Joseph Stern & Sons, Inc. And Four Star Roofing Co., Inc.

National Labor Relations Board - Board DecisionsOct 18, 1989

297 N.L.R.B. 1 (N.L.R.B. 1989)

, , -â– - ' ' 'JOSEPH STERN & SONS I Joseph Stern & Sons, Inc. and Foul: Star ROofing - Co., Inc., its alter ego and United Union of Roofers, Waterproofers & Allied Trades, Local No. 22. Cases 3-CA-12575, 3-CA-12805, and 3-CA-12841 October 18, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND . DEVANEY _On March 22, 1989, Administrative Law Judge D Barry Morns issued the attached decision Re- spondent Joseph Stern & Sons, Inc filed exceptions and a supporting brief and the General Counsel filed a reply brief . The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and bnefs, and has decided to affirm the judge's rulings, findings,' and conclusions 2 and to adopt the recommended Order as modified 3 'Respondent Stern & Sons has excepted to some of the judge's credi- bility findings The Board's established policy is not to overrule an ad- ministrative law judge's credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu. 1951) We have carefully examined the record and find no basis for reversing the findings In affirming the judge's finding that Respondent Stern & Sons violated Sec 8(a)(5) by failing to provide a timely and accurate response to the Union's October 25, 1984 request for information, we note that the re- quest sought 35 specific items of information about the relationship be- teen Stern & Sons and Respondent Four Star Roofing These Items en- compassed, inter aim subjects of common ownership, management, per- sonnel, operations, work projects, financing, and equipment In making its request, the Union had a reasonable belief that Stern & Sons and Four Star were alter egos or a single employer and that employees of Four Star were performing bargaining unit work, so that the information re- quested was relevant both to the Union s administration of the collective- bargaining agreement then in effect and to the Union s preparations for impending negotiation of a successor contract The failure to provide such relevant information violated the Act 2 In affirming the judge's conclusion that the Respondents are alter egos, we note in addition to those factors discussed by the judge that there is sufficient credited evidence to warrant finding that the Respond- ent Stern & Sons established Four Star Roofing with the Intent to evade its contractual obligations to the Union Although we agree with the judge that the Respondents violated Sec 8(a)(5) by failing to apply the terms of collective-bargaining agreements with the Union to unit employees of Four Star, we do not rely on his finding that the Respondents were part of a multiemployer bargaining unit It is undisputed that the collective-bargaining relationship at issue was established and maintained pursuant to the provisions of Sec 8(f) of the Act Consequently, we will not find that the Respondents' employees became part of the multiemployer unit See John Deklewa & Sons, Inc , 282 NLRB 1375 1377 fn 42 (1987), enfd 843 F 2d 770 (3d Cm 1988), cert denied 488 U S 899 (1988) We agree, however, that the Respond- ents became bound, through the active participation of Gary Stern in ne- gotiations and in his subsequent acceptance of the results of negotiations, to collective-bargaining agreements covering a separate unit of the Re- spondents' employees 3 As stated by the judge, the Respondent shall make unit employees whole for losses suffefed as a result of the unlawful refusal to apply col- lective-bargaining agreements to employees of Four Star Such sums shall ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Joseph Stern & Sons, Inc , and its alter ego, Four Star Roofing Co, Inc , Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs "(a) Failing to apply to their employees the terms and conditions of collective-bargaining agreements negotiated with an exclusive collective- bargaining representative of those employees" 2 Substitute the attached notice for that of the administrative law judge be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682, 683 (1970), with Interest as prescribed in New Horizons for the Re- tarded, 183 NLRB 1173 (1987) Such amounts shall include reimbursing unit employees directly for any expenses ensuing from unlawful failure to make required employee benefit fund payments, as provided in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980) Any Interest owed by the Respondents on amounts unlawfully withheld from contractual em- ployee benefit funds shall be determined as set forth in Merryweather Op- mai Co , 240 NLRB 1213, 1216 fn 7(1979) We shall modify the recommended Order and substitute a new notice including paragraphs enjoining the Respondents from fading to apply terms of a collective-bargaining agreement to covered unit employees , 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 ordered us to post and abide by this notice WE WILL NOT fail to apply to our employees the terms and conditions of collective-bargaining agreements negotiated with an exclusive collective- bargaining representative of those employees WE WILL NOT refuse to provide relevant infor- mation in a timely manner, in the event there exists an exclusive collective-bargaining representative of our employees and such representative requests the information WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act WE WILL furnish relevant information in a timely manner, in the event there exists an exclu- sive collective-bargaining representative of our em- 297 NLRB No 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees and such repreientative requeits the infor- mation WE WILL make whole the appropriate individ- uals for any loss of earnings and other benefits they may have suffered as a result of our failure to apply the terms of the collective-bargaining agree- ments in effect between Joseph Stern & Sons, Inc and the Union to unit employees of Four Star Roofing Co, Inc JOSEPH STERN & SONS; INC , AND ITS ALTER EGO FOUR STAR ROOFING Co, INC FINDINGS OF FACT I JURISDICTION JSS, a New York corporation, with an office and place of business in Rochester, New York, is engaged as a roofing contractor in the construction industry JSS admits, and I so find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act In addition, it has been admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Issues Mark G Pearce, Esq , for the General Counsel Jack D Eisenberg, Esq (Harter, Secrest & Emery), of Rochester, New York, for the Respondent Richard D Furlong, Esq (Lipsitz, Green, Fahnnger Roll, Schuller & James), of Buffalo, New York, for the Charging Party DECISION STATEMENT OF THE CASE D BARRY MORRIS, Administrative Law Judge This case was heard before me in Rochester, New York, on February 1-3, April 25 L28, and June 22-24 and 27-28, 1988 Upon a charge filed on February 6, 1985, a com- plaint was issued on March 20, amended on August 30, and further amended on September 24, 1985 On Decem- ber 24, 1985, an informal settlement agreement was ap- proved However, on October 26, 1987, the Regional Di- rector for Region 3 set aside the settlement agreement On November 4, 1987, a consolidated complaint was issued alleging that Respondent Joseph Stern & Sons, Inc (JSS) and Respondent Four Star Roofing Co, Inc (Four, Star) violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (the Act) Respondents filed answers denying the commission of the- alleged unfair labor practices Specifically, the consolidated complaint alleges that JSS refused to furnish United Union of Roof- ers, Waterproofers & Allied Trades, Local No 22 (the Union) with information regarding its relation to Four Star Additionally, the complaint alleges that JSS and Four Star are alter ego corporations or, in the alterna- tive, are a single employer, within the meaning of the Act The complaint further alleges that JSS refused to bargain collectively with the Union by diverting bargain- ing unit work to employees of Four Star, by refusing to apply the terms of the collective-bargaining agreement in effect between 155 and the Union to employees of Four Star, and by making unilateral changes in the wages, hours, and other conditions of employment of unit em- ployees The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file bnefs Briefs were filed by the par- ties on September 14, 1988 On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing The issues are 1 Was there a contractual relationship between JSS and the Union during the complaint period? 2 Did, JSS violate the Act by failing to supply the Union with information it requested regarding the oper- ation of Four Star and its relationship to JSS9 3 Were JSS and Four Star alter egos.or, in the alter- native, a single employer, within the meaning of the Act? 4 Did Respondents violate the Act by refusing'- to apply the terms of the collective-bargaining agreement to unit employees of Four Star? B The Facts 1 The contractual relationship between JSS and the Union The Union and JSS have had a collective-bargaining relationship from at least the mid-1970s The Union has had collective-bargaining agreements with approximately nine roofing contractors in the greater Rochester area who, like JSS, are engaged in commercial and residential roofing In June 1981 Charles Stern, then treasurer of JSS, signed a collective-bargaining agreement- between JSS and the Union effective June 1, 1981, to May 31, 1984 Plouto Poulious, chairman of the Roofing Contrac- tors Association of Rochester 1 signed the agreement on behalf of the other roofing contractors James Cahill, the business manager of the Union, testified that he partici- pated in the negotiation of the 1981 agreement Cahill testified that JSS had no representative at the negotiating sessions and because of that the Union had an officer of JSS sign the cdntract On June 2, 1983, a meeting was held between the con- tractors who were signators to the 1981 agreement and members of the Union's executive board Walter Robin- son, then a member of the Union's executive board, cred- ibly testified that the purpose of the meeting was to re- lieve some of the nonunion pressure that was being apâ– - plied to the contractors and to try to obtain more work An agreement was reached 'at the meeting to extend the collective-bargaining agreement for an additional year and to defer the raise then scheduled to go into effect" on June 1, 1983 The terms of the extension, however, were The assoCiation was also known as the Roofing Contractor; of the Building Trades Employers Association JOSEPH STERN & SONS 3 not worked out at that meeting Instead, a committee was formed to negotiate the terms Gary Stern, president of JSS, was present at the June 2 meeting and was select- ed to serve on the negotiating committee Pouhous credi- bly' testified that Stern accepted his designation to serve on the committee and did not express any condition as to his participation on that committee nor did he at any time state he was bargaining solely on behalf of JSS and not on behalf of the roofing contractors in the associa- tion The next meeting was held on June 6, 1983, between representatives of the Union's executive board and the Roofing Contractors Association Gary Stern was one of the representatives of the contractors attending the meet- ing The contractors agreed to accept the package with the specific understanding that the parties would contin- ue to meet from time to time to work on a long-term so- lution concerning the problem of competitiveness in the industry Gary Stern did not indicate that he would not be bound by the extension agreement After the June 6 meeting the union membership ratified the terms of the extension and on June 16, 1983, Cahill called the con- tractors, including JSS, and informed them of the results of the union vote On June 23, 1983, another meeting was held with the same representatives who attended the June 6 meeting, including Gary Stern Robinson credibly testified that Stern did not make any statement at the meeting that he would not be bound by the extension agreement The ex- tension agreement was signed on June 24 by Pouhous, on behalf of the Roofing Contractors Association and Cahill on behalf of the Union Pursuant to the extension agree- ment the collective-bargaining, agreement was extended to May 31, 1985 On July 11, 1983, representatives of the Union and the contractors met to discuss long-term plans to assist the ,contractors in being more competitive in the industry Gary Stern was among the contractor respresentatives attending the meeting During December 1983 Cahill had a conversation with Gary Stern in which Stern was "wondering just what was being done on the long-term because we hadn't had a meeting in a while" This was followed by a letter dated December 28, 1983, from Gary Stern to Cahill in which 'Stern said, "I' feel very strongly that you should start setting the wheels motion for meetings on how to deal with the coming year" On May 17, 1984, a meeting was held between representatives of the Union and representatives of the Contractors Association Again, long-term problems were discussed In attendance were the same representa- tives, including Gary Stern, who attended the negotiat- ing sessions in 1983 Gary Stern testified that on May 24, 1984, he sent a letter to Pouhous stating that JSS was only bargaining jointly with the roofing contractors but was not a member of the multiemployer bargaining unit Pouhous credibly testified that he received the letter on July 23, 1984, and the date stamped so indicates Gary Stern also testified that on May 24 he sent a letter to the Union ad- vising it that JSS had not authorized the Roofing Con- tractors of the Building Trades Employers Association to bargain for it While the letter was addressed to \Cahill, Cahill denied having receiyed it In addition, Cahill testi- fied that at no time during 1984 did Gary Stern tell him that he was bargaining separately from the Contractors Association Pouhous credibly testified that he called Gary Stern to ask him what the letter meant since its substance contra- dicted Stern's actions and the statements that he had been making Stern had no explanation for the substance of the letter Pouhous brought the letter to the attention of the contractors but no action was taken because Stern's actions were contradictory to what the letter said Pouhous credibly testified that he never notified the Union of his receipt of the letter from Gary _Stern Randy Pikuetâ€ža disinterested party and chief executive officer of an association management company called As- sociation Resources, testified in this proceeding It was his responsibility to take minutes of the Roofing Contrac- tors' Industry Fund (RCIF) meetings 2 He credibly testi- fied that he was present at a meeting of the RCIF on January 30, 1985, where the negotiating team of contrac- tors was designated for the 1985-1987 contract negotia- tions The minutes of that meeting indicate that Gary Stern was present and, that it was unanimously carned that the negotiating committee would consist of the same _members as the prior year Pouhous credibly testified' that the committee ,consisted of himself, Gary Stern, and Charlie Davis, the same contractor group which met with the Union on May 17 of the previous year Pikuet testified that during the January 30 meeting Gary Stern â€¢placed no limitations or conditions on his participation on the negotiating committee The next meeting of the negotiating committee was held on February 25, 1985, with Gary Stern present The main topic of discussion was the wage scale for the 1985-1987 contract Cahill credibly testified that at this session Stern did not indicate that he was bargaining in- dependently of the other contractors nor did he indicate that he would not be bound by any agreement that ,was made between the Union and the contractors The next meeting was held on March 4, 1985, which Gary Stern did not attend because of an out-of-town commitment Agreement for the 1985-1987 contract was reached at the March 4 meeting A meeting was held on March 18, 1985, which Gary Stern attended Pouhous discussed the progress of the negotiating committee and presented the proposal as negotiated with the Union The minutes of the meeting reflect that the proposal was..ac- cepted unanimously Pikuet credibly testified that Gary Stern did not place any conditions on his acceptance of the proposal The contract was subsequently ratified by the union membership A meeting of the RCIF was held on May 28, 1985, which 'Gary Stern attended At this meeting the minutes of the January 30 and March 18, 1985 meetings were approved The final draft of the 1985-1987 agreement was completed on August 5, 1985 On August 8, 1985, the Union called a strike against JSS Gary Stern testified that he asked Cahill why the Union was picketing and the reply was that "there's no 2 Ptkuet testified that the nanie RCIF is used Interchangeably with the name Roofing Contractors of the Building Trades Employers Associa- tion 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract" Cahill, on the other hand, testified that he told Gary Stern that the reason for the picketing was because Four Star was "doing our work" and that the Union wanted to apply the contract to Four Star Roofing After the 1985-1987 agreement went into effect JSS paid the salaries agreed upon In December 1985 pursuant to an informal settlement agreement JSS agreed to apply the current collective-bargaining agreement between itself and the Union to the employees of Four Star en- gaged in bargaining unit work 2 Alter ego and single-employer status Norma Kelley, who appeared to be a credible witness, is a former JSS bookkeeper She testified that around February 1984 Gary Stern told her that he was starting a nonunion roofing company He told her that "we were not to discuss it outside the office with anyone" Similar- ly, Bernard Fischer credibly testified that when Four Star was first set up he was told by Gary Stern and Barry French, vice president of Four Star, that "we want to keep things on a low profile" and that he should use the back entrance as often as possible Joyce Woerner, who also appeared to me to be a credible wit- ness, had been the JSS office manager She testified that when Four Star was established the Union was not noti- fied Charles Stem testified that in 1984, when Four Star was organized, 50 percent of the stock was owned by him and 50 percent of the stock was owned by his broth- er, Gary When Four Star was organized its only assets were several gravel buggies, small tools, and wheelbar- rows Woerner credibly testified that at its inception Four Star utilized the JSS clerical staff for normal office operations including billing, typing, and bookkeeping, without paying for these services The clerical work of Four Star continued to be done by the JSS clericals Thus, Woemer 'credibly testified that the bookkeepers and the clerical staff remained on the JSS payroll until January 1985 At that point the clerical staff was put on the payroll of Anderson Management Company Ander- son Management was wholly owned by Gary and Charles Stern and Gary appointed Woemer as president of the company She had no ownership interest in An- derson Management The purpose of this company was to serve as a conduit for the transfer of funds between JSS and Four Star JSS and Folk Star were commonly managed Gary Stern had ultimate authority over the management of Four Star Woemer credibly testified that Gary Stem had total control over Four Star's accounts payable and determined who would and who would not get paid She testified that Gary Atern reviewed Four Star's accounts payable and bank balance two or three times a week Kelley credibly testified that Gary Stern had the final decision-making authority with respect to bids that went out for Four Star Similarly, James Scalisi credibly testi- fied that Gary Stern made the final decisions with re- spect to Four Star's roofing operations Scalisi also credi- bly testified that Gary Stern could override Barry French's directions to Four Star employees JSS and Four Star had common personnel As dis- cussed earlier, both Companies shared the clerical staff through Anderson Management Scalisi credibly testified that Four Star's initial roofing personnel started on the JSS payroll in the fall of 1983 and were converted to the Four Star payroll in April 1984 Fischer was an employ- ee of JSS until June 1984 during which time he delivered materials to Four Star jobsites In June 1984 Fischer was placed on the Four Star payroll Gary Stern had significant control over the labor rela- tions of his various companies, including Four Star He had final say as to who was hired or fired Kelley credi- bly testified that French wanted her to work for Four Star but that ,Gary Stem would not approve the hiring French cleared the hiring of Scalisi and the Ashby brothers with Gary Stern before they were hired Scalisi credibly testified that Gary Stern approved the financial arrangements when Scalisi and the Ashbys wanted to be compensated for the cost of operating their personal ve- hicles for Four Star Similarly, before Fischer received a raise at Four Star it was cleared by French with Gary Stern At times JSS and Four Star employees worked on the same jobs for the same customers Thus, the recora shows that on April 18, 1985, Fischer worked at two JSS jobs while he was a Four Star employee Gary Stern admitted that French represented JSS for the SUNY Geneseo job on June 11, July 26, and August 2, 1985 On August 4, 1985, Sonner, a Four Star employee, worked on the roof of Strong Memorial Hospital, a JSS job C Discussion and Conclusions 1 Contractual relationship In Custom Colors Contractors, 226 NLRB 851, 853 (1976), enfd sub nom NLRB v Beckham, Inc , 564 F 2d 190 (5th Cir 1977), the Board stated The Board has repeatedly held that once commit- ment to group bargaining is made the employer can extricate himself from the multiemployer relation- ship only by making a timely and unambiguous withdrawal, from that arrangement (a withdrawal which, to be timely, must, absent unusual bircuin- stances, be made before the actual commencement of contract negotiations) The manifestation of an "unequivocal intention" to be bound requires something less, however, than a solemnly executed document signed and sealed with hot wax A commitment to bargaining on a multiemployer basis will not be made to depend on the presence of a formal associational structure among the bargaining participants or on the formal delegation of ,authority from the individual employ- er to the multiemployer group Nor will the Board, faced with outward manifestations of intent to engage in group bargaining, consider as controlling an employer's private manifestations of dissent An employer who, through a course of conduct or oth- erwise, signifies that it has authorized a group to act in its behalf will be bound by that apparent creation of authority JOSEPH STERN & SONS ' 5 On June 2, 1983, Gary Stern was selected to serve on the negotiating committee of the Roofing Contractors Association Stern accepted his designation to serve on the committee and did not express any condition as to his participation nor did he state that he was bargaining on an individual basis rather than on behalf of the con- tractors in the Association On June 6 a meeting was held between representatives of the Union's executive board and the Roofing Contractors Association Gary Stern was one of the contractors' representatives attend- ing the meeting On June 23 another meeting was held with the same representatives who attended the June 6 meeting, including Gary Stern Stern did not make any statement that he would not be bound by the extension previously agreed to The extension agreement was signed on June 24 by Poulious, on behalf of the Roofing Contractors Association, and by Cahill, on behalf of the Union Pursuant to the extension agreement the collec- tive-bargaining agreement was extended to May 31, 1985 It is clear, therefore, that during 1983 JSS indicated "an unequivocal intention to be bound in collective bargain- ing by group rather than individual action" Custom Colors Contractors, supra, 226 NLRB at 852, Bill O'Grady Carpet Service, 185 NLRB 587, 590 (1970) Gary Stern testified that on May 24, 1984, he sent a letter to Poulious stating that JSS was not a member of the multiemployer bargaining unit I have credited Pou- hous' testimony that he received the letter on July 23, 1984 In addition, Gary Stern testified that on May 24 he sent a letter to the Union advising it that JSS had not authorized the Roofing Contractors Association to bar- gain for it Cahill denied having received the letter and also testified that at no time during 1984 did Gary Stern tell him that he was bargaining separately from the Asso- ciation I find that Respondent has not shown by a pre- ponderance of the evidence that it advised the Union that it was withdrawing from the multiemployer bargain- ing unit As stated in Custom Colors Contractors, supra, 226 NLRB at 853 "once commitment to group bargain- ing is made the employer can extricate himself from the multiemployer relationship only by making a timely and unambiguous withdrawal from that arrangement" Re- spondent, not having proven that the Union was notified of its intent to withdraw, has not sustained its burden of showing that it made a "timely and unambiguous with- drawal from that arrangement" Despite the notification to Poiihous on July 23, 1984, that JSS no longer wished to be regarded as a member of the multiemployer bargaining unit, its actions demon- strated that it continued to regard itself as a member of the Association Thus, on January 30, 1985, Gary Stern was present at a meeting of the contractors where it was unanimously carried that the negotiating committee would consist of the same members as the prior year, in- cluding Gary Stern At that meeting Gary Stern placed no limitations or conditions on his participation on the negotiating committee The negotiating committee met on February 25, 1985, at which time the wage scale for the 1985-1987 contract was discussed Gary Stern at- tended the meeting and did not indicate that he was bar- gaining independently of the other contractors nor did he indicate that he would not be bound by any agree- ment that was made between the Union and the Associa- tion' . The next meeting was held on March 4, 1985, at which time agreement for the 1985-1987 . contract was reached Gary Stern did not attend because of an out-of- town commitment However,' Stern attended the meeting held on March 18 The proposal as negotiated with the Union Was presented and it was accepted unanimously Gary Stern did not place any conditions on his accept- ance of the proposal The contract was subsequently rati- fied by the union membership Respondent's actions sub- sequent to its purported withdrawal from the multiem- ployer bargaining unit clearly manifested an intention to be bound by the actions of the multiemployer unit con- sistent with the standards expressed in Custom Colors Contractors, supra See also City Roofing Co, 222 NLRB 786 (1976), enfd 560 F 2d 1370 (9th Cir 1977) As stated by the Board in Dependable Tile Co, 268 NLRB 1147 (1984) Hartman sought the "best of the two worlds"â€”the conduct prohibited by the Board's decisions in Asso- ciated Shower Door Co, 205 NLRB 677 (1973), and Michael J Bollinger Go, 252 NLRB 406 (1980) That is, Hartman continued in group negotiations in an attempt to secure satisfactory terms in the multi- employer agreement, but at the same time he at- tempted to reserve the right to reject any agree- ment not to his liking Thus, Hartman acted in a manner inconsistent with Respondent Dependable's withdrawal from group bargaining Accordingly, Respondent Dependable nullified its withdrawal from multiemployer bargaining, and it must honor the contract reached through multiemployer bar- gaining Based on the above, I find that JSS was part of the multiemployer bargaining unit when the collective-bar- gaining agreement was extended to May 31, 1985 While JSS notified Poulious in July 1984 that it wished to with- draw from the multiemployer bargaining unit it did not notify the Union and, in fact, Gary Stern participated in the negotiations for the 1985-1987 agreement Accord- ingly, I find that JSS remained in the multiemployer bar- gaining unit 2 Alter ego In Crawford Door Sales, 226 NLRB 1144 (1976), the Board stated the criteria for establishing alter ego status Clearly each case must turn on its own facts, but generally we have found alter ego status where the two enterprises have "substantially identical" man- agement, business purpose, operation, equipment, customers, and supervision, as well as ownership Not all of these indicia need be present Blake Con- struction Co, 245 NLRB 630, 634 (1979), enf granted in part and denied in part on other grounds 663 F 2d 272 (DC Cir 1981), E G Sprinkler Corp, 268 NLRB 1241, 1243 (1984), enfd sub nom Goodman Piping Products v NLRB, 741 F 2d 10 (2d Cir 1984) 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The record shows that both JSS and Four Star were engaged in the same business JSS existed for over 15 years and engaged in commercial and residential roofing Four Star was formed on April 1, 1984, to engage in principally the same type of work In December 1985 Four Star was dissolved and JSS took over its outstand- ing contracts The record also shows common ownership in JSS and Four Star In 1985 Gary Stern and his brother, Charles, each owned 50 percent of the stock of Four Star During the same year Charles and Gary each owned 44 percent of the stock of JSS with the remaining 12 percent owned by their father, Joseph Stern With respect to equipment, at its inception Four Star's only assets were a few small pieces of nonoperational equipment All heavy equip- ment was supplied by JSS JSS and Four Star were commonly managed Gary Stern was president of JSS and the person responsible for its management decisions He also had ultimate au- thority over the management of Four Star He had total control over Four Star's accounts payable and would de- termine who would or would not get paid He reviewed the financial reports of Four Star and was generally called to make final decisions with respect to Four Star jobs Gary Stern had control over the labor relations of both JSS and Four Star and he made the final decisions as to who was hired or fired at Four Star Four Star utilized the JSS clerical staff for normal office operations including billing, typing, and bookkeep- ing Bonnie Eskildsen was responsible for the accounts payable of both JSS and Four Star and Joyce Woerner, a JSS employee, also worked on the accounts receivable for Four Star Computer information for Four Star was put on the JSS computer Based on the above, I find the record has established substantial common ownership, common management, centralized control of labor relations, integration of oper- ations, business purpose, and equipment Accordingly, I find that Four Star is the alter ego of JSS 3 Single-employer status The complaint has also alleged that JSS and Four Star constitute a single employer within the meaning of the Act The criteria for determining single-employer status are similar to those of determining alter ego status Thus in Radio Union Local 1264 v Broadcast Service, 380 U S 255, 256 (1965), the Supreme Court stated that the con- trolling criteria for establishing single-employer status are interrelation of operations, common management, cen- tralized control of labor relations and common owner- ship" See also Blumenfeld Theatre Circuit, 240 NLRB 206, 215 (1979) In my discussion of alter ego status, I have already found that these criteria have been satisfied Once a determination has been made that the two cor- porations constitute a single employer within the mean- ing of the Act it is nevertheless necessary to determine whether the employees of both corporations would con- stitute a single unit South Prairie Construction Co v Op- erating Engineers Local 627, 425 U S 800, 804 (1976) The employees of JSS and Four Star were engaged in the roofing trade As such they exercised common skills and performed common tasks They worked out of the same facility and there is evidence of some job transfer between the two corporations As has been previously pointed out, the operations of the two were closely inter- twined and Gary Stern maintained significant control over Four Star's labor relations Accordingly, under these circumstances I believe that the evidence warrants the conclusion that the JSS and Four Star employees do not constitute distinct and separate units and that there- fore an employerwide unit is the appropriate unit See DMR Corp, 258 NLRB 1063 fn 3 (1981), Safety Electric Corp, 239 NLRB 40 (1978) 4 Request for information On October 25, 1984, the Union requested of JSS in- formation on Four Star's operation and did not receive a reply until May 9, 1985 An examination of the reply re- veals substantial inaccuracies when compared to the evi- dence in the record In his testimony, Gary Stern con- ceded that statements contained in the reply were not ac- curate It is well settled that under Section 8(a)(5) of the Act a union which has the responsibility of representing em- ployees for the purposes of collective bargaining is enti- tled to request and obtain information from the employer if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsibilities in representing such employees Walter N Yoder & Sons, 270 NLRB 652, 656 (1984), enfd 754 F 2d 531 (4th Cir 1985) Accordingly, I find that Respond- ent's failure to furnish the Union with the information re- quested by it violated Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 Joseph Stern & Sons, Inc and its alter ego, Four Star Roofing Co, Inc, are employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By failing to respond in a timely manner to the Union's request for information, Respondents have en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 4 By failing to apply the terms of the collective-bar- gaining agreement between Joseph Stern & Sons, Inc and the Union to the employees of Four Star Roofing Co, Inc, Respondents have violated Section 8(a)(5) and (1) of the Act 5 The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondents have engaged in unfair labor practices, I find it necessary to order Respondents to cease and desist therefrom And to take further action necessary to effectuate the policies of the Act In addi- tion, I shall order that the Respondents make whole the appropriate individuals for any losses they may have suf- fered by reason of Respondents' failure to apply the terms of the collective-bargaining agreements to the JOSEPH STERN & SONS 7 Four Star employees including benefit contributions The parties entered into a stipulation that as of Decem ber 31 1987 the Union no longer represented the em ployees of Joseph Stern & Sons Inc Accordingly I will not include in the Order the customary requirement to bargain On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 3 ORDER The Respondent Joseph Stern & Sons Inc and its alter ego Four Star Roofing Co Inc Rochester New York their officers agents successors and assigns shall I Cease and desist from (a) Refusing to furnish relevant information in a timely manner in the event there exists an exclusive collective bargaining representative of Respondents employees and such representative requests the information (b) In any like or related manner interfering with re straining or coercing its employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Furnish relevant information in a timely manner in the event there exists an exclusive collective bargaining representative of Respondents employees and such rep resentative requests the information (b) Make whole the appropriate individuals for any losses they may have suffered by reason of Respondents If o e cept o s fled as po dd by S 102 46 of th Boa d R les a d Reg lat o s th f d gs o cl so s d recomm d d Order shall s pro I.:led S 102 48 of th R les b dopted by th Bo d a d all obj t o s to them shall be d m d wa ed fo all pu poses failure to apply the terms of the collective bargaining agreement in effect between Joseph Stern & Sons Inc and the Union to the unit employees of Four Star Roof ing Co Inc including all contributions the Union would have received in accordance with the agreement with interest as computed in New Horizons for the Retard ed 283 NLRB 1173 (1987) 4 (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amounts owing under the terms of this Order (d) Post at its facility in Rochester New York copies of the attached notice marked Appendix 5 Copies of the notice on forms provided by the Regional Director for Region 3 after being signed by the Respondents au thonzed representative shall be posted by the Respond ents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ents to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondents have taken to comply U d r New Ho terest s comp ted at the sho t t m Fede al r te fo th de paym t of t s as set o t th 1986 am dm t to 26 USC Â§ 6621 If th 0 de s e fo d by a judgm t of Un ted St tea o rt of pp Is the wo d the not ce d g Posted by Ode of the Nat o al Labor Relat o Bo rd shall d Posted Purs t to a J dgme t of the U t d St tes Co t of Appeals E fo g a Orde of th N t onal L bor Relat o Bo rd