Sync-Pop an explicit party, or that Sync-Pop compensated JT&A for acquiring its unfmished business 9 Sync-Pop's timecards disclose that it began working on four other projects in its first week of operation "Murder She Wrote" for Umversal City Studios, "Amer- ika" for ABC Circle Films, "Perry Mason" for Viacom Productions, and "Anastasia" for Telecom JT&A had been involved until late September on "Murder She Wrote" Universal itself then supplanted JT&A for that season's last few episodes, presumably because of JT&A's proliferating difficulties, after which Sync-Pop took over for the new season The supervising sound editor on "Murder She Wrote" throughout—for JT&A, for Universal, and for Sync-Pop—was Tony Magro JT&A also had done some preliminary work on "Amer- ika," and had been destined to do all of that show's post- production sound work Clancy termed "Amenlca" one of Sync-Pop's "main shows" in its first year JT&A had links to "Perry Mason" and "Anastasia," as well It had worked on an earlier "Perry Mason" project while at Clyboum, and previously had collaborated with the di- rector of "Anastasia," Marvin Chomsky Later m October, Sync-Pop worked on a show, "Tiger Shark," on which JT&A had worked in its final week The record contams no evidence that any of JT&A's works in progress, at the end, were taken over other than by Sync-Pop Douglas Gnndstaff, a vice president at Lorimar Pro- ductions, testified that Jim is "one of the fmest editors m the business," and Clancy opined that Jim "has more [following] than anybody in this town" The evidence is abundant and uncontroverted that Sync-Pop acquired most of its business—that inherited from JT&A and oth- erwise—largely because of representations by Jim and Clancy that Jim's mvolvementbe another company formed and Clancy would be running it," he, Jim, "would still be there to do the su- pervision of the dubbing stage" for "Amenka " ABC Circle Films decided to use Sync-Pop m reliance on that assurance A subsequent ABC internal memorandum refers to Jim as the "owner of Sync-Pop" 8 Flick later was replaced by Alan Hartz ° James Lusk, a 20th Century Fox vice president, testified that, had he perceived Sync-Pop to be separate from JT&A, he would have solicited bids for the work remaining on "Heart of the City," but that, relying on Jim's assurances, he did not deem that necessary Similarly, Clancy told Charles Goldstein, an executive at NBC Productions, that he "would be taking over the company," but only "on paper," and that Jim "would be still there" NBC presently awarded three shows to Sync-Pop 10 And Lonmar's Gnndstaff testified that Lor- imar gave Sync-Pop considerable business "basically be- cause of" Jim, and only after verifying that he "was in- volved" Clancy added that Lonmar engaged Sync-Pop to do "Aaron's Way" because Grmdstaff "wanted Jim to do that picture, period, no if s, and's, or but's " Sync-Pop opened shop with the identical sound effects library and much of the same equipment JT&A had used—which had been moved from Clyboum to West Broadway the weekend of October 11-12 The equip- ment included moviolas, cutting benches, trim bins, dub- bing machines, tape dispensers, splicers, and synchroniz- ers Filing cabinets containing JT&A's records were moved, as well Clancy testified that he "thmk[s]" Sync- Pop rented a truck for the move, then qualified "I don't know if Sync-Pop did It might have been myself" Clancy testified that, while he does not know "exactly what was moved" and Jun "didn't even keep records of what he owned," nothing belonging to Jim or to JT&A was included Clancy enlarged that the library and "half of' the equipment that was moved "belonged to" him, and had been rented to JT&A, and that the rest of the equipment belonged to equipment rental houses Heavy reliance on rental equipment is common in the industry Clancy went on that he "didn't touch anything" of Jim's or JT&A's "mainly because of the IRS problems "11 Despite Clancy's supposed ownership of the library materials and equipment, they bore JT&A labels while at Clyboum Sync-Pop labels were substituted after the move Clancy testified that he had used the JT&A labels because they were "the only labels [he] had to show that it was [his] equipment, so no one else took it" The record contains no documentary corroboration of a rental arrangement between Clancy and JT&A as con- cerns these or any other items allegedly owned by Clancy, and is devoid of evidence that Sync-Pop in- curred any kind of obligation to Jim or JT&A in return for the transfer of things to its use Although admitting he spoke with Jim about forming a business, and that Jim gave him "pointers on people to call," Clancy would have it that Jun had nothing to do with Sync-Pop's creation Clancy embellished that Jim "wasn't around" at the time, that he was "very dis- traught emotionally," that he was "a mess," and that he was "talking about suicide" Clancy asserted, as well, that Jim had suffered a heart attack "towards the very end of" JT&A or "right after the company closed" This last was a blatant fabrication Paul Clay, a personal friend of Jim and his second-m-command at JT&A, testi- fied that he "didn't hear anything about him having a heart attack," and that he and Jim continued to play rac- quetball together Moreover, Jun oversaw the dubbing of "Amenka" starting in November That entailed his 10 "Blue DeVille," "Christmas Eve," and "Open Season" ii All of JT&A's things later were confiscated by IRS, according to Clancy, after which he assertedly acquired some of them at an IRS auc- tion 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD working "almost 24 hours a day" for "about three months," according to Clancy, "even [sleeping] on the stage on the floor sometimes"—an unlikely regimen for a recovering heart attack victim Jim, as earlier noted, did not testify Clancy went on that he "didn't talk to Jim in October at all," and that they first talked about JT&A's IRS di- lemma about "a month later," when Jim told him that IRS "had taken everything" Clancy added that, while Jim talked to him "a little bit" about JT&A's tax and union problems, those instances were rare He elaborat- ed [H]e couldn't talk to me about it He got very upset He would get very nervous [H]e would stut- ter and shake, and he couldn't talk about it at all He also said that his attorneys had told him not to talk to me about it because he wasn't protect- ed in the sense of anything he said to me they could ask me about So, he really didn't speak too much to me about it Every time we did, I'd try to mention anything about it, he got very upset And didn't want to see him have another heart attack Clancy to the contrary, Jim unquestionably was a con- siderable—and probably the major—force behind Sync- Pop's founding Not only did he and Clancy assure pro- duction companies, as previously detailed, that Jim's in- volvement would continue and that Clancy was taking over only "on paper,"" but (a) Jim stated during an employee meeting at Clybourn that fiscal problems would necessitate the "short layoff" of a number of them, then announced that a new compa- ny was being created, that a search for a building to house it was underway, that those laid off would be re- called "as soon as possible," and that "business would continue as usual" (b) During a later employee meeting at Clybourn, after acknowledging JT&A's payroll arrearages," Jim repeat- ed that a new company was in the offing, implored the employees to "stick with" him, and pledged that they would be made whole when the new company obtained a tax number Jim added that he would see that they had union pension and health and welfare coverages by put- ting a "bug" in the ear of IATSE Local 695's James Osburn (c) Jim physically assisted in the move from Clybourn to West Broadway, and personally moved JT&A's records to West Broadway (d) Shortly after the move, Jim thanked the assembled employees at West Broadway for "sticking by" him, and 12 Attempting to downplay the import of these assurances about Jim's ■ continued participation, Sync-Pop states in its bnef "If an important member of a company's team is absent It is critical to assure clients and customers that he is largely still Involved, even if reality is different and he has much less contact or control This is a 'truth' in the private sector Clients have to be 'assured of 'continuity,' that changes are merely technical or 'on paper' If Clancy perceived that obtaining certain customers would be enhanced by leading them to believe no big changes were afoot, It was no admission but rather the hyperbole of marketing" IS Attributing them to "trouble with the IRS" told them the delinquencies in their pay would be cured "as soon as" a new tax number materialized (e) Echoing his representation to NBC's Goldstein, Clancy told Susan Holzborn, the sound effects librarian for both JT&A and Sync-Pop, that he "would be run- ning the business, but it was only a matter on paper" Further indicative of Jim's appreciable involvement in the emergence of Sync-Pop, he initiated a meeting on about October 20 with Ronald Kutak and Corrmne Notkm, executive director and assistant executive direc- tor of Local 776 He told them he had "disbanded" JT&A, but that his children "had started another compa- ny," called Sync-Pop, and he wanted "to make sure that the transition went smoothly" He particularized that he wanted to know "the mechanics" of the new company's "signing an agreement with" IATSE, and about the roster status—i e, the standing on the employ- ment priority JT&A employees absorbed by Sync-Pop True to Jim's word, Sync-Pop issued checks to many of the former JT&A employees to redress JT&A's pay- roll delinquencies About 40 received such checks for time worked in the October 5-11 pay period," and a number received checks for earlier periods, as well As if mindless of Jim's promises, Clancy testified that the deci- sion was his alone, that Jim had not requested that Sync- Pop do it, and that he took the action "not because [he] owed anybody money," but because he "wanted those people to work for" Sync-Pop Otherwise, Clancy ex- plained, "there's no way in hell they would even talk to me, let alone come to work for me" Most of the check recipients already were on the Sync-Pop payroll, however, and Clancy professedly was not interested in hiring two who were not' 5—details he had overlooked when proffering that explanation Per- haps in belated recogmtion of this discrepancy, Clancy later advanced other reasons for making the JT&A em- ployees whole he did not want the Troutman name "tar- nished in any way," and "a lot of those people were hurting for money at that time Asked how Sync-Pop knew the amount of JT&A's payroll arrearages, Clancy first ventured that he "think[s]" he got the figures "from cancelled checks" shown him by the affected people, 16 later retreating into a cloud of uncertainty–that he is "not sure" how the amounts were ascertained, that he does not "remember any of that," that "you're asking me something that I'm real foggy on," and that he does not "know why it all came about" Jim also told Local 776's Kutak and Notkm, during their meeting on about October 20, that he had been ad- vised by a lawyer that he "couldn't have anything to do on paper with any new company", that the lawyer had cautioned against his being "either an officer or major " As noted above in fn 6, JT8cA laid off some employees in the days preceding its shutdown This doubtless explains why about 40 received checks for work done in JT&A's final pay period, whereas about 36 were employed in the last day or two of that period is The two Joaquin Elizade and John Shouse 16 Clancy probably meant to say "bounced" or "void," rather than "canceled" Some of JT&A's paychecks did bounce, and it did Issue some void checks JAMES TROUTMAN & ASSOCIATES 125 owner for various legal reasons", that he conse- quently was "being very careful Just to act as a consult- ant, not receiving a salary", and that he "wanted to be more involved in the creative end of the business" anyway Notkm asked, concerning the lawyer's advice, if he was "talking about problems with alter ego or pierc- ing the corporate veil" Jim replied that those "sounded like some of the terms" the lawyer had used Jim ex- plained that he was fearful that IRS would seize Sync- Pop's assets if he were a shareholder or officer, or any- thing but "a consultant" Clancy likewise sought to portray Jim as divorced from the ongoing management of the new company, tes- tifying alternately that Jim is and has been "just a super- vising sound editor," no different from several others so designated, and that he is an "independent contractor," whose services have not been confined to Sync-Pop The evidence otherwise indicates, however, that Jim was hardly a cipher in the conduct of Sync-Pop's affairs Clancy admittedly asked him for advice "many a time"," Jack Keath, a Sync-Pop sound editor formerly with JT&A, recalled that Jim seemed to do the same things for both companies," Mark Roberts, another of the JT&A sound editors absorbed by Sync-Pop, testified that Jim "didn't appear" to have a changed role with Sync-Pop," Tim Shoemaker, yet another of the before- and-after sound editors, recounted that Jim continued to do "what he always did", 2° Dwayne Avery and Dale Johnston, sound editors also carned over, testified that Jim devoted most of his time to the dubbing stage before and after, and Susan Holzborn, the librarian, averred that Jim's function stayed "the same" after the move to West Broadway 21 That Jim had a voice in the management of Sync-Pop is disclosed in other ways, as well a) Randall Zisk, an assistant producer for 20th Century Fox on "Heart of the City," testified, "I never realized a difference in the company, so Jim was always my con- tact regardless of the name of the company" b) Lonmar's Grmdstaff testified that he dealt with Jim, as well as Clancy, concerning Sync-Pop's bid on a series called "Spies," and that he "may have" discussed other of Sync-Pop's bids with Jim 22 14 Clancy hastened to add that he also asked numerous others for guid- ance 12 Keath elaborated that Jim appeared at the Lake Street facility "on occasion" after the name change, asking "how's everything going" and if "there was any problems or anything like that" 12 Roberts enlarged that he saw Jim with "about the same" frequency before and after-2 or 3 days each week, either in the early morning or at day's end Roberts also testified that he saw Jim "erasing and putting up the new shows and dates" on Sync-Pop's scheduling board "about once a week" 24 Shoemaker amplified that Jim continued to give "direction to" the employees and to "make sure everything was okay" Si Holzborn added that she saw Jim at West Broadway .three or four times a week," at which times he asked the employees "about the status" of their work, that she saw Jim tell Clancy what producers were offenng to pay for different projects and what Sync-Pop's costs and profits would be, that she saw Jim advise Clancy which shows were coming in and would need to be dubbed, and that she saw Jim tell Clancy that, since he would be busy, Clancy would have to attend dubbing sessions in his place 22 Gnndstaff's "may have" came across as an unambiguous declaration that he Indeed did discuss bids with Jim (c) Shortly after the move to West Broadway, Tim Shoemaker told Clancy that he would not work in "this shithole" and was quitting Jim intervened, prevailing upon Shoemaker to stay by transferring him to Lake Street (d) Ed Fassl's Sync-Pop timecard for the week ending October 25, 1986, contains the entry, "Day off okayed by J T ", 23 and Shoemaker's for November 8 bears this instruction "Per Jim, Sunday not on-call day, do not pay '924 (e) When Holzborn asked Clancy for a raise in March 1987, he presented the issue to Jim, who responded, "Well, of course, she deserves it" Holzborn thereupon received a 15-percent increase (1) In April 1987, Jim denied Holzborn's request for time off, explaining that Sync-Pop was going to be "very busy" Consistent with Jim's statement to Kutak and Notkm that he was "not receiving a salary" from Sync-Pop, he did not receive a paycheck until January 22, 1987, al- though, by Clancy's reckoning, he had worked "almost 24 hours a day" since the preceding November oversee- ing the dubbing of "Amenka " Clancy first testified that he "took care of' Jim before that first paycheck by per- sonally giving him cash Clancy later amended that he did not give Jim cash, but "just took care of him" in other ways—e g, making three $600 rent payments for him, taking him food, and buying him a television set and a racquetball racket, and that none of this was in payment for work performed by Jim Clancy testified yet again that he "took care of' Jim by givmg him cash, but that he is "not sure how often [he] gave him cash", and stated still later that he is "not sure" what he paid Jim for his work on "Amenka," but that he "probably" gave him cash Clancy added "I might have graven him a personal check from me I just really don't remember" Asked why Sync-Pop did not pay Jim in the conven- tional manner during those first several weeks, Clancy testified initially that Jim had said any paychecks "would automatically go the IRS", and later, "Maybe I didn't have the money I'm not really sure" Jim's first check was for $2200 He thereafter received a weekly check for $1,100 until September 1988, when the figure was increased to $1500 Unlike the other supervising sound editors, he was not paid overtime until well into 1988, and, according to Angela Jensen, Sync-Pop's prin- cipal secretary and bookkeeper, 25 he "never fills out a timecard" Rather, Jensen has calculated his entitlement, since he began receiving checks, "by what he told [her] he had worked" As Sync-Pop's putative head, Clancy evidently has been its signatory on contracts, bid proposals, corre- 23 I Infer that the "J T" in this entry is Jim Angela Jensen, Sync- Pop's pnncipal secretary and bookkeeper, testified that, Jim aside, she knows of no one in a position of authority with the initials "J T" 24 I have no doubt that the "Jim" referred to in this instruction is Jim Clancy testified that It "could be" Jim, then hedged, "But I wouldn't guess It would be Jim" Clancy did not venture who else It might be "Jensen denied that she is Sync-Pop's bookkeeper In a declaration filed in Federal District Court, however, she stated that she "function[s] as a bookkeeper" for Sync-Pop 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondence, etc, from the start He, Casey, and Jensen— two of the three—sign Sync-Pop's checks He testified that only he has authority to hire, fire, and grant raises, that, with the help of others, he prepares bids, and, as earlier noted, that he alone decided to make former JT&A employees whole for JT&A's payroll arrearages Doubtless to demonstrate both that he was in charge and that Sync-Pop is not a JT&A clone, Clancy testified that he established new wage levels for Sync-Pop's em- ployees "from day one", that he advised the first em- ployees, on October 13, of their hire, and that he "imme- diately" instituted a "team concept" in lieu of Jim's more authontanan approach at JT&A Regarding the new wage levels, Clancy testified that he gave all the supervising sound editors $200 per week over the union scale they had been getting at JT&A, and all the other sound editors $100 over His purpose, he went on, was to provide "incentive to come work for" Sync-Pop Dale Johnston, previously identified as one of the carry-over sound editors, testified that the Sync-Pop editors "were disenchanted with the lack of pay," how- ever, and Clancy eventually conceded, in grudging stages, that far from everyone received such raises Thus, after his earlier unequivocal assertions, he relented that he "thought" everyone did, then, that he thought "the majority" did, later, that "not everybody, but some people," did, and, finally, that at least 21 named employ- ees—about two-thirds of Sync-Pop's starting payroll— did not Asked how he decided who should get the raises, since they were not across-the-board after all, Clancy offered, "I might have paid them more after knowing what they made [at JT&A], or maybe [I] just paid them more if they'd asked for more" Asked when he decided to hire those comprising Sync-Pop's initial complement, Clancy testified that he is "not real sure on that," but that he "might have" asked—no, that he did ask—some of the people before October 13 Invited to name them, he replied, "I don't know, offhand," adding, "I think it would have been at the Clybourn address, or possibly at home" Angela Jensen likewise testified that Clancy independently hired those on the first Sync-Pop payroll Pressed to substanti- ate that assertion, she exhibited a lameness matching Clancy's, first replying, "Because I know he hired them", then, "I just know, later, that Clancy had told her he had "hired so-and-so," and, finally, "I don't re- member how it happened "26 Clancy and Jensen notwithstanding, Sync-Pop's ab- sorption of the JT&A payroll, largely intact, was never in doubt Not only is corroboration nonexistent from any of the affected employees that they underwent the for- mality of being hired anew, but Jim in effect assured them, during the aforementioned employee meetings at Clybourn, that their jobs would survive even though a new company, at a new location, was on the way In ad- dition, Clancy advised various of the JT&A employees, in the final days at Clybourn, to "be ready to move at a 26 This is one of several glaring instances of Jensen's evasive testimoni- al style Subpoenaed by the General Counsel, she refused to testify until directed to do so by a Federal District Court subpoena-enforcement order moment's notice" and to mark the equipment they used to ensure their having the same after the move Further, Mark Roberts, credibly testified that Jackie Troutman, Jim's wife, "just told" him to "show up" at West Broad- way, and that it seemed to him "like [an] automatic transfer", 27 Paul Clay testified concerning his going to Sync-Pop that he "wasn't hired as such," but "was just there", and Tim Shoemaker recalled Jim's telling him on Friday that he would "be starting over at Broadway" the next Monday Moreover, in a conversation on about October 20 with James Osburn, executive director of Local 695, Clancy described certain former JT&A em- ployees not yet working for Sync-Pop as being "on va- ,cation " Concerning Clancy's purported institution of a "team concept" at Sync-Pop, he testified, prompted by counsel, that he was inspired by the example of a Japanese-Amer- ican automobile manufacturing collaboration in the Los Angeles area Dale Johnston, attempting to corroborate Clancy,28 testified that Sync-Pop's procedure for "pull- ing" sound effects is "completely different" from JT&A's more Jim-dependent method Neither Clancy nor John- ston elaborated convincingly on these would-be depar- tures from the JT&A mode, however, and Clay, while plainly reluctant to testify adversely to the JT&A/Sync- Pop cause," testified that Sync-Pop did not institute any new procedures of moment Clay appended that "those sort of things tend to be pretty standardized throughout the business,', which is why a sound editor can change companies and "start work as he walks through the door" Clancy had worked for JT&A for the 4 or so years of its existence He testified that he was "a transfer man, driver, assistant, apprentice," while at JT&A Never, before Sync-Pop, had he been a sound editor, participat- ed in bid preparation, hired, fired, evaluated employees, assigned work, or dealt with producers or other studio representatives Johnston testified that Clancy "wasn't qualified" for his ostensible Sync-Pop role, that he "did not know what we basically do" and "everybody knew that he didn't know it" Johnston added that Clancy was not permitted near the moviolas at JT&A, explaining "[W]e didn't want him to break [them] " Despite Clancy's callowness, Johnston would have it that he "without question" ran Sync-Pop from the outset "He made many mistakes," Johnston continued, but he "took the bull by the horns" Clay likewise testi- fied that Clancy "was the head of the company", Jack Keath recalled hearing "through the scuttlebutt," then from Clancy directly, that Sync-Pop was "being run" by him, and Jim announced to the employees, in the early days at West Broadway, that Clancy and Casey "would be taking over the business" Others indicated, without 27 Clancy testified that Jackie "worked with the books" at JT&A 22 Johnston displayed an unmistakable predisposition, by both his de- meanor and the content of his recital, to slant his testimony favorably to JT&A and Sync-Pop 29 Clay, obviously a bnght person, often hid behind an unconvincingly stated inability to recall details of events and conversations surrounding JT&A's demise and Sync-Pop's emergence JAMES TROUTMAN & ASSOCIATES 127 suggesting that Clancy had ultimate authority, that he had some management responsibility 30 Abstractions aside, Johnston testified that he "as- sumed" most of the administrative duties that had been Jim's at JT&A, indeed, that he considers himself a "guid- ing light" and a "phantom owner" because of the degree of his involvement in Sync-Pop's direction Johnston am- plified that he has "provided a tremendous amount of support for" Clancy, that he "suggested to" Clancy whom to hire and fire, that he "did the best [he] could to surround him with personnel that" both Clancy and he needed "to survive", that he even "waived" his pay on occasion "trying to make the company survive", that he "became the floor manager and most questions and an- swers" came to him, and that he helps Clancy prepare bids 31 Clancy admittedly has taken problems to Johnston "a lot of times" He depicts Johnston as a "big brother, father-type" to him 32 Johnston and Clancy's father have been friends since their high-school days some 40 years ago Johnston testified that he and Jim "cned together" over Jim's misfortunes Of possible relevance to the question whether Clancy truly was in charge of Sync-Pop at the beginning, apart from evidence earlier cited (a) He concededly spent "a good portion of [his] time" in the transfer room in Sync-Pop's first few weeks He had been a transfer man, primarily, at JT&A (b) Asked what Sync-Pop's employees did in the first week at West Broadway, Clancy testified "God, I'm really not sure It should say on the timecards" (c) While Sync-Pop's timecards reveal that it worked on "Murder She Wrote" in the first week, Clancy testi- fied that he did not think it did anything on that show in the first 3 weeks, then acknowledged "I don't know anything about 'Murder She Wrote' I'm lost on that show" (d) Although Clancy testified early in the trial that Tony Magro worked for Sync-Pop from the beginning, and timecards confirm this, Clancy later testified that Magro "was not in [his] shop," that he does not "know why [he] paid him," that he "just can't explain that," and that he is "confused on what happened with Tony" (e) Jim's wife, Jackie, worked several months for Sync-Pop, starting in October, being paid S800 weekly Clancy nevertheless first testified that he did not "think" she was on the payroll, later amending in the face of documentary evidence that he "had just forgotten" 30 Thus, Roberts testified that he "followed" Clancy's orders, and Shoemaker, by proclaiming his adamant refusal to take orders from Clancy, left no doubt that Clancy was giving them Holzborn testified that Clancy's duties "completely changed" with Sync-Pop—that his con- cerns became "of a more general, overall nature," and that he was "on the phone more" 31 Johnston testified that he "would have been scared to see what [Clancy's] bids would look like," but for his help Sync-Pop's bid propos- als are nearly identical in form to JT&A's 32 Johnston testified, "I think [Clancy] probably considers me his father" (f) Asked, then, what Jackie did at Sync-Pop, Clancy rejoined that she did "whatever she wanted to do," and "might have" solicited business over the telephone 33 B Conclusion The Board stated in Advance Electric 34 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 35 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 "36 Applying this overlay of legal principle to the present situation, I conclude unhesitatingly that Sync-Pop is JT&A's alter ego It has the same business purpose, began with the same sound-effects library and with equipment formerly used by JT&A, followed much the same operating procedures, 37 retained most of JT&A's supervisors and other personnel, doing so without hinng them anew," relied almost exclusively on former JT&A employees as the payroll expanded to accommodate "Amenka", and served the same customers The record contains abundant evidence, moreover, that Jim retained significant management control, exer- cising it both directly and through his longtime friend, Dale Johnston Thus, despite Clancy's purported prima- cy in Sync-Pop's operation, he was abjectly unqualified for that role, and indeed spent "a good portion of [his] time" in the transfer room in Sync-Pop's first few weeks, which suggests that the reality, at least initially, was much as it had been at JT&A Further, Sync-Pop ac- quired most of its business on Jim's and Clancy's repre- sentations that Jim's involvement would continue, and Johnston, who had cried with Jim over his misfortunes, termed himself Sync-Pop's "phantom owner"—a tacit admission that he saw himself as Jim's surrogate More specifically indicative of Jim's continued partici- pation in management, he initiated the October 20 meet- 33 Jensen testified that Jackie, pursuing leads from two trade publica- tions, Variety and Hollywood Reporter, "called producers for shows and wrote letters to different people asking for work for the company" 34 268 NLRB 1031, 1002 (1984), quoting from Denzil S Allure, 259 NLRB 1323, 1324 (1984) 35 At 268 NLRB 1002 The inside quotation is from Fugazy Continental Corp , 265 NLRB 1301, 1302 (1982) 36 Fugazy Continental Corp, supra, 1301 at fn 5 See also Continental Radiator Corp, 283 NLRB 234 (1987) 37 Crediting Paul Clay's convincing testimony on the point 38 The testimony of Clancy and Jensen to the effect that Clancy lured those compnsmg Sync-Pop's first payroll was woefully weak I do not credit it 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing with Local 776's Kutak and Notkin "to make sure that the transition went smoothly", his role ap- peared to be about the same with both JT&A and Sync- Pop, according to several who observed him before and after, he continued to deal directly with production com- panies on behalf of the venture, and he remained in- volved in personnel matters—as witness his arranging Shoemaker's transfer to Lake Street, entering instructions and information on employee timecards, directing Clancy to give Holzborn a raise, and denying Holzborn's request for time off Concerning ownership, while Clancy and Casey are Sync-Pop's nominal owners, the surrounding circum- stances leave no doubt that, in actuality, Sync-Pop prob- ably is as much Jim's as was JT&A In addition to the several just-cited mdicia of Jim's ongoing management involvement and the fact that Clancy and Casey are his children, this is compellingly revealed by the timing of Sync-Pop's advent, almost precisely coincident with JT&A's cessation, by its curing JT&A's payroll arrear- ages, by its not only taking over JT&A's unfinished busi- ness, but apparently doing so without compensating JT&A or legal formality, by its promptly acquiring sev- eral other projects—most notably, "Amenka"—with which JT&A had been linked, by Jim's willingness to forgo a paycheck until late January 1987 despite working "almost 24 hours a day" since early the preceding No- vember on "Amerika", by the jury-rigged manner in which he was compensated before receiving that first check, because of his concern that paychecks "would automatically go to the IRS", by his assisting in the / move to West Broadway and taking JT&A's records there, by his telling the employees at Clybourn that "business would continue as usual" although a new com- pany was being formed, and urging them to "stick with" him, and by his thanking the employees, after the move, for "sticking by" him The record compels the inference, moreover, that Sync-Pop was contrived to free the enterpnse from the nearly $1 million in IRS and union obligations The sheer magnitude of those obligations, in combination with Clancy's revelations that he was in charge only "on paper" and with Jim's October 20 remarks to Kutak and Notkin—that he was "being very careful just to act as a consultant," etc, lest IRS seize Sync-Pop's assets— shrieks of contrivance for that purpose Such contrivance also is indicated by the manifold other mdicia that Sync- Pop is a duplicitous continuance of JT&A, and by the absence of any other plausible reason for Sync-Pop's cre- ation 39 Finally, Clancy's testimonial efforts to depict Sync- Pop as an arm's length removed from JT&A, including his self-portraits as Sync-Pop's prime mover and ultimate authority, were singularly unpersuasive His recital not only was fraught with vagueness, uncertainty, internal inconsistency, evasiveness, and claimed lapses of memory regarding numerous matters of importance, but included several demonstrable lies—among them, that Jim had 39 Clancy's testimony that he "always wanted to own (his] own com- pany," while perhaps true in the abstract, came across as insincere in this context suffered a heart attack, that less than half of Sync-Pop's employees had come from JT&A, that Clancy had ele- vated rates of pay for all of Sync-Pop's sound editors, and the professed reasons why Sync-Pop redressed JT&A's pay arrearages Clancy consequently destroyed his credibility, and, in the process, buttressed the infer- ence, already ineluctable, that Sync-Pop arose as an in- strument of deceit 40 In short, the evidence is cornucopian that Sync-Pop is JT&A's alter ego The countering evidence, undermined by the impoverished credibility of its principal purveyor, is infinitely less substantial and less persuasive 41 The en- titles, jointly, therefore are bound by one another's lawful commitments to IATSE and to Local 776, and jointly are responsible for the unfair labor practices of each 42 IV THE ALLEGED VIOLATIONS OF SECTION 8(A)(5) AND (1) A Sync-Pop's Allegedly Unlawful Failure to Assume the Bargaining Obligations Devolving upon it as JT&A's Alter Ego 1 Facts On July 30, 1984, Jim and IATSE entered into an Agreement of Consent, which provided variously that JT&A "recognize[d]" IATSE as the "sole and exclusive collective bargaining representative" of certain of JT&A's employees, that it "agree[d] and consent[ed] to be part of the Multi-Employer Collective Bargaining Unit identified in" the 1982-1985 Basic Agreement be- tween IATSE and the Alliance of Motion Picture and Television Producers (Alhance), 43 that it "agree[d] to become party to and bound by" the Basic Agreement, by the West Coast Studio Local Agreements between the Alliance and the West Coast locals of IASTE "subject to such Basic Agreement" (of which Local 776 is one), and 40 The inference is buttressed, as well, by the failure of Jim and Casey to testify 41 That JT&A and Sync-Pop had different locations, telephone and tax numbers, lawyers, accountants, janitors, secunty services, garbage collec- tors, banks, etc, is but a bagatelle in the overall scheme of things 42 See generally, in addition to the cases cited above in footnotes 34 to 36, Twin Cities Electric, 296 NLRB 1014 (1989), Milford Services, 294 NLRB 684 (1989), DI C Mfg Go, 294 NLRB 426 (1989), Fullerton Transfer di Storage, 291 NLRB 426 (1988), Kenmore Contracting Co, 289 NLRB 336 (1988), O'Neill Ltd, 288 NLRB 1354 (1988), William N Taylor, Inc , 288 NLRB 1049 (1988), Gilroy Sheet Metal, 280 NLRB 1075 (1986), Samuel Kosoff & Sons, 269 NLRB 424 (1984), J M Tanaka Con- struction, 249 NLRB 238 (1980) 43 The complaint alleges that the employer-members of the Association and the nonmember employers who are signatory to the Basic Agree- ment "constitute an appropriate multi-employer unit for the purpose of collective-bargaining" and that "all employees set forth and described in Article IV of the" 1985-88 Basic Agreement "constitute a unit appropri- ate for the purposes of collective-bargaining within the meaning of Sec- tion 9(b) of the Act" The classifications thus incorporated are, in gener- al, motion picture editors, sound editors, music editors, hbranans, and editonal apprentices In view of my earlier alter ego determination, I need only determine, as concerns unit appropriateness, whether this unit "is repugnant to any policy embodied in the (Act]" Samuel Kosoff & Sons, 269 NLRB 424 (1984), quoting from Carpenters Local 1846 v Pratt, Farnsworth, 690 F 2d 489, 509 (5th Cu. 1982) See also Watt Electric Co, 273 NLRB 655, 658 (1984), Walter N Yoder & Sons, 270 NLRB 652 fn 2 (1984) I conclude that it is not JAMES TROUTMAN & ASSOCIATES 129 by specified trust agreements "established pursuant to" the Basic Agreement of Consent "shall remain in full force and effect until July 31, 1985, and shall continue from year to year thereafter unless either party shall give written notice to the other of a desire to cancel at least sixty (60) days prior to July 31, 1985, or July 31 of any subsequent year" Also on July 20, 1984, Jim executed a Trust Accept- ance, acknowledging that "a collective-bargaining agree- ment does exist between" JT&A and IATSE and stating that JT&A's "obligation" to the pension and health-and-welfare trusts "shall commence as of 7-30- 84 The 1982-1985 Basic Agreement, and those incorpo- rated therein, was succeeded by one effective from August 1, 1985, through July 31, 1988 JT&A at no time gave IATSE proper notice of a desire to cancel the Agreement of Consent Nor did Sync-Pop, as JT&A's alter ego On October 20, 1986-a week after Sync-Pop became operational-Clancy and James Osburn, executive direc- tor of IATSE Local 695, obtained the signatures of some 26 Sync-Pop employees on IATSE authorization cards, after which they went through the formality of Osburn's demanding and Clancy's granting recognition, and Clancy signed a new Agreement of Consent and a new Trust Acceptance The two documents signed by Clancy were substan- tially identical to those signed by Jim in 1984 To ensure that Sync-Pop not escape any obligations attaching to it as JT&A's alter ego, IATSE joined in them on the express understanding that the IA [IATSE] is not waiving its position and without prejudice to any claims against James Troutman & Associates and Sync-Pop as the alter ego of James Troutman & Associates Sync-Pop began submitting reports and contributions to the prescribed pension and health-and-welfare trusts with the pay period ending October 25, 1986 This con- tinued through the pay period ending January 31, 1987, then stopped By letter dated April 16, 1987, reacting to the charge in Case 31-CA-16462 herein, which alleges that he im- properly promoted IATSE cards preliminary to signing the Agreement of Consent and the Trust Acceptance on October 20, Clancy advised IATSE that the Agreement of Consent was "void and not banging [sic]," that Sync- Pop "has not and will not be part of nor bound to any employer or other association," that Sync-Pop "desires only to abide by the rules and provide its employees their full legal rights to a free and secret choice," and that Sync-Pop is ready, willing and able to negotiate a collec- tive bargaining agreement with you or any labor union when a majority of its employees properly expresses a secret, free legal choice in a way which does not subject Sync-Pop to liability for violating the law This was followed by a letter of April 24 from Sync- Pop's attorney to Local 776 regarding grievances the local had initiated on February 20 and March 27 under the grievance/arbitration provisions of its local agree- ment Referring to the two gnevances "and any other Sync-Pop, Inc , matters," the letter stated Please cancel this grievance There is no valid exist- ing collective bargaining contract and all matters are presently before the National Labor Relations Board Undeterred, Local 776 filed another grievance against Sync-Pop on April 27, and, receivmg no reply, it in- formed Sync-Pop by letter dated May 13 that it intended to take all three pending grievances "directly to Step III, regular arbitration" Sync-Pop's attorney responded by letter May 19, stating As the Company repeatedly advised you there is no existing valid collective bargaining agreement enabling or requiring any grievance or arbitration proceeding nor binding the Company thereto and thus any such proceeding are [sic] by definition void and enforceable Please ensure that copies of this letter are placed m each of the above captioned files and any and all other files, present and future as part of the record as no further responses or appearances are now con- templated until such time as a valid collective bar- gaining contract is achieved through negotiations On August 5, 1987, Local 776 sued Sync-Pop in Fed- eral district court, seeking an order directmg Sync-Pop "to proceed with arbitration of the Union's three griev- ances in the manner provided for in" the local agreement incorporated in the Agreement of Consent signed by Clancy 44 Sync-Pop, in its answer, denied the complaint allegations that it is party to any labor agreement with IATSE or Local 776, and alleged as an affirmative de- fense that any such agreement is "unenforceable for fail- ure of consideration [and] due to fraud and or mistake" By order dated August 10, the judge granted Local 776's Motion for a Summary Judgment Sync- Pop's appeal is now pending 2 Conclusion As JT&A's alter ego, Sync-Pop is bound by the Agreement of Consent and the Trust Acceptance entered into by JT&A in July 1984 It has never accepted that idea, however, or the attendant bargaining obligations Thus, beyond the resolute efforts to disguise its true rela- tionship with JT&A, Sync-Pop conditioned recognition of IATSE on a new card showing, only then making a contractual commitment, and it shortly abdicated even that arrangement on the stated ground that Clancy's "Local 776 stated in its complaint "This action shall not constitute a waiver of IATSE Local 776's contentions, made before the National Labor Relations Board and elsewhere, that Sync-Pop, Inc , is an alter ego of James Troutman & Associates" 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD card-promotion activities of October 20 had tainted the grant of recognition and that which followed By failing to assume the bargaining obligations devolv- ing upon it as JT&A's alter ego, Sync-Pop violated Sec- tion 8(a)(5) and (1) as alleged 46 B Sync-Pop's Allegedly Unlawful Failure to Submit Reports and Contributions to the Pension and Health- and-Welfare Trusts 1 Facts As earlier stated, Sync-Pop submitted reports and con- tributions to the prescribed pension and health-and-wel- fare trusts starting with the pay period ending October 25, 1986, and continuing through the period ending Janu- ary 31, 1987, whereupon reports and contributions stopped On June 12, 1987, an assignee of the trust funds brought suit against Sync-Pop in Federal district court to compel compliance with its contractual obligations 46 The judge issued an order for preliminary injunction on September 21, 1987, enjoining Sync-Pop from "refus- ing or failing to submit reports and contributions which have been delinquent since February 1987" On October 20, in response to that order and on the advice of its attorney, Sync-Pop cured its delinquencies and re- sumed compliance 2 Conclusion Sync-Pop's cessation of pension and health-and-welfare reports and contributions presumably was an offshoot of its unlawful refusal, generally, to assume the obligations attaching to it as JT&A's alter ego Regardless, the Board takes the position that an employer's refusal to make required pay- ments to an insurance or trust fund established by a collective-bargaining agreement constitutes a unilateral change in terms and conditions of em- ployment in violation of section 8(a)(5) and (1) of the Act 47 . Sync-Pop's several-month stoppage of reports and con- tributions therefore violated Section 8(a)(5) and (1) as al- leged 46 48 E g, Twin Cities Electric, supra's, Blackberry Creek Trucking, 291 NLRB 474 (1988), Haley & Haley, 289 NLRB 649 (1988) 48 The distnct court complaint alleges that Sync-Pop's obligations denve from the agreements signed by Clancy on October 20, or, in the alternative, on an alter ego theory, from those entered Into by JT&A in 1984 41 Merryweather Optical Ca, 240 NLRB 1213, 1215 (1979) 48 That Sync-Pop's obligations, as JT&A's alter ego, emanate from IT&A's 1984 commitments, rather than from Clancy's actions of October 20, 1986, is of no moment Sync-Pop did not exculpate itself by later curmg its delinquencies and resuming compliance, inasmuch as it did so under judicial compulsion and otherwise continues to defy its bargaining obligation C Sync-Pop's Allegedly Unlawful Failure to Submit to Arbitration 1 Facts As previously recounted, Local 776 brought grievance actions against Sync-Pop on February 20, March 27, and April 27, 1987, and informed Sync-Pop by letter dated May 13 that it intended to take all three "directly to Step III, regular arbitration", and Sync-Pop's attorney re- sponded that it would not submit to the procedure be- cause "there is no existing valid collective bargaining agreement enabling or requiring any grievance or arbi- tration proceeding" Also as earlier stated, Local 776 obtained a summary judgment on August 10, 1987, compelling Sync-Pop to go to arbitration, which judgment is now under appeal Two of the gnevances since have been resolved, leaving only that of March 27, involving Susan Holzborn, sub- ject to the court's order 2 Conclusion Apart from its unlawful failure, generally, to assume JT&A's bargaining obligations, Sync-Pop violated Sec- tion 8(a)(5) and (1) as alleged by flouting its contractual obligation to entertain grievances and go to arbitration D Sync-Pop's Allegedly Unlawful Refusal to Comply with Arbitration Awards Adverse to JT&A 1 Facts Three grievance matters were pending against JT&A when it was superseded by Sync-Pop All later were re- solved against JT&A In one, decided on November 12, 1986, a labor-management conciliation committee agreed with Local 776 that JT&A had employed six nonroster people as sound editors without exhausting the industry experience roster, thereby violating its agreement with Local 776, and directed that JT&A pay the local "the amount of moneys that would have been paid roster people during the time nonroster people were ille- gally hired "49 In another, decided on December 15, 1986, an arbitrator awarded an aggrieved employee $3423 because JT&A had underpaid him, and, in the third, decided on May 14, 1987, an arbitrator awarded an aggrieved employee $9030 because he had been under- paid Neither JT&A nor Sync-Pop has satisfied any of these awards 2 Conclusion Implicit in Sync-Pop's denial that it is JT&A's alter ego, and its companion refusal to accept the ramifica- tions flowing therefrom, is a refusal to accept responsibil- ity for and comply with the awards outstanding against JT&A By this refusal, Sync-Pop further violated Section 8(a)(5) and (1) as alleged 49 Estimated to be about $70,000 JAMES TROUTMAN & ASSOCIATES 131 E JT&A's Allegedly Unlawful Failure to Honor Local 776's Requests that it Bargain Concerning the Effects on its Employees of Changes in its Operations, and that it Provide Certain Information 1 Facts As previoulsy recounted, Jim met with Local 76's Ronald Kutak and Cornnne Notkm on about October 20, 1986, telling them that he had "disbanded" JT&A, that his children "had started another company," and that he wanted to know "the mechanics" of the new company's "signing an agreement with" IASTE and about the roster status of JT&A employees absorbed by the new company Jim also told them that a lawyer that cautioned against his being "either an officer or major owner" of the new company "for various legal reasons," that he consequently was "being very careful just to act as a consultant," and that "alter ego or piercing the cor- porate veil sounded like some of the terms" the lawyer had used On October 23, an attorney for Local 776, Jay Roth, caused the following letter to be delivered to JT&A's at- torney, James McCord It has recently come to my client's attention that your client has radically reduced or ceased the op- eration of James Troutman & Associates Please consider this letter a demand on behalf of our client, Local 776, for immediate bargaining over the decision to cease operations and the effects on em- ployees of such cessation In order to evaluate our bargaining position, please provide me immediately with the following information 1 Has the Company filed for bankruptcy? If so, please provide a copy of the petition 2 Is a bankruptcy filing anticipated? 3 Has the Company been sold? If so, to whom and what are the terms of the sale? Please provide any agreement of sale 4 Has the Company sold or leased any of its equipment or assets in the last six months? If so, which equipment and/or assets, and to whom? 5 Has consideration been paid for the equipment of assets? If so, please provide the amounts or con- sideration paid to James Troutman & Associates 6 Does the Company continue to occupy its fa- cility at 1104 Chestnut Street? If it does not, has it assigned its lease? If so, to whom? 7 Who curently occupies 1104 Chestnut Street? 8 Please provide the names of all employees who continue to be employed by James Troutman & As- sociates Please provide their classification and job assignment 9 Is James Troutman currently employed? By whom? 10 Is James Troutman acting as a consultant to any business entity? Please state which entities 11 Does James Troutman have any ownership interest in any business entity other than James Troutman & Associates which performs services similar to said Company? 12 Does James Troutman & Associates plan to reopen or expand its current operations? If so, when? 13 Does James Troutman & Associates or James Troutman hold any note, mortage or other obliga- tion from any business entity that performs services similar to that previously performed by James Troutman & Associates? If so, state the names of each such business entity I look forward to the prompt receipt of the above requested information Neither McCord nor anyone else on behalf of JT&A responded to Roth's letter until March 21, 1988, when the following letter, signed by Jim in the name of "James Troutman and Associates (Defunct)," was tendered to Local 776 representatives during the present trial The questions you have posed to me are an- swered as follows 1 The company has not filed for bankruptcy 2 Bankruptcy is being considered but is not an- ticipated at this writing 3 The company has not been sold 4 The company has not been sold or leased any of its equipment with the exception of the IRS con- fiscation and auction 5 Not applicable 6 The company does not occupy the facility at 1104 Chestnut and has not assigned a lease 7 We do not know who currently occupies the facility 8 There are no employees who continue to be employed by James Troutman and Associates ("JT&A") 9 Jim Troutman is presently an independent con- tractor but not otherwise employed 10 Jim Troutman does independent contracting for Sync-Pop, Inc and other business entities [sic] 11 Jim Troutman has no other ownership inter- est in any company performing similar services to JT&A 12 JT&A has no plans to reopen or expand oper- ations 13 Neither JT&A or James Troutman holds any note, mortage or other obligation from any business entity that performs services similar to that previ- ously performed by JT&A As may be required by law we remain ready, able and willing to meet, confer and negotiate upon appropnate request at appropriate times 2 Conclusions Local 776's demand that JT&A enter into "immediate bargaining over the decision to cease operations and the effects on employees of such cessation" was premised on Jim's misrepresentation that he had "disbanded" JT&A, when the operation in fact continued through an alter ego JT&A therefore violated Section 8(a)(5) and (1) not by ignoring that demand, but by shifting its employees to the alter ego, which then failed to assume JT&A's obli- gations, and by misleading the employees' bargaining 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representative to impair its ability to function on their behalf.5° Concerning Local 776's request for information, 51 an employer generally must honor such a request if the in- formation would be relevant to the union's discharge of its duties as bargaining representative." Information per- taining to the terms and conditions of employment of unit employees is presumptively relevant." The pre- sumption does not obtain, however, if the information os- tensibly relates to the nonunit employees of another em- ployer, even though the information ultimately might es- tablish that those employees are in the unit because of a single-employer/alter ego relationship.54 The information sought by Local 776 bore reasonably on its ability to determine whether a single-employer/- alter ego relationship existed between JT&A and Sync- Pop. Local 776 had reason to suspect, moreover, that such a relationship did exist, given Jim's October 20 re- marks to Kutak and Notkin. The relevance of the infor- mation thus was apparent when Local 776 made its re- quest. I accordingly conclude that JT&A violated Section 8(a)(5) and (1) as alleged by failing to honor Local 776's request for information in timely fashion.55 F. Sync-Pop's Allegedly Unlawful Failure to Honor Local 776's Request that it Provide Certain Information 1. Facts On January 23, 1987, Local 776's Kutak sent the fol- lowing letter to Clancy, as president of Sync-Pop. In order to enable the Guild to effectively, adminis- ter the terms and conditions of the Collective Bar- gaining Agreement entered into between Sync-Pop and the I.A.S.T.E. and its Hollywood Locals, the Editors Guild requests that you immediately pro- vide us with the following information: 1. Is the Company a duly registered corporation in the state of California, county of Los Angeles? 2. If the answer to Number 1 is in affirmative, please provide us with the following: a) list of all officers; b) date of incorporation; c) federal ID number; "Blackberry Creek Trucking, 291 NLRB 474 (1988); Haley di Haley, 289 647 (1988). 51 McCord testified that he "was not at that time acting as a recipient of process of any sort for [his] client." He conceded, however, that he represented JT&A "during this period," that he sent a letter to an attor- ney for Local 776 on October 17 concerning an arbitration involving JT&A, and that he probably ("1 suspect") spoke with union counsel on behalf of JT&A "both before and after" October 23. I conclude in these circumstances that delivery of the letter to McCord was the equivalent of delivery to JT&A. 52 Barnard Engineering Co., 282 NLRB 617, 619 (1987), and cases cited therein. 52 Ibid. 54 Ibid. 55 JT&A's response, some 18 months after the request, was not timely. E.g., Epe, Inc., 284 NLRB 91, 96 (1967); Interstate Food Processing Corp., 283 NLRB 303, 306 (1987). d) list of all major stockholders and the per- centage of the corporation owned by each. 3. Has the Company purchased or leased any of its equipment or assets in the last six months? If so, which equipment and/or assets, and from whom? 4. Does the Company own, lease or otherwise occupy any other facility other than those at 724 West Broadway? 5. If the answer to Number 4 is in the affirmative, what locations, in whose name is the property owned and/or leases, and what is the original date in said purchase/lease? 6. Is James Troutman in any way associated with Sync-Pop Inc.? If so, in what capacity? 7. Is James Troutman now, or has he ever been, a shareholder of Sync-Pop Inc.? 8. If the answer to Number 7 is in the affirmative, how many shares does (did) James Troutman own? 9. Has James Troutman either lent money to Sync-Pop Inc. or helped Sync-Pop Inc. secure fi- nancing from a lending institution? 10. Has the company asumed any contracts or work in progress from James Troutman & Associ- ates. If so, what work or contracts have been as- sumed by your company. 11. Are there any contracts or agreements be- tween your company and James Troutman? If so, please identify each contact or agreement. 12. Please state the names of each employee of your company, the job title and the immediate prior employer. We would appreciate your prompt attention to sending us the requested information. Neither Clancy nor anyone else on behalf of Sync-Pop responded to Kutak's letter until March 21, 1988, when the following letter, signed by Clancy, was tendered to Local 776 representative during the present trial. We are informed that you have certain questions as to our operation which we are happy to answer without admitting an obligation to do so. 1. Sync-Pop, Inc. is a duly registered California corporation. 2. (a) The officers of the corporation are Clancy Troutman and Casey Troutman. (b) Secretary of State's stamp date of incorpora- tion is October 8, 1986. (c) Federal ID # 95-4069006. (d) The stockholders are Clancy Troutman 50% and Casey Troutman 50%. 3. The company has leased equipment from Hal Dennis, Cine Magic, and J & R. 4. No. 5. Not applicable. 6. James Troutman does dubbing stage sound ed- iting as an independent contractor. 7. James Troutman is not or has ever been a shareholder. 8. Not applicable. JAMES TROUTMAN & ASSOCIATES 133 9 James Troutman has not lent money or se- cured financing for Syn-Pop, Inc 10 The company did not assume contracts or work in progress from James Troutman and Associ- ates 11 There are no contracts or agreements be- tween Sync-Pop, Inc and James Troutman except that as an independent contractor he is paid for services rendered 12 Names of each employee of the company are submitted by the attached photocopy of the latest pension report Their immediate pnor employer is not available As may be required by law we remain ready, able and willing to meet, confer, negotiate and arbitrate upon appropriate request at appropriate times 2 Conclusion The information sought, pertaining to the terms and conditions of employment of unit employees, was pre- sumptively relevant, and the record lacks evidence to override the presumption I conclude, therefore, that Sync-Pop violated Section 8(a)(5) and (1) as alleged by failing to honor Local 776's request in a timely manner 56 VI SYNC-POP'S OTHER ALLEGED VIOLATIONS A Sync-Pop's Alleged Violation of Section 8(a)(2) and (1) 1 Facts On October 20, 1986, as earlier mentioned, Clancy and James Osbum of IATSE Local 695 obtained the signa- tures of 26 Sync-Pop employees on IATSE authorization cards, after which Osbum demanded and Clancy granted recognition and Clancy signed a new Agreement of Con- sent and a new Trust Acceptance More specifically, Clancy directed a number of em- ployees to sign the cards, explaining as he did so that Sync-Pop "needed a union contract" He also accompa- nied and otherwise abetted Osburn while Osbum solicit- ed signatures 2 Conclusion Card-promoting activities of the sort undertaken by Clancy ordmanly are proscribed by Section 8(a)(2),57 and, indeed, Sync-Pop amended its answer during the trial "to admit the allegations involving a violation of Section 8(a)(2) "58 Accepting the complaint and answer as the law of the case on this issue, I conclude that Clancy's said activities violated Section 8(a)(2) and (1) 59 56 See fns 52, 53, and 55, surpra and accompanying text 57 As are recognizing and contractmg with a union on the strength of the cards so promoted E g, All Kind Quilting, 266 NLRB 1186, 1195 (1983) "This was a transparent ploy calculated to require that the Board void Sync-Pop's bargaining relationship and attendant agreements with IATSE as part of the remedial scheme herein 59 I do not conclude, however, that Sync-Pop violated Sec 8(a)(2) by recognizing and contracting with IATSE The complaint does not allege B Sync-Pop's Alleged Violation of Section 8(a)(1) Concerning Susan Holzborn 1 Evidence One of the three grievances Local 776 brought against Sync-Pop, that of March 27, 1987, alleged that it was not paying Holzbom, the sound-effects librarian, as dicated by the prevailing labor agreement After receiving Local 776's grievance letter, Clancy called Holzbom to the office By her account, he showed her the letter, exclaimed that Jim "almost had a coronary when he saw" it, and asked her "what he [sic] hell [is] going on" She replied, as she recalled, that she had not seen the letter and did not know "what's going on," whereupon Clancy asked if she had filed a griev- ance and she said she had not, but had talked to a union Mrak Tarnawsky, about her situation Clancy countered, per Holzbom, that he "would fire" her if she "had filed a grievance" and that "it would get very nasty if this went to arbitration"—that he "would say a lot of nasty things about" her, that Jim "knew a lot of people in the industry and would make sure that [she] would never, ever get a job in town again," and that nobody in the company "would back [her] up" Clancy then repeated the discharge threat, Holzborn recounted, declaring that "there were numer- ous reasons" he could use, "including that [she] wore the wrong color of shoes" Holzbom testified that the encounter ended with Clancy's voicing the suspicion "that the union people would file the grievance and take the money", and suggesting, therefore, that she "talk to the union repre- sentative" about dropping the matter Clancy admitted that he asked Holzbom if she had filed a grievance, that he told her Jim "almost had a cor- onary", that he "might have said" he would "be required to say uncomplimentary or nasty things about" her if "this grievance thing proceeded", and that either he or Holzborn expressed concern that "the umon people would file the grievance and take the money" Other- wise, disdaining a narrative reconstruction of the event, Clancy entered the expected denials when asked by Sync-Pop's counsel if he threatened Holzborn "in any way", if he told her Jim "would make sure that she never worked in town again", if he said he "would fire her for wearing the wrong color shoes", if he "discuss[ed] firing [or] discipling her in any fashion", or if he told her "that if she had filed a griev- ance [he] would fire her" Clancy conceded that he "was really upset," that he "was ticked," and that he was "yelling and scream- mg "6° He further conceded "I don't remember my exact words, or what I said I don't remember much about that day" that this was improper, and, because of the ramifications of Sync-Pop's being JT&A's alter ego, it only duplicated existing lawful obligations by recognizing and entenng into the Agreement of Consent and the Trust Acceptance 6° Clancy testified, "I have a tendency to yell a lot" The record con- tains abundant corroboration 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Conclusion Holzborn's recital was coherent, detailed, and persua- sively delivered Clancy's lawyer-led denials that he made various of the remarks attributed to him—particu- larly when coupled with his admissions that he was "really upset" that he was "yelling and screaming," and that he did not remember his "exact words, or what [he] said—were unconvincing I therefore credit Holzborn By saying that he would fire Holzborn if she "had filed a grievance," that he "would say a lot of nasty things about" her "if this went to arbitration," and that Jim "would make sure that [she] would never, ever get a job in town again," Clancy impinged upon her right, protected by Section 7, to undertake grievance activities through her union I conclude, therefore, that he violated Section 8(a)(1) substantially as alleged by these re- marks 61 CONCLUSIONS OF LAW 1 JT&A and Sync-Pop are alter egos, and, as such, are a single employer engaged in and affecting com- merce within Section 2(2), (6), and (7) of the Act 2 Local 776 and its parent organization, IATSE, are labor organizations within Section 2(5) of the Act 3 All employees incorporated in Article IV of the 1985-1988 collective-bargaining agreement between IATSE and the Alliance of Motion Picture & Television Producers, commonly known as the Basic Agreement, including those of JT&A and Sync-Pop, constitute a unit appropriate for collective bargaining within Section 9(b) of the Act 4 At all material times, IATSE and Local 776 as its designee have been the exclusive collective-bargaining representatives, within Section 9(a) of the Act, of the employees in said appropriate unit 5 JT&A and Sync-Pop, as alter egos,, have violated Section 8(a)(5) and (1) as follows a) By JT&A's shifting its unit employees to an alter ego, Sync-Pop, which then failed to assume JT&A's bar- gaining obligations, b) By JT&A's misleadingly telling Local 776 that it had ceased operations, thereby impairing Local 776's ability to function as collective-bargaining representative on said employees' behalf, and, c) By JT&A's failure to comply in timely fashion with Local 776's request of October 23, 1986, that it provide certain information relevant to the union's discharge of its duties as collective-bargaining representative 6 JT&A and Sync-Pop, as alter egos, have further violated Section 8(a)(5) and (1) by Sync-Pop's failure, since its inception, to undertake the collective-bargaining obligations devolving upon it as JT&A's alter ego, and, as outgrowths of that general failure, they have addition- ally violated Section 8(a)(5) and (1) in these respects a) By Sync-Pop's failure to comply in timely fashion with Local 776's request of January 23, 1987, that it pro- vide certain information relevant to the union's discharge of its duties as collective-bargaining representative E g, Ram Construction Co, 263 NLRB 258, 258 (1982), Servomation Corp, 248 NLRB 106 (1980), Caterpillar Tractor Co, 242 NLRB 523, 526 (1979) b) By Sync-Pop's failure to assume responsibility for and comply with grievance/arbitration awards of No- vember 12 and December 15, 1986, and May 14, 1987, adverse to JT&A, c) By Sync-Pop's failure, from February to October 1987, to submit pension and health-and-welfare reports and contributions as required by the prevailing labor agreement, and, d) By Sync-Pop's refusal, expressed in letters dated April 24 and May 19, 1987, to entertain grievances and go to arbitration in accordance with the prevailing labor agreement 7 JT&A and Sync-Pop, as alter egos, violated Section 8(a)(2) and (1) on October 20, 1986, when Sync-Pop's president, Clancy Troutman, directed a number of em- ployees to sign, and otherwise promoted, IATSE author- ization cards 8 JT&A and Sync-Pop, as alter egos, violated Section 8(a)(1) in late March or early April 1987 when Clancy Troutman told employee Susan Holzborn that he would fire her if she "had filed a grievance", that his father "would make sure that she would never, ever get a job in town again", and that he "would say a lot of nasty things about" her if her grievance went to arbitration REMEDY Having found that JT&A and Sync-Pop (Respondents) engaged in certain unfair labor practices, I recommend that they be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act, including making their employees whole, with interest, for any losses suffered because of Respond- ents' misconduct 62 I also recommend that Respondents be ordered to re- imburse the Board, IATSE, and Local 776, with interest, for expenses reasonably incurred in the investigation, preparation, presentation, and conduct of this proceed- ing, including the subpoena-enforcement matter in Feder- al district court involving Sync-Pop's custodian of records and its principal secretary and bookkeeper, Angela Jensen,° 3 that they be ordered to reimburse IATSE and Local 776, with interest, for expenses rea- sonably incurred in connection with the suit brought against Respondents in Federal district court on June 12, 1987, arising out of Sync-Pop's failure, found unlawful herein, to submit pension and health-and-welfare reports and contributions, and that they be ordered to reimburse Local 776, with interest, for expenses reasonably in- • 62 The employees' make-whole entitlements, if any, shall be as pre- scribed in Ogle Protection Service, 183 NLRB 682 (1970) Interest, wherev- er called for herein, shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987) Under New Horizons, interest on and after January I, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes, in keeping with 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 Co, 240 NLRB 1213, 1216 fn 7 (1979) 63 I have no doubt that Jensen, who sat at the right hand of and regu- larly conferred with Sync-Pop's attorney dunng much of the trial, acted at Sync-Pop's behest when refusing to comply with her subpoena JAMES TROUTMAN & ASSOCIATES 135 curred with regard to the suit brought against Sync-Pop in Federal district court on August 5, 1987, because of its failure, found unlawful herein, to submit to arbitration in keeping with its bargaining obligation The extraordinary sanction of reimbursement is war- ranted for these reasons a) Litigation of the allegations that Sync-Pop had en- gaged in bargaining misconduct consumed virtually all of the 19 days of trial Respondents' only defense to those allegations was that Sync-Pop is not JT&A's alter ego, and so did not inherit JT&A's bargaining obligation But, as earlier discussed, the evidence is overwhelming that Sync-Pop is a disguised continuance of JT&A, conceived to facilitate an escape from IRS and union obligations This defense, therefore, is worse than "patently frivo- lous—the standard to be met on the issue of reimburse- ment," it is outright fraudulent b) Regarding the other allegations of misconduct, Re- spondents acceded to the allegation that Clancy unlaw- fully assisted IATSE by promoting its authorization cards, they presented no evidence to counter the allega- tions citing JT&A, and their defense to the allegation that Clancy unlawfully threatened Holzborn—his per- functory, lawyer-led denials, which he then effectively cancelled by admitting that he was "really upset," that he was "yelling and screaming," and that he did not re- member his "exact words, or what [he] said—was patent- ly frivolous 65 c) Beyond the fraudulence and frivolousness of their defenses, Respondents employed a variety of devices serving no perceptible purpose other than to prolong and delay the proceeding and burden and confound the record—among them, offering sheaves of exhibits of no imaginable relevance, which, with the prolix supporting arguments, squandered lavish amounts of time, 66 refusing to stipulate to numerous matters about which reasonable people could not possibly differ, requiring the General Counsel to obtain orders in Federal district court enforc- ing subpoenas of manifest validity, which entailed a 5- month hiatus in the proceeding, and submitting a brief rife with extra-record calumnies and other excesses, caus- ing it to be signed by other than a lawyer of record, and representing that it was not lawyer-prepared when the contrary obviously is the case 67 64 The Board recently reiterated the "patently frivolous" standard in New Era Terminal Services, 292 NLRB 1069 fn 1 (1989) 66 Respondents' brief, in all its 92 pages, does not once mention this incident 66 Respondents' rejected-exhibits file numbers approximately 135 docu- ments 67 Rule 11 of the Federal Rules of Civil Procedure states in part "Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individ- ual name The signature of an attorney constitutes a certificate by him that he has read the pleading, motion, or other paper, that to the best of his knowledge, information, and belief it is not Interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation If a pleading, motion, or other paper is signed in violation of this rule, the court shall Impose an appropnace sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred be- cause of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee" 1 Moore, Federal Practice at 109 (1987) Although deeply skeptical of Respondent s claim that JT&A's payroll and other records vanished Innocently, I hesitate, given the possibility of In sum, Respondents, in their machinations to evade their bargaining obligation, wantonly and contemptuous- ly obstructed this proceeding, thereby inflicting needless and no doubt considerable expense on the Board, IATSE, and Local 776 A reimbursement order is war- ranted to discourage this kind of abuse, and, so doing, to effectuate the policies of the Act and serve the public in- terest by relieving the forum of the resulting congestion and drain on resources 68 Finally, for the reasons that a reimbursement order is warranted, and for the further reason that, as late as the present trial, Respondents had not complied with an ear- lier decision in which the Board concluded that JT&A had violated Section 8(a)(5) and (1)," I recommend a broad ("In any other manner ") rather than a narrow ("In any like or related manner ") remedial order On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7° ORDER The Respondents, James Troutman & Associates and Sync-Pop, Inc , alter egos, their officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to bargain collectively with the International Alliance of Theatrical and Stage Em- ployees (IATSE) and its designee, Motion Picture and Videotape Editors' Guild Local 776 (Local 776), by withdrawing recognition from IATSE as the exclusive collective-bargaining representative of their employees in the appropriate unit, by failing or refusing, as concerns those employees, to apply the terms and conditions con- tained in the 1985-1988 Basic Agreement between IATSE and the Alliance of Motion Picture and Televi- sion Producers and the agreements incorporated therein, and all successor agreements, pursuant to the commit- ment made by James Troutman when he entered into an Agreement of Consent and a Trust Acceptance with IATSE on July 30, 1984, BY SHIFTING employees to an alter ego to evade bargaining obligations, by mislead- ingly telling Local 776 that they, or one of them, have ceased operating, when operations m fact are continuing through an alter ego, by failing to comply in a timely manner with requests made by Local 776 for information relevant to the Union's discharge of its duties as collec- their being in IRS custody, to cite that as yet another instance of obstruc- tionism 68 See Autoprod, 265 NLRB 331, 332 (1982), Wellman Industries, 248 NLRB 325, 329 (1980), Koval Press, 241 NLRB 1261, 1263 (1979), Didee Products, 194 NLRB 1234, 1236 (1972) "James Troutman & Associates, Case 31-CA-15828, 281 NLRB No 168 (Oct 17, 1986) not published in bound volume The Ninth Circuit Court of Appeals entered a judgment (unreported) on March 5, 1987, en- forcing the Board's order, after which, on March 14, 1988, the General Counsel petitioned the 9th Circuit to adjudge JT&A in contempt 'for having disobeyed, violated, and failed and refused to comply with the judgment entered by the Court on March 5, 1987" 78 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 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive-bargaining representative, by failing to assume re- sponsibility for and comply with grievance/arbitration awards adverse to James Troutman & Associates, by fail- ing to submit pension and health-and-welfare reports and contributions pursuant to their aforementioned contrac- tual commitments, and by refusing to entertain griev- ances and go to arbitration as required by their contrac- tual commitments (b) Soliciting authorization cards from their employ- ees, or otherwise promoting such cards, on behalf of IATSE or any other labor organization (c) Threatening employees with discharge or other ad- verse consequences should a grievance be filed by them or on their behalf under the prevailing labor agreement (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize IATSE and its designee, Local 776, as the exclusive collective-bargaining representatives of their employees in the appropriate unit (b) Comply, retroactively to October 13, 1986, with the terms and conditions contained in the 1985-1988 Basic Agreement and the agreements incorporated there- in, and all successor agreements, including, to the extent they have not done so, submitting prescribed pension and health-and-welfare reports and contributions (c) Make whole, with interest, employees covered by the 1985-1988 Basic Agreement and the agreements in- corporated therein, and all successor agreements, for any losses suffered as a result of Respondents' misconduct, as set forth in the remedy section of this decision (d) Assume responsibility for and comply with the grievance/arbitration awards dated November 12 and December 15, 1986, and May 14, 1987, adverse to JT&A (e) Arbitrate the grievance initiated March 27, 1987, concerning Susan Holzborn, and comply generally with their contractual obligation to entertain grievances and go to arbitration (f) Make whole, with interest, the Board, IATSE, and Local 776 for expenses reasonably incurred by them in the investigation, preparation, presentation, and conduct of this and related proceedings, as set forth in the remedy section of this decision (g) 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 (h) Post at their place of business in Glendale, Califor- nia, and at their other facilities, if any, copies of the at- tached notice, marked "Appendix " 1 Copies of the 71 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" notice, on forms provided by the Regional Director for Region 31, after being signed by Respondents' authorized representative, shall be posted by Respondents immedi- ately 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 . (i) 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT fail and refuse to bargain collectively with the International Alliance of Theatrical and Stage Employees (IATSE) and its designee, Motion Picture and Videotape Editors' Guild Local 776 (Local 776), by withdrawing recognition from IATSE as the exclusive collective-bargaining representative of our employees in the appropriate unit WE WILL NOT fail and refuse, as concerns our bargain- ing unit employees, to apply the terms and conditions contained in the 1985-1988 Basic Agreement between IATSE and the Alliance of Motion Picture and Televi- sion Producers and the agreements incorporated therein, and all successor agreements, pursuant to the commit- ment made by James Troutman when he entered into an Agreement of Consent and a Trust Acceptance with IATSE on July 30, 1984 WE WILL NOT shift employees to an alter ego to evade our bargaining obligations WE WILL NOT misleadingly tell Local 776 that we, or one of us, have ceased operating, when operations in fact are continuing through an alter ego WE WILL NOT fail to comply in a timely manner with requests made by Local 776 for information relevant to the Union's discharge of its duties as collective-bargain- ing representative WE WILL NOT fail to assume responsibility for and comply with grievance/arbitration awards adverse to James Troutman & Associates (JT&A) JAMES TROUTMAN & ASSOCIATES 137 WE WILL NOT fail to submit pension and health-and- welfare reports and contributions pursuant to our afore- mentioned contractual commitments WE WILL NOT refuse to entertain grievances and go to arbitration as required by our contractual commitments WE WILL NOT solicit authorization cards from our em- ployees, or otherwise promote such cards, on behalf of IATSE and any other labor organization WE WILL NOT threaten employees with discharge or other adverse consequences should a grievance be filed by them or on their behalf under the prevailing labor agreement WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL recognize IATSE and its designee, Local 776, as the exclusive collective-bargaining representatives of our employees in the appropriate unit WE WILL comply, retroactively to October 13, 1986, with the terms and conditions contained in the 1985-1988 Basic Agreement and the agreements incorporated there- in, and all successor agreements, including, to the extent we have not done so, submitting prescribed pension and health-and-welfare reports and contributions WE WILL make whole, with interest, employees cov- ered by the 1985-1988 Basic Agreement and the agree- ments incorporated therein, and all successor agreements, for any losses suffered as a result of our misconduct WE WILL assume responsibility for and comply with the grievance/arbitration awards dated November 12 and December 15, 1986, and May 14, 1987, adverse to JT&A WE WILL arbitrate the grievance initiated March 27, 1987, concerning Susan Holzborn, and comply generally with our contractual obligation to entertain grievances and go to arbitration WE WILL make whole, with interest, the Board, IATSE, and Local 776 for expenses reasonably incurred by them in the investigation, preparation, presentation, and conduct of this and related proceedings JAMES 'TROUTMAN & ASSOCIATES, AND SYNC-POP, INC