H. A. Green Decorating Co., Inc.

H A GREEN DECORATING CO 157 H. A. Green Decorating Co., Inc. and/or Mr. Build—Distinctive Decorators, Inc., Alter Ego/Single Employer and/or Joint Employers and Local Union No. 8, International Brother- hood of Painters and Allied Trades. Cases 13- CA-26459 and 13-CA-27477 July 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On July 19, 1989, Administrative Law Judge Robert T Wallace issued the attached decision The Respondents filed exceptions and a supporting brief, the General Counsel filed an exception, a supporting brief, and an answering brief to the Re- spondents' exceptions, and the Charging Party filed an answering brief to the Respondents' exceptions The National Labor Relations Board has delegat- ed its authority in this proceedmg to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and 1 The Respondents have excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings We are also satisfied that the Respondents' contention that the judge was biased is without merit Careful review of the record and the judge's decision shows no statements or other evidence indicating bias, or a parti- ality to the General Counsel's case, on the part of the judge 2 In their exceptions, the Respondents argue that the 8(a)(5) charge is time barred by Sec 10(b) of the Act because the Union knew or should have known about the Respondents' relationship more than 6 months pnor to November 1986, when It filed the charge The judge found that the Union did not have evidence sufficient to warrant filing the charge until September 1986 when employee Zimmerman first "opened up" to Union Business Agent Gaskms We agree with the judge that the charge is not time barred Although Gaskins became suspicious of the H A Green—Mr Build operations in January 1986 when he saw a newspaper clipping about Mr Build and had observed employees loading a Mr Build truck at the H A Green shop, he was unable to confirm his suspi- cions until September 1986 because of the Respondents' fraudulent and deceptive conduct In particular, we note that dunng the penod January through September 1986, Richard Green consistently told Gaskms that Mr Build was his wife's company and that he "had nothing to do with It", Richard Green Instructed an employee to tell anyone who asked why H A Green equipment was being used by Mr Build, that "we are rent- ing it", Richard Green paid union member Don Sloes with checks made payable to his wife, for work he did for Mr Build, in order to conceal from the Union that he was working for Mr Build, and that the Re- spondents, in order to conceal the fact they were a single employer, exe- cuted an "agreement" by which Mr Budd would do subcontracting work on an H A Green job because Richard Green underestimated the costs in his bid for H A Green Further, we note that Gaskms promptly attempted to find out the truth about the Respondents by asking Richard Green and H A Green employees about the true nature of the two busi- nesses No information was revealed to Gaskins until Zimmerman's con- versation with him in September 1986 See Burgess Construction, 227 NLRB 765, 766 (1977), enfd 596 F 2d 378 (9th Or 1979), cert denied 444 U S 940 (1979) conclusions2 and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, H A Green Decorating Co, Inc and/or Mr Build—Distinctive Decorators, Inc , Alter Ego/Single Employer and/or Joint Employ- ers, Gary, Indiana, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs "(a) Recognize and, on request, bargain with the Union as the exclusive representative of all of its decorators and painters, as defmed in the collec- tive-bargaining agreement between the Union and H A Green Decorating Co, Inc, including those employed by Mr Build—Distinctive Decorators Inc, but excluding supervisors as defined in the Act "(b) Apply to all nonsupervisory employees em- ployed by Mr Build—Distinctive Decorators, Inc, who do painting and decorating work as defined in the collective-bargaining agreement between the Union and H A Green Decorating Co, Inc, the terms and conditions of that contract" 2 Substitute the attached notice for that of the administrative law judge 'The General Counsel excepts to the judge's recommended Order in that It fails to Include a specific order to recognize and bargain with the Union as the representative of the unit employees of Mr Build, and be- cause it falls to require the Respondents to apply and abide by the rele- vant collective- bargaining agreement for the unit employees of Mr Build We have modified the recommended Order to include the appro- pnate affirmative relief We have also Issued a new notice to employees APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to abide by our collective- bargaining agreement with Local Union No 8, International Brotherhood of Painters and Allied Trades by not paying painters and decorators em- ployed by Mr Build—Distinctive Decorators, Inc the wage rates and benefits provided for therein 299 NLRB No 27 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ._ WE WILL NOT intimidate, retaliate, or otherwise discriminate against you for insisting on being ac- corded rights under that agreement or for testify- ing in proceedings before the National Labor Rela- tions Board WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain with the Union as the exclusive representative of all our decorators and painters, as defined in the collective-bargaining agreement between the Union and H A Green Decorating Co, Inc , including those employed by Mr Build—Distinctive Decora- tors, Inc , but excluding supervisors as defined in the Act WE WILL apply to all nonsupervisory employees employed by Mr Build—Distinctive Decorators, Inc , who do painting and decorating work as de- fined in the collective-bargaining agreement be- tween the Union and H A Green Decorating Co, Inc , the terms and conditions of that contract WE WILL make whole, with interest, all painters and decorators employed by Mr Build—Distinc- tive Decorators, Inc. who have suffered any loss of earnings and other benefits as provided in that agreement by reason of our refusal to comply within, by paying to them the differential in wage rates and benefits from and after early September 1985 WE WILL pay into the welfare and pension funds established under that agreement amounts which should have been paid into those funds on their behalf, with interest WE WILL make whole, with interest, Ron Zim- merman for any loss of earnings and benefits suf- fered by him as a result of our unlawfully suspend- ing him on January 11, 1988 WE WILL remove from our records any refer- ence to the suspension of Ron Zimmerman and will notify him, in writing, that this has been done and that it will not be used against him in any way H A GREEN DECORATING Co, INC AND/OR MR BUILD—DISTINCTIVE DECORATORS, INC , ALTER EGO/- SINGLE EMPLOYER AND/OR JOINT EMPLOYERS Douchan Pouritch, Esq , for the General Counsel Stephen D Erf and Timothy L Moorehead, Esqs (McDer- mott, Will & Emery), of Chicago, Illinois, and J Charles Sheerin, Esq , of Michigan City, Indiana, and Herbert S Lasser, of Merrillville, Indiana, for the Re- spondents Bernard M Mamet and Paul T Berkowitz Esqs (Bernard M Mamet & Associates, LTD), of Chicago, Illinois, for the Charging Union DECISION STATEMENT OF THE CASE ROBERT T WALLACE, Administrative Law Judge Upon a charge filed by Local 8 on November 26, 1986, a complaint (Case 13-CA-26459) issued on March 25, 1987 The case was initially heard by me at Chicago, Illi- nois, on June 9-11, 1987, and it appeared resolved by virtue of an all-party settlement agreement entered into on June 11 However, Respondents subsequently rejected the agreement, and a new charge, filed by the Union on January 14, 1988, resulted in issuance of another com- plaint (Case 13-CA-27477) on February 11, 1988 The complaints were heard in Chicago on a consolidated record involving 12 days of trial during a period extend- ing from January 13 to April 27 At issue in the first complaint is whether Green Deco- rating violated Section 8(a)(5) of the National Labor Re- lations Act by failing to recognize the Union as the ex- clusive collective-bargaining representative of painters employed by Distinctive Decorators and by refusing to apply the existing collective-bargaining agreement be- tween Green Decorating and the Union to the painters employed by Distinctive Decorators The second com- plaint alleges that Respondents violated Section 8(a)(3) and (4) by suspending employee Ron Zimmerman be- cause he testified in this proceedmg Based on the entire record, including my observation of the witnesses and after due consideration of the briefs filed by all parties, I make the following FINDINGS OF FACT A Jurisdiction It is admitted, and I find, that Green Decorating is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, and that Local 8 is a labor organization (Union) within the meaning of Section 2(5) of the Act B Green Decorating For over 70 years Green Decorating has been a con- tractor for residential, commercial, and light industrial painting and decorating services, and it has maintained an office, a paint store, and a shop-warehouse facility in Gary, Indiana Its letterhead bears the logo "Distinctive Decorators Since 1919" The officers and sole shareholders of Green Decorat- ing are Richard Green (president), William Martin Sr (vice president), and Richard's wife, Charmaine (secre- tary-treasurer) Richard Green owns a majority of the shares and his activities on behalf of the Company include estimating, sales, and instructing employees on the job Martin Sr, for the most part, remains at the facility coordinating op- erations, including assigning workers and materials to jobs Charmame has had no role in the operation of the H A GREEN DECORATING CO 159 Company aside from occasionally filling in as an office clerical and allowing her name to be mechanically print- ed on checks The painters employed by Green Decorating have always been represented by the Union under successive collective-bargaining agreements, the latest of which was in effect for a 2-year period extending from July 1, 1985 Among other things, the agreement provides a wage rate of $15 60 an hour and fnnge benefits, and it prohibits subcontracting to companies not party to collective-bar- gaining agreements with unions At all pertinent times, between 12 and 18 painters were employed by the Com- pany, all of whom were members of the Union Over the years and particularly in the 1980s, Richard Green witnessed and was deeply concerned about ero- sion of business due to competition from nonunion paint- ing contractors who were able to underbid him on jobs involving residences and small buildings He recalls, for example, losing a lucrative contract for maintaining "Phillips 66" gas stations During 1985, Vice President Martin states that 70 to 80 percent of Green Decoratmg's jobs involved painting and decorating commercial prop- erties, 10 to 15 percent involved light industrial work, and another 10 to 15 percent involved renovating resi- dences Corresponding percentages in 1975 for the three classifications are 60 to 70, 10 to 15, and 20 to 25, respec- tively C Distinctive Decorators Origin According to Charmame Green, she decided in early 1985 that she "didn't want to be a house- wife at this point in my life", and she told husband Rich- ard she wanted to set up a business of her own He ap- proved, and she proceeded to investigate options such as operating a boutique, beauty salon, or antique shop, but she found reasons to reject all of them However, her prospects brightened in June when, having accompanied Richard to a luncheon, she sat next to his friend and fellow Rotarian, Mike Saks The latter, upon learning of her frustration in finding a suitable business opportunity, told her he had just the thing He went on to explain that he and a partner (Curt Koch and his wife Joyce) had recently obtained a franchise as a general contractor in northwest Indiana for Mr Build, a company with na- tionwide operations involving renovation of homes and small buildings Continuing, he advised that they were in the process of selling "subfranchises" to contractors in the various building trades After some further discussion he urged her to contact Joyce Koch for more informa- tion Shortly thereafter, Joyce called and invited Charmaine to an information meeting After attending several such sessions, Charmame opted to buy a franchise as a paint- ing subcontractor Asked why she chose painting, she ex- plained Well, we were talking about my background nat- urally, you know, I had to supply her with some in- formation on my background and sewer contract- 1 Although Richard Green overheard the conversation, assertedly he did not arrange the encounter nor participate in it mg2 was naturally somewhere in my background, I mean as far as some familiarity and naturally the painting business was also there with greater famili- arity and they had been doing the painting them- selves, not—not Joyce and Curt, but they them- selves had men on their payroll who were painters, but they were not actually professional painters and they were running into problems with coatings and so forth and applications and how to handle the product, what products was needed in what particu- lar time and they were running into a lot of prob- lems with their customers that way So they were really pleased when I decided eventually that I was going to be a painting contractor because they thought that would take that responsibility off their shoulders 3 Although he did not attend those meetings Richard had "numerous discussions" with Charmame about them, and to cover franchise and startup costs, he agreed to her withdrawal of $20,000 from their joint checking account in return for a promissory note (or notes) the terms of which are not of record Distinctive Decorators was incorporated on August 28, 1985, and Charmame Green has remained its presi- dent and sole stockholder of record Richard is not an officer In December, the public was advised of its entry into the residential/commercial painting business in a front page item in a newspaper circulated throughout northwest Indiana Therein, Charmame was pictured, identified as president, and described as having "exten- sive expenence in the decoratmg field, having served for 14 years as secretary-treasurer of H A Green Co, a firm celebrating its 67th year of business" Throughout all pertinent periods, Distinctive Decora- tors conducted business out of the basement and garage of the Greens' jointly owned home in a residential subdi- vision of Valparaiso, Indiana, under a rental agreement (R Exh 14) purportedly signed on September 1, 1985, with Richard being shown as lessor It operated as a nonunion Company, paying its painters, never more than four in number, between $8 and $12 an hour Equipment consisted of a van and station wagon, as well as dispos- able items such as paint, brushes, pails, drop cloths, and masking tape Virtually all of the disposables were pur- chased at the paint store of Green Decoratmg, 4 at a 30- percent discount available to other volume purchasers 5 2 Dunng the period 1963-1965 Charmame worked as a full-time secre- tary for her then husband who operated a sewage contracting business, and on occasion, when he was absent from the office, she assigned em- ployees to particular jobs 3 Joyce Koch testified that Richard's expenence and resources as a painting contractor had "absolutely nothing" to do with the award 4 Richard Green explains that outside purchases by Distinctive Deco- rators probably occurred only when needed items were not in stock 5 An invoice dated September 18, 1985, shows that Distinctive Decora- tors was billed $1032 for purchases of disposables earlier in that month Another sent in late December is in the amount of $1,696 86 and includes purchases for that month as well as a carryover of $881 33 from a No- vember billing There is no indication that any interest was charged on the latter amount, although Green Decoratmg's policy is to charge 1-1/2 percent per month on credit charges not paid within 30 days 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although Distinctive Decorators frequently needed durable equipment (e g, larger vehicles, scaffolding, power washers, steam cleaners, and compressors) it owns none This is because from the very outset of operations it was able to obtain such equipment from Green Deco- rating whenever and for as long as needed, and without charge or any record being kept until well after filing of the initial charge in this case (i e, from early September 1985 through November 1986 and beyond) 6 In contrast, all other customers of Green Decorating had to sign equipment in and out and pay rental fees, 7 and, when equipment was being used on a Green Decorating job, a record was maintained as to the time items were taken out and returned On or about September 1, 1985, Distinctive Decora- tors obtained its first contract, which called for partial repair of a fire-damaged residence (Nelmar's) in Long Beach, Indiana Setting a pattern followed on virtually all subsequent jobs undertaken by that Company, Rich- ard Green visited the site, advised Charmame of an ap- propriate bid based on costs involved, and prepared de- tailed job specifications which, together with bid propos- als, were later typed by Charmame On returning from the site inspection, they saw a 14- year employee (Ron Zimmerman) of Green Decorating doing outside painting on their home Channame pro- ceeded into the house Richard, however, approached Ron and, after telling him about Charmame's new Com- pany, asked if he would moonlight for Charmaine at wages below union scale and recruit others Ron agreed, and shortly thereafter he and two other Green Decorat- ing employees (his son Randy and Elliott Piasecki) paint- ed the Nelmar home in between working full time on a Green Decorating job at nearby Michigan City, Indiana They were told what to do on the Nelmar site only by Richard Green, and they were paid for the extra work by checks from Distinctive Decorators given to them at the same time they received their regular paychecks from Green Decorating Other jobs performed under the aegis of Distinctive Decorators followed in rapid succession, and within a short time that Company acquired and continued to maintain a complement of three to four full-time painters, all of whom were unaffiliated with any union One of these was Ron Zimmerman's brother Max who was hired as "leadman " Another was Randy Zimmerman He had been laid off from Green Decorating by Richard Green who, shortly thereafter, hired him for Distinctive 6 In many Instances, the "shop" man of Green Decorating would make equipment available to employees of Distinctive Decorators either upon oral instructions of Richard Green or pursuant to lists wntten out by him on scraps of paper The shop man was not Instructed to retain the slips and didn't Frequently, however, there were no instructions, and the shop man would provide equipment to employees of Distinctive Decorators on their request, again with no record being kept 7 Richard Green states that he began requiring employees of Distinc- tive Decorators to sign equipment in and out sometime in 1987 8 Employees of Green Decorating continued to moonlight on Distinc- tive Decorators' jobs at least through August 1986 These Included Pis- sed(' and Don Sloas The latter did so at the urging of Richard Green who initially told him that Green Decorating didn't have any work for a week or two Sloss agreed on condition that his wife (Laura) be recorded as the employee, thereby to avoid his being disciplined by the Union for working at below scale wages Decorators on condition that he drop his membership in the Umon,° and when Max departed in later October 1985, 10 Randy was promoted to leadman by Richard A third was Jeff Pappas who was hired by Randy in May of 1986, succeeded him as leadman in September of that year," and continued in that capacity through January 15, 1988, when he testified under subpoena As leadman for Distinctive Decorators, Randy Zim- merman received all of his work assignments from Rich- ard Green, and the latter gave him detailed instructions as to what matenals were to be used and how work was to be performed Contact was on a daily basis at jobsites, by telephone, or in the basement of Richard's home When additional help was needed, Richard would pro- vide employees from Green Decorating, typically telling Randy that he'd give him Sloss for wallpapering, Pia- secki for drywallmg, etc While Randy was leadman, about 60 percent of Distinctive Decorators' work was commercial, 15 to 30 percent was light industrial, and 20 to 30 percent was residential In late April 1986, and shortly after Distinctive Deco- rators successfully bid on a job to renovate over 20 serv- ice stations operated by Phillips 66, Richard Green gave Randy Zimmerman a set of keys to the entire Green Decorating complex of buildings to enable him to make afterhours use of shop facilities for sandblasting and re- finishing cabinets and benches, and for picking up mate- rials and equipment, including vehicles 12 Randy regular- ly used Green Decorating vehicles to transport items to and from Distinctive Decorators' jobsdes On one occa- sion in May or June 1986, Richard told Randy that if anyone asked why Green Decorating equipment was being used by Distinctive Decorators, he was to reply "We are renting " Neither Richard nor Charmame Green ever told him that equipment was in fact being rented " 13 Similarly, Randy was never informed of any lease or other arrangement relating to use of shop space at the Green Decorating plant 14 In early May, Richard Green was in a bind Green Decoratmg's bid of $5500 for subcontracting work on a job (a Dialysis Center in Gary, Indiana) had been accept- ed But through madvertence, Richard Green had under- estimated costs of materials by about $3000 So he pre- Randy allowed his membership to lapse as of December 31, 1985, for nonpayment of dues 1 ° Just pnor to Max's leaving Distinctive Decorators, he and Randy (assisted by Ron Zimmerman) spent a weekend painting a facility of Union Carbide at the request of Richard Green Green Decorating was the contractor for the job and they were paid by that Company They were substituting for employees of the latter who, with the exception of Ron, had refused to work on weekends for less than the time and one- half rate called for in their collective-bargaining agreement " Randy resigned in September 1986 because of illness He was re- hired by Green Decorating in April 1987 and continued as an employee of that Company through January 13 and 14 when he testified under sub- poena 12 No other customer of Green Decorating had such complete access At best, some customers may have been given padlock keys allowing entry to an exterior courtyard for return of equipment is The record contains two documents (R Exhs 10 and 11), purport- edly signed on January 2, 1986, and 1987 (respectively), providing for end-of-the-year billing for items rented dunng those years 14 Richard Green claims that a space agreement existed, but no docu- ment was offered H A GREEN DECORATING CO 161 vailed upon Charmame to have Distinctive Decorators do the job for the bid price under an "agreement" (G C Exh 13(c)) which, among other things, recites The matenals will be ordered by Green's Paint Store, and will be billed to your company I will furnish the supervision of your men, since I was the one that estimated the job, and am familiar with it In doing this, I am sure you will be able to make a profit on it, even though the paper and hanging cost was missed in our original estimate I appreciate you doing this for [Green Deco- rating], and getting us "off the hook" Distinctive Decorators performed the work between May 7 and June 18 pursuant to that arrangement There is no indication of the amount charged to or paid by that Company for materials obtained from Green Decorating nor does the record show, and indeed there is no claim, that Richard Green was paid for his services in supervis- ing the job On at least three occasions in 1986, Randy was told by Richard Green to charge to the account of Green Deco- rating goods (spray gun) and services (repair of flat tires) provided Distinctive Decorators by third parties Dunng the summer, Randy together with Jeff Pappas and two other employees of Distinctive Decorators made a long trip to paint gas stations northwest of Chi- cago near O'Hare Airport Finding their arrival incon- venient, first one and then another station operator turned them away Not having done any work that day, they were resentful knowing that the Company would not pay them for travel time That evening, and acting as spokesman, Jeff Pappas called Richard Green and com- plained Richard agreed to pay them for 2-1/2 hours, or one-half of actual travel time, and that amount was in- cluded in their paychecks . Although Randy and his crew were paid by checks of Distinctive Decorators, he received them each Monday evening from Richard Green His only contacts with Channame Green were for clerical matters, and on rare occasions when she brought material to jobsites Richard Green also regularly reviewed the qualifica- tions of and interviewed job applicants who responded to ads placed by Distinctive Decorators Essentially the same operational pattern continued from September 1986, when Jeff Pappas became lead- man, up through January 15, 1988, when, still employed by Distinctive Decorators, he testified in this proceeding Throughout that period his contacts with Charmame were infrequent and had nothing to do with job perform- ance 15 He conferred with Richard Green practically 15 Pappas recalls one occasion just prior to his promotion when he did receive instruction from Charmame He and another employee of Distinc- tive Decorators were working on a job ("Miss Today") in Portage, Indi- ana, when the business agent of the Union (Leonard Gaskms Sr) ordered them off the job When Pappas called the office of Distinctive Decora- tors, a secretary (Rosalie) answered He told her what happened Later, Charmame came to the site, told them to return to work, and she talked to Gaskms when he reappeared there later that day every evening regarding progress reports, materials needed, expected completion times, and need for addi- tional manpower On average, Richard appeared at jobsites of Distinc- tive Decorators about twice a week However, beginning in December 1987, he severely curtailed those appear- ances The initial charge in this case had been filed in late November, and he explained the variant behavior to Jeff by stating that "he was afraid to be seen [at the sites] by the Union or the Zimmermans " Nevertheless, he continued to visit the sites at off-hours and surreptitious- ly 16 Also in December, Richard told Jeff to destroy any documents he may have retained relating to Distinctive Decorators which bore his name and/or handwriting In addition, he asked Jeff to reconstruct as best he could data on past use of Green Decorating equipment by Dis- tinctive Decorators, and at the same time he told Jeff henceforth to sign that equipment in and out Thereafter, Richard continued daily to instruct Jeff on details rela- tive to jobs of Distinctive Decorators either orally at his residence or through notes transcribed by Charmame On a number of occasions, Richard told Jeff to repri- mand painters of Distinctive Decorators for poor job performance, and he often complained about what he viewed as excessive overtime worked by those employ- ees In the summer of 1987 an employee of Green Decorat- ing (William Martin Jr ), acting on orders of Richard Green, purchased a load of plywood from a lumberyard for a job to be done by Distinctive Decorators and charged the account of Green Decorators for the pur- chase, and in September Richard told him to have a Dis- tinctive Decorators vehicle washed and refueled, hand- ing him a Green Decorating credit card for use in paying the bill Customers confirm that Richard Green was intimately involved with the operations of Distinctive Decorators For example, in November 1986, Debra Jarett wrote that Company (C P Exh 3) telling "Mr Green" that she was very happy with the work performed by "your" men and indicating a few items needmg adjustment In De- cember, Joseph Nelmar was present when Richard in- spected his fire-damaged home and was told that he (Richard) would prepare and send a Distinctive Decora- tors estimate Later Nelmar talked to Richard on the phone regarding scheduling of work He had no contact with Charmame until he saw her arrive at the site with two painters on one occasion in late January 1987 Ber- nard Gross was present when Richard inspected his fire- damaged home in March 1987 Later at the office of Curt Koch (one of Distinctive Decorators' franchisors) Richard discussed price with Gross Although the work was performed by Distinctive Decorators, Gross never met Channame In April 1987 George Smalls, M D, called Green Decorating concerning needed repairs to his home Thereafter, Richard visited the site and gave 16 For example, shortly after the conversation Richard arnved at a site around 7 30 in the evening, he called Jeff's attention to the fact that he was using a rented car rather than the vehicle he usually drove ft e, a station wagon with the Green Decorating logo painted on its doors), adding with a smile, "I'm incognito" 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him a Distinctive Decorators estimate When Smalls opined that the price was somewhat high, Richard as- sured him that it was less than what Green Decorating or other "commercial" companies would charge On one occasion when Smalls felt that the work was going too slowly he telephoned the office of Distinctive Decora- tors Charmame answered and received his complaint On all other occasions he dealt with Richard And in May 1987, Reverend Anthony Ficko conversed with Richard at his rectory concerning repair and painting of windows He had called him because he was pleased with work performed on his church by Green Decorat- ing Richard quoted him a low price, stating that the work would be done by Charmaine's new Company Through completion of the job Ficko had no occasion to talk with Charmame Credibility The foregoing findings are based largely on testimony of Distinctive Decorators leadmen Randy Zimmerman and Jeff Pappas, buttressed by that of Green Decorat- ing's shop clerk William Martin Jr and a number of Dis- tinctive Decorators customers who dealt with Richard Green As witnesses they appeared to be candid, and their accounts are consistent one with another On the other hand, I find incredible repeated assertions by Charmame Green (who had no practical experience in the painting business) that she actually ran day-to-day operations of Distinctive Decorators and by her husband Richard (who grew up in the painting trade) that he had virtually nothing to do with it, and throughout their tes- timony they gave me little reason to change that overall assessment For example, I find disingenuous Charmame's explana- tion of why top portions of approximately 15 "materials sheets" on jobs performed by Distinctive Decorators in 1985 were missing She claims that the missing portions bore the letterhead of Green Decorating, that at the time she used those forms she had no materials sheets with a Distinctive Decorators logo, and that each time she billed those early customers for work performed she would close their files by snipping off the Green Deco- rating letterheads so to avoid confusing her accountant and secretarial assistant 17 in the event they had occasion to review files 18 A more probable reason, and one con- sistent with testimony of the leadmen, is that the letter- heads (whether of Green Decorating or Distinctive " Customers would not be confused because, admittedly, materials sheets were not made available to them 18 Charmame offers as an additional reason, and one which I find unin- telligible, the following I also felt that, well, this was maybe an idiosyncrasy of mine, but I felt that as I was doing my typing and during my billing It was easier for me to go from a typewritten information thing, than from any- thing that would have been handwritten, if there was a handwritten information on it, about where It was supposed to go or where it was supposed to be done, you know, at the place, I Just as soon have a typewritten one to follow She explains that at times she and Randy made notes on the letterhead portion, but was unable to recall Richard Green ever having done so Decorators)" contained handwritten instructions of Richard Green Another instance of patently unbelievable testimony is the episode concerning Laura Sloas referred to in foot- note 8 On March 9, 1988, Charmame contradicted testi- mony of Foreman Randy Zimmerman" by stating that Laura had indeed worked for Distinctive Decorators on several occasions when her husband Don was unavail- able However on March 11, after having learned that Laura was about to be served with a subpoena, she re- turned to the stand and testified that she did not really know whether Laura had worked the jobs for which she was paid because the leadmen never told her "that she hadn't" This totally fails to explain why Laura was car- ried on the payroll of Distinctive Decorators rather than husband Don who actually worked the jobs for which Laura was paid The "Sloss" matter also fails to enhance the credibility of Richard Green He claims that Don Sloas just handed him a scrap of paper containing Laura's personnel data saying, "The next Mr Build job that Charmame has, and the next check, please have her put this on the check," and that he simply gave the paper to Charmame telling her "this is for Sloas if they work for you" His account, in my view, is an obvious exercise in studied ambiguity A further example of testimony (Tr 1541-1580) bor- dering on the bizarre is Richard Green's explanation of how equipment "rentals" to Distinctive Decorators were handled He would have me believe that because of an annual rental agreement with that company (purportedly signed in January 1986) 21 he departed from the estab- lished policy of Green Decorators whereby renters were required to sign out and in at its paint store for equip- ment Instead, during 1986 22 and because "I felt that I could keep a better record of it than they could in the store," Richard claims to have made entries on a log (R Exh 9, pp 2 and 3) on each occasion when Distinctive Decorators took and returned equipment based upon oral information or "scraps of paper" from shopmen and his own recollection 28 12 I note that as early as September 23, 1985, Distinctive Decorators had a materials sheet embossed with its own logo See G C Exh 4, p 2 20 On January 13, 1988, after examining a subpoenaed record (G C Exh 6, a materials sheet bearing the letterhead of Distinctive Decorators which listed Laura as working the Dialysis Center job in Gary during May 1986), Randy testified that Don Sloss, rather than Laura, had worked that job Si The first billing to Distinctive Decorators for equipment rentals oc- curred on January 8, 1987 (R Exh 9, p 1), over a month after filing of the initial charge in this proceeding 22 There is no record of equipment rentals to Distinctive Decorators from the outset of its operations through to February 17, 1986 Richard professes lack of awareness that any were made, and he opines that if Green Decorating equipment was used by Distinctive Decorators during that period it was not recorded and billed due to "an oversight by me or somebody in the store" 23 No reason was offered for why all rentals listed in the log were grouped under jobs performed by Distinctive Decorators or how such in- formation was obtained H A GREEN DECORATING CO 163 Analysis and Conclusions A Section 8(a)(5) The first question presented is whether the relationship between Green Decorating and Distinctive Decorators was such that at all pertinent times they were a single employer and/or alter ego24 and therefore, under Sec- tion 8(a)(5), were both bound by the collective-bargain- ing obligation between the Union and Green Decorating 1 Single employer Single employer status may be found where there is common ownership and financial control, common man- agement, interrelation of operations, and centralized con- trol of labor relations Radio Union Local 1264 v Broad- cast Service, 380 U S 255 (1965), Burgess Construction, 227 NLRB 765 (1977), enfd 596 F 2d 378 (9th Cir 1979), cert denied 444 U S 940 (1979) However, all of those factors need not be shown in order to support such a finding Rather, single employer status depends upon all of the circumstances in a case Blumenfeld Theatres Circuit, 240 NLRB 206, 214-215 (1979), enfd 626 F 2d 277 (2d Cir 1982), Malcolm Boring Co, 259 NLRB 597, 600-601 (1981) With that caveat in mind, the cntena will be considered seriatim Common ownership and financial control It is undis- puted that Charmame Green obtained the initial funding for Distinctive Decorators' franchise and operation by borrowing from a Joint account shared with her husband Richard Green, the principle owner of Green Decorat- ing In that circumstance, and in light of their marital re- lationship and Richard's continuing overall involvement with both Companies, I find this standard sufficiently met Crawford Door Sales Co, 226 NLRB 1144 (1976), Super Save, 273 NLRB 20 (1984) Common management I find the evidence compelling that Richard Green was the main, if not the only, force in the management of Distinctive Decorators He visited the premises of customers of that Company, estimated the value and cost of the work to be done, decided what equipment and materials were necessary, and hired em- ployees and instructed them, including leadmen, in the performance of jobs Interrelation of operations Through the efforts of Rich- ard Green the operations of the two Companies were or- chestrated for the benefit of the Green household Among other things, he made eqUipment of Green Deco- ratmg available to Distinctive Decorators free of charge and saw to it that that Company purchased virtually all of its disposable supplies from Green Decorating He interviewed and hired employees and designated leadmen for Distinctive Decorators and, when needed, he made employees of Green Decorating available by laying them off and/or suggesting that they moonlight for that Com- pany Also, he dealt directly with customers of Distinc- tive Decorators, often suggesting that they use its serv- ices in preference to Green Decorators' so as to obtain lower ("competitive") prices And he took advantage of 24 On brief the General Counsel does not argue that the Companies were Joint employers and in light of the conclusions herein I find it un- necessary to resolve that matter Distinctive Decorators' lower labor costs by having that Company do a Green Decorating job, thereby to mini- mize the effect of an estimating error Indeed, on another occasion he "hired" Distinctive Decorators employees to work for Green Decorating on a weekend when employ- ees of the latter had declined to do so except for time and one-half as provided in their contract with the Union Labor relations As indicated above, Richard Green was extensively involved in hiring, supervising, and pro- moting employees of Distinctive Decorators 2 Alter ego In Advance Electric, 268 NLRB 1001, 1002 (1984), the Board stated The legal principles to be applied in determining whether two factually separate employers are in fact alter egos are well settled Although each case must turn on its own facts, we generally have found alter ego status where the two enterprises have "sub- stantially identical" management, business purpose, operation, equipment, customers, and supervision, as well as ownership Denzil S Alkzre, 259 NLRB 1323, 1324 (1982) Accord NLRB v Campbell- Harris Electnc, 719 F 2d 292 (8th Cir 1983) Other factors which must be considered in determining 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, in- stead, its purpose was to evade responsibilities under the Act" Fugazy Continental Corp, 265 NLRB 1301 (1982) I have found, above, that Green Decorating and Dis- tinctive Decorators have common ownership, manage- ment, and supervision As to business purpose and method of operation, both Companies are engaged in the paint and decorating field in the same geographic area, and their percentages of work involving commercial, in- dustrial, and residential projects are basically the same Indeed, many of Distinctive Decorators' customers were former customers of Green Decorating The only real difference between the two Companies is that the employees of Green Decorating work under a collective-bargaining agreement whereas those of Dis- tinctive Decorators do not and are paid lesser wages and benefits, and, in light of the whole record in this case, an inference is warranted, and taken, that Distinctive Deco- rators was formed by Richard Green solely as a ruse to avoid Green Decoratmg's obligations under the agree- ment 3 Section 10(b) Respondents allege that the charged violation of Sec- tion 8(a)(5) is time-barred by the limitation period in Sec- tion 10(b) because the Union, through its business agent, Leonard Gaskms Sr, knew or should have known about the close relation between Green Decorating and Dis- tinctive Decorators well prior to 6 months before No- vember 26, 1986, when it filed the charge But the evi- 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dence discloses that Richard and Charmame Green con- sistently and fraudulently denied both to Gaskms and this Board that there was any connection between the two Companies other than the fact that they as respective principals of each were husband and wife, and to sustain that position they papered over the true facts by signing promissory notes, leases, rental agreements, and (at least in one instance) a subcontract In addition, they con- spired to destroy portions of documents relating to jobs performed by Distinctive Decorators and admonished employees of both Companies to volunteer no informa- tion to the Union and to participate in their disclaimers The circumstance that Gaskms was aware that em- ployees of Green Decorating also worked part time for Distinctive Decorators, standing alone does not establish that the latter was controlled by the former In this re- spect I note that those employees, as well as those of Distinctive Decorators expressly and credibly denied having revealed any information to the Union pnor to September, 1956 when Ron Zimmerman first "opened up" to Gaskms, and I conclude that it was only from then that the Union had evidence sufficient to warrant filing the charge Compare Burgess Construction, supra at 765-766 B Section 8(a)(3) and (4) On October 28, 1986, and shortly after he gave infor- mation to Gaskms regarding the interrelation between Green Decorating and Distinctive Decorators, Ron Zim- merman was elected steward of Green Decorating's painters, and the Union notified the Company of that action on the following day 25 During the initial trial on June 9-11, 1987, Ron Zim- merman was the only witness called by the General Counsel, and that phase concluded with the signing of a settlement agreement and before cross-examination had ended As noted, the agreement was later repudiated by Respondents who, in a letter (G C Exh 1(k)) dated No- vember 3, 1987, explained that they "do not feel that they can possibly survive in business under [its] terms" On December 2, 1987, all parties were notified that trial would resume on January 13, 1988 In early December 1987, four painters were laid off by Distinctive Decorators, and around Christmastime eight were laid off by Green Decorating Concerned because two or three painters of Distinctive Decorators were re- called to work by Monday, January 4, while none of the Green Decorating painters had been recalled, Ron Zim- merman at about 7 30 a m, on January 5, 1988, ap- proached Richard Green who was standing by a shop desk in the Green Decorating facility No one else was nearby He opened by asking Richard why the Distinc- tive Decorators men were recalled while those of Green Decoratmg were still on layoff Then, according to Richard (Tr 1458-1459), a dialogue ensued (with Ron's voice gradually rising) as follows 26 22 On September 24, 1987, the Union notified Distinctive Decorators that Ron Zimmerman had been appointed steward of its painters 26 Although, for reasons previously stated, I am not Impressed by Richard Green's credibility, I accept his version of the conversation be- cause Ron Zimmerman admitted during the April 1988 session of trial that he had lied in his account of it both in testimony on February 24, Ron Well I am going to put an end to this Richard What is your problem') Ron You are my problem you are greedy and don't give a damn for your men Richard that is your opinion and it is an unfair opinion Ron Well, I am going to Chicago and file some charges I am going to put Distinctive Decora- tors out of business I am going to bankrupt them Richard And what is your program for Green Decorating? Ron I am going to see [it] bankrupt also and I am going to see that you go bankrupt personally [and (shouting)] I am going to see that this is done if it is the last thing I do before I die Richard It may very well be the last thing you do Ron I will see you dead before I die I am going to Chicago now and file some charges Richard Ron, you do what you have to do Ron Zimmerman proceeded to work a full schedule that day and for the remainder of the week After a weekend off he put in a full day on Monday, January 11 However on leaving the Green Decorating facility, the shop man (Martin Jr) handed him an envelope with his name on it containing the following message signed by Richard Green This is in regards to your unprovoked & unex- pected behavior and treatment of me on Tuesday, January 5, 1988, in the shop Your conduct did not stem from anything I said or did to you, and did not occur in a context of - your responsibilities as Shop Steward I will not ignore or overlook your conduct directed toward me, an officer of the Company For that reason you are not to return to this shop If after a month you have cooled down, we will talk about this matter and see if there is a place for you here Ron remained on suspension until February 8 when, pur- suant to a letter from Richard dated February 3, 27 he went to the office, asked for his job back and an oppor- tunity "to have our differences out" He returned to work on the next day 1988, and in an affidavit he gave to a Board agent on January 25, 1988, and because of that admission, I have not relied upon any of Ron's testi- mony in this proceeding 27 The letter reads as follows This is in regards to my letter to you on January 11, 1988, con- cerning your conduct on January 5, 1988 In that letter you were advised that in about a month we would review the matter and your continued employment with H A Green Dec Co, Inc For that reason, if It is your intention to return to work for H A Green Dec Co, we need to sit down and discuss this matter before Feb 10, 1988 I suggest that such a discussion be at the office of the Company at 8 a m, on Monday, February 8, 1988 Please let me know if you will be there, and who, if anyone, you expect to attend the meeting with you If I do not hear from you, we will assume you are no longer Inter- ested in being employed by H W Green Dec Co. and have volun- tarily resigned H A GREEN DECORATING CO 165 I find a violation of Section 8(a)(3) Ron Zimmerman was the union steward and known to be such by Richard Green, and there is no question that he was engaged in a concerted protected activity on Jan- uary 5 when he complained to Richard concerning per- ceived unfairness of Green Decorating painters remain- ing on layoff status while less senior painters of Distinc- tive Decorators were recalled So the only question is whether 'his remarks during the conversation constituted opprobrious conduct such as to forfeit protection under the Act Atlantic Steel Co, 245 NLRB 814, 816 (1979) As stated in that case, the decision as to whether the em- ployee crossed that line depends on several factors (1) the place of discussion, (2) the subject matter of the dis- cussion, (3) the nature of the employee's outburst, and (4) whether the outburst was in any way provoked by an employer's unfair labor practice Here, the discussion took place in the plant at a time when no one else was nearby The subject matter clearly involved "terms and conditions of employment" of par- ticular concern to Ron Zimmerman as union steward The "outburst" was verbal only and amounts to little more than a forceful expression of his frustration at and his determination to see severely punished all those he perceived as perpetrators of the long continuing unfair labor practice (violation of Section 8(a)(5)) found actual- ly to have been committed in this decision I also find the suspension to be in violation of Section 8(a)(4) Richard Green knew that the trial was scheduled to resume on January 13 and that Ron Zimmerman would again be a witness for the General Counsel The suspen- sion, of indefinite duration, was imposed 2 days before the trial and a full workweek after the incident occurred These circumstances, together with Richard's expressed concern that the proceedings jeopardized his ability to survive in business, indicate that the suspension was co- ercive, i e, intended to cover a threat that restoration of his job depended on whether and how he testified Alleged Improprieties Respondents move that the charges be dismissed be- cause of "contumacious conduct" on the part of Union Business Agent Leonard Gaskms Sr in not complying with their subpoena ad testificandum The motion is denied I find no reason to question statements of record that Gaskms was unavailable when called by Respondent on February 24, 1988, because he was in an intensive care unit of a hospital in Florida for heart illness, and that he remained under doctor's care and was unavail- able for medical reasons until March 11, 1988 In any event, Respondents have not shown any prejudice, par- ticularly since they opted, without explanation, not to call Gaskms on March 11 (Tr 1813, 1911) In addition, Respondents ask for dismissal in order "to protect the integrity and fairness of the processes of the Board" They refer to statements made to Richard Green in March or early April 1988 by Gaskins and Ron Zim- merman Among other things Gaskms admittedly told him that attorneys for the Charging Union had "coached" witnesses, that one had said he intended to drive him out of business, and that they tried to suppress the truth by not allowing him to testify and to remain in the courtroom while others did so Similarly, Ron Zim- merman told Richard Green that he hadn't been allowed to testify to certain things and that when he expressed reluctance to testify in February concerning his encoun- ter with Richard on January 5, an attorney for the Charging Union threatened to bring him in with U S marshalls and handcuffs if necessary These matters were thoroughly pursued with Gaskms (Sr and Jr) and Ron Zimmerman during the closing days of the trial in April Without going into detail, I am persuaded that their remarks were prompted by personal problems, including frustration at what they perceived as undue delay in achieving justice in this case In any event, no abuse of Board process took place Gaskins credibly explains (1) that "coaching" in his lexicon simply meant lawyers went over testimony with prospec- tive witnesses, (2) that his statement concerning attor- neys wanting to put Richard Green out of business was based solely on his son's account, 28 (3) that he was not aware of the ramifications of a sequestration order that was in effect requiring prospective witnesses to be out of the courtroom when others testified, and (4) that his per- ception of not being able to tell "the whole truth" was rectified by my giving him an opportunity to augment the record by providing data from his notebook 29 Ron Zimmerman, for his part, explained (Tr 2491) that the things he hadn't been allowed to testify on relat- ed to a stolen truck and tool boxes, but he concedes that he had no proof that the thefts were connected with the Greens or with his earlier testimony Finally, I find that the union attorney's threat to compel Ron Zimmerman's attendance at the trial in Feb- ruary by use of marshalls and handcuffs, though regretta- ble, was not of such import as to warrant anything more than a caution that he be more temperate in the future In this respect, I am aware that the Union had filed the 8(a)(4) charge on behalf of Ron, that the Region had found merit in it and issued a complaint therein, and that Ron's reluctance to testify may well have been a product of the intimidation practiced against him when he was suspended from his job by Richard Green on January 11 CONCLUSIONS OF LAW 1 The Respondents, Green Decorating and its alter ego Distinctive Decorators, constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 All painters and decorators of the two companies are under the jurisdiction of the Union pursuant to the collective-bargaining agreement referred to above 3 The Union is now, and at all times material, has been the exclusive bargaining representative of the em- 22 I accept Leonard Gasluns Jr 's statement (Tr 2457-2458) that he told his father "[the union lawyer mentioned] that this e, the proceed- ing] more than likely would put Green out of business with costs and everything, with fines and penalties for what had been done if the ruling went against him," and that he did not portray the lawyer as having said he intended to put Green Decorating out of business 29 The data so furnished has been considered in this decision along with other evidence 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees of both Companies for purposes of collective bargaining within the meaning of Section 9(a) of the Act 4 As a single employer and alter egos, both Compa- nies violated Section 8(a)(1) and (5) of the Act by failing to recognize the Union as the bargaining representative of the painters and decorators employed by Distinctive Decorators and by failing to apply the terms of the aforementioned collective-bargaining agreement to the painters and decorators employed by Distinctive Decora- tors 5 Green Decorating violated Section 8(a)(1), (3), and (4) of the Act by coercively suspending Ron Zimmer- man from his job for approximately 30 days extending from January 11, 1988 REMEDY Having found that Respondents Green Decorating and Distinctive Decorators, jointly and severally have en- gaged in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the Act, I shall recom- mend that they be required to cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act On these findings of facts and conclusions of law and on the entire record, I make the following recommend- ed3° ORDER The Respondents H A Green Decorating Co, Inc and Mr Build—Distinctive Decorators, Inc , jointly and severally, Gary, Indiana, their officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to provide the painters and decorators employed by Respondent Mr Build—Distinc- tive Decorators, Inc , with the wage rates and benefits contained in the collective-bargaining agreement, effec- tive July 1, 1985, through June 30, 1987 (and any succes- sor agreements), between Respondent H A Green Decorating Co, Inc and Local Union No 8, Interna- tional Brotherhood of Painters and Allied Trades (b) Retaliating or otherwise discriminating against any employee for representing that Union in matters relating to terms and conditions of employment (c) Retaliating, attempting to intimidate, or otherwise discriminating against any employee in connection with testimony in proceedings before this Board (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the 3° 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 rights guaranteed them by Section 7 of the National Labor Relations Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make painters and decorators employed by Mr Build—Distinctive Decorators, Inc, whole for any loss of earnings and other benefits, and reimburse them for medical expenses incurred as a result of Respondents' failure to observe the aforementioned collective-bargain- ing agreement in their regard on and after the date (in early September 1985) when Mr Build Distinctive— Decorators, Inc , began operations, with mterest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987) (b) Pay into the Welfare and Pension Funds estab- lished under that agreement amounts which should have been paid into those funds on their behalf, with interest computed according to the Board's decision in Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) (c) Make Ron Zimmerman whole for any loss of earn- ing and benefits suffered by him as a result of his unlaw- ful suspension on January 11, 1988, with interest as pro- vided in New Horizons, supra (d) Remove from company files any reference to the unlawful suspension of Ron Zimmerman and notify him in wntmg that this has been done and that his suspension will not be used against him in any way (e) Preserve and, on request, make available to the Board and its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (0 Post at their facilities in Gary and Valparaiso, Indi- ana, copies of the attached notice marked "Appendix "31 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Re- spondents' authorized representatives, shall be posted by the Respondents immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are cus- tomanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced or covered by any other materials (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 31 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"