Louis Rassey And Lapeer Foundry & Machine, Inc.

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louis Rassey and Lapeer Foundry & Machine, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 7-CA-22299 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 6 June 1984 Administrative Law Judge Martin J Linsky issued the attached decision The General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the judge's decision The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified The judge found that the Respondent violated Section 8(a)(1) and (4) by refusing to recall em- ployee Hill from layoff because Hill testified against the Respondent at a prior unfair labor prac- tice proceeding There were no exceptions to that finding The General Counsel has excepted, how- ever, to the judge's recommended remedy for the violation As explained below, we find merit in this exception Prior to his layoff, Hill was one of the two em- ployees working in the Respondent's core room From time to time Hill was also assigned to work in other departments when core room work slack- ened Hill and eight other employees were laid off for economic reasons in May 1983 1 Five addition- al employees were laid off in July With the excep- tion of Hill and one other employee, the Respond- ent has subsequently recalled to work all of those laid off in May and July Hill's former position in the core room has not been filled since the Re- spondent has required only one full-time core maker since May However, commencing on 28 September, the Respondent hired nine new em- ployees to fill positions which the judge found were within Hill's expertise and which he earlier had performed The record shows that the latter five of these new hires were hired in the general labor classification and were paid $5 per hour As noted above, the judge found that the Respondent's failure to recall Hill was violative of Section 8(a)(1) and (4) As a remedy, the judge's recommended ' Hereafter, all dates refer to 1983 unless noted otherwise order provided, inter aim, that the Respondent re- instate Hill to his former or a substantially equiva- lent position and make him whole for lost wages at the rate of $5 per hour for the period commencing 2 February 1984 2 The General Counsel argues that backpay should run from 2 June, the date on which the Respondent first recalled an employee from layoff, and that backpay should be calculated at $5 50 per hour, Hill's pay rate when last em- ployed by the Respondent While we agree that the judge's recommended order is inappropriate to remedy the violation found, we disagree that the backpay obligation at- tached as of 2 June, or that it should be calculated based on Hill's pay rate in his former position Rather, we find that the backpay obligation com- menced on 28 September, the date the Respondent first hired a new employee to fill a position for which Hill was qualified Kern's Bakeries, 228 NLRB 1462 (1977) We further find that backpay should be based on the pay rate for that classifica- tion on the date that the first employee was hired 3 Contrary to the General Counsel's contention, there is no basis for attaching the backpay obliga- tion as of 2 June when the Respondent first re- called to work a laid-off employee The record does not establish that Hill would have been the one recalled on 2 June absent the Respondent's un- lawful discrimination Hill's own position in the core room was not then available and there is no basis for concluding that the Respondent would have recalled Hill rather than the other laid-off em- ployee to fill the position then available The record does establish that the discriminatory treat- ment commenced on 28 September when the Re- spondent hired a new employee rather than recall Hill, even though Hill earlier had performed the duties of the position then available In sum, we find that, absent the Respondent's unlawful dis- crimination, Hill would have been recalled on 28 September and would have received the pay rate appropriate for the job classification then available There is, however, no basis on which to conclude that Hill would have received his former pay rate as a core room employee rather than the pay rate of the classification available had Respondent re- called Hill on 28 September Therefore, we shall 2 The judge did not explain his reason for choosing this particular date 3 The record shows that the classification filled on 28 September was that of General Labor - Grinding Room The record does not show the pay rate for this classification While the record does show that five of the newly lured employees were paid $5 per hour in the 'General Labor' classification, there appears to be some distinction between the two classifications and we cannot determine from the record whether the two classifications have identical pay rates Accordingly, we shall leave to the compliance portion of this proceeding the determination of the exact rate from which Hill s backpay should be calculated 272 NLRB No 89 LAPEER FOUNDRY & MACHINE 567 order that Hill's backpay be calculated based on the pay rate of the classification available on 28 September We shall modify the judge's recom- mended order in accordance with our findings herein 4 AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act The Respondent having discriminatorily failed to recall employee Duane Hill on 28 September 1983, we shall order the Respondent to recall Duane Hill to its employ as of 28 September 1983 and make him whole for any loss of earnings and other bene- fits, less any interim earnings, as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus inter- est as computed in Florida Steel Corp, 231 NLRB 651 (1977), from 28 September 1983 to date of proper offer of reinstatement ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Lapeer Foundry & Machine, Inc , Lapeer, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(b) 5 "(b) Make Duane Hill whole for any loss of earnings and other benefits, suffered by reason of the discrimination against him, less any net interim earnings, with interest, in the manner set forth in the amended remedy section of the decision" 2 Substitute the attached notice for that of the administrative law judge 4 In ordering the Respondent to reinstate Hill to his former or a sub stantially equivalent position, we are ordenng that Hill be reinstated to the position he would now be holding absent the Respondent s unlawful refusal to recall him from layoff We note that Hill s layoff itself was eco nornically and not unlawfully motivated, and that had the Respondent not refused to recall Hill for discriminatory reasons, Hill would have been recalled to a position other than his former position in the core room Accordingly, we are not requinng that Hill be reinstated to his former position so long as there is no legitimate need for his services there 5 The judge inadvertently labeled the affirmative section of the recom mended Order as par I rather than par 2 We hereby correct this mad vertent error APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to recall employees from layoff because they have testified against the em- ployer in proceedings before the National Labor Relations 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 the National Labor Relations Act WE WILL offer Duane Hill immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings and other benefits he may have suffered because of the discrimination against him less any net interim earnings, plus inter- est LAPEER FOUNDRY & MACHINE, INC DECISION STATEMENT OF THE CASE MARTIN J LINSKY, Administrative Law Judge On June 27, 1983, the International Union, UAW (Charging Party) filed a charge against Lapeer Foundry & Ma- chine, Inc and on August 2, 1983, the Charging Party filed an amended charge against both Lapeer Foundry & Machine, Inc, and Louis Rassey, an individual There- fore on August 9, 1983, the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint alleging that both Lapeer Foundry & Ma- chine, Inc and its president, Louis Rassey, as alter ego of Lapeer Foundry & Machine, Inc (Respondent Lapeer and Respondent Rassey) had violated the National Labor Relations Act (the Act) Specifically, it is alleged that Respondents violated Section 8(a)(1) and (5) of the Act by laying off nine em- ployees on May 27, 1983, and seven employees on July 7, 1983, without giving prior notice to the Union and without affording the Union an opportunity to bargain about the layoffs, and it is further alleged that Respond- ents violated Section 8(a)(1) and (4) of the Act by laying off employee Duane Hill on May 27, 1983, because he testified as a witness for the General Counsel in a prior unfair labor practice case against Respondent Lapeer Louis Rassey, president of Lapeer Foundry & Ma- chine, Inc , who is not an attorney, filed an answer on behalf of both Respondents in which he specifically denied that he was the alter ego of Respondent Lapeer and he denied that the Act was violated in any way He did not deny that he was individually and jointly liable 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Respondent Lapeer or that he was an employer under the Act After the answer was filed but prior to the hearing Douglas Witters, Esq , entered his appear- ance on behalf of Respondent Lapeer and Respondent Rassey In the interest of justice and over objection by the General Counsel, I granted his motion to amend the answer to deny that Respondent Rassey was individually and jointly with Respondent Lapeer, an employer under the Act I did offer to postpone the hearing if the Gener- al Counsel needed additional time to prepare her case based on her reliance on the answer prepared and filed by Louis Rassey, who is not a lawyer The General Counsel did not request a continuance 1 A hearing was held in Burton, Michigan, on March 5 and 6, 1983 The General Counsel and Respondent agreed that the May 27, 1983 and July 7, 1983 layoffs al- legedly in violation of Section 8(a)(1) and (5) of the Act would be disposed of by the Board's decision in a prior unfair labor practice case tried before Administrative Law Judge William A Gershuny entitled Lapeer Found- ry & Machine, Inc , Cases 7-CA-20895, et al The Gener- al Counsel filed exceptions to Judge Gershuny's decision and the Board's disposition of that case would be disposi- tive of the 8(a)(5) allegations in the instant case 2 Accordingly, the only issues to be decided in the in- stant case are whether employee Duane Hill was laid off on May 27, 1983, and not recalled because he testified for the General Counsel against Respondent Lapeer in the prior unfair labor practice case before Judge Ger- shuny and, if so, whether Louis Rassey is the alter ego of Lapeer Foundry & Machine, Inc , and should be held individually and jointly liable with Respondent Lapeer for this unfair labor practice On the entire record in this case, to include posthear- ing briefs filed by the General Counsel and Respondent, and on my observation of the demeanor of the witnesses, I make the following3 FINDINGS OF FACT I JURISDICTION Lapeer Foundry & Machine, Inc is a Michigan corpo- ration with an office and place of business in Lapeer, Michigan It is engaged in the manufacture, nonretail sale, and distribution of iron and aluminum castings and related products and employed a maximum of 25 em- ployees in 1982 and 1983 and a maximum of 28 in 1984 Respondent admits and I find that Lapeer Foundry & ' In a preheating conference telephone call 3 days before the hearing, I advised the General Counsel that I was disposed to permit Respondents to amend the answer but would grant a request for a continuance from the General Counsel if she felt she needed more time to prepare her case having relied on on the answer previously filed 2 Judge Gershuny ruled that Lapeer Foundry and Machine, Inc , had a duty to bargain with the Union effective July 29 1983, i e , the date of his decision In its exceptions to Judge Gershuny's decision, the General Counsel is of the opinion that the duty to bargain commenced back in 1982 The Board's decision will determine whether or not Lapeer Found ry & Machine, Inc , had a duty to bargain with the Union regarding the May 27, 1983 and July 7, 1983 layoffs 3 The General Counsel s motion to correct the official record is grant ed Respondent's counsel did not oppose this motion Machine, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION International Union, UAW, the Charging Party in this case, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE A Introduction It is uncontroverted fact that employee Duane Hill tes- tified on behalf of the General Counsel on May 10, 1983, before Judge Gershuny in Lapeer Foundry & Machine, Cases 7-CA-20895, et al Further, it is uncontested that some 17 days later, on May 27, 1983, Duane Hill along with eight other employees was laid off As of the date of the hearing Hill had not been recalled Further, it is uncontested that the decision to lay off Hill was made by Louis Rassey, the president and majority stockholder of Lapeer Foundry & Machine, Inc B The Layoff The General Counsel contends that Hill was laid off and not recalled in retaliation for testifying against the Company Louis Rassey claims that this is not so and that Hill's layoff and the fact that he was not recalled were for sound business reasons and not because he testi- fied against the Company in a prior NLRB proceeding I conclude that Hill was not laid off because he testified against Respondent Lapeer Foundry & Machine, Inc , but that Responent Lapeer has failed and refused to recall him from layoff because he testified I reach these conclusions for the reasons set forth below Eleven employees testified for the General Counsel in the prior unfair labor practice case involving Respondent Lapeer Foundry & Machine before Judge Gershuny in May 1983 Only three were still employees at the time they testified, i e , William Childers Sr, William Stroup, and Duane Hill The other employee-witnesses had been laid off prior to the May 1983 hearing Of these three employees only Duane Hill was prounion Hill testified before me without contradiction that William Childers Sr, and William Stroup were antiunion This is manifest- ly true regarding William Childers Sr, but less so re- garding William Stroup since it was stipulated before me that evidence that William Stroup had signed a union au- thorization card was admitted at the May 1983 hearing Duane Hill was laid off on May 27, 1983, along with eight other employees, and on July 7, 1983, five addition- al employees were laid off (actually seven employees were laid off on July 7, 1983, but two of the employees, i e, Sam Broughton and Glenn Gibbons, had been laid off on May 27, 1983, recalled, and laid off again on July 7, 1983) With the exception of Duane Hill and Richard Miles, every other employee laid off on either May 27, 1983, or July 7, 1983, was recalled Of the 13 employees laid off on May 27, 1983, and July 7, 1983 (not counting Hill and counting Broughton and Gibbons only once), 8 had been LAPEER FOUNDRY & MACHINE 569 recalled and were still employed by Respondent Lapeer Foundry & Machine at the time of the hearing in the in- stant case in March 1984 4 Julius Esch, who had been laid off on July 7, 1983, recalled on August 1, 1983, and was employed by Respondent Lapeer Foundry & Ma- chine at the time of the instant hearing, had signed a union authorization card and this had been a matter of evidence at the hearing in May 1983 In addition, evi- dence at the prior hearing in May 1983 was introduced to show that certain other employees had signed authori- zation cards Authorization cards from 17 employees were admitted into evidence at that hearing, 6 of the em- ployees whose union authorization cards were admitted into evidence were still working for Respondent Lapeer Foundry & Machine at the time of the hearing in the in- stant case in March 1984 5 Respondent Louis Rassey testified that a business slowdown prompted the May 27, 1983 and July 7, 1983 layoffs and Duane Hill was laid off because of the de- cline in foundry business Rassey claims that the fact that Hill was prounion and had testified at the May 1983 hearing had nothing to do with his being selected for layoff and he has not been recalled from layoff (although all others laid off on those dates except Hill and Richard Miles were recalled) because he was not a good worker The General Counsel produced no evidence to rebut Rassey's claim that there was a business slowdown and the evidence of record (to include that layoffs them- selves) supports Rassey's claim of a business decline In addition, the testimony of the General Counsel's star wit- ness Duane Hill, who testified that work was slow pre- ceding his layoff on May 27, 1983, supports Rassey's claim In a nutshell, it was established that Hill testified for the General Counsel, was laid off less than 3 weeks later, and had not been recalled I find that the General Coun- sel did make out a prima facie case but I also find that the Respondents have rebutted that prima facie case by furnishing credible evidence that sound business reasons, e, a decline in work, dictated the layoff of Hill Under the rationale enunciated in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), as recently approved by the U S Supreme Court in NLRB v Transportation Management Corp, 462 U S 393 (1983), Respondents will prevail if the Respondents can show that Hill would have been laid off even if he had not testified at the prior hearing I believe Respondent has met its burden of proof by prov- ing by a preponderance of the evidence that Hill would have been laid off even if he had not testified at the prior hearing As noted above a number of employees signed authorization cards and this was made a matter of record at the prior hearing and known to Respondent and yet, with the exception of Duane Hill and Richard Miles, these employees were not laid off or if laid off they were not refused recall If Rassey wanted to retaliate against Hill, why not retaliable against the others'? 4 Glenn Gibbons, Frank Warvie, Gary Gwyn Daniel Puro, Larry Waly, Kenneth Watz, William Childers Jr, and Julius Esch 5 William Stroup, Martin Batoha, Julius Esch, William Childers Jr, Glenn Gibbons, and Larry C Walt Hill's main job was to work in the core room He was laid off on November 30, 1982, for lack of work and re- called on March 2, 1983 However, prior to his recall on March 2, 1983, Earl Putnam was hired on February 21, 1983, to also work in the core room Putnam was desig- nated to be the leader in the core room and was paid at a higher rate of pay than Hill Two men were working in the core room as of March 1983, i e, Putnam and Hill Putnam was the designated leader and worked at a higher rate of pay Both men were experienced core makers In May 1983, work orders for the core room fell off and Hill was assigned to do other work at the plant On May 27, 1983, a number of employees were laid off Since even Hill concedes there was insufficient work to require two core makers, one of the core makers was laid off Respondent laid off Hill Hill was not the leader in the core room and it was logical to lay him off rather than the core room leader While Respondent could have put Hill into another department, it chose not to and it should be noted that this was a massive layoff involving one-third of Lapeer's employees Hill, as noted above, had previously been laid off in November 1982 when there was lack of work in the core room and he was laid off again in May 1983 when there was lack of work The record reflects that Respondent has continued in oper- ation with the need of only one full-time core maker since May 1983 and Putnam has been that core maker and he was not been laid off In short, there was a de- cline in work and many employees were laid off There is no solid evidence that Hill was unjustly singled out to be laid off because he had previously testified against Re- spondent Lapeer C The Failure to Recall Nine new employees, however, have been hired since Hill was laid off These are not employees recalled from layoff but employees hired for the first time since Hill was laid off In September 1983, Clair Reger hired into the general labor and grinding room classification On October 1983 Loyis Sanchez also hired into the general labor and grinding room classification In November 1983, Michael Tresnak was hired into the floor molder classification And in January and February 1984, no less than six brand new employees were hired into the classi- fication of general labor, which pay $5 per hour com- pared to Hill's pay of $5 50 per hour, namely, Robin Stroup, Scott Slater, Brice Slater, Michael Putnam, Kraig Farrar, and Robert Balldridge 6 A total of nine new employees were hired into jobs which Hill had done or could do and during this period of time Hill, who was still on layoff, was serving as a member of the Union bargaining committee and meeting with Louis Rassey approximately five times trying to work out a collective-bargaining agreement on behalf of Respondent Lapeer's employees Since the complaint alleges that the failure to recall Hill from layoff was in retaliation for his testifying against Respondent Lapeer Foundry & Machine in the 6 See G C Exh 6 which was stipulated to be an accurate listing of all employees, with dates of hire, dates of layoffs, and dates of recall 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1983 hearing I must determine, even if Hill's origi- nal layoff was legal, whether the failure to recall him was illegal In light of all the evidence I must conclude that Hill was not recalled because he testified against Re- spondent Hill had not changed stripes He was prounion before his layoff and remained prounion and this was known to Louis Rassey since on no less than five occa- sions after his layoff Hill met as a member of the union shop committee with Rassey The evidence is persuasive that Hill was treated unfair- ly in not being recalled when every other employee laid off on May 27, 1983, and July 7, 1983, except him and Richard Miles (who was also prounion) had been re- called, and, further, Respondent hired nine brand new employees The positions these new employees were hired into were within the expertise of Hill He could have performed these jobs and had done so in the past One of the new employees, Michael Putnam, even worked on occasions in the core room, the position from which Hill has been laid off Earl Putnam, the leader in the core room, is the father of Michael Putnam Louis Rassey's explanation for not recalling Hill was that Hill was not a good worker Rassey claims that one reason he did not recall Hill was because he needed people to work in the grinding room and when Hill was still employed at Lapeer he had told Rassey he would not work in the grinding room Hill credibly denied that he ever said this to Rassey In addition, Rassey claims that the new employees were paid $5 per hour and Hill had been paid $5 50 per hour While this is true, Rassey could have easily asked Hill whether he would take the cut in pay in order to work It is interesting to note that Hill was trying to get his job back when all nine employ- ees were hired between September 1983 and February 1984 The charge alleging that Hill was illegally laid off was filed on June 27, 1983 Rassey also claimed that he mentioned Hill's allegedly inadequate performance to Hill several times when Hill was still working for Re- spondent Lapeer and, according to Rassey, Hill said, "If you don't like my work then lay me off" Hill credibly denied that he said this to Rassey According to Hill, Rassey never said anything to Hill about his work There are no indications in the record that Hill wanted to be laid off for one reason or another, e g, take a vacation or work a farm Accordingly, it seems unlikely that he would, in effect, ask to be laid off I credit Hill and not Rassey on this point Shortly after Hill was laid off in May 1983 he returned to the plant to pick up his check and had a conversation with Rassey during which, according to Hill, Rassey said that Hill had lied at the May 1983 hearing and that if Rassey wanted to get rid of even "Jesus Christ," union or no union, he would find a way to do it Rassey denies that he said this I credit Hill Hill's testimony has a ring of truth to it and if he were determined to he in order to make his case stronger he could have said any number of other things potentially more damaging to Rassey, e g, that Rassey said, "I won't have a liar working for me and you lied at the hearing," or "I'm getting rid of you because you told the truth and got me in trouble," etc D Louis Rassey Is Not Alter Ego The most recent case to discuss the circumstances under which a corporate officer will be held personally liable for unfair labor practices of the corporate entity for whom that individual is a corporate officer is Con tris Packing Co, 268 NLRB 193 (1983) In that case the Board held that the corporate veil would not pierced and the corporate officer would be held personally liable simply because any or all of the following factors are present The individual corporate officer is president and sole owner, and the individual corporate officer was the one and only decisionmaker whose decision violated the Act The corporate veil may be pierced if the individual corporate officer is the disguised continuation of the cor- poration, the corporate officer has dissipated the assets of the corporation, or there has been a commingling of per- sonnal and corporate assets such that it is difficult, if not impossible, to determine where one begins and one ends In the instant case it is clear that Louis Rassey is the president, treasurer, and major stockholder of Respond- ent Lapeer Foundry & Machine He owns 80 percent of the stock and 20 percent is owned by another corpora- tion entitled Rassey Industries of which he is also presi- dent and treasurer All the stock of Rassey Industries is owned by Louis Rassey's son In addition, Louis Rassey admitted that he personally made the decision to lay off Hill on May 27, 1983 There was evidence presented during the hearing that a driver delivered merchandise between Respondent Lapeer and Rassey Industries on a regular basis There was no evidence, however, that this was improper or that these deliveries were not fully doc- umented in the business records turned over to the Gen- eral Counsel pursuant to subpoena Respondents claimed that all deliveries were documented and the General Counsel produced no evidence to the contrary There was evidence Introduced to show that Louis Rassey di- rected a Lapeer employee to paint Rassey Industries property and this employee was paid by Lapeer and not by Rassey Industries Louis Rassey claimed (credibly in my opinion) that this paint job was done in exchange for work done, without charge, by Rassey Industries on a transformer of Lapeer No evidence was presented to the contrary There was evidence that Louis Rassey stored some personal property (i e, race cars) rent free on the property of Rassey Industries While this may constitute a commingling of personal assets between Louis Rassey and Rassey Industries, it does not amount to a commin- gling of the assets of Louis Rassey and Lapeer Foundry & Machine, Inc There was evidence that Louis Rassey purchased some scrap from Bendix Corporation and stored it on Re- spondent Lapeer's premises Louis Rassey claimed this was a corporate (Respondent Lapeer) asset and was to be used by Respondent Lapeer to build a pattern shop Witness Carol Curran testified that Louis Rassey told her it was his personal property Even if Mrs Curran's testi- mony is credited, this limited commingling is, I find, in- sufficient to warrant a piercing of the corporate veil Carol Curran also testified that Louis Rassey failed to take full advantage of tax credits available to Respondent Lapeer Louis Rassey did not specifically deny this alle- LAPEER FOUNDRY & MACHINE 571 gation but testified that these matters were handled by his accountant and attorney and he assumed all tax cred- its were taken advantage of Again, even if Mrs Curran's testimony is credited, I do not believe the failure of a corporate officer to ensure that his corporation takes ad- vantage of all available tax credits to which his corpora- tion is entitled is the kind of indirect dissipation of cor- porate assets that would justify the extraordinary remedy of piercing the corporate veil and treating the corporate officer as the alter ego of the corporation and personally and individually liable for its unfair labor practices In summary, the record is devoid of the kind of seri- ous nonconduct in the nature of commingling of assets and dissipation of assets to warrant my treating of Louis Rassey as the alter ego of Lapeer Foundry & Machine and thereby holding him personally and individually liable in this case THE REMEDY In light of the entire record I find that Louis Rassey is not the alter ego of Lapeer Foundry & Machine and therefore he is not personally and individually liable for Lapeer's unfair labor practices I also conclude that Hill's layoff on May 27, 1983, was not proven by the General Counsel to have been prompted by Hill's prior testimony against Respondent Lapeer but I nevertheless conclude that as of February 1, 1984, Respondent's failure to recall Hill was motivated by Hill's testimony against Respond- ent Lapeer I will recommend an appropriate cease-and- desist order and that Hill be reinstated and be paid back- pay running from February 1984 at a rate of $5 per hour rather than $5 50 per hour CONCLUSIONS OF LAW 1 Respondent, Lapeer Foundry & Machine, Inc is an employer engaged in commerce, and in operations affect- ing commerce, within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent Louis Rassey is not the alter ego of Re- spondent Lapeer Foundry & Machine, Inc and is not an employer within the meaning of Section 2(2) of the Act 3 By failing to recall Duane Hill by February 1, 1984, because he testified in a prior NLRB proceeding against Respondent, Lapeer Foundry & Machine, Inc , Respond- ent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act 5 Respondent has not otherwise violated the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 7 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 ORDER The Respondent, Lapeer Foundry & Machine, Inc , Lapeer, Michigan, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Failing to recall employees from layoff because they have testified in proceedings before the National Labor Relations Board (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Duane Hill full reinstatement to his former position or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges (b) Make Duane Hill whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which that employee normally would have earned as wages (see remedy section) from February 1, 1984, less net earnings during such period with backpay to be computed in the manner prescribed in F W Wool- worth Go, 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp, 231 NLRB 651 (1977) (see general- ly Isis Plumbing Go, 138 NLRB 716 (1962)) (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, -social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Lapeer, Michigan, copies of the attached notice marked "Appendix "8 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all, places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply Board and all objections to them shall be deemed waived for all pur poses 8 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board'