Bell Energy Management Corp. Bell Sheet Metal Corp., B & E Sheet Metal, And Bell Heating And Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 168 (N.L.R.B. 1988)

168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bell Energy Management Corp , Bell Sheetmetal
Corporation , B & E Sheetmetal, and Bell Heat
ing and Air Conditioning, Inc and Local 295-
295C, International Union of Operating Engi
neers , Air Conditioning & Refrigeration, AFL-
CIO and Sheet Metal Workers International
Union Association , Local Union 38, Party to
the Contract Case 2-CA-21385
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 8 1986 Administrative Law Judge
Steven Davis issued the attached decision The Re
spondent i Bell Energy Management Corp Bell
Sheetmetal Corporation B & E Sheetmetal and
Bell Heating & Air Conditioning Inc filed excep
tions and a supporting brief The General Counsel
filed an answering brief cross exceptions and a
brief in support of the cross exceptions The Re
spondent thereafter filed an answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings 2 findings and
conclusions as modified below and to adopt the
recommended Order 3
As set forth more fully in the judge s decision
the facts establish that the Respondent became a
member of a multiemployer association known as
the Association of Master Refrigeration & Air
Conditioning Contractors Inc (Association) in
early 1984 In order to become a member the Re
spondent agreed to be bound by a collective bar
gaining agreement that existed between the Asso
ciation and Local 295-295C International Union of
Operating Engineers Air Conditioning & Refnger
ation AFL-CIO (Local 295) The Respondent
honored the terms of this contract through its expi
ration date of March 31 1984 When this contract
expired the Respondent agreed to be bound by a
successor agreement that was effective from April
1 1984 through March 31 1987 The Respondent
abided by the terms of this contract until approxi
i The judge found that the named Respondents constitute a single em
ployer and are alter egos within the meaning of the Act No exceptions
to these findings were filed
2 The Respondent has excepted to the judge s ruling permitting the ad
mission of certain duplicates into evidence Having reviewed the entire
record we find that the judge properly admitted the duplicates into evi
dence because no genuine question exists regarding the authenticity of
the originals nor the accuracy of the duplicates
2 The General Counsel s request for a visitatonal clause is denied See
Cherokee Marine Terminal 287 NLRB 1080 (1988)
mately August 1985 when it ceased making certain
fund contributions and dues checkoff payments
When Local 295 notified the Respondents owner
Alfred Bell on November 19 1985 that the Re
spondent was 3 months late in making fund contra
butions and dues payments Bell stated that the Re
spondent was no longer honoring the Local 295
contract because it had signed a contract with
Sheet Metal Workers International Union Associa
tion Local Union 38 (Loco 1 38) Indeed the Re
spondent had signed a contract with Local 38 on
November 13 1985 4 and has since abided by the
terms of that contract which was effective from
July 1 1984 to June 30 1987 Despite Local 295 s
protests on November 19 1985 the Respondent
withdrew recognition from Local 295 and repudiat
ed the contract It however did send Local 295
payment for the delinquent September October
and November contributions and dues assessments
in December 1985
The judge found that the Respondent violated
Section 8(a)(5) and (1) by withdrawing recognition
from and repudiating its collective bargaining
agreement with Local 295 In reaching his conclu
Sion the judge initially indicated that he could not
decide from the record whether Section 8(f) s pro
visions applied to the Respondent as an employer
engaged primarily in the building and construction
industry 5 Nonetheless the judge found that even
if Section 8(f) applied to the Respondent Local
295 was presumptively the majority representative
of the Respondents employees for the duration of
the contract between Local 295 and the Respond
ent 6 Consequently he concluded that the Re
spondent could not lawfully repudiate this contract
or withdraw recognition from Local 295
The Respondent has excepted to the judge s fail
ure to find that it is a construction industry em
ployer within the meaning of Section 8(f) and to
4 The events leading up to the execution of the contract between the
Respondent and Local 38 are fully set forth in the judge s decision
5 Sec 8(f) provides in relevant part as follows
It shall not be an unfair labor practice, for an employer engaged
primarily in the building and construction industry to make an agree
ment covering employees engaged (or who upon their employment
will be engaged) in the building and construction industry with a
labor organization of which building and construction employees are
members (not established maintained or assisted by any action de
fined in section 8(a) of this Act as an unfair labor practice) because
(1) the majority status of such labor organization has not been estab
lished under the provisions of section 9 of this Act prior to the
making of such agreement
6 In making this determination the judge relied on the principles set
forth in Authorized Air Conditioning Co 236 NLRB 131 fn 2 (1978) The
Board stated in that decision that when a single employer joins a multi
employer association and adopts that associations collective bargaining
agreement the single employers unit merges into the multiemployer
unit so that the relevant unit becomes that of multiemployer association
We note that in John Deklewa & Sons 282 NLRB 1375 (1987) the Board
overruled Authorized Air Conditioning and its progeny to the extent that
they applied the merger doctrine in 8(t) cases
291 NLRB No 23
BELL ENERGY MANAGEMENT CORP
the judges conclusion that it could not lawfully
withdraw recognition from and repudiate its con
tract with Local 295 Contending that the record
establishes that it is a construction industry em
ployer under Section 8(1) the Respondent argues
that the contract it signed with Local 295 was a
prehire agreement that was voidable at any point
The General Counsel has excepted to the judge s
failure to find that the Respondent is not a con
struction industry employer within the meaning of
Section 8(f) She argues that the Respondent was
not primarily engaged in the building and construc
tion industry when it signed the relevant agreement
with Local 295 in early 1984 because it primarily
serviced air conditioning systems For the reasons
set forth below we find that Section 8(f) is inappli
cable and that the Respondent violated Section
8(a)(5) and (1) by repudiating its contract with and
withdrawing recognition from Local 295
As the Respondent seeks the protection of the
exception set forth in Section 8(f) it has the burden
of proving that it is an employer primarily engaged
in the building and construction industry Painters
Local 1247 (Indio Paint) 156 NLRB 951 fn 1
(1966) On the basis of the record before us we
cannot find that the Respondent has met its burden
Although the Respondent has offered the testimo
ny of its owner Alfred Bell to support its conten
tion we agree with the judge s finding that Bell s
testimony was contradictory and confusing Bell
testified initially that 75 percent of his business
during early 1984 consisted of air conditioning
service work at Caldor department stores pursuant
to a service contract The balance he testified
consisted of the fabrication and installation of heat
ing and air conditioning duct work Thereafter
Bell testified that service work constituted only 33-
50 percent of his business during that period 7 Fur
thermore although the multiemployer association s
attorney N George Turchin testified that employ
ers belonging to the Association generally per
formed construction work he indicated that he did
not know the specific type of work performed by
the Respondent As we are unable to determine the
type of work primarily performed by the Respond
ent on the record before us we are unable affirma
tively to find that the Respondent has proved that
it is an employer primarily engaged in the building
and construction industry We therefore reject the
Respondents contention that its contract with
Local 295 was an 8(f) prehire agreement We fur
7 The judge erroneously found that Bell in his later testimony stated
that installations accounted for 75 to 80 percent of his business in early
1984 The record establishes that Bell actually testified that 75 to 80 per
cent of his installation work during this period occurred in buildings that
were already erected
169
ther find that the Respondent has not advanced
any lawful reason for repudiating its contract with
and withdrawing recognition from Local 295 Ac
cordingly we affirm the judge s finding that the
Respondent violated Section 8(a)(5) and (1)
We also adopt the judge s finding that the Re
spondent, unlawfully assisted Local 38 in violation
of Section 8(a)(2) and (1) As the contract that the
Respondent entered into with Local 38 contained a
union security clause we also adopt the judge s
finding that the Respondent violated Section
8(a)(3) and (1) by enforcing that clause Although
the Respondent has argued that it was entitled to
enter into an 8(f) prehire agreement with Local 38
we have rejected the Respondents argument that
Section 8(f) applies to it 8
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices we will order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act We will order the Respondent to cease recog
nizing Local 38 and honoring its contract with
Local 38 and will order the Respondent to comply
with the terms of its 1984-1987 collective bargain
ing agreement with Local 295 We will also order
the Respondent to transmit the required contribu
tions to the welfare and pension funds as required
by the collective bargaining agreement between
Local 295 and the Respondent 9 We will further
order the Respondent to make the employees
whole for any losses they may have suffered as a
result of the Respondents failure to comply with
the collective bargaining agreement with Local 295
as of November 19 1985 Local 295 and the em
ployees will be made whole for their losses in the
manner prescribed in Ogle Protection Service 183
8 Even if we had concluded that the Respondent was a construction
industry employer within the meaning of Sec 8(1) we would still find
that the Respondents agreement with Local 38 violated Sec 8(a)(2) be
cause 8(f) s terms prohibit the execution of an agreement that is the result
of unlawful assistance See Oilfield Maintenance Co 142 NLRB 1384
1385-1386 (1963) Bear Creek Construction Co 135 NLRB 1285 1286
(1962)
9 Because the provisions of employee benefit fund agreements are van
able and complex the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments Therefore any additional amount owed with re
spect to the welfare fund and the pension fund will be determined in ac
cordance with the procedure set forth in Merryweather Optical Co 240
NLRB 1213 1216 fn 7 (1979)
The Respondent will also reimburse its employees for any expenses en
suing from its failure to make contributions to the funds established by
the collective bargaining agreement between Local 295 and the Respond
ent Kraft Plumbing 252 NLRB 891 fn 2 (1980) enfd 661 F 2d 940 (9th
Cir 1981)
Our make whole remedy includes the requirement that the Respondent
remit to Local 295 all dues and fees it should have deducted from em
ployees wages and remitted pursuant to the terms of the collective bar
gaining agreement
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 682 (1970) with interest on any amounts
due paid in the manner prescribed in New Horizons
for the Retarded to
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Bell Energy
Management Corp Bell Sheetmetal Corporation
B & E Sheetmetal and Bell Heating and Air Con
ditioning Inc Mahopac New York its officers
agents successors and assigns shall take the action
set forth in the Order
10 283 NLRB 1173 ( 1987) Interest on and after January 1 1987 shall
be computed at the short term Federal rate for the underpayment of
taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
Richard L De Steno Esq for the General Counsel
Jeffrey S Dubin Esq Lake Success New York for the
Respondent
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS Administrative Law Judge Pursuant
to a charge filed on 4 December 1985 and a first amend
ed charge filed on 28 January 1986 by Local 295-295C
International Union of Operating Engineers Air Condi
tioning & Refrigeration AFL-CIO (Local 295) a com
plaint was issued by Region 2 of the National Labor Re
lations Board on 31 March 1986 against Bell Energy
Management Corp Bell Sheet Metal Corporation B &
E Sheetmetal and Bell Heating and Air Conditioning
Inc
The complaint alleges essentially that Respondents (a)
are alter egos and a single employer 1 (b) refused to
abide by the contract with Local 295 which they en
tered into as employer members of the Association of
Master Refrigeration & Air Conditioning Contractors
Inc (Association) (c) entered into a contract with Sheet
Metal Workers International Union Association Local
Union 38 (Local 38) having a union security clause not
withstanding that Local 38 had not been designated by a
majority of the unit employees (d) solicited an employee
to organize a meeting with other employees in order to
induce them to abandon their support for Local 295 and
to encourage them to join Local 38 and (e) interrogated
an employee about a union meeting
Respondents answer denies the material allegations of
the complaint and raises certain affirmative defenses that
will be discussed infra
The case was heard before me on 21 and 22 May 1986
in New York City
1 Inasmuch as I find that Respondents are a single employer I will
refer to them hereafter as Respondent
On the entire record including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel and Respondent I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent admits that each of the named companies
collectively performs services valued in excess of
$50 000 directly for other firms located outside New
York State and that each of them is and has been an em
plover engaged in commerce within the meaning of Sec
tion 2(2) (6) and (7) of the Act Respondent also admits
that Local 38 and Local 295 are labor organizations
within the meaning of Section 2(5) of the Act
I accordingly find and conclude that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act and that Locals 38
and 295 are labor organizations within the meaning of
Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICE
A Respondents Status as a Single Employer and
Alter Ego
Alfred Bell went into business in 1980 The corporate
name chosen for the Company was Bell Heating and Air
Conditioning However that name was not available so
the Company was incorporated under the name Bell
Energy Management Corp Because Bell still wanted to
use the name Bell Heating and Air Conditioning he op
erated thereafter as Bell Energy Management Corp
d/b/a Bell Heating and Air Conditioning
Bell also formed another company B & E Sheetmetal
with a partner That partnership was not successful and
it was discontinued and not incorporated but in early
1984 Bell used the name B & E Sheetmetal in various
transactions including that related to Local 295 and the
Association
About May 1984 Bell formed Bell Sheetmetal Corpo
ration but he did not operate under that name until
about November 1985 when he signed a contract with
Local 38
Bell testified that he has essentially two companies
Bell Energy Management d/b/a Bell Heating and Air
Conditioning which does installation and service of air
conditioning ventilation and heating systems in residen
tial commercial and industrial buildings and Bell Sheet
metal Corporation a sheetmetal department which fabn
cates and installs the ductwork used for such systems
Bell stated that when ductwork is required Bell Sheet
metal Corporation acts as the subcontractor to Bell
Energy Management but no separate contracts for serv
ice are signed in behalf of Bell Sheetmetal Corporation
The employees needed for Bell Sheetmetal Corpora
tion s operations were obtained from Bell Energy Man
agement Bell first testified that he does business now
with those two companies with the same employees
However he later testified that in November 1985 he
had different employees in the two Companies and he
BELL ENERGY MANAGEMENT CORP 171
maintained separate records payrolls and employment
lists for the two operations
Bell testified that he owns all the assets of Bell Energy
Management and Bell Sheetmetal His home is the office
of the Companies and his garage is their shop It was
stipulated that at all material times the named respond
ents have occupied and done business from the same
office and have the same phone number and that at all
times Bell has controlled all aspects of the Companies
operations including establishing labor relations policies
He further stated that in early 1984 Bell Energy Man
agement paid the bills for all of his operations
B Bell Joins the Association
On 19 January 1984 the Association sent a letter to
Bell Heating and Air Conditioning welcoming it as a
new member of the Association and requesting that it
execute certain documents
On 23 January and 8 February Bell signed applica
tions for membership in behalf of Bell Energy Manage
ment Inc and B & E Sheetmetal respectively The ap
plication states
I [We] hereby apply for membership in the Ass n of
Master Refrigeration & Air Conditioning Contrac
tors Inc I [We] understand that as a condition [sic]
membership and continued membership I [We]
shall abide by the By Laws of the Association I
[We] agree to be bound by and to comply with the
terms of any agreement now existing or which may
hereafter be entered into between the Association
and the International Union of Operating Engineers
Local 295 AFL-CIO with the same force and
effect as though I [We] had executed same as a
party
Bell accordingly agreed to be bound by the current
contract between the Association and Local 295 which
was effective from 1 April 1981 to 31 March 1984 He
abided by and honored its terms until its expiration
Respondents three employees Sebastian Sora Angelo
Peragine and William Berndt executed application cards
for Local 295 on 25 December 1983 and 5 January and
24 February 1984 respectively
About 1 April 1984 Bell executed a document in
behalf of B & E Sheetmetal in which he ratified accept
ed and agreed to be bound by the collective bargaining
agreement entered into on 1 April between the Associa
tion and Local 295 That contract effective from 1 April
1984 to 31 March 1987 states
SUSPENSION OF ASSOCIATION MEMBERSHIP The
undersigned member is in good standing with the
Association and shall be bound by this contract
only as long as he remains in good standing How
ever it is specifically understood and agreed that in
the event such member of the Association is ex
pealed suspended or resigns as such member of the
Association the Union at its option shall have the
right to declare the contract null and void as to
such member who has been expelled suspended or
has resigned from the Association The undersigned
Employer agrees to notify the Union by certified
mail within thirty (30) days of his suspension or
resignation Said Employer agrees that he will ne
gotiate and enter into an individual collective bar
gaining agreement with the Union covering his em
ployees within thirty (30) days
At the time that Bell signed the ratification agreement
he executed in behalf of Bell Energy Management Inc
promissory notes payable quarterly to the Association
as dues He abided by and honored the terms of the new
contract until about August 1985 making contributions
for welfare pension dues and assessments on behalf of
certain employees 2 Bell conceded that a few months
before November 1985 he ceased complying with the
Local 295 contract and stopped making fund contribu
tions and dues checkoff payments to that union
C Respondent and Local 38
Charles Hertel the president and business manager of
Local 38 stated that in October or November 1984 he
saw two employees at a jobsite He asked them who they
worked for They said they worked for Bell Hertel
asked them if they were interested in joining a union
The two men did not reply
That was Hertel s only contact with Bell s employees
until July or August 1985 when he was called by Bell
Hertel stated that Bell told him that he wanted to meet
with him to discuss a contract and asked the procedure
for signing a contract About 2 or 3 days later Bell and
Hertel met Bell told him that he had a contract with
Local 295 but he was forming a new company and
wanted to sign a contract with Local 38 3 They dis
cussed wages benefits and the cost to Respondent and
Bell stated that the Local 38 benefits were comparable to
those of Local 295 The meeting ended with Hertel
saying that he would check to see if Bell could sign a
contract and Bell stating that he would (a) take care
of Local 295 (b) speak to his employees and (c) call
Hertel
One or two weeks later Bell called Hertel and told
him that he wanted to meet to discuss a contract They
met in August and Bell was given copies of the Local
38 contracts Bell told Hertel that he would speak to his
employees about being represented by Local 38
Bell called thereafter and told Hertel that his workers
were willing to meet with him to speak about Local
38 In September Hertel met with five of Bell s employ
ees at the shop and told them of Local 38 s contract
terms and fringe benefits and answered their questions
about medical coverage In early October Hertel met
with three employees in his office and again answered
their questions concerning medical coverage at which
time they signed applications for membership Thereaf
2 The last monthly contributions report sent by Respondent to Local
295 is for August 1985 All the reports list the Company as B & E Sheet
metal or B & E Sheetmetal Corp
3 This was apparently a reference to Bell Sheetmetal Corp which was
incorporated in May 1984 but not operated until the relationship with
Local 38 began
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ter Hertel told Bell that three workers joined Local 38
and on 30 October he sent Bell contracts for signature
The contracts were signed on 13 November and are
effective from 1 July 1984 to 30 June 1987 They were
signed by Bell in behalf of Bell Sheetmetal Inc but
the printed portion of one contract lists the contracting
party as Bell Heating Ventilation Air Conditioning 4
Since the execution of the contracts Respondents have
abided by all their terms
Hertel stated that Local 38 enforces its union security
clause which essentially requires membership in that
Union as a condition of continued employment within 8
days of hire or the effective date of the contract
Bell s version of his contracts with Hertel is as fol
lows Bell testified that he called Hertel in late spring or
summer 1985 because that Union contacted his workers
at certain jobsites and he (Bell) was told by them that
they were interested in Local 38 Bell met with and told
Hertel that he had a contract with Local 295 but that
the employees no longer desired representation by Local
295 and he wanted to explore the possibility of signing a
contract with Local 38
Bell then told his employees that from the point of
view of the Company which hoped to do large commer
cial and industrial work it would prefer Local 38 to
Local 295 Bell also told them that the Company would
grow with Local 38 that they could attend school 5 re
ceive better benefits and would be better off with
Local 38
Bell called Hertel and told him that he spoke to the
employees Hertel said that he wanted to meet with
them Bell then told employee James De Palma that
Hertel wanted to speak to them Bell suggested that be
cause De Palma was part of the group interested in
Local 38 he should coordinate the meeting so that Bell
would not be involved Bell called Hertel and told him
that the men agreed to meet with him and De Palma
would handle the arrangements
Bell stated that following the meeting which he did
not attend Hertel told him that his employees supported
Local 38 Bell further stated that 1 day after the meeting
he asked De Palma how did everything go? or what
happened? or what s going on? De Palma told him
what happened and said that the workers decided to join
Local 38
D Respondent Repudiates the Local 295 Contract
William Guanno the treasurer and field agent of
Local 295 testified that on 19 November 1985 he
phoned Bell and told him that he was 3 months in ar
rears in dues assessments and pension and welfare pay
ments to that Union and asked him to become current
Bell replied that he did not have to honor the Local 295
contract because he was signing a contract with Local
38 6 Guarino protested that Bell had a contract with
That is the party to whom Hertel sent all his correspondence
As of at least May 1984 Local 295 had no apprenticeship program
On 3 May 1984 the Association sent a letter to its members which stated
that an apprenticeship program was in the planning stages
6 At that time Bell had already signed the Local 38 contracts
Local 295 and could not recognize Local 38 Bell replied
that his employees would benefit from membership in
Local 38 as it has an apprenticeship program 7 and that
some had signed with local 38 and that he (Bell) pre
ferred Local 38
Local 295 s officials called Hertel and accused that
union of raiding Bell s shop
On 10 December Bell sent a letter to Local 295 which
stated that B & E Sheetmetal was no longer in business
and sent checks for final payment for dues assess
ments pension and welfare funds for the months of Sep
tember October and November The checks were
drawn on the account of Bell Energy Management Corp
Bell conceded that as of 10 December when he sent
the letter Respondent had not stopped performing its
usual air conditioning heating and sheetmetal work
III ANALYSIS AND DISCUSSION
A Preliminary Matters
1 Copies of certain documents
Respondent objected to the receipt in evidence of cer
tarn documents because they were photo copies and not
the originals I affirm my hearing rulings overruling the
objections and receiving the documents in evidence
a The documents dated January 1984
The first document is a letter dated 19 January 1984
from the Association to Bell properly addressed to Re
spondent at its address The letter welcomed him as a
new member of the Association and stated that enclosed
was inter alia an application form that he should sign
The next document was the application form dated 23
January 1984 signed by Bell in which he applied for
membership in the Association and agreed to be bound
by the current contract
N George Turchin attorney for the Association who
is the only person responsible for the administration of
the Associations activities testified that the documents
came from the office of the Association which is also his
office He sent the 19 January letter and verified the in
formation such as the executed application that was re
ceived by his office He further stated that the originals
were in his office and that he made the copies on a pho
tostat machine in his office and sent them to General
Counsel who then offered them at the hearing
In addition Bell testified that in January 1984 he
joined the Association and abided by the then current
contract which ran until 31 March 1984 He thus in
effect affirmed that he executed the membership applica
tion
b The contracts and related documents
The two contracts between the Association and Local
295 from 1981 to 1984 and from 1984 to 1987 produced
at the hearing were according to Turchin duplicate
originals of the original documents The original docu
ments signed by the presidents of the Association and
7 See fn 5 supra
BELL ENERGY MANAGEMENT CORP 173
Local 295 were seen by Turchin in his office and typed
there Duplicate originals were made by Turchin s office
by photocopying the originals The duplicates were then
sent to the Associations members The originals of the
contracts may be in the possession of Local 295 but Tur
chin was not certain
The final questioned document on the letterhead of
Local 295 is the agreement by Bell dated I April 1984
to ratify accept and be bound by the contract between
the Association and Local 295 entered into that day
Turchin testified that the original may have been
signed in his presence but inasmuch as it is a Local 295
document that union would keep the original and he re
tamed a copy
Bell testified evidently referring to the ratification
agreement that he signed an ageeement to be bound by
the Association contract of 1 April 1984 In addition he
stated that he entered into a collective bargaining rela
tionship with Local 295 in January 1984 and honored
that contract and also honored until November 1985
the subsequent contract dated 1 April 1984
Rule 1003 of the Federal Rules of Evidence states
that
A duplicate is admissible to the same extent as an
original unless ( 1) a genuine question is raised as to
the authenticity of the original or (2) in the circum
stances it would be unfair to admit the duplicate in
lieu of the original
In addition the Second Circuit has held that
And if it appears as it does here that what is called
the secondary evidence is clearly equal in probative
value to what is called the primary proof and that
fraud or imposition reasonably is not to be feared
the reason upon which the best evidence rule rests
ceases with the consequence that in that situation
the rule itself must cease to be applicable
An over technical and strained application of the
best evidence rule serves only to hamper the in
query without at all advancing the cause of truth
The fundamental basis the Supreme Court has
said Upon which all rules of evidence must rest-
if they are to rest upon reason-is their adaptation
to the successful development of the truth Funk v
United States 290 U S 371 372 381 There is
not the slightest reason to suspect that this funda
mental basis was affected in the present instance
[US v Manton 107 F 2d 834 845 (2d Cir 1939)]
Based on the above particularly the testimonial eve
dence by Bell virtually admitting all of these documents
and the fact that there is no material dispute regarding
the content of those documents I affirm my rulings re
ceiving them in evidence 8
8 Time Share Vacation Club v Atlantic Resorts 735 F 2d 61 (3d Cir
1984) and US v Rohalla 369 F 2d 220 (7th Or 1966) cited by Re
spondent are distinguishable because in both cases the disputed docu
ment the original or a copy was not offered in evidence An affidavit
and testimony were offered instead US v Alexander 326 F 2d 736 (4th
Cir 1964) is also distinguishable In that case a copy of the document
2 Matters alleged in the complaint but not in the
charges
The Respondent argues that inasmuch as no 8(a)(3) al
legation appears in the original or first amended charge
the inclusion of an 8(a)(3) allegation in the complaint was
improper and that allegation must be dismissed
The charges allege that Respondent violated Section
8(a)(1) (2) and (5) by (a) refusing to bargain with Local
295 by failing to abide by the terms of its contract and
withdrawing recognition and (b) recognizing and bar
gaining with Local 38 at a time when Local 38 did not
represent an uncoerced majority of employees Both
charges contain the language by the above and other
acts the above named employer has interfered with re
strained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act
The complaint alleges that Respondent violated Sec
tion 8(a)(2) of the Act by entering into a contract with
Local 38 and that Respondent violated Section 8(a)(3) of
the Act by entering into a contract with Local 38 con
taming a union security clause when Local 38 had not
been designated by an uncoerced majority of the employ
ees
Respondent asserts that the 8(a)(3) allegation in the
complaint not present in the charges is not closely relat
ed to or of the same class of violation as those alleged in
the charges I do not agree
The Supreme Court stated in NLRB v Fant Milling
Co 360 US 301 307-309 (1959)
To confine the Board in its inquiry and in framing
the complaint to the specific matters alleged in the
charge would reduce the statutory machinery to a
vehicle for the vindication of private rights This
would be alien to the basic purpose of the Act
Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad in
vestigatory power in order properly to discharge
the duty of protecting public rights which Congress
has imposed upon it There can be no justification
for confining such an inquiry to the precise particu
larizations of a charge
Here we hold only that the Board is not precluded
from dealing adequately with unfair labor practices
which are related to those alleged in the charge and
which grow out of them while the proceeding is
pending before the Board [Citation omitted ]
In Clark Equipment Co 278 NLRB 498 (1986) the
Board in finding that specific allegations were properly
set forth in the complaint although they were not con
tamed in the charge reaffirmed its holding in Texas In
dustries 139 NLRB 365 366 (1962) enfd in relevant
part 336 F 2d 128 (5th Cir 1964)
was improperly made causing material parts of it to be absent The copy
was then altered by the addition of those missing items
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is well established that a charge is not a plead
ing but merely serves to initiate a Board investiga
tion to determine whether a complaint shall be
issued Subject only to the requirement that there
must be some relationship between the allegations in
the complaint and the language of the charge it is
the function of the complaint and not the charge
to serve notice upon a respondent of the particular
conduct alleged to be violative of the Act
The Board has recently stated that [s]o long as the
charge itself is timely the complaint may allege any
matter closely related to the controversy as growing out
of the charged conduct or related to the ocntroversy
which produced the charge or which relates back to or
defines the charge more precisely Raytheon Co 279
NLRB 245 (1986) The Second Circuit has agreed with
this view NLRB v Dinion Coil Co 201 F 2d 484 491
(2d Cir 1952)
Here the charges allege a violation of Section 8(a)(2)
in Respondents recognizing and bargaining with Local
38 when that Union did not represent an uncoerced ma
jonty of employees Thus the charges allege the improp
er recognition and bargaining engaged in between Re
spondent and Local 38 The complaint also alleges as a
part of that improper dealing that Respondent violated
Section 8(a)(2) by entering into the contract with Local
38 Respondent does not complain about that allegation
of the complaint apparently because an 8(a)(2) violation
was alleged in the charge
However Respondent complains that the 8(a)(3) alle
gation in the complaint-that the contract contained a
union security clause and was entered into and main
tamed when Local 38 did not represent an uncoerced
majority of the employees-was not in the charge
It is clear that the 8(a)(3) allegations in the com
plaint-the execution of a contract containing a union se
cunty clause with a minority union-are directly related
to and the consequence of the improper recognition and
bargaining alleged in the charges Thus in fact the com
plaint deals with the same event as the charge-the im
proper recognition and bargaining with Local 38 Sher
wood Ford 264 NLRB 863 865 (1982) The execution of
the contract and the inclusion of a union security clause
relate to and grow out of the course of conduct-the
recognition and bargaining with Local 38-which was
alleged in the charges
The Board in holding that where as here an 8(a)(3)
allegation was properly included in a complaint although
absent from a charge concluded
In the circumstances the allegation of the complaint
in question is interrelated in kind and time with
those specifically set forth in the charge and there
exists a legally sufficient relationship between the
subject [matter] of the charge and that of the com
plaint [Olympic Medical Corp 236 NLRB 1117
1122 (1978)]
On the foregoing I find no merit to Respondents con
tention that the complaint paragraphs alleging violations
of Section 8(a)(3) should be dismissed 9
B The Alter Ego and Single Employer Issues
The General Counsel alleges that about November
1985 Bell Sheetmetal was established by B & E Bell
Energy and Bell Air Conditioning as a subordinate in
strument to and a disguised continuation of those Com
panies and since that time all the Respondents have
been affiliated businesses with common officers owner
ship management and supervision have formulated and
administered a common labor policy affecting the em
ployees of the companies have shared common premises
and facilities have interchanged personnel have provid
ed services for each other and have held themselves out
as a single integrated business enterprise and are alter
egos and a single employer within the meaning of the
Act
The factors for finding single employer and alter ego
status are much the same Mine Workers Local 1329
(Alpine Construction) 276 NLRB 415 fn 3 (1985)
The Board stated in Contee Sand & Gravel Co 274
NLRB 574 585 (1985)
The Board finds more than one enterprise to be a
single employer where there is common ownership
and financial control which is actual rather than po
tential common management interrelation of oper
ations and centralized control of labor relations
But it is not essential that all of these elements
be present As to whether an enterprise is the
alter ego of another the Board looks to a greater
number of factors such as whether the enterprises
have substantially identical ownership management
business purpose operation equipment customers
and supervision of employees There is also an
additional factor which the Fifth Circuit describes
in Carpenters Local 1846 v Pratt Farnsworth 690
F 2d 489 508 (5th Cir 1982) in the following
words
However the focus of the alter ego doctrine
unlike that of the single employer doctrine is on
the existence of a disguised continuance or an at
tempt to avoid the obligations of a collective bar
gaining agreement through a sham transaction or
technical change in operations [Citations omit
ted ]
However absent a disguised continuance the Board
generally finds alter ego status only where the two enter
prises have substantially identical ownership business
purpose management supervision customers operation
and equipment T E Elevator Corp 268 NLRB 1461
(1984)
e Electrical Workers IBEW Local 46 (NECA) 277 NLRB 1235 (1985)
cited by Respondent is inapposite That case involved a situation where
no charge had been filed against an employer but that employer was
named in the complaint
BELL ENERGY MANAGEMENT CORP
The evidence establishes that Alfred Bell owns all the
assets of Bell Sheetmetal Corp and Bell Energy Man
agement d/b/a Bell Heating and Air Conditioning his
two main companies In addition he owns another com
pany B & E Sheetmetal which he used in his relation
ship with the Association and Local 295 Bell Sheetmetal
Corp is the subcontractor for Bell Energy Management
and employees needed for Bell Sheetmetal were obtained
from Bell Energy Management Bell s home is the office
for all the companies and his garage is its shop All of
the companies have occupied and done business from the
same office and have the same phone number and Bell
has controlled all aspects of the companies operations
including establishing labor relations policies Bell
Energy Management paid the bills for all of his oper
ations
Based on the above facts the evidence could not be
clearer that because all companies operated at the same
location and because of the identity of ownership finan
cial control common management and supervision inter
relation of operations and centralization of control of
labor relations and also identical employees customers
operation and equipment between all the Respondent
companies I find and conclude that Respondents Bell
Engery Management Corp d/b/a Bell Heating and Air
Conditioning Bell Sheetmetal Corporation and B & E
Sheetmetal all constitute a single employer and are alter
egos of each other Elevator Sales & Service 278 NLRB
627 633 (1986) Rogers Cleaning Contractors 277 NLRB
482 489 (1985) Super Save 273 NLRB 20 28 (1984)
J M Tanaka Construction 249 NLRB 238 241 (1980)
Crawford Door Sales 226 NLRB 1144 (1976)
I also find that Bell Sheetmetal Corporation was uti
lized as a disguised continuance of Respondents oper
ations in order to avoid its obligations as an Association
member to honor the collective bargaining agreement be
tween the Association and Local 295 J M Tanaka
supra Thus when Bell advised Local 295 in December
1985 that B & E Sheetmetal was no longer in business
he knew as he conceded at the hearing that Respondent
had not ceased performing its usual work Rather Re
spondent continued performing such work utilizing Bell
Energy Management which had never ceased work and
Bell Sheetmetal Corporation which although dormant
since its incorporation in May 1984 was resurrected in
November 1985 (1 month before the letter was sent) to
contract with Local 38 for the same type of work done
by B & E Sheetmetal when it was under contract with
Local 295 Inasmuch as all the Respondent companies
constitute a single employer and alter egos it is clear
that Respondent Bell Sheetmetal Corporation acted as a
disguised continuance of Respondent B & E Sheetmetal
in avoiding its obligations under the Local 295 Associa
tion contract
C The Alleged Refusal to Bargain
There is no dispute that Respondent was a member of
the Association and agreed to be bound by and comply
with the terms of the contract between the Association
and Local 295 expiring on 31 March 1984 and the suc
ceeding contract which ran from 1 April 1984 to 31
March 1987 In fact it did honor and comply with those
175
contracts until about September 1985 when it ceased
making payments to the funds of the Union and when in
November 1985 it refused to abide by the 1984-1987
contract Its answer admits that since about November
1985 it refused to abide by the 1984- 1987 collective bar
gaining agreement
The Board stated in Elevator Sales & Service 278
NLRB 627 (1986)
Absent mutual consent or unusual circumstances
withdrawal of an employer from a duty established
multiemployer bargaining unit can be effected only
by an unequivocal written notice to the union ex
pressing a sincere intent to abandon the multiem
ployer unit and pursue negotiations on an individual
employer basis Such written notice must be given
prior to the commencement of negotiations Retail
Associates Inc 120 NLRB 388 (1958)
Here there was no attempt at withdrawal from the
Association or from the Association unit and there was
no mutual consent or unusual circumstances warranting
such withdrawal Rather as Respondent concedes it re
pudiated its agreement with Local 295 In December
1985 it sent final payments to that Union for the pen
ods it owed with the statement that B & E Sheetmetal
was no longer in business
Under these facts I find and conclude that by refusing
to abide by the current contract between the Association
and Local 295 effective from 1 April 1984 to 31 March
1987 and by withdrawing recognition from that Union
Respondent violated Section 8(a)(5) of the Act Wm
Chalson & Co 252 NLRB 25 (1980)
In addition at the time that Respondent advised that B
& E Sheetmetal was no longer in business it was con
tinuing to engage in the same type of work with its other
companies specifically Bell Sheetmetal Corporation In
fact when the final payments were sent to Local 295 due
to the alleged cessation of business of B & E Sheetmetal
Respondent had already been in contractual relationship
for nearly 1 month with Local 38 through Bell Sheet
metal Corporation I thus find that Bell Sheetmetal Cor
poration was utilized as a disguised continuance of B &
E Sheetmetal in an effort by Respondent to evade its ex
isting bargaining relationship with Local 295 and to
evade its contractual and statutory obligation to Local
295 G & M Lath & Plaster Co 252 NLRB 969 (1980)
Respondent raises several defenses to the alleged refus
al to bargain the (1) inappropriateness of the unit (2)
failure of the General Counsel to prove the majority
status of Local 295 and (3) defense that Section 8(f) of
the Act permitted it to repudiate the contract
Respondent argues that the General Counsel has not
proven the appropriateness of the collective bargaining
unit alleged or that Local 295 represented a majority of
Respondents employees or the employees in the Asso
ciation unit
The unit alleged as appropriate in the complaint and as
set forth in the Association contract with Local 295 is as
follows
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All employees employed by the employer members
of the Association of Master Refrigeration & Air
Conditioning Contractors Inc in the States of New
York New Jersey and Connecticut excluding non
working foremen plant guards office help sales or
supervisors as defined in the Act
It is clear that the appropriate unit is the Association
unit Local 295 has been recognized as the collective bar
gaining agent for the employees in this unit for at least
15 years There is no evidence that Local 295 s majority
has ever been questioned 10 the contract recognizes
Local 295 as the majority representative and Respond
ent recognized that Union in that unit
The Board recently stated that
It is well established that a union enjoys an irre
buttable presumption of majority status during the
term of a collective bargaining agreement An em
ployer therefore does not have the right to with
draw recognition of a union during this period on
the basis of a good faith doubt or even actual proof
of loss of a union s majority status Inasmuch as the
contract between the Respondent and Local 417
had not expired the Respondents good faith doubt
of Local 417 s majority status was not a defense to
its refusal to recognize Local 417 s rpresentative
status [Sisters of Mercy Health Corp 277 NLRB
1353 1353-1354 (1985) ]
Accordingly the assertion that a majority of the Re
spondent s employees were not members of or represent
ed by Local 295 in April 1984 or that they withdrew
their support for Local 295 later is immaterial because
the appropriate unit is the Association unit Wm Chalson
& Co supra at 33 Belknap Glass Co 240 NLRB 1315
(1979) Wayne Electric 226 NLRB 409 (1976) Sheridan
Creations 148 NLRB 1503 1505 (1964) In addition the
Second Circuit noted that the fact that an employer may
have had no union employees at the time of its with
drawal from an association unit is irrelevant to respond
ent s duty to bargain and to execute the completed
agreement NLRB v John J Corbett Press 401 F 2d 673
(2d Cir 1968)
Moreover Section 10(b) of the Act bars any inquiry
into the majority status of Local 295 when it entered into
the Association contract Machinists Local 1424 (Bryan
Mfg Co) 362 U S 411 (1960) Morse Shoes 231 NLRB
13 (1977)
Respondent asserts that as an employer engaged in the
building and construction industry the agreement it rati
feed and adopted in April 1984 was a prehire contract
that it could repudiate at any time before Local 295 rep
resented a majority of its employees or a majority of the
Associations employees Respondent further argues that
inasmuch as there has been no proof that Local 295 rep
resented a majority of the employees in either unit it
properly repudiated the Local 295 contract and validly
10 The fact that as of 1 September 1984 Local 295 no longer had ,funs
diction in New Jersey is irrelevant to this case Jurisdiction over that
State ceased after the current contract was in effect
entered into a prehire agreement with Local 38 I do not
agree
Section 8(f) was enacted in order to immunize employ
ers in the building and construction industry from the
provisions of Section 8(a)(5) when they enter a prehire
agreement with and recognize unions that do not repre
sent a majority of employees in an appropriate unit R J
Smith Construction 191 NLRB 693 694 (1971) Congress
recognized that the occasional nature of employment in
the industry gave rise to unique needs Teamsters Local
83 (Stanley Matuszak) 243 NLRB 328 330 (1979) Those
needs included the employers ability to have available
a supply of skilled craftsmen ready for quick referral in
the uniquely temporary transitory and sometimes sea
sonal construction industry and the employer s
need to know his labor costs before making the estimate
on which his bid will be based Jim McNeff Inc v Todd
461 U S 260 266 (1983)
Prehire agreeements do not give rise to a presumption
of majority status on behalf of the union Where a union
fails to prove that it has obtained majority status among
employees in an appropriate unit an employer may with
draw recognition from the union without violating Sec
tion 8(a)(5) of the Act Thus a prehire 8(f) contract is
not binding on an employer until such time as the union
demonstrates that it enjoys the support of a majority of
employees in an appropriate unit NLRB v Iron Workers
Local 103 (Higdon Contracting) 434 U S 335 (1978)
However once a union represents a majority of em
ployees in an appropriate unit the union although ini
tially recognized under Section 8(f) then becomes the
employees statutory bargaining representative and
enjoys an irrebuttable presumption of majority status for
the duration of the agreement Hageman Underground
Construction 253 NLRB 60 62 (1980)
A threshold question is the nature of Respondent s
business for 8(f) s provisions apply only to an employer
engaged primarily in the building and construction indus
try
The Board has defined that industry as being where
the work involves the provision of labor whereby mate
pals and constituent parts may be combined on the build
ing site to form make or build a structure Teamsters
Local 83 supra at 331
Bell testified that his Company performs service and
installation (construction) work He stated that in early
1984 75 percent of his business was the servicing of the
air conditioning units at Caldor department stores pursu
ant to a service contract The rest of his business consist
ed of residential and some commercial installations
whereby heating and air conditioning duct work was
fabricated at his shop and heating and air conditioning
units were installed in existing buildings He further
stated that the Company has not done any installations
on new commercial buildings in which the units are in
stalled as the building is erected but it has done installa
tions on new residential buildings
Bell s testimony was contradictory and confusing
however as he later stated that in the same period in
stallations were 75-85 percent of his business and 33-50
percent was servicing of Caldor stores He added that at
BELL ENERGY MANAGEMENT CORP 177
the time of the hearing two thirds of his business was in
stallations
Association Attorney Turchin testified that he did not
know the specific types of work performed by Respond
ent but that Association members and their employees
generally perform construction work including air con
ditioning heating ventilation and sheetmetal work and
to a lesser degree plumbing work He further stated the
employees perform all phases of air conditioning includ
ing the installation and repair of new units in commercial
and residential buildings heating and ventilation work on
existing buildings and buildings being constructed
plumbing work and the manufacture and installation of
sheetmetal to be installed in new and existing structures
Turchin also stated that the Association contracts with
Local 295 are not prehire contracts
Given the nature of the testimony particularly con
cerning Respondents business I am unable to make a
finding whether Respondent is an employer engaged pn
marily in the building and construction industry
However even assuming that Respondent is an em
ployer primarily engaged in the building and construc
tion industry if Local 295 represented a majority of em
ployees in an appropriate unit at any time during the
contracts term that Union would be the statutory repre
sentative of the employees Hageman supra
I cannot find that Local 295 represented a majority of
the employees of Respondent The only evidence regard
ing that unions representation of Respondents employ
ees are (1) Local 295 authorization cards for Sora Pera
gine and Berndt dated 25 December 1983 and 5 January
and 24 February 1984 respectively (2) monthly contn
bution reports to that Union for February 1984 through
August 1985 and (3) a payroll sheet for the week ending
7 April 1984
Bell testified that he began operations in 1980 and that
Peragine was his first employee 11 Bell and Peragine
worked together and Pete Koerner was then hired 12
Sora was hired in late 1981 William Berndt was hired in
December 1983 13
Bell testified that when the Company had three em
ployees presumably Peragine Koerner and Sora they
did all types of work Thus there was a point at which
Respondent employed only three people-Peragine
Koerner and Sora Of those two were members of
Local 295 Peragine and Sora and the Union would
therefore have represented a majority of Respondent s
employees However the record is silent concerning ex
actly when Respondents unit consisted of only three
workers What makes matters more confusing is that
while Respondent reported to Local 295 for purposes of
fund contributions that it employed only three and then
two people during the period February 1984 to August
1985 14 its payroll for 7 April 1984 shows that it em
11 Peragine s card indicates that he began work in mid 1980
12 Koerner was still on the payroll as of April 1984
13 Based on the statement on his authorization card that he was hired 2
months before its execution
la From February 1984 to May 1984 Peragine Sora and Berndt In
June 1984 Peragine left From June 1984 to August 1985 Berndt and
Sora were reported
ployed seven or eight unit employees 15 of whom only
two-Peragine and Sora-were members of Local 295
Local 295 Agent Guarino testified that in the fall of
1985 the Union first became aware that Respondent had
more employees than were being contributed for It ac
cordingly has not been proven that Local 295 represent
ed a majority of the Respondents employees at any time
Higdon supra
However because Respondent was part of the multi
employer bargaining unit Local 295 s majority status
with respect to Respondent itself is immaterial as its em
ployees would constitute only a small segment of the ap
propriate unit I find based on the long bargaining histo
ry between the Association and Local 295 that that
Union was presumptively the majority representative of
the employees in the Association unit I further find that
the presumption of majority status was not rebutted
Therefore Respondent was not free to withdraw recog
nition or repudiate the bargaining agreement G & M
Lath & Plaster Co 252 NLRB 969 979 (1980) Amado
Electric 238 NLRB 37 fn 1 (1978) Authorized Air Condi
tioning 236 NLRB 131 fn 2 (1978)
In addition the Board has held that Section 8(f) is
merely a preliminary step that contemplates further
action for the development of a full bargaining relation
ship Ruttmann Construction Co 191 NLRB 701 702
(1971) Higdon supra and that Congress intended that
section to apply to an initial attempt by a union and an
employer to commence such a relationship Brick
layers Local 3 (Eastern Washington) 162 NLRB 476 478
(1966) The Board in that case added
Thus the entire legislative history of Section 8(f)(1)
is couched in terms of prehire ageeements a ref
erence which can have no meaning in the situation
where as here the parties are continuing an exist
ing bargaining relationship under which employees
have previously been hired Particularly is this so
where as in this case the previous ageeement con
tained a lawful union security provision Additional
ly one of the most frequently cited portions of the
legislative history of Section 8(f) reveals that the
Congress envisioned its prehire provisions as apply
ing only to the situation where the parties were at
tempting to establish a bargaining relationship for
the first time
It thus appears that the Association Local 295 con
tract embodying a long term bargaining relationship
under which employees in the Association unit had pre
viously been hired and regarding whom a union security
clause had been applied is not subject to attack under
Section 8(f) Williams Enterprises 212 NLRB 880 885
(1974) Dallas Building Trades 164 NLRB 938 943
(1967)
As set forth above I find and conclude that in view of
the collective bargaining agreement in existence the
Union was entitled to an irrebuttable presumption of ma
jonty status for the duration of the contract According
5 There was some question whether one was a supervisor and wheth
er another was a clerical employee
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly Respondent was not free to withdraw recognition
from the Union or to repudiate the collective bargaining
agreement in midterm By doing so Respondent violated
Section 8(a)(5) and (1) of the Act Hageman Underground
Construction supra at 63
Respondent asserts that after it repudiated its Associa
tion Local 295 contract it properly entered into a pre
hire agreement with Local 38 I reject that argument
Even assuming that Respondent is an employer engaged
primarily in the building and construction industry Sec
tion 8(f) states that its provisions are not available if the
contracting union has been assisted by any action of
the employer I will find infra that Respondent assisted
Local 38 by (1) making the initial contact with Local 38
(2) soliciting an employee to organize a meeting with
Local 38 (3) making its premises available to a Local 38
representative for the purpose of holding a meeting to
organize its employees and (4) contracting with Local
38 when it was not designed by an uncoerced majority
of Respondents employees and while bound to maintain
recognition of Local 295 during the term of the contract
in violation of Section 8(a)(2) of the Act
I accordingly find that Respondent could not have and
did not lawfully enter into any contract or an 8(f) con
tract with Local 38
D The Alleged Unlawful Assistance to Local 38 and
Conversations with Employees
The complaint alleges that Bell (1) solicited an em
ployee to organize a meeting with other employees for
the purpose of inducing them to abandon their support
for Local 295 and encouraging them to join Local 38
and (2) interrogated an employee about a union meeting
that employees had attended on or about the previous
day
In addition the General Counsel urges in his beef that
I find that Respondent violated Section 8(a)(2) of the
Act by making the initial contacts with Local 38 en
couraging employees to support Local 38 and making its
premises available to Local 38
Without reciting all the evidence set forth above it is
clear and I find that Bell initiated the contact with Local
38 for the purpose of entering into an agreement with
that Union I reject his testimony that he called Local 38
official Hertel because Local 38 contacted his workers at
certain jobsites and told him (Bell) that they were inter
ested in joining I cannot credit Bell s testimony because
Hertel who I credit in this regard credibly stated that
his only contact with the men was about 8 to 9 months
before Bell s call to him and the contact consisted of his
asking them who they worked for They answered truth
fully but did not reply when Hertel asked if they were
interested in joining a union It does not appear likely
that Bell s employees were contacted by other Local 38
officials or representatives as Hertel would certainly
have become aware of the contact and if they were as
interested in Local 38 as Bell claimed Hertel would deft
nitely have taken steps to organize them prior to the call
from Bell 9 months later In addition if as Bell claims
his employees were so interested in Local 38 before his
call to Hertel (a) Bell would not have had to give Local
38 such a strong endorsement-telling them that the
Company preferred Local 38 and would grow with rep
resentation by the Union and they would be better off
could attend school and receive better benefits and (b)
employees would have known about Local 38 s benefits
and would not have had to question Hertel at two meet
rags concerning medical coverage
Thus the catalyst for the contact with Local 38 was
not the employees alleged interest in that Union but
was Bell s intent as he told Hertel to start a new Com
pany and sign with Local 38 and his admitted reason
that he believed that the Company would grow with
Local 38 That new Company was Bell Sheetmetal Cor
poration which although incorporated 1 year earlier
and not used was revived for the purpose of contracting
with Local 38
After Bell met with Hertel and discussed wages bene
fits and the cost to Respondent Bell told employee De
Palma that Hertel wanted to speak with the employees
Bell suggested that because De Palma was part of the
group that was interested in Local 38 he (De Palma)
should coordinate the meeting so that Bell would not be
involved Bell then told Hertel that his meeting with em
ployees would be arranged by De Palma
The meeting was held at Respondents premises and
Bell was told by Hertel that his employees supported
Local 38 One day after the meeting Bell asked De
Palma how did everything go? or what happened?
or what s going on? and De Palma told him what hap
pened and said that the workers decided to join Local
38
It is well settled that an employer violates Section
(a)(2) of the Act when it renders unlawful assistance to a
union The Supreme Court has held in Machinists Local
35 v NLRB 311 U S 72 (1940) that in finding such a
violation there must be an inference that the employer s
assistance denied the employees their right to complete
and unhampered freedom in choosing a bargaining repre
sentative without regard to their employers wishes
It is clear that by making the initial contact with Local
38 Respondent made the choice of representative for the
employees notwithstanding that they had already select
ed Local 295 previously I accordingly find and con
clude that Respondent violated Section 8(a)(2) of the
Act Farmers Energy Corp 266 NLRB 722 (1983) enfd
730 F 2d 1098 (7th Cir 1984) Freeman C Gaffney Inc
205 NLRB 1012 1019 (1973)
In addition by soliciting De Palma to organize the
meeting with Local 38 and by encouraging its employees
to support that Union Respondent assisted Local 38 in
violation of Section 8(a)(2) Midwestern Mining 277
NLRB 221 (1985) Elias Mallouk Realty Corp 265
NLRB 1225 1229 (1982) Komatz Construction 191
NLRB 846 851 (1971)
I also find that by making its premises available to a
Local 38 representative for the purpose of holding a
meeting to organize its employees Respondent violated
Section 8(a)(2) of the Act
I cannot find however that Bells questions to De
Palma about the previous day s meeting with Local 38
constituted unlawful interrogation Under the circum
stances of this case where I find that Bell was the cats
BELL ENERGY MANAGEMENT CORP
lyst for and engineered the representation by Local 38
and where he favored that union and encouraged his em
ployees to join that union it cannot be said that his ques
tioning of De Palma about a meeting that Bell helped ar
range the result of which he already knew1° and the
purpose of which (representation by Local 38) he
sought is coercive interrogation that reasonably tended
to interfere with the employees Section 7 rights Ross
more House 269 NLRB 1176 (1984)
The complaint also alleges that Respondent violated
Section 8(a)(2) of the Act by executing a contract with
Local 38 about 13 November 1985 containing a union
security clause at a time when Local 38 was not desig
nated by an uncoerced majority of Respondents employ
ees
When Respondent entered into the contract with
Local 38 it was then a member of the Association and
bound to the Association Local 295 contract which was
then in effect and Local 295 was entitled to an irrebuta
ble presumption of majority status at that time Thus by
executing the agreement with Local 38 Respondent
gave unlawful assistance to that Union in violation of
Section 8(a)(2) of the Act because Local 38 did not rep
resent an uncoerced majority of the employees of em
ployer in the Association bargaining unit Independent
Assn of Steel Fabricators 231 NLRB 264 275 (1977)
Stockton Door Co 218 NLRB 1053 1055 (1975) Oilfield
Maintenance Co 142 NLRB 1384 (1963) Because that
agreement contained a union security clause Respondent
also violated Section 8(a)(3) of the Act
THE REMEDY
Having found that Respondent Bell Energy Manage
ment Corp Bell Sheetmetal Corporation B & E Sheet
metal and Bell Heating and Air Conditioning Inc as
alter egos and as a single employer engaged in certain
unfair labor practices I shall recommend that it be or
dered to cease and desist therefrom and that it take cer
tarn affirmative action to effectuate the policies of the
Act
Respondent shall be required to cease recognizing
Local 38 and honoring its contract with Local 38 and
shall be required to honor the contract it adopted be
tween the Association and Local 295 Respondent shall
also be required to make whole the employees employed
by it in the bargaining unit and the funds established
under the Association Local 295 collective bargaining
agreement and Local 295 for any losses they may have
suffered as a result of Respondents repudiation of the
collective bargaining agreement with interest Fox Paint
ing Co 263 NLRB 437 (1982) and cases cited there In
terest is to be paid in on the amounts owing and is to be
computed in the manner prescribed in Florida Steel
Corp 231 NLRB 651 (1977) See generally Isis Plumbing
Co 138 NLRB 716 (1962)
16 Before his question of De palms Hertel had already told Bell that at
the meeting the employees supported Local 38
CONCLUSIONS OF LAW
179
1 Bell Energy Management Corp Bell Sheetmetal
Corporation B & E Sheetmetal and Bell Heating & Air
Conditioning Inc constitute a single employer and are
alter egos of each other and at all times material have
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Local 295 and Local 38 are labor organizations
within the meaning of Section 2(5) of the Act
3 The following employees constitute a unit appropri
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All employees employed by the employer members
of the Association of Master Refrigeration and Air
Conditioning Contractors Inc in the States of New
York New Jersey and Connecticut excluding non
working foremen plant guards office help sales or
suprvisors as defined in the Act
4 At all relevant times Local 295 has been and is
now the exclusive representative of all employees in the
above described appropriate unit for the purposes of col
lective bargaining
5 By failing and refusing to recognize and bargain
with Local 295 and failing and refusing to apply the
terms and conditions of the current collective bargaining
agreement to the employees of Respondent in the bar
gaining unit described above by repudiating the current
collective bargaining agreement and by withdrawing rec
ognition of Local 295 as the bargaining representative of
its employees in the bargaining unit described above and
by utilizing Bell Sheetmetal Corporation as a disguised
continuance of other Respondent companies in an effort
to evade its existing bargaining relationship and to evade
its contractual and statutory obligations to Local 295
Respondent violated Section 8(a)(5) and (1) of the Act
6 By recognizing Local 38 as the collective bargaining
representative of its employees by entering into and
maintaining an agreement requiring employees to be
members of Local 38 when Local 38 did not represent
an uncoerced majority of the employees in an appropri
ate unit by soliciting an employee to organize a meeting
with other employees for the purpose of inducing them
to abandon their support for Local 295 and encouraging
them to join Local 38 by making the initial contacts
with Local 38 by encouraging employees to support
Local 38 and by making its premises available to Local
38 Respondent violated Section 8(a)(2) and (1) of the
Act
7 By entering into and maintaining an agreement with
Local 38 requiring membership in Local 38 as a condi
tion of employment when Local 38 did not represent a
majority of the employees in an appropriate unit Re
spondent violated Section 8(a)(3) and (1) of the Act
8 The unfair labor practices of Respondent as de
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act
9 Respondent has not violated the Act by interrogat
ing an employee about a union meeting
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edt7
ORDER
The Respondent Bell Energy Management Corp Bell
Sheetmetal Corporation B & E Sheetmetal and Bell
Heating and Air Conditioning Inc Mahopac New
York its officers agents successors and assigns shall
1 Cease and desist from
(a) Giving assistance and support to Sheet Metal
Workers International Union Association Local Union
38 or any other labor organization by soliciting employ
ees to organize meetings with other employees for the
purpose of inducing them to abandon their support for
Local 295-295C International Union of Operating Engi
neers Air Conditioning & Refrigeration AFL-CIO and
encouraging them to join Local 38 by making the initial
contacts with Local 38 by encouraging employees to
support Local 38 and by making its premises available to
Local 38 or in any other manner proscribed by Section
8(a)(2) of the Act
(b) Recognizing or contracting with Local 38 as the
representative of any of its employees for purposes of
collective bargaining unless and until the labor organiza
tion has been certified by the National Labor Relations
Board as the exclusive representative of such employees
(c) Giving effect to performing or in any way enforc
ing its contract with Local 38 effective 1 July 1984 to 30
June 1987 or any modifications extension or renewal
thereof or any other contract agreement or understand
ing entered into with Local 38 unless and until said
labor organization shall have been certified by the Board
as the exclusive representative of the employees
(d) Failing and refusing to recognize and bargain col
lectively with Local 295 as the exclusive bargaining rep
resentative of its employees in the bargaining unit con
sisting of
All employees employed by the employer members
of the Association of Master Refrigeration and Air
Conditioning Contractors Inc in the States of New
York New Jersey and Connecticut excluding non
working foremen plant guards office help sales or
supervisors as defined in the Act
(e) Failing and refusing to apply the terms and condi
tions of the current collective bargaining ageement be
tween Local 295 and the employer Association to the
employees of Respondent in the bargaining unit de
scribed above
(f) Repudiating the current collective bargaining agree
ment and withdrawing recognition of Local 295 as the
bargaining representative of its employees in the bargain
ing unit described above
(g) Utilizing Bell Sheetmetal Corporation or any other
company as a disguised continuance of other Companies
17 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
of Respondent in an effort to evade its existing bargain
ing relationship and evade its contractual and statutory
obligations to Local 295
(h) 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
(a) Forthwith implement and apply the terms and con
ditions of the contract between Local 295 and the em
ployer Association from 1 April 1974 to 31 March 1987
to its employees in the bargaining unit described above
(b) Make whole its employees in the bargaining unit
and Local 295 for lost dues and for any losses of wages
or health benefits coverage as the result of repudiating
the terms of the contract with interest
(c) Make whole its employees in the bargaining unit by
paying to the various fringe benefit funds payments that
should have been made pursuant to the provisions of the
agreement between Local 295 and the employer Associa
tion
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Mahopac New York facility copies of
the attached notice marked Appendix 18 Copies of the
notice on forms provided by the Regional Director for
Region 2 after being signed by the Respondents author
ized representative shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
8 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
a] Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give assistance and support to Sheet
metal Workers Internation Union Association Local
Union 38 or any other labor organization by soliciting
employees to organize meetings with other employees
for the purpose of inducing them to abandon their sup-
port for Local 295-295C International Union of Operat
BELL ENERGY MANAGEMENT CORP 181
ing Engineers Air Conditioning & Refrigeration AFL-
CIO and encouraging them to join Local 38 by making
the initial contacts with Local 38 by encouraging em
ployees to support Local 38 and by making its premises
available to Local 38 or in any other manner proscribed
by Section 8(a)(2) of the Act
WE WILL NOT recognize or contract with Local 38 as
the representative of any of our employees for purposes
of collective bargaining unless and until the labor organs
zation has been certified by the National Labor Relations
Board as exclusive representative of such employees
WE WILL NOT give effect to perform or in any way
enforce our contract with Local 38 effective 1 July 1984
to 30 June 1987 or any modification extension or re
newal thereof or any other contract agreement or un
derstanding entered into with Local 38 unless and until
the labor organization shall have been certified by the
Board as the exclusive representative of the employees
WE WILL NOT fail or refuse to recognize and bargain
collectively with Local 295 as the exclusive bargaining
representative of our employees in the bargaining unit
consisting of
All employees employed by the employer members
of the Association of Master Refrigeration & Air
Conditioning Contractors Inc in the States of New
York New Jersey and Connecticut excluding non
working foremen plant guards office help sales or
supervisors as defined in the Act
WE WILL NOT fail or refuse to apply the terms and
conditions of the current collective bargaining agreement
between Local 295 and the employer Association to our
employees in the bargaining unit described above
WE WILL NOT repudiate the current collective bargain
ing agreement and withdraw recognition of Local 295 as
the bargaining representative of our employees in the
bargaining unit described above
WE WILL NOT utilize Bell Sheetmetal Corporation or
any other company as a disguised continuance of other
of our Companies in an effort to evade our existing bar
gaining relationship and evade our contractual and statu
tory obligations to Local 295
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL forthwith implement and apply the terms
and conditions of the contract between Local 295 and
the employer Association effective from 1 April 1974 to
31 March 1987 to our employees in the bargaining unit
described above
WE WILL make whole our employees in the bargaining
unit and Local 295 for lost dues and for any losses of
wages or health benefit coverage as the result of repudi
ating the terms of the contract with interest
WE WILL make whole our employees in the bargaining
unit by paying to the various fringe benefit funds pay
ment that should have been made pursuant to the provi
sions of the agreement between local 295 and the em
ployer Association
BELL ENERGY MANAGEMENT CORP BELL
SHEETMETAL CORPORATION B & E
SHEETMETAL AND BELL HEATING AND
AIR CONDITIONING INC