Image Convention Services, Inc., Image International, Inc. And D.C. Enterprises, Inc. 1

National Labor Relations Board - Board Decisions

May 24, 1988

288 N.L.R.B. 1036 (N.L.R.B. 1988)

1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Image Convention Services, Inc., Image Internation-
al, Inc. and D.C. Enterprises Inc.' and Interna-
tional Alliance of Theatrical Stage Employees
and Moving Picture Operators Local No. 631.
Case 12-CA-10211
May 24, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND JOHANSEN
On June 10, 1983, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
General Counsel filed exceptions and supporting
brief. The Respondents, Image Convention Serv-
ices, Inc. (I.C.S.) and Image International, Inc.
(I.I.I.), filed cross-exceptions and a supporting
brief. The General Counsel then filed an answering
brief to the cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions for the reasons stated below and to
adopt the recommended Order.
The complaint alleged that I.I.I. and I.C.S. were
a single employer and/or alter ego and that they
had violated Section 8(a)(5) and (1) of the Act by
refusing to abide by a collective-bargaining agree-
ment with the Union and by withdrawing recogni-
tion from the Union. 2 The complaint was based on
a charge filed and served only on I.I.I.
The judge initially found that I.C.S. has not en-
gaged in any business or utilized employees in the
bargaining unit represented by the Union since
March 6, 1981. 3 The judge, therefore, focused his
analysis on the relationship between I.C.S. and
I.I.I. prior to March 6, 1981. The judge found that,
beginning with Alexander Caputo's involvement in
both companies after March 1980, set forth below,
I.I.I. and I.C.S. had common ownership and finan-
cial control and I.C.S. relied substantially on cer-
tain services from I.I.I. In light of this overlapping
ownership between the two companies and the ex-
istence of these shared services, the judge conclud-
ed that prior to March 6, 1981, I.I.I. and I.C.S.
were a single employer and/or alter egos of one
At the trial, the complaint was amended to include D.0 Enterprises,
Inc as named respondent. The judge dismissed all allegations relating to
this entity because there was no evidence to show that it was anything
other than an inactive corporate shell. No exceptions to the judge's find-
ings and dismissal pertaining to D.C. Enterpnses, Inc. were filed.
2 The complaint does not allege, nor does the General Counsel assert,
that LI I. became a successor of I C S. at any time
3 No exceptions to this finding were filed.
another. Given this conclusion, the judge found
that the purchase of I.C.S. assets by I.I.I. on March
6, 1981, served only to further consolidate and for-
malize an already existing single employer/alter
ego relationship. The judge then found that I.I.I.,
as the only remaining entity after March 6, 1981,
had a duty to bargain with the Union, but had met
this duty and had not repudiated its collective-bar-
gaining relationship with the Union. The judge fur-
ther found, contrary to the General Counsel's posi-
tion, that I.I.I. was not obligated to abide by the
collective-bargaining agreement with the Union be-
cause the agreement was illegal and void under
Section 302 of the Act. For these reasons, the
judge dismissed all the 8(a)(5) allegations relating
to I.I.I. and I.C.S.
In their cross-exceptions, the Respondents con-
tend, inter alia, that, although they agree with the
result reached by the judge, the complaint should
have been dismissed because they did not have a
single employer/alter ego relationship at any time
and, consequently, the Board lacked jurisdiction
over I.C.S. because it was not properly served with
the Union's charge and was not shown to have, by
itself, met the Board's jurisdictional standards. The
Respondents note that no evidence was presented
on any business done or gross revenues received by
I.C.S. in the years preceding the filing of the
charge. We find merit in these exceptions. Thus,
while we adopt the judge's recommendation to dis-
miss the complaint, we do so solely on the basis of
a different rationale, finding no single employer or
alter ego status for the Respondents and no sepa-
rate jurisdiction over I.C.S.
The pertinent facts revealed by the record are as
follows I.I.I., a Florida corporation founded in
1975 by Alexander Caputo and Phillip W. Allen,
was engaged primarily as a travel agency, devoting
the majority of its business to selling airline tickets
and a much smaller percentage to arranging and
handling tours. I.C.S., a Florida corporation found-
ed in 1979 by Dorothea Smith, was engaged in the
business of providing convention services such as
the rental of audiovisual equipment, tours, and
theme dinners with props, as well as making airline
and hotel reservations for conventions. Prior to
March 6, 1981, I.I.I. and I.C.S. maintained princi-
pal offices adjacent to each other on the same floor
of the Florida Center Bank Building in Orlando,
Florida. I.I.I. and I.C.S., however, operated under
separate leasing arrangements with separate public
entrances to their offices and had different trade
names. I.I.I. used the name of Ye Olde Travel
Shoppe, Inc., while I.C.S. sometimes referred to
itself as Image, Inc. instead of its full corporate
288 NLRB No. 116
IMAGE CONVENTION SERVICES 1037
name. In general, III. and I.C.S. did not hold
themselves out to the public as a single entity.
Except for Alexander Caputo, I.I.I. and I.C.S.
had different officers, directors, and shareholders
prior to March 6, 1981. Caputo was the president,
a director, and a 50-percent shareholder of I.I.I.
since its inception. Philip W. Allen, who served as
a vice president, concentrating in corporate devel-
opment, and a director of I.I.I., owned the other
50-percent interest in I.I.I. and did not have any
position with, or authority at, I.C.S. Originally
Dorothea Smith owned all of I.C.S. In March
1980, Caputo purchased a 50-percent interest from
Smith for $5000 and agreed to provide future cap-
ital to I.C.S. if needed. 4 At that time Caputo
became the secretary-treasurer and a director of
I.C.S. and joined Smith, the vice president, and
Raymond Ramsay, who was the president, sole in-
corporator, and the initial director of I.C.S. Smith
and Ramsay did not have any positions with, or au-
thority at, I.I.I. After Caputo became involved
with I.C.S., he frequently visited I.C.S.'s office to
discuss business conditions, financial matters, and
future business prospects affecting I.C.S.
I.I.I. and I.C.S. also had different and separate
labor relations policies and management, except
that one or two employees of I.C.S. participated in
a health insurance policy shared with LH. Caputo
alone was in charge of the day-to-day management
and personnel matters at I.I.I., including the hiring
and firing of employees and setting their employ-
ment standards. None of I.I.I.'s employees were
represented by a labor organization. As of March
1, 1981, I.I.I. employed, besides Caputo and Allen,
approximately 18 individuals: 6 reservationists, 3
group reservationists, a reservationist supervisor, 3
bookkeepers, a salesperson, a production
support/supervisor, an entertainment director, a
warehouse supervisor, and a transportation direc-
tor. III. did not have any temporary or casual
labor.
On the other hand, Ramsay was responsible for
employee relations at I.C.S. 5 He had the ultimate
authority over hiring and firing of employees. In
September 1979, Ramsay signed a collective-bar-
gaining agreement with the International Alliance
of Theatrical Stage Employees and Moving Picture
Operators, Local 631 covering I.C.S.'s mainte-
nance, service, and manufacturing employees. The
agreement provided that wages be paid not to em-
ployees but to the Union, which was responsible
for disbursing these moneys to the employees.
4 There is no evidence that Caputo was ever called on to supply more
capital to I.C.S.
5 Contrary to the judge's implication, the record does not show that
Caputo oversaw Ramsay's work as far as labor relations were concerned.
From September 1979 until approximately Decem-
ber 1980, I.C.S. followed the terms of its collec-
tive-bargaining agreement with the Union, which
automatically renewed from year to year, by using
the Union's hiring hall to obtain labor. Commenc-
ing in December 1980, I.C.S. sometimes hired labor
without using the referral system provided under
its contract with the Union. The kind of labor usu-
ally requested from the Union by I.C.S. fell into
the categories of audiovisual technicians, sound em-
ployees, grip employees, and spotlight operators.
The specific number of employees maintained by
I.C.S. fluctuated depending on its particular cus-
tomer assignments. As of February 28, 1981, LC.S,
employed 17 full-time staff employees, besides
Ramsay and Smith, and approximately 18 part-time
employees.
Prior to March 6, 1981, employees of I.C.S. and
I.I.I. were under separate supervision and the unit
employees of I.C.S. worked at different locations,
such as at a hotel, when they set up a theme dinner
or show. The employees of each Company were
engaged in different tasks and did not rely on the
other Company's employees to perform their work.
There is no evidence that there was any inter-
change of employees, either on a temporary or per-
manent basis, between the two companies. I.I.I.
and I.C.S., however, did share the same bookkeep-
er for a while.
I.I.I. and I.C.S. had different pay practices prior
to March 6, 1981. Unlike I I I, which paid its em-
ployees directly, I.C.S. and the Union had an ar-
rangement whereby the Union supplied I.C.S. with
labor on an "as needed" basis through its hiring
hall, and the Union then submitted vouchers for
the amount owed under the contract for, inter alia,
wages, benefits, and overtime. I.C.S. paid the
Union a lump-sum amount, and the Union was then
responsible for paying the individuals referred to
I. C.S.
When MI and I.C.S. had connecting offices,
they shared a stockroom for the storage of their
separate office supplies and shared the use of a
paper copier and a postage machine. They also
shared the same toll-free telephone and telex num-
bers. In its 1980 and 1981 customer catalogues,
I.C.S. advertised an airline reservation service that
actually was performed by I.I.I. According to the
Respondents' undisputed claim, there was only one
occasion when I.C.S. was asked to make an airline
reservation for a client and I.I.I. made the arrange-
ments for I.C.S. There is no evidence that they
shared the same suppliers.
On March 6, 1981, I.I.I. purchased various assets
of I.C.S., including stage-type sets for theme par-
ties, office furnishings and supplies, lighting equip-
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment, sound gear, accounts receivable, and good-
will.° I.I.I. also was assigned some of I.C.S.'s cus-
tomer contracts that were to be performed after
the March 6 purchase date. The record reveals that
there was no written contract for the sale of I.C.S.
Alexander Caputo was primarily responsible for
the sale in an effort to protect his investment in the
Company. There is no evidence that the sale of
I.C.S. was prompted by union considerations.
I.I.I.'s consideration for the sale was $100,000, part
of which went to Dorothea Smith and Raymond
Ramsay in the form of 12 percent of I.I.I.'s stock
each. Smith and Ramsay also became vice presi-
dents of I.I.I. at that time. Ramsay was responsible
for marketing and sales, and Smith was responsible
for program packaging. After March 6, 1981,
Caputo remained chief executive officer of I.I.I.
and Allen retained his vice presidency, but their in-
dividual interests in I.I.I. were reduced to 35 per-
cent each. The remaining 6-percent interest in HI.
was designated as treasury stock.
After March 6, 1981, I.C.S retained its own of-
fices, but its rent and employees were paid by I.I.I.
I.I.I. continued to operate its travel agency the
same as before. I.I.I. used temporary labor to do
the I.C.S. work, but did not use the Union's hiring
hall to obtain the labor. I.I.I., however, paid for
the labor provided I.C.S. by the Union in March
1981 for customer contracts arising before the sale.
Four of I.C.S.'s full-time employees also became
employed by I.I.I.
After the purchase, I.C.S. became known as a
"division" of I.I.I. and represented less than 10 r■er-
cent of I.I.I.'s total business. I.I.I. also used I.C.S.'s
name and reputation to obtain customers. Some-
time in March 1981, I.I.I., which had up until then
operated under the trade name of Ye Olde Travel
Shoppe, Inc., began doing business under the name
of I.I.I.
On October 22, 1981, I.I.I. advertised in a local
newspaper for employees to do convention work.
By letter dated December 9, 1981, the Union noti-
fied I.I.I. that such company action was in viola-
tion of the Union's contract with I.C.S. By letter
dated December 16, 1981, I.I.I.'s vice president,
Ramsay, responded by stating that I.C.S. had gone
out of business and that I.I.I. was not in violation
of anything inasmuch as LILL did not have a con-
tract with the Union. In response to Ramsay's
letter, the Union demanded on December 21, 1981,
that I.I.I. abide by its contract executed by I.C.S.
By letter dated January 18, 1982, I.I.I. again stated
that it did not have a union contract.
6 When it purchased I.C.S., ILI also bought a corporation called
Technical Industries, which had supplied the audiovisual equipment used
by I.C.S.
In deciding the single-employer issue, the Board
traditionally relies on four criteria. The factors are:
(1) interrelation of operations; (2) common manage-
ment; (3) centralized control of labor relations; and
(4) common ownership. 7 None of these factors,
alone, is controlling, nor need all of them be
present. The resolution is based on all the circum-
stances of the case.° We find that the judge misap-
plied this test when he concluded, primarily on the
basis of "common ownership," the fourth element,
that I.I.I. and I.C.S. constituted a single employer.
It is clear from the record in the present case that
even if Alexander Caputo's interest in I.I.I. and
I.C.S. establishes common ownership, "that factor
is not determinative in the absence of common con-
trol of labor relations policies" and the other fac-
tors for single-employer status, i.e„ interrelation of
operations and common management. Carve! Co.,
226 NLRB 111 (1976). I.I.I. and I.C.S. operated as
separate companies performing different, unrelated,
and unintegrated work. Cf. Newspaper Production
Co., 205 NLRB 738 (1973). The fact that I.I.I. and
I.C.S. shared a stockroom, a bookkeeper, telephone
and telex numbers, a paper copier, a postage ma-
chine simply does not overcome all the dissimilari-
ties in I.I.I.'s and I.C.S.'s operations. Cf. Newspaper
Production Co., supra. The two entities had differ-
ent employees working under separate day-to-day
management and supervision, serving generally dif-
ferent customer markets. Cf. Chippewa Motor
Freight, 261 NLRB 455 (1982). I.C.S., as opposed
to I.I.I., had a collective-bargaining relationship
with the Union, and its labor policies were under
the direction and control of Ramsay, the company
president, who was not involved with I.I.I. or the
latter's labor policies, which were the sole responsi-
bility of Caputo.° Cf. Milo Express, 212 NLRB 313
(1974). Except for the health insurance provided
for one or two of the I.C.S. employees by I.I.I.,
there is no evidence that employee wages and ben-
efits at I.C.S. and I.I.I. were ever the same or simi-
lar. Cf. Standard Business & Professional Exchange,
209 NLRB 104 (1974). In this regard, we also fmd
that the judge's reliance on Alle Arecibo Corp., 264
NLRB 1267 (1982), is misplaced because the facts
of that case are clearly distinguishable from those
of the present case. Unlike the instant situation,
both corporations, alleged to be a single employer
in Alle Arecibo, were owned and controlled by the
7 Radio Union v. Broadcast Service, 380 U.S. 255, 256 (1965).
8 Blumenfeld Theatres Circuit, 240 NLRB 206, 215 (1979), enfd. 626
F 2d 865 (9th Cir 1980). See also Emsing's Supermarket, 284 NLRB 302
(1987).
9 We note that, according to the record, Caputo's entry into LC S.'s
affairs in March 1980 did not change Ramsay's complete authority re-
garding I.C.S.'s labor policies and employment conditions.
IMAGE CONVENTION SERVICES

1039
same individuals, one of whom served as the presi-
dent and chief operating officer for both compa-
nies, and there was complete lateral or horizontal
integration of the two companies' operations as
well. In view of the foregoing, we conclude that
1.1 .1. and I.C.S. were not a single employer prior to
March 6, 1981.
Turning to the alter ego question, we observe
that the judge relied on his analysis pertaining to
the single-employer issue to find that I.I.I. and
I.C.S were alter egos prior to March 6, 1981.
When considering alter ego status, the Board tradi-
tionally will consider the following factors: wheth-
er the two entities have substantially identical own-
ership, business purpose, management, supervision,
operation, equipment, or customers, and whether
there exists an unlawful motive to avoid the labor
law obligations of one of the entities involved. Ad-
vance Electric, 268 NLRB 1001 (1984). As with the
single-employer test, no one factor of the alter ego
test is dispositive. After reviewing all the circum-
stances, more fully discussed below, we disagree
with the judge's determination and find no alter
ego relationship.
We initially note that I.I.I. and I.C.S. did not
have substantially identical ownership within the
meaning of that term as established in Board prece-
dent relating to single-employer/alter ego issues.
The judge erroneously overlooked the interests of
Phillip W. Allen at I.I.I. and Dorothea Smith at
I.C.S., who are, insofar as the record reveals, unre-
lated to Alexander Caputo. Cf. T E. Elevator
Corp., 268 NLRB 1461 (1984). Although Caputo
provides a link between the two companies, there
must be more than just some ownership similarity
before an alter ego status can be found. Cf. John
Fender Electric Co., 244 NLRB 957 (1979); Mor-
ton's I.G.A. Foodliner, 240 NLRB 1246 (1979). Nor
is this the type of situation in which the interests of
all the owners may be grouped together based on
such factors as a close familial relationship. See,
e.g., Crawford Door Sales Co., 226 NLRB 1144
(1976); Advance Electric, supra at 1004.
We next observe that I.I.I. and I.C.S. had differ-
ent business purposes, day-to-day management, su-
pervision, and modes of operations. Cf. T. E. Ele-
vator Corp., supra; Hiysota Fuel Co., 280 NLRB 763
(1986). LIE.!. was engaged as a travel agency, with
President Caputo serving as the Company's manag-
er of daily operations. On the other hand, I.C.S.
provided convention services, and President
Ramsay was in charge of daily operations. Cf. John
Fender Electric Co., supra. In addition, there is no
evidence that the two companies ever shared su-
pervisors.
We also note that there is no evidence that the
employees of I.I.I. and I.C.S. were engaged in the
same or similar work or regularly performed work
for one another. Cf. Leslie Oldsmobile, 276 NLRB
1314 (1985). Although they shared adjacent offices,
a stockroom, some office equipment, a bookkeeper,
and an insurance plan, the record reflects that ILI.
and I.C.S. maintained separate offices, furnished
their own office supplies, and separate work forces,
and followed separate pay practices. Cf. Leslie
Oldsmobile, supra.
Concerning the element of common customers,
the evidence clearly fails to show that they shared
the same customer base. In this respect, the one re-
ferral to I.I.I. by I.C.S. does not establish that they
served the same customers. Cf. Advance Electric,
supra at 1002-1003.
There remains for consideration the purpose
behind Caputo's involvement in I.C.S. The record
reflects that Caputo acquired his interest in I.C.S.
as a business investment and not as an attempt to
evade any labor law obligations. 10 In fact, I.C.S.,
which had been in existence since 1979, continued
to operate under the Union's contract for at least 9
months after Caputo's involvement in I.C.S. began.
Cf. Advance Electric, supra at 1004.
Based on all the foregoing considerations, we
fmd that I.I.I. and I.C.S. were not alter egos of
each other. Because we have determined that I.I.I.
and I.C.S. did not have a single-employer/alter ego
relationship prior to March 6, 1981, we also find
that the General Counsel failed to establish the
Board's jurisdiction over I.C.S., which no longer
operated as a separate entity after March 6, 1981.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
The recommeded Order of the administrative
law judge is adopted and the complaint dismissed.
MEMBER JOHANSEN, concurring in the result.
I concur with my colleagues' result in dismissing
the complaint in its entirety. I agree with the
judge's findings that there was no withdrawal of
recognition from the Union, nor a refusal to bar-
gain, and that the Union did not request bargain-
ing. I also adopt the judge's conclusions, for the
reasons he set forth, that, in the circumstances of
this case, the Respondent did not violate Section
8(a)(5) of the Act by declining to honor I.C.S.'s
collective-bargaining agreement with the Union be-
10 While the judge may be correct in findmg that the sale of the I.C.S.
assets to I.I.I. may not have been at arm's length, that finding alone is not
enough to warrant a finding of alter ego status prior to March 6 in light
of all the factors set forth above.
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause the contract was illegal under Section 302.
Accordingly, I find it unnecesary to resolve the
question whether prior to March 6, 1981, I.I.I. and
I.C.S. were a single employer and/alter egos of
one another.
Margaret J. Diaz, Esq., for the General Counsel.
Charles R. Fawsett, Esq., of Orlando, Florida, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLEop, Administrative Law Judge. This
case was heard before me on September 20 and 21 and
October 5, 1982, in Orlando, Florida. Thereafter, counsel
for the General Counsel filed a motion to reopen the
record. After this motion was granted, further hearing
was held on March 28, 1983. The case originated from a
charge filed on May 28, 1982, in the above-captioned
case against Image, Inc., d/b/a Image International, Inc.,
by International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators, Local No. 631
(Union).
On July 9, 1982, a complaint and notice of hearing
issued alleging that Image Convention Services, Inc. (Re-
spondent I.C.S.) and Respondent Image International,
Inc. (Respondent I.I.I.) are single-integrated business en-
terprise and that Respondents jointly violated Section
8(a)(1) and (5) of the National Labor Relations Act. Re-
spondents filed separate answers to the complaint in
which each denied proper filing and serving of the
charge, their alleged joint relationship, and the allegation
that either, or both, of them engaged in any conduct that
would constitute an unfair labor practice.
At the trial, all parties were represented and were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence.1
Following the close of the trial, both Respondents and
the General Counsel filed timely briefs with me, which
have been considered.2
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following findings of
fact and conclusions of law.
Allegations and Issues
The complaint alleges that Respondent I.C.S. is a Flor-
ida corporation engaged in the business of providing
convention services, such as the rental of audio/visual
equipment, lighting and electrical services, and entertain-
At the trial, the complaint was amended to mclude D.C. Enterprises,
Inc. as a named Respondent and to allege that it too is a single integrated
enterprise with Respondent I.C.S. and Respondent LI I. This allegation is
dealt with below
2 The motion of the General Counsel to correct the transcript is, for
the most part, unopposed by Respondents. Respondents argue, however,
that four of the requested corrections are more in the nature of improv-
ing the dialogue, rather than correcting it I have considered the motion
and Respondents' limited opposition I find the requested changes to be
accurate corrections which in no way detract from or alter the meaning
of any witnesses' testimony, and the General Counsel's motion to correct
the transcript is granted.
ment. It alleges that Respondent I.I.I., at one time a
Florida corporation, is also engaged in the business of
providing identical convention services. The complaint
alleges that Respondents have been affiliated business en-
terprises with common officers, ownership, director,
management, and supervision; have formulated and ad-
ministered a common labor policy; have shared common
premises and facilities; have provided services for each
other; have interchanged personnel; and have held them-
selves out to the public as a single integrated business en-
terprise. The complaint alleges that Respondents are a
single employer within the meaning of the Act. The
complaint alleges that Respondents are parties to a col-
lective-bargaining agreement with the Union pursuant to
which the Union has been recognized as the designated
exclusive collective-bargaining representative of Re-
spondent's maintenance, service, and manufacturing em-
ployees within the State of Florida. The complaint also
alleges that on December 16, 1981, while the collective-
bargaining agreement was still in effect, Respondent
withdrew recognition from the Union and repudiated the
collective-bargaining agreement, thereby violating Sec-
tion 8(a)(1) and (5) of the Act.
In their separate answers to the complaint, Respond-
ents both admit that a charge was served on Image, Inc.,
d/b/a Image International, Inc. shortly after May 28,
1982, but both over there is no such entity in existence.
Both Respondents allege that Respondent I.I.I. is an
active Florida corporation engaged primarily in the busi-
ness of a travel and transportation agency, which itself
does sufficient business within interstate commerce to be
subject to the jurisdiction of the Act. Respondents each
admit that Alexander Caputo is a stockholder of Re-
spondent I.C.S. and is president of Respondent I.I.I.
Each admits that Raymond Ramsay is president of Re-
spondent I.C.S. and a vice president of Respondent I.I.I.
Respondents each deny all other allegations of common
officers, owners, management, supervision, common
labor policy, common premises, interchange of person-
nel, and any relationship that might make them a single,
integrated business enterprise.
Respondents each proffer affirmative defenses that the
collective-bargaining agreement was solely between the
Union and Respondent I.C.S., which they claim was mis-
takenly referred to in the agreement as "Image Inc." In
its answer, Respondent I.C.S. alleges that it is no longer
doing business. Respondents also each allege that at the
time the collective-bargaining agreement was consum-
mated, Respondent I.C.S. had no employees. They argue
that because the agreement was an unlawful prehire
agreement, it was void ab initio or, alternatively, void-
able at will.
In their answers, Respondents each further contend
that the charge underlying the complaint is legally in-
valid in that it does not constitute a charge against either
of the Respondents.
In amended answers, the Respondents raised certain
additional affirmative defenses. Notably, both allege that
the Union was not the representative of a majority of
employees employed by Respondent I.C.S. in the con-
tractual bargaining unit and that Respondent I.C.S. had a
IMAGE CONVENTION SERVICES

1041
good-faith doubt of the Union's representative status,
thereby obviating Respondent I.C.S.'s obligation to rec-
ognize and bargain with the Union "or to adhere to any
of the terms of the purported agreement." In an amended
answer filed by Respondent 1I.I.I., the following state-
ment is also contained:
On December 16, 1981, this Respondent, in writing,
by letter addressed to the Charging Party, denied
the existence of any collective-barganing agreement
between the parties and, assuming there had been
any agreement, repudiated any such agreement.
Finally, Respondent III. alleged affirmatively that, if
anything, it is no more than a successor to Respondent
I.C.S. and, therefore, is not bound by the purported col-
lective-bargaining agreement between Respondent
and the Union. Respondent I.I.I. withdrew this allegation
at trial.
° In still later amended answers, Respondents each
allege that the purported collective-bargaining agreement
is illegal, invalid, and unenforceable because it requires
and calls for unlawful payments by the Employer to the
Union. Respondents argue that consequently the agree-
ment is void ab initio or, in the alternative, voidable at
will.
FINDINGS OF FACT
I. JURISDICTION
Although in their respective answers to the complaint
Respondent I.C.S. and Respondent III both deny
coming within the jurisdiction of the Act, in its answers,
Respondent I.I.I. admits it is an active Florida corpora-
tion with an office and place of business in Orlando,
Florida, from which it is engaged primarily in business as
a travel and transportation agency. Respondent I.I.I.
admits that during the past calendar year it derived gross
revenues in excess of $1 million and that it purchased
and received in Orlando, Florida, goods and materials
valued in excess of $50,000 directly from points outside
Florida. Based on these admitted facts, I find Respondent
LILL is, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The General Counsel did not offer evidence dealing
with the Board's jurisdiction over Respondent I.C.S. ide-
pendently. Rather, the General Counsel appears to rely
on proof of the joint employer/single-integrated enter-
prise allegation to establish Board jurisdiction over Re-
spondent I.C.S. That issue is considered in detail below.
IL THE LABOR ORGANIZATION
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators, Local 631 is an
organization that serves to represent employees in deal-
ing with employers for the purpose of negotiating wages,
hours, and working conditions. Local 631 is party to col-
lective-bargaining agreements with several employers in
the Orlando vicinity. Accordingly, International Alliance
of Theatrical Stage Employees and Moving Picture Op-
erators, Local 631 is a labor organization within the
meaning of Section 2(5) of the Act.
in. THE SINGLE EMPLOYER ISSUE
Respondent I.I.I. has been in business since 1975. It
was incorporated in that year and thereafter did business
until March 6, 1981, under the name Ye Olde Travel
Shoppe, Inc. Since March 6, 1981, Respondent I.I.I. has
done business as Image International, Inc., although its
legal name was not changed until sometime in the
summer of 1982. 3 When it was originally incorporated in
1975, Respondent 1.1.1. listed Alexander Caputo and
Phillip W. Allen as its incorporators, initial officers, and
directors. Caputo was listed as the initial purchaser of all
the corporate stock. Since its inception, Caputo has been
president and Allen vice president. Throughout its exist-
ence, Respondent I.I.I. has been engaged in business pri-
marily as a travel agency. Approximately 80 to 90 per-
cent of its business comes from selling airline tickets.
About 10 to 20 percent of its business comes from ar-
ranging and handling tours.
At some point after its inception, Caputo transferred
50 percent of the outstanding corporate stock to Allen.
Although the date of this transfer is not clear, it is clear
that immediately prior to March 6, 1981, Caputo and
Allen each owned 50 percent of the outstanding corpo-
rate stock. On March 6, 1981, in a transaction that is dis-
cussed in greater detail below, the percentage of stock
owned by Caputo and Allen was reduced. On that date,
Raymond Ramsay and Dorothea Smith each acquired 12
percent of the total stock. Caputo and Allen each re-
tained 35 percent of the stock, and the remaining 6 per-
cent became treasury stock held by the corporation.
Respondent I.C.S. was incorporated in April 1979.
Raymond Ramsay was the sole incorporator, officer, and
director at that time. Ramsay, however, disclaimed any
financial investment in Respondent I.C.S. A Dunn and
Bradstreet report received in evidence states that Caputo
formed Respondent I.C.S. Caputo denied this at the trial.
As described below, Caputo became a part owner at
least by March 1980.
According to Ramsay, Dorothea Smith provided ini-
tial financing for Respondent I.C.S., which began doing
business in approximately June 1979. As described in
3 Throughout this decision, the nomenclature Respondent LLI refers
to is Ye Olde Travel Shoppe, Inc., which is now officially known as and
doing business by the name Image International, Inc.
Since sometime in 1980, a different legal entity has existed that was in-
corporated under the name Image International, Inc. This entity was in-
corporated by Alexander Caputo and Phillip W. Allen, both of whom are
involved in this case. According to Caputo, this other entity was never
engaged in any business, and in July 1982 it changed its name to D.C.
Enterprises, Inc. at the same time that Ye Olde Travel Shoppe, Inc
changed its name to Image International, Inc. In spite of the General
Counsel amending its complaint to name D.C. Enterprises, Inc as a Re-
spondent and a single-integrated enterprise with Respondent I.I.I.and Re-
spondent I C.S., the corporate existence of D.C. Enterprises, Inc. has no
special significance to this case. No evidence was introduced to show
that it has ever been engaged in business or that it would meet any of the
tests for finding it to be a single-integrated enterprise, an alter ego, or a
joint employer with Respondent I.0 S. or Respondent W. There is
simply no evidence to show that it is anything other than an inactive cor-
porate shell. Accordingly, I will dismiss all complaint allegations relating
to D.C. Enterprises, Inc.
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
greater detail below, in September 1979, Ramsay signed
a collective-bargaining agreement on behalf of Respond-
ent I.C.S. with the Union. The collective-bargaining
agreement refers to Respondent I.C.S. as "Image, Inc."
In March 1980, Caputo purchased 50 percent of the
stock of Respondent I.C.S. for $5000 plus an agreement
to provide necessary capital if needed in the future.
Whether the stock was issued to her at the outset be-
cause of her initial financing or whether it was issued to
her at a later date, at least as of March 1980, Dorothea
Smith owned 50 percent of the stock in Respondent
I.C.S., with Caputo owning the other 50 percent.
Ramsay has been the president of Respondent I.C.S.
since its formation. Smith has been, and apparently still
is, the vice president. Caputo became treasurer at ap-
proximately the same time he purchased stock in March
1980.
Throughout all times relevant to this proceeding, Re-
spondent I.C.S. and Respondent I.I.I. have both been lo-
cated on the first floor of the Florida Center Bank Build-
ing in Orlando, Florida. Respondent I.I.I., having been in
business longer, was located there first. Beginning in
1979 and continuing until sometime in 1980, Respondent
I.C.S.'s first office interconnected with the office of Re-
spondent I.I.I. through a stockroom. At that time, Re-
spondent I.C.S. and Respondent I.I.I. shared the stock-
room for the storage of supplies. They also shared the
usage of a common paper copier and postage machine.
At a later point in time, Respondent I.C.S. moved to an-
other office that was across the hallway from Respond-
ent I.I.I. Since moving, the exterior door of the office
occupied by Respondent I.C.S. has, and continues to
have, the name "Image, Inc.," and "Image Convention
Services" painted on it.
Since at least October 1979, Caputo has been present
in the offices of Respondent I.C.S. several times each
week, and oftentimes every day. While Caputo approxi-
mated that he went to the offices of Respondent I.C.S.
only once or twice a week, and only to collect moneys
owed by Respondent I.C.S. to Respondent I credit
the testimony of other witnesses that Caputo was there
more frequently, often spending as much as 1 hour at a
time. While there, Caputo has spent much of his time in
discussions with Ramsay and Smith about business condi-
tions, financial matters, and future business prospects. At
the same time, Smith and Ramsay have gone from the
offices of Respondent I.C.S. to the offices of Respondent
I.I.I. at least once a day. Further, Respondent I.C.S. em-
ployees have gone to the offices of Respondent I.I.I. sev-
eral times each week in the performance of their duties
for Respondent I.C.S. When employee Janis Ellis began
working for Respondent I.C.S. in October 1979, her
tial paychecks were written by the bookkeeper of Re-
spondent I.I.I. The Respondents have had other irrela-
tionships as well. Originally, Respondent I.C.S. was re-
ferred to as "a division" of Respondent I.I.I. Beginning
in the fall of 1980, and continuing thereafter, Respondent
I.C.S. and Respondent I.I.I. have had a joint group
health insurance policy covering their employees. Both
have always shared the same toll free telephone number,
the same telex number, and the same corporate logo.
Since its inception, Respondent I.C.S. has been in busi-
ness to provide convention-related services, particularly
entertainment and parties with various themes. In con-
junction with its theme entertainment, Respondent I.C.S.
has provided decorations, lighting, electrical, and
audio/visual services, as well as transportation when
needed. As part of its advertising, Respondent I.C.S. has
published annual catalogues of services available. Includ-
ed in both the 1980 and 1980-1981 catalogues, Respond-
ent I.C.S. offers customers airline ticketing and hotel res-
ervations through a "totally automated" reservation
system, thereby making various services available to it as
a result of its relationship with Respondent W.
On March 6, 1981, Respondent I.I.I. purchased various
assets of Respondent I.C.S., including stage-type sets
used for two theme parties,' office furnishings, supplies,
hghting equipment, sound gear, and intangible assets in-
cluding accounts receivable and goodwill. Respondent
I.I.I. was assigned contracts to be performed after March
6. Although Caputo initially testified that Respondent
I.I.I. also assumed Respondent I.C.S.'s liabilities, he im-
mediately retracted/corrected this statement.4
There was no written contract concerning the March
6 sale of assets from Respondent I.C.S. to Respondent
I.I.I. Both Caputo and Ramsay testified initially that con-
sideration for this sale was $100,000. Caputo added that
part of the consideration was paid to Dorothea Smith
and Ramsay by each receiving 12 percent of the stock of
Respondent I.I.I. Ramsay testified that the $100,000 con-
sideration had not been paid. He then testified that it was
paid in "the form of a note." Later yet, Ramsay testified
he received a note for $21,000 from Respondent HI.,
signed by Caputo, but that he did not know if it was part
of the $100,000. Ramsay testified that he did not know if
there was an outstanding note for $100,000.
It is evident from the record that Caputo was primari-
ly responsible for the March 6 sale of assets. Caputo ex-
plained that the reason for the sale was that a corpora-
tion called Technical Industries, from which Respondent
I.C.S. obtained its audio-visual equipment, was on the
verge of bankruptcy. Caputo testified that because he
had a large personal investment in Respondent I.C.S., he
decided to try to purchase Technical Industries in order
to allow Respondent I.C.S. to continue to operate. Ac-
cording to Caputo, Respondent I.C.S. could not survive
without Technical Industries, which was Respondent
I.C.S.'s largest single source of revenue. Caputo thus
caused Respondent I.I.I. to purchase the audio-visual
4 The record reflects that checks were drawn by Respondent 11.1. to
pay for labor provided by the Union in March 1981 pursuant to the col-
lective-bargaining agreement. When asked why this had been done,
Caputo replied, "We were under an obligation to Image Convention
Services, because they didn't have any money One of the contracts that
was outstanding at that time, we had to honor. Seeing that Image Con-
vention Services didn't have any funds, we had to make that good" The
record, however, does not reveal any additional evidence that Respond-
ent III assumed preexisitng liabilities of Respondent I C.S. I do not con-
sider Caputo's testimony as evidence that Respondent I I I formally as-
sumed the liabilities of Respondent 1.0 S. I do, however, consider Capu-
to's testimony in determining the relationship between Respondent LI I
and Respondent LC S, and whether the purported sale of assets consti-
tuted an arm's-length transaction
IMAGE CONVENTION SERVICES 1043
assets of Technical Industries and the assets of Respond-
ent I.C.S.
As of March 6, all except one of Respondent I.C.S.'s
full-time employees became employees of Respondent
I.I.I. As indicated above, Caputo and Allen each now
owned 35 percent, and Ramsay and Smith each owned
12 percent of the total stock of Respondent I.I.I. Caputo
continues as the chief executive officer in control of op-
erations. Ramsay is responsible for marketing and sales.
Smith is responsible for "packaging" the programs.
In effect, Respondent purchased the entire ongo-
ing business of Respondent I.C.S. The business itself con-
tinues to operate as it did before. Respondent I.C.S. uses
on-call temporary labor for convention-related work and
setting up and dismantling theme parties. Because of the
temporary and seasonal nature of the convention-related
work, there is substantial turnover among the work force
of employees used for this work. Such was the case for
Respondent I.C.S., and such continues to be the case
with Respondent I.I.I. Prior to March 6, 1981, Respond-
ent I.C.S. utilized the hiring hall operated by the Union
for employees, as was provided for in the collective-bar-
gaining agreement. Since Respondent I.I.I. does not rec-
ognize that agreement, and has not obtained employees
through the hiring hall, the identity of employees has, of
course, changed somewhat over the ensuing months. The
record reflects, however, that many of the employees
used by Respondent I.C.S. to perform this convention-re-
lated work have continued to be used by Respondent
I.I.I. since March 6.
The physical offices occupied by Respondent I.C.S.
prior to March 6 on the first floor of the Florida Center
Bank Building remain as they appeared prior to. March 6.
The space previously rented by Respondent I.C.S., as
well as that previously rented by Respondent I.I.I. are
now both rented and paid for by Respondent I I I
"Image Convention Services" continues to be listed in
the Orlando Telephone Directory. At least for some time
after March 6, Ramsay continued to correspond with
various customers in the Orlando vicinity by himself as
an officer of "Image Convention Services." In addition,
the name "Image Convention Services" continued to be
used on contracts for services.
IV. THE UNFAIR LABOR PRACTICES
As referred to previously, on September 6, 1979, the
Union e xecuted a collective-bargaining agreement with
Respondent I.C.S. In that agreement, signed on behalf of
the Employer by Ramsay as its president, the Employer
was designated "Image, Inc." The agreement on its face
defines a presumptively appropriate bargaining unit, in-
cluding all maintenance, service, and manufacturing em-
ployees of the Employer within Florida. Included in the
agreement are wage rates for audio-visual technicians,
riggers, wardrobe employees, sound employees, exhibit
handlers, and grip employees, all of whom are used to
set up, dismantle, and operate equipment in convention-
related shows and theme parties. The agreement also
provides that wages be paid not to employees, but to the
Union, who is then responsible for disbursing these
moneys to the employees. Pursuant to the agreement,
Respondent I.C.S. utilized the Union's hiring hall to
obtain labor from September 1979 through approximate-
ly December 1980 or January 1981. Although the date is
not certain, the record reflects that a few months prior
to March 1981, Respondent I.C.S. unilaterally ceased
using the Union's hiring hall as the sole source of em-
ployees to perform bargaining unit work. The Union,
however, did not become aware of this until a later date,
in part because the hiring hall was used to obtain at least
some employees through March 1981. Checks received
by the Union for work performed by employees pursuant
to the collective-bargaining agreement from September
1979 until March 1981 were those of Respondent I.C.S.
In March 1981, Dorothea Smith informed the Union that
the Employer's name was being changed "but not to
worry about it." Checks received by the Union for work
performed in March 1981 first contained the name "Ye
Olde Travel Shoppe" and then later contained the name
"Image International, Inc."
Late in 1981, as convention business began to increase
following the usual summer lull, the Union became
aware that Respondent I.C.S. was no longer using its
hiring hall. By letter dated December 9, 1981, to
Ramsay, as president of Image, Inc., the Union informed
Ramsay that it had become aware of an October 1981
advertisement for employees in a local newspaper. The
letter requested that the collective-bargaining agreement
be adhered to and that Ramsay contact the Union to dis-
cuss what actions needed to be taken in that regard. By
letter dated December 16, 1981, Ramsay replied to the
Union stating that the Union's contract was with Re-
spondent I.C.S., which had ceased doing business as of
March 1, 1981. Ramsay further stated the October adver-
tisement had been placed by "Image International, Inc.,"
which had no contract with the Union. Ramsay stated
that questions regarding Image International, Inc. should
be addressed to its president, Albert Caputo. The letter
was signed by Ramsay as executive vice president of Re-
spondent I.I.I. By letter dated December 21, 1981, ad-
dressed to Caputo, the Union demanded that Respondent
I.I.I. abide by the terms of the collective-bargaining
agreement pursuant to the "successors" clause. By letter
dated January 18, 1982, Caputo replied to the Union as
follows:
If you will check with the Secretary of the State
of Florida, you will find that Image International,
Inc., is a new corporation in good standing.
Our corporation does not in fact have or has
never at anytime had any type of contract with
your local.
The Union filed the charge in the instant case on May
28, 1982. On its face, the charge named Image, Inc.,
dibia Image International, Inc. as the employer. The
charge was served on and signed for by Dorothea Smith
on May 29, 1982. In testimony, Caputo confirmed that a
copy of the charge was also given to him personally by
the Board agent during investigation of the charge prior
to issuance of the complaint on July 9, 1982.
By letter dated July 9, 1982, on stationery bearing the
a heading "Image Inc." and "Image Convention Services,
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Incorporated," Ramsay informed the Union that al-
though it never had a legal collective-bargaining agree-
ment with the Union, the letter was intended as notice of
termination of any agreement that might have existed.
The letter concluded
We do not have any proposed change or changes
in the agreement, rather, it is in our intent to termi-
nate the "agreement" to the extent, if at all, any
agreement exists.
To the extent necessary to comply with Section
8(d)2 of the Labor-Management Relations Act, we
will meet and confer with you upon request and
will otherwise meet any obligations we may have to
your organization under that section.
By letter dated July 16, the Union responded, stating
that it did not understand Ramsay's July 9 letter. The
Union referred to the pending Board case and stated it
would be happy to meet to attempt to resolve the
matter. There has been no further contact or communi-
cation between the Union, Respondent I.C.S., and/or
Respondent I.I.I.
Analysis and Conclusions
The General Counsel argues that Respondent I.C.S.
continues to exist and that because it continues to exist
its obligation to bargain with the Union continues to
exist. Alternatively, the General Counsel argues that Re-
spondent I.C.S. and Respondent MI. now compromise a
single employer or alter ego regarding the convention-re-
lated work. It is true, as the General Counsel notes, that
Image Convention Services, Inc. continues to exist as a
Florida corporation. The fact that the corporate entity
has not been dissolved and continues to exist, however,
does not mean that the convention-related work now
performed by Respondent I.I.I. is work of Respondent
I.C.S. Although the corporate entity Image Convention
Services, Inc. continues to exist, there is no evidence that
since March 6, 1981, it has engaged in any business or
utilized employees in the bargaining unit represented by
the Union. Similarly, the General Counsel's argument
that Respondent I.C.S. and Respondent III. are now a
single employer or alter ego regarding the convention-re-
lated work tends to be misplaced. That argument com-
pletely ignores the entire concept of successorship and
the attendant consequences. The fact that work that had
previously been performed by Respondent I.C.S. is now
performed in exactly the same way by Respondent I.I.I.
is entirely consistent with Respondent 1.1.1. merely being
a successor to Respondent I.C.S. In fact, one of the tests
for successorship pursuant to the Supreme Court deci-
sion in NLRB v. Burns International Security Services, 406
U.S. 272 (1972), is that the successor employer continue
the business in substantially the same form as the prede-
cessor. If drastic and radical changes are made in the
way the predecessor did business, the purchaser may not
even be found to be a successor.
Thus, in the most fundamental sense, the General
Counsel's argument tends to place the cart before the
horse. My analysis lead's me to the conclusion that one
must first consider the relationship between Respondent
I.C.S. and Respondent I.I.I. prior to March 6, 1981. If
the two entities were unrelated business enterprises prior
to that date, and the sale of assets on March 6 constitut-
ed an arm's-length transaction, then it appears to follow
that regarding the convention-related work, Respondent
I.I.I. is no more than a successor to Respondent I.C.S.
As a successor, its obligation would extend to continuing
the bargaining relationship with the Union, but not nec-
essarily to adopting the collective-bargaining agreement
between Respondent I.C.S. and the Union. If, on the
other hand, Respondent I.C.S. and Respondent Lid. con-
stituted a single employer or alter ego prior to March 6,
1981, the sale of assets would appear to constitute no
more than a consolidation or constriction of their joint
enterprise, thereby having no requisite effect on either
the collective-bargaining relationship or the existing col-
lective-bargaining agreement between Respondent I.C.S.
and the Union. Hence, my analysis focuses on the rela-
tionship between Respondent I.C.S. and Respondent
W. prior to March 6, 1981, rather than afterwards. The
sales of assets on March 6 is considered in conjunction
with whether an arm's-length relationship existed be-
tween the Respondent I.C.S. and Respondent III prior
to, and on, that date.
In determining whether two separately incorporated
entities constitute a single employer, the Board evaluates
four key elements: common ownership and financial con-
trol, common management, interrelation of operations,
and centralized control of labor relations. Alle Arecibo
Corp., 264 NLRB 1267 (1982). It is obvious that prior to
March 6, 1981, ownership of Respondent LILL and Re-
spondent I.C.S. were not entirely the same. Nevertheless,
there was substantial common ownership. Caputo origi-
nally formed Respondent W. and initially owned 100
percent of its stock. Caputo later transferred 50 percent
of the stock to Philip Allen, but as of March 6, Caputo
continued to own the other 50 percent. The record in
this case suggests rather strongly that Allen was more in
the nature of a silent, or at least inactive, "partner."
Caputo was at all times the chief executive officer of Re-
spondent and in total charge of its operations, in-
cluding financial matters. Caputo was also a 50-percent
owner of Respondent I.C.S. after March 1980. The
record shows very clearly by Caputo's own testimony
that since that time he has been the person in primary, if
not total, fmancial control of the business of Respondent
I.C.S. Caputo himself testified that it was because of his
substantial investment in Respondent I.C.S. that Re-
spondent III. purchased the assets of Technical Indus-
tries as well as those of Respondent I.C.S. itself. Caputo
also exercised this financial control of both entities in the
day-to-day management of their operations. He was di-
rectly in charge of the operations of Respondent III.
Ramsay was normally in charge of the day-to-day oper-
ations of Respondent I.C.S. The credited testimony,
however, relfects that Caputo carefully oversaw Ram-
say's work and consulted with Ramsay on a daily basis
regarding the operations of Respondent I.C.S. Even in
its inception, Respondent I.C.S. relied substantially on
services available to it and rendered by Respondent LH.
They shared interconnecting office space, a common
IMAGE CONVENTION SERVICES 1045
•
stockroom, paper copier, and postage machine. They
shared a common toll-free telephone number and telex
number. Their employees were members of a single
group for purposes of their health insurance plan. Signifi-
cantly, they even shared the same common corporate
logo. In its catalogue of services, Respondent I.C.S. of-
fered customers a computerized reservation system,
which in fact belonged to Respondent I.I.I.
'The March 6, 1981 sale of assets by Respondent I.C.S.
to Respondent I.I.I. is particularly revealing of the char-
acter of the relationship that existed between the two en-
tities. First, there was no written contract or bill of sale.
Ramsay, the president of Respondent I.C.S., testified that
he did not even know if any consideration was in fact
passed in conjunction with the sale. Whether purposely
allusive or actually ignorant of the facts, Ramsay even
seemed uncertain on the form and character of the con-
sideration that he himself was supposed to have received
in conjunction with that transaction. All in all, what took
place on March 6, 1981, in conjunction with the sale of
assets is hardly the the type of dealing that one would
normally expect in arm's-length transaction of that mag-
nitude. This conclusion is dramatized by the fact that
while Respondent I.I.I. did not assume the liabilities of
Respondent I.C.S., it nevertheless chose to "make good"
at least some of its liabilities.
Based on all the above, I conclude that prior to March
6, 1981, Respondent I.C.S. and Respondent I.I.I. were a
single employer and/or alter egos of one another. The
March 6, 1981 sale of assets by Respondent I.C.S. to Re-
spondent I.I.I. did nothing to change that single employ-
er relationship. Rather, it served only to further consoli-
date and formalize their existing interrelationship as a
single employer and/or alter ego. Respondent I.I.I. and
Respondent I.C.S. were, and are, mutually and jointly re-
sponsible for complying with the collective-bargaining
agreement with the Union.
Respondents' argument that the collective-bargaining
agreement was void ab initio and/or voidable at will be-
cause it was entered into at a time when Respondent
I.C.S. had no employees is clearly without merit since
the Union's initial recognition cannot now be attacked by
Respondents. Machinists Local 1424 v. NLRB, 362 U.S.
411 (1960). Similarly, Respondent's argument that it was
free to void the collective-bargaining agreement at will
based on an actual or good-faith doubt that the Union
did not represent a majority of employees is without
merit, for is it well settled that during the term of a col-
lective-bargaining agreement there exists an irrebuttable
presumption of the Union's status as majority representa-
tive. Cauthorne Trucking, 256 NLRB 721, 722 (1981).
There remains for consideration Respondents' addi-
tional argument that the collective-bargaining agreement
is void and/or voidable at will because it contains an un-
lawful provision calling for payment of moneys directly
to the Union. The collective-lbargaining agreement be-
tween the Union and Respondent I.C.S. contains three
provisions relevant to this issue. Article III, entitled
"Union Security," contains the following:
Section III: Checkoff
The Union will be responsible fOr the collection
of dues and assessments as provided by the Local's
Constitution and By-Laws. The leadman will supply
the Company and the Union with copies of all time
sheets, and the Company will forward all wages to the
Union for the disbursement of said wages. It is further
agreed that said monies will be deposited in the
Local office on Fridays. [Emphasis supplied.]
Article XIII, entitled "General Provisions," contains the
following:
Section VI: Paydays
The Union shall be paid on a weekly basis, each
Friday, for the duration of this agreement and for
any extension thereof, except that, in the event that
Friday falls on a holiday, payment will be made on
the preceding day. Final disbursement to be handled
by the Union. [Emphasis supplied.]
Article XVI, entitled "Categories of Work and Wage
Rate," provides:
Section III:
A service charge of seven percent of employees
wages will be paid to the Union for the handling of
workman's compensation insurance and disburse-
ment of employee wages effective September 5,
1979.
The record does not reflect whether the 7-percent
service charge paid to the Union puruant to article XVI
was paid in addition to wages owed to employees, or
whether the Union withheld for itself 7 percent of the
total amount tendered by the Employer as wages owed
to employees. Thus, the exact procedure by which these
contract provisions were carried out is not revealed in
full detail by this record. Nevertheless, this record does
make clear that wages owed to employees were not paid
to them, but were paid by check to the Union. Based on
the timesheets referred to in article III, section III, sup-
plied to both the Union and Respondent I.C.S. by the
leadman, the Union then determined the actual amount
of wages owed to each employee and made that payment
itself directly to the employee.
Before making any finding whether these contractual
provisions violate Section 302 of the Labor Management
Relations Act, an initial question to be resolved is wheth-
er I, as an administrative law judge, possess the authority
to make a determination of that issue. In John F. Boyle
Co., 222 NLRB 1309 (1976), the Board held that an em-
ployer's refusal to honor the requirements of a collec-
tive-bargaining agreement that violates Section 302 will
not constitute a violation of Section 8(a)(5) and (1) of the
Act. In Sheet Metal Workers International Assn., 234
NLRB 1238 (1978), the Board found that the administra-
tive law judge did not possess the authority to determine
whether provisions of a collective-bargaining agreement
violated Section 302. In Sheet Metal Workers Assn., supra
at 1242 fn. 18, however, the Board specifically distin-
guished John F. Boyle Co. In doing so, the Board stated:
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unlike the instant case where we are first asked to
make an actual finding with respect to the validity
of the trust fund under Sec. 302(c)(5) and then, in
turn, premise an unfair labor practice finding there-
on, in John F. Boyle Company, we merely referred
to Sec. 302 as an aid in determining whether the
Respondent therein had, in fact, violated Section
8(a)(5). In our view, the difference between the two
cases is substantial.
Hence, in Sheet Metal Workers International Assn., supra,
the Board refused to fmd whether a portion of a collec-
tive-bargaining agreement violated Section 302 of the
Act when such a finding was a necessary prerequisite or
the "premise" on which the unfair labor practice finding
would be based. Such is not the case here. Rather, this
case is consistent with, if not identical to, John F. Boyle
Co. in that if the collective-bargaining agreement violat-
ed Section 302 of the Act, it would serve as a defense
rather than as a prerequisite to finding a violation of Sec-
tion 8(a)(5) of the Act. Accordingly, I conclude that it is
appropriate for me to consider whether those provisions
of the collective-bargaining agreement quoted above vio-
late Section 302 of the Act.
Section 302 of the Act provides in pertinent part:
(a) It shall be unlawful for any employer or asso-
ciation of employers or any other person who acts
as a labor relations expert, adviser, or consultant to
an employer or who acts in the interest of an em-
ployer to pay, lend, or deliver, or agree to pay, lend,
or delive • . . any money or other thing of value—
(1) To any representative of any of his employees
who are employed in an industry affecting com-
merce; or
(2) To any labor organization, or any officer or
employee thereof, which represents, seeks to repre-
sent, or would admit to membership, any of the em-
ployees of such employer who are employed in an
industry affecting commerce;
. . . .
(b)(1) It shall be unlawful for any person to re-
quest, demand, receive, or accept, or agree to re-
ceive or accept, any payment, limn, or delivery of
any money or other thing of value prohibited by
subsection (a). [Emphasis supplied.]
Section 302 contains certain specific exceptions to the
statutory prohibition quoted above. Only two of these
exceptions are of arguable relevance to the instant case.
Section 302(c) provides in part:
The provisions of this section shall not be appli-
cable . . . (4) with respect to money deducted from
the wages of employees in payment of membership
dues in a labor organization: provided, that the em-
ployer has received from each employee, on whose
account such deductions are made, a written assign-
ment which shall not be irrevocable for a period of
more than one year, or beyond the termination date
of the applicable collective-bargaining agreement,
whichever occurs sooner; (5) with respect to thoney
or other thing of value paid to a trust fund estab-
lished by such representative, for the sole and ex-
clusive benefit of the employees of such employer
. . provided. . . (B) the detailed basis on which
such payments are to be made is specified in a writ-
ten agreement with the employer, and employees
and employers are equally represented in the admin-
istration of such fund. . . .
Although article III, section III of the collective-bar-
gaining agreement is entitled "Check Off" and directs
itself initially to the collection of union dues, the con-
tractual provision goes far beyond the collection of
union dues. Rather, the agreement expressly requires that
"the Company will forward all wages to the Union for
the disbursement of said wages." Thus, I find that the ex-
ception contained in Section 302(c)(4) does not apply.
Regarding Section 302(c)(5), that section requires that
such moneys be paid to a trust fund and that employees
and employers be equally represented in the administra-
tion of such a fund. Here, the moneys were not paid to
any trust fund, but rather to the Union itself. Even if it
could be argued that the Union held such funds in
escrow for the benefit of employees, Section 302(c)(5)(B)
specifically requires that employers be equally represent-
ed in the adminstration of such a fund. In the instant
case, once the Employer paid the Union a sum equal to
the amount of wages owed employees, the Union was in
the sole charge of paying employees the amounts that it
concluded they were due. Hence, I find that neither of
the exceptions contained in Sections 302(c)(4) or (5) are
applicable in this situation. Sections 302(a) and (b)(1) are
clearly violated by the collective-bargaining agreement
between the Union and Respondent I.C.S. Accordingly,
Respondent's refusal to honor the collective-bargaining
agreement with the Union will not be found to constitute
a violation of Section 8(a)(5) of the Act.5
The sole issue remaining for consideration is whether
Respondents not only abrogated their collective-bargain-
ing agreement with the Union, which I have found not
to be a violation of Section 8(a)(5) of the Act, but
whether they also withdrew recognition from the Union,
which might itself constitute a violation of Section
8(a)(5) of the Act. It does not follow that because Re-
spondents were free to terminate the collective-bargain-
ing agreement, they were also free to withdraw recogni-
tion from the Union. While the main thrust of the Gener-
al Counsel's argument relates to repudiation of the col-
lective-bargaining agreement, the complaint also specifi-
cally alleges that Respondents unlawfully withdrew rec-
ognition from the Union. It may first be noted that either
as alter ego or as a single integrated employer, Respond-
5 I am well aware that the effect of my finding here is to allow Re-
spondents to abrogate the entire collective-bargaining agreement with the
Union even though only three of its many revisions violate Sec. 302 of
the Act. In another case, an employer might not be permitted to abrogate
the entire collective-bargaining agreement as a result of only certain por-
tions of agreement violating Sec. 302 when the remainder of the agree-
ment might otherwise be meaningfully and substantially implemented. In
this case, however, those sections of the agreement that violate Sec. 302
constitute the very heart of the agreement—the payment of wages Thus,
to hold otherwise in this case would in effect, require me to wnte the
collective-bargaining agreement, which clearly the Board does not have
the authority to do. H. K Porter Co. v. NLRB, 397 U S. 99 (1970).
,
IMAGE CONVENTION SERVICES

1047
ent I.C.S. and Respondent III. shared a joint and
mutual obligation to recognize and bargain with the
Union. Big Bear Supermarkets No. 3, 239 NLRB 179
(1978). 6 In one of the other amended answers to the
complaint, Respondents both allege that the Union was
not the representative of a majority of employees in the
contractual bargaining unit and that Respondent I.C.S.
had a good-faith doubt of the Union's representative
status, thereby obviating Respondent I.C.S.'s obligation
to recognize and bargain with the Union. Respondents,
however, offered no evidence to support the claimed
good-faith doubt of majority status. Indeed, neither at
the time Respondent I.C.S. ceased using the Union's
hiring hall, nor at the time of the sale of assets from Re-
spondent I.C.S. to Respondent I.I.I. on March 6, 1981, is
there any evidence that the Union did not, in fact, repre-
sent a majority of employees in the contractual bargain-
ing unit. Notwithstanding all the above, my own inde-
pendent analysis of the record leads me to the conclusion
that Respondents never actually withdrew recognition
from the Union, and no violation of Section 8(a)(5) of
the Act can be found. The Union's letter of December 9,
1981, addresses itself only to alleged violations of the
collective-bargaining agreement and a request that Re-
spondent I.C.S. abide by the terms of that agreement.
Ramsay's December 16 letter in response similarly ad-
dresses itself only to the existence of a collective-bargain-
ing agreement. Ramsay's December 16 letter was fol-
lowed by a letter from the Union, on December 21, to
Caputo. This December 21 letter, like the December 9
letter, addresses itself exclusively to compliance with the
collective-bargaining agreement between the Union and
Respondent I.C.S. Caputo's letter of January 18, 1982,
responding to the Union's December 21 letter, also ad-
dresses itself exclusively to the existence of a collective-
bargaining agreement. There was no further contact or
communication between the parties until July 9, 1982,
when Ramsay, as president of Respondent I.C.S., wrote
the Union giving notice to terminate the collective-bar-
gaining agreement pursuant to Section 8(d) of the Act.
The final paragraph of that July 9 letter by Ramsay
states:
To the extent necessary to comply with Section
8(d)(2) of the Labor Management Relations Act, we
will meet and confer with you upon request and
will otherwise meet any obligations we may have to
your organization under that Section.
The Union, however, never requested bargaining.
Rather, the Union responded by letter dated July 16,
1982, stating
We are not in a position to comment on your
letter due to the fact that we are not familiar with
the facts which you mentioned in your letter [dated
July 9].
There is presently an action pending with the
NLRB Regional Office in Tampa, which comment-
ly [sic] incorporates all the true facts regarding the
conditions which now exists between this Local
Union and your Company.
An accordance [sic] with the suggestion of
NLRB, we will be happy to meet with you in an
attempt to resolve the present case which has been
filed against your Company, and has been further
recognized as a continuing unfair labor practice by
your Company.
Since that letter from the Union on July 16, 1982,
there has been no contact or communication between the
parties. In sum, all communications from the Union to
Respondents have been demands that Respondents rec-
ognize and abide by the terms of the collective-bargain-
ing agreement. Respondents have clearly refused to rec-
ognize that agreement. In Ramsay's July 9 letter, howev-
er, he specifically states his willingness to meet and
confer with the Union on request. Because the Union has
opted to press only its contention that Respondents are
bound by the collective-bargaining agreement, the Union
has not requested Respondents to meet and confer for
the purpose of attempting to negotiate a new collective-
bargaining agreement. Hence, I conchide that the facts
do not warrant a: finding that Respondents have with-
drawn recognition from the Union in violation of Section
8(a)(5) of the Act. Accordingly, I am constrained to rec-
ommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1.Image International, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators, Local No.
631 is a labor organization within the meaning of Section
2(5) of the Act.
3. Image International, Inc. and Image Convention
Services, Inc. are alter egos and/or joint employers and,
as such, are both employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
4. By refusing to honor the collective-bargaining
agreement between Image Convention Services, Inc. and
the Union, Image Convention Services, Inc. and Image
International, Inc. have not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act as alleged in the complaint.
5. Image Convention Services, Inc. and Image Interna-
tional, Inc. have not withdrawn recognition from, or re-
fused to bargain with, the Union in violation of Section
8(a)(5) and (1) of the Act as alleged in the complaint.
6 Even if Respondent II 1 had not been found to be the alter ego of,
or a joint employer with, Respondent 1 C $., but rather had been found
only to be a successor employer, the bargaining obligation would never-
theless survive NLRB v. Burns Security Services, 406 U S 272 (1972)
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the findings of fact and conclusions of
law, it is recommended that that complaint be dismissed
in its entirety.7
7 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses,