ACE Masonry, Inc., d/b/a ACE Unlimited and Bella Masonry LLC, alter egos and Bella Furniture Solutio

National Labor Relations Board - Board Decisions

May 3, 2016

363 NLRB No. 181 (N.L.R.B. 2016)

363 NLRB No. 181
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ace Masonry, Inc., d/b/a Ace Unlimited and Bella
Masonry, LLC, alter egos and Bella Furniture
Solutions, Inc. and Henry Bellavigna, Lisa
Bellavigna, Robert P. Bellavigna and Domenick
Bellavigna, Individuals and International Union
of Bricklayers and Allied Craftworkers, Local
No. 3 and Laborers International Union, Local
No. 785 and Northeast Regional Council of Car-
penters. Cases 03–CA–073540, 03–CA–073549,
03–CA–074523, 03–CA–074531, and 03–CA–
079606
May 3, 2016
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On November 25, 2014, Administrative Law Judge
Raymond P. Green issued the attached supplemental de-
cision. The Respondent and the General Counsel each
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs, the
Board’s underlying decision and the Board’s first sup-
plemental decision, and has decided to affirm the judge’s
rulings, findings, and conclusions except as modified
below and to adopt the judge’s recommended Order as
modified and set forth in full below.1 We grant the Gen-

1 On January 23, 2013, the Board adopted Administrative Law
Judge Geoffrey Carter’s underlying decision, JD–65–12, 2012 WL
6755106, to which no exceptions were filed. In that decision the Board
found that Respondent Bella Masonry was jointly liable for the unfair
labor practices of Respondent Ace Unlimited (“Ace”) as its alter ego.
The Board’s decision was enforced by the United States Court of Ap-
peals for the Second Circuit on March 26, 2013, Docket No. 13–585
(unreported).
In Ace Unlimited, 360 NLRB No. 32 (2014), the Board’s first sup-
plemental decision in this case, the Board granted the General Counsel
partial summary judgment on some of the allegations in his compliance
specification and determined the backpay period and the formulas for
determining the remedial payments owed to and on behalf of Ace’s
employees. The Board remanded the case for further determination of
(1) the specific amounts owed to each employee and to the Charging
Party Unions’ respective benefit funds, and (2) the allocation of liabil-
ity among the Respondents. At the hearing on remand, the parties
stipulated to the individual amounts owed (totaling about $11,309 in
backpay and about $128,773 in benefit contributions). The Respond-
ents also conceded that they had not mailed the required remedial no-
tice to employees, as the Board had ordered. (Because the mailing
eral Counsel’s exception to the judge’s inadvertent omis-
sion from his order of remedial backpay in the amount of
$446.32 for employee Robert Freelove, which the Re-
spondents have not opposed. Below, we address (1) the
liability of individual Respondents Lisa and Robert
Bellavigna; and (2) the liability of Respondents
Domenick Bellavigna and his solely owned corporation,
Bella Furniture Solutions, Inc. (“Bella Furniture”).
1. The Liability of Lisa Bellavigna and
Robert Bellavigna
We agree with the judge that it is appropriate to pierce
Ace’s corporate veil and hold Respondents Lisa
Bellavigna (Lisa) and Robert Bellavigna (Robert) indi-
vidually liable for Ace’s remedial obligations.
The Respondents have not directly excepted to any of
the judge’s fact and credibility findings supporting his
conclusion as to Lisa Bellavigna’s liability as Ace’s sole
owner. They contend only that she was justified in re-
moving more than $242,000 from Ace’s bank accounts
under New York State’s Lien Law, Section 70 and Sec-
tion 71, in order to satisfy the claims of Ace’s subcon-
tractors. We agree with the judge, for the reasons he
gives, that the provisions of the New York statute do not
permit Lisa to shield the funds from being recovered to
satisfy the Respondent’s liability.2
With respect to Robert Bellavigna, as the judge noted,
the Board, with judicial support, has pierced the corpo-
rate veil of closely held corporations that are essentially
owned and controlled by members of one family to reach
nonowner family members who play an active role in the
corporation’s operation and in the underlying miscon-
duct.3 Both Ace and Bella Masonry were solely owned
corporations, and Robert, though not an owner of either
entity, played an active and even controlling role in the
operation of both. As Ace’s project coordinator and field

requirement has already been enforced by the court, it remains opera-
tive.
2 We therefore need not pass upon the judge’s comments on Sec.
302(c) of the Labor Management Relations Act with respect to an em-
ployer’s obligation to make contractually required payments, or the
existence of any possible conflict between the Act and the New York
Lien Law. However, to the extent that compliance with the New York
statute would conflict with the Board’s broad remedial authority under
the Act, the Respondents’ defense would be preempted here. See, e.g.,
NLRB v. State of Illinois Dept. of Employment Security, 988 F.2d 735,
739–740 (7th Cir. 1993).
We further note, as a factual matter, that Lisa made no showing that
any of the funds she removed from Ace’s accounts actually were used
to pay subcontractors.
3 See Baker Electric, 351 NLRB 515, 523–525 (2007); SRC Paint-
ing, 346 NLRB 707, 708–709 (2006), enfd. by consent judgment (7th
Cir. June 14, 2007); Bufco Corp., 323 NLRB 609, 627–629 (1997),
enfd. 147 F.3d 964 (D.C. Cir. 1998). We do not rely, as did the judge,
on A.J. Mechanical, 352 NLRB 874, 875–877 (2008), enfd. 321
Fed.Appx. 816 (11th Cir. 2009).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
supervisor, he actively participated in Ace’s unfair labor
practices. In the same capacity, he participated in Lisa’s
efforts to escape Ace’s related liability through misuse of
the corporate form by helping to divert more than
$74,000 of Ace’s assets into his and Lisa’s personal bank
accounts.4
We accordingly adopt the judge’s findings that both
Lisa and Robert Bellavigna are jointly and severally lia-
ble for the remedial payments at issue.
2. The Liability of Domenick Bellavigna
We also agree with the judge that Respondent
Domenick Bellavigna (Domenick), the son of Respond-
ent Henry Bellavigna (Henry), is not jointly and several-
ly liable under piercing-the-corporate-veil doctrine. For
the reasons the judge stated, Domenick and his solely
owned corporation, Respondent Bella Furniture Solu-
tions, were too removed from the ownership and man-
agement of the other two corporate Respondents to sup-
port this equitable remedy.5
Unlike the judge, however, we find that Domenick and
Bella Furniture are jointly liable for the amount of Bella
Masonry’s assets that Henry (Bella Masonry’s sole own-
er) fraudulently conveyed to them.6 From September
2011 to June or July 2012, Domenick provided two pur-
ported services for Bella Masonry: the design, hosting,
and maintenance of Bella Masonry’s website; and the
production, stuffing, and mailing of a set of marketing
brochures. Domenick sent Bella Masonry an invoice for
these services dated “May 1, 2012,” billing $15,000 for
the website and $19,100 for the brochure packets, total-
ing $34,100 and payable to Bella Furniture.7 It is unclear
from the record, however, when this invoice was actually
prepared or sent to Bella Masonry. Domenick testified
that he sent it by email at “the end of June” 2012, but he
did not produce the email confirming this alleged trans-
mittal. Melissa Blanchard, Bella Masonry’s office man-
ager, testified that she did not receive the invoice until

4 Robert’s testimony failed to account for the source of any of the
cash deposits he made in the course of that diversion.
5 In light of the evidence discussed below, however, we do not
adopt the judge’s implicit finding that Domenick was only a “passive
recipient” of corporate funds within the meaning of established law on
piercing the corporate veil.
6 There are no exceptions to the judge’s findings that Bella Mason-
ry’s corporate veil as Ace’s alter ego should also be pierced and that
Henry is also jointly and severally liable for the remedial payments at
issue.
7 Although the invoice was in the name of Bella Furniture,
Domenick admittedly performed all the services billed, which were
entirely unrelated to his company’s furniture leasing business.
The judge mistakenly characterized the invoice amount charged for
the website as “$18,700”; the amount charged for the brochures as
“$15,300”; and the total amount billed as “$34,000.” These minor
errors, however, are inconsequential.
August 24, 2012. Moreover, Bella Masonry did not pay
the invoice until August 28, 2012, a few days after Henry
publicly announced that his company was going out of
business. In any event, Bella Masonry paid the full
$34,100 charged. As described below, this amount was
grossly inflated.
With respect to Domenick’s work on Bella Masonry’s
website, the judge found from the credited evidence that
he “essentially copied and modestly redesigned for Bella
Masonry the already existing website” used by Ace, with
fewer graphics and less detail. Moreover, Vista Print,
which actually hosted the website, charged $35 a
month—or a maximum of $385 in total—for that service.
Blanchard, who had previously designed and maintained
Ace’s website and paid Ace’s monthly hosting bills and
whom the judge found credible, agreed on the basis of
her own experience that Domenick’s charge of $15,000
for Bella Masonry’s website was a “large number.”
Domenick admitted that his charge was “towards the
high end,” even though he admittedly had never done
such work for another customer.8 In addition,
Domenick’s invoice charged for a full year of mainte-
nance and hosting of the Bella Masonry website, even
though he kept it online for a period of only 10 or at most
11 months.
With respect to the brochures, Domenick had 250 pro-
duced in February 2012 by an English company, Eman
Printing. Eman sent a bill of $720 to Bella Masonry,
which Henry forwarded to Domenick. Domenick testi-
fied that Bella Masonry’s initial order was for 600 bro-
chures, but that this changed after he produced the first
250, “when you guys [the Region and/or the Unions]
started going after them thinking that all this alter ego . . .
stuff was going on. . . . because the second this all hap-
pened when they started going after Dad and everything
just got put on hold.”9 As for the remaining brochures,
Henry told Domenick “[t]o just hold off and just see
what—you know.” No additional brochures were pro-
duced. As noted, however, Domenick’s “May 1, 2012”
invoice charged for 600 brochures and Henry paid that
charge in full.
Domenick’s invoice also included charges totaling
$5700 for printing additional solicitation materials, in-
serting them into the brochures, and mailing the bro-
chures to Bella Masonry’s prospective customers. How-
ever, the judge credited the testimony of Blanchard, who
became Bella Masonry’s office manager after Ace be-

8 When asked to justify billing such a high amount during cross-
examination, Domenick responded: “Didn’t hurt to try,” and “Henry
didn’t argue, didn’t say anything about it.”
9 The Unions’ first unfair labor practice charge alleging that Bella
Masonry was Ace’s alter ego was filed on February 1, 2012.
ACE MASONRY, INC. 3
came inactive, that she herself printed out the insert ma-
terials, inserted them into the 250 brochures she received,
and stuffed the brochures into mailing envelopes; and
that Henry paid the postage and mailed the envelopes at
the post office. In these respects, the judge found,
Domenick’s charge for the brochures included “services
that were not performed and . . . the purchase of bro-
chures that were not delivered.” The documentary evi-
dence also strongly suggests that Eman did some and
possibly all of the brochure design.
Given those circumstances, the General Counsel con-
tends that Domenick’s charges of $15,000 for the web-
site and $19,100 for the brochures were grossly inflated,
and that to this extent Henry and Domenick fraudulently
transferred Bella Masonry’s assets to Domenick and Bel-
la Furniture in order to evade Henry’s and Bella Mason-
ry’s alter ego liability in the underlying case. The judge,
however, refused to find the website charge unreasonable
because he had “no way of knowing” whether it was ap-
propriate, due to the lack of expert testimony on that is-
sue. To establish a reasonable price for the brochures, he
reduced the invoice’s combined charges for printing,
stuffing, and mailing them by half—i.e., from $15,300 to
$7650. He declined, however, to find Domenick liable
for the discredited amount, believing that the doctrine of
fraudulent conveyance is not recognized in Board law.
Contrary to the judge, the Board has applied fraudulent
conveyance doctrine, holding that “the General Counsel
may, without proving alter ego status, seek to impose
limited liability on corporate officers or shareholders to
the extent of specific corporate assets wrongfully distrib-
uted to them in avoidance of backpay liability.”10 We
see no reason to limit the application of this doctrine to
corporate officers or shareholders. Thus, where a family
member participates in a fraudulent conveyance by im-

10 Las Villas Produce, 279 NLRB 883, 883 (1986). See also
Marsco, Inc., 287 NLRB 923, 927 (1987), enf. denied on other grounds
873 F.2d 884 (6th Cir. 1989); F & W Oldsmobile, 272 NLRB 1150,
1151 (1984) (applying fraudulent transfer theory although using veil-
piercing terminology); SRC Painting, 346 NLRB at 709 fn. 12 (Mem-
ber Liebman noting this authority).
The Board’s approach in this area is consistent with the Uniform
Voidable Transactions Act (formerly the Uniform Fraudulent Transfer
Act and the Uniform Fraudulent Conveyance Act), promulgated in
2014 by the Uniform Law Commission, as well as Federal and New
York law. The Federal Debt Collection Procedure Act (“FDCPA”), 28
U.S.C. §§ 3304, 3301(5), authorizes the recovery of assets fraudulently
transferred to avoid payment of debts to the United States and in part
identifies various indicia of “actual intent to hinder, delay, or defraud a
creditor.” See United States v. Schippers, 982 F.Supp.2d 948, 964–967
(S.D. Iowa 2013) (explaining the elements of fraudulent transfer and
the related “badges of fraud” under the FDCPA). New York State’s
Debtor and Creditor Law similarly recognizes fraudulent conveyance
and the same analytical framework. See Wall St. Associates v. Brodsky,
257 A.D.2d 526, 528–530 (N.Y. App. Div. 1999).
properly receiving assets of a family-owned corporate
respondent from the relative controlling the corporation,
the Board may recover those assets under either an “ac-
tual fraud” or “constructive fraud” theory. “Actual
fraud” applies where it is alleged that the transferor in-
tended to hinder, delay, or defraud creditors. In contrast,
“constructive fraud” applies where the party challenging
the transfer asserts that the transferee did not provide fair
consideration for the exchange.
Here, the General Counsel made clear throughout the
proceeding that Henry transferred assets to Domenick in
order to shield the assets from attachment, i.e. the “actual
fraud” theory of fraudulent conveyances. Under this
theory, the General Counsel has the initial burden of
showing that a transfer is voidable because the transferor
acted with fraudulent intent in conveying assets to the
transferee. If the General Counsel meets this burden, the
burden shifts to the transferee to show that he acted in
good faith and provided reasonably equivalent value in
exchange for the transfer. Applying this standard, we
find that Henry and Domenick’s actions clearly establish
that most of their website and brochure transactions were
fraudulent conveyances of Bella Masonry assets. 11
The General Counsel met his initial burden of showing
that Henry acted with fraudulent intent. As the judge
found, with ample record support, Henry’s financial
transactions during the relevant time frame—along with
transactions made by Robert and Lisa Bellavigna—“were
undertaken with a motive to evade legal obligations to
their employees.” Henry’s acceptance of funds from
Bella Masonry’s bank accounts, along with his complete

11 Contrary to the dissent, Domenick was not denied due process by
application of the actual fraud analysis. On the contrary, throughout
this proceeding the General Counsel made abundantly clear his allega-
tion that the Respondents fraudulently conveyed payments to
Domenick in order to render the Respondents judgment proof. Begin-
ning with compliance specification (GC Exh. 1(d), 6–7), the General
Counsel alleged that “Henry . . . in concert with Bella Furniture and
Domenick . . . has diverted the assets of Respondent Bella Masonry in
an effort to render Respondent Bella Masonry insolvent and make it
incapable of fulfilling its obligations.” The judge similarly articulated
this theory during his prehearing ruling on the Respondents’ motion to
quash subpoenas: “In essence, the allegations . . . are that . . . the [prin-
cipals] of Ace/Bella Masonry, made a “fraudulent conveyance” to a
relative in order to shelter a large sum of money for which they might
be liable . . . in the litigation.” (ALJ Exh. 1(b) at 3). Indeed, the judge
reiterated the actual fraud theory when directing the Respondents to
provide documents responsive to this allegation. (“Since there is an
issue regarding the relationship between Bella Masonry and Bella Fur-
niture particularly as to whether there were any transfers of assets made
to avoid the former’s legal liabilities, I think that these documents
might contain relevant information.”) Id. at 4–5. Further, the General
Counsel articulated this theory at the beginning of the hearing and
continued to pursue it during the litigation. Accordingly, we disagree
with the dissent that the General Counsel did not raise the actual fraud
theory until his brief in support of exceptions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
failure to account for additional amounts belonging to the
company, confirm that he removed corporate assets in
order to make them unavailable to satisfy the Board’s
remedial order.12 This course of conduct was entirely
consistent with his paying the full charge of $9600 stated
on Domenick’s invoice for printing 600 brochures even
though Henry was well aware (from having first received
Eman’s bill) that Domenick had only 250 printed and
that the actual cost for those brochures was only $720.
The record likewise establishes that Domenick failed
to meet his rebuttal burden.13 First, there is ample evi-
dence of Domenick’s improper motive and lack of good
faith. On whatever date he prepared and sent Bella Ma-
sonry his “May 1, 2012” invoice of $34,100, he admit-
tedly knew that the General Counsel and the Unions
were asserting alter ego claims against the other Re-
spondents, including Henry. Apart from the obvious
overcharges in that invoice, the judge found that
Domenick altogether fabricated the charges for printing
350 brochures and additional solicitation materials; pro-
ducing and stuffing the additional materials; and mailing
the brochures. Domenick admitted that Eman’s $720
charge covered the printing work—for which his invoice
to Bella Masonry charged $9600. We note further that
Domenick, within a week after depositing Bella Mason-
ry’s check for $34,100 in Bella Furniture’s account,
made 3 cash withdrawals from that account totaling
$34,300.14
Domenick also failed to show that he provided reason-
ably equivalent value for most of the money that he re-
ceived from Henry. He did not establish that his legiti-
mate charge for brochure design exceeded $720: Eman’s
actual charge for producing 250 brochures.15 And alt-

12 The judge found that Bella Masonry received more than $126,000
of Ace’s funds transferred by Lisa. In turn, from December 2011 to
November 2012, while the underlying case was litigated to hearing,
Henry pocketed more than $150,000 of Bella Masonry’s cash assets.
At the compliance hearing he also failed to account for another $45,000
of missing Bella Masonry assets.
13 Contrary to the dissent, we find that Domenick was not preju-
diced by the application of the actual fraud theory of fraudulent con-
veyance and the theory’s burden that he show—after fraudulent intent
was established—that he acted in good faith and provided reasonably
equivalent value for the web and brochure design work. During the
more than 4 hours that Domenick testified at the hearing, Domenick
was extensively questioned about whether his charges for this work
were inflated and whether he could substantiate them. The Respond-
ents’ attorney also introduced into evidence all of the documents
Domenick testified he possessed relating to the work.
14 Domenick testified that he used this cash to pay “personal” and
“company” bills, but provided no documentary evidence of this. The
judge, apparently not recognizing that how Domenick disposed of this
cash was potentially relevant to the issue of his collusion with Henry,
prevented the General Counsel from pursuing this matter further.
15 Most of our disagreement with our dissenting colleague on the is-
sue of “reasonably equivalent value” is not about what the evidence
hough the judge was correct that no expert testified to the
actual value of Domenick’s website design, we find on
the basis of Blanchard’s credited testimony and
Domenick’s own admissions that he was entitled to re-
imbursement of, at most, $385 in the form of the $35-
per-month hosting cost charged by Vista Print, the host
he used, over the maximum period of 11 months the
website was shown to be in place. Apart from these val-
id $720 and $385 charges, Domenick failed to explain in
detail what services he actually performed or otherwise
justify his grossly inflated billings.
Thus, subtracting Domenick’s valid $720 and $385
charges for brochure-printing and website-hosting, we
find that $32,995 of the total $34,100 amount that Henry
Bellavigna and Bella Masonry paid to Bella Furniture
and to Domenick for his purported services was fraudu-
lently conveyed and recoverable by the Board for the
satisfaction of the other Respondents’ liability for
backpay and benefit contributions under the Act.
ORDER
The National Labor Relations Board orders that Re-
spondent Ace Masonry, Inc., d/b/a Ace Unlimited, Itha-
ca, New York, and Respondent Bella Masonry, LLC,
Burdette, New York, a single employer and alter egos,
and Respondents Lisa Bellavigna, Robert Bellavigna,
and Henry Bellavigna, individuals, their officers, agents,
successors, and assigns, shall jointly and severally make
whole the unit employees named below, and that Re-
spondents Domenick Bellavigna and Bella Furniture So-
lutions, Inc., Greenville, Florida, shall make whole the
unit employees named below up to the amount of
$32,995, by paying them the amounts following their
names,16 with interest as computed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010),
and minus tax withholdings required by Federal and
State laws.
Robert A. Bellavigna $ 308.84
Jason R. Dempsey 1,407.00

shows, but about whom should be held accountable for the lack of
evidence-the General Counsel or Domenick. We disagree with our
colleague’s claim that Eman’s generic statement to Domenick that “we
have made [a] custom layout of your design” conclusively establishes
that Domenick designed the brochure himself. In our view, it certainly
does not override the lack of reliable evidence of how much time
Domenick spent on brochure-related work or to what extent he was
responsible for the content and design of the brochures—facts squarely
within Domenick’s control.
16 The amounts following the employees’ names do not include any
amounts the Respondents may owe pursuant to Kraft Plumbing &
Heating, Inc., 252 NLRB 891 (1980), affd. 661 F.2d 940 (9th Cir.
1981).
ACE MASONRY, INC. 5
Joshua R. Freelove 1,824.08
David R. Howard 2,101.72
Brandon Marvin 288.00
Douglas F. Myles 635.39
Charles Morrow 4,297.76
Robert Freelove 446.32
TOTAL BACKPAY $11,309.11
IT IS FURTHER ORDERED that Respondents Ace Mason-
ry, Inc., Bella Masonry, LLC, Lisa Bellavigna, Robert
Bellavigna, and Henry Bellavigna shall jointly and sev-
erally remit, and Respondents Domenick Bellavigna and
Bella Furniture Solutions, Inc., shall remit up to the limit
of $32,995, to the following union trust funds the contri-
butions that the Respondents failed to make in the
amounts set forth below, plus any additional amounts as
prescribed in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
Bricklayers Local No. 3 Funds $ 60,026.26
Bricklayers International Funds 11,949.79
Laborers Local 7 2,475.48
Laborers Local 1358 5,171.56
Laborers Local 589 596.80
Northeast Dist. Council of Carpenters 48,553.16
TOTAL UNION TRUST FUND PAYMENTS
$128,773.05
COMBINED TOTAL DUE: $140,082.16
Dated, Washington, D.C. May 3, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I agree with my colleagues in all respects, except with
regard to the amount of liability to be assigned
Domenick Bellavigna and Bella Furniture Solutions, Inc.
(collectively “Domenick”) and the manner in which that
amount should be determined. I agree that it is appropri-
ate to apply fraudulent conveyance doctrine to recover a
portion of the $34,100 transferred to Domenick from
Bella Masonry. However, for reasons explained below, I
believe my colleagues impermissibly infringe on
Domenick’s due process rights by applying a theory of
“actual fraud,” under which the burden of proof is placed
on Domenick to establish that he provided reasonably
equivalent value in exchange for monies received. To
avoid this infringement on Domenick’s due process
rights, I believe the General Counsel must bear the bur-
den of proof to establish the extent to which Domenick
did not provide fair consideration.
The transferor was a resident of New York,1 so it is
proper to apply New York fraudulent conveyance law.
Specifically, I would apply New York Debtor and Credi-
tor Law Section 273, which covers constructive fraudu-
lent conveyance, see United States v. McCombs, 30 F.3d
310, 323 (2d Cir. 1994), under which the burden of prov-
ing lack of fair consideration rests on the party challeng-
ing the conveyance, id. at 324—here, the General Coun-
sel.2
Turning first to Domenick’s website-design, -hosting
and -maintenance services, I agree with the judge that the
record furnishes no basis for determining whether the
$15,000 Domenick charged for those services was exces-
sive. Absent evidence of the fair-market value of those
services, which is needed to determine whether this fig-
ure was inflated and by how much, I believe the General
Counsel has failed to satisfy his burden to prove that
Domenick did not furnish fair consideration in exchange
for the $15,000 he received.
I believe the record does support a finding that the
$19,100 Domenick charged for creating, printing, and
mailing 600 brochures represents an inflated figure: only
250 brochures were delivered, and Domenick included in
that $19,100 figure charges for services rendered by Bel-
la Masonry’s office manager and stamps purchased by
Henry Bellavigna himself. Contrary to my colleagues,
however, the record does not support a finding that the

1 Bella Masonry, LLC, was based in Burdette, New York.
2 “There is some authority under New York law . . . for the view
that where the evidentiary facts as to the nature and value of the con-
sideration are within the transferee’s control, the burden of coming
forward with evidence on the fairness of the consideration shifts to the
transferee.” Id. (internal quotations omitted; emphasis in original).
Here, however, the facts relating to the value of the services Domenick
furnished in exchange for monies received from Henry Bellavigna were
not within Henry’s exclusive control but instead could have been estab-
lished through testimony regarding the fair-market value of those ser-
vices. Indeed, as explained below, the General Counsel did introduce
testimony that Domenick did not perform all the brochure-related ser-
vices for which he was paid. Accordingly, I believe the burden to
prove lack of fair consideration properly remains with the General
Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
fair market value of Domenick’s brochure-related ser-
vices was $720, the amount charged by Eman Printing.
The majority effectively concedes as much when finding
that the documentary evidence “suggests” that Eman
Printing did some and “possibly all” of the brochure de-
sign (emphasis added). In other words, the record evi-
dence is inconclusive and thus fails to establish that
Domenick charged for brochure-design work he did not
perform. Moreover, contrary to my colleagues, the rec-
ord evidence does not support a finding that Eman Print-
ing designed the brochure. Rather, the evidence shows
that Domenick designed the brochure himself and up-
loaded it into Eman Printing’s system. Indeed, an email
from Eman to Domenick states, “We have made [a] cus-
tom layout of your design” (emphasis added). Again, as
with the website-design services Domenick performed,
the facts relating to the value of his brochure-design ser-
vices were not within Henry’s exclusive control but in-
stead could have been established through testimony
regarding the fair-market value of those services. There-
fore, because the record is inconclusive, I believe we
must resolve this issue against the General Counsel, who
is the party on whom the burden of proof rests. See
McCombs, supra. I would adopt as a reasonable approx-
imation the judge’s finding that the fair market value of
Domenick’s brochure-related services was roughly 50
percent of the amount he charged and received. Accord-
ingly, I would limit the amount of Domenick’s liability
to 50 percent of $19,100, or $9550.
My colleagues take issue with my application of a the-
ory of constructive fraudulent conveyance and my as-
signment of the burden of proof to the General Counsel.
They apply a theory of actual fraud under the Uniform
Voidable Transactions Act (UVTA). Under the UVTA,
once a creditor—here, the General Counsel, on behalf of
the backpay claimants and union trust funds—has shown
that a transfer was made “with actual intent to hinder,
delay, or defraud any creditor of the debtor,” UVTA §
4(a)(1), the transfer is voidable “to the extent necessary
to satisfy the creditor’s claim,” id. § 7(a)(1), unless the
transferee shows that he took the sum transferred “in
good faith and for a reasonably equivalent value given
the debtor,” id. §§ 8(a), 8(g)(1) (“A party that seeks to
invoke subsection (a) . . . has the burden of proving the
applicability of that subsection.”). Thus, assuming the
General Counsel met his initial burden to show that the
payments to Domenick were made “with actual intent to
hinder, delay, or defraud,” then under the UVTA my
colleagues would be correct that on a theory of actual
fraud, the burden of proof would shift to Domenick to
show that he took payment of the $34,100 “in good faith
and for a reasonably equivalent value” provided to Bella
Masonry in exchange.
The problem with my colleagues’ approach is, again,
the impermissible infringement on Domenick’s due pro-
cess rights. The General Counsel did not litigate the is-
sue of Domenick’s liability under a theory of fraudulent
conveyance. In both his opening statement at the hearing
and his posthearing brief to the judge, the General Coun-
sel’s attorney argued that Domenick should be held per-
sonally liable under White Oak Coal Co., 318 NLRB 732
(1995), which sets forth the standard to be applied in
determining whether the corporate veil may be pierced.3
This was the sole theory the General Counsel advanced.
Nothing in the way the General Counsel litigated this
case put Domenick on notice that the General Counsel
was seeking, in the alternative, to recoup the $34,100
under the fraudulent conveyance theory of “actual fraud”
on which my colleagues rely.4 Thus, Domenick was not
reasonably placed on notice that a burden of proof had
shifted to him to establish that he took payment of the
$34,100 “in good faith and for a reasonably equivalent
value” of services rendered in exchange.5 Accordingly,

3 See Tr. 12 (“Regarding personal liability, this case falls under the
White Oak Coal test.”); General Counsel’s Brief to the Administrative
Law Judge, at 20 (“The evidence and applicable case law establish that
it is appropriate in this case to pierce the corporate veil and hold the
Bellavignas and Bella Furniture each derivatively liable. . . .”); id. at
24–25 (analyzing transfer of $34,100 to Domenick under the first prong
of the White Oak Coal standard); id. at 27 (analyzing transfer of
$34,100 to Domenick under the second prong of the White Oak Coal
standard). The General Counsel did additionally argue that Henry
Bellavigna fraudulently transferred his own personal assets to
Domenick, but this involved the transfer of four real properties for $1
each, not the payment by Bella Masonry of the $34,100 for website-
and brochure-related services. See Tr. at 13; GC’s Brief to the ALJ at
25.
4 The first and only time the General Counsel mentioned fraudulent
transfer as an alternative basis of recovery from Domenick was in his
exceptions brief (see General Counsel’s Brief in Support of Exceptions,
at 12)—after the judge mentioned this option in his decision but reject-
ed it as not reflecting “the current state of Board law” (Judge’s Deci-
sion at 13).
5 Transfer of corporate assets without fair consideration is a relevant
factor under prong one of the White Oak Coal standard. See 318
NLRB at 735. However, “the party asserting that the corporate veil
should be pierced . . . has the burden of proof, and that burden is a
heavy one.” Flat Dog Productions, Inc., 347 NLRB 1180, 1182
(2006). This further supports the conclusion that the General Counsel
had the burden to prove lack of fair consideration, and Domenick had
no reasonable notice that he must prove adequate consideration. More-
over, even assuming Domenick could have guessed that the Board
would apply fraudulent conveyance law, he would have reasonably
believed that New York law would apply (since the transfers came
from Bella Masonry, located in New York), and under New York law,
fair consideration is not a defense once intent to defraud is established.
See McCombs, 30 F.3d at 328 (“Indeed, where actual intent to defraud
creditors is proven, the conveyance will be set aside regardless of the
adequacy of consideration given.”).
ACE MASONRY, INC. 7
as a matter of due process, my colleagues cannot proper-
ly hold Domenick liable to the extent he failed to prove
fair consideration.
As a final matter, I am not contending that the Board is
precluded from relying on the law of fraudulent convey-
ance. It would be manifestly unjust to permit Domenick
to retain, at the expense of the backpay claimants and
union trust funds, the part of the $34,100 as to which the
General Counsel established that Domenick furnished
nothing in exchange—e.g., brochures charged for that
were never printed and delivered, postage charged for
that was purchased by someone else. But to avoid im-
permissibly infringing on Domenick’s due process rights,
it is necessary to place the burden of proof on the correct
party. Here, the General Counsel had the burden to show
that fair consideration was not furnished, and Domenick
did not bear the burden to prove that fair consideration
was furnished. Accordingly, I believe it is appropriate to
apply a theory of constructive fraudulent conveyance,
under which, as I explain above, the burden of proof rests
on the General Counsel.
Accordingly, for the above reasons as to these issues, I
respectfully dissent.
Dated, Washington, D.C. May 3, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
Greg Lehmann, Esq., for the General Counsel.
Robert L. Boreanaz, Esq., counsel for the Charging Parties.
Jason B. Bailey, Esq., counsel for the Respondents.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Syracuse, New York, on various days in May, July, and
August 2014.
This is a case arising out of a Backpay Specification that was
issued on July 18, 2013. The underlying case was decided by an
ALJ on December 12, 2012, and was upheld by the Board. The
Board’s Decision and Order was then enforced by the United
States Court of Appeals for the Second Circuit on March 26,
2013.1

1 The first charge was filed on February 1, 2012. Thereafter, charges
were filed on February 15, April 26, 27, and 30, 2012. A compliant was
issued on April 31, 2012, and an amended consolidated complaint was
issued on June 27, 2012. The cases were heard by Judge Carter from
July 30 to September 13, 2012, and he issued his decision on December
12, 2012. The Board issued its Order on January 23, 2013, and the
United States Court of Appeals for the Second Circuit issued a judg-
ment enforcing the Board’s Order on March 26 2013.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
In the original case it was held that a company called Bella
Masonry, LLC was the alter ego of Ace Masonry Inc., d/b/a
Ace Unlimited and that both violated Section 8(a)(5) and (1) of
the Act when they refused to abide by three collective agree-
ments with the unions named above. These Respondents were
ordered to make the employees covered by the respective labor
contracts whole for any differences in their pay resulting from
the failure of the Respondents to apply the terms of the respec-
tive contracts to them. Also, the Respondents were ordered to
make whole certain of the unions’ benefit funds where the Re-
spondents had defaulted on their contractual obligations.
The Specification, as amended at the hearing, alleged that for
the period from September 21, 2011, until the cessation of
business by Bella, (Ace having ceased doing business on or
about December 31, 2011). There is no dispute regarding the
amounts of money owed as the parties entered into a stipulation
at the hearing. Thus, the amount owed to the Carpenters’
Funds, exclusive of interest and liquidated damages, is
$48,553.16. The amount owed to the Bricklayers’ Local 3
Funds, exclusive of interest and liquidated damages, is
$60,026.26. The amount owed to the Bricklayers’ International
Funds, exclusive of interest and liquidated damages, is
$11,949.79. The amount owed to the Laborers’ International
Funds, exclusive of interest and liquidated damages, is
$8,242.84. Finally, the amount due individual employees is
$11,309.11.
It is alleged and conceded that the Respondents Ace Mason-
ry and Bella Masonry did not comply with the Board’s re-
quirement that the Notice be mailed to employees. It further
was alleged and conceded that the Respondents failed to pro-
vide certain information to the Bricklayers and the Laborer’s
Unions; such information being ordered to be produced by the
Board’s enforced Order.
Therefore, the only issue remaining in this case is whether
certain individuals connected to these corporate entities should
be held to be derivatively and personally liable for the amounts
set forth above. It is alleged that Henry Bellavigna, Lisa
Bellavigna, and Robert P. Bellavigna should be individually
liable because, among other things, they commingled their own
personal assets with the respective corporate entities and trans-
ferred funds to and from these corporations to either themselves
or to their family members in order to evade liability. It also is
alleged that another family member, Domenick Bellavigna, is
liable for an amount of money that he received for services that
he rendered to Bella Masonry at a rate greatly in excess of mar-
ket value. In this respect, the General Counsel contends that
this was just another way of transferring corporate funds to a
family member in order to evade Respondents’ legal responsi-
bilities to make contractually owed payments owed to employ-
ees via union benefit funds. As to Domenick Bellavigna, the
General Counsel is contending that any liability incurred by
him should be capped at the value of certain parcels of land
transferred to him by Henry Bellavigna plus the amount of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
money that he received for the services he purportedly provided
for Bella Masonry.
In the underlying unfair labor practice case, the following
facts were established and are not subject to relitigation.
Lisa Bellavigna was the founder and owner of Ace Masonry,
Inc. The name of that company was changed in 2006 to Ace
Masonry, Inc., d/b/a Ace Unlimited.2 Robert Bellavigna is her
husband and was employed by Ace as its project coordinator
and field supervisor. Henry Bellavigna is Lisa’s father-in-law,
who in 2004, was hired by Ace to be its chief estimator and
senior project manager.
On September 21, 2011, Henry Bellavigna, while still em-
ployed by Ace Masonry, established his own company called
Bella Masonry.
In October 2011, about six to eight employees of Ace Ma-
sonry were invited by Henry and Robert Bellavigna to join
Bella Masonry as employees. When Bella Masonry became
operational, Henry Bellavigna was the owner and Robert
Bellavigna became the field supervisor. As in the case of Ace,
Robert Bellavigna, had no ownership interest in Bella Masonry.
At the end of December 2011, all of the employees left Ace
Masonry and certain equipment and tools owned by Ace were
foreclosed by Tompkins Bank that had lent money to that com-
pany.3
On January 9, 2012, Bella Masonry purchased from the bank
a truck that had been repossessed from Ace Masonry and in
March 2012, Bella purchased from the bank some of the tools
and equipment that the bank had repossessed from Ace.
In the present, case, the evidence shows that Bella Masonry,
after it commenced operations and Ace Masonry ceased operat-
ing, did some work that had originally been obtained by Ace.
In this way, as to this work, Bella acted essentially as a subcon-
tractor for Ace.
The evidence shows that although Ace Masonry ceased its
own operations by the end of December 2011, the corporation
was not dissolved. Instead, it subcontracted out its existing
contracts, mostly to Bella Masonry which, as noted above, was
owned and operated by Lisa’s father-in-law who, during 2012,
employed her husband Robert and all or most of Ace’s former
construction employees. From what I can gather, there seems
to be two projects that Ace Masonry had contracted for and
which Bella Masonry continued to perform. These were con-
struction projects for Episcopal Trinity Church and for Ithaca
College.
As noted above, the first charge was filed in February 2012.
That charge and all subsequent charges alleged that Ace Ma-
sonry and Bella Masonry were alter egos that had violated Sec-

2 Although Ace Masonry was originally owned by Lisa Bellavigna
and Dave Tavner, the latter had sold his shares to Lisa Bellavigna by
the time of the events that led to these cases. It should be noted that
Dave Tavner and Lisa’s husband, Robert Bellavigna, were the co-
owners, via a company called BT of Ithaca, of the property from which
Ace did business and to which Ace paid rent. She testified that at some
point, Tompkins Bank foreclosed on that property.
3 According to Lisa Bellavigna, she had a line of credit with Tomp-
kins Bank which was in arrears and which resulted in that bank fore-
closing on Ace Masonry’s equipment and vehicles, among which were
forklifts, trucks, tools etc.
tion 8(a)(5) of the Act.
In addition to the unfair labor practice charges, the record
shows that the Unions initiated State court actions to recover
monies owed by Ace Masonry. Indeed, according to the testi-
mony of Lisa Bellavigna, it seems that at some point, perhaps
in the summer of 2012, one or more of the Unions obtained a
restraining Order imposing certain restrictions on Ace from
withdrawing or writing checks on its corporate account at
Tompkins Bank.
At some point in 2012, Lisa Bellavigna, according to her
own testimony, was told by a bank officer at Tompkins Bank
that because the Carpenters Union was tying up Ace Masonry’s
account there, she would be well advised to close down the
account and open up a new account somewhere else. Accord-
ing to her testimony, she agreed to this and expressed her inten-
tion of reopening her Tompkins account at some later date.
So, on August 6, 2012, Lisa Bellavigna opened, on behalf of
Ace Masonry, an account at Citizens & Northern Bank with a
deposit of $152,270.64. In this account, and over the next 14
days, she issued three checks in the amount of $90,000,
$12,286.76 and $44,267. This account was then closed on Au-
gust 20, 2012, with a withdrawal of $5,716.88. Based on her
testimony, and in the absence of copies of the endorsed checks,
it appears that a substantial amount of the deposited money was
transferred to Bella Masonry. And as we have already seen,
Bella Masonry was the alter ego of Ace Masonry. (In effect a
payment from one entity to itself under a different name).
On October 11, 2011, Lisa Bellavigna on behalf of Ace Ma-
sonry, opened an account at Chemung Canal Trust Co. with an
initial deposit of $2,093.67. This became an active and ongo-
ing account for Ace and it was never actually closed. There
were a number of transactions made at this bank that will be
discussed later.
On October 22, 2012, Lisa Bellavigna opened, on behalf of
Ace, an account at Community Bank. The initial deposit was in
the amount of $18,290.95 derived from a check received by a
customer of Ace. Discussed below will be a number of transac-
tions at this bank.
Based on her testimony it is obvious to me that Lisa
Bellavigna closed out Ace Masonry’s corporate bank account at
Tompkins Bank and opened up new Ace Masonry accounts at
these various banks so as to evade making payments that Ace
had contracted for with the unions that are the charging parties
in this case.
The Respondents contend that Ace Masonry was justified,
indeed obligated, to avoid making payments to the Unions and
instead obligated to make payments to its subcontractors. In
this respect, New York State Lien Law, Section 701 is cited.4
As I understand the State law, it is designed to insure that a
vendor, subcontractor, architect, engineer, surveyor, laborer or
materialman will get paid for work done or expenditures made
arising out of the improvement of real property and incurred in
the performance of his or her contract or subcontract. In effect,
the law sets up a constructive trust wherein the general contrac-
tor is deemed to be the trustee with a fiduciary obligation to

4 A copy of this statute is appended to the Respondents’ brief and I
will take official notice of it.
ACE MASONRY, INC. 9
these categories of persons.
Given this state law, the Respondents argue that the unions
would not be within the favored class of creditors and therefore
Ace Masonry’s payments to its contractors was justified. I dis-
agree.
For one thing, the state law, at Section 71(2)(d), treats pay-
ments of any benefits or wage supplements owed by a contrac-
tor to its employees with the same level of priority as the per-
sons described above. Therefore, the monies that Ace Masonry
owed to the Union Benefit funds, which had accrued from be-
fore 2012, were monies owed to its own employees in the form
of health and pension benefits receivable by its employees, via
the union funds, as part of their compensation for having per-
formed services for Ace.
For another thing, a large portion of the payments that Ace
Masonry made during this period of time, were made to Bella
Masonry, which was held to be the alter ego of Ace. Thus, any
payments by Ace Masonry to Bella Masonry were essentially
payments to itself and not a genuine arms-length transaction
between one independent contractor and another.
Finally, since the legal obligation of an employer subject to
the jurisdiction of the National Labor Relations Act is to make
contractually required payments to union trust funds where
there is a lawful collective bargaining relationship, is one that is
embodied in Section 8(a)(5) and 8(d) of the Act. Moreover,
such payments are also protected by Section 302(c) of the Act.
Therefore, to the extent that State law might conceivably con-
flict with the Federal law, then the latter must prevail under the
Supremacy clause of the Constitution. (In fact, I do not see any
conflict).
As noted above, Henry Bellavigna, who previously had been
an employee of Ace Masonry, (and Lisa’s father-in-law),
opened up Bella Masonry in September 2011. And when Ace
Masonry ceased being a functioning contractor, Bella took over
Ace’s employees and customers. That is, these same employ-
ees, (including Robert Bellavigna), continued to do the work
that had originally been contracted for with Ace Masonry.
Also, the record shows that much of the equipment used by
Bella Masonry was purchased by it from Tompkins Bank which
as noted above, had foreclosed on all or most of the equipment
previously owned by Ace Masonry. (Tools, forklifts, etc.)
The evidence is that Bella Masonry did contracting work un-
til August 2012 when Henry Bellavigna decided to terminate its
operations. In this regard, it is quite clear from his testimony
that he chose to close his business because the unions were
pursuing litigation that asserted that Bella Masonry was the
alter ego of Ace Masonry and that it therefore was liable for
Ace’s contractual obligations to the unions and to the repre-
sented employees.
In the meantime, on September 30, 2011, Bella Masonry
opened a corporate account with Chemung Canal Trust Com-
pany with an initial deposit of $2000. Described below will be
a number of transactions made from this bank account.
During the course of the year, Henry Bellavigna contracted
with his son Domenick to purportedly provide certain advertis-
ing and web site services for Bella Masonry. These services
which will be described below, are alleged to have been bogus
or grossly cost inflated.
Also, after Henry Bellavigna decided to terminate Bella Ma-
sonry’s operations, he conducted a private sale of the compa-
ny’s property. And as to this transaction, the General Counsel
and the Charging Parties contend that a substantial portion of
the proceeds from this sale found their way into Henry
Bellavigna’s pocket and not into Bella’s corporate account.
As noted above, Robert Bellavigna was employed as a su-
pervisory employee by both Ace Masonry and Bella Masonry.
Since these were both small companies, I will assume that
much of their field work was conducted under his supervision.
The record establishes that Robert Bellavigna was entitled to
write checks on Ace’s account and was allowed to utilize Ace’s
credit card. He personally guaranteed an obligation in relation
to the purchase of Ace’s stock by his wife from David Traver.
Additionally, the record establishes that as husband and wife,
Lisa and Robert Bellavigna, jointly owned real property and
also jointly owned personal financial accounts into which size-
able sums money were deposited soon after withdrawals were
made from Ace Masonry’s corporate accounts.
It is now time to do some accounting and look at bank rec-
ords.
Accounts of Ace Masonry and accounts of Lisa and
Robert Bellavigna
As noted above, Ace Masonry, in 2011, maintained an ac-
count at Tompkins Bank. Lisa Bellavigna, on the advice of a
bank employee, terminated that account, essentially to avoid
making owed payments to the various union benefit funds.
Thereafter, on August 6, 2012, October 11 and 22, 2012, she
opened up, on behalf of Ace, accounts at Citizens & Northern
Bank, Chemung Canal Trust Co., and Community Bank. As
previously described, the Citizens & North Bank account was
closed after 14 days. Subsequently, Lisa Bellavigna on behalf
of Ace, opened another account at Chemung on or about June
11, 2014.
During this period of time and presumably to the present, Li-
sa Bellavigna and Robert Bellavigna, have maintained joint
personal accounts at Tompkins Trust Company and Visions
Federal Credit Union. Robert Bellavigna also had his own
personal account at Community Bank. They also are the joint
owners of their home and real property.
Bella Masonry maintained its corporate account at Chemung
Canal Trust Company. Henry Bellavigna also maintained a
separate personal account at this bank.
With respect to Ace’s original account at Chemung, the rec-
ord shows that over a period of time, Lisa Bellavigna made
cash withdrawals in the following dollar amounts.
July 24, 2012 9800
August 4, 2012 700
January 7, 2013 1000
March 27, 2013 9970
March 28, 2013 9760
March 29, 2013 9760
Also with respect to Chemung, the record shows that after
receiving a check for $46,500 from Ithaca College, Ace Mason-
ry opened a new account at this bank on June 11, 2014. Imme-
diately thereafter, Lisa Bellavigna made the following cash
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
withdrawals from that account.
June 12, 2014 9300
June 13, 201 9300
June 16, 2014 9300
June 17, 2014 9300
June 18, 2014 9300
With respect to the Ace Masonry’s account at Citizens &
Northern Bank, which was opened on August 6 and closed on
August 20, 2012, the record shows that Lisa closed this account
by making cash withdrawal of $5,716.88.
Turning to Ace Masonry’s account at Community Bank, the
record shows that Lisa Bellavigna issued checks made out to
cash or withdrew cash in the amounts and dates as follows:
October 23, 2012 9000
October 25, 2012 8600
October 31, 2012 6000
With respect to all of these withdrawals, totaling $70,526.88,
either of cash or checks made out to cash, Lisa Bellavigna
could not or more likely would not remember what happened to
the money, where it went, or what it was used for.
During the period between July 2012 and March 2013, cash
deposits totaling $47,750 were made into the joint account of
Lisa and Robert Bellavigna at Visions Federal Credit Union.
These were as follows:
July 27, 2012 9600
August 31, 2012 2000
August 31, 2012 300
September 25, 2012 1300
October 3, 2012 2000
October 15, 2012 1050
October 22, 2012 800
October 31, 2012 4500
December 4, 2012 6000
December 12, 2012 500
December 13, 2012 700
December 21, 2012 2600
January 3, 2013 1000
January 5, 2013 800
January 29, 2013 2000
February 7, 2013 1000
February 16, 2013 2000
March 6, 2013 1700
March 27, 2013 7900
During the period from October 2012 and March 2013, cash
deposits totaling $10,400 were made into the joint account of
Lisa and Robert Bellavigna at Tompkins Trust Company.
During the period from August 6, 2012, to January 24, 2013,
Robert Bellavigna made three cash deposits totaling $13,000 to
his account at Community Bank.
Accounts of Bella Masonry and Henry Bellavigna
A review of the bank records for Bella Masonry show the
following transactions, most of which were made at the time of,
or soon after he announced the closing of the company. The
records show the following dollar amount transactions:
12/23/11 10367 check signed by Henry Bellavigna,
payable to himself.
3/27/12 17200 cash withdrawal made by Henry
Bellavigna
8/3/12 2500 check signed by Henry Bellavigna,
payable to himself.
8/9/12 4950.59 check signed by Henry Bellavigna,
payable to himself.
8/10/12 4687.67 check signed by Henry Bellavigna,
payable to himself.
8/13/12 4950.58 check signed by Henry Bellavigna,
payable to cash.
8/14/12 8500 check signed by Henry Bellavigna,
payable to cash.
8/15/12 8500 check signed by Henry Bellavigna,
payable to cash.
8/17/12 8500 check signed by Henry Bellavigna,
payable to cash.
10/2/12 601.75 check signed by Henry Bellavigna,
payable to himself.
10/25/12 8000 check signed by Henry Bellavigna,
payable to cash.
10/27/12 2577.08 check signed by Henry Bellavigna,
payable to himself.
11/ 3/12 8000 check signed by Henry Bellavigna,
payable to himself.
11/5/12 8000 check signed by Henry Bellavigna,
payable to himself.
11/6/12 8000 check signed by Henry Bellavigna,
payable to himself. 5
As in the case of Lisa Bellavigna, Henry Bellavigna could or
more likely would not remember what happened to the money
taken out of the Bella Masonry account, where it went to or
what it was used for.
As noted above, Henry Bellavigna announced the termina-
tion of Bella Masonry in August 2012. On August 17, 2012, he
announced and thereafter held a private sale of Bella’s equip-
ment, most of which had originated from Ace Masonry. At this
sale, Casler Masonry purchased items by checks payable to
Henry Bellavigna. These were, respectively for $21,000 and
$50,000. According to Henry Bellavigna’s bank records, he
deposited into his personal bank account, the $21,000 check
plus $19,500 from the $50,000 check. The other $31,000 was
deposited into Bella’s account at Chemung Canal Trust. But the
records from that bank show that a series of five cash with-
drawals were made by Henry Bellavigna from September 10 to
14, 2012. Where this $40,000 went, he could offer no clue.
The sale also produced an additional $45,000. These pro-
ceeds were either paid in cash or by checks made out to and
cashed by Henry Bellavigna. None of this money, as far as this
record shows, went into Bella Masonry’s bank account.
The cash withdrawals by Henry Bellavigna from Bella Ma-
sonry’s bank account and his sale of the company’s assets re-

5 Of lesser significance, but still relevant, the record establishes that
from September 2011 to about February 2013, Henry Bellavigna made
deposits by cash or check from himself to Bella Masonry’s account.
Although characterizing these as loans, these were never documented.
ACE MASONRY, INC. 11
sulted in all of this money eventually finding its way into Henry
Bellavigna’s pocket. Therefore, these transactions essentially
left Bella Masonry without money to pay off its creditors, in-
cluding the union pension and benefit funds.
Transactions involving Domenick Bellavigna
There is also the matter of a transaction between Henry
Bellavigna, purportedly on behalf of Bella Masonry, with his
son, Domenick.
Domenick Bellavigna operates a company under the title of
Bella Furniture and/or Bella Furniture Solutions. This compa-
ny, once incorporated, and since run as a single proprietorship,
is located in Florida. At one time, Henry Bellavigna was listed
as an officer of the company but it does not appear that he has
ever had any ownership or managerial interest in his son’s Flor-
ida business. (He did once manage to utilize his interest in this
company in order to take a deduction in his personal tax re-
turn). In any event, the evidence shows that Domenick
Bellavigna did not have any ownership interest in either Ace
Masonry or Bella Masonry.
There is an invoice dated May 1, 2012, for services per-
formed by Bella Furniture for Bella Masonry. This allegedly
was for the production of advertising brochures and the design
and maintenance of a company website. A check for $34,000
was sent from Bella Masonry to Bella Furniture on August 28,
2012, shortly after Henry Bellavigna announced that Bella Ma-
sonry was going out of business. The question here is whether
this payment was for real services or for bogus services. Was it
simply a means to transfer money out of Bella Masonry’s ac-
count for relocation to a member of the family and to evade
paying creditors?
The General Counsel contends that about $18,700 charged
for the design and maintenance of the website, was a grossly
inflated amount. He asserts that a charge of $150 per hour for
website design is, in his opinion, too much especially since
Domenick essentially copied and modestly redesigned for Bella
Masonry, the already existing web site that had been used by
Ace Masonry.
I simply have no way of knowing if the amount charged by
Domenick Bellavigna was appropriate. The General Counsel
could have, but apparently chose not to call a witness who ei-
ther was an expert in these sorts of things or someone with
experience who could have testified what he or she typically
charges for these types of services. Given this absence of tes-
timony, I cannot conclude that this service rendered by
Domenick Bellavigna was completely unreasonable.
The General Counsel also contends that the charge of
$15,300 for the creation, printing and shipping of brochures
was also unreasonable. These brochures, one of which was
produced at the hearing were, according to Respondent’s wit-
nesses, made by an English company called Eman Printing.
The record indicates that Domenick Bellavigna charged for the
creation of 600 brochures, but that only 250 were ever pro-
duced and delivered. The record also shows that Domenick
charged for printing out and inserting certain advertising mate-
rials into the brochures and that he charged for the stamps and
for the mailing out the brochures. However, the credited testi-
mony of Melissa Blanchard, who worked as the officer manag-
er of Bella Masonry, was that she printed out the materials to be
placed into the brochures; that she stuffed them into the mailing
envelopes; and that Henry paid for the stamps and delivered
them to the post office.
In light of the above, I am going to conclude that the charge
for the brochures was inflated by including services that were
not performed and by including the purchase of brochures that
were not delivered. I therefore am going to cut the charge in
half in order to approximate what I think would be a reasonable
price for the creation of these brochures. ($7,650).
Finally, the evidence shows that Henry Bellavigna trans-
ferred four parcels of real property to Domenick Bellavigna.
These were located in Hector, New York and were transferred
on August 1 and 6, 2012, for the sum of $1.00. The assessed
valuations of these properties totaled $30,600, and as pointed
out by the General Counsel, were made when Henry Bellavigna
was on notice of the NLRB’s claim against Bella Masonry
because of the allegation that it was an alter ego of Ace Mason-
ry. (The NLRB complaint was issued on June 27, 2012, and the
hearing opened on July 30, 2012).
Analysis
The Board’s treatment of whether or not individuals can be
held personally liable for the backpay obligations incurred from
the commission of unfair labor practices by a limited liability
corporation has undergone some transition, discussion and
debate over the years. In the present state of the law, the issue
comes down to whether the Board can “pierce the corporate
veil.”
In White Oak Coal Co., 318 NLRB 732 (1995), the Board
reconsidered the standard that had previously been set forth in
Riley Aeronautics Corp., 178 NLRB 494 (1969). The Board
stated that it was reconsidering the standard for determining
individual liability because if felt that the “multifaceted ap-
proach to imposing personal liability to be unclear and un-
wieldy.” Instead, the Board adopted the 10th Circuit’s two
pronged approach enunciated in NLRB v. Greater Kansas City
Roofing, 2 F.3d 1047 (10th Cir. 1993). The Board’s decision
further stated that it was reaffirming “that personal liability for
remedial obligations arising from corporate unfair labor prac-
tices under the National Labor Relations Act is a question of
federal law because it arises in the context of a Federal labor
dispute.” Citing NLRB v. Fullerton Transfer & Storage, 910
F.2d 331, 335 (6th Cir. 1990), and Textile Workers v. Lincoln
Mills, 353 U.S. 448 (1957). As to the new standard the Board
stated:
Under Federal Common law, the corporate veil may be
pierced when: (1) there is such unity of interest and lack of re-
spect given to the separate identify of the corporation by its
shareholders that the personalities and assets of the corpora-
tion and the individuals are indistinct, and (2) adherence to the
corporate structure would sanction a fraud, promote injustice,
or lead to an evasion of legal obligations.
When assessing the first prong to determine whether the
shareholders and the corporation have failed to maintain their
separate identities, we will consider generally (a) the degree to
which the corporate legal formalities have been maintained,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and (b) the degree to which individual and corporate funds,
other assets and affairs have been commingled. Among the
specific factors we will consider are: (1) whether the corpora-
tion is operated as a separate entity; (2) the commingling of
funds and other assets; (3) the failure to maintain adequate
corporate records; (4) the nature of the corporation’s owner-
ship and control; (5) the availability and use of corporate as-
sets, the absence of [same] or undercapitalization; (6) the use
of the corporate form as a mere shell, instrumentality or con-
duit of an individual or another corporation; (7) disregard of
corporate legal formalities and the failure to maintained arm’s
length relationship among related entities; (8) diversion of the
corporate funds or assets to non-corporate purposes; and in
addition, (9) transfer or disposal of corporate assets without
fair consideration.
When assessing the second prong, we must determine wheth-
er adhering to the corporate form and not piercing the corpo-
rate veil would permit a fraud, promote injustice or lead to an
evasion of legal obligations. The showing of inequity neces-
sary to warrant the equitable remedy of piercing the corporate
veil must flow from misuse of the corporate form. Further, the
individuals charged personally with corporate liability must
be found to have participated in the fraud, injustice, or inequi-
ty that is found.
In Domsey Trading Corp., 357 NLRB 2161 (2011), a Board
majority held that the first prong of the White Oak test could be
met simply by showing that there was a substantial comingling
of funds between the corporate entities and the individual own-
ers. In that case there was a one-time transfer of virtually all of
the corporate assets to the owners who thereafter deposited the
money into their own personal accounts. The Board concluded
that this transfer would cause an injustice or inequity to the
employees inasmuch as the transfer of funds left the corpora-
tions without asserts and essentially made it judgment proof
unless the corporate owners could be held personally liable.
The Board therefore also concluded that the second test of
White Oak had also been met. This decision was subsequently
affirmed by the Second Circuit Court of Appeals, sub nom,
Estate of Arthur Salm, v. NLRB (January 30, 2013). In discuss-
ing the application of the White Oak standard, the Court stated:
While based on one major transaction, the Board rightly con-
cluded that an analysis of these factors showed that Salm had
indeed abused the corporate form to such a degree - by draw-
ing down virtually all of the assets of the Domsey Trading
Corporation for his personal use-that the first prong of the
White Oak test has been met.
The second prong of White Oak has also been met because it
is clear that the abuse of the corporate form here would indeed
promote injustice and allow for the evasion of legal obliga-
tions. By removing nearly all of the assets of the corporation,
outside of the context of a legitimate winding down or disso-
lution, Salm made it likely that the corporation would be una-
ble to meet its remedial obligations. Salm argues that because
the three Domsey corporations, a single employer, were not
shown to be insolvent, this prong has not been met. This is not
the standard. Here, it is clear that his removal of these funds
had the “natural, foreseeable, and inevitable consequence” of
diminishing Domsey’s ability to satisfy its remedial obliga-
tions.
In my opinion, the facts in the instant case show an equal or
greater degree of commingling than was shown in the Domsey
case. In the case of Ace Masonry, the evidence shows a contin-
uous and substantial depletion of that company’s corporate
assets through diversion to both Lisa and Robert Bellavigna. In
addition, the record shows that in August 2012, when Ace was
on its way out of business, it transferred substantial funds to
Bella Masonry, its alter ego.
By the same token the evidence shows substantial transfers
of funds from Bella Masonry to its owner Henry Bellavigna.
There is no question in my mind that his testimony regarding
the whereabouts or use of these monies was disingenuous, and
that the money simply went from Bella Masonry into his pock-
et. 6 In the case of the sale of Bella Masonry’s equipment, most
of that money did not even make it into the company’s corpo-
rate bank account.
I also conclude that these transactions made by the owners of
Ace Masonry and Bella Masonry were undertaken with a mo-
tive to evade legal obligations to their employees. This was
explicitly admitted by Lisa Bellavigna and implicitly conceded
by Henry Bellavigna.
Thus, as to Lisa Bellavigna and Henry Bellavigna, I con-
clude that the two prong test of White Oak has been met and
that these corporate shareholders should be held personally
liable.
As to Robert Bellavigna and Domenick Bellavigna, the issue
is somewhat different. Inasmuch as neither was a shareholder
of Ace Masonry or Bella Masonry, there is an issue as to
whether, “piercing the corporate veil,” would applicable to
these individuals. In this respect, there are a number of Board
decisions involving closely held corporations and transfers of
corporate money and assets to non-owner family members. See
A.J. Mechanical Inc., 352 NLRB 874, 875–877 (2008); D.L.
Baker Inc., 351 NLRB 515, 523–525 (2007); SRC Painting,
LLC., 346 NLRB 707 (2006); and Bufco Corp., 323 NLRB
609, 624–629 (1997).
In my opinion, the present state of the law is best described
in SRC Painting, LLC., supra. In that case, the ALJ concluded
that the three corporate respondents were alter egos of each
other and that all of the family members associated with these
companies were personally liable. The Board agreed that four
of the family members were personally liable because “each
actively participated in the operation of the corporate respond-
ents, including the distribution of corporate assets for non-
corporate purposes.” However, the Board also concluded that
two members of the family, Karen and Constance Wierzbicki,
who were not shareholders, should not be held personally lia-
ble. As to these two, the Board held that they could not be held
liable simply because they were the passive recipients of di-
verted corporate funds. The Board, with Liebman concurring,
stated:

6 Indeed there was some evidence, not fully litigated, that during the
course of this trial, Henry Bellavigna was transferring some of his own
money to yet another person.
ACE MASONRY, INC. 13
As the Tenth Circuit explained in NLRB v. Greater Kansas
City Roofing, whose analysis the Board explicitly adopted in
White Oak: “[A] necessary element of the [piercing-the-
corporate-veil] theory is that the fraud or inequity sought to be
eliminated must be that of the party against whom the doc-
trine is invoked, and such party must have been an actor in the
course of conduct constituting the abuse of corporate privi-
lege.” 2 F.3d at 1053 (quoting from 1 Fletcher, Cyclopedia of
Corporations§ 41.20, at 639 (1990)). For this reason, a per-
son’s passive receipt of benefits that derive from a diversion
of corporate assets for non-corporate purposes does not, by it-
self, demonstrate participation in the fraud, injustice, or ineq-
uity sufficient to establish individual liability under the second
prong of the White Oak analysis. See Smith Barney, Inc. v.
Strangie, 192 F.3d 192 (1st Cir. 1999) (finding wife who may
have personally benefited from husband’s diversion of corpo-
rate assets for non-corporate purposes not individually liable);
Firstmark Capital Corp. v. Hempel Financial Corp., 859 F.2d
92, 95 (9th Cir. 1988) (finding wife who personally benefited
from husband’s diversion of corporate assets for non-
corporate purposes not individually liable). In other words,
where the individual alleged to be liable plays no active role
in the corporation’s operations, that individual has not effec-
tively become the business entity simply upon receipt of
funds or other corporate assets, and accordingly cannot be
held liable for the corporation’s obligations. (Footnotes omit-
ted).
In the present case, the evidence shows that Robert
Bellavigna played an active role in the business affairs of both
Ace Masonry and Bella Masonry. The evidence also demon-
strates that he participated in the diversion of Ace’s corporate
funds to himself and to his wife. Accordingly, I conclude that
he should be held to be individually liable.
I cannot come to the same conclusion with respect to
Domenick Bellavigna. He is located 1500 plus miles away and
operates his own business. He had no ownership interest in
either Ace Masonry or Bella Masonry and was not involved in
their business operations except to the extent that he may have
performed a contracted service for Bella Masonry. Based on
the record in this case, I cannot say that a substantial part of the
services that he provided to Bella were either a complete sham
or were grossly overcharged. Nor can I conclude that his re-
ceipt of the four parcels of property, originally owned by his
deceased mother, was part of a plan, in which he knowingly
participated, that was designed to divert assets so that the cor-
porations could evade their legal obligations to the employees
and the union benefit funds.
I do note that in SRC Painting, LLC, Board Member
Liebman opined that in similar circumstances, where a person
receives corporate assets without consideration, he or she could
be held personally liable by applying a fraudulent transfer theo-
ry instead of a piercing the corporate veil theory. Nevertheless,
she did not do so because that theory was not argued by the
General Counsel in that case. I see nothing in the statute that
would preclude the Board from adopting a “fraudulent transfer”
theory for finding personal liability. Indeed, the adoption of
such a theory might deter individual from engaging in financial
shenanigans designed to evade liability incurred from violatons
of the National Labor Relations Act. However, this is not, as
far as I am aware, the current state of Board law.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER8
1. The Respondents, Ace Masonry, Inc., d/b/a Ace Unlim-
ited, Bella Masonry, LLC, Lisa Bellavigna, Robert P.
Bellavigna, Henry Bellavigna, their officers, agents and succes-
sors and assigns, shall make whole the employees named below
by paying them the amounts following their names, with inter-
est as computed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
Robert A. Bellavigna 308.84
Jason R. Dempsey 1,407.00
Joshua R. Freelove 1,824.08
David R. Howard 2,101.72
Brandon Marvin 288.00
Douglas F. Myles 635.39
Charles Morrow 4,297.76
2. The Respondents shall additionally remit to the union
trust funds the contributions that the Respondents failed to
make in the amounts set forth below, plus any additional
amounts as prescribed in Kraft Plumbing & Heating, Inc., 252
NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), and
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.7 (1979).
Bricklayers Local No. 3 Funds 60,026.26
Bricklayers International Funds 11,949.79
Laborers Local 7 2,475.48
Laborers Local 1358 5,171.56
Laborers Local 589 596.80
Northeast District Council of Carpenters 48,553.16
3. The Respondents shall mail, at their own expense, to the
former employees of Ace Masonry and/or Bella Masonry, a
copy of the Board’s Notice that was appended to the Board’s
Decision dated January 23, 2013.
Dated: Washington, D.C. November 25, 2014

7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
8 As to the finding that the Respondents failed to furnish certain in-
formation, that information was sought to determine if Bella Masonry
was the “disguised continuance and alter ego of Ace.” Since it has been
concluded in these proceedings they were alter egos, the information is
now moot.