E.L.C. Electric, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 2012

359 N.L.R.B. 255 (N.L.R.B. 2012)

E.L.C. ELECTRIC, INC. 255

359 NLRB No. 20
E.L.C. Electric, Inc., and its alter ego and/or succes-
sor Midwest Electric & Retail Contractors, Inc.,
d/b/a MERC, Inc., and Asset Management Part-
ners, Inc., a single integrated enterprise and sin-
gle employer, and Edward L. Calvert, individu-
ally and International Brotherhood of Electrical
Workers, AFL–CIO

E.L.C. Electric, Inc., and its alter ego and/or succes-
sor Midwest Electric & Retail Contractors, Inc.,
d/b/a MERC, Inc., and Asset Management Part-
ners, Inc., a single integrated enterprise and sin-
gle employer, and Edward L. Calvert, individu-
ally and International Brotherhood of Electrical
Workers, Local Union No. 481, a/w Internation-
al Brotherhood of Electrical Workers, AFL–
CIO. Cases 25–CA–028283–1 Amended, 25–CA–
028283–2 Amended, 25–CA–028283–4 Amended,
25–CA–028397–1 Amended, 25–CA–028398–1
Amended, 25–CA–028406, 25–CA–028532
Amended, 25–CA–028567, 25–CA–028582, and
25–CA–028637 Amended
November 8, 2012
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On December 20, 2011, Administrative Law Judge Ira
Sandron issued the attached supplemental decision. The
Respondent filed exceptions and a supporting brief, the
Acting General Counsel filed an answering brief, and the
Respondent filed a reply 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 and
has decided to affirm the judge’s rulings,
1
findings,
2
and
conclusions and to adopt the recommended Order.

1 We deny the Acting General Counsel’s request to strike portions of
the Respondent’s exceptions brief as asserting facts not in evidence.
These additional facts, even if true, would not affect the result in this
case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In light of the judge’s credibility find-
ings with respect to the Respondent’s commingling of personal and
corporate funds, we find it unnecessary to rely on the adverse inference
drawn by the judge against the Respondent for failing to call Darlene
Van Treese, a former bookkeeping employee of E.L.C. Electric, as a
witness.
ORDER
The National Labor Relations Board orders that the
Respondent, E.L.C. Electric Inc.; its alter ego and suc-
cessor Midwest Electric & Retail Contractors, Inc., d/b/a
MERC, Inc.; its alter ego, Asset Management Partners,
Inc.; and Edward L. Calvert, an individual, their officers,
agents, successors, and assigns, shall make whole the
individuals named below by paying them the amounts set
forth opposite their names, plus interest accrued to the
date of payment, as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withhold-
ings required by Federal and State laws.

Benjamin Adair $23,517
Matthew Aldrich 9,715
Todd Bailey 2,383
Ryan Chamber 19,231
Gregory Frazier 6, 610
Timothy Grow 46,439
Mikalis Grunde 11,285
Ronald Hamilton 90,508
Mark Herche 3,049
Benjamin Mullins 3,049
Rory Navratil 1,399
Bruce Sanderson 73,823
Jonathan Trinosky 57,694
Jonathan White 18,055
Troy Whitaker 67,621
David Wilson 3,049
TOTAL $437,427

Rebekah Ramirez and Kimberly R. Sorg-Graves, Esqs., for the
Acting General Counsel.
Edward L. Calvert, pro se. Kevin Passman, pro se. Neil E.
Gath, Esq. (Fillenwarth, Dennerline, Grath & Towe, LLP),
of Indianapolis, Indiana, for the Charging Party.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter arises
out of an amendment to compliance specification and notice of
hearing issued on April 27, 2011, against E.L.C. Electric, Inc.
(ELC), Midwest Electric & Retail Contractors, Inc. d/b/a
MERC, Inc. (MERC), Asset Management Partners, Inc. (AM),
and Edward Calvert, an individual. Calvert was ELC’s sole
owner and president, and AM’s majority owner and president.
Kevin Passman, formerly ELC’s vice president of field opera-
tions, is MERC’s sole owner.
I heard the underlying unfair labor practice (ULP) case on
August 20–22 and November 4 and 5, 2003, and found that
ELC had committed a number of violations of Section 8(a)(1)

In addition, the Respondent asserts that the judge’s rulings, findings,
and conclusions demonstrate bias and prejudice. On careful examina-
tion of the judge’s decision and the entire record, we are satisfied that
the Respondent’s contentions are without merit.
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and (3) of the Act, as well as engaged in conduct that warranted
setting aside an election held on September 26, 2002. On July
29, 2005, the Board, for all relevant purposes, affirmed my
decision.1 On November 30, 2005, the Region issued a com-
pliance specification and notice of hearing.2 On July 20, 2006,
the Acting General Counsel (the General Counsel) filed a mo-
tion for partial summary judgment, which the Board granted on
September 28, 2006, in regard to 13 discriminatees but denied
as to Benjamin Adair, Matthew Aldrich, and Ronald Hamilton.3
Pursuant to notice, I held a trial in Indianapolis, Indiana,
from August 15–18 and on October 6, 2011, at which I afforded
the parties full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence. For the entire
course of the trial, G. Thomas Blankenship of Indianapolis,
Indiana, represented AM and Calvert as an individual. He and
Calvert stated that Calvert was representing ELC. I later grant-
ed Attorney Blankenship’s unopposed posttrial motion to with-
draw. His stipulations and representations remain binding on
Calvert.
Issues
At trial, Calvert and the General Counsel stipulated to the
amounts owed to Adair, Aldrich, and Hamilton,4 and the matter
of the amount of backpay owed to all 16 discriminatees there-
fore is no longer in dispute. Rather, since ELC ceased business
operations on about March 25, 2006, the overriding question
for determination is who is now responsible for paying ELC’s
backpay liability?
The answer turns on resolving the following issues:

(1) Do ELC and AM constitute a single employer?
(2) Should the corporate veils of ELC and AM be pierced
and Calvert found personally liable?
(3) Are MERC and ELC alter egos?
(4) Is MERC a Golden State successor to ELC?

Witnesses and Credibility
The General Counsel called Calvert and Passman as adverse
witnesses under Section 611(c) of the Act; CPA Carol Schmidt,
who was ELC’s and Calvert’s personal accountant for many
years; and CPA Joseph Holt.
At the underlying ULP hearing in 2003, Calvert and Pass-
man were among the witnesses for ELC. Calvert testified pri-
marily on the reasons why he decided to lay off ELC’s remain-
ing electrical workers on March 14, 2003, and then utilized
them as employees of labor providers. I found him to be a
“patently unreliable witness” and that:

His testimony . . . smacked of evasion, was replete with in-
ternal inconsistencies, and was frequently contradicted by
other witnesses of the Respondent. Calvert demonstrated an
attitude of defensiveness, sometimes crossing over into argu-
mentative, and at times appeared to show a contemptuous in-

1 344 NLRB 1200.
2 GC Exh. 1(b).
3 348 NLRB 301.
4 See GC Exh. 204. Attorney Blankenship allowed Calvert to enter
into the stipulation but abstained, as counsel for Calvert and AM, from
taking a position.
difference to providing responsive answers. 5

ELC excepted to some of my credibility findings, but the Board
affirmed them.6
I approached the present matter with an open mind as far as
evaluating Calvert’s credibility and not allowing my past con-
clusions to influence my judgment. That said, his testimony at
this hearing suffered from the same defects as in 2003, the only
exception being that his attitude was less confrontational.
Thus, he regularly professed lack of recall or answered tenta-
tively, even on matters concerning his current and recent situa-
tion. Several examples follow. Calvert still owns the building
out of which ELC conducted business. Yet, when asked if the
ELC computer is still there, he replied that he did not know.7
When Calvert was asked if he ever had a landline phone for
AM, he replied, “I’m not for sure whether I did or not. I may
have. I’m not certain.”8 When the General Counsel asked
when Calvert transferred ELC assets to himself in partial pay-
ment of personal loans he had made to ELC, he could not recall
when, even whether it was before or after ELC ceased opera-
tions.9 Finally, Calvert testified that he does not know if he still
has or uses a bank credit card that he used for AM.10
Moreover, Calvert frequently had no answer for many ques-
tions, often merely responding that “the records” would show
the information (when, in fact, they often did not). A few ex-
amples follow. Calvert could give no specific reason why he
waited until April 2008 to auction off ELC equipment valued at
approximately $127,000, when ELC had stopped doing busi-
ness on about March 25, 2006.11 Calvert made personal loans
to AM, including loans in the amounts of $100,000 and
$70,000 but testified that he did not know why AM needed so
much money.12 General Counsel’s Exhibit 41 contains bank
and other records that Calvert claimed showed his personal
loans to ELC. He could not explain why one such record indi-
cates three loans totaling $180,000 from an account in the
names of his daughter Katrina Springer, son Kevin Calvert, and
Tracy Calvert, or why he set up such an account.13 When asked
when he decided to close ELC, Calvert gave the very vague
answer, “Sometime probably in 2005 . . . . Could have been the
end of 2004.”14 In this regard, although he claimed that he
decided to close ELC because it was losing money, he provided
no documentation to substantiate that averment.
Further undermining Calvert’s overall credibility was the
fact that his business and personal records were, to put it chari-
tably, haphazard. They were lacking in continuity and com-
pleteness and filled with cryptic notations that he made—many
of which he was at a loss to explain at trial.
Additionally, on the last day of the hearing, Calvert attempt-

5 344 NLRB at 1213 (fn. omitted).
6 Id. at 1200 fn. 1.
7 Tr. 444.
8 Tr. 460.
9 Tr. 526.
10 Tr. 624.
11 Tr. 532.
12 Tr. 557.
13 Tr. 485–486. See GC Exh. 41 at p. 46.
14 Tr. 669.
E.L.C. ELECTRIC, INC. 257

ed to claim that some of the records that his counsel had earlier
stipulated were ELC business records were not in fact ELC’s
business records but instead personal records. Even after At-
torney Blankenship reiterated his stipulation that the documents
in question were ELC’s business records, Calvert repeated that
they were “personal records.”15
Calvert also averred on the final day of trial that ELC still
owes him at least $1.2 million,16 the amount at which he arrived
as of September 6, 2005, despite General Counsel’s Exhibit 43
showing ELC repayments to him of over $420,000 after that
date. He offered no documentation to support this testimony.
As I will describe, his testimony concerning what happened to
ELC equipment and vehicles valued at $127,000 in August
2005 was hopelessly contradictory and confusing.
Perhaps most damaging to Calvert’s credibility was his pro-
fessed ignorance of Passman’s business operations and the
reasons Passman requested loans—testimony that Passman, a
myriad of documents of record, and even Calvert’s own testi-
mony directly contradicted.
General Counsel’s Exhibit 9 is a composite exhibit of Cal-
vert’s bank statements for his personal equity line of credit. On
several documents therein, he wrote the notation “MERC.”
Additionally, prior to ELC’s cessation of operations in March
2006, Calvert noted on various documents that ELC business
services be transferred to MERC and/or Passman.17 General
Counsel’s Exhibit 135 at 1, dated October 17, 2005, and with
the name “Midwest Electric & Retail Contractors” at the top of
the first page, was a detailed checklist that Calvert made for
Passman “when I found out that he was going in business. I
sent set these things up to tell him, this is what you need to
do.”18 On about January 10, 2006, Calvert sent letters to ELC’s
customers, informing them that he was retiring and closing
ELC, and recommending that they use MERC for any future
work.19 In March 2006, Calvert admittedly allowed Passman to
use Calvert’s American Express card for MERC business “be-
cause he was just starting out,” and Calvert notated that MERC
was to be billed for certain expenses that Passman charged to
the card in March 2006.20 Finally, Calvert admitted at one
point in his testimony that he “‘probably” advised Passman
how to go about forming his new company.21
Despite all of the above, Calvert testified—incredibly, and in
conflict with Passman’s testimony—that “I didn’t make any
loans to MERC. It was—any loans I made was [sic] to Kevin
Passman.”22 When the General Counsel asked why he would
have written in the notations “MERC” and “Midwest” on a
September 2006 bank statement for his personal equity line,23
his answer was totally unbelievable: “No. It’s evidently just a
mistake, because I never made any money—I never made any
loan for MERC at all. I’ve made personal loans to Kevin

15 Tr. 856.
16 Tr. 870.
17 E.g., GC Exhs. 162, 164.
18 Tr. 763.
19 GC Exh. 139.
20 Tr. 452; GC Exh. 64 at pp. 5, 9.
21 Tr. 672–673.
22 Tr. 558.
23 GC Exh. 9 at p. 17.
Passman.”24 He also testified, incredibly, that he did not did
not ask why Passman wanted the loans, did not know for what
the money was used, and that he was simply “helping him out
as a friend, as a personal friend.”25
Calvert was also contradicted by CPA Schmidt. Thus, as
subsequently described, her testimony did not gibe with Cal-
vert’s claim that she was responsible for separating his personal
expenses from ELC’s expenses, in terms of his credit card
charges and otherwise. In this regard, Calvert testified a num-
ber of times that he relied on CPA’s and his bookkeepers to
properly separate his personal expenses and ELC business ex-
penses in ELC’s records, and to otherwise handle his personal
and business accounts—testimony that neither Schmidt nor any
other ELC CPA or bookkeeper corroborated.
Finally, Calvert did not call his wife Linda, daughter Katrina,
or son Kevin to corroborate his testimony, to testify on matters
about which they had personal knowledge, or to offer an expla-
nation of why certain documents on their face clearly suggest
that ELC, AM, and his other companies were under Calvert’s
complete control and direction, with almost no practical distinc-
tion between themselves and Calvert operating as an individual.
I therefore draw an adverse inference that their testimony
would not have supported and, indeed, might have harmed
Calvert’s position. See International Automated Machines, 285
NLRB 1122, 1122–1123 (1987), enfd. 861 F.2d 720 (6th Cir.
1988) (“[W[hen a party fails to call a witness who may reason-
ably be assumed to be favorably disposed to the party, an ad-
verse inference may be drawn regarding any factual question on
which the witness is likely to have knowledge.”). Similarly, I
draw an adverse inference against Calvert for not having called
Darlene Van Trish, ELC’s longtime bookkeeper, to testify since
he failed to offer any evidence that he tried unsuccessfully to
locate her.
For all of the above reasons, I once again find Calvert’s tes-
timony patently unreliable.
Passman—who did not have the benefit of counsel—seemed
sincere and to answer questions without hesitation. I credit him
where his testimony conflicted with Calvert’s, including his
testimony that Calvert offered to loan him startup money to
open his own company and that he later requested loans from
Calvert specifically to keep MERC operating.
Schmidt, whom the General Counsel subpoenaed, was clear-
ly displeased at having to be a witness. Nonetheless, she
seemed candid and to answer questions readily and without an
attempt to slant her responses. Accordingly, I also credit her
where her testimony contradicted Calvert’s.
Facts
I find the following facts based on the entire record, includ-
ing testimony and my observations of witness demeanor, doc-
uments, stipulations, the posttrial briefs that the General Coun-
sel and Calvert filed on December 12, 2011, and Passman’s
closing statement. I note that I cannot consider averments of
fact in Calvert’s brief that were not put in evidence, for exam-
ple, statements on page 32 concerning his present financial

24 Tr. 558–559.
25 Tr. 560, 598.
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

status. I grant the General Counsel’s unopposed motions to
correct the transcript and to replace page 37 of General Coun-
sel’s Exhibit 41. On December 16, 2011, the General Counsel
filed an errata or supplement to her brief, which added addi-
tional subheadings to the table of contents and provided a table
of authorities. On December 19, 2011, Calvert filed an objec-
tion to the errata. However, I see no prejudice to either Calvert
or Passman in allowing the errata, which simply expanded the
table of contents but not the body of the General Counsel’s
brief, and added no new citations but merely listed them in
table form. Accordingly, I accept it.
ELC, AM, Calvert, and other Calvert companies
Calvert did business as ELC and AM at 3960 Southeastern
Avenue (Southeastern Avenue). Previously, the building was
titled in the name of ELC, but Calvert and his wife Linda later
purchased it, and it remains in their names today.
AM was incorporated on May 18, 2001, and dissolved in
June 2009.26 Calvert was 90-percent owner and sole officer.
He testified that he formed AM to manage his and his wife’s
personal assets, including their rental properties, and to perform
such functions as paying bills and depositing rental payments.
After ELC ceased business, Calvert used AM to pay ELC’s
outstanding bills, including utilities. General Counsel’s Exhibit
9 contains some of AM checks and deposits from March 2,
2005, through January 2, 2007. Calvert testified that the
$100,000 deposit he made to AM on May 3, 2005, represented
a loan but at first could offer no reason why AM needed so
much money at the time.27 Similarly, he could not answer why
he made a $70,000 loan to AM on September 7, 2006.28 In
that period, AM made loans, inter alia, to Passman, Kevin Cal-
vert, and an acquaintance of Kevin Calvert (in the amount of
$70,000).
Calvert contended at trial that a number of recreational and
entertainment expenses, such as golf outings, golf lessons, and
lunches, were properly treated as business expenses because
they generated business. Not being a CPA or expert in the
nuances of the Internal Revenue Code, I will give him the bene-
fit of the doubt on that matter.
Regardless, General Counsel’s Exhibits 22 and 23 show that
on a regular basis in 2006 and 2007, Calvert used AM checks to
pay for his personal American Express credit card, which he
conceded contained both personal and business charges.29
Retail Marketing & Consulting, Inc. (RMC) was another
Calvert corporation, which was in existence by 2005. He testi-
fied that it was set up with the hope that he would be able to
sell retail work of various kinds around the country; in other
words, to act as a contractor. As with so many other matters,

26 GC Exh. 5.
27 Tr. 557; GC Exh. 9 at p. 6. The next day, he testified sua sponte
that it “could have been” for remodeling work done at Southeastern
Avenue when USF was moving in as a new tenant. Tr. 574. However,
this testimony was inconsistent with his testimony that USF’s lease
started in January 2004. Tr. 543.
28 Tr. 557; GC Exh. 9 at p. 14.
29 Tr. 628–629. He further testified that he assumed the accountants
properly separated everything but then conceded that he really had “no
idea” if they did so. Tr. 629.
Calvert could not recall when RMC stopped doing business.30
RMC’s employees were Calvert, his wife, his daughter-in-
law, and his son-in-law. Occasionally, ELC performed electri-
cal work that had been awarded to RMC, which did receive
profits from ELC’s work at Kmart projects. The only written
instrument regarding the relationship between ELC and RMC
was an unsigned and undated half-page “agreement” that Cal-
vert handwrote.31 He testified that he had “no idea” when he
prepared it or even whether that was before or after ELC
closed.32 All of the jobs he subcontracted to Kmart were for
electrical work. For out out of town jobs, he utilized local elec-
trical companies. Calvert used ELC’s credit card to purchase
certain items for RMC, and then reimbursed ELC.
Calvert also established Red Lion Construction Services, of
which he is the 100-percent owner, after he closed ELC and
needed income. He envisioned picking up electrical and other
work. It continues to exist but has had no employees or work.
ELC was incorporated on August 5, 1983, ceased doing
business on about March 25, 2006, and was dissolved on March
17, 2009.33 ELC has no current employees, assets, bank ac-
counts, vehicles, or business activity. Calvert never filed for
bankruptcy for ELC. Calvert was sole owner and president, his
wife was secretary, and Passman was vice president of field
operations. However, Passman was an officer of ELC in name
only, as reflected by his following testimony. Prior to the hear-
ing, he never saw the resolution of January 1, 1993, wherein
then sole director, Calvert, elected him vice president of field
operations;34 he was unaware that he had been elected vice
president of field operations; he never attended any meetings of
ELC’s board of directors; and he was never paid any dividends.
General Counsel’s Exhibit 55 shows ELC’s employees dur-
ing the first quarter of 2006, the last quarter that it conducted
business. They included Calvert; his wife, who handled receiv-
ables and payables and performed other office functions on a
part-time basis, in both Calvert’s and ELC’s offices; his daugh-
ter Katrina; Passman; and Darlene Van Treese, who worked
with CPA Schmidt and handled payables and purchases of of-
fice supplies in ELC’s office on a full-time basis; Joshua Gra-
ham and Christine Rossittis (formerly Patterson), electricians;
and Justin Glover and Jason Lucas, electrician’s helpers. Of
the nine other listed employees, eight were electricians or elec-
trician’s helpers, and one was a truckdriver.
ELC’s last job was electrical work on a new Walmart store
in Greenwood, Indiana (Walmart Greenwood), on which ELC
employees worked through on about March 25, 2006. Prior to
ELC’s cessation of business, Calvert and Passman talked about
Passman assuming the remaining work there, which was taking
longer than originally anticipated. On about January 10, 2006,
Calvert sent letters to ELC’s customers, informing them that he
was retiring and closing ELC, and recommending that they use

30 Tr. 593.
31 GC Exh. 154 at p. 1.
32 Tr. 728. Of course, if ELC had already closed, it could not have
been party to an agreement. This illustrates Calvert’s seeming lack of
effort to answer questions as accurately as possible.
33 See GC Exh. 50.
34 GC Exh. 144 at p. 2. Linda Calvert was later made a director.
E.L.C. ELECTRIC, INC. 259

MERC for any future work.35 I note that this effectively pre-
cluded ELC from obtaining any new jobs.
General Counsel’s Exhibit 15 is a list of 18 vehicles that
ELC had as of April 8, 2002. One was assigned to Calvert for
his own use, one to his wife, and one to Passman. What ulti-
mately happened to all of them is unclear from the record. At a
June 22, 2005 meeting of the ELC board of directors, attended
by Calvert, his wife, and Attorney Blankenship, Calvert and his
wife voted that certain ELC equipment and vehicles (trailers
and bed trucks) be transferred to them as partial repayment of
their loans to ELC.36 Those item were later valued at $127,000
on about August 22, 2005, and at a directors’ meeting on Sep-
tember 2, 2005, again attended by Calvert, his wife, and Attor-
ney Blankenship, Calvert and his wife voted that such assets be
transferred to them retroactively to July 1, 2005, and the
amount that ELC owed to them be reduced by $127,000.37
Calvert testified that some of those vehicles were later titled
to AM and then sold. He was uncertain whether AM or he as
an individual held title to them before their sale and where the
proceeds went, illustrating the difficulty in separating Calvert’s
business operations from him as an individual. His conflicting
testimony makes it impossible to know when such transfer
occurred. Thus, he testified that the same equipment and vehi-
cles were still ELC’s at or shortly before its closure (on about
March 25, 2006), and he was uncertain when those items were
transferred to him—even whether it was before or after ELC
closed.38 However, at another point, he testified that he be-
lieved that those items were among those sold at an auction of
ELC assets held on about April 28, 2008, at which virtually
everything was sold.39 Calvert could give no specific reason
for why the auction was held more than 2 years after ELC
ceased operations.40 In any event, he later purchased two of the
trucks, which he currently maintains at the Southeastern Ave-
nue warehouse. He occasionally drives one of them.
On about September 6, 2005, Calvert prepared a list of the
loans that he and his wife had made to ELC, totaling slightly
over $1,231,000.41 General Counsel’s Exhibit 43 shows ELC
repayments to Calvert of over $420,000 after September 6,
2005. He testified that his loans to ELC and ELC’s repayments
went back and forth, depending on the status of ELC funds. He
equivocated on whether he has records showing all of his loans
to ELC.42 In any event, no formal business records were pre-
pared or maintained to document the loans or their repayments.
All of the documentation of the loans that he produced for
trial is contained in General Counsel’s Exhibit 41. They reflect
personal loans from his and his wife’s index account, credit line
account, home equity loan, and refinancing of Southeastern
Avenue. I note that General Counsel’s Exhibit 41 at pages 46,
47 blurs the distinction between Calvert and his family mem-
bers regarding ELC. Thus, the account from which $200,000

35 GC Exh. 139.
36 GC Exh. 41 at p. 20.
37 Id. at 1.
38 Tr. 523, 526.
39 Tr. 531. See GC Exh. 40.
40 Tr. 532.
41 GC Exh. 41 at pp. 23–24.
42 Tr. 469–470, 480 790.
was presumably loaned to ELC in April 2005 was not an ac-
count in Calvert’s or his wife’s names, but rather was in the
names of his son Kevin, daughter Katrina, and Tracy Calvert.
Calvert wrote that he deposited all of the $230,000 from his
home equity line into his account “set up at 5th 3rd Bank in my
son’s name. From this account I wrote (3) check [sic] to ELC
(loaned money).” (Emphasis in original.) Calvert was unable to
give a reason for why he did this.43
Calvert admitted that he used ELC checks to pay for his and
his wife’s credit cards, on which they charged both personal
and business expenses.44 Thus, Calvert used ELC checks to
pay his American Express credit card, which contained both
personal and business expenses, in 2003, 2004, 2005, and 2006,
with one payment as high as $10,344.07 in October 2005, and
the last payment ($3,301.73) in March 2006.45 He also used
ELC checks to pay for his Citibank credit card charges, which
included personal as well as business expenses.46 Calvert fur-
nished no records showing that he ever reimbursed ELC for
what it paid for his and his wife’s personal charges. In March
2006, Calvert wrote two ELC checks to pay Katrina Stringer
for “some money that I owed her.”47 He did not offer an expla-
nation of how that repayment related to ELC.
Calvert claimed that Schmidt reviewed the charges on a
monthly basis and differentiated personal and business expens-
es, but she contradicted this assertion, testifying that she never
separated any of Calvert’s personal expenses from ELC’s busi-
ness expenses in ELC’s books. Instead, her involvement was
limited to answering any questions from ELC’s bookkeepers,
the last of whom for many years was Van Treese. Schmidt
could not recall any specific questions. She emphasized that
she did not prepare audits per se or financial statements in the
legal sense for ELC; rather, she prepared journal entries or non-
disclosure compilations based on information that ELC provid-
ed to her.
On one occasion, in December 2005, ELC paid a $5,262.48
bill to a heating and air-conditioning company for work it had
performed for Katrina Springer. Calvert testified that he ad-
vanced the money and had ELC pay him “as partial repayment”
of the loans he had made to ELC.48
ELC and Calvert as an individual, were parties to a lease ef-
fective January 1, 2000, through December 31, 2010, with a
yearly rental of $72,187.68, payable monthly.49 ELC was to
pay all of the utilities for the building, which has common me-
ters. On one occasion, in December 2004, Calvert paid his
Southeastern Avenue monthly mortgage payment of $2,015.64
with an ELC check that he made out to himself. 50 Calvert testi-
fied that ELC stopped making rent payments in 2004 or 2005.
Calvert’s son Kevin was a partner in USF Worldwide (USF),
whose lease at Southeastern Avenue started on January 2004 or
approximately May 2005, depending on which portion of Cal-

43 Tr. 485.
44 Tr. 447, 450, 667, 836–837.
45 See GC Exh. 176.
46 See GC Exhs. 63–65 (2003–2006 statements).
47 Tr. 842; see GC Exh. 208 at p. 18.
48 Tr. 538; GC Exh. 43 at p. 15.
49 GC Exh. 45.
50 GC Exh. 47 at pp. 5–7.
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

vert’s testimony is credited. USF was delinquent in rent pay-
ments at the time it vacated the premises, and Calvert has never
sought to collect any arrearages or penalties. However, Kevin
Calvert is still a tenant, being half-owner of the company (not
USF) that now leases Southeastern Avenue, including ELC’s
old space, and pays $7000 a month rent. In fact, Calvert asked
MERC to move out because his son’s company needed more
space. Kevin Calvert has also had a company named Calvert
Communications, but the record does not reflect if this compa-
ny is Calvert’s tenant.
MERC
Passman testified at the underlying ULP proceeding in 2003
as ELC’s vice president of field operations. By letter of Febru-
ary 7, 2006, sent to MERC in care of Passman, the Region stat-
ed that it had information that MERC was contemplating oper-
ating as a successor to ELC and that ELC was a party-
respondent to litigation with the NLRB. The letter went on to
inform him of the outstanding compliance specification and
notice of hearing regarding ELC, enclosed a copy thereof, and
advised him that “the potential backpay liability at issue is sub-
stantial.”51
In late 2005, Calvert told Passman that ELC was going to
close and that Passman could either work for someone else or
start his own company; if Passman chose the latter, Calvert
would help him out by loaning him some money “to get start-
ed.”52 In approximately October 2005, shortly after their con-
versation, Passman decided to start his own business. He dis-
cussed business names with Calvert but decided on MERC on
his own. As reflected by General Counsel’s Exhibit 135, Cal-
vert advised Passman on how to set up the new business.
Passman incorporated Midwest Electric & Retail Contrac-
tors, Inc. on December 2, 2005, when he was still employed by
ELC, and he conducts business under the name of MERC,
Inc.53 He is the sole owner and officer. He is on salary, as is
his wife Rose, who performs administrative duties on a full-
time basis. In addition to drawing a salary, Passman has re-
ceived dividends from MERC, most in the amounts of $1000,
$2000, or $3000.54 Those dividends declined to two in 2009
and three in 2010, as a result of dwindling revenues. He has
also made personal loans to MERC and then reimbursed him-
self.
MERC prior to ELC’s Closure on about March 25, 2006
Passman did not do any paid advertising for MERC when he
began operations. Rather, he contacted industry acquaintances
that he had made through ELC, and by letter or phone commu-
nicated to vendors or customers that he had formed MERC. As
earlier noted, Calvert sent out letters to customers in January
2006, informing them that ELC was going out of business and
recommending MERC.
While he was still an ELC employee, Passman on February
16, 2006, entered into a subcontract agreement between MERC

51 GC Exh. 82 at 1. Passman responded by letter of February 14,
2006. Id. at 2.
52 Tr. 227.
53 See GC Exh. 75.
54 See GC Exh. 124.
and Steiner Construction Services, LLC.55 He had prepared the
underlying bid using ELC office equipment. In February 2006,
MERC did a job for USF.56 Passman made a proposal that
MERC continue and finish ELC’s Walmart Greenwood work
but was not awarded the job.
Calvert and Passman entered into a 10-year lease agreement
on January 1, 2006, Calvert on behalf of AM and Passman on
behalf of MERC.57 The monthly rent of $10,000 included utili-
ties, with late payments to be charged a 5-percent late fee. At
the time, MERC had no revenues, and ELC was still in opera-
tion. Passman leased two of ELC’s office spaces and 10,000
square feet, including “furnished offices, fax machine, copy
machine, computers, printers, warehouse, truck dock, private
rest rooms, break room, and 2 acres of fenced area for construc-
tion equipment.” No furniture or equipment list was made part
of the lease. During the first quarter of 2006, both ELC and
MERC operated out of the same address. Passman purchased
his own supplies but used ELC’s equipment and furniture.
The ELC warehouse contained electrical and other materials,
as well as various vehicles. The lease agreement did not say
anything about MERC’s use of ELC’s vehicles or stored mate-
rials. According to Passman, those items were subject to “just
kind of a gentlemen’s agreement . . . ”58 that Calvert would let
Passman use them on a temporary basis without charge. Pass-
man used the ladders in the warehouse, but not the lifts. Initial-
ly, Katrina Stringer served as MERC’s notary, but Passman
then utilized his branch bank for such service.
As General Counsel’s Exhibit 77 reflects, Passman first used
electrical employees in mid-February 2006. They did electrical
service calls. In February and March 2006, he employed five
individuals who had worked for ELC: Beck, Glover, Graham,
Lucas, and Rossittis. In February and March 2006, Graham
and, possibly Rossittis, worked for both ELC and MERC simul-
taneously.
Passman purchased the rights to use certain software specific
to the industry that ELC had used, first paying for it in January
2006, when he was still an ELC employee and ELC was still in
operation and had employees.
MERC after ELC’s Closure
MERC occupied two of the six or seven ELC office spaces,
which were on the right side of the building. All of ELC’s
office equipment was in place when ELC closed, and Passman
used the same computer and software, printer, photocopier,
desk, and chairs. Later, Calvert auctioned off the contents of
the other spaces, and Passman paid him for MERC’s office
equipment.
Passman obtained a new phone number and fax number for
MERC but continued using the ELC equipment. He also con-
tinued to have possession of the cell phone that ELC had pro-
vided to him as an ELC employee. The cell phone number
remained the same, but Passman paid for it after ELC closed.
Calvert and Passman orally agreed that Passman could continue

55 See GC Exh. 89.
56 See GC Exh. 88, which reflects that MERC continued to do work
for USF after ELC closed.
57 GC Exh.11.
58 Tr. 151.
E.L.C. ELECTRIC, INC. 261

to use his ELC American Express card, paying for the charges
he incurred, until he was able to establish his own account. No
fixed time limit was set. Passman was still using the card for
MERC business at least into mid-2007.59 At all times since he
started MERC, Passman has used National City Bank (later
PNC) for all of his banking needs, including a business line of
credit, whereas Calvert had his accounts at Fifth Third Bank.
After ELC had closed, Passman took ELC materials from the
warehouse for MERC’s use. He sent payment to AM, based on
his determination of the prices of various items from talking
with suppliers. General Counsel’s Exhibit 19(b) at page 5 is a
list of equipment that ELC used in early 2006, some of which
MERC used and Passman later purchased. Other items were
sold by auction in 2008.
ELC had 18 vehicles in early 2006.60 Two were specifically
assigned to Calvert, and one to Passman. After ELC closed,
MERC used two of the trucks and, occasionally, two of the
other vehicles. MERC did not pay for their use. Calvert and
Passman orally agreed that Passman could use the ELC vehi-
cles without payment until he was able to obtain his own. In a
phone conversation prior to February 2, 2006, Calvert and
Passman agreed that MERC would start paying insurance on
the vehicles, but the agreement was never reduced to writing.
Passman started paying such insurance on April 1, 2006.61 On
August 13, 2007, Passman purchased the two trucks and their
accessories from Calvert for $16,000.62 MERC currently uses
three vehicles, two of which were among those ELC owned in
early 2006.
MERC, payroll records for the period ending December 3,
2007, list Graham and Rossittis, as well as Zachary Culp and
Brian Ferguson, electrical helpers, who had not worked for
MERC.63 In 2007, MERC employed two other employees to
perform electrical work, neither of whom had worked for ELC
(Michael McKinney and Jason Moss).
Graham and Rossittis continue to work for MERC as electri-
cians. They are MERC’s only current employees, excluding
Passman and his wife. Until recently, MERC also employed
Passman’s son, Devin, on a part-time basis.
For contracted temporary labor, MERC used All Trades for a
long period of time on a regular basis,64 as well as National
Construction; at present, it uses Commercial Trades Service.
ELC “frequently” used All Trades Staffing, Inc. (All Trades)
and National Construction Work Force for such temporary
labor.65
MERC’s main suppliers for electrical materials have been
All-Phase Electric, Central Supply, and Allied Wholesale; and
for rental equipment, United Rentals. ELC also used All-Phase
Electric and United Rentals.
In April 2006, MERC performed a job for Ryder Truck.66
ELC had made a proposal for the work in July 2005, but the

59 See GC Exh. 17 at p. 54.
60 See GC Exh. 15 at p. 1.
61 See GC Exh. 95 at p. 3.
62 GC Exh. 46.
63 See GC Exh. 77 at p. 4.
64 See GC. Exh. 111.
65 Tr. 428. See GC Exh. 57 (All Trades records).
66 See GC Exh. 90 at p. 16.
scope of the job later changed. Another early MERC job was
for CJM Contractors,67 for which ELC had not performed
work. MERC again performed work for CJM in February
2008.
ELC had performed a considerable amount of work for K-
Mart, which MERC continued to do until K-Mart purchased
Sears, which then did most of K-Mart’s electrical work in-
house. For K-Mart jobs, MERC bid on and performed different
kinds of work, including painting, floor repair, and electrical.
After ELC closed, MERC did ELC’s repair warranty work and
then billed AM. After about a year in business, MERC started
doing garage door work, although nothing in the record shows
its volume.
Passman was often past due on monthly rent payments, but
Calvert never charged him a late fee. Thus, Passman made no
rent payments for at least the first few months, and MERC was
never able to pay in full the lease payments as per the lease
agreement. At some point prior to September 2008, in light of
Passman’s nonpayment of rent, Calvert and Passman orally
agreed that Passman would reimburse Calvert for finance
charges on his personal credit line. At another point, Passman
told Calvert that he could no longer make lease payments, Cal-
vert replied that he could stay, and Passman offered to contrib-
ute $500 a month toward utilities. Calvert has never sought to
collect the unpaid rent or delinquency fees.
General Counsel’s Exhibit 10 reflects a number of loans
from Calvert to Passman, totaling $157,500. After the first
loan, the normal practice was for Passman to let Calvert know
when he needed additional money for MERC, Calvert would let
him know when he had the money, and Calvert would then
meet him at the office to sign. All of the promissory notes were
due a year from their execution and provided for 8-percent
interest until maturity.
The first, for $5000, was dated November 30, 2005. Pass-
man testified that his loan was made “to help get my business
started”68—directly contradicting Calvert’s unbelievable testi-
mony that all of the loans were personal to Passman and that
Calvert did not know they were for MERC.
Passman signed subsequent promissory notes, totaling
$152,500, as follows:

January 5, 2006 – $5,000
March 2 – $10,000
March 29 – $10,000
June 12 – $7,500
July 11 – $10,000
September 22 – $10,000
November 7 – $40,000
December 14 – $15,000
December 20 – $15,000
May 14, 2007 – $30,000

When MERC made revenues, Passman repaid Calvert. He
ultimately paid all of the promissory notes back on or before
their due dates. However, Passman never paid any interest on
them, even though they provided for such.

67 See GC Exh. 92.
68 Tr. 183.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

As of when Passman moved out of the building, in about Ju-
ly 2010, Calvert maintained an office on the left side of the
building, as did Katrina Stringer, and Kevin Calvert had an
office on the second floor and operated as USF. Passman now
operates MERC out of his residence.
Conclusions
Calvert, ELC, and AM
From the above, certain conclusions are abundantly clear,
taking into account Calvert’s lack of reliability as a witness and
his incomplete and informal recordkeeping. Calvert did not
establish that he had a bona fide business reason for deciding to
close ELC at the time that he did so. He testified vaguely that it
was because ELC was losing money. However, he provided no
documentation that ELC was doing worse in late 2005 or early
2006 than in prior years and, indeed, he was uncertain when he
made the decision to close ELC, testifying that it might have
been in 2004, in which case one has to wonder why he waited
over a year to initiate the process of going out of business.
Moreover, Calvert took affirmative actions in early 2006 to
foreclose ELC from obtaining further work, as reflected in his
letters to existing customers in January 2006, telling them that
he was going out of business and recommending MERC for
their future jobs.
Calvert had sole and total control of ELC and AM, which he
operated at his unfettered discretion in a freewheeling manner.
He transferred funds from company to company and between
his companies and himself and his family members (wife,
daughter, and son), to the point where distinctions between his
corporate and personal accounts were for all practical purposes
meaningless. ELC (and AM, as well, based on this record)
were corporations in name only, with no functional existence
separate and apart from Calvert. This is best reflected by the
fact that Passman was never even informed that he was elected
vice president of ELC in 1993.
Because Calvert was not a credible witness and his “busi-
ness” records were so informal and incomplete, knowing what
happened to all of the assets ELC had before Calvert began
implementing a phase out of its operations is impossible.
Clearly, however, a certain portion of them has gone to Calvert
and his family members: from the auction in 2008, repayment
of Calvert’s loans, transfer of Southeastern Avenue from ELC
to Calvert and his wife, and checks to Kevin Calvert and Katri-
na Stringer. I note again that none of Calvert’s family members
testified and therefore failed to rebut what appears to have been
disbursements of ELC funds to them unrelated to ELC’s busi-
ness operations. In sum, an indeterminate but apparently sub-
stantially amount of ELC’s assets remain with Calvert and his
family.
ELC and AM as a Single Employer
In determining whether two nominally separate employing
entities constitute a single employer, the Board examines four
factors: (1) common ownership, (2) common management, (3)
interrelationship of operations, and (4) common control of labor
relations. No single factor is controlling, and all not need to be
present. Rather, single-employer status depends on all of the
circumstances and is based ultimately on the absence of an
arm’s-length relationship between seemingly independent com-
panies. Mercy Hospital of Buffalo, 336 NLRB 1282, 1283–
1284 (2001); Dow Chemical Co., 326 NLRB 288, 288 (1998).
Based on my above-factual findings, I conclude that all four
criteria have been met and that ELC and AM were inseparable
from the person of Calvert. Therefore, I conclude that ELC and
AM constituted a single employer.
Calvert’s Personal Liability
The Board will pierce the corporate veil and impose personal
liability for backpay on a now defunct corporation’s own-
ers/officers when (1) there is such unity of interest and lack of
respect given to the separate identify of the corporation by its
shareholders, that the personalities and assets of the corporation
and the individuals are indistinct; and (2) adherence to the cor-
porate form would sanction a fraud, promote injustice, or lead
to an evasion of legal obligations. A. J. Mechanical, 352
NLRB 874 (2008), enfd. mem. sub nom. Greene v. NLRB, 321
Fed.App. 816 (11th Cir. 2009); White Oak Coal Co., 318
NLRB 732, 732 (1995), enfd. 81 F.3d 150 (4th Cir. 1996).
When assessing the first prong, the Board considers (1) the
degree to which the corporate legal formalities have been main-
tained, and (2) the degree to which individual and corporate
funds, other assets, and affairs have been comingled. White
Oak Coal, id. at 735. Commingling, treatment of corporate
assets as one’s own, and undercapitalization often constitute the
most serious forms of abuse of the corporate entity. D. L.
Baker, Inc., 351 NLRB 515, 522 (2007).
In finding piercing of the corporate veil appropriate, the
Board in White Oak Coal concluded: (318 NLRB at 735):

In short, the Deels failed to maintain an arm’s-length relation-
ship between themselves and the related corporate entities un-
der their control. In these circumstances, we find such unity
of interest, and lack of respect given by the Deels to the sepa-
rate corporate entities, that the personalities and assets of these
corporations and the Deels effectively have been blurred.

The Board further concluded that that “[t]he natural, foreseea-
ble, and inevitable consequence” of the Deels’ conduct was
“the diminished ability of the corporate alter egos to satisfy [the
Respondent’s] statutory remedial obligations.” Ibid.
Such conclusions are warranted here. Both ELC and AM
had no practical existence outside of the person of Calvert, who
controlled their operations at will and used them for both busi-
ness and personal purposes, as he himself admitted. Thus, the
first prong of the test is satisfied. As for the second prong, I am
convinced from this record that Calvert has sought to evade his
legal obligations to pay the backpay owed to the 16 discrimi-
natees. He effectively sabotaged ELC’s business, funneled an
apparently significant portion of its assets into other enterprises
and/or his or his family members’ personal funds, and effec-
tively established MERC and kept it operating. Allowing him
to shirk his backpay obligation by such conduct would work a
manifest injustice and be untenable.
Accordingly, I conclude that the corporate veils of ELC and
AM should be pierced and Calvert be held personally liable for
the backpay.
E.L.C. ELECTRIC, INC. 263

MERC
As ELC’s Alter Ego
The Board generally will find an alter-ego relationship when
two entities have substantially identical management, business
purposes, operations, equipment, customers, supervision, and
ownership. McCarthy Construction, 355 NLRB 50, 51 (2010).
Not all of these indicia need to be present, and on one of them
is a prerequisite to finding an alter-ego relationship. Ibid. Un-
lawful motivation is not a necessary element of an alter-ego
finding, but the Board does consider whether the purpose be-
hind the creation of the suspected alter ego was to evade re-
sponsibilities under the Act. Ibid; Diverse Steel, Inc., 349
NLRB 946, 946 (2007); Fallon-Williams, Inc., 336 NLRB 602
(2001). I note that the Board has not hesitated to find alter-ego
status when the owners were different but in a close familial
relationship. ADF, Inc., 355 NLRB 81, 83 (2010); Fallon-
Williams, Inc., ibid at 602.
A variety of factors support an alter-ego finding, the follow-
ing in particular. First, MERC’s primary type of work has been
electrical, as was ELC’s. In this respect, MERC’s work force,
aside from Passman’s wife and, possibly, his son, has at all
times consisted of employees classified either as electricians or
electrical helpers. Second, a majority of those employees have
continuously been former ELC employees. Thus, all of
MERC’s first five employees in February and March 2006,
including Graham and Rossittis, still worked or had worked for
ELC, and Graham and Rossittis are MERC’s only current em-
ployees, aside from Passman’s wife. Third, at least at the be-
ginning of MERC’s operations, much of its work represented a
continuation of ELC’s work: MERC performed work for K-
Mart, one of ELC’s major customers, until K-Mart’s purchase
by Sears, and also did ELC’s repair warranty work after ELC
closed. Finally, MERC operated out of the same address as
ELC until about July 2010 and used some of the same office
and warehouse equipment and some of the same vehicles, ei-
ther on a paid or unpaid basis.
As far as ownership, management, and supervision, Calvert
has had no direct involvement in MERC. However, further
analysis is required to determine how pivotal a role he played in
MERC’s establishment and operations.
Various facts establish that Calvert and Passman did not
have an arm’s-length business relationship when it came to
MERC and that Calvert rendered him a degree of assistance
that went far beyond the pale of normal business practice. Cal-
vert allowed Passman to use ELC’s vehicles without charge
until Passman could afford to pay. Many of their agreements,
for example, Passman’s use of certain ELC’s equipment, and
materials, were merely verbal and never reduced to writing.
Passman never paid Calvert the interest specified in the promis-
sory notes for the loans totaling $157,500 that Calvert gave
him. Calvert allowed Passman to remain a tenant at Southeast-
ern Avenue even when he was far behind in his $10,000 month-
ly rent payments, and Calvert never sought to collect back rent.
In sum, Calvert rendered considerable financial and other assis-
tance to Passman without which MERC would never have been
established or been able to survive as a viable business. The
only reason that Calvert advanced on the record for his extraor-
dinary largesse, in particular, his loans to Passman, was that
Passman was a “friend.” Especially when coming from a busi-
nessperson such as Calvert, who has had numerous companies
over a period of many years, such an explanation wholly lacks
credibility. The only logical explanation for Calvert’s generosi-
ty toward Passman and MERC must be that it was part and
parcel of his strategy to avoid financial liability for the ULPs
that he committed as ELC’s owner. I need not speculate on
whether Passman was privy to this motive because the answer
makes no difference as far as Calvert’s motivation for sponsor-
ing MERC.
I conclude that regardless of Passman’s direct ownership and
management of MERC, MERC’s establishment and survival
depended on Calvert, who used MERC as a means of evading
ELC’s obligations under the Act. I consider this another factor
supporting a finding of alter ego.
Accordingly, I conclude that MERC is an alter ego of ELC.
Golden State Successor
To be a successor employer, the similarities between the two
operations must manifest continuity between the enterprises,
and a majority of its employees in an appropriate bargaining
unit must be former bargaining unit employees of the predeces-
sor. NLRB v. Burns Security Services, 406 U.S. 272, 280–281,
281 fn. 4 (1972). A number of factors must be examined:
whether the business of both employers is essentially the same;
whether the employees of the news company are doing the
same jobs in the same working conditions under the same su-
pervisors; and whether the new entity has the same production
process, produces the same products, and basically has the
same body of customers. Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 43 (1987); Aircraft Magnesium, 265 NLRB 1344,
1345 (1982), enfd. 730 F.2d 767 (9th Cir. 1984). See also
Shares, Inc. v. NLRB, 433 F.3d 939, 943 (7th Cir. 2006);
Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 289 (7th Cir.
2001). To “a substantial extent,” the applicability of Burns
turns on whether the new employer made a conscious decision
to maintain generally the same business and to hire a majority
of its employees from the predecessor. Fall River Dyeing,
supra at 40–41; Francisco Foods, supra at 288.
As the Seventh Circuit Court of Appeals has held, a finding
of continuity of operation does not require that the old and new
operations be identical; rather, the test is whether employees
“perform[ ] largely the same tasks, under comparable condi-
tions, and under a number of the same supervisors.” Shares,
Inc., supra at 944, citing Bloedorn at 289. Moreover, the old
and new jobs must be compared from the employees’ perspec-
tive. Ibid.
Based on the facts that I set out under my alter-ego analysis
above, and Passman’s continuity as a supervisor as per Shares,
Inc., I conclude that MERC was a successor employer to ELC.
In Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973),
the Supreme Court held that a successor employer under Burns
can be charged with notice of an outstanding Board order
against his predecessor and held liable for the unremedied
ULPs. See also S. Bent & Bros., 336 NLRB 788, 790 (2001).
The burden is on the successor to establish that he did not have
notice thereof. Bent, supra at 790, Robert G. Andrew, Inc., 300
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

NLRB 444, 444 (1990); NLRB v. Jarm Enterprises, 785 F.2d
195, 199 (7th Cir. 1986).
Here, there is no question that Passman had actual notice of
the Board’s Order against ELC, from the Regional Office’s
February 7, 2006 letter and its attachments, which expressly
warned of potentially substantial backpay liability. This was
prior to ELC’s closure and while Passman was simultaneously
an ELC employee and beginning operations as MERC.
Accordingly, I further conclude that MERC is a Golden State
successor to ELC.
Therefore, my ultimate conclusion is that all of the named
respondents are subject to liability for ELC’s ULPs. In light of
this determination, I need not decide the General Counsel’s
further contention that ELC and MERC constitute a single em-
ployer.
ORDER
I Hereby Order that E.L.C. Electric, Inc.; its alter ego and
successor, Midwest Electric & Retail Contractors, Inc., d/b/a
Merc, Inc.; its alter ego, Asset Management Partners, Inc.; and
Edward L. Calvert, an individual, their officers, agents, succes-
sors, and assigns, shall jointly and severally pay the individuals
named below the amounts following their names (computed
through August 31, 2011), plus interest accrued to the date of
payment in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withholdings
required by Federal and State laws.69

Benjamin Adair $23,517
Matthew Aldrich 9,715
Todd Bailey 2,383
Ryan Chambers 19,231
Gregory Frazier 6,610
Timothy Grow 46,439
Mikalis Grunde 11,285
Ronald Hamilton 90,508
Mark Herche 3,049
Benjamin Mullins 3,049
Rory Navratil 1,399
Bruce Sanderson 73,823
Jonathan Trinosky 57,694
Jonathan White 18,055
Troy Whitaker 67,621
DavidWilson 3,049
Total $437,427

69 Although the General Counsel requests compound interest (GC
Br. at 100), the Board has determined that such remedy is not applica-
ble to cases that were in the compliance stage prior to the issuance of
Kentucky River Medical Center, 356 NLRB No. 8 (2010. Rome Elec-
trical Systems, Inc., 356 NLRB No. 38, slip op. at 1 fn. 2 (2010).