Carnival Carting, Inc

National Labor Relations Board - Board Decisions

Jul 13, 2010

355 N.L.R.B. 297 (N.L.R.B. 2010)

CARNIVAL CARTING, INC.
355 NLRB No. 51
297
Carnival Carting, Inc. and Romar Sanitation, Inc.
and Local 813, International Brotherhood of
Teamsters. Cases 29–CA–20586 and 29–CA–
22552
July 13, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The single issue in this compliance case is whether the
Respondents, Carnival Carting, Inc. and Romar Sanita-
tion, Inc., constitute a single employer, rendering them
jointly and severally liable for backpay arising from Car-
nival Carting, Inc.’s unlawful discharge of employee
Frank Mendez in violation of Section 8(a)(3) and (1) of
the Act.1 The judge found the single-employer relation-
ship and consequent liability as alleged.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Carnival Carting, Inc. and
Romar Sanitation, Inc., a single employer, Woodside,
New York, their officers, agents, successors, and assigns,
shall take the action set forth in the Order.

Kathy Drew King, Esq., for the General Counsel.
Emanuel F. Saris, Esq., of Hyde Park, New York, for the Re-
spondent.
SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge. On
April 5, 2006, the National Labor Relations Board issued its
Corrected Supplemental Order in the above-captioned case

1 On February 9, 2010, Administrative Law Judge Eleanor Mac-
Donald issued the attached supplemental decision. The Respondents
filed a brief containing exceptions, and the General Counsel filed an
answering brief.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondents’ exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondents’ contentions are without
merit.
directing Respondent Carnival Carting, Inc. to reinstate and
make whole its employee Frank Mendez for any loss of earn-
ings and other benefits suffered as a result of his discharge in
violation of the National Labor Relations Act. On August 7,
2006 the United States Court of Appeals for the Second Circuit
issued its Judgment enforcing the Board’s Order and ordering
Respondent to pay Frank Mendez the amount of $105,569.98,
plus interest, and to pay the Union the sums of $15,795 and
$6,480, plus interest, to reimburse its Pension Fund and Sever-
ance Plan.
Procedural History
On May 21, 2008 the Regional Director for Region 29 issued
a Notice of Hearing in the above-captioned case alleging that
Respondent Carnival Caring, Inc., and Romar Sanitation, Inc.,
constitute a single-integrated business enterprise and a single
employer within the meaning of the Act, and asserting that
Romar Sanitation is jointly and severally liable with Respon-
dent Carnival Carting to comply with the Board’s Corrected
Supplemental Order and the Supplemental Judgment.
The hearing was scheduled to open on September 16, 2008.1
On August 16, 2008 the General Counsel issued separate
subpoenas duces tecum to Carnival Carting, Inc. and to Romar
Sanitation, Inc., and a subpoena ad testificandum to Roger Car-
nivale, the president of Carnival Carting, Inc. and the president
of Romar Sanitation, Inc. By Order of September 8, 2008 Re-
spondent’s request to revoke the subpoenas was denied because
the request was untimely under the Board’s Rules and because
no valid basis for revocation was stated in the request. On Sep-
tember 11, 2008 Respondent provided a letter from Bonnie
Kiner-Strachan, M.D., Roger Carnivale’s treating physician,
stating the he would be immunocompromised for more than a
year and recommending that he not appear in court for that
period of time.
The hearing opened on September 16, 2008. Respondent
was represented by Counsel. Respondent did not provide the
subpoenaed documents. The hearing was postponed until No-
vember 17, 2008, and Counsel were directed to seek guidance
from Roger Carnivale’s doctor as to whether he would be able
to testify on that date. At the hearing, Counsel for Respondent
declined to make any arrangements to produce the subpoenaed
documents stating that he did not know whether he would have
access to them while Roger Carnivale was ill.
By Order of November 12, 2008 the hearing was postponed
to May 18, 2009 due to the continuing illness of Roger Carni-
vale.
Prior to the scheduled hearing date of May 18, 2009, Coun-
sel for the General Counsel requested that Respondent advise
her whether Roger Carnivale would indeed be able to testify on
May 18. On May 14, I received a letter postmarked May 12
from Dr. Kiner-Strachan stating that Roger Carnivale would be
immunocompromised for 6 months to a year and recommend-
ing that he not appear in court for that period of time. In a con-

1 After issuance of the Notice of Hearing the Regional Director
granted Respondent’s request for a postponement of the hearing due to
the illness of Roger Carnivale, the principal of both Carnival Carting
and Romar Sanitation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
ference call with Dr. Kiner-Strachan she informed me that
Roger Carnivale was fatigued and might only appear in public
wearing a mask.2 She stated that he might be able to answer
questions from one-half hour to one hour depending on his
condition on a particular day. The possibility of taking Roger
Carnivale’s testimony by a method other than his appearance in
court was raised in an email addressed to all counsel. The par-
ties were advised on May 15 that the hearing would go forward
on May 18 and that the parties should be prepared to discuss a
procedure to obtain testimony from Roger Carnivale.
At the hearing on May 18, 2009 the parties discussed counsel
for the General Counsel’s suggestion to arrange for Roger Car-
nivale’s testimony by videoconferencing from a location close
to his residence or for him to testify via SKYPE or by tele-
phone. Counsel for the General Counsel estimated the length
of the required testimony as no more than an hour. Counsel for
the General Counsel also asked that the subpoenaed documents
be produced in advance of this testimony. Counsel for the
General Counsel stated that the Region had restrained about
$193,000 in assets of a Romar Sanitation corporate bank ac-
count through a prejudgment writ of garnishment. Counsel for
the General Counsel established on the record her need for the
subpoenaed documents going back to the time of the unfair
labor practice in 1996.3 Counsel for the General Counsel stated
her belief that the records were in Roger Carnivale’s sister’s
home. Counsel for Respondent was directed to produce the
subpoenaed documents. Counsel for Respondent agreed to
make an effort to locate and produce the subpoenaed docu-
ments. The discussion centered on the fact that one benefit of
obtaining the subpoenaed documents was to limit the testimony
that might be required of Roger Carnivale and, possibly, to
obviate the need for any such testimony.
Counsel for Respondent stated that he would write to Roger
Carnivale and communicate with counsel for the General Coun-
sel concerning the subpoenaed documents. Counsel for Re-
spondent stated that he did speak to his client on the telephone.
The hearing was adjourned without date.
In August 2009, counsel for Respondent and Counsel for the
General Counsel met with a Settlement Judge in an attempt to
settle the case, but no settlement ensued.
On August 17, 2009 counsel for the General Counsel re-
quested that the case be scheduled for hearing after October 15,
2009. Counsel for the General Counsel stated that counsel for
Respondent had not responded to repeated efforts to obtain
information about the subpoenaed documents. Counsel for
Respondent did not respond to the August 17 letter.
By Order of September 10, 2009, the hearing was scheduled
to resume on October 16, 2009.
By letter of September 21, 2009 counsel for the General
Counsel asked Counsel for Respondent to inform her whether
Roger Carnivale would testify at the October 16 hearing in
person or though videoconferencing or some other method.
The letter also asked for production of the subpoenaed docu-

2 Despite multiple efforts to reach Counsel for Respondent he was
apparently not available to participate in this conference call.
3 The records sought by General Counsel related to the ownership,
management and operations of Carnival Carting and Romar Sanitation.
ments and gave notice that if the documents were not produced
counsel for the General Counsel would make a limiting motion
precluding Respondent from introducing evidence concerning
the subjects covered by the subpoenaed documents. Respon-
dent did not produce the documents in response to Counsel for
the General Counsel’s request. Respondent’s request for post-
ponement of the October 16 hearing was denied.
At the hearing on October 16, 2009 Counsel for Respondent
stated, “[A]s of yesterday it is my understanding that I have
been cleared to actually be able to contact [Roger Carnivale].”
counsel for Respondent stated that Roger Carnivale was now
able to provide testimony. It was thought that this testimony
might be taken in a location close to Roger Carnivale’s resi-
dence. Counsel for Respondent stated that he would meet with
counsel for the General Counsel on October 21 to “go over any
outstanding documentation that’s been requested by General
Counsel.” Counsel for Respondent undertook to provide the
subpoenaed documents after the meeting of October 21. In
return, counsel for the General Counsel agreed to provide coun-
sel for Respondent with a copy of a deposition transcript of
Roger Carnivale’s testimony given on April 2, 2008 in a U.S.
District Court proceeding.
Counsel for Respondent agreed that Roger Carnivale would
appear to testify, stating, “It is my preference that he appears
live.” The parties agreed to reconvene the hearing on Novem-
ber 12, 2009, thereby giving counsel for Respondent adequate
time to obtain the subpoenaed documents and turn them over
before the hearing date.
After October 16, 2009 counsel for the General Counsel at-
tempted to find a location close to Roger Carnivale’s home
from which he could testify.
Beginning on November 2, 2009 both the Administrative
Law Judge and counsel for the General Counsel made numer-
ous written efforts to ascertain whether Roger Carnivale would
indeed provide testimony on November 12. It had become
apparent that in order to permit him to testify close to home a
significant expenditure of government funds would be required.
Counsel for the Respondent did not reply to written requests
from the Administrative Law Judge. Further, counsel for the
Respondent had not communicated with or turned over the
subpoenaed documents to Counsel for the General Counsel
since meeting in her office on October 21 and receiving a copy
of Roger Carnivale’s deposition.
An Order of November 4, 2009 set the hearing location for
the agreed-upon date of November 12 at the Division of Judges
in New York City.
I note that counsel for the Respondent did not communicate
with the Administrative Law Judge or with counsel for the
General Counsel from October 21 through November 10. In
summary, the subpoenaed documents were not produced and no
information concerning Roger Carnivale’s availability or
nonavailability to testify was provided despite repeated requests
for such information.
On November 10, 2009 counsel for the Respondent sent a
letter stating, “Late yesterday afternoon I was advised that my
wife must undergo a biopsy . . . [November 12].” The letter
continued, “In addition I have been advised that Mr. Carni-
vale’s medical condition may not be as positive as first thought
CARNIVAL CARTING, INC. 299
but will not be able to explore those facts until after my wife’s
procedure.” Counsel for Respondent stated that he would not
be able to appear in court on November 12. I note that coun-
sel’s letter did not refer to or explain his failure to produce the
subpoenaed documents as promised; three weeks had gone by
since his meeting to discuss the documents with Counsel for the
General Counsel. Further, counsel’s letter did not provide any
specific information about Roger Carnivale’s ability to testify
nor did it state why doubts were being raised at the last minute
about his availability on November 12.
The hearing took place on November 12 as scheduled. No
one appeared on behalf of Respondent.
No further evidence has been proffered concerning Respon-
dent’s failure to produce the subpoenaed documents and no
further evidence has been proffered concerning Roger Carni-
vale’s failure to appear to testify on November 12, 2009.
The Evidence
At the hearing counsel for the General Counsel requested
that pursuant to the Board’s decision in Bannon Mills, 146
NLRB 611 (1964), certain sanctions should be imposed on
Respondent. This request was granted; as a result the General
Counsel was permitted to prove the case through the use of
secondary evidence and I shall draw an adverse inference due
to Respondent’s failure to produce the subpoenaed documents.
Counsel for the General Counsel requested a finding pursu-
ant to Federal Rule of Evidence 804 (a) (4) that Roger Carni-
vale is “unable to be present or to testify at the hearing because
of . . . then existing physical . . . illness.” This request was
granted based on statements from his doctor about his treatment
and immunocompromised state and based on the most recent
statement from Respondent’s counsel that Roger Carnivale’s
health was not as positive as was thought when arrangements
were being made to take his testimony. Under Rule 804 (b) (1)
a deposition given by Roger Carnivale would not be excluded
as hearsay. Counsel for the General Counsel also cited Federal
Rule of Civil Procedure 32 (3) and (4) (C). Roger Carnivale’s
deposition taken on April 2, 2008 in the presence of Respon-
dent’s Counsel was thereupon received into evidence.
The General Counsel contends that Carnivale Carting, Inc,
and Romar Sanitation, Inc. constituted a single employer and/or
a single integrated enterprise at the time the unfair labor prac-
tices were committed. The underlying Decision in this case,
JD(NY)–62–00, adopted by the Board in an unpublished Order
in the absence of exceptions, found that Carnival Carting, Inc.,
provides removal of refuse for business firms and that Roger
Carnivale is the president. The Decision found that Frank
Mendez was employed as a helper by Carnival Carting from
1984 to 1996.4 Mendez’ boss was Roger Carnivale. Every
week Mendez received a check made out to “Cash” signed by
Roger Carnivale and drawn on the account of Romar Sanita-
tion, Inc. On December 15, 1996 Roger Carnivale told Mendez
that he was discharged. The Decision found that Carnivale

4 Mendez helped to pick up garbage from restaurants and bars in
Manhattan. There were at least two truck drivers employed by Carnival
Carting.
Carting, Inc., discharged Mendez in violation of Section 8(a)1(
and (3) of the Act.
Roger Carnivale’s deposition establishes the following facts:
Roger Carnivale was employed by Carnival Carting, Inc.5
He was the president and chief executive and he owned stock in
the company. Roger Carnivale could not recall when he be-
came president of Carnival Carting; he was still the president in
2007. In 1996 and 1997 Roger Carnivale was an officer of
Carnival Carting and he did the hiring and firing at Carnival
Carting. The office and place of business of Carnival Carting
was at 51–29 64th Street, Woodside, New York. The property
is now owned by Lorraine Cassletto, sister of Roger Carnivale;
previously it had been owned by his mother, Mary Carnivale.
Carnival Carting had no lease at 51–29 64th Street and did not
pay rent for the use of the property. Carnival Carting owned
two garbage trucks in 1996 and two garbage trucks in 2007.
Carnival Carting housed its two garbage trucks at 58–70 56th
Street, Woodside, New York.6 This location was owned by
Romar Sanitation, Inc. Carnival Carting did not have a lease
for the 56th Street location; however, Carnival Carting was
supposed to pay rent to Romar Sanitation in the amount of
$2000 per month. Carnival Carting did not pay rent to Romar
Sanitation every month; it paid the rent only sporadically.
Roger Carnivale could not recall whether Carnival Carting had
last paid rent to Romar Sanitation in 2005 or 2006 or 2007.7
Romar Sanitation’s only revenue was rent paid by Carnival
Carting. Romar Sanitation never sued Carnival Carting for
nonpayment of rent.
Until at least 2007 Carnival Carting had two credit cards.
Roger Carnivale paid the bills for Carnival Carting. Roger
Carnival submitted bills to customers of Carnival carting. He
handled the banking and he wrote the checks for Carnival Cart-
ing.
Carnival Carting did not own any cars used for business
from 1996 to 2007.
At the time of the deposition in April 2008, Carnival Carting
had no corporate bank account. Carnival Carting is out of busi-
ness and is unable to pay the judgment outstanding against it.
Roger Carnivale was the president and a shareholder of Ro-
mar Sanitation.8 Romar Sanitation’s office and place of busi-
ness is at 51–29 64th Street, Woodside, New York. Romar
does not pay rent to Lorraine Cassletto for use of the premises.
Romar Sanitation does not provide trash removal services.
According to Roger Carnivale, the only business engaged in by
Romar Sanitation was owning the building at 58–70 56th
Street, Woodside, NY, where Carnival Carting kept its garbage
trucks. Romar Sanitation paid the utility charges for the build-

5 At the time of the deposition in 2008 Roger Carnivale was retired.
6 The documents recording the mortgage and transfer pertaining to
this location place the property in Woodside, NY, although Roger
Carnivale apparently believed that the property was in Maspeth, NY.
7 During the investigation of the instant case, Roger Carnivale had
provided records to Counsel for the General Counsel showing that in
2003 Carnival Carting was 5 years in arrears on rent payments to Ro-
mar Sanitation. In June, July and August 2005, the last year for which
records were made available, Carnival Carting paid Romar Sanitation a
total of $2000 for the rent due in July 2000.
8 He did not recall if he was the president and CEO in 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
ing using proceeds of the rent paid by Carnival Carting. The
only telephone at the building was in the name of Carnival
Carting; Carnival Carting paid the bills for this telephone. The
checks made out to Frank Mendez by Romar Sanitation were
funded by rent paid to Romar by Carnival Carting. Romar
issued Frank Mendez a 1099 tax form showing that “Romar
Sanitation Inc d/b/a Carnival Carting Inc” had paid him
$15,600 in the year 1996. Roger Carnivale’s deposition states
that Frank Mendez was employed by Romar Sanitation as a
janitor.
Romar Sanitation owned a Jeep Cherokee between 1996 and
2007. Roger Carnivale used the vehicle for personal and busi-
ness transportation.
Romar Sanitation and Carnival Carting had no written
agreements concerning the sharing of employees or income, or
the rental of the premises at 58–70 56th Street where the Carni-
val Carting trucks were kept. The two companies probably
used the same accountant. Romar Sanitation had bank accounts
but Roger Carnivale could not recall if these were in the same
bank used by Carnival Carting.
Various documents in the record show the history of the
building at 58–70 56th Street, Woodside, NY. On December
17, 1976 Carnival Carting purchased the building for $75,000
pursuant to a 10 year purchase money mortgage signed by
Roger Carnivale as vice president of Carnival Carting. On the
same day, Carnival Carting transferred the building to Roger
Carnivale and Richard Carnivale, d/b/a R/R Associates for “no
consideration” except the amount of $10. On December 28,
1984, R/R Associates transferred the building to Romar Sanita-
tion for $10.00 and subject to the assumption of the unpaid
principal on the existing mortgage in the amount of $25,769.64.
The Indenture shows that “Richard Carnivale a partner of R/R
Associates” assigned the property to “Romar Sanitation, Roger
Carnivale, President.”
The mortgage on the building at 58–70 56th Street, Wood-
side, New York, was satisfied on September 9, 1987. On Au-
gust 24, 2007, Romar Sanitation sold the building to ANF Re-
alty LLC for $730,000; the assessed value of the building at
that time was $189,000. The Indenture states that “Roger Car-
nivale is conveying all his right title and interest in the property
individually and as President of Romar Sanitation Inc.” Romar
Sanitation was dissolved on October 1, 2008.
Frank Mendez testified in the instant hearing that Roger Car-
nivale hired him and gave him his work assignments. He iden-
tified the 1099 tax form he received for the year 1996 from
“Carnival Carting Inc d/b/a Romar Sanitation Inc” in evidence.
Part of the form is typewritten and part of it is handwritten;
Mendez stated that is how the tax form appeared when he re-
ceived it. I credit Mendez’ testimony.
Discussion and Conclusions9
The General Counsel asserts that Carnival Carting and Ro-
mar Sanitation constitute a single employer.
The Board has held that, “The hallmark of a single employer
is the absence of an arm’s-length relationship among seemingly

9 Counsel for the General Counsel filed a brief on November 24,
2009. Counsel for Respondent filed a brief on December 18, 2009.
independent companies. The Board looks at four factors in
making a finding on this issue: (1) interrelation of operations;
(2) common management; (3) centralized control of labor rela-
tions; and (4) common ownership or financial control. While
the Board considers common control of labor relations a sig-
nificant indication of single-employer status, no single aspect is
controlling, and all four factors need not be present to find sin-
gle-employer status. Instead, the ultimate determination turns
on the totality of the evidence in a given case.” (Footnotes and
quotation marks omitted.) Bolivar-Tees, Inc., 349 NLRB 720
(2007), enfd. 551 F.3d 722 (8th Cir. 2008).
There is ample evidence of the interrelation of operations be-
tween Carnival Carting and Romar Sanitation. Both companies
operated out of the same office at 51–29 64th Street, Woodside,
NY. Carnival Carting garaged its garbage trucks at 58–70 56th
Street, Woodside, NY, a location owned by Romar Sanitation.
Romar Sanitation engaged in no business operations aside from
serving as the owner of the building where Carnival Carting
kept its trucks. Carnival Carting was the only source of income
for Romar Sanitation. The rent paid by Carnival Carting was
used by Romar Sanitation to pay for the utilities in the building
and to pay wages to Frank Mendez. Romar Sanitation owned a
Jeep Cherokee vehicle which was used to provide business and
personal transportation to Roger Carnivale. Carnival Carting
did not own any vehicle aside from the garbage trucks and there
is no evidence that Carnival Carting or Roger Carnivale paid
Romar Sanitation for the use of the Jeep Cherokee. The free
use of Romar Sanitation’s Jeep Cherokee is an indicium of the
lack of an arm’s-length relationship between the two compa-
nies.
The record of the real estate transactions for the building at
58–70 56th Street supports a finding of lack of arms-length
transactions between Carnival Carting and Romar Sanitation.
Carnival Carting bought the 56th Street building on December
17, 1976 for $75,000, and on the same day transferred it to
Roger Carnivale and Richard Carnivale d/b/a R/R Associates
for no consideration except $10. In 1984 R/R Associates and
Richard Carnivale transferred the building to Romar Sanitation
subject to the assumption of the mortgage amount of $25,769.
Romar Sanitation sold the building in 2007 for $730,000.
Thus, Carnival Carting transferred a building worth $75,000 to
Roger and Richard Carnivale for $10.00. Richard Carnivale
gave up his interest in the building to Romar Sanitation in re-
turn for the assumption of the mortgage of 1/3 the original pur-
chase price less than 10 years later. In 2007 the building was
worth $730,000. By any measure, Romar Sanitation received a
bargain price when it took title to the building. Further, there
was no lease or other writing to compel the payment of rent by
Carnival Carting to Romar Sanitation. Indeed, Carnival Cart-
ing paid rent to Romar Sanitation sporadically, running as
much as 5 years in arrears on the rent payments, but Romar
Sanitation never took any legal action to compel the payment of
the amounts due. The absence of any effort by Romar Sanita-
tion to compel the payment of rent by Carnival Carting is evi-
dence of the lack of an arm’s-length relationship between the
two entities.
The fact that Romar Sanitation was not actively engaged in
refuse removal and that its business was to serve as owner of
CARNIVAL CARTING, INC. 301
the garage for Carnival Carting’s trucks does not negate a find-
ing of single employer status. The Board has held that, “Not-
withstanding the different business purposes between real estate
companies and other types of businesses, a single employer
relationship can be found particularly where there is evidence
of a lack of an arm’s-length relationship between the entities.”
Three Sisters Sportswear Co., 312 NLRB 853, 863 (1993),
enfd. 55 F.3d 684 (D.C. Cir. 1995).
The record shows that the criteria of common management
and of common ownership or financial control have been met
in the instant case. At the time of the unfair labor practice in
December 1996 Roger Carnivale was an officer, an owner and
the CEO of Carnival Carting. Roger Carnivale billed custom-
ers for garbage removal, he wrote the checks to pay bills on
behalf of Carnival Carting and he handled the banking and real
estate transactions. Similarly, Roger Carnivale was the presi-
dent of Romar Sanitation, he was an owner of the company and
he wrote checks on behalf of Romar Sanitation. He paid the
bills for Romar Sanitation and entered into real estate transac-
tions on behalf of Romar. There is no evidence that any other
individual directed the affairs of Romar Sanitation.
Finally, I find that the criterion of centralized control of labor
relations has been satisfied. The Board has determined that
Roger Carnivale was Frank Mendez’ boss when he was em-
ployed by Carnival Carting from 1984 to 1996. Roger Carni-
vale asserted that he did the hiring and firing at Carnival Cart-
ing and the Board found that Carnival Carting discharged
Mendez. Roger Carnivale’s deposition states that Mendez was
employed by Romar Sanitation as a janitor. The evidence
shows that Roger Carnivale was the only boss at Romar Sanita-
tion. Roger Carnivale signed checks drawn on Romar Sanita-
tion’s account to pay Mendez’ wages. Romar Sanitation issued
a 1099 tax form to Mendez showing that he had been paid
wages in 1996 by “Romar Sanitation Inc d/b/a Carnival Carting
Inc.” Clearly, Roger Carnivale controlled the labor relations at
both entities. Even though Frank Mendez’ purported employ-
ment by Romar may have been fiction engaged in by Roger
Carnivale, that alone would not change the single employer
conclusion. The finding of single employer status is not under-
cut by the lack of specific evidence indicating centralized con-
trol of labor relations where one of the entities had no employ-
ees or no employees other than the owner of the company.
Three Sisters Sportswear Co., 312 NLRB at 863; Bolivar-Tees,
Inc., 349 NLRB at 722.
Because I have found Carnival Carting and Romar Sanitation
to be a single employer, both of these entities are jointly and
severally liable for remedying the violations found by the
Board. “[W]hen an order is issued against an insolvent em-
ployer, derivative liability may be imposed on a nominally
separate business entity which is nonetheless shown to be so
closely related to the guilty employer that a singe-employer
relationship can be established.” Emsing’s Supermarket, 282
NLRB 302 (1987), enfd. 872 F.2d 1279 (7th Cir. 1989).
CONCLUSIONS OF LAW
Carnival Carting, Inc., and Romar Sanitation, Inc., constitute
a single employer within the meaning of section 2(6) and (7) of
the Act, and they are jointly and severally liable to remedy the
unfair labor practices found by the Board.
On these conclusions of law and on the entire record, I issue
the following recommended10
ORDER
Carnival Carting, Inc., and Romar Sanitation, Inc., Wood-
side, New York, a single employer, its officers, agents, succes-
sors, and assigns, shall pay Frank Mendez the amount of
$105,569.98, plus interest, and shall pay to the Union the sums
of $15,795 and $6,480, plus interest, to reimburse its Pension
Fund and Severance Plan.

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.