James Troutman & Associates, And Sync-Pop, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1990

299 N.L.R.B. 120 (N.L.R.B. 1990)

120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
James Troutman & Associates, and Sync-Pop, Inc.
and Motion Picture and Videotape Editors'
Guild Local 776, International Alliance of The-
atrical and Stage Employees
Sync-Pop, Inc. and C. Dellinger and Susan Holz-
born and Tom Whiting. Cases 31-CA-16176,
31-CA-16346, 31-CA-16462, 31-CA-16518,
and 31-CA-16733
July 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On November 29, 1989, Administrative Law
Judge Richard J Boyce issued the attached deci-
sion The Respondents filed exceptions without a
supporting brief, the General Counsel filed an
answer to, and motion to strike, exceptions, and the
Respondents filed a document opposing the Gener-
al Counsel's motion to strike
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 has decided to
affirm the judge's rulings, findings,' and conclu-
sions for the reasons set forth below, and to adopt
the recommended Order
Section 102 46(b)(1) of the Board's Rules and
Regulations sets forth the minimum requirements
with which exceptions to an administrative law
judge's decision must comply in order to merit
consideration by the Board An excepting party
must (1) specifically set forth the questions of pro-
cedure, fact, law, or policy to which exception is
taken, (2) identify the portion of the judge's deci-
sion in dispute, (3) cite precisely pages in the
record supporting the excepting party's exception,
and (4) concisely state the grounds for exception If
a supporting brief is filed, the exceptions document
shall not contain argument or case citation, but,
If no supporting brief is filed the exceptions
document shall also include the citation of au-
thorities and argument in support of the excep-
tions, in which event the exceptions document
shall be subject to the 50-page limit as [set
forth] for briefs [Sec 102 46(b)(1) ]
The Respondents filed exceptions without a sup-
porting brief The Respondents' opposition docu-
ment acknowledges that the brief submitted to the
judge, which is attached to the exceptions docu-
ment, is not submitted to the Board in support of
, The Respondents' request for oral argument is denied
the exceptions 2 Thus, the exceptions document
must, in addition to satisfying the first four require-
ments listed above, support the contentions with
"the citation of authorities and argument" Id
The Respondents' exceptions document is 100
pages and contains 218 exceptions Exceptions 1
through 215 specify the portion of the judge's deci-
sion that is claimed to be erroneous Part of each
exception is a comment The Respondents appar-
ently suggest either (1) that it is sufficient to identi-
fy the portion of the judge's decision to which ex-
ception is taken or (2) that the comments satisfy
the Rule's requirements that argument and citation
to the record be included If the exceptions suf-
fered merely from technical deficiencies, the Board
might well proceed to the merits of the case, as it
is within the Board's perogative to consider excep-
tions that do not fully comport with the Rules so
long as there is substantial compliance 3
However, after carefully reviewing each of the
Respondents' exceptions, the Board finds that they
are so deficient as to warrant striking Most of the
exceptions cite no legal authority and no transcnpt
pages or any other record evidence that purported-
ly would support the contention that the judge
erred Further, the exceptions fail to allege with
particularity on what grounds the judge's purport-
edly erroneous findings should be overturned De-
spite the comments, the Board has been unable,
based on the exceptions document, to determine
what the grounds for the exceptions are, what the
Respondents believe the facts of the case to be, or
what the Respondents' legal arguments are 4
In Alto° Painting Corp. 238 NLRB 366 (1978),
the Board stated
If a party intends to place a matter in issue, it
is incumbent upon that party to notice such
2 Indeed, it could not be, for such a supporting brief would exceed the
50-page limit and the Respondents have not obtained permission to
exceed the length limit
Additionally, we observe that the Respondents are incorrect that the
Board's Rules set no page limit on exceptions Sec 102 46(bX1) clearly
states that an exceptions document unaccompanied by a supporting brief
is subject to the 50-page limit unless permission to exceed the limit is ob-
tamed Notwithstanding the Respondents' failure to seek permission to
file its nonconforming exceptions document we shall, nevertheless, not
reject it on that basis
3 Monarch Machine Tool Co, 227 NLRB 1265 fn 2 (1977)
4 Indeed, we note that the exceptions are "so ambiguous as to be total-
ly ineffective to adequately appnse the Board" of the nature of the alle-
gations raised NLRB v &fistula Bros Lumber Co. 253 F 2d 371, 374
(9th Cir 1958) Cf NLRB v Southwest Security Equipment Corp, 736
F 2d 1332 (9th Cif 1984), cert denied 470 U S 1087 (1985) (exceptions
which objected to judge's finding and conclusion of law regarding refer-
ral and were supplemented 15 days later by bnef raising legal issue of the
survivability of the hiring hall clause were timely filed under Sec
102 46(b) The Instant case Illustrates the need for this rule The hearing
lasted 19 days, the record Includes over 3100 transcript pages as well as
approximately 100 accepted and 100 rejected exhibits, many of which
contain numerous pages Undoubtedly, the issues litigated were factually
as well as legally complex
299 NLRB No 19
JAMES TROUTMAN & ASSOCIATES 121
contentions to the Board with specificity By
its "exceptions" here, Respondent would have
the Board engage in a fishing expedition to de-
termine what, if any, problems, irregularities,
or manifest error ensued
The Board has neither the obligation nor the re-
sources to engage in such a fishing expedition It is
the excepting party's duty to frame the issues and
present its case to the Board 5
Accordingly, we find that the Respondents' ex-
ceptions fail to put in issue any of the findings of
the judge We therefore grant the General Coun-
sel's motion to stnke the exceptions, and we adopt
the judge's decision 6
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, James
Troutman & Associates, and Sync-Pop, Inc , Bur-
bank and Glendale, California, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order
5 In addition to the case cited in the text, see Worldwide Detective
Bureau, 296 NLRB 148 (1989), Bonanza Sirloin Pit, 275 NLRB 310
(1985), Fiesta Printing Co, 268 NLRB 660 (1984), and Ditch Witch of
Central Illinois, 248 NLRB 452 (1980)
We recognize that in many of the cases we cite, the Board faulted the
excepting party for failing to identify the portions of the judge's decision
that were claimed to be erroneous and that the Respondents' exceptions
do identify the portions of the judge's decision to which exception is
taken Nonetheless, as our decision and our rules make clear, the except-
ing party's obligation does not end with a wholesale listing of specific
pages and lines in the judge's decision to which exception is taken It
must be possible for the Board to understand from a reading of the ex-
ceptions why the excepting party believes that the Judge erred and what
significance the purported error has on the outcome of the case If the
Board is unable to determine the grounds on which a party believes the
judge's findings should be overturned, the Board cannot be required to
search the record as an advocate for the excepting party
To the extent that exceptions 2, 6, 18, 22, 24, 29, 30, 31, and 154 ar-
guably comply with Sec 102 46(b), we find that they lack ment or the
Respondents have failed to show how these exceptions would affect the
judge's conclusions See Worldwide Detective Bureau, supra at 3 fn 3
Mon Pam Rubin, Esq, for the General Counsel
James W McCord, Esg (Vars, Pave, McCord & Freed-
man), of Encino, California, for Respondent 'Trout-
man
Michael K Schnuer, Esg (Schmier & Schmier), of Los
Angeles, California, for Respondent Sync-Pop
Ira L Gottlieb, Esq (Taylor, Roth, Bush & Geffner), of
Los Angeles, California, for Local 776
DECISION
STATEMENT OF THE CASE
RICHARD J BOYCE, Administrative Law Judge This
matter was tned in Los Angeles, California, over 19
days, starting on March 8, 1988, and concluding on Janu-
ary 26, 1989 1
The consolidated complaint, based on charges filed by
Motion Picture and Videotape Editors' Guild Local 776
(Local 776), International Alliance of Theatncal and
Stage Employees (IATSE), and by three individuals,
Craig Dellmger, Susan Holzborn, and Tom Whiting, al-
leges in essence that James Troutman & Associates
(JT&A) and Sync-Pop, Inc (Sync-Pop) are alter egos
and a single employer, or, alternatively, that Sync-Pop is
JT&A's successor, and that they violated Section 8(a)(5)
and (1) of the National Labor Relations Act (Act) by
(a) Sync-Pop's refusal, since its inception in Octo-
ber 1986, to assume the bargaining obligations de-
volvmg upon it as JT&A's alter ego or successor,
(b) Sync-Pop's failure, since at least March 3,
1987, to submit contractually-mandated reports and
contnbutions to pension and health-and-welfare
trusts,
(c) Sync-Pop's failure, since May 1987, to comply
with its contractual obligation to submit to arbitra-
tion,
(d) Sync-Pop's refusal to comply with arbitration
awards adverse to JT&A,
(e) JT&A's failure to honor Local 776's requests
of October 23, 1986, that it bargain concerning the
effects on its employees of changes in its operations,
and that it provide Local 776 with specified infor-
mation regarding JT&A's circumstances, and,
(t) Sync-Pop's failure to honor Local 776's re-
quest of January 23, 1987, that it provide Local 776
with specified information regarding Sync-Pop's cir-
cumstances
The complaint further alleges that Sync-Pop violated
Section 8(a)(2) and (1) of the Act on about October 20,
1986, when its president, Clancy Troutman, "urged its
employees to sign IATSE authonzation cards", and that
Sync-Pop violated Section 8(a)(1) in March or April
1987 when Clancy "threatened" Susan Holzbom, an em-
ployee, "with discharge and other adverse consequences
because a grievance was filed by the Union concerning
her"
I JURISDICTION
JT&A and Sync-Pop are California corporations
JT&A was engaged in postproduction sound editing in
the film industry until purportedly becoming inactive in
October 1986 Sync-Pop came into being that same
month, and since has been engaged in the same business
JT&A's 1986 revenues exceeded $50,000 from produc-
tion companies whose annual revenues from outside Cali-
fornia exceed $50,000 Sync-Pop, in its first year, realized
revenues exceeding $50,000 from outside California
Trial dates were March 8 to 11, March 21 to 23, March 29, April 26,
September 22 and 23, November 8 to 10, and December 20 and 21, 1988,
and January 24 to 26, 1989 The delay from April 26 to September 23
was to enable the General Counsel to obtain subpoena-enforcement
orders in Federal district court
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on my determination below that Sync-Pop is
JT&A's alter ego, I conclude that the two, jointly, are an
employer engaged in and affecting commerce within
Section 2(2), (6), and (7) of the Act
II LABOR ORGANIZATIONS
I conclude that Local 776 and IATSE, its parent orga-
nization, are labor organizations within Section 2(5) of
the Act
III THE RELATIONSHIP BETWEEN JT&A AND SYNC-
POP
A Evidence
JT&A had been in the postproduction sound business
for about 4 years until ostensibly shutting down on about
Friday, October 10, 1986 James Troutman (Jim) was its
sole owner, president, and ultimate decision maker It
was awash with economic problems as of October
1986—it reportedly owed $750,000 in back payroll taxes
to the Internal Revenue Service, it was nearly $120,000
behind in contnbutions to pension and health and wel-
fare trusts as required by union contract, it was party to
three grievance matters later to result in awards against
it totaling about $82,000, and it recently had been unable
to meet its payroll Its last location, which it had occu-
pied for a month or so, was a building on Clybourn
Avenue in Burbank It previously had been headquar-
tered on Chestnut Street, and also occupied leased space
on Lake Street, both in Burbank
Sync-Pop emerged as a corporate entity earlier the
week that JT&A closed, and began performing postpro-
duction sound services, at a facility on West Broadway
in Glendale, on Monday, October 13 In November, to
accommodate the extraordinary requirements of the tele-
vision miniseries, "Amerika," it expanded into the space
on Lake Street formerly used by JT&A, which it used
for several months Jim's son, Clancy, now in his late
twenties, is Sync-Pop's president and supposedly has
been in charge from the beginning Jim's daughter,
Casey, is Sync-Pop's vice president and corporate secre-
tary The record contains no hint that she has participat-
ed notably in the management of the enterpnse She did
not testify 2
Clancy testified that he and Casey are Sync-Pop's sole
shareholders, that he "believe[s]" that each owns 10,000
shares, and that he is "guessing" that the shares were
issued in October Asked the amount of his investment,
2 Sync-Pop classified Casey as an apprentice on an employee list given
IATSE on about October 20, 1986, then informed IATSE by letter of
October 24 that she should not have been on the list As if to convey the
impression, in any event, that she is a hands-on administrator, Casey
signed Sync-Pop's brief Oddly the typeface on the signature page does
not match that on the rest of the document—a possible indication that
her signing was a strategic afterthought
A footnote accompanying Casey's signature states "Albeit still repre-
sented by counsel, Sync-Pop intends no slight by submitting this docu-
ment Itself as it had to make the strategic decision to conserve its limited
financial resources for subsequent proceedings despite its prayer that such
will be unnecessary" This is a ruse (the point of which one can only sur-
mise) For all its unlawyerly recklessness (some of which have dealt with
by separate order of this date granting the General Counsel's motion to
stnke), the bnef bears the unmistakable imprint of an attorney
Clancy testified, "I'm guessing about $14,000, maybe—
maybe a little more" Casey "contributed $8000 to Sync-
Pop in the form of a loan," according to Clancy 3
Clancy testified that Jim has never invested in or lent
money to Sync-Pop Jim Did not testify 4
Clancy testified, variously, that he had "always
wanted to own [his] own company", that he "was trying
to figure out ways for starting a company up "about 2
weeks before JT&A's demise, that he spoke with Jim
about his aspirations "about three weeks prior to when
everything actually hit", 5 that he is "not really sure
when [he] decided to put everything together", that he
made the decision before speaking with Jim, and that he
decided "after JT&A was no longer in business"
Clancy continued that he is "not sure" if Sync-Pop
was incorporated before JT&A's cessation, that he is
"guessing" he and Casey discussed incorporating and lo-
cating space after JT&A had closed, that he also is
"guessing" he decided on the Sync-Pop name after
seeing an attorney, which he thinks was on October 6,
that he thinks—"I'm guessing"—JT&A was still func-
tioning when he conferred with the attorney, that he
thinks—"again, I'm not sure"—the search for a Sync-
Pop facility began "after" JT&A had quit, that he thinks
Casey found the West Broadway location, that he thinks
he waited till after JT&A's closure to solicit business for
Sync-Pop, but "might have" proceeded earlier, that he
thinks—"but, again, I'm not sure"—JT&A's finish and
Sync-Pop's beginning were separated by "a week in
there, maybe two", and, at length, that he does not "re-
member that time that well"
JT&A's complement in its final day or two consisted
of approximately 36, not counting Jim 6 Sync-Pop's, in
its first 2 weeks, numbered about 31, counting Clancy
and Casey, but not Jim Clancy conceded under cross-ex-
amination, after earlier testifying that less than half of
Sync-Pop's employees had come from JT&A, that
"almost every one of' the initial 31 or so previously
"had worked for" JT&A, and that all but 6 had been
with JT&A at the end 7 By about December 1, largely
because of the demands made by "Amenka," Sync-Pop's
payroll ballooned to over 50, where it remained into
February 1987—of whom roughly 90 percent had
worked for JT&A
JT&A's workload at the end consisted mainly of two
television series, "Heart of the City" for 20th Century
Fox and "Jack & Mike" for MGM Its supervising sound
editors on those series were Don Flick and Dave Cald-
well, respectively Sync-Pop succeeded JT&A on both,
3 Clancy testified that Casey since has repaid the loan The record does
not reveal the lender's identity or any other particulars
4 Sync-Pop represents in its bnef "The presently ongoing tax litigation
caused Jim's tax lawyers to discourage Jim from testifying herein to pro-
tect his positions and constitutional rights" Neither Sync-Pop nor JT&A
explained his absence dunng the trial
5 Clancy amplified 'I mean when everything came down on [Jim] at
once, having no money, bouncing the checks, when everything
started to fall apart"
6 This figure derives from the weight of alternative evidence, JT&A's
payroll and other records having vanished sometime before the trial Sev-
eral of JT&A's employees were laid off in its final days and weeks
7 Eschewing Clancy's concessions on cross, Sync-Pop states in its brief
that "less than half of Sync-Pop's employees came from JT&A "
JAMES TROUTMAN & ASSOCIATES 123
effective the first week at West Broadway, retaining
Flick and Caldwell m their supervisory roles The
record contains no evidence, nor gives any reason to
suppose, that the contracts between JT&A and the pro-
duction companies were redone to make Sync-Pop an
explicit party, or that Sync-Pop compensated JT&A for
acquiring its unfmished business 9
Sync-Pop's timecards disclose that it began working
on four other projects in its first week of operation
"Murder She Wrote" for Umversal City Studios, "Amer-
ika" for ABC Circle Films, "Perry Mason" for Viacom
Productions, and "Anastasia" for Telecom JT&A had
been involved until late September on "Murder She
Wrote" Universal itself then supplanted JT&A for that
season's last few episodes, presumably because of
JT&A's proliferating difficulties, after which Sync-Pop
took over for the new season The supervising sound
editor on "Murder She Wrote" throughout—for JT&A,
for Universal, and for Sync-Pop—was Tony Magro
JT&A also had done some preliminary work on "Amer-
ika," and had been destined to do all of that show's post-
production sound work Clancy termed "Amenlca" one
of Sync-Pop's "main shows" in its first year JT&A had
links to "Perry Mason" and "Anastasia," as well It had
worked on an earlier "Perry Mason" project while at
Clyboum, and previously had collaborated with the di-
rector of "Anastasia," Marvin Chomsky
Later m October, Sync-Pop worked on a show, "Tiger
Shark," on which JT&A had worked in its final week
The record contams no evidence that any of JT&A's
works in progress, at the end, were taken over other
than by Sync-Pop
Douglas Gnndstaff, a vice president at Lorimar Pro-
ductions, testified that Jim is "one of the fmest editors m
the business," and Clancy opined that Jim "has more
[following] than anybody in this town" The evidence is
abundant and uncontroverted that Sync-Pop acquired
most of its business—that inherited from JT&A and oth-
erwise—largely because of representations by Jim and
Clancy that Jim's mvolvementbe
another company formed and Clancy would be
running it," he, Jim, "would still be there to do the su-
pervision of the dubbing stage" for "Amenka " ABC
Circle Films decided to use Sync-Pop m reliance on that
assurance A subsequent ABC internal memorandum
refers to Jim as the "owner of Sync-Pop"
8 Flick later was replaced by Alan Hartz
° James Lusk, a 20th Century Fox vice president, testified that, had he
perceived Sync-Pop to be separate from JT&A, he would have solicited
bids for the work remaining on "Heart of the City," but that, relying on
Jim's assurances, he did not deem that necessary
Similarly, Clancy told Charles Goldstein, an executive
at NBC Productions, that he "would be taking over the
company," but only "on paper," and that Jim "would be
still there" NBC presently awarded three shows to
Sync-Pop 10 And Lonmar's Gnndstaff testified that Lor-
imar gave Sync-Pop considerable business "basically be-
cause of" Jim, and only after verifying that he "was in-
volved" Clancy added that Lonmar engaged Sync-Pop
to do "Aaron's Way" because Grmdstaff "wanted Jim to
do that picture, period, no if s, and's, or but's "
Sync-Pop opened shop with the identical sound effects
library and much of the same equipment JT&A had
used—which had been moved from Clyboum to West
Broadway the weekend of October 11-12 The equip-
ment included moviolas, cutting benches, trim bins, dub-
bing machines, tape dispensers, splicers, and synchroniz-
ers Filing cabinets containing JT&A's records were
moved, as well Clancy testified that he "thmk[s]" Sync-
Pop rented a truck for the move, then qualified "I don't
know if Sync-Pop did It might have been myself"
Clancy testified that, while he does not know "exactly
what was moved" and Jun "didn't even keep records of
what he owned," nothing belonging to Jim or to JT&A
was included Clancy enlarged that the library and "half
of' the equipment that was moved "belonged to" him,
and had been rented to JT&A, and that the rest of the
equipment belonged to equipment rental houses Heavy
reliance on rental equipment is common in the industry
Clancy went on that he "didn't touch anything" of Jim's
or JT&A's "mainly because of the IRS problems "11
Despite Clancy's supposed ownership of the library
materials and equipment, they bore JT&A labels while at
Clyboum Sync-Pop labels were substituted after the
move Clancy testified that he had used the JT&A labels
because they were "the only labels [he] had to show that
it was [his] equipment, so no one else took it" The
record contains no documentary corroboration of a
rental arrangement between Clancy and JT&A as con-
cerns these or any other items allegedly owned by
Clancy, and is devoid of evidence that Sync-Pop in-
curred any kind of obligation to Jim or JT&A in return
for the transfer of things to its use
Although admitting he spoke with Jim about forming
a business, and that Jim gave him "pointers on people to
call," Clancy would have it that Jun had nothing to do
with Sync-Pop's creation Clancy embellished that Jim
"wasn't around" at the time, that he was "very dis-
traught emotionally," that he was "a mess," and that he
was "talking about suicide" Clancy asserted, as well,
that Jim had suffered a heart attack "towards the very
end of" JT&A or "right after the company closed" This
last was a blatant fabrication Paul Clay, a personal
friend of Jim and his second-m-command at JT&A, testi-
fied that he "didn't hear anything about him having a
heart attack," and that he and Jim continued to play rac-
quetball together Moreover, Jun oversaw the dubbing of
"Amenka" starting in November That entailed his
10 "Blue DeVille," "Christmas Eve," and "Open Season"
ii All of JT&A's things later were confiscated by IRS, according to
Clancy, after which he assertedly acquired some of them at an IRS auc-
tion
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working "almost 24 hours a day" for "about three
months," according to Clancy, "even [sleeping] on the
stage on the floor sometimes"—an unlikely regimen for a
recovering heart attack victim Jim, as earlier noted, did
not testify
Clancy went on that he "didn't talk to Jim in October
at all," and that they first talked about JT&A's IRS di-
lemma about "a month later," when Jim told him that
IRS "had taken everything" Clancy added that, while
Jim talked to him "a little bit" about JT&A's tax and
union problems, those instances were rare He elaborat-
ed
[H]e couldn't talk to me about it He got very upset
He would get very nervous [H]e would stut-
ter and shake, and he couldn't talk about it at
all He also said that his attorneys had told him
not to talk to me about it because he wasn't protect-
ed in the sense of anything he said to me they could
ask me about So, he really didn't speak too
much to me about it Every time we did, I'd try to
mention anything about it, he got very upset And
didn't want to see him have another heart
attack
Clancy to the contrary, Jim unquestionably was a con-
siderable—and probably the major—force behind Sync-
Pop's founding Not only did he and Clancy assure pro-
duction companies, as previously detailed, that Jim's in-
volvement would continue and that Clancy was taking
over only "on paper,"" but
(a) Jim stated during an employee meeting at Clybourn
that fiscal problems would necessitate the "short layoff"
of a number of them, then announced that a new compa-
ny was being created, that a search for a building to
house it was underway, that those laid off would be re-
called "as soon as possible," and that "business would
continue as usual"
(b) During a later employee meeting at Clybourn, after
acknowledging JT&A's payroll arrearages," Jim repeat-
ed that a new company was in the offing, implored the
employees to "stick with" him, and pledged that they
would be made whole when the new company obtained
a tax number Jim added that he would see that they had
union pension and health and welfare coverages by put-
ting a "bug" in the ear of IATSE Local 695's James
Osburn
(c) Jim physically assisted in the move from Clybourn
to West Broadway, and personally moved JT&A's
records to West Broadway
(d) Shortly after the move, Jim thanked the assembled
employees at West Broadway for "sticking by" him, and
12 Attempting to downplay the import of these assurances about Jim's
â–  continued participation, Sync-Pop states in its bnef "If an important
member of a company's team is absent It is critical to assure clients
and customers that he is largely still Involved, even if reality is different
and he has much less contact or control This is a 'truth' in the private
sector Clients have to be 'assured of 'continuity,' that changes are
merely technical or 'on paper' If Clancy perceived that obtaining certain
customers would be enhanced by leading them to believe no big changes
were afoot, It was no admission but rather the hyperbole of marketing"
IS Attributing them to "trouble with the IRS"
told them the delinquencies in their pay would be cured
"as soon as" a new tax number materialized
(e) Echoing his representation to NBC's Goldstein,
Clancy told Susan Holzborn, the sound effects librarian
for both JT&A and Sync-Pop, that he "would be run-
ning the business, but it was only a matter on paper"
Further indicative of Jim's appreciable involvement in
the emergence of Sync-Pop, he initiated a meeting on
about October 20 with Ronald Kutak and Corrmne
Notkm, executive director and assistant executive direc-
tor of Local 776 He told them he had "disbanded"
JT&A, but that his children "had started another compa-
ny," called Sync-Pop, and he wanted "to make sure that
the transition went smoothly" He particularized
that he wanted to know "the mechanics" of the new
company's "signing an agreement with" IATSE, and
about the roster status—i e, the standing on the employ-
ment priority JT&A employees absorbed by
Sync-Pop
True to Jim's word, Sync-Pop issued checks to many
of the former JT&A employees to redress JT&A's pay-
roll delinquencies About 40 received such checks for
time worked in the October 5-11 pay period," and a
number received checks for earlier periods, as well As if
mindless of Jim's promises, Clancy testified that the deci-
sion was his alone, that Jim had not requested that Sync-
Pop do it, and that he took the action "not because [he]
owed anybody money," but because he "wanted those
people to work for" Sync-Pop Otherwise, Clancy ex-
plained, "there's no way in hell they would even talk to
me, let alone come to work for me"
Most of the check recipients already were on the
Sync-Pop payroll, however, and Clancy professedly was
not interested in hiring two who were not' 5—details he
had overlooked when proffering that explanation Per-
haps in belated recogmtion of this discrepancy, Clancy
later advanced other reasons for making the JT&A em-
ployees whole he did not want the Troutman name "tar-
nished in any way," and "a lot of those people were
hurting for money at that time
Asked how Sync-Pop knew the amount of JT&A's
payroll arrearages, Clancy first ventured that he
"think[s]" he got the figures "from cancelled checks"
shown him by the affected people, 16 later retreating into
a cloud of uncertainty–that he is "not sure" how the
amounts were ascertained, that he does not "remember
any of that," that "you're asking me something that I'm
real foggy on," and that he does not "know why it all
came about"
Jim also told Local 776's Kutak and Notkm, during
their meeting on about October 20, that he had been ad-
vised by a lawyer that he "couldn't have anything to do
on paper with any new company", that the lawyer had
cautioned against his being "either an officer or major
" As noted above in fn 6, JT8cA laid off some employees in the days
preceding its shutdown This doubtless explains why about 40 received
checks for work done in JT&A's final pay period, whereas about 36 were
employed in the last day or two of that period
is The two Joaquin Elizade and John Shouse
16 Clancy probably meant to say "bounced" or "void," rather than
"canceled" Some of JT&A's paychecks did bounce, and it did Issue some
void checks
JAMES TROUTMAN & ASSOCIATES 125
owner for various legal reasons", that he conse-
quently was "being very careful Just to act as a consult-
ant, not receiving a salary", and that he "wanted to be
more involved in the creative end of the business"
anyway Notkm asked, concerning the lawyer's advice, if
he was "talking about problems with alter ego or pierc-
ing the corporate veil" Jim replied that those "sounded
like some of the terms" the lawyer had used Jim ex-
plained that he was fearful that IRS would seize Sync-
Pop's assets if he were a shareholder or officer, or any-
thing but "a consultant"
Clancy likewise sought to portray Jim as divorced
from the ongoing management of the new company, tes-
tifying alternately that Jim is and has been "just a super-
vising sound editor," no different from several others so
designated, and that he is an "independent contractor,"
whose services have not been confined to Sync-Pop
The evidence otherwise indicates, however, that Jim
was hardly a cipher in the conduct of Sync-Pop's affairs
Clancy admittedly asked him for advice "many a
time"," Jack Keath, a Sync-Pop sound editor formerly
with JT&A, recalled that Jim seemed to do the same
things for both companies," Mark Roberts, another of
the JT&A sound editors absorbed by Sync-Pop, testified
that Jim "didn't appear" to have a changed role with
Sync-Pop," Tim Shoemaker, yet another of the before-
and-after sound editors, recounted that Jim continued to
do "what he always did", 2° Dwayne Avery and Dale
Johnston, sound editors also carned over, testified that
Jim devoted most of his time to the dubbing stage before
and after, and Susan Holzborn, the librarian, averred that
Jim's function stayed "the same" after the move to West
Broadway 21
That Jim had a voice in the management of Sync-Pop
is disclosed in other ways, as well
a) Randall Zisk, an assistant producer for 20th Century
Fox on "Heart of the City," testified, "I never realized a
difference in the company, so Jim was always my con-
tact regardless of the name of the company"
b) Lonmar's Grmdstaff testified that he dealt with Jim,
as well as Clancy, concerning Sync-Pop's bid on a series
called "Spies," and that he "may have" discussed other
of Sync-Pop's bids with Jim 22
14 Clancy hastened to add that he also asked numerous others for guid-
ance
12 Keath elaborated that Jim appeared at the Lake Street facility "on
occasion" after the name change, asking "how's everything going" and if
"there was any problems or anything like that"
12 Roberts enlarged that he saw Jim with "about the same" frequency
before and after-2 or 3 days each week, either in the early morning or
at day's end Roberts also testified that he saw Jim "erasing and putting
up the new shows and dates" on Sync-Pop's scheduling board "about
once a week"
24 Shoemaker amplified that Jim continued to give "direction to" the
employees and to "make sure everything was okay"
Si Holzborn added that she saw Jim at West Broadway .three or four
times a week," at which times he asked the employees "about the status"
of their work, that she saw Jim tell Clancy what producers were offenng
to pay for different projects and what Sync-Pop's costs and profits would
be, that she saw Jim advise Clancy which shows were coming in and
would need to be dubbed, and that she saw Jim tell Clancy that, since he
would be busy, Clancy would have to attend dubbing sessions in his
place
22 Gnndstaff's "may have" came across as an unambiguous declaration
that he Indeed did discuss bids with Jim
(c) Shortly after the move to West Broadway, Tim
Shoemaker told Clancy that he would not work in "this
shithole" and was quitting Jim intervened, prevailing
upon Shoemaker to stay by transferring him to Lake
Street
(d) Ed Fassl's Sync-Pop timecard for the week ending
October 25, 1986, contains the entry, "Day off okayed
by J T ", 23 and Shoemaker's for November 8 bears this
instruction "Per Jim, Sunday not on-call day, do not
pay '924
(e) When Holzborn asked Clancy for a raise in March
1987, he presented the issue to Jim, who responded,
"Well, of course, she deserves it" Holzborn thereupon
received a 15-percent increase
(1) In April 1987, Jim denied Holzborn's request for
time off, explaining that Sync-Pop was going to be "very
busy"
Consistent with Jim's statement to Kutak and Notkm
that he was "not receiving a salary" from Sync-Pop, he
did not receive a paycheck until January 22, 1987, al-
though, by Clancy's reckoning, he had worked "almost
24 hours a day" since the preceding November oversee-
ing the dubbing of "Amenka " Clancy first testified that
he "took care of' Jim before that first paycheck by per-
sonally giving him cash Clancy later amended that he
did not give Jim cash, but "just took care of him" in
other ways—e g, making three $600 rent payments for
him, taking him food, and buying him a television set
and a racquetball racket, and that none of this was in
payment for work performed by Jim
Clancy testified yet again that he "took care of' Jim
by givmg him cash, but that he is "not sure how often
[he] gave him cash", and stated still later that he is "not
sure" what he paid Jim for his work on "Amenka," but
that he "probably" gave him cash Clancy added "I
might have graven him a personal check from me I just
really don't remember"
Asked why Sync-Pop did not pay Jim in the conven-
tional manner during those first several weeks, Clancy
testified initially that Jim had said any paychecks "would
automatically go the IRS", and later, "Maybe I didn't
have the money I'm not really sure" Jim's first
check was for $2200 He thereafter received a weekly
check for $1,100 until September 1988, when the figure
was increased to $1500 Unlike the other supervising
sound editors, he was not paid overtime until well into
1988, and, according to Angela Jensen, Sync-Pop's prin-
cipal secretary and bookkeeper, 25 he "never fills out a
timecard" Rather, Jensen has calculated his entitlement,
since he began receiving checks, "by what he told [her]
he had worked"
As Sync-Pop's putative head, Clancy evidently has
been its signatory on contracts, bid proposals, corre-
23 I Infer that the "J T" in this entry is Jim Angela Jensen, Sync-
Pop's pnncipal secretary and bookkeeper, testified that, Jim aside, she
knows of no one in a position of authority with the initials "J T"
24 I have no doubt that the "Jim" referred to in this instruction is Jim
Clancy testified that It "could be" Jim, then hedged, "But I wouldn't
guess It would be Jim" Clancy did not venture who else It might be
"Jensen denied that she is Sync-Pop's bookkeeper In a declaration
filed in Federal District Court, however, she stated that she "function[s]
as a bookkeeper" for Sync-Pop
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondence, etc, from the start He, Casey, and Jensen—
two of the three—sign Sync-Pop's checks He testified
that only he has authority to hire, fire, and grant raises,
that, with the help of others, he prepares bids, and, as
earlier noted, that he alone decided to make former
JT&A employees whole for JT&A's payroll arrearages
Doubtless to demonstrate both that he was in charge
and that Sync-Pop is not a JT&A clone, Clancy testified
that he established new wage levels for Sync-Pop's em-
ployees "from day one", that he advised the first em-
ployees, on October 13, of their hire, and that he "imme-
diately" instituted a "team concept" in lieu of Jim's more
authontanan approach at JT&A
Regarding the new wage levels, Clancy testified that
he gave all the supervising sound editors $200 per week
over the union scale they had been getting at JT&A, and
all the other sound editors $100 over His purpose, he
went on, was to provide "incentive to come work for"
Sync-Pop Dale Johnston, previously identified as one of
the carry-over sound editors, testified that the Sync-Pop
editors "were disenchanted with the lack of pay," how-
ever, and Clancy eventually conceded, in grudging
stages, that far from everyone received such raises Thus,
after his earlier unequivocal assertions, he relented that
he "thought" everyone did, then, that he thought "the
majority" did, later, that "not everybody, but some
people," did, and, finally, that at least 21 named employ-
ees—about two-thirds of Sync-Pop's starting payroll—
did not Asked how he decided who should get the
raises, since they were not across-the-board after all,
Clancy offered, "I might have paid them more after
knowing what they made [at JT&A], or maybe [I] just
paid them more if they'd asked for more"
Asked when he decided to hire those comprising
Sync-Pop's initial complement, Clancy testified that he is
"not real sure on that," but that he "might have"
asked—no, that he did ask—some of the people before
October 13 Invited to name them, he replied, "I don't
know, offhand," adding, "I think it would have been at
the Clybourn address, or possibly at home" Angela
Jensen likewise testified that Clancy independently hired
those on the first Sync-Pop payroll Pressed to substanti-
ate that assertion, she exhibited a lameness matching
Clancy's, first replying, "Because I know he hired
them", then, "I just know, later, that Clancy had told
her he had "hired so-and-so," and, finally, "I don't re-
member how it happened "26
Clancy and Jensen notwithstanding, Sync-Pop's ab-
sorption of the JT&A payroll, largely intact, was never
in doubt Not only is corroboration nonexistent from any
of the affected employees that they underwent the for-
mality of being hired anew, but Jim in effect assured
them, during the aforementioned employee meetings at
Clybourn, that their jobs would survive even though a
new company, at a new location, was on the way In ad-
dition, Clancy advised various of the JT&A employees,
in the final days at Clybourn, to "be ready to move at a
26 This is one of several glaring instances of Jensen's evasive testimoni-
al style Subpoenaed by the General Counsel, she refused to testify until
directed to do so by a Federal District Court subpoena-enforcement
order
moment's notice" and to mark the equipment they used
to ensure their having the same after the move Further,
Mark Roberts, credibly testified that Jackie Troutman,
Jim's wife, "just told" him to "show up" at West Broad-
way, and that it seemed to him "like [an] automatic
transfer", 27 Paul Clay testified concerning his going to
Sync-Pop that he "wasn't hired as such," but "was just
there", and Tim Shoemaker recalled Jim's telling him on
Friday that he would "be starting over at Broadway"
the next Monday Moreover, in a conversation on about
October 20 with James Osburn, executive director of
Local 695, Clancy described certain former JT&A em-
ployees not yet working for Sync-Pop as being "on va-
,cation "
Concerning Clancy's purported institution of a "team
concept" at Sync-Pop, he testified, prompted by counsel,
that he was inspired by the example of a Japanese-Amer-
ican automobile manufacturing collaboration in the Los
Angeles area Dale Johnston, attempting to corroborate
Clancy, 28 testified that Sync-Pop's procedure for "pull-
ing" sound effects is "completely different" from JT&A's
more Jim-dependent method Neither Clancy nor John-
ston elaborated convincingly on these would-be depar-
tures from the JT&A mode, however, and Clay, while
plainly reluctant to testify adversely to the JT&A/Sync-
Pop cause," testified that Sync-Pop did not institute any
new procedures of moment Clay appended that "those
sort of things tend to be pretty standardized throughout
the business,', which is why a sound editor can change
companies and "start work as he walks through the
door"
Clancy had worked for JT&A for the 4 or so years of
its existence He testified that he was "a transfer man,
driver, assistant, apprentice," while at JT&A Never,
before Sync-Pop, had he been a sound editor, participat-
ed in bid preparation, hired, fired, evaluated employees,
assigned work, or dealt with producers or other studio
representatives Johnston testified that Clancy "wasn't
qualified" for his ostensible Sync-Pop role, that he "did
not know what we basically do" and "everybody knew
that he didn't know it" Johnston added that Clancy was
not permitted near the moviolas at JT&A, explaining
"[W]e didn't want him to break [them] "
Despite Clancy's callowness, Johnston would have it
that he "without question" ran Sync-Pop from the
outset "He made many mistakes," Johnston continued,
but he "took the bull by the horns" Clay likewise testi-
fied that Clancy "was the head of the company", Jack
Keath recalled hearing "through the scuttlebutt," then
from Clancy directly, that Sync-Pop was "being run" by
him, and Jim announced to the employees, in the early
days at West Broadway, that Clancy and Casey "would
be taking over the business" Others indicated, without
27 Clancy testified that Jackie "worked with the books" at JT&A
22 Johnston displayed an unmistakable predisposition, by both his de-
meanor and the content of his recital, to slant his testimony favorably to
JT&A and Sync-Pop
29 Clay, obviously a bnght person, often hid behind an unconvincingly
stated inability to recall details of events and conversations surrounding
JT&A's demise and Sync-Pop's emergence
JAMES TROUTMAN & ASSOCIATES 127
suggesting that Clancy had ultimate authority, that he
had some management responsibility 30
Abstractions aside, Johnston testified that he "as-
sumed" most of the administrative duties that had been
Jim's at JT&A, indeed, that he considers himself a "guid-
ing light" and a "phantom owner" because of the degree
of his involvement in Sync-Pop's direction Johnston am-
plified that he has "provided a tremendous amount of
support for" Clancy, that he "suggested to" Clancy
whom to hire and fire, that he "did the best [he] could to
surround him with personnel that" both Clancy and he
needed "to survive", that he even "waived" his pay on
occasion "trying to make the company survive", that he
"became the floor manager and most questions and an-
swers" came to him, and that he helps Clancy prepare
bids 31
Clancy admittedly has taken problems to Johnston "a
lot of times" He depicts Johnston as a "big brother,
father-type" to him 32 Johnston and Clancy's father have
been friends since their high-school days some 40 years
ago Johnston testified that he and Jim "cned together"
over Jim's misfortunes
Of possible relevance to the question whether Clancy
truly was in charge of Sync-Pop at the beginning, apart
from evidence earlier cited
(a) He concededly spent "a good portion of [his] time"
in the transfer room in Sync-Pop's first few weeks He
had been a transfer man, primarily, at JT&A
(b) Asked what Sync-Pop's employees did in the first
week at West Broadway, Clancy testified "God, I'm
really not sure It should say on the timecards"
(c) While Sync-Pop's timecards reveal that it worked
on "Murder She Wrote" in the first week, Clancy testi-
fied that he did not think it did anything on that show in
the first 3 weeks, then acknowledged "I don't know
anything about 'Murder She Wrote' I'm lost on that
show"
(d) Although Clancy testified early in the trial that
Tony Magro worked for Sync-Pop from the beginning,
and timecards confirm this, Clancy later testified that
Magro "was not in [his] shop," that he does not "know
why [he] paid him," that he "just can't explain that," and
that he is "confused on what happened with Tony"
(e) Jim's wife, Jackie, worked several months for
Sync-Pop, starting in October, being paid S800 weekly
Clancy nevertheless first testified that he did not "think"
she was on the payroll, later amending in the face of
documentary evidence that he "had just forgotten"
30 Thus, Roberts testified that he "followed" Clancy's orders, and
Shoemaker, by proclaiming his adamant refusal to take orders from
Clancy, left no doubt that Clancy was giving them Holzborn testified
that Clancy's duties "completely changed" with Sync-Pop—that his con-
cerns became "of a more general, overall nature," and that he was "on
the phone more"
31 Johnston testified that he "would have been scared to see what
[Clancy's] bids would look like," but for his help Sync-Pop's bid propos-
als are nearly identical in form to JT&A's
32 Johnston testified, "I think [Clancy] probably considers me his
father"
(f) Asked, then, what Jackie did at Sync-Pop, Clancy
rejoined that she did "whatever she wanted to do," and
"might have" solicited business over the telephone 33
B Conclusion
The Board stated in Advance Electric 34
Although each case turns on its own facts, we gen-
erally have found alter ego status where the two en-
terprises have "substantially identical" management,
business purpose, operation, equipment, customers,
and supervision, as well as ownership
The Board added, in the same decision 35
Other factors which must be considered in deter-
mining whether an alter ego status is present in a
given case include "whether the purpose behind the
creation of the alleged alter ego was legitimate or
whether, instead, its purpose was to evade responsi-
bilities under the Act"
The Board also has stated that no one factor is "the
sine qua non of alter ego status "36
Applying this overlay of legal principle to the present
situation, I conclude unhesitatingly that Sync-Pop is
JT&A's alter ego It has the same business purpose,
began with the same sound-effects library and with
equipment formerly used by JT&A, followed much the
same operating procedures, 37 retained most of JT&A's
supervisors and other personnel, doing so without hinng
them anew," relied almost exclusively on former JT&A
employees as the payroll expanded to accommodate
"Amenka", and served the same customers
The record contains abundant evidence, moreover,
that Jim retained significant management control, exer-
cising it both directly and through his longtime friend,
Dale Johnston Thus, despite Clancy's purported prima-
cy in Sync-Pop's operation, he was abjectly unqualified
for that role, and indeed spent "a good portion of [his]
time" in the transfer room in Sync-Pop's first few weeks,
which suggests that the reality, at least initially, was
much as it had been at JT&A Further, Sync-Pop ac-
quired most of its business on Jim's and Clancy's repre-
sentations that Jim's involvement would continue, and
Johnston, who had cried with Jim over his misfortunes,
termed himself Sync-Pop's "phantom owner"—a tacit
admission that he saw himself as Jim's surrogate
More specifically indicative of Jim's continued partici-
pation in management, he initiated the October 20 meet-
33 Jensen testified that Jackie, pursuing leads from two trade publica-
tions, Variety and Hollywood Reporter, "called producers for shows and
wrote letters to different people asking for work for the company"
34 268 NLRB 1031, 1002 (1984), quoting from Denzil S Allure, 259
NLRB 1323, 1324 (1984)
35 At 268 NLRB 1002 The inside quotation is from Fugazy Continental
Corp , 265 NLRB 1301, 1302 (1982)
36 Fugazy Continental Corp, supra, 1301 at fn 5 See also Continental
Radiator Corp, 283 NLRB 234 (1987)
37 Crediting Paul Clay's convincing testimony on the point
38 The testimony of Clancy and Jensen to the effect that Clancy lured
those compnsmg Sync-Pop's first payroll was woefully weak I do not
credit it
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing with Local 776's Kutak and Notkin "to make sure
that the transition went smoothly", his role ap-
peared to be about the same with both JT&A and Sync-
Pop, according to several who observed him before and
after, he continued to deal directly with production com-
panies on behalf of the venture, and he remained in-
volved in personnel matters—as witness his arranging
Shoemaker's transfer to Lake Street, entering instructions
and information on employee timecards, directing Clancy
to give Holzborn a raise, and denying Holzborn's request
for time off
Concerning ownership, while Clancy and Casey are
Sync-Pop's nominal owners, the surrounding circum-
stances leave no doubt that, in actuality, Sync-Pop prob-
ably is as much Jim's as was JT&A In addition to the
several just-cited mdicia of Jim's ongoing management
involvement and the fact that Clancy and Casey are his
children, this is compellingly revealed by the timing of
Sync-Pop's advent, almost precisely coincident with
JT&A's cessation, by its curing JT&A's payroll arrear-
ages, by its not only taking over JT&A's unfinished busi-
ness, but apparently doing so without compensating
JT&A or legal formality, by its promptly acquiring sev-
eral other projects—most notably, "Amenka"—with
which JT&A had been linked, by Jim's willingness to
forgo a paycheck until late January 1987 despite working
"almost 24 hours a day" since early the preceding No-
vember on "Amerika", by the jury-rigged manner in
which he was compensated before receiving that first
check, because of his concern that paychecks "would
automatically go to the IRS", by his assisting in the
/move to West Broadway and taking JT&A's records
there, by his telling the employees at Clybourn that
"business would continue as usual" although a new com-
pany was being formed, and urging them to "stick with"
him, and by his thanking the employees, after the move,
for "sticking by" him
The record compels the inference, moreover, that
Sync-Pop was contrived to free the enterpnse from the
nearly $1 million in IRS and union obligations The sheer
magnitude of those obligations, in combination with
Clancy's revelations that he was in charge only "on
paper" and with Jim's October 20 remarks to Kutak and
Notkin—that he was "being very careful just to act as a
consultant," etc, lest IRS seize Sync-Pop's assets—
shrieks of contrivance for that purpose Such contrivance
also is indicated by the manifold other mdicia that Sync-
Pop is a duplicitous continuance of JT&A, and by the
absence of any other plausible reason for Sync-Pop's cre-
ation 39
Finally, Clancy's testimonial efforts to depict Sync-
Pop as an arm's length removed from JT&A, including
his self-portraits as Sync-Pop's prime mover and ultimate
authority, were singularly unpersuasive His recital not
only was fraught with vagueness, uncertainty, internal
inconsistency, evasiveness, and claimed lapses of memory
regarding numerous matters of importance, but included
several demonstrable lies—among them, that Jim had
39 Clancy's testimony that he "always wanted to own (his] own com-
pany," while perhaps true in the abstract, came across as insincere in this
context
suffered a heart attack, that less than half of Sync-Pop's
employees had come from JT&A, that Clancy had ele-
vated rates of pay for all of Sync-Pop's sound editors,
and the professed reasons why Sync-Pop redressed
JT&A's pay arrearages Clancy consequently destroyed
his credibility, and, in the process, buttressed the infer-
ence, already ineluctable, that Sync-Pop arose as an in-
strument of deceit 40
In short, the evidence is cornucopian that Sync-Pop is
JT&A's alter ego The countering evidence, undermined
by the impoverished credibility of its principal purveyor,
is infinitely less substantial and less persuasive 41 The en-
titles, jointly, therefore are bound by one another's
lawful commitments to IATSE and to Local 776, and
jointly are responsible for the unfair labor practices of
each 42
IV THE ALLEGED VIOLATIONS OF SECTION
8(A)(5) AND (1)
A Sync-Pop's Allegedly Unlawful Failure to Assume
the Bargaining Obligations Devolving upon it as
JT&A's Alter Ego
1 Facts
On July 30, 1984, Jim and IATSE entered into an
Agreement of Consent, which provided variously that
JT&A "recognize[d]" IATSE as the "sole and exclusive
collective bargaining representative" of certain of
JT&A's employees, that it "agree[d] and consent[ed] to
be part of the Multi-Employer Collective Bargaining
Unit identified in" the 1982-1985 Basic Agreement be-
tween IATSE and the Alliance of Motion Picture and
Television Producers (Alhance), 43 that it "agree[d] to
become party to and bound by" the Basic Agreement, by
the West Coast Studio Local Agreements between the
Alliance and the West Coast locals of IASTE "subject to
such Basic Agreement" (of which Local 776 is one), and
40 The inference is buttressed, as well, by the failure of Jim and Casey
to testify
41 That JT&A and Sync-Pop had different locations, telephone and tax
numbers, lawyers, accountants, janitors, secunty services, garbage collec-
tors, banks, etc, is but a bagatelle in the overall scheme of things
42 See generally, in addition to the cases cited above in footnotes 34 to
36, Twin Cities Electric, 296 NLRB 1014 (1989), Milford Services, 294
NLRB 684 (1989), DI C Mfg Go, 294 NLRB 426 (1989), Fullerton
Transfer di Storage, 291 NLRB 426 (1988), Kenmore Contracting Co, 289
NLRB 336 (1988), O'Neill Ltd, 288 NLRB 1354 (1988), William N
Taylor, Inc , 288 NLRB 1049 (1988), Gilroy Sheet Metal, 280 NLRB 1075
(1986), Samuel Kosoff & Sons, 269 NLRB 424 (1984), J M Tanaka Con-
struction, 249 NLRB 238 (1980)
43 The complaint alleges that the employer-members of the Association
and the nonmember employers who are signatory to the Basic Agree-
ment "constitute an appropriate multi-employer unit for the purpose of
collective-bargaining" and that "all employees set forth and described in
Article IV of the" 1985-88 Basic Agreement "constitute a unit appropri-
ate for the purposes of collective-bargaining within the meaning of Sec-
tion 9(b) of the Act" The classifications thus incorporated are, in gener-
al, motion picture editors, sound editors, music editors, hbranans, and
editonal apprentices In view of my earlier alter ego determination, I
need only determine, as concerns unit appropriateness, whether this unit
"is repugnant to any policy embodied in the (Act]" Samuel Kosoff &
Sons, 269 NLRB 424 (1984), quoting from Carpenters Local 1846 v Pratt,
Farnsworth, 690 F 2d 489, 509 (5th Cu. 1982) See also Watt Electric Co,
273 NLRB 655, 658 (1984), Walter N Yoder & Sons, 270 NLRB 652 fn 2
(1984) I conclude that it is not
JAMES TROUTMAN & ASSOCIATES

129
by specified trust agreements "established pursuant to"
the Basic Agreement of Consent "shall remain in full
force and effect until July 31, 1985, and shall continue
from year to year thereafter unless either party shall give
written notice to the other of a desire to cancel at
least sixty (60) days prior to July 31, 1985, or July 31 of
any subsequent year"
Also on July 20, 1984, Jim executed a Trust Accept-
ance, acknowledging that "a collective-bargaining agree-
ment does exist between" JT&A and IATSE and
stating that JT&A's "obligation" to the pension and
health-and-welfare trusts "shall commence as of 7-30-
84
The 1982-1985 Basic Agreement, and those incorpo-
rated therein, was succeeded by one effective from
August 1, 1985, through July 31, 1988
JT&A at no time gave IATSE proper notice of a
desire to cancel the Agreement of Consent Nor did
Sync-Pop, as JT&A's alter ego
On October 20, 1986-a week after Sync-Pop became
operational-Clancy and James Osburn, executive direc-
tor of IATSE Local 695, obtained the signatures of some
26 Sync-Pop employees on IATSE authorization cards,
after which they went through the formality of Osburn's
demanding and Clancy's granting recognition, and
Clancy signed a new Agreement of Consent and a new
Trust Acceptance
The two documents signed by Clancy were substan-
tially identical to those signed by Jim in 1984 To ensure
that Sync-Pop not escape any obligations attaching to it
as JT&A's alter ego, IATSE joined in them
on the express understanding that the IA
[IATSE] is not waiving its position and without
prejudice to any claims against James Troutman &
Associates and Sync-Pop as the alter ego of James
Troutman & Associates
Sync-Pop began submitting reports and contributions
to the prescribed pension and health-and-welfare trusts
with the pay period ending October 25, 1986 This con-
tinued through the pay period ending January 31, 1987,
then stopped
By letter dated April 16, 1987, reacting to the charge
in Case 31-CA-16462 herein, which alleges that he im-
properly promoted IATSE cards preliminary to signing
the Agreement of Consent and the Trust Acceptance on
October 20, Clancy advised IATSE that the Agreement
of Consent was "void and not banging [sic]," that Sync-
Pop "has not and will not be part of nor bound to any
employer or other association," that Sync-Pop "desires
only to abide by the rules and provide its employees
their full legal rights to a free and secret choice," and
that Sync-Pop
is ready, willing and able to negotiate a collec-
tive bargaining agreement with you or any labor
union when a majority of its employees properly
expresses a secret, free legal choice in a way which
does not subject Sync-Pop to liability for violating
the law
This was followed by a letter of April 24 from Sync-
Pop's attorney to Local 776 regarding grievances the
local had initiated on February 20 and March 27 under
the grievance/arbitration provisions of its local agree-
ment Referring to the two gnevances "and any other
Sync-Pop, Inc , matters," the letter stated
Please cancel this grievance There is no valid exist-
ing collective bargaining contract and all matters
are presently before the National Labor Relations
Board
Undeterred, Local 776 filed another grievance against
Sync-Pop on April 27, and, receivmg no reply, it in-
formed Sync-Pop by letter dated May 13 that it intended
to take all three pending grievances "directly to Step III,
regular arbitration" Sync-Pop's attorney responded by
letter May 19, stating
As the Company repeatedly advised you
there is no existing valid collective bargaining
agreement enabling or requiring any grievance or
arbitration proceeding nor binding the Company
thereto and thus any such proceeding are [sic] by
definition void and enforceable
Please ensure that copies of this letter are placed
m each of the above captioned files and any and all
other files, present and future as part of the record
as no further responses or appearances are now con-
templated until such time as a valid collective bar-
gaining contract is achieved through negotiations
On August 5, 1987, Local 776 sued Sync-Pop in Fed-
eral district court, seeking an order directmg Sync-Pop
"to proceed with arbitration of the Union's three griev-
ances in the manner provided for in" the local agreement
incorporated in the Agreement of Consent signed by
Clancy 44 Sync-Pop, in its answer, denied the complaint
allegations that it is party to any labor agreement with
IATSE or Local 776, and alleged as an affirmative de-
fense that any such agreement is "unenforceable for fail-
ure of consideration [and] due to fraud and or
mistake" By order dated August 10, the judge granted
Local 776's Motion for a Summary Judgment Sync-
Pop's appeal is now pending
2 Conclusion
As JT&A's alter ego, Sync-Pop is bound by the
Agreement of Consent and the Trust Acceptance entered
into by JT&A in July 1984 It has never accepted that
idea, however, or the attendant bargaining obligations
Thus, beyond the resolute efforts to disguise its true rela-
tionship with JT&A, Sync-Pop conditioned recognition
of IATSE on a new card showing, only then making a
contractual commitment, and it shortly abdicated even
that arrangement on the stated ground that Clancy's
"Local 776 stated in its complaint "This action shall not constitute a
waiver of IATSE Local 776's contentions, made before the National
Labor Relations Board and elsewhere, that Sync-Pop, Inc , is an alter ego
of James Troutman & Associates"
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
card-promotion activities of October 20 had tainted the
grant of recognition and that which followed
By failing to assume the bargaining obligations devolv-
ing upon it as JT&A's alter ego, Sync-Pop violated Sec-
tion 8(a)(5) and (1) as alleged 46
B Sync-Pop's Allegedly Unlawful Failure to Submit
Reports and Contributions to the Pension and Health-
and-Welfare Trusts
1 Facts
As earlier stated, Sync-Pop submitted reports and con-
tributions to the prescribed pension and health-and-wel-
fare trusts starting with the pay period ending October
25, 1986, and continuing through the period ending Janu-
ary 31, 1987, whereupon reports and contributions
stopped On June 12, 1987, an assignee of the trust funds
brought suit against Sync-Pop in Federal district court to
compel compliance with its contractual obligations 46
The judge issued an order for preliminary injunction
on September 21, 1987, enjoining Sync-Pop from "refus-
ing or failing to submit reports and contributions
which have been delinquent since February 1987" On
October 20, in response to that order and on the advice
of its attorney, Sync-Pop cured its delinquencies and re-
sumed compliance
2 Conclusion
Sync-Pop's cessation of pension and health-and-welfare
reports and contributions presumably was an offshoot of
its unlawful refusal, generally, to assume the obligations
attaching to it as JT&A's alter ego Regardless, the
Board takes the position that
an employer's refusal to make required pay-
ments to an insurance or trust fund established by a
collective-bargaining agreement constitutes a
unilateral change in terms and conditions of em-
ployment in violation of section 8(a)(5) and (1) of
the Act 47 .
Sync-Pop's several-month stoppage of reports and con-
tributions therefore violated Section 8(a)(5) and (1) as al-
leged 46
48 E g, Twin Cities Electric, supra's, Blackberry Creek Trucking, 291
NLRB 474 (1988), Haley & Haley, 289 NLRB 649 (1988)
48 The distnct court complaint alleges that Sync-Pop's obligations
denve from the agreements signed by Clancy on October 20, or, in the
alternative, on an alter ego theory, from those entered Into by JT&A in
1984
41 Merryweather Optical Ca, 240 NLRB 1213, 1215 (1979)
48 That Sync-Pop's obligations, as JT&A's alter ego, emanate from
IT&A's 1984 commitments, rather than from Clancy's actions of October
20, 1986, is of no moment Sync-Pop did not exculpate itself by later
curmg its delinquencies and resuming compliance, inasmuch as it did so
under judicial compulsion and otherwise continues to defy its bargaining
obligation
C Sync-Pop's Allegedly Unlawful Failure to Submit
to Arbitration
1 Facts
As previously recounted, Local 776 brought grievance
actions against Sync-Pop on February 20, March 27, and
April 27, 1987, and informed Sync-Pop by letter dated
May 13 that it intended to take all three "directly to Step
III, regular arbitration", and Sync-Pop's attorney re-
sponded that it would not submit to the procedure be-
cause "there is no existing valid collective bargaining
agreement enabling or requiring any grievance or arbi-
tration proceeding"
Also as earlier stated, Local 776 obtained a summary
judgment on August 10, 1987, compelling Sync-Pop to
go to arbitration, which judgment is now under appeal
Two of the gnevances since have been resolved, leaving
only that of March 27, involving Susan Holzborn, sub-
ject to the court's order
2 Conclusion
Apart from its unlawful failure, generally, to assume
JT&A's bargaining obligations, Sync-Pop violated Sec-
tion 8(a)(5) and (1) as alleged by flouting its contractual
obligation to entertain grievances and go to arbitration
D Sync-Pop's Allegedly Unlawful Refusal to Comply
with Arbitration Awards Adverse to JT&A
1 Facts
Three grievance matters were pending against JT&A
when it was superseded by Sync-Pop All later were re-
solved against JT&A In one, decided on November 12,
1986, a labor-management conciliation committee agreed
with Local 776 that JT&A had employed six nonroster
people as sound editors without exhausting the industry
experience roster, thereby violating its agreement with
Local 776, and directed that JT&A pay the local "the
amount of moneys that would have been paid roster
people during the time nonroster people were ille-
gally hired "49 In another, decided on December 15,
1986, an arbitrator awarded an aggrieved employee
$3423 because JT&A had underpaid him, and, in the
third, decided on May 14, 1987, an arbitrator awarded an
aggrieved employee $9030 because he had been under-
paid
Neither JT&A nor Sync-Pop has satisfied any of these
awards
2 Conclusion
Implicit in Sync-Pop's denial that it is JT&A's alter
ego, and its companion refusal to accept the ramifica-
tions flowing therefrom, is a refusal to accept responsibil-
ity for and comply with the awards outstanding against
JT&A By this refusal, Sync-Pop further violated Section
8(a)(5) and (1) as alleged
49 Estimated to be about $70,000
JAMES TROUTMAN & ASSOCIATES 131
E JT&A's Allegedly Unlawful Failure to Honor Local
776's Requests that it Bargain Concerning the Effects
on its Employees of Changes in its Operations, and
that it Provide Certain Information
1 Facts
As previoulsy recounted, Jim met with Local 76's
Ronald Kutak and Cornnne Notkm on about October
20, 1986, telling them that he had "disbanded" JT&A,
that his children "had started another company," and
that he wanted to know "the mechanics" of the new
company's "signing an agreement with" IASTE and
about the roster status of JT&A employees absorbed by
the new company Jim also told them that a lawyer that
cautioned against his being "either an officer or major
owner" of the new company "for various legal reasons,"
that he consequently was "being very careful just to act
as a consultant," and that "alter ego or piercing the cor-
porate veil sounded like some of the terms" the
lawyer had used
On October 23, an attorney for Local 776, Jay Roth,
caused the following letter to be delivered to JT&A's at-
torney, James McCord
It has recently come to my client's attention that
your client has radically reduced or ceased the op-
eration of James Troutman & Associates Please
consider this letter a demand on behalf of our
client, Local 776, for immediate bargaining over the
decision to cease operations and the effects on em-
ployees of such cessation
In order to evaluate our bargaining position,
please provide me immediately with the following
information
1 Has the Company filed for bankruptcy ? If so,
please provide a copy of the petition
2 Is a bankruptcy filing anticipated?
3 Has the Company been sold? If so, to whom
and what are the terms of the sale? Please provide
any agreement of sale
4 Has the Company sold or leased any of its
equipment or assets in the last six months? If so,
which equipment and/or assets, and to whom?
5 Has consideration been paid for the equipment
of assets? If so, please provide the amounts or con-
sideration paid to James Troutman & Associates
6 Does the Company continue to occupy its fa-
cility at 1104 Chestnut Street? If it does not, has it
assigned its lease? If so, to whom?
7 Who curently occupies 1104 Chestnut Street?
8 Please provide the names of all employees who
continue to be employed by James Troutman & As-
sociates Please provide their classification and job
assignment
9 Is James Troutman currently employed ? By
whom?
10 Is James Troutman acting as a consultant to
any business entity? Please state which entities
11 Does James Troutman have any ownership
interest in any business entity other than James
Troutman & Associates which performs services
similar to said Company?
12 Does James Troutman & Associates plan to
reopen or expand its current operations? If so,
when?
13 Does James Troutman & Associates or James
Troutman hold any note, mortage or other obliga-
tion from any business entity that performs services
similar to that previously performed by James
Troutman & Associates? If so, state the names of
each such business entity
I look forward to the prompt receipt of the
above requested information
Neither McCord nor anyone else on behalf of JT&A
responded to Roth's letter until March 21, 1988, when
the following letter, signed by Jim in the name of "James
Troutman and Associates (Defunct)," was tendered to
Local 776 representatives during the present trial
The questions you have posed to me are an-
swered as follows
1 The company has not filed for bankruptcy
2 Bankruptcy is being considered but is not an-
ticipated at this writing
3 The company has not been sold
4 The company has not been sold or leased any
of its equipment with the exception of the IRS con-
fiscation and auction
5 Not applicable
6 The company does not occupy the facility at
1104 Chestnut and has not assigned a lease
7 We do not know who currently occupies the
facility
8 There are no employees who continue to be
employed by James Troutman and Associates
("JT&A")
9 Jim Troutman is presently an independent con-
tractor but not otherwise employed
10 Jim Troutman does independent contracting
for Sync-Pop, Inc and other business entities [sic]
11 Jim Troutman has no other ownership inter-
est in any company performing similar services to
JT&A
12 JT&A has no plans to reopen or expand oper-
ations
13 Neither JT&A or James Troutman holds any
note, mortage or other obligation from any business
entity that performs services similar to that previ-
ously performed by JT&A
As may be required by law we remain ready,
able and willing to meet, confer and negotiate upon
appropnate request at appropriate times
2 Conclusions
Local 776's demand that JT&A enter into "immediate
bargaining over the decision to cease operations and the
effects on employees of such cessation" was premised on
Jim's misrepresentation that he had "disbanded" JT&A,
when the operation in fact continued through an alter
ego JT&A therefore violated Section 8(a)(5) and (1) not
by ignoring that demand, but by shifting its employees to
the alter ego, which then failed to assume JT&A's obli-
gations, and by misleading the employees' bargaining
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative to impair its ability to function on their
behalf.5°
Concerning Local 776's request for information, 51 an
employer generally must honor such a request if the in-
formation would be relevant to the union's discharge of
its duties as bargaining representative." Information per-
taining to the terms and conditions of employment of
unit employees is presumptively relevant." The pre-
sumption does not obtain, however, if the information os-
tensibly relates to the nonunit employees of another em-
ployer, even though the information ultimately might es-
tablish that those employees are in the unit because of a
single-employer/alter ego relationship.54
The information sought by Local 776 bore reasonably
on its ability to determine whether a single-employer/-
alter ego relationship existed between JT&A and Sync-
Pop. Local 776 had reason to suspect, moreover, that
such a relationship did exist, given Jim's October 20 re-
marks to Kutak and Notkin. The relevance of the infor-
mation thus was apparent when Local 776 made its re-
quest.
I accordingly conclude that JT&A violated Section
8(a)(5) and (1) as alleged by failing to honor Local 776's
request for information in timely fashion.55
F. Sync-Pop's Allegedly Unlawful Failure to Honor
Local 776's Request that it Provide
Certain Information
1. Facts
On January 23, 1987, Local 776's Kutak sent the fol-
lowing letter to Clancy, as president of Sync-Pop.
In order to enable the Guild to effectively, adminis-
ter the terms and conditions of the Collective Bar-
gaining Agreement entered into between Sync-Pop
and the I.A.S.T.E. and its Hollywood Locals, the
Editors Guild requests that you immediately pro-
vide us with the following information:
1. Is the Company a duly registered corporation
in the state of California, county of Los Angeles?
2. If the answer to Number 1 is in affirmative,
please provide us with the following:
a) list of all officers;
b) date of incorporation;
c) federal ID number;
"Blackberry Creek Trucking, 291 NLRB 474 (1988); Haley di Haley,
289 647 (1988).
51 McCord testified that he "was not at that time acting as a recipient
of process of any sort for [his] client." He conceded, however, that he
represented JT&A "during this period," that he sent a letter to an attor-
ney for Local 776 on October 17 concerning an arbitration involving
JT&A, and that he probably ("1 suspect") spoke with union counsel on
behalf of JT&A "both before and after" October 23. I conclude in these
circumstances that delivery of the letter to McCord was the equivalent of
delivery to JT&A.
52 Barnard Engineering Co., 282 NLRB 617, 619 (1987), and cases cited
therein.
52 Ibid.
54 Ibid.
55 JT&A's response, some 18 months after the request, was not timely.
E.g., Epe, Inc., 284 NLRB 91, 96 (1967); Interstate Food Processing Corp.,
283 NLRB 303, 306 (1987).
d) list of all major stockholders and the per-
centage of the corporation owned by each.
3. Has the Company purchased or leased any of
its equipment or assets in the last six months? If so,
which equipment and/or assets, and from whom?
4. Does the Company own, lease or otherwise
occupy any other facility other than those at 724
West Broadway?
5. If the answer to Number 4 is in the affirmative,
what locations, in whose name is the property
owned and/or leases, and what is the original date
in said purchase/lease?
6. Is James Troutman in any way associated with
Sync-Pop Inc.? If so, in what capacity?
7. Is James Troutman now, or has he ever been,
a shareholder of Sync-Pop Inc.?
8. If the answer to Number 7 is in the affirmative,
how many shares does (did) James Troutman own?
9. Has James Troutman either lent money to
Sync-Pop Inc. or helped Sync-Pop Inc. secure fi-
nancing from a lending institution?
10. Has the company asumed any contracts or
work in progress from James Troutman & Associ-
ates. If so, what work or contracts have been as-
sumed by your company.
11. Are there any contracts or agreements be-
tween your company and James Troutman? If so,
please identify each contact or agreement.
12. Please state the names of each employee of
your company, the job title and the immediate prior
employer.
We would appreciate your prompt attention to
sending us the requested information.
Neither Clancy nor anyone else on behalf of Sync-Pop
responded to Kutak's letter until March 21, 1988, when
the following letter, signed by Clancy, was tendered to
Local 776 representative during the present trial.
We are informed that you have certain questions as
to our operation which we are happy to answer
without admitting an obligation to do so.
1. Sync-Pop, Inc. is a duly registered California
corporation.
2. (a) The officers of the corporation are Clancy
Troutman and Casey Troutman.
(b) Secretary of State's stamp date of incorpora-
tion is October 8, 1986.
(c) Federal ID # 95-4069006.
(d) The stockholders are Clancy Troutman 50%
and Casey Troutman 50%.
3. The company has leased equipment from Hal
Dennis, Cine Magic, and J & R.
4. No.
5. Not applicable.
6. James Troutman does dubbing stage sound ed-
iting as an independent contractor.
7. James Troutman is not or has ever been a
shareholder.
8. Not applicable.
JAMES TROUTMAN & ASSOCIATES 133
9 James Troutman has not lent money or se-
cured financing for Syn-Pop, Inc
10 The company did not assume contracts or
work in progress from James Troutman and Associ-
ates
11 There are no contracts or agreements be-
tween Sync-Pop, Inc and James Troutman except
that as an independent contractor he is paid for
services rendered
12 Names of each employee of the company are
submitted by the attached photocopy of the latest
pension report Their immediate pnor employer is
not available
As may be required by law we remain ready, able
and willing to meet, confer, negotiate and arbitrate
upon appropriate request at appropriate times
2 Conclusion
The information sought, pertaining to the terms and
conditions of employment of unit employees, was pre-
sumptively relevant, and the record lacks evidence to
override the presumption I conclude, therefore, that
Sync-Pop violated Section 8(a)(5) and (1) as alleged by
failing to honor Local 776's request in a timely
manner 56
VI SYNC-POP'S OTHER ALLEGED VIOLATIONS
A Sync-Pop's Alleged Violation of Section
8(a)(2) and (1)
1 Facts
On October 20, 1986, as earlier mentioned, Clancy and
James Osbum of IATSE Local 695 obtained the signa-
tures of 26 Sync-Pop employees on IATSE authorization
cards, after which Osbum demanded and Clancy granted
recognition and Clancy signed a new Agreement of Con-
sent and a new Trust Acceptance
More specifically, Clancy directed a number of em-
ployees to sign the cards, explaining as he did so that
Sync-Pop "needed a union contract" He also accompa-
nied and otherwise abetted Osburn while Osbum solicit-
ed signatures
2 Conclusion
Card-promoting activities of the sort undertaken by
Clancy ordmanly are proscribed by Section 8(a)(2),57
and, indeed, Sync-Pop amended its answer during the
trial "to admit the allegations involving a violation of
Section 8(a)(2) "58 Accepting the complaint and answer
as the law of the case on this issue, I conclude that
Clancy's said activities violated Section 8(a)(2) and (1) 59
56 See fns 52, 53, and 55, surpra and accompanying text
57 As are recognizing and contractmg with a union on the strength of
the cards so promoted E g, All Kind Quilting, 266 NLRB 1186, 1195
(1983)
"This was a transparent ploy calculated to require that the Board
void Sync-Pop's bargaining relationship and attendant agreements with
IATSE as part of the remedial scheme herein
59 I do not conclude, however, that Sync-Pop violated Sec 8(a)(2) by
recognizing and contracting with IATSE The complaint does not allege
B Sync-Pop's Alleged Violation of Section 8(a)(1)
Concerning Susan Holzborn
1 Evidence
One of the three grievances Local 776 brought against
Sync-Pop, that of March 27, 1987, alleged that it was not
paying Holzbom, the sound-effects librarian, as dicated
by the prevailing labor agreement
After receiving Local 776's grievance letter, Clancy
called Holzbom to the office By her account, he
showed her the letter, exclaimed that Jim "almost had a
coronary when he saw" it, and asked her "what he [sic]
hell [is] going on" She replied, as she recalled, that she
had not seen the letter and did not know "what's going
on," whereupon Clancy asked if she had filed a griev-
ance and she said she had not, but had talked to a union
Mrak Tarnawsky, about her situation
Clancy countered, per Holzbom, that he "would fire"
her if she "had filed a grievance" and that "it would get
very nasty if this went to arbitration"—that he
"would say a lot of nasty things about" her, that Jim
"knew a lot of people in the industry and would
make sure that [she] would never, ever get a job in town
again," and that nobody in the company "would back
[her] up" Clancy then repeated the discharge threat,
Holzborn recounted, declaring that "there were numer-
ous reasons" he could use, "including that [she] wore the
wrong color of shoes"
Holzbom testified that the encounter ended with
Clancy's voicing the suspicion "that the union people
would file the grievance and take the money", and
suggesting, therefore, that she "talk to the union repre-
sentative" about dropping the matter
Clancy admitted that he asked Holzbom if she had
filed a grievance, that he told her Jim "almost had a cor-
onary", that he "might have said" he would "be required
to say uncomplimentary or nasty things about" her if
"this grievance thing proceeded", and that either he or
Holzborn expressed concern that "the umon people
would file the grievance and take the money" Other-
wise, disdaining a narrative reconstruction of the event,
Clancy entered the expected denials when asked by
Sync-Pop's counsel if he threatened Holzborn "in any
way", if he told her Jim "would make sure that she
never worked in town again", if he said he "would fire
her for wearing the wrong color shoes", if he
"discuss[ed] firing [or] discipling her in any
fashion", or if he told her "that if she had filed a griev-
ance [he] would fire her"
Clancy conceded that he "was really upset," that he
"was ticked," and that he was "yelling and scream-
mg " 6° He further conceded "I don't remember my
exact words, or what I said I don't remember
much about that day"
that this was improper, and, because of the ramifications of Sync-Pop's
being JT&A's alter ego, it only duplicated existing lawful obligations by
recognizing and entenng into the Agreement of Consent and the Trust
Acceptance
6° Clancy testified, "I have a tendency to yell a lot" The record con-
tains abundant corroboration
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Conclusion
Holzborn's recital was coherent, detailed, and persua-
sively delivered Clancy's lawyer-led denials that he
made various of the remarks attributed to him—particu-
larly when coupled with his admissions that he was
"really upset" that he was "yelling and screaming," and
that he did not remember his "exact words, or what [he]
said—were unconvincing I therefore credit Holzborn
By saying that he would fire Holzborn if she "had
filed a grievance," that he "would say a lot of nasty
things about" her "if this went to arbitration," and that
Jim "would make sure that [she] would never, ever get a
job in town again," Clancy impinged upon her right,
protected by Section 7, to undertake grievance activities
through her union I conclude, therefore, that he violated
Section 8(a)(1) substantially as alleged by these re-
marks 61
CONCLUSIONS OF LAW
1 JT&A and Sync-Pop are alter egos, and, as such,
are a single employer engaged in and affecting com-
merce within Section 2(2), (6), and (7) of the Act
2 Local 776 and its parent organization, IATSE, are
labor organizations within Section 2(5) of the Act
3 All employees incorporated in Article IV of the
1985-1988 collective-bargaining agreement between
IATSE and the Alliance of Motion Picture & Television
Producers, commonly known as the Basic Agreement,
including those of JT&A and Sync-Pop, constitute a unit
appropriate for collective bargaining within Section 9(b)
of the Act
4 At all material times, IATSE and Local 776 as its
designee have been the exclusive collective-bargaining
representatives, within Section 9(a) of the Act, of the
employees in said appropriate unit
5 JT&A and Sync-Pop, as alter egos,, have violated
Section 8(a)(5) and (1) as follows
a) By JT&A's shifting its unit employees to an alter
ego, Sync-Pop, which then failed to assume JT&A's bar-
gaining obligations,
b) By JT&A's misleadingly telling Local 776 that it
had ceased operations, thereby impairing Local 776's
ability to function as collective-bargaining representative
on said employees' behalf, and,
c) By JT&A's failure to comply in timely fashion with
Local 776's request of October 23, 1986, that it provide
certain information relevant to the union's discharge of
its duties as collective-bargaining representative
6 JT&A and Sync-Pop, as alter egos, have further
violated Section 8(a)(5) and (1) by Sync-Pop's failure,
since its inception, to undertake the collective-bargaining
obligations devolving upon it as JT&A's alter ego, and,
as outgrowths of that general failure, they have addition-
ally violated Section 8(a)(5) and (1) in these respects
a) By Sync-Pop's failure to comply in timely fashion
with Local 776's request of January 23, 1987, that it pro-
vide certain information relevant to the union's discharge
of its duties as collective-bargaining representative
E g, Ram Construction Co, 263 NLRB 258, 258 (1982), Servomation
Corp, 248 NLRB 106 (1980), Caterpillar Tractor Co, 242 NLRB 523, 526
(1979)
b) By Sync-Pop's failure to assume responsibility for
and comply with grievance/arbitration awards of No-
vember 12 and December 15, 1986, and May 14, 1987,
adverse to JT&A,
c) By Sync-Pop's failure, from February to October
1987, to submit pension and health-and-welfare reports
and contributions as required by the prevailing labor
agreement, and,
d) By Sync-Pop's refusal, expressed in letters dated
April 24 and May 19, 1987, to entertain grievances and
go to arbitration in accordance with the prevailing labor
agreement
7 JT&A and Sync-Pop, as alter egos, violated Section
8(a)(2) and (1) on October 20, 1986, when Sync-Pop's
president, Clancy Troutman, directed a number of em-
ployees to sign, and otherwise promoted, IATSE author-
ization cards
8 JT&A and Sync-Pop, as alter egos, violated Section
8(a)(1) in late March or early April 1987 when Clancy
Troutman told employee Susan Holzborn that he would
fire her if she "had filed a grievance", that his father
"would make sure that she would never, ever get a job
in town again", and that he "would say a lot of nasty
things about" her if her grievance went to arbitration
REMEDY
Having found that JT&A and Sync-Pop (Respondents)
engaged in certain unfair labor practices, I recommend
that they be ordered to cease and desist therefrom and to
take certain affirmative action to effectuate the policies
of the Act, including making their employees whole,
with interest, for any losses suffered because of Respond-
ents' misconduct 62
I also recommend that Respondents be ordered to re-
imburse the Board, IATSE, and Local 776, with interest,
for expenses reasonably incurred in the investigation,
preparation, presentation, and conduct of this proceed-
ing, including the subpoena-enforcement matter in Feder-
al district court involving Sync-Pop's custodian of
records and its principal secretary and bookkeeper,
Angela Jensen,° 3 that they be ordered to reimburse
IATSE and Local 776, with interest, for expenses rea-
sonably incurred in connection with the suit brought
against Respondents in Federal district court on June 12,
1987, arising out of Sync-Pop's failure, found unlawful
herein, to submit pension and health-and-welfare reports
and contributions, and that they be ordered to reimburse
Local 776, with interest, for expenses reasonably in- •
62 The employees' make-whole entitlements, if any, shall be as pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970) Interest, wherev-
er called for herein, shall be computed in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987) Under New Horizons, interest on
and after January I, 1987, shall be computed at the "short-term Federal
rate" for the underpayment of taxes, in keeping with the 1986 amendment
to 26 U S C § 6621
Because the provisions of benefit-fund agreements are variable and
complex, the Board does not provide at this stage of the proceeding for
the addition of Interest at a fixed rate on unlawfully withheld fund contri-
butions Any additional amounts owed are to be determined in accord-
ance with Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979)
63 I have no doubt that Jensen, who sat at the right hand of and regu-
larly conferred with Sync-Pop's attorney dunng much of the trial, acted
at Sync-Pop's behest when refusing to comply with her subpoena
JAMES TROUTMAN & ASSOCIATES 135
curred with regard to the suit brought against Sync-Pop
in Federal district court on August 5, 1987, because of its
failure, found unlawful herein, to submit to arbitration in
keeping with its bargaining obligation
The extraordinary sanction of reimbursement is war-
ranted for these reasons
a) Litigation of the allegations that Sync-Pop had en-
gaged in bargaining misconduct consumed virtually all of
the 19 days of trial Respondents' only defense to those
allegations was that Sync-Pop is not JT&A's alter ego,
and so did not inherit JT&A's bargaining obligation But,
as earlier discussed, the evidence is overwhelming that
Sync-Pop is a disguised continuance of JT&A, conceived
to facilitate an escape from IRS and union obligations
This defense, therefore, is worse than "patently frivo-
lous—the standard to be met on the issue of reimburse-
ment," it is outright fraudulent
b) Regarding the other allegations of misconduct, Re-
spondents acceded to the allegation that Clancy unlaw-
fully assisted IATSE by promoting its authorization
cards, they presented no evidence to counter the allega-
tions citing JT&A, and their defense to the allegation
that Clancy unlawfully threatened Holzborn—his per-
functory, lawyer-led denials, which he then effectively
cancelled by admitting that he was "really upset," that
he was "yelling and screaming," and that he did not re-
member his "exact words, or what [he] said—was patent-
ly frivolous 65
c) Beyond the fraudulence and frivolousness of their
defenses, Respondents employed a variety of devices
serving no perceptible purpose other than to prolong and
delay the proceeding and burden and confound the
record—among them, offering sheaves of exhibits of no
imaginable relevance, which, with the prolix supporting
arguments, squandered lavish amounts of time, 66 refusing
to stipulate to numerous matters about which reasonable
people could not possibly differ, requiring the General
Counsel to obtain orders in Federal district court enforc-
ing subpoenas of manifest validity, which entailed a 5-
month hiatus in the proceeding, and submitting a brief
rife with extra-record calumnies and other excesses, caus-
ing it to be signed by other than a lawyer of record, and
representing that it was not lawyer-prepared when the
contrary obviously is the case 67
64 The Board recently reiterated the "patently frivolous" standard in
New Era Terminal Services, 292 NLRB 1069 fn 1 (1989)
66 Respondents' brief, in all its 92 pages, does not once mention this
incident
66 Respondents' rejected-exhibits file numbers approximately 135 docu-
ments
67 Rule 11 of the Federal Rules of Civil Procedure states in part
"Every pleading, motion, and other paper of a party represented by an
attorney shall be signed by at least one attorney of record in his individ-
ual name The signature of an attorney constitutes a certificate
by him that he has read the pleading, motion, or other paper, that to the
best of his knowledge, information, and belief it is not Interposed for
any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation If a pleading, motion, or
other paper is signed in violation of this rule, the court shall Impose
an appropnace sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses incurred be-
cause of the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee" 1 Moore, Federal Practice at 109 (1987)
Although deeply skeptical of Respondent s claim that JT&A's payroll
and other records vanished Innocently, I hesitate, given the possibility of
In sum, Respondents, in their machinations to evade
their bargaining obligation, wantonly and contemptuous-
ly obstructed this proceeding, thereby inflicting needless
and no doubt considerable expense on the Board,
IATSE, and Local 776 A reimbursement order is war-
ranted to discourage this kind of abuse, and, so doing, to
effectuate the policies of the Act and serve the public in-
terest by relieving the forum of the resulting congestion
and drain on resources 68
Finally, for the reasons that a reimbursement order is
warranted, and for the further reason that, as late as the
present trial, Respondents had not complied with an ear-
lier decision in which the Board concluded that JT&A
had violated Section 8(a)(5) and (1)," I recommend a
broad ("In any other manner ") rather than a narrow
("In any like or related manner ") remedial order
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7°
ORDER
The Respondents, James Troutman & Associates and
Sync-Pop, Inc , alter egos, their officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Failing and refusing to bargain collectively with
the International Alliance of Theatrical and Stage Em-
ployees (IATSE) and its designee, Motion Picture and
Videotape Editors' Guild Local 776 (Local 776), by
withdrawing recognition from IATSE as the exclusive
collective-bargaining representative of their employees in
the appropriate unit, by failing or refusing, as concerns
those employees, to apply the terms and conditions con-
tained in the 1985-1988 Basic Agreement between
IATSE and the Alliance of Motion Picture and Televi-
sion Producers and the agreements incorporated therein,
and all successor agreements, pursuant to the commit-
ment made by James Troutman when he entered into an
Agreement of Consent and a Trust Acceptance with
IATSE on July 30, 1984, BY SHIFTING employees to
an alter ego to evade bargaining obligations, by mislead-
ingly telling Local 776 that they, or one of them, have
ceased operating, when operations m fact are continuing
through an alter ego, by failing to comply in a timely
manner with requests made by Local 776 for information
relevant to the Union's discharge of its duties as collec-
their being in IRS custody, to cite that as yet another instance of obstruc-
tionism
68 See Autoprod, 265 NLRB 331, 332 (1982), Wellman Industries, 248
NLRB 325, 329 (1980), Koval Press, 241 NLRB 1261, 1263 (1979), Didee
Products, 194 NLRB 1234, 1236 (1972)
"James Troutman & Associates, Case 31-CA-15828, 281 NLRB No
168 (Oct 17, 1986) not published in bound volume The Ninth Circuit
Court of Appeals entered a judgment (unreported) on March 5, 1987, en-
forcing the Board's order, after which, on March 14, 1988, the General
Counsel petitioned the 9th Circuit to adjudge JT&A in contempt 'for
having disobeyed, violated, and failed and refused to comply with the
judgment entered by the Court on March 5, 1987"
78 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
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive-bargaining representative, by failing to assume re-
sponsibility for and comply with grievance/arbitration
awards adverse to James Troutman & Associates, by fail-
ing to submit pension and health-and-welfare reports and
contributions pursuant to their aforementioned contrac-
tual commitments, and by refusing to entertain griev-
ances and go to arbitration as required by their contrac-
tual commitments
(b) Soliciting authorization cards from their employ-
ees, or otherwise promoting such cards, on behalf of
IATSE or any other labor organization
(c) Threatening employees with discharge or other ad-
verse consequences should a grievance be filed by them
or on their behalf under the prevailing labor agreement
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize IATSE and its designee, Local 776, as
the exclusive collective-bargaining representatives of
their employees in the appropriate unit
(b) Comply, retroactively to October 13, 1986, with
the terms and conditions contained in the 1985-1988
Basic Agreement and the agreements incorporated there-
in, and all successor agreements, including, to the extent
they have not done so, submitting prescribed pension and
health-and-welfare reports and contributions
(c) Make whole, with interest, employees covered by
the 1985-1988 Basic Agreement and the agreements in-
corporated therein, and all successor agreements, for any
losses suffered as a result of Respondents' misconduct, as
set forth in the remedy section of this decision
(d) Assume responsibility for and comply with the
grievance/arbitration awards dated November 12 and
December 15, 1986, and May 14, 1987, adverse to JT&A
(e) Arbitrate the grievance initiated March 27, 1987,
concerning Susan Holzborn, and comply generally with
their contractual obligation to entertain grievances and
go to arbitration
(f) Make whole, with interest, the Board, IATSE, and
Local 776 for expenses reasonably incurred by them in
the investigation, preparation, presentation, and conduct
of this and related proceedings, as set forth in the
remedy section of this decision
(g) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary or helpful to determine the backpay
due under this Order
(h) Post at their place of business in Glendale, Califor-
nia, and at their other facilities, if any, copies of the at-
tached notice, marked "Appendix " 1 Copies of the
71 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
notice, on forms provided by the Regional Director for
Region 31, after being signed by Respondents' authorized
representative, shall be posted by Respondents immedi-
ately upon receipt, and maintained for 60 consecutive
days, in conspicuous places, including all places where
notices to employees customarily are posted Reasonable
steps shall be taken by Respondents to ensure that the
notices are not altered, defaced, or covered by any other
material .
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT fail and refuse to bargain collectively
with the International Alliance of Theatrical and Stage
Employees (IATSE) and its designee, Motion Picture
and Videotape Editors' Guild Local 776 (Local 776), by
withdrawing recognition from IATSE as the exclusive
collective-bargaining representative of our employees in
the appropriate unit
WE WILL NOT fail and refuse, as concerns our bargain-
ing unit employees, to apply the terms and conditions
contained in the 1985-1988 Basic Agreement between
IATSE and the Alliance of Motion Picture and Televi-
sion Producers and the agreements incorporated therein,
and all successor agreements, pursuant to the commit-
ment made by James Troutman when he entered into an
Agreement of Consent and a Trust Acceptance with
IATSE on July 30, 1984
WE WILL NOT shift employees to an alter ego to evade
our bargaining obligations
WE WILL NOT misleadingly tell Local 776 that we, or
one of us, have ceased operating, when operations in fact
are continuing through an alter ego
WE WILL NOT fail to comply in a timely manner with
requests made by Local 776 for information relevant to
the Union's discharge of its duties as collective-bargain-
ing representative
WE WILL NOT fail to assume responsibility for and
comply with grievance/arbitration awards adverse to
James Troutman & Associates (JT&A)
JAMES TROUTMAN & ASSOCIATES 137
WE WILL NOT fail to submit pension and health-and-
welfare reports and contributions pursuant to our afore-
mentioned contractual commitments
WE WILL NOT refuse to entertain grievances and go to
arbitration as required by our contractual commitments
WE WILL NOT solicit authorization cards from our em-
ployees, or otherwise promote such cards, on behalf of
IATSE and any other labor organization
WE WILL NOT threaten employees with discharge or
other adverse consequences should a grievance be filed
by them or on their behalf under the prevailing labor
agreement
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act
WE WILL recognize IATSE and its designee, Local
776, as the exclusive collective-bargaining representatives
of our employees in the appropriate unit
WE WILL comply, retroactively to October 13, 1986,
with the terms and conditions contained in the 1985-1988
Basic Agreement and the agreements incorporated there-
in, and all successor agreements, including, to the extent
we have not done so, submitting prescribed pension and
health-and-welfare reports and contributions
WE WILL make whole, with interest, employees cov-
ered by the 1985-1988 Basic Agreement and the agree-
ments incorporated therein, and all successor agreements,
for any losses suffered as a result of our misconduct
WE WILL assume responsibility for and comply with
the grievance/arbitration awards dated November 12 and
December 15, 1986, and May 14, 1987, adverse to JT&A
WE WILL arbitrate the grievance initiated March 27,
1987, concerning Susan Holzborn, and comply generally
with our contractual obligation to entertain grievances
and go to arbitration
WE WILL make whole, with interest, the Board,
IATSE, and Local 776 for expenses reasonably incurred
by them in the investigation, preparation, presentation,
and conduct of this and related proceedings
JAMES 'TROUTMAN & ASSOCIATES, AND
SYNC-POP, INC