Good Life Beverage Co.

National Labor Relations Board - Board Decisions

Oct 15, 1993

312 N.L.R.B. 1060 (N.L.R.B. 1993)

1060
312 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 The unilateral implementation and unlawful lockout findings are
premised on the finding of the unlawful refusal to furnish informa-
tion. Given our finding that Silver Brothers did not refuse to furnish
the information, we shall also reverse and dismiss the unilateral im-
plementation and unlawful lockout allegations. Further, we find it
unnecessary to pass on the single-employer finding or the joint and
several liability findings.
4 All subsequent dates refer to 1988 unless specified otherwise.
5 The consolidated statement contained a single line-item of
$11,408,264 for ‘‘[p]rincipal payments on note to former stockhold-
ers, long-term debt, capital lease and revolving line of credit.’’
Silver Brothers Co., Inc. d/b/a The Good Life Bev-
erage Company and Victor W. Dahar, Trustee-
in-Bankruptcy and Chauffeurs, Teamsters &
Helpers Local Union No. 633 a/w International
Brotherhood of Teamsters, AFL–CIO1
Hospitality Holdings Corporation, debtor-in-posses-
sion; and David Murray; and Erin Food Serv-
ices, Inc. and Michael Weingarten, Trustee-in-
Bankruptcy and Erin Realty Company, Debt-
or-in-Possession and Chauffeurs, Teamsters &
Helpers Local Union No. 633 a/w International
Brotherhood of Teamsters, AFL–CIO. Cases 1–
CA–25521 and 1–CA–25864
October 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 11, 1991, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel, the Charging Party, and Respondents Hospi-
tality Holdings Corporation, David Murray, and Erin
Realty Company filed exceptions and supporting
briefs; and the General Counsel and the Respondents
filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions only to the extent con-
sistent with this decision.
The complaint alleges that Respondent Silver Broth-
ers violated the Act by reneging on an agreement to
meet at a certain location, by refusing to provide finan-
cial information, by unilaterally implementing a final
contract proposal absent an impasse in negotiations,
and by locking out employees.
The judge found that although Silver Brothers re-
treated from its agreement to meet for bargaining at a
union building, the action did not constitute an unfair
labor practice because Silver Brothers made genuine
efforts to find a mutually acceptable meeting place.
We agree for the reasons stated by the judge.
The judge further found that Silver Brothers unlaw-
fully refused to provide financial information support-
ing the contention that its financial condition required
contract concessions, that consequently no legally cog-
nizable impasse in bargaining occurred, and that there-
fore Silver Brothers’ unilateral implementation of its
final contract proposal and the lockout were unlawful.
The judge also found that the Respondents constituted
a single employer, but that David Murray as an indi-
vidual and David Murray d/b/a Erin Realty were not
jointly and severally liable for the unfair labor prac-
tices. For the reasons that follow, we find that the Re-
spondent never reached the point of refusing to provide
the financial data in question because bargaining over
conditions that might accommodate the Respondent’s
expressed confidentiality concerns was thwarted by the
Union. Hence, the Respondent did not unlawfully
refuse to provide the information. Because the other
unfair labor practices found by the judge were depend-
ent on the information violation, we dismiss the com-
plaint.3
I. FACTUAL FINDINGS RELATED TO THE
INFORMATION REQUEST AND THE RESPONDENT’S
RESPONSE
Prior to the onset of negotiations, Silver Brothers’
labor counsel, Herbert Bennett, wrote to Union Busi-
ness Agent Thomas Noonan advising that the Em-
ployer would not extend the terms of the existing con-
tract beyond the expiration date because of its ‘‘ex-
tremely critical financial condition.’’ At the first bar-
gaining session on March 4, 1988,4 Silver Brothers
gave a verbal and slide presentation demonstrating its
precarious financial condition. Bennett told Noonan
that Union auditors could review the data supporting
the presentation.
On March 29, the union auditors met with Silver
Brothers’ accounting firm and were shown a draft of
an audited consolidated financial statement for Silver
Brothers and subsidiaries for 1987. To determine
whether funds were being siphoned off or whether
there was a legitimate financial problem, the union
auditors requested the following further specific infor-
mation: (1) an analysis of Silver Brothers’ interest ex-
pense;5 (2) a breakdown of salaries by officers, office,
selling and delivery, and other; (3) a summary of the
cost of goods sold; (4) a breakdown of general and ad-
ministrative expenses, delivery and selling expenses,
accounts payable and accrued expenses, and accrued
compensation (to be specified in the same manner as
salaries); and (5) the 1986 financial statements for Sil-
1061GOOD LIFE BEVERAGE CO.
6 The confidentiality concern referred to the April 25 newspaper
article.
7 The judge also stated that the information was gathered within
2 or 3 days of the March 29 request.
8 Even though Silver Brothers in fact did reveal some financial in-
formation to the union auditors, it did not by doing so waive con-
fidentiality concerns about the further information requested.
ver Brothers and its subsidiaries. Silver Brothers’ con-
troller promised to get them further information. Al-
though the union auditors believed that the data would
be sent to them directly, Silver Brothers’ vice president
Mead testified that this information was to be fur-
nished at the next negotiation session.
On March 31, Noonan learned at the outset of a ne-
gotiating session that Bennett was backing away from
his commitment to meet at a Union building for nego-
tiations. Bennett proposed numerous alternative neutral
sites, and even proposed a bargaining session to dis-
cuss the bargaining site issue. The Union refused to
meet further without a guarantee of some future meet-
ing at a union location. The parties never met again
because Noonan refused to meet anywhere but at a
union building.
On April 23, in a newspaper article quoting Bennett
regarding the Company’s financial status, Bennett at-
tributed the Employer’s large losses to the union pen-
sion fund. On April 25, in a newspaper article quoting
Noonan regarding the same subject, Noonan revealed
that Silver Brothers had paid several hundred thousand
dollars to Murray’s other companies.
Following the cessation of bargaining, Noonan re-
ceived a letter from one of the union auditors specify-
ing financial information that had not yet been re-
ceived from Silver Brothers’ accountants. On May 3,
Noonan sent Bennett a letter requesting the specific fi-
nancial documentation listed above. On May 6, Ben-
nett sent Noonan a letter stating:
With regard to your letter of May 3, 1988 re-
questing further financial information, please be
advised that I will be happy to discuss your re-
quest with you at our next bargaining session. At
this time I am concerned that you did not keep
confidential the financial information we pre-
viously disclosed to you, and I am unaware of
any legitimate need for you to have further finan-
cial information from the company.6
The judge found that the information requested by
the Union on March 29 and in Noonan’s May 3 letter
was relevant to the Union’s duty to bargain collec-
tively. The judge stated that Silver Brothers should
have turned over the information no later than mid-
April when it was in Vice President Jack Mead’s pos-
session,7 in accordance with the March 29 request. The
judge also found that Bennett’s May 6 letter ‘‘re-
jected’’ the request for information. Accordingly, the
judge concluded Silver Brothers bargained in bad faith
by withholding the information.
II. ANALYSIS
Even assuming the information requested was rel-
evant to the Union’s performance of its duties as col-
lective-bargaining representative, Silver Brothers was
not automatically obligated to furnish the information
if it had substantial and legitimate confidentiality con-
cerns regarding that information. The Board has held:
[I]n dealing with union requests for relevant but
assertedly confidential information, we are re-
quired to balance a union’s need for such infor-
mation against any ‘‘legitimate and substantial’’
confidentiality interests established by the em-
ployer, accommodating the parties’ respective in-
terests insofar as feasible in determining the em-
ployer’s duty to supply the information. The ac-
commodation appropriate in each individual case
would necessarily depend upon its particular cir-
cumstances.
Minnesota Mining & Mfg. Co., 261 NLRB 27, 30
(1982), enfd. sub nom Oil Workers v. NLRB, 711 F.2d
348 (D.C. Cir. 1983). The Board has also held that an
employer is entitled to bargain with a union to resolve
confidentiality concerns. Id. at 32.
For the following reasons, we find that the requested
information raised confidentiality concerns that justi-
fied Silver Brothers’ delay in immediately turning over
the information to the Union. We further find that Sil-
ver Brothers was entitled to discuss the confidentiality
concerns with the Union before turning over the infor-
mation.8 Finally, we find that it was the Union’s tac-
tics after the dispute over a bargaining locale occurred
that prevented bargaining over issues including the in-
formation request.
Union requests for financial information frequently
raise difficult confidentiality questions. See, e.g., Du-
buque Packing Co., 303 NLRB 386 fn. 26 (1991). In-
deed, there seems to be no question that the additional
information the union auditors sought on March 29
was confidential information. Moreover, the auditors
requested a great deal of detail. Given the confidential
and detailed nature of the information sought, we find
that there were substantial and legitimate confidential-
ity concerns regarding that information.
The parties, however, never discussed the Respond-
ent’s confidentiality concerns, because only 2 days
after the union auditors’ detailed request, the parties
were unable to agree on a location for further bargain-
ing. The judge found that Silver Brothers made ‘‘ar-
dent efforts to bring the Union to the bargaining table’’
following the March 31 dispute over the bargaining
session locale. The judge further found that Noonan’s
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Our dissenting colleague concedes that a 5-1/2-week delay in re-
sponding to an information request is ‘‘not necessarily . . . exces-
sive.’’ Indeed, it is well established that the duty to furnish requested
information cannot be defined in terms of a per se rule. What is re-
quired is a reasonable good-faith effort to respond to the request as
promptly as circumstances allow. See, e.g., E. I. Du Pont & Co.,
291 NLRB 759 fn. 1 (1988).
Although our dissenting colleague states that he agrees with the
judge’s decision, he accords little, if any, weight to the judge’s find-
ing that it was the Union’s refusal to meet at a neutral location that
prevented further bargaining subsequent to the Union’s March 29 in-
formation request. In light of the background set forth above of will-
ing cooperation on the Respondent’s part and improper tactics on the
Union’s part, our dissenting colleague’s thesis that the Respondent
unreasonably delayed in responding to the March 29 request has ten-
uous support in the record. We simply do not know what position
the Respondent would have taken in mid-April with respect to the
information request had the Union agreed to meet. We are unwilling
to find that the Respondent acted unreasonably and in bad faith at
that time when it was attempting to arrange further negotiations and
the Union was responsible for obstructing such attempts.
Finally, our dissenting colleague’s reliance on the Respondent’s
implementation of its final offer and lockout of its employees is mis-
placed. Prior to taking these actions, the Respondent properly noti-
fied the Union of its revised contract proposal and advised that if
the Union refused to meet at a neutral location, the proposal would
be implemented as the Respondent’s final offer.
10 Bennett also mentioned his concern that the Union had failed to
keep information it had received confidential. The judge described
this concern as disingenuous. Given our findings above regarding the
nature of the information sought, we do not agree with the judge’s
assessment.
11 In light of our finding that there was no unfair labor practice,
we find it unnecessary to consider the judge’s finding that the infor-
mation was necessary and relevant to the Union’s collective-bargain-
ing duties.
insistence on the union site for bargaining ‘‘suggests
that he, rather than [Silver Brothers], was using the
meeting place issue as a red herring to avoid resuming
negotiations.’’ Finally, as the judge found, by the time
Silver Brothers had prepared the requested information,
‘‘the imbroglio over the meeting place had begun.’’
Given these circumstances, we find that Silver
Brothers did not withhold or delay providing requested
information in violation of the Act. The above prece-
dent makes clear that Silver Brothers was not auto-
matically obligated to furnish the requested informa-
tion forthwith, but instead was entitled to discuss con-
fidentiality concerns regarding the information request
with the Union so as to try to develop mutually agree-
able protective conditions for its disclosure to the
Union. While these concerns were still outstanding and
even before the information was prepared, the ‘‘imbro-
glio’’ over a bargaining site location occurred and the
Union’s actions prevented the parties from meeting to
bargain. Given Silver Brothers’ right to discuss the in-
formation request with the Union, its indication of
willingness to meet for such discussions, and the
Union’s actions preventing the parties from meeting to
deal with the confidentiality concerns, we find that Sil-
ver Brothers did not unlawfully withhold or delay pro-
viding the requested information. See Dallas & Mavis
Forwarding Co., 291 NLRB 980, 984 (1988).9
The judge found that Bennett’s May 6 letter was a
rejection of the Union’s information request. We do
not agree. Although Bennett’s letter stated his belief
that the Union might not be entitled to the informa-
tion,10 he offered to discuss the information request.
As we stated above, given Silver Brothers’ substantial
and legitimate confidentiality concerns, it could law-
fully request discussing the confidentiality questions.
Therefore, Bennett’s offer to discuss the information
request cannot be seen as bad-faith bargaining.
In sum, we find that Silver Brothers was entitled to
discuss confidentiality concerns with the Union be-
cause of the nature of the information requested, that
Silver Brothers offered to meet and discuss the con-
cerns, and that the Union failed to accept Silver Broth-
ers’ offer. Accordingly, we find, contrary to the judge,
that Silver Brothers did not unlawfully withhold finan-
cial information.11
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting in part.
Contrary to my colleagues, I agree with the judge
that the Respondent violated Section 8(a)(5) and (1) by
refusing to provide the Union with the requested finan-
cial information. It is not disputed that the Respondent
asserted at the outset of negotiations that it was in an
‘‘extremely critical financial condition’’ and would re-
quire contract concessions because it was unable to
continue paying the existing wage rates. Nor is it dis-
puted that under such circumstances the Union is enti-
tled to financial information substantiating the claimed
inability to pay. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). My colleagues, however, would excuse the
Respondent’s failure to provide the information be-
cause, as a result of the breakdown of negotiations, the
Respondent’s purported concerns regarding the con-
fidentiality of the information remained unresolved.
The chronology of events here is critical. In accord-
ance with an agreement made at the March 4, 1988
initial bargaining session, two accountants designated
by the Union reviewed and took notes from a draft au-
dited consolidated financial statement pertaining to the
Respondent. The record is not clear regarding what, if
any, arrangements were made by the parties concern-
ing the confidentiality of the information. The Re-
spondent’s labor counsel, Bennett, testified that the
Union’s representative, Noonan, had promised to keep
the data confidential, but Noonan denied such a prom-
ise. The record does indicate that the accountants were
not provided copies of the documents or allowed to see
the related work papers of the Respondent’s account-
ants because the audit had not been finalized. At that
time, the Union’s accountants also submitted to the
1063GOOD LIFE BEVERAGE CO.
1 I agree with my colleagues that the Respondent did not unlaw-
fully renege on its agreement regarding the meeting location. How-
ever, my colleagues make too much of the judge’s reasons for dis-
missing this allegation, and allow them to overshadow her finding
that the Respondent acted in bad faith with respect to the Union’s
information request. Regardless of the relative merit of the parties’
positions regarding the location of continued contract negotiations,
the judge found, and I agree, that ‘‘[t]here is no rule which sanc-
tioned the Respondent’s withholding the [requested] material until
Noonan appeared at a bargaining table of Respondent’s choice.’’
2 As noted above, the Respondent had previously furnished the
Union certain financial information in support of its asserted inabil-
ity to pay, under conditions that it must have considered satisfactory
at that time. The Respondent had also invited the union accountants
to note any additional information that they may need.
3 Approximately 5-1/2 weeks elapsed between the Union’s initial
request for the information and the Respondent’s May 6 letter. I
would not necessarily find such a delay excessive in all cases. In
this case, however, during the time that the Respondent withheld the
information from the Union, thus depriving the Union of the oppor-
tunity to fully assess the Respondent’s financial status, the Respond-
ent submitted and implemented a final concessionary proposal and
locked out its employees. I find the Respondent’s delay during the
crucial period surrounding these events unreasonable.
4 Although Mead testified that he believed that the information was
to be furnished to the Union when the parties resumed negotiations,
as noted supra, I find no legitimate basis for awaiting the Union’s
return to the table as a condition for compliance with its information
request. Moreover, the judge found it ‘‘difficult to understand’’ why
Mead would have believed that the material requested by the ac-
countants was to be delivered instead to Noonan, and noted Mead’s
concession that the accountants could reasonably have expected to
receive the data directly. Unlike my colleagues, I find it unnecessary
to wonder what the Respondent’s position concerning the Union’s
request would have been if the parties had met in mid-April, because
I find that the Respondent had an obligation to raise any concerns
that it may have had, whether or not the parties were otherwise
meeting to negotiate, and that it failed to do so.
5 In its exceptions, the Respondent contends that it should not be
required to furnish the Union the working papers of its accounting
firm or information concerning executive salaries. Although I have
rejected the Respondent’s belated general assertion that the data
sought by the Union is confidential, I find that an employer’s obliga-
tions with respect to these two specific areas have not been thor-
Continued
Respondent’s controller a list of additional information
that they believed was necessary to support the Re-
spondent’s representations regarding its dire financial
condition. The Respondent’s accountants compiled the
information within 2–3 days of the request and for-
warded it to Mead, the Respondent’s financial vice
president. At approximately the same time, on March
31, contract negotiations broke down over the issue of
the location of future bargaining sessions.1 On April
13, the Respondent sent the Union its final bargaining
proposal. Although, as the judge found, the Respond-
ent had the requested information available at least by
that time, the Respondent did not furnish it to the
Union. Nor did the Respondent notify the Union of
any confidentiality concerns that impeded the release
of the data.
The current collective-bargaining agreement expired
on April 20. The following day the Respondent locked
out its employees and implemented its April 13 pro-
posal. A newspaper article published on April 23 in-
cluded a statement by Bennett that a major reason for
the Company’s losses was its contribution to the Union
pension plan. Two days later, another article quoted
Noonan as attributing the losses to specified intercom-
pany payments. On May 6, in response to the Union’s
written request for the information it had not yet re-
ceived, the Respondent stated that the matter could be
discussed at the next negotiating session, expressed its
concern that the Union had not kept previously dis-
closed information confidential, and noted that it was
unaware of any legitimate need for the additional in-
formation. The first time the Respondent expressed any
reservations about providing the information based on
confidentiality was in its May 6 letter. The judge spe-
cifically found that this concern pertained to Noonan’s
release of financial information in the April 25 news-
paper article.
Although my colleagues adopt the judge’s finding
that the Respondent’s confidentiality concerns
stemmed from the April 25 disclosure, their view nec-
essarily depends on an unsubstantiated assumption that
such concerns existed throughout the time that the
Union’s request was pending. The majority begins by
finding that the information sought was confidential
and, relying on the May 6 letter, that the Respondent
had legitimate confidentiality concerns. My colleagues
conclude that, without the opportunity to bargain over
these concerns, the Respondent was not ‘‘automatically
obligated’’ to furnish the information. What they do
not find—and cannot find based on this record—is that
the Respondent ever had any reservations about con-
fidentiality prior to the April 25 article or that it ex-
pressed such concerns before May 6.2 Thus, the major-
ity is in essence willing to accept the post hoc rational-
ization asserted by the Respondent for withholding the
information from the Union.
I do not agree with this result. Although the Re-
spondent would not have been ‘‘automatically obli-
gated’’ to provide the information in the face of legiti-
mate and substantial confidentiality concerns, if such
concerns in fact existed and were communicated to the
Union, the Respondent is not privileged to rely on sub-
sequent events to justify its earlier failure to provide
requested and available information. I agree with the
judge that, once the Respondent had the information
available, it should have furnished it to the Union. In
the alternative, the Respondent was obligated to
promptly raise and bargain about any reservations it
may have had concerning the confidentiality of the
data.3 The Respondent failed to take either of these ap-
propriate courses of action with respect to the Union’s
request.4 I would therefore find that the Respondent
violated Section 8(a)(5) and (1), and order that the Re-
spondent provide the information to the Union.5
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
oughly considered by the Board, and that they may well present par-
ticular issues with regard to confidentiality. Therefore, concerning
these two areas, I would order that the Respondent raise and bargain
with the Union about any confidentiality concerns that it may have.
Having found that the Respondent unlawfully withheld the re-
quested financial information from the Union, I also agree with the
judge, for the reasons set out by her, that the Respondent’s lockout
of its employees violated Sec. 8(a)(1), (3), and (5), and that the Re-
spondent is a single employer. Although the judge further found that
the Respondent’s implementation of its April 13 proposal was un-
lawful, I find merit in the Respondent’s exception asserting that the
General Counsel withdrew this allegation at the hearing. I agree with
the judge’s conclusion that the circumstances here do not warrant
piercing the corporate veil in order to hold David Murray personally
liable for the Respondent’s violations. However, I note that as the
sole proprietor of Erin Realty, which was found to be part of the
single employer, Murray is liable for the obligations of that entity
without regard to the circumstances normally giving rise to individ-
ual liability on the part of corporate officers or agents. See Wayne
Electric, 241 NLRB 1056 (1979).
1 Hereinafter referred to as the General Counsel.
2 Unless otherwise specified, all events took place in 1988.
3 Amended charges in Case 1–CA–25521 were filed on May 26,
July 7 and 3, 1989.
4 Amended charges in Case 1–CA–25864 were filed on December
8 and July 3, 1989.
5 At the outset of the hearing, I approved a settlement agreement
entered into by the General Counsel, the Union, and two of the Re-
spondents in the above-captioned case—Silver Brothers Co., Inc.,
and Victor W. Dahar, Trustee-in-Bankruptcy, and Erin Food Serv-
ices, Inc., and Michael Weingarten, Trustee-in-Bankruptcy.
6 Exhibits offered into evidence by the General Counsel will be
cited as (G.C. Exh.) followed by the exhibit number; those offered
by the Respondent will be cited as (R. Exh.) , and references to the
official transcript as (Tr.).
Michael T. Fitzsimmons, Esq., for the General Counsel.1
Lawrence C. Winger, Esq. (Herbert H. Bennett & Associ-
ates), of Portland, Maine, for the Respondents.
Gabriel O. Dumont Jr., Esq. (Dumont & Morris), of Boston,
Massachusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On charges
filed by the Chauffeurs, Teamsters & Helpers Local Union
No. 633 a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, AFL–CIO (the
Union or Local 633) on May 19, 1988,2 and amended3 in
Case 1–CA–25521 against Silver Brothers Co., Inc. d/b/a
The Good Life Beverage Company (Respondent Silver
Brothers) and on charges filed in Case 1–CA–25864 on Oc-
tober 18,4 against Hospitality Holdings Corporation (Re-
spondent HHC), Erin Food Services, Inc. (Respondent Erin
Food), Erin Realty Company (Respondent Erin Realty), and
David Murray, a second amended consolidated complaint and
notice of hearing issued alleging that the Respondents com-
mitted unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the Act).
The Respondents filed timely answers denying certain allega-
tions.
The case came to trial in Boston, Massachusetts, on April
2, 3, and 4, 1991, during which time the parties had full op-
portunity to examine and cross-examine witnesses, to intro-
duce documentary evidence, and to argue orally.5 After con-
sidering the witnesses’ demeanor, the parties’ posttrial briefs,
and on the entire record,6 pursuant to Section 10(c) of the
Act, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent Silver Brothers, a corporation with offices and
places of business in Londonderry and Gorham, New Hamp-
shire, has at all times material engaged in the wholesale dis-
tribution and sale of beer, wine, and related products. Re-
spondent Erin Food, a corporation with an office and place
of business at 608 Chestnut Street, Manchester, New Hamp-
shire, at all material times operated a chain of Burger King
restaurants as well as a few full-service restaurants. Respond-
ent HHC, a corporation with an office and place of business
at 608 Chestnut Street, Manchester, New Hampshire, func-
tioned as a holding company, owning 100 percent of the
stock of Silver Brothers and Erin Food. At all times material,
Respondent Erin Realty, a sole proprietorship with an office
and place of business at 41 Brook Street, Manchester, New
Hampshire, engaged in the ownership and rental of real es-
tate.
During the calendar year ending December 31, 1988, Re-
spondent Silver Brothers, in the course and conduct of its
business operations described above, purchased and received
at its Londonderry and Gorham facilities products, goods,
and materials valued in excess of $50,000 directly from
points outside the State of New Hampshire. During the same
calendar year, Erin Food had gross revenues on excess of
$500,000 and purchased goods valued in excess of $50,000
directly from points outside the State of New Hampshire.
During the same calendar year, Erin Realty derived gross
revenues in excess of $100,000 of which more than $25,000
was derived from Erin Food.
Based on the foregoing facts, I find that Respondents Sil-
ver Brothers and Erin Foods were at all times material, em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview: The Parties’ Contentions
The issues in this case grow out of collective-bargaining
negotiations for a new labor agreement between Silver
Brothers and the Union in 1988. When bargaining for a new
agreement commenced, Respondent advised the Union that it
would seek extensive concessions in a successor contract. At
the third bargaining session, the Union requested that some
of the forthcoming negotiating meetings be held at a Team-
sters site, the Northern New England Trust Building. Accord-
ing to the General Counsel and the Charging Party, the Re-
spondent’s attorney and chief negotiator initially consented to
the proposed meeting place, but later reneged and refused to
meet at that location. The Respondent, on the other hand,
maintains that consent to the Union’s proposed situs was
1065GOOD LIFE BEVERAGE CO.
7 Several subsidiaries of Silver Brothers also were included in the
acquisition by HHC.
8 See G.C. Exh. 14 at 3, memorandum opinion, Miller Brewing
Co. v. Silver Bros. Co.; Hospitality Holdings Corp.; David W. Mur-
ray (U.S. D. C., D.N.H. June 22, 1988).
9 Testimony was adduced that Silver Brothers failed to pay this fee
in 1988.
10 Spector testified at a hearing in the U.S. District Court, District
of New Hampshire, on June 16, 1988, at a hearing on motion to en-
join Miller’s effort to terminate its distributorship agreement with
Silver Brothers.
11 The Silver Brothers facilities were located in Londonderry,
Keene, Gorham, and Greenland.
conditional, and that it subsequently decided against meeting
there. The Union insisted that the Respondent abide by the
alleged agreement to meet at the union building and refused
to engage in further collective-bargaining sessions at any of
the other locations suggested by the Respondent. The Re-
spondent, in turn, refused to meet at the Union’s preferred
site. As a result of this standoff, negotiations ceased.
In accordance with a prior understanding between the par-
ties, and just 2 days before the dispute over the meeting
place erupted, union auditors reviewed certain financial mate-
rials provided by the Respondent’s accountants to support its
claim of economic distress. However, the union accountants
were not furnished copies of the statements, the auditors’
opinion letter, or their working papers. Moreover, the union
accountants requested additional data which the Respondent
subsequently failed to release. On April 21, the date the labor
agreement expired, Respondent locked out the unit employ-
ees, but continued operating with replacement workers until
it declared bankruptcy on June 23 and ceased doing business.
The General Counsel and Union further contend, and the Re-
spondents deny, that HHC, the holding company which
owned Silver Brothers, Erin Foods, and Erin Realty are a
single employer, and that David Murray, who owned all the
Respondents, is personally liable.
From this spare precis of the facts, the following questions
are presented for resolution:
1. Did Silver Brothers unlawfully refuse to meet and bar-
gain with Local 633 at an agreed on location?
2. Did Silver Brothers improperly withhold necessary and
relevant information from the Union?
3. Was Respondent’s lockout of bargaining unit employees
unlawful?
4. Is the amended complaint alleging that Murray, Murray
d/b/a Erin Realty, Erin Foods, HHC, and Silver Brothers are
a single employer time barred under Section 10(b) of the
Act; and if it is not untimely, are these entities, and/or Mur-
ray in his personal capacity, liable for Silver Brothers’ al-
leged unfair labor practices?
B. The Relationship Among the Respondents
Silver Brothers Co., a wholesale distributor of beer, wine,
and other beverages, was the exclusive distributor of Miller
Brewing Company products in New Hampshire which con-
stituted 70 percent of its business. On December 31, 1986,
Hospitality Holdings Company (HHC), an enterprise which
existed solely to hold stock in subsidiary companies, pur-
chased Silver Brothers in a leveraged buyout for $11.1 mil-
lion.7 HHC also owned 100 percent of the stock of Erin
Food Services, Inc., which in turn, owned and operated 27
Burger King franchises and a few full-service restaurants.
David Murray was the sole owner of all HHC stock. In
addition, Murray, doing business as Erin Realty, owned var-
ious properties, including a facility which housed a Silver
Brothers warehouse in Greenland, New Hampshire. As part
of the purchase price for Silver Brothers, Murray mortgaged
his own home to the lending bank for $1 million and raised
another $950,000 through personal loans. Additionally, Mur-
ray guaranteed an $8.5 million loan from the bank which
served as the principal financier of the Silver Brothers acqui-
sition and contributed a $450,000 line of credit which Miller
had extended to Silver Brothers. HHC also guaranteed the
$8.5 million separately. Moreover, in order to preserve a dis-
tributorship agreement, HHC and Murray personally were re-
quired to guarantee lines of credit in the amount of $450,000
apiece to Miller. Further, HHC invested another $1.5 million
in Silver Brothers in 1988.
After the acquisition, three high-ranking HHC officials as-
sumed the chief management positions at Silver Brothers.
Thus, Murray became Silver Brothers’ president; Perry
Robson and Jack Mead, both of whom held executive posi-
tions with HHC, assumed positions as vice president-general
manager and financial vice president, respectively. A third
official, Thomas Martin, shifted laterally from controller at
Erin Foods to the same position at Silver Brothers.
Following the acquisition of Silver Brothers, extensive fi-
nancial transactions commenced among Murray’s ‘‘entre-
preneurial ventures’’ and continued for the next year and
one-half until Silver Brothers filed for bankruptcy on June
23, 1988.8 For example, Silver Brothers paid HHC a
$600,000 annual management fee at $50,000 a month.9 Each
of these affiliated companies maintained intercompany ac-
counts through which they frequently advanced funds to one
another on a noninterest-bearing, unsecured basis, for brief
periods of time. In 1987, these transactions totalled $8.5 mil-
lion. Further, Silver Brothers paid a $99,000 maintenance fee
to Erin Fords and an annual fee of $282,000 to Murray d/b/a
Erin Realty, as rent for the Greenland warehouse. These fi-
nancial interrelationships led Michael Spector, treasurer for
Silver Brothers and Erin Foods and chief operation officer
for HHC, to testify in a separate proceeding that ‘‘All of the
intercompany accounts are basically one intercompany ac-
count. It’s all David Murray.’’ (G.C. Exh. 14 at 127.)10
Apart from Mead’s and Robson’s transfer to Silver Broth-
ers, midlevel managers who worked for the Company’s prior
owners remained in place. Moreover, there was virtually no
contact on a day-to-day basis among the Silver Brothers
labor force and employees of its sister companies, with the
exception of some Erin Foods personnel who performed peri-
odic services such as landscaping for Silver Brothers.
C. Collective-Bargaining Negotiations
When HHC purchased Silver Brothers, it assumed Silver
Brothers’ extant collective-bargaining agreement with Team-
sters Local 633. The agreement which was effective from
April 16, 1985, to April 20, 1988, covered a unit of approxi-
mately 100 drivers, helpers, warehousemen, and mechanics
stationed at the Company’s four warehouses in New Hamp-
shire.11
In January, as Silver Brothers began to prepare for a suc-
cessor contract, it found itself in dire financial straits. To re-
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Another cost-savings step entailed the closure of Silver Broth-
ers’ Greenland warehouse and the abolition of six management posi-
tions.
main viable, HHC and Silver Brothers’ officials determined
that cost savings would have to be achieved in part by ob-
taining major concessions from the Union.12
On February 20, Herbert Bennett, Respondents’ labor
counsel, wrote to Union Business Agent Thomas Noonan to
confirm the parties’ first agreed meeting date on March 4 at
the Koala Inn in Manchester where HHC was headquartered
and one of the Silver Brothers facilities was located. In the
same letter, Bennett advised the Union that the Company
would not extend the terms of the contract beyond its April
20 expiration date because of its ‘‘extremely critical financial
condition.’’ (R. Exh. 1-D.)
As agreed, the parties met on March 4 at a Koala Inn,
with Murray, Bennett, Mead, and Robson attending on behalf
of Silver Brothers. Noonan, who served as the Union’s chief
spokesman, and Shop Stewards Richard Legace and Edgar
Smith represented Local 633. At the outset, Murray and
Mead painted a grim picture of the Company’s precarious
fiscal position indicating that because it was in default on its
loan agreements with the bank and experiencing great dif-
ficulty meeting the terms of its distributorship agreement
with Miller, it could not continue under the terms of the cur-
rent labor contract. To document its grave situation, Mead
made a verbal presentation based on financial statements for
1985, 1986, and 1987 which were displayed on a slide pro-
jector for approximately 15 minutes. The statements showed,
among other things, that Silver Brothers’ operating losses
were at a 3-year high of nearly $3.5 million. Noonan’s re-
quest for a copy of the financial statements was refused on
the grounds that the information was sensitive and confiden-
tial. At the same time, Bennett assured Noonan that the
Union’s auditors could review the underlying data to verify
the Company’s claims of impoverishment. Before conclud-
ing, the parties agreed to eight additional meeting dates in
March and April. Subsequently, Noonan contacted the
Union’s accountants and requested that they arrange to meet
with the Company’s accountants.
The next two bargaining sessions on March 14 and 15 also
took place at the Koala Inn, with all the same persons
present as before except Murray. Although Murray did not
attend any other bargaining sessions, Robson and Bennett
both kept him apprised of the progress of the negotiations.
While Robson claimed to be the decisionmaker for Silver
Brothers, Bennett stated emphatically that it was Murray who
was in control; that he made the ‘‘final decision; absolutely
. . . it was his company.’’ (Tr. 281.)
For the most part, negotiations on March 14 and 15 was
uneventful; the parties agreed to some items and disagreed
with others. However, one seemingly harmless exchange be-
tween Noonan and Bennett on March 15 escalated from
molehill to mountain, eventually causing the negotiations to
collapse. According to Noonan, at the end of the meeting on
either March 14 or 15, he proposed holding the first three
meetings in April at a union building, the Northern New
England Benefit Trust (NNEBT). Bennett allegedly agreed to
this site without qualification and obtained directions there.
Bennett, on the other hand, testified that he acquiesced to the
meeting place but told Noonan he would have to obtain
Murray’s approval. Both Noonan’s and Legace’s minutes of
the meeting confirm the Union’s position on this con-
troverted issue while Mead, Robson, and Company Secretary
Haffermehl testified in support of Bennett’s assertion that his
consent was given conditionally. Although Haffermehl served
as Silver Brothers’ official minute taker, her notes contain no
reference to any discussion regarding a meeting site in April.
In explaining this omission, Haffermehl testified that the ex-
change occurred after she had put away her notebook at the
meeting’s end.
By letter to Bennett dated March 18, Noonan confirmed
that the April meetings would be held at the NNEBT. Ben-
nett did not respond to this letter. Instead, at the outset of
the March 31 meeting, which also was held at the Koala Inn,
Mead handed Noonan a letter stating that Silver Brothers de-
clined the offer to meet at the NNEBT, but would agree to
sessions at a public facility, including any 1 of 10 hotels list-
ed in an attachment. When Bennett admitted to Noonan that
Murray had vetoed the union building as a meeting site, an
argument erupted between the men. Noonan left the room
fuming. Bennett followed him out and confided to Noonan
that Murray was apprehensive that the Union could tap the
NNEBT phones and overhear his and Bennett’s discussions
regarding negotiations. Bennett acknowledged at the hearing
that this was his reason for refusing to meet at the union
building.
Following the March 31 meeting, both sides dug in their
heels and refused to compromise on a mutually agreeable
meeting site. In an April 12 letter to Bennett, Noonan
claimed that the Union was ready for meaningful negotia-
tions, but insisted that they take place at NNEBT or, alter-
natively, at a Silver Brothers plant. Bennett rejected both lo-
cations on grounds that neither was neutral and again urged
Noonan to select any 1 of 10 acceptable hotels. Subse-
quently, the Respondent proposed meeting in the Company’s
Greenland terminal since it was closed and no employees
were on the scene. Noonan agreed to meet there but only if
the following meeting was held at the NNEBT. The Com-
pany again balked at this. Instead, Respondent’s counsel pro-
posed going forward with the meeting at the Greenland plant
and bargain there about a site for the next meeting. Noonan
rejected this proposal, as well as a suggestion that the parties
meet at any governmental facility in the State. As a con-
sequence of this dispute, March 31 proved to be the parties’
final bargaining session.
D. The Lockout
With the parties at a standoff on a meeting, in lieu of di-
rect negotiations, Murray instructed Bennett to mail a revised
contract proposal to Noonan patterned on a concessionary
agreement between the Union and another beer distributor. In
an April 13 cover letter accompanying the proposal, Bennett
informed Noonan that if the Union refused to meet at a neu-
tral location prior to April 21, the Company intended to im-
plement the proposal as its final offer on that date.
Both sides remained obdurate, refusing to compromise on
a mutually agreeable site. On April 20, the collective-bar-
gaining agreement expired. The next day, Silver Brothers
locked out the employees and replaced them immediately
with approximately 70 replacement workers hired from a
temporary service.
1067GOOD LIFE BEVERAGE CO.
13 Shortly before the lockout commenced, tires were slashed and
glue was poured into the ignitions of six or seven of the Company’s
vehicles.
14 Martin testified that he believed it inappropriate to provide a
breakdown of officer’s salaries.
Bennett stated that he was not directly involved in the
lockout decision; rather, it was Murray who chose that
course at some point after the parties had locked horns on
a satisfactory meeting place. Bennett stated emphatically that
the purpose of the lockout was to induce the Union to return
to the bargaining table and ‘‘make concessions so that this
company could stay alive.’’ (Tr. 289.)
Robson explained that sometime in February, when the
Respondent was considering its options and bargaining strat-
egy, he decided as a matter of contingency planning to con-
tact three or four businesses which provided temporary em-
ployees. Then, in early or mid-April, he selected one of the
firms in the event a lockout became necessary. Contradicting
Bennett, Robson claimed he alone made the lockout decision
several days prior to April 21, and simply informed Murray
that he had done so. He confirmed Bennett’s testimony that
the primary reason the Company opted for a lockout was to
compel the Union to meet. A secondary consideration was to
prevent further vandalism to the trucks.13
E. The Request for Information
In accordance with the parties’ March 4 agreement that the
Union could see Silver Brothers’ books and records, Richard
Morella and Suzanne Smith, certified public accountants with
Watchmaker & Co., went to the accounting firm of Ernst and
Whinney to review information bearing on Silver Brothers’
financial status. At the outset, Morella and Smith were told
they would not be furnished copies of the draft financial
statements, nor be allowed to see the accountants’ work pa-
pers since the audit was not in final form. However, Mead
suggested that they should note any additional information
they might need.
Morella and Smith were permitted to see a draft audited
consolidated financial statement for Silver Brothers and sub-
sidiaries for 1987. Morella testified that he and Smith re-
viewed the 11-page document for approximately 1 hour, dur-
ing which time they took handwritten notes. In addition to
the difficulty that this manual process imposed, Morella
pointed to other drawbacks which impaired their ability to
conduct a thorough audit. First, Morella observed that no
opinion letter accompanied the audit. He explained that every
financial statement is accompanied by such a letter which
sets forth the auditor’s view as whether the financial infor-
mation has been verified so that it fairly represents the com-
pany’s financial position. The union accountants also found
that many important items in the statement were set forth in
general categories which did not provide insight into the pre-
cise ways in which the funds were allocated or spent. For ex-
ample, the statement contained a single figure for a category
designated ‘‘Cost of products sold.’’ (G.C. Exh. 16.) Accord-
ing to Morella, a breakdown of this category could reveal
whether hidden costs were being charged against this cat-
egory such as reimbursed expenses to company officials.
Similarly, he noted that a composite sum of over $4 million
was given for ‘‘General and Administrative’’ expenses. Al-
though notes accompanying the balance sheet purported to
explain this item, they accounted for only $1 million or one-
fourth of the total sum. Finding they had a number of unan-
swered questions, Morella and Smith compiled a list of addi-
tional information which they believed was required before
they could determine whether the Company’s claim of finan-
cial destitution were bona fide. They submitted this list to
Thomas Martin, Silver Brothers’ controller, who agreed to
provide most of the information.14 The union accountants be-
lieved that the data would be sent to them directly. Mead,
on the other hand, stated that he thought it was to be given
to Noonan at the next bargaining session, although he ac-
knowledged that Morella and Smith might have reasonably
assumed they would receive the data directly.
Martin gathered the requested information within 2 or 3
days of the March 29 meeting and turned it over to Mead.
However, the data was not transmitted thereafter to the union
accountants or to Noonan, for by the time the requested in-
formation was prepared, the imbroglio over the meeting
place had begun.
In mid-April, Noonan learned from Susan Smith that the
accountants had not received the promised information. He
asked Smith to send him the list of the requests and, on re-
ceiving it, asked for the identical information in a letter to
Bennett dated May 3. The letter identified the following data:
1. Analysis of interest expense
2. Breakdown of salaries by: Officers, office, selling
and delivery and other
3. Summary of cost of goods sold
4. Breakdown of the following:
a. General and administrative expenses
b. Delivery and selling expenses
c. Accounts payable and accrued expenses
d. Accrued compensation (detailed in the
same manner as #2 above)
5. 1986 financial statements for: Silver Brothers and
its subsidiaries.
Bennett’s belief that the Union was entitled to review the
Company’s financial records had eroded by the time he re-
sponded to Noonan’s letter. Thus, in his May 6 reply to
Noonan, Bennett wrote that while he was willing to discuss
the request at the next bargaining session, he was concerned
‘‘that [Noonan] did not keep confidential the financial infor-
mation previously disclosed to [him]’’ and was ‘‘unaware of
any legitimate need for you to have further financial informa-
tion from the company.’’ (G.C. Exh. 13.)
Bennett’s reference to a breach of confidentiality pertained
to the Respondent’s belief that Noonan had violated a vow
of confidentiality ostensibly given at the March 4 bargaining
session by revealing financial information about the Com-
pany which appeared in a Manchester newspaper on April
25. Noonan was quoted in the article as follows:
They say the company is bleeding to death with $3.8
million in losses last year, but they fail to say that $1.4
million of that total is simply what they owe in interest
to the banks for Murray’s purchase of the company
from Silver Brothers.
Murray is also paying $500,000 in ‘‘management
fees’’ to one of his his own holding companies, hospi-
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tality holdings, and there was also a $200,000 finder’s
fee for purchasing the company. [R. Exh. 6.]
Noonan denied that he had made any commitments about
confidentiality at the March 4 meeting, but did not deny the
newspaper comments attributed to him. Instead, he explained
that in his view the Respondent itself had waived any claims
of privacy regarding its financial status when Bennett was
quoted in an article appearing in the same newspaper on
April 23 that ‘‘During the last 15 months the company has
lost nearly $5.6 million,’’ that ‘‘During the first year of oper-
ation [following Murray’s purchase] there was a $3.8 million
loss,’’ and that ‘‘The major reason for the company’s finan-
cial losses . . . is the . . . $280,000 contribution to the
union pension fund.’’ (G.C. Exh. 18.)
Consistent with the position taken in Bennett’s May 6 let-
ter, Respondent never released the requested information to
the Union.
III. DISCUSSION AND CONCLUDING FINDINGS
A. The Respondent’s Refusal to Meet at the NNEBT did
not Violate Section 8(a)(5)
Under Section 8(d) of the Act, parties are required ‘‘to
meet at reasonable times and confer in good faith.’’ Implicit
in the duty to meet at reasonable times is the duty to meet
at reasonable places.
The General Counsel and the Charging Party posit, and the
Respondents deny, that the parties entered into an agreement
to conduct a series of negotiating sessions at the NNEBT
building, and that by subsequently refusing to meet there,
Respondent breached its duty to bargain in good faith. Given
the facts bearing on this issue and the parties’ contentions,
two thorny questions must be resolved: first, did Bennett
agree to meet at the NNEBT building as the General Counsel
and Charging Party contend; and second, if so, did Respond-
ent violate its duty to bargain in good faith by subsequently
refusing to honor that agreement?
After carefully culling the record, I conclude that it is
more likely than not that Bennett did assent to meet with the
union bargaining team at the NNEBT for the first three meet-
ings in April. In reaching this conclusion, I rely, in part, on
record evidence which shows that Bennett was empowered to
enter into agreements about substantive contractual terms
without consulting Murray. It is illogical to believe that Ben-
nett had the authority to bind the Respondent in financial
matters, yet not have the power to decide on a meeting place.
Further proof that Bennett assumed he had the discretion to
commit to a meeting site rests on the the fact that he asked
for and jotted down directions to the union building. If Mur-
ray had conditioned his agreement on Murray’s acquiescence,
it is unlikely he would have taken written directions until he
knew, as a matter of fact, that he needed them.
Haffermehl’s detailed, contemporaneous minutes of the
parties’ March 31 bargaining session also lend support to the
conclusion that Bennett agreed, without reservation, to meet
at the union building. Thus, her notes reveal that when Mead
handed Noonan a letter on March 31 offering to meet at any
1 of 10 places, as long as it was not the NNEBT, Noonan
reacted swiftly, and maintained that an agreement had been
struck. The immediacy of Noonan’s unequivocal response
suggests that he was genuinely nonplussed by Respondent’s
change of mind. Bennett, on the other hand, did not seize the
occasion to remind Noonan that his acceptance of the
NNEBT was conditioned on Murray’s approval.
In contrast to Haffermehl’s comprehensive reporting of
Bennett’s and Noonan’s exchange about this issue at the
March 31 meeting, her minutes of the March 14 meeting at
which the agreement between Noonan and Bennett was
struck, are curiously silent about a prospective meeting at the
NNEBT. In explaining this anomaly, Haffermehl testified
that she failed to record any comments about a location for
the April bargaining sessions because they came at the end
of the meeting after she had put her notebook away. How-
ever, thorough minutes of the March 14 meeting taken by the
Union Steward Legace show that Bennett agreed to meet at
the NNEBT prior to the time the parties began to review
contract proposals, not at the very end of meeting as
Haffermehl incorrectly recalled. Since Legace’s minutes were
taken at the time of the event in question and before the par-
ties attached any significance to the meeting place, I find that
they are a reliable record of what, in fact, occurred. Accord-
ingly, given Haffermehl’s faulty recollection of this matter,
I cannot rely on her assertion, based on memory alone, that
Bennett’s approval of the NNEBT was made contingent to
Murray’s approval.
Robson, too, declared that Bennett did not give a final an-
swer to Noonan regarding the NNEBT location. However, I
find his testimony wholly unreliable. Contrary to Bennett’s
candid acknowledgment that Murray was his client and abso-
lutely in control of the business, Robson asserted that Murray
played no role in the negotiations following his attendance
at the March 4 meeting. Instead, Robson asserted that he was
the chief authority to whom Bennett turned for instructions
and further, that he was the one who initially rejected the
NNEBT because it was a nonneutral site.
Robson was contradicted at every turn. First, Murray ad-
mitted that he was responsible for rejecting the union build-
ing as an acceptable meeting site. Bennett did not hesitate in
identifying Murray as his client, and conceded that Murray
was the person who gave him his instructions throughout the
negotiations. If Robson was in charge of the negotiations, as
he claimed, then it is mystifying why Bennett did not simply
turn to him during the March 14 meeting to confirm or reject
the NNEBT as a meeting place. Robson’s attempt to claim
authority beyond that which he actually possessed in an ap-
parent effort to absolve his former employer of responsibil-
ity, casts great doubt on all of his testimony.
In sum, I find that on March 14, Bennett agreed without
qualification, and possibly with little forethought, to hold
three of the April bargaining sessions at the Union Trust
building. The General Counsel and the Charging Party sub-
mit that it follows from this conclusion that by retreating
from its commitment to meet at the NNEBT, the Respondent
unlawfully refused to bargain in good faith.
It is well established that it is necessary to look to the to-
tality of circumstances in determining whether the repudi-
ation of an agreement reached in the course of collective bar-
gaining constitutes bad faith in contravention of a respond-
ent’s bargaining obligation. See, e.g., Merrell M. Williams,
279 NLRB 82 (1986). Given the totality of circumstances in
this case, I am unable to conclude that the Respondent’s re-
fusal to meet at the NNEBT, standing alone, amounts to a
refusal to bargain in good faith.
1069GOOD LIFE BEVERAGE CO.
15 Bennett previously agreed to an additional meeting which took
place on March 31.
16 Enfd. 658 F.2d 968 (4th Cir. 1981), cert. denied 459 U.S. 879
(1982).
I reach this conclusion because the record evidence estab-
lishes beyond any question that the Respondent did not re-
nege on its agreement to meet at the union office building
in order to obstruct or delay the negotiations. To the con-
trary, apart from this one default, Respondent’s representa-
tives made ardent efforts to bring the Union to the bargaining
table and resume negotiations. Thus, Mead’s May 31 letter
to Noonan proposed 10 alternative locations for a meeting,
none of which imposed a hardship on the union negotiating
team. Indeed, one of the alternative sites was the Koala Inn
which Noonan had accepted before and found satisfactory in
every respect. Further, Haffermehl’s notes of the March 31
meeting indicate that Bennett proposed adding another meet-
ing date in April to the six on which the parties previously
had agreed.15 Bennett’s willingness to schedule extra bar-
gaining meetings, reflects an eagerness to engage in negotia-
tions, not the reverse.
Over the next several months, Bennett’s correspondence to
Noonan reveals that he made numerous efforts to woo the
Union back to the bargaining table. He proposed that they
meet at any neutral location, including any governmental fa-
cility in the State. He also suggested that they meet at Re-
spondent’s Greenwood terminal which had a conference
room and was no longer operational, and there, engage in
bargaining about the location for the balance of the negotia-
tions. Noonan was willing to meet at this latter site, but only
on condition that the next meeting take place at the NNEBT.
His insistence on a location that he knew was an anathema
to Murray, suggests that he, rather than the Respondent, was
using the meeting place issue as a red herring to avoid re-
suming negotiations.
Murray’s purported reason for rejecting the NNEBT build-
ing is far fetched. If he was genuinely concerned about the
security of his conversations with Bennett, the two men
could have agreed to converse only during recesses or in the
evening when Bennett had access to a private phone. How-
ever, as bizarre as Murray’s reason may seem for rejecting
the union office building, he did not oppose any other site
as long as it was neutral. Noonan, on the other hand, offered
no excuse whatsoever for rigidly insisting that Respondent
meet at a nonneutral site. He did not, and could not, claim
that the Union had taken any irreparable action in reliance
on Bennett’s initial agreement to meet at the NNEBT. Al-
though Noonan did reserve space at the union building, there
was no evidence that cancelling those reservations almost 2
weeks in advance of the scheduled date would have caused
any inconvenience to the Union. Surely, if Noonan was
genuinely interested in bargaining, he could have met the Re-
spondent on neutral territory and, at the same time, filed an
unfair labor practice charge.
The General Counsel relies on Proctor & Gamble Mfg.
Co., 248 NLRB 953 (1980),16 as precedent for the propo-
sition that once a location for bargaining has been agreed on,
it is a violation of Section 8(a)(1) and (5) to unilaterally
change it. Counsel’s reliance is misplaced, however, for that
case clearly is distinguishable. The Board’s holding in Proc-
tor & Gamble rested firmly on factual findings that the Re-
spondent had discontinued a longstanding practice of making
its premises available for contract negotiations as part of an
unlawful stratagem to combat the union’s including rep-
resentatives of other labor organizations in the bargaining
meetings. The circumstances in this case are far different:
here, no past practice with regard to the choice of meeting
site had been established, for Bennett was negotiating with
the Union on behalf of a new owner. Further, there was no
evidence here, as there was in Proctor & Gamble, that the
Respondent’s refusal to meet at the NNEBT was prompted
by a devious desire to evade negotiations.
Subsumed in 8(d)’s requirement ‘‘to meet at reasonable
times’’ is the duty to meet at reasonable places. Burns Secu-
rity Services, 300 NLRB 1143 (1990). However, nothing in
the Act suggests that there is only one reasonable location,
or that having once agreed on a location, one party may not
change its mind so long as the motive for the change is not
to delay or avoid bargaining. Unlike a refusal to execute an
agreed-on contract, which is a per se violation of the Act,
reneging on an agreement to meet at a particular location
represents only one factor to be considered in determining
good or bad-faith bargaining. See generally, Merrell M. Wil-
liams, supra at 83; Reliable Tool Co., 268 NLRB 101 (1983).
Consequently, after taking into account Respondent’s genuine
efforts to find a mutually acceptable meeting place, I am un-
able to conclude that its rejection of the NNEBT site rises
to the level of bad-faith bargaining. See Dilene Answering
Service, 257 NLRB 284, 292 (1981).
B. The Respondent Unlawfully Withheld Information
The amended consolidated complaint alleges in substance
that since March 29, the Respondent has refused to provide
information to the Union to substantiate its claimed inability
to pay. The Respondent does not dispute the principle that
where, as here, an employer seeks concessions based on as-
sertions of economic hardship, the union is entitled to ‘‘some
sort of proof of its accuracy.’’ NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956). Rather, the Respondent contends
that it satisfied the Truitt mandate by disclosing all the finan-
cial information to which the Union was entitled or needed
to verify the Company’s assertion and participate in mean-
ingful bargaining.
As detailed above, the Respondent afforded the union ne-
gotiators a relatively brief glimpse of its unaudited financial
statement for 1987 and audited figures for 1986 and 1985 at
the parties’ first bargaining session. Respondent’s officials
did not provide the Union with copies of these statements;
instead, they specifically agreed that the Union’s accountants
could review its books and records. The union accountants,
in turn, concluded that they could fulfill their obligation to
the Union by reviewing audited materials compiled by the
Silver Brothers’ accounting firm, Ernst and Whinney. How-
ever, although the Union’s accountants were permitted to re-
view and take handwritten notes of the firm’s draft financial
statements, they, too, were denied copies of the material,
thereby preventing more extended consideration. During their
inspection, the union auditors asked to see Ernst and
Whinney’s opinion letter and the working papers underlying
the audited statements. They also compiled a list of addi-
tional information which was prepared but never delivered to
them. By letter of May 3, Noonan forwarded the union ac-
countants’ additional requests to Bennett who rejected it by
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The opinion letter appears as p. 1 of G.C. Exh. 16. Therefore,
I assume that the Respondent has no further obligation to furnish it
to the Union.
letter of May 6, stating the Union had ‘‘no legitimate need
. . . to have further financial information from the com-
pany.’’ (G.C. Exh. 13.)
A respondent’s duty to supply information in situations
such as those presented here, is not satisfied by furnishing
only the documents it deems are sufficient. Rather, the Board
has long held that on request, the employer must supply the
union with sufficient information to enable it to understand
and intelligently discuss the issues raised in bargaining. S. L.
Allen & Co., 1 NLRB 714 (1936). The litmus test for deter-
mining whether documents should be produced is whether
they can be justified as relevant and reasonably necessary for
the union to properly represent its members in collective bar-
gaining. Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (1st Cir.
1977); J. I. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958).
In other words, information must be disclosed unless it is
plainly irrelevant. On applying these principles to the cir-
cumstances of the instant case, I conclude that the requests
made by the auditors, who were serving as the Union’s
agents, were reasonable, relevant to the Union’s duty to bar-
gain collectively on behalf of its members.
At the outset, it is well to recall that neither Mead nor
Martin, the persons directly responsible for Silver Brothers’
financial records, regarded the union accountants’ requests as
unreasonable or burdensome since the material was gathered
together in fairly short order. Further, the explanations which
Union Accountant Morella offered to justify each of his re-
quests were wholly credible and persuasive. Thus, he pointed
out that he and his associate, Smith, had agreed that they
would not examine Silver Brothers’ original books and
records, but rather, Ernst and Whinney’s audit of those
records. Consequently, the auditors’ opinion letter and work-
ing papers assumed special significance. As Morella ex-
plained, an opinion letter would have certified that Ernst and
Whinney accepted professional responsibility for the validity
of the figures presented and had not simply adopted what
was found in the client’s records. The working papers, too,
presumably contained calculations verifying the client’s un-
derlying data. Since the union accountants were relying on
Ernst and Whinney’s audit and not Silver Brothers’ original
data, it is altogether reasonable that they would view the
opinion letter and working papers as crucial in authenticating
and validating the Company’s claimed fiscal instability.17
The Respondent defends its failure to provide Ernst and
Whinney’s work papers by contending that accounting firms
generally do not provide such material while an audit, such
as the one involved, are incomplete. This defense is too fac-
ile and ultimately, is unresponsive. Ernst and Whinney never
did prepare a final audit for the firm was not paid for its
services. Thus, the financial statements shown to the union
accountants became the final audit so that copies should have
been included in materials prepared for the union account-
ants. Further, the opinion letter was completed on the very
day that Morella and Smith were present at the Ernst and
Whinney firm and could have been provided. The Respond-
ent also submits that the union accountants had no need for
the work papers or opinion letter since an Ernst and Whinney
representative vouched for the figures in the draft audit. In
other words, the Respondent suggests that the union account-
ants should have trusted the verbal assurances of the Re-
spondent’s accountants. This is a rather naive and untenable
position given the realities of the business world.
Morella also testified that he reviewed a consolidated fi-
nancial statement covering both Silver Brothers and its affili-
ated companies, Donahue Beverages and One Seventy-Seven
Granite Street, Inc. Information showing how assets and li-
abilities were distributed among the three companies was
needed to determine whether only one or two of them was
insolvent and incapable of paying union benefits. He further
pointed out that notes accompanying the audit accounted for
only 25 percent of the $4 million allocated to administrative
expenses. Since the Company claimed it was on the verge
of financial ruin, the Union surely was entitled to know how
an additional $3 million of expenses could be justified. Simi-
larly, Morella asked for a breakdown of officers’ salaries
since the audit did not show how much money individual of-
ficers were taking out of the Company or who they were.
Without such a breakdown, he noted, it was impossible to
tell if anyone was being unjustly enriched. He further ex-
plained that he requested an itemization of delivery and sell-
ing expenses for he has found that reimbursed expenses to
officers often are concealed in this category. In a similar
vein, Morella justified other inquests for breakdowns of fi-
nancial totals so that he could determine what the true value
of the Company’s assets were or whether income was being
diverted to nefarious ends. It takes little business acumen to
recognize that it could be important for the Union to know
whether the Company’s officers were rewarding themselves
handsomely while at the same time pleading poverty; wheth-
er the Company had sufficient assets to counterbalance
cashflow shortfalls; or whether, if necessary, the Company
could sell assets to offset its liabilities. As Noonan recog-
nized, in order to understand his bargaining options, he had
to rely on the evaluation and advice of the union account-
ants. They, in turn, ‘‘were unable to draw any conclusions,
without access to the information requested.’’ (G.C. Exh. 5.)
Accordingly, I conclude that Morella and Smith, who were
acting as the Union’s agents, and on whose analysis and ad-
vice Noonan intended to rely, were justified in their requests
for information.
It is difficult to understand why Mead should have be-
lieved that the material which Morella and Smith requested
for their review was to be delivered to Noonan. Mead ac-
knowledged that the union accountants reasonably could ex-
pect that they would receive the information directly, since
they had requested it as part of their evaluation. Certainly,
it was evident that Noonan would only turn it over to his ac-
countants for analysis. Mead had the material in his posses-
sion no later than mid-April. At that point, Respondent
should have submitted the material to Noonan or better yet,
to the Union’s accountants. There is no rule which sanc-
tioned the Respondent’s withholding the material until
Noonan appeared at a bargaining table of Respondent’s
choice. Other methods of ensuring that the material was de-
livered promptly surely were available. Indeed, Bennett had
no difficulty in mailing a new concessionary contract pro-
posal to Noonan on April 13, 1 week before the extant
agreement was to expire. Regardless of the parties’ inexplica-
ble differences over a suitable meeting place, the Respondent
could not demand that the Union participate in bargaining,
1071GOOD LIFE BEVERAGE CO.
18 By the same token, if the lockout was motivated in part, as a
stratagem to prevent vandalism, as Robson alleged, this would not
compensate for the fact that it had an illegal purpose or convert it
into a legitimate action. Id.
impose deadlines for action, plead that the matter was urgent,
and, at the same time, withhold information which the Union
needed to formulate bargaining positions which best pro-
tected its members’ interests.
Respondent’s argument that Noonan forfeited any right to
receive the material by disclosing confidential data about Sil-
ver Brothers’ financial condition to the press is unpersuasive
and somewhat disingenuous. Silver Brothers’ own attorney
was the first to divulge information to the same newspaper
several days before the Noonan article appeared which was
equally, if not more, damaging to the public’s perception of
the Company’s fiscal stability. Moreover, by inaccurately at-
tributing the Respondent’s losses solely to the cost of the
union contract, Bennett certainly bears some responsibility
for provoking Noonan’s response.
In light of the foregoing considerations, I conclude that by
refusing to furnish the requested information to the Union,
the Respondent hindered meaningful negotiations and thereby
engaged in bad-faith bargaining in violation of Section
8(a)(5) and (1). Sioux City Stockyards, 293 NLRB 1 (1989),
enfd. 901 F.2d 669 (8th Cir. 1990); Clemson Bros., 290
NLRB 944, 950–951 (1988).
Where, as here, an employer has failed to bargain in good
faith, no legally cognizable impasse can occur. Clemson
Bros., supra at 951. Where no genuine impasse exists, an
employer is not at liberty to unilaterally alter employees’
terms and conditions of employment. NLRB v. Katz, 369
U.S. 736, 747 (1962). Notwithstanding the foregoing well-
settled principles, the Respondent locked out its drivers and
applied the terms of its April 13 contract proposal to employ-
ees hired to replace them. By prematurely implementing its
final contract offer, Respondent violated Section 8(a)(1) and
(5) of the Act.
C. The Lockout Was Unlawful
Respondent’s witnesses offered two related reasons for
locking out its employees. First and foremost was the Com-
pany’s need, based on its asserted fiscally insecure condition,
to obtain concessions in a successor agreement. Second, it
hoped to lure the Union back to the bargaining table so that
negotiations leading to its principal goal of securing conces-
sions could proceed. An employer’s lockout which is moti-
vated by bad-faith bargaining violates Section 8(a)(1), (3),
and (5) of the Act. See D.C. Liquor Wholesalers, 292 NLRB
1234, 1258 (1989). With specific reference to this case, a
lockout is unlawful which is initiated and maintained while
an employer refuses to supply information in support of its
demand for concessions. Clemson Bros., supra at 945.
It cannot be disputed that the Respondent introduced and
maintained the lockout primarily to compel the Union to ac-
cede to a concessionary labor contract, or as Bennett testi-
fied, ‘‘at least [to] meet and make concessions so that this
company could stay alive.’’ (Tr. 432.) Yet, at the very time
the Company was insisting on concessions, it improperly
withheld financial information which the Union needed be-
fore to fully understand and verify Silver Brothers’ claimed
inability to pay. Consequently, by locking out the unit mem-
bers to gain its ends in bargaining, while at the same time
obstructing the Union’s ability to engage in meaningful ne-
gotiations, the Respondent further violated the Act.
Respondent’s witnesses also acknowledged that the lock-
out was prompted in part by a desire to arrange a meeting
at a location other than the NNEBT. The General Counsel
and Charging Party submit that because this motive was in
furtherance of the Respondent’s allegedly unlawful refusal to
honor its agreement to meet at the Union Trust building, it,
too, contributed to the illegitimate purposes of the lockout.
However, as I found above, the Respondent’s refusal to meet
at the NNEBT did not rise to the level of an unfair labor
practice. Accordingly, a lockout which is intended to accom-
plish a lawful purpose is not, for that reason alone, unlawful.
However, even if the lockout was prompted in part by a le-
gitimate consideration, this does not alter the fact that it was
primarily designed to accomplish a prohibited purpose, and
thereby retained its unlawful character. See Movers &
Warehousemen’s Assn., 224 NLRB 356, 357 (1976), enfd.
550 F.2d 962 (4th Cir. 1977), cert. denied 434 U.S. 826
(1977).18
IV. THE SINGLE-EMPLOYER ISSUE
A. The 10(b) Defense Lacks Merit
Paragraph 5 of the amended consolidated complaint al-
leges that HHC, Silver Brothers, Erin Food, and Erin Realty
operated as a single-integrated enterprise and constitute a sin-
gle employer within the meaning of the Act. Further, para-
graphs 7 and 8 allege that Murray is personally liable for the
unfair labor practices discussed above. The Respondents
deny these allegations, and in addition, assert affirmatively,
that the charges against all the Respondents except Silver
Brothers were untimely filed and, therefore, barred by Sec-
tion 10(b) of the Act.
Respondents misperceive the theory and purpose underly-
ing their inclusion in the amended consolidated complaint.
As I understand it, Respondents Murray, HHC, Erin Foods,
and Erin Realty are not accused of committing unfair labor
practices in their own right. Rather, they were identified as
entities comprising a single employer and as such, may be
held derivatively liable for the unlawful conduct of another
part of the enterprise. If these companies are found to com-
prise a single employer, then valid service within the 10(b)
period on one constitutes valid service on all. See Electrical
Workers IUE (Spartus Corp.), 271 NLRB 607 (1984).
It is well settled that liability for Board ordered remedies
may be imposed on a party to a supplemental proceeding
even though that party was not involved in the initial unfair
labor practice proceeding, if the newly added party is suffi-
ciently closely related to the person found to have committed
the unfair labor practices. Coast Delivery Service, 198 NLRB
1026, 1027 (1972). This is true even if the 10(b) period has
long since elapsed. Alaska Cummins Services, 294 NLRB 1
(1989). In NLRB v. C.C.C. Associates, 306 F.2d 534, 539 (2d
Cir. 1962), the cogent analysis of the court of appeals re-
solves any doubts about the propriety of joining additional
parties for purposes of determining derivative liability:
The question is properly raised whether under the
N.L.R.A., the Board is empowered to consider deriva-
tive liability of new parties without beginning a new
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Prior to the commencement of this hearing, the General Counsel
and Charging Party entered into settlement agreements with Silver
Brothers and Erin Foods which specifically reserved the right to pro-
ceed against ‘‘any other party named in the proceeding as jointly
and severally liable.’’ (G.C. Exhs. 1(2) and (3).)
unfair-labor practice proceeding against them under
10(b) . . . . We find that it is so empowered. The
Board in the present proceeding is not charging the new
parties with any unfair labor practice of their own or
participation in those of the original respondents; rather,
it alleges only that they bear such relation to parties al-
ready determined to be guilty that they share with them
the already adjudicated financial obligation to make
certain employees whole for lost pay. Thus, these are
not primary actions to determine violations of law, as
are provided for in § 10(b), but rather ancillary enforce-
ment proceedings.
In the same case, the court made it clear that in order to
obtain adequate relief, the Board has no less power to join
parties in an a supplementary compliance proceeding than it
would if the same parties were named in the original case.
Id. In other words, if respondents may be added properly
even after the unfair labor practice trial has concluded, a
fortiori, they may be included at an earlier stage of the litiga-
tion. Therefore, Murray, HHC, and Erin Realty may be found
liable only if I conclude they are a single employer. If they
are a single employer then they may be held accountable for
any remedy which might be granted.19
B. HHC, Silver Brothers, Erin Foods, and Erin Realty
are a Single Employer
The final substantive issue posed in this case is whether
Murray in his individual capacity—Murray doing business as
Erin Realty, HHC, Erin Foods, and Silver Brothers—con-
stituted a single-integrated enterprise.
In order to prove that the remedial obligations of one cor-
poration should be imposed on another, the General Counsel
must show that ‘‘separate corporations are not what they ap-
pear to be, that in truth, they are but divisions or departments
of a ‘single enterprise.’’’ NLRB v. Deena Artware, 361 U.S.
398, 402 (1960). Specifically, in determining whether two or
more entities constitute a single enterprise, the Board consid-
ers evidence bearing on the following factors: the degree of
common ownership, common management, centralized con-
trol of labor relations, and interrelation of operations. Radio
& Television Broadcast Union v. Broadcast Service, 380
U.S. 255, 256 (1965). However, no one factor is controlling,
nor need all of them be present, for ‘‘Single employer status
ultimately depends on ‘all the circumstances of the case’ and
is marked by an absence of an ‘arm’s length relationship
found among unintegrated companies.’ Stated otherwise, the
fundamental inquiry is whether there exists overall control of
critical matters at the policy level.’’ Penntech Papers v.
NLRB, 706 F.2d 18 (1st Cir. 1983).
The entire record in this case shows that David Murray
was the linchpin of all the Respondent enterprises. He was
the sole stockholder of HHC which owned 100 percent of
stock in Silver Brothers and Erin Foods. He alone owned
Erin Realty. Because of Murray’s ownership position, the fi-
nances of the various corporate entities named as Respond-
ents here were handled in a highly integrated manner, and
somewhat to the detriment of Silver Brothers. For example,
HHC existed as little more than a corporate shell which,
apart from serving as a holding company, provided costly
management services to its subsidiaries. In fact, the $50,000
annual management fee paid to HHC was found to be one
of the factors contributing to Silver Brothers operating loss
of more than $2 million in 1987, together with loans from
Silver Brothers to other business entities in which Murray
held an interest. (G.C. Exh. 15 at 5.) Further, money traveled
back and forth between HHC, Silver Brothers, and Erin
Foods without any written agreement in place and without
interest being charged on the admittedly short term loans. As
HHC’s financial officer, Spector, conceded: ‘‘All of the
intercompany accounts are one intercompany account. It’s all
David Murray.’’
Murray’s, HHC’s, and Silver Brothers’ financial affairs
were intertwined in other significant ways. Murray mort-
gaged his home to raise over $1 million to purchase Silver
Brothers. In addition, he personally guaranteed $8.5 million
of the Silver Brothers’ purchase price and contributed addi-
tional funds to the Company’s operations. HHC, too, guaran-
teed a substantial sum paid to acquire Silver Brothers and
contributed over a million dollars to its subsequent oper-
ations. In light of Murray’s enormous investment in Silver
Brothers, both individually and through HHC, it is impos-
sible to believe that he was not wholly immersed in every
important policy decision affecting these two corporate enti-
ties.
Thus, notwithstanding Murray’s attempt to cast himself on
the sidelines in the critical area of labor relations and collec-
tive bargaining, I conclude that he was not simply a nominal
president of Silver Brothers. As Bennett candidly acknowl-
edged, Murray, not Robson, who had no previous personnel
experience at all, was the decisionmaker. Although Robson
attempted to aggrandize his role as to the direction of collec-
tive bargaining, he plainly was puffing, for Bennett acknowl-
edged candidly that he looked solely to Murray for his in-
structions, stating unequivocally, ‘‘it was his [Murray’s]
company.’’
Thus, Murray attended a prebargaining strategy session
where it was decided that Silver Brothers would demand
major concessions from the Union. He also participated in a
presentation at the first bargaining meeting and articulated
the Company’s basic position regarding its inability to pay.
Without a doubt, it was Murray, not Robson, who decided
to reject the NNEBT as a meeting site. Robson was present
at the meeting when Bennett agreed to meet there; yet, was
not consulted by Bennett about the decision nor said a word
in dissent. In explaining why the Respondent chose not to
meet at the NNEBT, Bennett alluded solely to Murray’s
aversion to the union site. Murray’s reason for rejecting the
NNEBT is telling: if he was as remote from the give and
take of collective bargaining as he claimed to be, he would
have no need to maintain close contact with Bennett while
negotiations were taking place, nor would he engage in con-
versations so critical that they had to be immunized from
bugging. Murray’s concerns about the privacy of his tele-
phone calls with Bennett suggest that he regarded such com-
munications as sensitive, and so urgent that they could not
be deferred. From this, it is reasonable to infer that Murray
1073GOOD LIFE BEVERAGE CO.
was very much involved in and, in all likelihood, orches-
trated the collective bargaining for Silver Brothers.
Given Murray’s control over a matter as relatively innoc-
uous as a meeting place, it is inconceivable that he would
not be similarly implicated in a decision to withhold infor-
mation from the Union. In support of this conclusion, it is
noteworthy that during his testimony, Murray expressed dis-
pleasure with Noonan’s having released confidential informa-
tion to the press—the major reason cited by Bennett for re-
fusing to honor the Union’s request. By the same token, it
is equally implausible that Robson, rather than Murray,
would assume sole responsibility for imposing the lockout, at
a time when Silver Brothers’ financial status was imperilled.
Given Murray’s exclusive ownership of and substantial per-
sonal investment in Silver Brothers, through HHC, there can
be little doubt that he dominated the management and busi-
ness life of these companies, including the crucial area of
labor relations. Robson may have had authority for day-to-
day personnel relations, but this does not detract from the
fact that Murray had exclusive control over the major deci-
sions affecting collective bargaining. See Royal Typewriter
Co. v. NLRB, 533 F.2d 1030 (8th Cir. 1976).
In light of the foregoing discussion, substantial evidence
supports the conclusion that HHC and Silver Brothers were
a single employer within the meaning of Section 2(2) of the
Act. The same evidence also leads to the conclusion that
Erin Foods and Erin Realty also were included in Murray’s
integrated enterprise. Thus, Murray was the sole owner of
Erin Realty and of HHC which provided management serv-
ices for both Silver Brothers and Erin Foods. Significantly,
all Murray’s businesses maintained intercompany accounts,
or as Spector acknowledged, one account covered all of
them. Erin Foods’ intercompany accounts with HHC and Sil-
ver Brothers provided the vehicle through which it frequently
transferred and received interest free funds. The free flow of
funds from one entity to another took place without the usual
formalities, almost as a matter of course. If Silver Brothers
needed cash, HHC saw to it that Erin Foods’ funds were
made available without security, documentation, or apparent
time limits on repayment. By virtue of these transactions,
Erin Foods’ and Silver Brothers’ fortunes were locked to-
gether since the cash flow of one company affected the cash
flow of the other. Because Murray was the sole owner of
these formally separate entities, Erin Foods and Silver Broth-
ers were treated as if they had a single coffer. Thus, by vir-
tue of their common ownership and centralized financial
management, Erin Foods, Erin Realty, Silver Brothers, and
HHC shared important characteristics of a single enterprise.
The additional task of deciding whether Murray may be
held individually liable starts with the general rule that a
stockholder is insulated from the debts and obligations of his
corporation. NLRB v. Deena Artware, supra at 402–403. The
Board has carved exceptions to this rule and held individual
respondents and their corporate entities liable where the indi-
vidual owned all the stock and personally controlled the inte-
grated enterprise, personally guaranteed corporate indebted-
ness, controlled the daily affairs of the business including
labor relations, solicited and procured business for the com-
pany, and personally decided to end the company’s exist-
ence. Dahl Fish Co., 299 NLRB 413 (1990); Weldment
Corp., 275 NLRB 1432, 1433 (1985); Campo Slacks, Inc.,
266 NLRB 492, 500 fns. 1 and 18 (1983); Ogle Protection
Service, 149 NLRB 545, 546 fn. 1 (1964), enfd. in pertinent
part 375 F.2d 497 (6th Cir. 1967). The Board and the courts
also require proof of a disregard of the corporate entity, in-
justice, fraud, or antiunion motive before piercing the cor-
porate veil. See, e.g., Dahl Fish Co., supra. NLRB v. Fuller-
ton Transfer & Storage, 910 F.2d 331 (6th Cir. 1990); Van-
guard Tours, 300 NLRB 250 (1990); Contris Packing Co.,
268 NLRB 193 (1983). In Dahl Fish, supra at 418–419, the
administrative law judge summarized the relevant law in the
following quoted passage from Riley Aeronautics Corp., 178
NLRB 495, 501 (1969):
[T]he corporate veil will be pierced whenever it is em-
ployed to perpetrate fraud, evade existing obligations or
circumvent a statute . . . . Thus, in the field of labor
relations, the courts and Board have looked beyond or-
ganizational form where an individual or corporate em-
ployer was no more than an alter ego or a ‘‘disguised
continuance of the old employer’’ . . . or was in active
concert or participation in a scheme or plan or evasion
. . . or siphoned off assets for the purpose of rendering
insolvent and frustrating a monetary obligation such as
backpay . . . or so integrated or intermingled his assets
and affairs that no distinct corporate lines are main-
tained. [Citations omitted.]
Although this question is not altogether free of doubt, on
applying the foregoing standards to the facts in this case, I
am not persuaded that Murray may be held personally liable.
I reach this conclusion notwithstanding the judgment that
Murray was ‘‘[t]he real force behind the corporate structure
involved herein . . . .’’ Campo Slacks, supra at 500 fn. 18.
However, Murray’s status as sole owner and corporate presi-
dent is not, standing alone, sufficient to pierce the corporate
veil. Contris Packing, supra at 194. Further, although Murray
was the commanding, if unseen, presence controlling bar-
gaining with the Union and personally dictated the decisions
which led to the unfair labor practices found above, he did
so protected by his status as Silver Brothers’ president.
Under Contris, individual liability may not be imposed in
these circumstances. Id. at 195.
Unquestionably, Murray was heavily involved in the finan-
cial affairs of HHC, Silver Brothers, and Erin Foods. He per-
sonally funded Silver Brothers and guaranteed its indebted-
ness. He permitted funds to be transferred among these three
companies as if they were one company. He dictated Silver
Brothers’ collective-bargaining strategy and was personally
culpable for the Company’s commission of unfair labor prac-
tices. If the standards articulated in Ogle Protection Service
and its progeny alone governed the outcome of this issue,
then Murray would be found personally liable. However, as
the administrative law judge observed in Dahl Fish Co.,
supra, the Board requires more—some evidence of wrong-
doing or unlawful motive also must be present. There is no
such evidence in the record of this case. Neither documen-
tary nor testimonial proof was presented that Murray, or any-
one working for him, commingled funds or that any trans-
action was off the books. Murray may have exercised bad
business judgment in permitting Silver Brothers’ funds to be
used for new computer equipment, new trucks, and the like,
but there is no suggestion that he consciously or fraudulently
dissipated corporate assets. Neither was there any proof that
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The Respondent did not contest the propriety of the Board’s ju-
risdiction over Silver Brothers. Where, as here, one entity within a
single-employer enterprise meets the Board’s jurisdictional standards,
jurisdiction is properly asserted over the other corporate entities. See
Il Progresso Italo Americano Publishing Co., 299 NLRB 270
(1990).
21 As a single employer, HHC and Erin Realty are liable for the
conduct of their agents, i.e., the officers of its wholly-owned subsidi-
ary, Silver Brothers. Since the General Counsel and the Charging
Party entered into settlement agreements with Silver Brothers and
Erin Foods, the conclusions of law regarding Respondents’ commis-
sion of unfair labor practices and the remedial section of this deci-
sion do not pertain to them. By the same token, they are not in-
cluded in the appendix attached to the decision.
he manipulated the intercompany accounts to siphon off as-
sets for any private motive or to evade the Companies’ obli-
gations under the Act. Moreover, while Murray was the ar-
chitect of Silver Brothers’ collective-bargaining strategy, the
record is silent as to the extent of his participation in the
management, operations, or labor relations of Erin Foods. In
summary, the record in this case provides an inadequate fac-
tual basis for piercing the corporate veil and holding Murray
personally liable for the acts of his corporate enterprise.
CONCLUSIONS OF LAW
1. Respondents, Hospitality Holdings Corporation, Silver
Brothers Co., Inc., Erin Food Services, Inc., and Erin Realty
Co., at all times material, were a single employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.20
2. Chauffeurs, Teamsters & Helpers Local Union No. 633
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. Since on or about January 1987, and at all times mate-
rial, the Union has been the designated exclusive bargaining
representative of employees in the following appropriate unit:
All full-time and regular part-time drivers, warehouse
employees, helpers, checkers and equipment operators
employed by Silver Brothers at its Londonderry and
Gorham facilities, as described in Article 1 . . . and 15
of the 1985–1988 contract between Silver Brothers and
Local 633 . . . but excluding guards and supervisors as
defined in the Act.
4. Respondent, through acts of its agents, failed to bargain
in good faith in violation of Section 8(a)(1) and (5) by refus-
ing to provide financial records requested by the Union since
March 29, 1988, which were necessary and relevant to its
function as the collective-bargaining agent of the Respond-
ent’s unit employees.
5. Respondent, through acts of its agents, violated Section
8(a)(1), (3), and (5) by locking out and replacing its employ-
ees in the above-described unit since April 21, 1988.
6. By unilaterally implementing changed terms and condi-
tions of employment in the absence of a legally cognizable
impasse, Respondent violated Section 8(a)(1) and (5).
7. Respondent HHC and Erin Realty are jointly and sever-
ally liable for the unfair labor practices set forth in para-
graphs 4, 5, and 6.21
8. Murray in his individual capacity and Murray d/b/a Erin
Realty are not jointly and severally liable for Respondent’s
unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that Respondent be ordered to cease
and desist, and take certain affirmative action to effectuate
the policies of the Act.
Having found that the Respondent unlawfully locked out
its employees, I shall direct that the employees be made
whole for any losses of pay and benefits they may have suf-
fered by reason of the lockout, to be calculated as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Whether the Re-
spondent is liable for additional sums to be paid into the em-
ployee benefit funds in order to satisfy this ‘‘make whole
remedy’’ may be addressed at the compliance stage of the
proceeding. Clemson Bros., supra at 945 fn. 13, citing
Merryweather Optical Co., 240 NLRB 1213 (1979).
[Recommended Order omitted from publication.]