American Elevator Corp. , alter ego of BBQL, LLC

29 AMERICAN ELEVATOR CORP. American Elevator Corp., a wholly owned subsidiary of Marla Electric, Inc., and BBQL, LLC, alter egos and International Union of Elevator Con- structors, Local 19. Cases 19–CA–117057 and 19–CA–121522 January 30, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN On September 25, 2014, Administrative Law Judge Gerald M. Etchingham issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions, to modify his remedy,2 and to adopt the recommended Or- der as modified and set forth in full below.3 1 The judge mistakenly stated in the analysis section of his decision that the Respondent failed to make lump-sum vacation payments since January 2014. As the judge correctly found in his findings of fact, the Respondent failed to make lump-sum vacation payments since about January 15, 2013. The General Counsel excepted to the judge’s failure to explicitly find that Marla Electric, Inc. adopted the collective-bargaining agree- ment in effect at American Elevator Corporation (AEC), the Thyssen Krup Elevator (TKE) agreement, effective July 9, 2007, to July 8, 2012, when it purchased AEC in 2009. We find merit in that exception. Through its conduct, the Respondent adopted the TKE agreement and the agreement that succeeded it, the National Elevator Bargaining As- sociation (NEBA) contract, effective July 9, 2012, to July 8, 2017. See, e.g., U.S. Can Co., 305 NLRB 1127, 1136–1137 (1992), enfd. 984 F.2d 864 (7th Cir. 1993). The Respondent honored the terms of both collec- tive-bargaining agreements, with the exception of its eventual failure to make contractually required benefit contributions and lump-sum vaca- tion payments, which failures gave rise to the instant violations. Ac- cordingly, we find that the Respondent adopted the TKE and NEBA agreements by its conduct, and was bound by their terms. 2 We amend the remedy to provide make-whole relief for unit em- ployees hired by alter ego BBQL who were not paid contractual wage rates, benefits, or otherwise covered by the terms of the 2012–2017 NEBA collective-bargaining agreement as a result of the Respondent’s repudiation of that agreement. See Fallon-Williams, Inc., 336 NLRB 602, 605 (2001) (alter egos are obligated to honor the respondent’s collective-bargaining agreement). Backpay for these employees shall be computed as specified in the remedy section of the judge’s decision. We also amend the remedy to order the Respondent to make whole its unit employees, including employees hired by BBQL, by making all delinquent fund contributions on behalf of unit employees that have not been made since July 2012, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In order to ensure that there is no unintended double recovery, the Respondent may demonstrate in the compliance stage of these proceedings that it has satisfied all or part of this liability by making payments to the funds ordered by the district court in the East- ern District of Pennsylvania in connection with Civil Action No. 12– ORDER The National Labor Relations Board orders that the Respondent, American Elevator Corp., a wholly owned subsidiary of Marla Electric, Inc., and BBQL, LLC, alter egos, Bellevue, Washington, their officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with International Union of Elevator Con- structors, Local 19 (the Union) as the exclusive bargain- ing representative of employees in the following unit by unilaterally failing to make required payments to em- ployee benefit plans, including the pension plan, the health and welfare plan, the annuity plan, the education fund, and the work preservation fund. The unit is: All of the Respondent’s elevator constructor mechan- ics, helpers and apprentices, excluding supervisors un- der the Act. (b) Failing and refusing to bargain collectively and in good faith with the Union as the exclusive bargaining representative of unit employees by failing to make re- quired lump-sum vacation payments. (c) Repudiating and failing to continue in effect all terms and conditions of their collective-bargaining agreement with the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 6309, Order Granting Mot. Summ. J. (Nov. 7, 2013). See Fallon- Williams, 336 NLRB at 604. Further, the Respondent is required to reimburse unit employees for any expenses ensuing from its failure to make the required fund contri- butions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts should be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the employer’s delinquent contributions during the period of the delin- quency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Re- spondent otherwise owes the fund. 3 We have modified the judge’s recommended Order to conform to his unfair labor practice findings and the Board’s standard remedial language. We have also modified the judge’s Order consistent with the amended remedy. We shall substitute a new notice in accordance with Durham School Services, 360 NLRB 694 (2014), and to conform to our modified Order. 362 NLRB No. 9 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 (a) Restore the status quo ante by rescinding the uni- lateral changes to benefit payments and lump-sum vaca- tion payments. (b) Rescind the actions taken that have been found to constitute repudiation of the collective-bargaining agree- ments and give full force and effect to the terms and con- ditions of employment provided in the agreement be- tween the National Elevator Bargaining Association and the Union, in effect from July 9, 2012, to July 8, 2017. (c) Make employees whole for loss of lump-sum vaca- tion pay as set forth in the remedy section of the deci- sion. (d) Make whole unit employees by making all delin- quent fund contributions that have not been made since July 2012, as provided in the remedy section of the judge’s decision as amended in this decision. (e) Make whole unit employees by reimbursing them for any expenses that the employees may have incurred that resulted from failures to make required benefit fund payments since July 2012, as provided in the remedy section of the judge’s decision as amended in this deci- sion. (f) Make whole employees hired by alter ego BBQL, LLC who were denied contractual wage rates, benefits, or any other contractual terms and conditions as set forth in the remedy section of the judge’s decision as amended in this decision. (g) Compensate the affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Admin- istration allocating the backpay awards to the appropriate calendar quarters for each employee. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at its facility in Bellevue, Washington, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and 4 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” maintained for 60 consecutive days in conspicuous plac- es including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electroni- cally, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respond- ent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 2012. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with International Union of Elevator Constructors, Local 19 (the Union) as the exclusive bar- gaining representative of employees in the following unit by unilaterally failing to make required payments to em- ployee benefit plans, including the pension plan, the health and welfare plan, the annuity plan, the education fund, and the work preservation fund. The unit is: All elevator constructor mechanics, helpers and appren- tices, excluding supervisors under the Act. WE WILL NOT fail and refuse to bargain collectively and in good faith with the Union as the exclusive bar- AMERICAN ELEVATOR CORP. 31 gaining representative of unit employees by failing to make required lump-sum vacation payments. WE WILL NOT repudiate or fail to continue in effect all terms and conditions of our collective-bargaining agree- ment with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the unilateral change to contributions to the fringe benefit funds and the lump-sum vacation payments. WE WILL rescind the actions taken that have been found to constitute repudiation of the collective- bargaining agreements and WE WILL fully abide by the agreement between the National Elevator Bargaining Association and the Union, in effect from July 9, 2012, to July 8, 2017. WE WILL make employees whole for any losses due to our failure to make lump-sum vacation payments. WE WILL make whole our unit employees by making all delinquent benefit fund contributions that have not been made since July 2012. WE WILL make whole our unit employees by reimburs- ing them, with interest, for any expenses that they may have incurred that resulted from our failure to make re- quired benefit fund payments since July 2012. WE WILL make whole employees hired by alter ego BBQL, LLC for losses incurred as a result of our failure to provide contractual wage rates, benefits, or any other contractual terms and conditions. WE WILL compensate employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards and WE WILL file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters. AMERICAN ELEVATOR CORP., A WHOLLY OWNED SUBSIDIARY OF MARLA ELECTRIC, INC., AND BBQL, LLC, ALTER EGOS The Board’s decision can be found at www.nlrb.gov/case/19-CA-117057 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Rachel Cherem, Esq., for the General Counsel. Larry D. Bentley, pro se, for the Respondent. David L. Tuttle, Esq., for the Charging Party. DECISION GERALD M. ETCHINGHAM, Administrative Law Judge. I heard this case in Seattle, Washington, on July 15, 2014. On Novem- ber 14, 2013,1 the Charging Party, International Union of Ele- vator Constructors, Local 19 (the Union), filed an unfair labor practice charge in Case 19–CA–117057 alleging that American Elevator Corp., a wholly owned subsidiary of Marla Electric, Inc. (AEC), and BBQL, Inc. (BBQL, and jointly, the Respond- ent)2 violated Section 8(a)(5) and (1) of the National Labor Relations Act3 (the Act). On January 29, 2014, the Union filed a second unfair labor practice charge alleging further violations of Section 8(a)(5) and (1) of the Act. On March 28, 2014, the Regional Director for Region 19 of the National Labor Relations Board (the Board) issued a con- solidated complaint against Respondent alleging that Respond- ent violated Section 8(a)(5) and (1) of the Act. Respondent filed a timely answer on April 11, 2014, admitting and denying vari- ous of the allegations of the consolidated complaint. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire record, from my observation of the demeanor of the witnesses,4 and having con- sidered the posthearing briefs5 of the parties, I make the follow- ing 1 All dates are in 2013, unless otherwise referenced. 2 Respondent’s name appears as amended at hearing. 3 29 U.S.C. §§ 157 and 158(a)(5) and (1). 4 There are few disputes of fact. To the extent necessary, credibility resolutions have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in con- tradiction to the findings here, their testimony has been discredited, either as having been in conflict with credited documentary or testimo- nial evidence, or because it was in and of itself incredible and untrust- worthy. 5 The General Counsel’s motion to strike portions of Respondent’s posthearing brief is granted to the extent that any arguments not sup- ported by facts in the record have been disregarded. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 FINDINGS OF FACT I. JRISDICTION Respondent AEC and Respondent BBQL are Washington State entities which provide or have provided residential and commercial sales and service of elevators, stair lifts, and verti- cal platforms. Respondent stipulated at hearing that it satisfies the Board’s retail and nonretail jurisdictional standards. Thus, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Further, Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, this dispute affects commerce and the Board has jurisdiction of this case pursuant to Section 10(a) of the Act. II. COLLECTIVE-BARGAINING RELATIONSHIP Larry and Marilyn Bentley own 100 percent of Marla Elec- tric, Inc. (Marla), an Oregon corporation, which owns AEC. Larry Bentley (Bentley) was president and CEO of AEC from the time it was purchased from former owner, Mark Vendetti (Vendetti), by Marla on April 1, 2009. AEC maintained offices including a warehouse and storage facility in Bellevue, Wash- ington, at 2110 116th Avenue Northwest, Suite 5. At the time of purchase, the employees of AEC were repre- sented by the Union pursuant to a short form agreement signed by prior owner, Vendetti, agreeing to be bound to the Thyssen Krupp Elevator contract with the Union effective July 9, 2007, and terminating at midnight on July 8, 2012 (here, the TK con- tract), as well as any successor agreements. The TK agreement was succeeded by an agreement between the National Elevator Bargaining Association and the Union in effect from July 9, 2012, to July 8, 2017 (the NEBA contract). The bargaining unit set forth in both contracts recognizes the Union pursuant to Section 9(a) of the Act and includes all of AEC’s elevator constructor mechanics, helpers, and apprentic- es. No evidence was offered to show inappropriateness of this historical unit.6 Thus, I find this is an appropriate bargaining unit within the meaning of Section 9(b) of the Act. Initially, AEC honored the terms of the TK contract and re- tained the 17–18 employees who worked for AEC under its prior owner. Moreover, AEC admits that it continued the same operations, i.e., residential and commercial elevator, stair lift, and vertical platform sales and service, with many of the same major clients, and the same equipment. Given this substantial continuity, there is no dispute and I find that AEC succeeded to the bargaining obligation of the seller as a Burns successor7 and 6 Change in ownership does not destroy bargaining units that have an established history of collective bargaining unless the units no longer conform to other standards of appropriateness. Banknote Corp. of America, 315 NLRB 1041, 1043 (1994) (citing Indianapolis Mack Sales & Service, 288 NLRB 1123 fn. 5 (1988), enfd. 84 F.3d 637 (2d Cir. 1996)). 7 In NLRB v. Burns Security Services, 406 U.S. 272, 281 (1972), the Court held that where there is a substantial continuity between the enterprises, an employer succeeds to the bargaining obligation of its predecessor if it retains a majority of the employees in an appropriate bargaining unit. since the purchase, the Union has been the exclusive collective- bargaining representative of unit employees. III. JULY 2012 CESSATION OF BENEFIT CONTRIBUTIONS Both the TK and NEBA contracts require that employers make contributions to employee benefit plans including a pen- sion plan (art. XVIII), a health and welfare plan (art. XVII), an annuity plan (art. XVIII(A), an education fund (art. XIX), and a work preservation fund (art. XX). AEC honored these obliga- tions until May 2012. At that time, due to financial difficulties, AEC missed payments to the trust. Although AEC signed a settled agreement with the Trusts, ultimately it was unable to comply. In July 2012, AEC quit making contributions to the benefits plan as required by the TK and NEBA contracts. Spe- cifically, AEC did not make payments to the National Elevator Industry Pension Plan, the health benefit plan, the education program fund, the elevator industry work preservation fund, and the elevator constructors annuity. Bentley explained that he was unable to make these contributions due to lack of funds. He did not contact the Union or request bargaining. However, AEC continued to file monthly reports with the trust funds. IV. JANUARY 2013 CESSATION OF VACATION PAY The TK and NEBA contracts contain identical requirements that employers pay vacation pay to employees in a lump sum on January 15 and July 15 (art. XII). The lump-sum amount is based on years of service and hours worked. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by failure to make these payments since January 15, 2013. Although this allegation was denied in AEC’s answer, at hear- ing Bentley agreed that the lump sums were not paid at the time they were due. He stated that over the next few months em- ployees received pay when taking time off. It is undisputed that AEC did not contact the Union about this issue. V. FORMATION AND OPERATION OF BBQL In April 2013, Marla began efforts to start BBQL in order to handle the residential clients of AEC. On July 17, 2013, Marla obtained the certificate of formation of BBQL. On July 16 or 17, 2013, the Union pulled its four remaining employees from AEC pursuant to paragraph 10 of the short form agreement.8 In order to perform further work, AEC subcontracted the work to three different firms. Due to arrearages on payment of the excise tax, on Novem- ber 15, 2013, the Washington State Department of Revenue rescinded AEC’s license to operate. On the following day, em- ployees of AEC were transferred to BBQL. Bentley became the manager of BBQL. His wife Marilyn became vice president and handled accounts payable and their son, William Bentley, who handled inventory and residential sales at AEC transferred 8 Par. 10 provides, “It is understood and agreed that notwithstanding the no-strike obligation in Article XIV of [the TK contract] in the event the Employer fails to pay wages or vacation pay when due or the Em- ployer is over fifteen (15) days delinquent in making contributions to the fringe benefit funds, the Union shall have a right to engage in a strike against the Employer until such time as the wages or vacation pay is paid or the Employer has paid all amounts due to the fringe benefits funds, including interest and liquidated damages, if any.” AMERICAN ELEVATOR CORP. 33 to sales for BBQL for a time. AEC’s bookkeeper Karla Lynch and dispatcher Nedra Mecham both transferred from AEC to BBQL, retaining their former duties. BBQL performed the same work for many AEC clients. Initially BBQL used the AEC facility, office supplies, and equipment. No payment was made by BBQL to AEC for these assets. By letter of December 3, 2013, on AEC letterhead, Bentley wrote to an AEC client that AEC was transferring its service and maintenance requirements to BBQL and that BBQL would assume all AEC assets and maintenance and service contracts. He noted that the management team at BBQL would remain the same as the management team at AEC. Similar letters were sent to other AEC clients. Most of BBQL’s clients had been AEC clients. In hiring mechanics for BBQL in September, Bentley told applicants that it was a nonunion shop. These new employees were not paid pursuant to the NEBA contract rates. The em- ployees were not paid any benefits. VI. ANALYSIS There is no dispute that AEC ceased all benefit payments since July 2012. I have further found that lump-sum vacation payments have not been made since January 2014. There was no prior notice to the Union or opportunity to bargain before discontinuance of the payments. Thus, Respondent altered mandatory terms and conditions of its unit employees in viola- tion of Section 8(a)(5) and (1) of the Act. Merryweather Opti- cal Co., 240 NLRB 1213, 1215 (1979) (refusal to make re- quired fringe-benefit payments established by a collective- bargaining agreement constitutes a unilateral change in terms and conditions of employment); Schmidt-Tiago Construction Co., 286 NLRB 342, 343 (1987) (cessation of payments to vacation trust fund unlawful even though employees were paid directly by employer). In July 2013, after the Union withdrew unit employees from employment, AEC operations ceased and all further operation was transferred to BBQL, a nonunion entity. The collective- bargaining agreement was fully repudiated at this time. Con- tract wages, benefits, and terms and conditions of employment were ignored. Unit work was initially subcontracted. Later, employees were hired at noncontract wage rates with no bene- fits. Respondent’s sole defense is that it was unable to meet these obligations due to financial trouble. Respondent provided evi- dence of its financial status which included a decline in sales revenues as well as net losses. However, financial inability does not relieve an employer from its obligation to bargain with the Union. See, e.g., RBE Electronics of S.D., 320 NLRB 80, 81– 82 (1995) (economic exigency shown if proposed changes were “compelled” and exigency caused by external events beyond the employer’s control or not reasonably foreseeable). Re- spondent has not satisfied this burden. Both AEC and BBQL, as alter egos, are responsible for these unfair labor practices. A change in corporate form that involves no more than a “technical change in the structure or identity of the employing entity, frequently to avoid the effect of the labor laws, without any substantial change in its ownership or man- agement” may be disregarded and the alter ego “is subject to all of the legal and contractual obligations of the predecessor.” Howard Johnson Co. v. Hotel & Restaurant Employees Detroit Local Joint Executive Board, 417 U.S. 249, 259 fn. 5 (1974). The determination of alter ego status is a question of fact based on all attendant circumstances. Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942). Ownership, management and supervision, business purpose, operations, equipment, and customers are the typical factors determinative of whether alter ego status exists. Crawford Door Sales Co., 226 NLRB 1144, 1144 (1976). If these factors are substantially identical, an alter ego relationship will ordinarily be found. Id. A further consideration is whether the purpose behind creation of an alleged alter ego was legitimate or was to evade responsibilities under the Act,9 that is, if the second company was created in order to allow the first company to evade its responsibilities under the Act.10 Not all factors are necessary to an alter ego finding and no single factor is deter- minative,11 Here, AEC and BBQL had the same managers, supervision, and owners; substantially identical clients, and the same opera- tions. Equipment and assets were transferred from AEC to BBQL without any payment. All nonunit employees remained the same. Initially, the unit work was subcontracted. Although BBQL may have been created, as Respondent asserts, to take over the residential clients of AEC, when the Union work force left, BBQL was quickly relegated to taking over all of AEC’s business in a nonunion context. Thus, BBQL was quickly usurped to evade responsibilities under the Act. There can be no doubt that AEC and BBQL constitute alter egos and I so find. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By ceasing payments to the trust funds and ceasing pay- ment of lump-sum vacation pay without providing the Union with prior notice and an opportunity to bargain over proposed changes, the Respondent has violated Section 8(a)(5) and (1) of the Act. 3. By repudiating its collective-bargaining agreement with the Union, Respondent has violated Section 8(a)(5) and (1) of the Act. 4. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist there from and to take certain affirmative action designed to effectu- 9 U.S. Reinforcing, Inc., 350 NLRB 404 (2007) (citing Liberty Source W, LLC, 344 NLRB 1127, 1136 (2007). 10 Cadillac Asphalt Paving Co., 349 NLRB 6, 8 (2007). 11 U.S Reinforcing, supra, 350 NLRB at 404, citing Liberty Source W, supra at 1136; Standard Commercial Cartage, Inc., 330 NLRB 11, 13 (1999); MIS, Inc., 289 NLRB 491, 492 (1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 ate the policies of the Act. The Respondent shall be required to rescind the unilateral change in payment to the trust funds and payment of lump-sum vacation pay. It shall further be required to make employees whole for losses incurred during the period of time the Respondent did not honor these obligations but only as to lump-sum vacation pay. The General Counsel does not seek reimbursement to the trusts because these funds are being recouped through a separate lawsuit filed by the Union’s trusts. The lump-sum vacation payments are not part of the lawsuit and the General Counsel seeks a remedy for this violation. Backpay shall be computed in accordance with Ogle Protec- tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent shall file a report with the Social Secu- rity Administration allocating backpay to the appropriate calen- dar quarters. The Respondent shall also compensate the affect- ed employees for any adverse tax consequences of receiving lump-sum backpay awards covering more than 1 calendar year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). [Recommended Order omitted from publication.]