Alexander Painting, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 2005

344 N.L.R.B. 1346 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 157
1346
Alexander Painting, Inc. and Silver Palette, Inc. and
International Union of Painters & Allied Trades,
District Council 21. Cases 4–CA–32867, 4–CA–
32868, 4–CA–32869, and 4–CA–32870
August 9, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 29, 2004, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondents and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified and set forth in full
below.2
The judge found no merit to the allegation that the Re-
spondents violated Section 8(a)(5) by failing to transmit
dues to the Union from September 3, 2003, to February
23, 2004. The judge found that there was neither an ad-
mission by the Respondents, nor any evidence, that sup-
ports a finding that the Respondents failed to transmit
dues during the period alleged. Contrary to the judge, we
find that the record supports a finding of a violation in
this regard.
The record shows that Respondent Alexander Painting
filed a Statement of Financial Affairs in its Chapter 7
bankruptcy proceeding. Included in this filing is a docu-
ment, titled “Schedule E—Creditors Holding Unsecured
Priority Claims,” that lists the Union as a creditor for

1 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 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.
No exceptions were filed to the judge’s finding that the Respondents
violated Sec. 8(a)(5) of the Act by failing to furnish requested informa-
tion to the Union.
In adopting the judge’s finding that Respondent Silver Palette is the
alter ego of Respondent Alexander Painting, Chairman Battista notes
that the record demonstrates that the Respondents’ motive was to use
Silver Palette as a means to avoid Alexander Painting’s statutory and
contractual obligations. In light of this evidence, the Chairman finds it
unnecessary to address whether a finding of alter ego status would be
warranted even in the absence of this evidence of unlawful motive.
2 We shall modify the judge’s recommended Order to include the
additional violation found, as discussed below, and to include the ap-
propriate remedial language for the violations found. We shall also
substitute a new notice in accordance with our decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004), and to conform to the language set forth in the Order.
dues owed for January 2004, and further states that dues
are owed under a note dated December 16, 2003. As the
General Counsel contends in his exceptions, this docu-
ment demonstrates that the Respondents indeed owed
dues to the Union for at least some portion of the period
from September 3, 2003, through February 23, 2004. In
view of this evidence, we find that the record supports a
finding that the Respondents failed to transmit dues to
the Union during the relevant period, and in so doing
violated Section 8(a)(5) of the Act as alleged.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents Alexan-
der Painting, Inc. and its alter ego Silver Palette, Inc.,
Bethlehem, Pennsylvania, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Cease and desist from
(a) Failing to make required contributions to the wel-
fare, pension, annuity, vacation, scholarship, and educa-
tion funds of International Union of Painters & Allied
Trades, District Council 21.
(b) Withdrawing recognition from the Union as the
collective-bargaining representative of the employees in
the following bargaining unit: All painters, decorators,
wall coverers, drywall finishers, glaziers and apprentices
employed by Alexander Painting, Inc. or Silver Palette,
Inc.
(c) Bypassing the Union as the exclusive representa-
tive of the employees in the bargaining unit and dealing
directly with those employees over their terms and condi-
tions of employment.
(d) Failing and refusing to furnish the Union with re-
quested information that is relevant and necessary for the
Union to function as the collective-bargaining represen-
tative of the unit employees or process their grievances.

3 We shall leave to the compliance stage of these proceedings a de-
termination of the amount of dues that the Respondent actually failed to
transmit to the Union during this period. In light of our finding that the
evidence establishes the Respondents’ failure to transmit dues to the
Union during the relevant period, we find it unnecessary to pass on our
colleague’s contention that the Respondents’ answer to the complaint
constitutes an admission of its failure to transmit dues during this pe-
riod.
Chairman Battista concludes that the Respondents violated the Act
by failing to transmit dues to the Union during all of the relevant pe-
riod. The Chairman finds that the Respondents’ answer to the com-
plaint admits the relevant facts. Specifically, the Chairman finds that
the Respondents’ answer to the “dues” allegation of the complaint
admitted that they “failed to make certain payments” and only “denied
that this amounts to an unfair labor practice.” Thus, the answer estab-
lishes the factual basis for the violation, and the Respondents failed to
offer a valid legal defense.
ALEXANDER PAINTING, INC. 1347
(e) Failing to deduct and transmit employee dues to the
Union when required by the collective-bargaining
agreement which, by its express terms, was in effect dur-
ing that period.
(f) Failing and refusing to abide by provisions of their
collective-bargaining agreement with the Union by fail-
ing to use the Union’s exclusive hiring hall when hiring
bargaining unit employees.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the unit employees by transmitting,
with interest, the contributions owed to the following
Union funds pursuant to the terms of the 2001 agreement
with the Union from on and after September 3, 2001: (1)
District Council 21’s Welfare Fund; (2) the Interna-
tional’s Union and Industry National Pension Fund; (3)
District Council 21’s Annuity Fund; (4) District Council
21’s Vacation Fund; (5) District Council 21’s Appren-
ticeship Training and Journeyperson Education Fund,
herein called the Training Fund; (6) the National Appren-
ticeship Fund; and (7) District Council 21’s Scholarship
Fund, and make whole the unit employees by reimburs-
ing them for any medical, dental, or other expenses ensu-
ing from their unlawful failure to make such required
contributions, with interest, from on and after September
3, 2001.
(b) Reimburse the unit employees for any expenses,
plus interest, they have incurred as the result of the Re-
spondents’ failure to make the fringe benefit payments
described above.
(c) On request, recognize and bargain with the Union
as the exclusive representative of employees in the above
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment.
(d) Continue in force and effect the 2001 agreement,
effective from May 1, 2001, through April 30, 2004, un-
til the parties have reached agreement or impasse on all
mandatory subjects of bargaining.
(e) On request, furnish to the Union information that is
relevant and necessary for the Union to function as the
collective-bargaining representative of the unit employ-
ees or process their grievances.
(f) Deduct and transmit employee dues owed to the
Union for the period February 23 through April 30, 2004,
and transmit dues owed to the Union for the period Sep-
tember 3, 2003, through February 23, 2004, with interest
as set forth in the remedy section of the judge’s decision.
(g) Comply with the terms and conditions of the col-
lective-bargaining agreement to which the Respondents
are bound by not avoiding the use of the Union’s exclu-
sive hiring hall when hiring bargaining unit employees.
(h) Offer full and immediate employment to those
work applicants who would have been referred to the
Respondents for employment through the Union’s hiring
hall were it not for their unlawful conduct, make those
applicants whole, with interest, for any losses they may
have suffered as a result of the Respondents’ failure to
apply the hiring hall provisions of the collective-
bargaining agreement, and make the necessary payments
on their behalf to the appropriate fringe benefit trust
funds.
(i) Within 14 days after service by the Region, post at
their Bethlehem, Pennsylvania facility copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents 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 Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees
employed by the Respondents at any time since Septem-
ber 3, 2003, the date of the first unfair labor practice
found herein.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1348
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to make required contributions to the
welfare, pension, annuity, vacation, scholarship and edu-
cation funds of the Union, International Union of Paint-
ers & Allied Trades, District Council 21.
WE WILL NOT withdraw recognition from the Union as
the collective-bargaining representative of our employees
in the following bargaining unit: All painters, decora-
tors, wall coverers, drywall finishers, glaziers and ap-
prentices employed by Alexander Painting, Inc. or Silver
Palette, Inc.
WE WILL NOT bypass the Union as the exclusive repre-
sentative of our employees in the bargaining unit and
deal directly with our employees over their terms and
conditions of employment.
WE WILL NOT fail and refuse to furnish the Union with
requested information that is relevant and necessary for
the Union to function as the collective-bargaining repre-
sentative of our unit employees or to process their griev-
ances.
WE WILL NOT fail to deduct and transmit our employ-
ees’ dues to the Union when required by the collective-
bargaining agreement which, by its express terms, was in
effect during that period.
WE WILL NOT fail and refuse to abide by provisions of
our collective-bargaining agreement with the Union by
failing to use the Union’s exclusive hiring hall when hir-
ing bargaining unit employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make whole our employees by transmitting,
with interest, the contributions owed to the following
union funds pursuant to the terms of the 2001 agreement
with the Union from on and after September 3, 2001: (1)
District Council 21’s Welfare Fund; (2) the Interna-
tional’s Union and Industry National Pension Fund; (3)
District Council 21’s Annuity Fund; (4) District Council
21’s Vacation Fund; (5) District Council 21’s Appren-
ticeship Training and Journeyperson Education Fund,
herein called the Training Fund; (6) the National Appren-
ticeship Fund; and (7) District Council 21’s Scholarship
Fund, and WE WILL make whole our unit employees by
reimbursing them for any medical, dental, or other ex-
penses ensuing from our unlawful failure to make such
required contributions, with interest, from on and after
September 3, 2001.
WE WILL reimburse our employees for any expenses,
plus interest, they have incurred as the result of our fail-
ure to make the fringe benefit payments described above.
WE WILL, on request, recognize and bargain with In-
ternational Union of Painters & Allied Trades, District
Council 21 as the exclusive representative of our em-
ployees in the above bargaining unit with respect to rates
of pay, wages, hours, and other terms and conditions of
employment.
WE WILL continue in force and effect the 2001 agree-
ment, effective from May 1, 2001, through April 30,
2004, until the parties have reached agreement or im-
passe on all mandatory subjects of bargaining.
WE WILL on request, furnish to the Union information
that is relevant and necessary for the Union to function as
the collective-bargaining representative of the unit em-
ployees or to process their grievances.
WE WILL deduct and transmit employee dues owed to
the Union for the period February 23 through April 30,
2004, and transmit dues owed to the Union for the period
September 3, 2003, through February 23, 2004, with in-
terest.
WE WILL comply with the terms and conditions of any
collective-bargaining agreement to which we are bound
by not avoiding the use of the Union’s exclusive hiring
hall when hiring bargaining unit employees.
WE WILL offer full and immediate employment to
those work applicants who would have been referred to
us for employment through the Union’s hiring hall were
it not for our unlawful conduct, WE WILL make those ap-
plicants whole, with interest, for any losses they may
have suffered as a result of our failure to apply the hiring
hall provisions of the collective-bargaining agreement,
and WE WILL make the necessary payments on their be-
half to the appropriate fringe benefit trust funds.
ALEXANDER PAINTING, INC. AND SILVER
PALETTE PAINTING, INC.
Barbara C. Joseph, Esq., for the General Counsel.
Jeffrey S. Stewart, Esq., of Allentown, Pennsylvania, for the
Respondents.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in Philadelphia, Pennsylvania, on September 14, 2004. On
ALEXANDER PAINTING, INC. 1349
March 3, 2004,1 International Union of Painters & Allied
Trades, District Council 21 (the Union), filed with the National
Labor Relations Board (the Board) the charges in Cases 4–CA–
32867 through 4–CA–32870 alleging that Alexander Painting,
Inc. and Silver Palette, Inc. (the Respondents), had committed
certain unfair labor practices under the Act. After administra-
tive investigation of those charges, the General Counsel of the
Board issued a complaint alleging that the Union had been
designated or selected as the collective-bargaining representa-
tive of certain of the employees of Alexander Painting, that
Alexander Painting and the Union had entered a series of col-
lective-bargaining agreements, that the Respondents are alter
egos, and that the Respondent Silver Palette was a “disguised
continuation” of the Respondent Alexander Painting which had
ceased recognizing and bargaining with the Union. The com-
plaint alleges that, in violation of Section 8(a)(3) of the Act, the
Respondents had conditioned the continued employment of
former Alexander Painting employees with Silver Palette upon
those employees’ resigning from the Union. The complaint
further alleges that, in violation of Section 8(a)(5) of the Act,
the Respondents have refused to bargain with the Union as the
statutory representative of the employees by: (1) withdrawing
recognition from the Union; (2) failing to deduct and transmit
to the Union employees’ periodic dues, as was required by a
contract between the Union and Alexander Painting, which
contract was effective by its terms from May 1, 2001, through
April 30, 2004 (the 2001 contract); (3) failing to contribute to
various union funds as required by the 2001 contract; (4) refus-
ing to hire employees by seniority as required by the 2001 con-
tract; (5) failing to furnish to the Union requested information
about the relationship between Alexander Painting and Silver
Palette; and (6) directly negotiating and dealing with employees
concerning the terms and conditions of their employment with
Silver Palette. The Respondents duly filed an answer to the
complaint admitting that this matter is properly before the
Board but denying the commission of any unfair labor prac-
tices.
Upon the testimony and exhibits entered at trial,2 and after
consideration of the briefs that have been filed,3 I enter the
following findings of fact and conclusions of law.4
I. JURISDICTION AND LABOR ORGANIZATION’S STATUS
The Respondents have stipulated or admitted that Alexander
Painting and Silver Palette are corporations that, from a facility
located at 937 Stefko Boulevard in Bethlehem, Pennsylvania,
have been engaged in the business of performing residential
and commercial painting services. During the year preceding
the issuance of the complaint, Alexander Painting provided
services valued in excess of $50,000 to other enterprises within

1 All dates that are mentioned are in 2004, unless otherwise indi-
cated.
2 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. All brack-
eted entries have been made by me.
3 The General Counsel’s brief is an extraordinarily adept exposition
of the relevant facts and applicable law.
4 The General Counsel’s unopposed motion to correct the record is
granted.
Pennsylvania, including Alvin Butz, Inc., which other enter-
prises are directly engaged in interstate commerce. Silver Pal-
ette annually provides services in excess of $50,000 to other
enterprises in Pennsylvania, which other enterprises are directly
engaged in commerce. Therefore I find and conclude that at all
material times the Respondents have been employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. As the Respondents further admit, at all material times
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
At trial, the parties entered into several stipulations, some of
which were reduced to writing. The following statements of
fact are based on those stipulations and upon testimony that is
not disputed.
Alexander Pamphilis and Lisa Pamphilis are husband and
wife. Before the events of this case, Alexander Pamphilis was
the sole owner of all shares of Alexander Painting, and he held
all corporate offices, and he was the sole member of its board
of directors.5 Lisa Pamphilis did not participate in the man-
agement or labor of Alexander Painting. In 1997, Pamphilis
met with representatives of the Union and signed a collective-
bargaining agreement.
At time of trial, Kenneth Kraft was a business agent for the
Union. Kraft testified for the General Counsel that he began
working for Alexander Painting as a painter in 1991, and at
some point thereafter he became that company’s general man-
ager. Kraft quit Alexander Painting in 1999 to begin working
for the Union. Kraft testified that from 1997 until shortly be-
fore he quit working for Alexander Painting, Alexander Paint-
ing stayed current with its obligations to the Union’s various
benefit funds such as a health and welfare fund, a joint appren-
ticeship and training fund, and an annuity fund. In 1999, how-
ever, Alexander Painting began to fall behind in making its
scheduled payments. In 2000, to catch up, Pamphilis signed a
promissory note for the Union.
It was stipulated that Pamphilis incorporated Silver Palette
on January 24, 2001; Pamphilis owned all shares of Silver Pal-
ette and he became its president and secretary-treasurer at that
time. Silver Palette, however, did no business through Novem-
ber 16, 2001. On that date, without the exchange of any money
or other financial consideration having been given, Pamphilis
transferred all shares of stock in Silver Palette to Lisa Pam-
philis. Pamphilis and Lisa Pamphilis became the only members
of Silver Palette’s board of directors. Silver Palette continued
to do no business.6
On June 4, 2002, on behalf of Alexander Painting, Pamphilis
signed the 2001 contract. By its terms, the 2001 contract was
effective from May 1, 2001 (retroactively) through April 30,
2004. The 2001 contract: (1) recited that Pamphilis had re-
ceived and reviewed authorization cards that had been signed
by a majority of Alexander Painting’s employees and that, on
the basis of that review, Pamphilis was satisfied that, under
Section 9(a) of the Act, the Union represented a majority of

5 All references to Pamphilis are to Alexander Pamphilis, unless oth-
erwise indicated.
6 As Lisa Pamphilis testified: “I guess when the stocks were trans-
ferred to—it was just a—empty company.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1350
Alexander Painting’s employees in a unit of all “painters, deco-
rators, wall coverers, drywall finishers, glaziers and appren-
tices”; (2) contained a “Preservation of Work” clause that re-
quired the terms of the contract to be applied to any business
that the employer may operate, whether or not the employer
operated the business “through family members or otherwise”
if the work of that business came within the jurisdiction of the
Union; (3) required checkoff and payment of contractually
required union dues; (4) required Alexander Painting exclu-
sively to hire employees who have been referred to it by the
Union from its out-of-work list; and (5) required regular contri-
butions to the following funds: (a) District Council 21’s Wel-
fare Fund; (b) the International’s Union and Industry National
Pension Fund; (c) District Council 21’s Annuity Fund; (d) Dis-
trict Council 21’s Vacation Fund; (e) District Council 21’s
Apprenticeship Training and Journeyperson Education Fund;
(f) the National Apprenticeship Fund; and (g) District Council
21’s Scholarship Fund.
Kraft testified (without contradiction) that at some point in
2002, Alexander Painting paid off the 2000 note that was held
by the Union, and it did catch up with what it had owed to the
Union’s funds, but then it began to fall behind again. On De-
cember 16, 2003, Pamphilis signed a second promissory note
for the Union and the various funds for the amount of $153,000
to be paid in installments for 24 months. Alexander Painting
made the November 2003 payments to the funds and it made
the December 2003 payment on the note, but then it paid noth-
ing thereafter on the note or to the funds.
By letter dated January 22, Pamphilis, as president of Alex-
ander Painting, sent to the Union a “notice to terminate” the
2001 contract “as of April 30, 2004” (again, the express termi-
nation date of that contract). Kraft testified that, according to
contractually required reports by Alexander Painting, Alexan-
der Painting employed “about 15” employees at the time of the
January 22 letter.
Also beginning about January 22, Alexander Painting began
laying off all its employees; it laid off its last employee on Feb-
ruary 13. On February 19, Alexander Painting filed for a Chap-
ter 7 Bankruptcy listing, inter alia, the 2003 promissory note
that was held by the Union.
On February 23, Silver Palette began operations as a painting
contractor at the same 937 Stefko Boulevard office that had
been used by Alexander Painting up until February 19 when it
ceased operations. That building was owned prior to February
19, and continues to be owned, by Alexander Pamphilis’ father.
It was stipulated that Silver Palette completed painting contract
work that was begun by Alexander Painting, including jobs at
the Silver Creek Construction site and the Rodale Press. It was
further stipulated that Silver Palette purchased Alexander Paint-
ing’s office equipment, painting equipment and vehicles and
has been using Alexander Painting’s customer information and
contacts in its business operations.
It was further stipulated that, at all material times, Alexander
Pamphilis has been president and secretary-treasurer of Alex-
ander Painting and manager and job-estimator of Silver Palette,
Lisa has been president and secretary-treasurer of Silver Pal-
ette, and Michael Etnyre has been (or was) the general manager
of Alexander Painting. In these capacities, Alexander, Lisa,
and Etnyre have been supervisors within Section 2(11) with the
authority to hire employees.
Kraft testified that beginning about February 20, he received
membership resignations from painters Scott Glose, Greg
Tocci, Frank Allesch, Scott Boehner, and Rodney Navarre, all
of whom had worked for Alexander Painting at the Silver
Creek construction site. On February 23, Glose, Tocci,
Boehner, and Navarre began working for Silver Palette, con-
tinuing the work that they had previously been doing when they
were in the employ of Alexander Painting. On February 27,
Silver Palette hired former Alexander Painting employee Jay
Stetch. Kraft testified that Stetch called him to say that his
resignation from the Union was in the mail, but Kraft further
testified that he never received it. On June 28, Silver Palette
hired Allesch. The Respondents stipulated that Silver Palette
did not request these employees pursuant to the hiring hall pro-
visions of the 2001 contract and that Silver Palette has not re-
quested the referrals of any other employees from the Union.
(None of the employees named in this paragraph testified.)
By letter dated February 26, on behalf of the Union, Kraft in-
formed Pamphilis that the Union had noticed that Alexander
Painting was operating Silver Palette as a nonunion contracting
operation in apparent violation of the 2001 contract. Kraft
further recited that, in order to determine the appropriateness of
a grievance the Union demanded certain information. Attached
was a numbered 79-paragraph request for information about
Alexander Painting and Silver Palette. (Several of the num-
bered paragraphs had subparagraphs.) By letter dated March 1,
Pamphilis (on Silver Palette stationery) responded that Alexan-
der Painting had filed for bankruptcy and was out of business,
that he was employed by Silver Palette as a manager but was
not an officer or shareholder, and that the Union was not “enti-
tled” to the information that it had requested.
Pamphilis was asked on direct examination why he sent the
January 22 letter, attempting to terminate the relationship with
the Union; Pamphilis answered:
[W]e were having great financial difficulties and I had been
talking to a lot of my advisors over those past couple of
months. Like—well January and—my accountants, my at-
torneys. And they all said, you know, you’re in trouble. And
the only hope they—they said you got to get out of the Union.
They said you’re not—you’re not making any money, you’re
never going to get out of this hole with the kind of profits, you
know, with your cost structure, and we were spending so
much for labor and benefits and our profit margins actually
were showing losses almost every year since we were in the
Union. And the only way—the only hope I had of paying
those debts down was to—to get out of the Union and start
making some money.
Pamphilis then gave some of the specifics of Alexander Paint-
ing’s deteriorated financial situation which the General Counsel
does not contest. On June 15, the bankruptcy proceeding for
Alexander Painting was terminated by discharge of the trustee.
(On direct examination, Pamphilis was led to testify that Alex-
ander Painting had been discharged in bankruptcy, but, as dis-
cussed below, corporations cannot be discharged in a Chapter 7
proceeding, although specific debts may be.) The Respondents
ALEXANDER PAINTING, INC. 1351
offered no evidence that Alexander Painting has been dissolved
under Pennsylvania law.
Pamphilis denied that he originally formed Silver Palette in
order to try to avoid dealing with the Union or to allow Alex-
ander Painting to avoid its obligations under the 2001 contract.
Pamphilis testified that he formed Silver Palette in early 2001
in the hopes that a second company could take advantage of the
Union’s market recovery program which allows some employ-
ers that have a contractual relationship with the Union to pay
reduced wages and benefits on certain types of projects (such as
residential and institutional work). Later in 2001, Pamphilis
abandoned that idea but he did not dissolve Silver Palette.
Pamphilis testified that the idea of operating Silver Palette as a
union contractor that could operate within the Union’s market
recovery program
. . . just didn’t work out to be practical. And if I decided not
to go with the Union with that company and be non-union,
then it would be a conflict with my contract. So pretty much I
just put it in my wife’s name so there would be no conflict of
interests and just kind of shelved it—didn’t do anything with
it.
When asked specifically why he transferred all of his stock in
Silver Palette to his wife, Pamphilis answered that:
Just so there would be no appearance of impropriety. Be-
cause I know there’s a problem with having two companies or
double-breas [sic]—you know, what we’re going through
right now. I knew that that was a potential just having that.
So I thought get it out of my name, just—I just thought it
would be wise to do that.
Pamphilis further testified that Silver Palette began opera-
tions on February 23, with himself as the general manager and
job-estimator. Pamphilis and Lisa became the only members of
Silver Palette’ board of directors. Pamphilis testified: “My
wife owns the company. I mean I—I take—I run it for her. I
take care of it. I manage it.” Pamphilis does all the hiring and
firing and supervision of the work of the employees of Silver
Palette. Michael Etnyre did some of those things for Alexander
Painting before it ceased operations. Etnyre has never been
employed by Silver Palette. Customers of Silver Palette con-
tact Pamphilis, not Lisa, if there is a problem on a job. Silver
Palette has the same law firm, accountant, and insurance
agency that Alexander Painting utilized.
Pamphilis testified that the “focus” of Silver Palette is differ-
ent from Alexander Painting’s because the latter performed
contracts throughout the Lehigh Valley with commercial and
construction customers. Pamphilis did not testify what geo-
graphic areas, if any, that Silver Palette confines itself to. Sil-
ver Palette uses a different bank and a different payroll-
processing company from what Alexander Painting used, but
Silver Palette uses the same suppliers. Pamphilis testified that
Alexander Painting had 18 or 20 employees when it ceased
doing business. Silver Palette started with five employees, and,
at time of trial, it had six employees. Pamphilis testified that
Silver Palette finished two jobs at Lehigh University that Alex-
ander Painting had started; after payment by the customer, Sil-
ver Palette paid Alexander Painting for its costs on the jobs.
On cross-examination, Pamphilis acknowledged that Silver
Palette had about six “steady customers,” all of whom had pre-
viously been customers of Alexander Painting. Silver Palette
paid Alexander Painting nothing for the good will or files of
Silver Palette’s customers. Pamphilis and Lisa owned several
vehicles that were first used by Alexander Painting and then by
Silver Palette. Although the Pamphilises owned the vehicles
personally, the bankruptcy records show that their sales were
from Alexander Painting to Silver Palette. Pamphilis did not
know why that was done in that manner. Silver Palette has a
telephone number different from what Alexander Painting’s
had been, but if someone dials Alexander Painting’s old num-
ber, he or she gets a recording that says to call Silver Palette’s
number. Silver Palette uses the same fax number that Alexan-
der Painting did. Employees of Silver Palette are issued cell
phones; the numbers are the same as those in use when the
telephones were issued to Alexander Painting’s employees.
When further asked on cross-examination how many hours
Lisa works each week for Silver Palette, Pamphilis replied: “A
couple of hours, a few hours, maybe.” Pamphilis was also
asked about the activation of Silver Palette and he testified:
Q. That’s one reason you chose to make it a
non-union company, was that so you didn’t have to live
under the constrictions or whatever of a collective bargain-
ing agreement with all these requirements and funds and
so forth, isn’t that correct?
A. I guess you could say that.
Pamphilis also admitted that he negotiated individually with
each of the six employees whom Silver Palette has hired, prom-
ising them the same wage and benefits that are (in Pamphilis’
estimation) equivalent to those they had received when working
for Alexander Painting.
When Alexander Painting operated at the Stefko Boulevard
address, it paid rent to the building’s owner, Pamphilis’ father,
but there was no lease. Silver Palette, however, has a lease
with Pamphilis’ father with the lease payments being the same
as what the rent had been for Alexander Painting. When asked
why Silver Palette had a lease with his father, Pamphilis replied
that Alexander Painting’s bankruptcy attorney advised the lease
for Silver Palette, but Pamphilis testified that he did not know
why the attorney did so.
Scott Siska was hired by Alexander Painting in 1991, and
worked as a journeyman painter until he was laid off in Febru-
ary with the other employees. When called by the General
Counsel, Siska testified that in early 2002, when Etnyre was
Alexander Painting’s general manager, Etnyre told him that
Silver Palette was being activated as a nonunion company be-
cause a union company was too expensive to operate. Etnyre
further asked Siska if he would be interested in “managing or
running” Silver Palette. Siska told Etnyre that he was not inter-
ested because he was active in the Union and wished to con-
tinue to be active. Siska further testified that Etnyre told him to
keep their conversation “quiet.”
Siska further testified that shortly before his February layoff,
when rumors were circulating among the employees that Alex-
ander Painting was about to close and Silver Palette was about
to be activated, he encouraged other employees to stay in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1352
Union and not go to work for a nonunion company like Silver
Palette. Shortly after he was laid off, Siska directly contacted
employee Scott Glose on the issue, but Glose told him that he
did not know what to do. Thereafter, Siska received a tele-
phone call from Etnyre; according to Siska, Etnyre “asked me
to stop being persistent in trying to coerce Union members to
stay with the Union, especially Mr. Glose.” (Again, Glose did
not testify.)
Gary Blose was hired by Alexander Painting in 1998, and
worked as a journeyman painter until he was also laid off with
other employees in February. When called by the General
Counsel, Blose testified that, before his layoff, Etnyre told him
that Alexander Painting was going out of business, that Silver
Palette was being activated, that Blose could go to work for
Silver Palette, and that “everything would be the same as far as
the money, the same hourly rate, and the only thing that would
be different would be I didn’t have to worry about union dues.”
Blose further testified that he replied that he was “not inter-
ested.”7
Blose further testified that a week after he was laid off by
Alexander Painting at the Silver Creek worksite, he returned to
the site to retrieve some of his personal property. That evening,
Pamphilis telephoned him and accused him of coming to the
site to solicit the customer to do business with a company that
Blose was forming. After Blose assured Pamphilis that he had
had no such intention, Pamphilis said that “there would be an
opening available if I wanted it, to work for the nonunion com-
pany.” Blose further testified that he responded that he was not
interested. On cross-examination, Blose acknowledged that
Pamphilis did not “specifically” tell him that he had to resign
his membership in the Union in order to work for Silver Palette.
If Lisa Pamphilis has previously had any experience in the
painting industry, the Respondents did not bring out the fact.
The General Counsel called her as an adverse witness. She
appeared to have little knowledge or interest in the operation of
Silver Palette,8 and without hesitation, she acknowledged that
her husband makes all corporate decisions for Silver Palette.
She further admitted that, while she signs some checks and
contracts for Silver Palette, she signs, without question, what-
ever her husband puts in front of her to sign. Her husband at-
tends all job meetings, drafts all bids, and makes all personnel
decisions for Silver Palette, just as he (and Etnyre) had done for
Alexander Painting.
CONCLUDING FINDINGS
The complaint alleges that the Respondents, Alexander
Painting and Silver Palette, are alter egos, that Silver Palette is
no more than a disguised continuance of Alexander Painting,
and that, in violation of Section 8(a)(5), the Respondents have
used Silver Palette’s corporate identity as a bogus shield to
evade contractual and statutory responsibilities that had been
undertaken by Alexander Painting. As quoted above, Pam-

7 The General Counsel asked Blose why he had not been interested
in working for Silver Palette, and Blose replied that it was because he
“wanted to stay in the Union.” General Counsel, however, did not ask
Blose if that is what he told Etnyre.
8 When asked what positions in Silver Palette that she held in addi-
tion to president, Lisa replied, “Secretary, treasurer, whatever.”
philis frankly admitted that he sought to terminate Alexander
Painting’s contract with the Union because Alexander Painting
was in debt and “the only hope I had of paying those debts
down was to get out of the Union and start making some
money.” As well, Pamphilis admitted on cross-examination
that he sought to operate as a nonunion company to avoid the
“constrictions” and the fund requirements of the 2001 contract.
Faced with these admissions, the Respondents have been re-
duced to the defense that, although Silver Palette has been used
to avoid Alexander Painting’s contractual and statutory obliga-
tions, there was no showing that Silver Palette had been created
for such purposes. As the Respondents articulate this defense
on brief: “In order to find that Silver Palette and Alexander
Painting were alter egos, Your Honor must find that they have
similarities in how and where they operate, but also must find
that there was an unlawful motive behind the formation of Sil-
ver Palette.” This is simply not the law.
The Board categorically rejected the Respondents’ “motive”
defense to the 8(a)(5) allegations in Fallon-Williams, Inc., 336
NLRB 602, 603 (2001), where it stated:
We agree with the judge that GBS and Mercury are al-
ter egos. In determining whether an alter ego relationship
exists, the Board considers whether two entities have sub-
stantially identical ownership, management and supervi-
sion, business purpose, operation, customers, and equip-
ment.4 Another relevant factor is whether one entity was
created in an attempt to enable another to avoid its obliga-
tions under the Act. However, the Board has consistently
held that such a motive is not necessary for finding alter
ego status.5
Here, as the judge found, the parties stipulated that the
two entities have substantially identical management,
business purpose, operations, equipment, customers, and
supervisors, and shared premises and facilities. In addi-
tion, Jack Hanrahan is the sole owner of GBS, and his wife
is the sole owner of Mercury. The Board has not hesitated
to find alter ego status even though entities had different
owners, when the owners were in a close familial relation-
ship.6
Our dissenting colleague would find that Mercury is
not the alter ego of GBS, solely because there is no show-
ing that Mercury was created in order to avoid GBS’ obli-
gations under the Act. As our colleague concedes, how-
ever, that position has been rejected by the Board and, ap-
parently, by most circuit courts of appeals that have con-
sidered the issue.7 And with good reason. It would be
anomalous to allow an employer to walk away from a col-
lective-bargaining agreement merely by changing its name
but not the substance of its operations, even if the change
in form is neither carried out for a nefarious purpose nor
accomplished through deception. As the First Circuit has
observed, “if a company merely changed its corporate
form for legitimate tax or corporate reasons, it is hard to
see why the new entity should be able to disregard an ex-
isting collective-bargaining agreement[.]” NLRB v. Hospi-
tal San Rafael, Inc., 42 F.3d at 51.
ALEXANDER PAINTING, INC. 1353
____________________
4 Crawford Door Sales Co., 226 NLRB 1144 (1976).
5 See, e.g., APF Carting, Inc., 336 NLRB 73 fn. 4 (2001);
Dupont Dow Elastomers L.L.C., 332 NLRB 1071 fn. 1 (2000).
6 See, e.g., Crawford Door Sales Co., 226 NLRB at 1144.
7 See, e.g., Dupont Dow Elastomers L.L.C., supra; NLRB v.
Hospital San Rafael, Inc., 42 F.3d 45, 51 (1st Cir. 1994), cert. de-
nied 516 U.S. 927 (1995); Goodman Piping Products v. NLRB,
741 F.2d 10, 12 (2d Cir. 1984); Stardyne, Inc. v. NLRB, 41 F.3d
141, 148 (3d Cir. 1994); NLRB v. Allcoast Transfer, Inc., 780
F.2d 576, 581 (6th Cir. 1986); NLRB v. Tricor Products, 636 F.2d
266, 270 (10th Cir. 1980); Fugazy Continental Corp. v. NLRB,
725 F.2d 1416, 1419 (D.C. Cir. 1984). But see, Operating Engi-
neers Local 150 v. Centor Contractors, Inc., 831 F.2d 1309,
1312–1313 (7th Cir. 1987); Iowa Express Distribution, Inc. v.
NLRB, 739 F.2d 1305, 1311 (8th Cir. 1984); Plumbers Local 343
v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1470 (9th Cir. 1994).
That is, although a few cases have noted that the motive for the
creation of a companion business entity is a “relevant factor,”
the question of motive is not controlling.
In this case, Pamphilis may have had (and probably did
have) the lawful motive of operating under the Union’s market
recovery program when he created Silver Palette in January
2001. Pamphilis, however, soon abandoned that objective. In
November 2001, without any consideration, Pamphilis trans-
ferred the stock in Silver Palette solely to his wife’s name. An
interfamily transfer of equity interests is a compelling factor in
finding substantial business identities and alter ego status. As
stated in Advance Electric, Inc., 268 NLRB 1001, 1004 (1984):
At all times all stock in both corporations was owned by
members of the Shoots family and all corporate officers and
directors also were members of that family. In such circum-
stances the Board and the courts find ownership and control
of those companies to be “substantially identical” for pur-
poses of determining alter ego status. Crawford Door Sales
Co., 226 NLRB 1144 (1976). See also All Kind Quilting, 266
NLRB 1187 1983); Campbell-Harris Electric, Inc., 263
NLRB 1143 (1983), enfd. 719 F.2d 292 (8th Cir. 1983). Ac-
cordingly, we find that Advance and Beacon share “substan-
tially identical” ownership for purposes of determining alter
ego status.
If there had been a legitimate business purpose in that Pam-
philis’ November 2001 stock transfer, Lisa had no idea what it
was. In his testimony, Pamphilis himself floundered for an
explanation and finally came up with “I just thought it would be
wise to do that.” At any rate, the transfer was less than an
arm’s length transaction9 and suggests the nefarious motive was
adopted by Pamphilis at some point after May 1, 2001, when
the 2001 contract became effective.10

9 As stated in J. Vallery Electric, Inc. v. NLRB, 337 446, 451 (5th
Cir. 2003) (as cited by the Respondents): “We also find that there is
substantial evidence of an unlawful motive in the creation of JVE.
VE’s transfer of personal and real property, as well as stock, to Vallery
or JVE without any consideration shows that there was not even a
pretense of an arm’s length relationship between JVE, VE, and the
principals of each during the formation of JVE.”
10 See also NLRB v. Dane County Dairy, 795 F.2d 1313, 1322 (7th
Cir. 1986) (“Familial control constitutes common ownership and con-
trol.”); Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10, 11–12
Other factors requiring a finding of alter ego status are also
present. Lisa Pamphilis has been nothing more than a figure-
head for Silver Palette. Alexander Pamphilis managed Alexan-
der Painting when it was in operation,11 and he admitted that “I
run it [Silver Palette] for her [Lisa]. I take care of it. I manage
it.” As well, the business purpose of the two corporations is the
same, painting. Pamphilis’ statement that Silver Palette has a
different “focus” because it does not have commercial contracts
is meaningless because it is unsupported by business records
and because Pamphilis did not suggest that Silver Palette would
not accept commercial contracts if it could get them.12 More-
over, the customers of the two corporations are essentially the
same, as shown by the fact that Silver Palette is completing
Alexander Painting’s contracts. And six of Silver Palette’s six
employees once worked for Alexander Painting and Silver
Palette is using the equipment (such as vehicles and scaffold-
ing) that Alexander Painting once used. Finally, the daily busi-
ness operation is the same, being conducted from the same
building and using the same fax number and some of the same
telephone numbers. Therefore, upon the authority of Fallon-
Williams, Advance Electric, and a host of other authorities, I
find and conclude that these factors are more than sufficient
proof that Alexander Painting and Silver Palette are, and have
been at all material times, alter egos.
The Respondents began operating as Silver Palette on Febru-
ary 23. Between that date and April 30, the 2001 contract was
still in effect. During that period, the Respondents violated
Section 8(a)(5) by their admitted, stipulated or undisputed (a)
withdrawing of recognition from the Union, (b) directly dealing
with their employees about their terms and conditions of em-
ployment, (c) failing and refusing to contribute to the various
union funds, (d) failing and refusing to deduct and transmit to
the Union employees’ membership dues, and (e) failing and
refusing to hire employees upon referral by the Union. Also
before the 2001 contract expired, the Respondents began a
continuing unlawful refusal to furnish information, as discussed
below.
Additionally, the complaint alleges that the Respondents vio-
lated Section 8(a)(5) by their failures to make contributions to
the Union’s funds, and by their failures to deduct and transmit
dues even before the February 23–April 30 period. The com-
plaint alleges that those violations began on September 3, 2003,
the Section 10(b) limitations date. Pamphilis did not dispute
Kraft’s testimony that in 2003 Alexander Painting had again
fallen behind in its payments to the Union funds and that it

(2d Cir. 1984) (finding common ownership when the predecessor was a
corporation wholly owned by the husband and the successor corpora-
tion by the wife); J.M. Tanaka Construction, Inc. v. NLRB, 675 F.2d
1029, 1035 (9th Cir. 1982) (finding that ownership of businesses by
members of the same family was one indication of alter ego status).
11 The Respondents note that the General Counsel stipulated that Et-
nyre had been a statutory supervisor only for Alexander Painting, but
they do not suggest that his authority as such had been anything but
subordinate to Pamphilis.
12 Pamphilis hinted, but did not testify, that Silver Palette operates in
a smaller radius of Bethlehem than had Alexander Painting. Even if he
had so testified, however, under no case authority or logic does a
somewhat smaller geographic base establish separate identities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1354
made only two payments on the 2003 note that was intended to
compensate for the 2003 deficiencies. Just when in 2003 those
deficiencies began to accrue is not clear, but that factor does
not defeat the allegation. In Midwest Precision Heating &
Cooling, 341 NLRB 435 at fn. 5 (March 11, 2004), the Board
specifically approved of the administrative law judge’s designa-
tion of the Section 10(b) date as that of the inception of the
violations where it could not be determined with certainty just
when the employers had begun to repudiate their collective-
bargaining agreement by failing to make contractually required
payments to union funds. This is a stronger case than Midwest
Precision because the evidence is clear that, as far back as
2002, Pamphilis (and Etnyre) were intending to use Silver Pal-
ette as a nonunion alternative to Alexander Painting, regardless
of the contractual obligations that had been undertaken by
Alexander Painting and regardless of the statutorily guaranteed
desires of the employees for representation by the Union.13
Accordingly, I find that it is appropriate to date from September
3, 2003, the Respondents’ violations of Section 8(a)(5) by their
failing to contribute to the Union funds.14
Although Kraft testified that Alexander Painting had fallen
behind in its payments to the Union funds before it began oper-
ating as Silver Palette on February 23, he did not testify that
Alexander Painting had fallen behind in deducting and trans-
mitting employees’ Union dues before that date. There being
no admission on the point, and there being no evidence on the
issue, I shall recommend that the complaint be dismissed to the
extent that it alleges that the Respondents violated Section
8(a)(5) by failing to deduct and transmit dues from September
3, 2003, to February 23, 2004.
The complaint further alleges that the Respondents have con-
tinued to violate Section 8(a)(5) after the expiration of the 2001
contract. The Respondents have admitted or stipulated that,
since April 30 they have not recognized the Union or observed
the contract in any respect. Although by its terms the 2001
contract did terminate on April 30, the Respondents were not
free thereafter to disregard the Union that had negotiated the
contract on their employees’ behalf. The Union remained the
Section 9(a) representative of the unit employees, as recited in
the 2001 contract.15
As the continuing collective-bargaining representative, the
Union was entitled, upon demand, to information that could be
relevant to the purposes of collective bargaining or the filing of
grievances.16 The Respondents admit that on February 26, the
Union had requested extensive information regarding the rela-
tionship between Alexander Painting and Silver Palette, and
they further admit that on March 1 Pamphilis refused that re-

13 I refer specifically to the quoted admissions of Pamphilis and the
entreaties by Pamphilis and Etnyre to Siska and Blose to come to work
for the nonunion company and Etnyre’s instruction to Siska to keep
their conversation quiet.
14 Of course, at the compliance stage of this proceeding the Respon-
dents will be given credit for the two payments that Alexander Painting
did make on the 2003 note that was intended to compensate for the
deficiencies in payments to the funds.
15 See Decorative Floors, Inc., 315 NLRB 188 (1994), and cases
cited therein.
16 NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967).
quest, and the Respondents further admit they have continued
in that refusal after April 30. The relevance of the requested
information is plainly demonstrated by the above-recited facts
that establish the alter ego relationship between Alexander
Painting and Silver Palette and the existence of the provisions
of the 2001 contract that prohibit double-breasted operations
(“through family members or otherwise”). The Respondents
argue, however, that Silver Palette bears no responsibility for
providing the information because it is not an alter ego of Alex-
ander Painting and Alexander Painting had no such responsibil-
ity because the Union “already has all of the requested informa-
tion.”17 Of course, I have previously rejected the defense that
Silver Palette and Alexander Painting are not alter egos. More-
over, although on cross-examination Kraft did admit that the
Union possessed “half” of the information that it requested, it is
left to conjecture what “half” he was talking about. When re-
quested information is presumptively relevant or has been
demonstrated to be relevant, the burden is upon the employer to
establish any reason why it should not be required to furnish
it.18 Therefore, the burden was upon the Respondents to dem-
onstrate which information it was that the Union already pos-
sessed. This burden the Respondents have not attempted to
meet, and this defense also fails. Accordingly, I find and con-
clude that by failing and refusing to furnish all of the requested
relevant information to the Union the Respondents have vio-
lated Section 8(a)(5).
The Respondents have also admitted that since April 30, Sil-
ver Palette has not paid into any of the union funds as required
by the 2001 contract. The Respondents contend that they have
not been obligated to contribute to those funds because the
2001 contract has expired and, anyway, Silver Palette was
never a party to that collective-bargaining agreement. By being
the alter ego of Alexander Painting, Silver Palette was, in ef-
fect, a party to Alexander Painting’s contract with the Union.
Because benefits of such funds are part of the unit employees’
terms and conditions of employment, an employer’s obligations
to continue contributions to the funds survive the expiration of
a collective-bargaining agreement, at least until there is an
agreement that the contracting employer is no longer obligated
or an impasse over the issue has been reached in bargaining.19
Therefore, as I find and conclude, the Respondents have vio-
lated Section 8(a)(5) by failing since the expiration of the 2001
contract to make required contributions to the Union’s welfare,
pension, annuity, vacation, scholarship and apprenticeship and
journeyperson education funds.20 Similarly, the Respondents
have continued to be required to hire the Union’s referrals from

17 Brief, p. 11.
18 Somerville Mills, 308 NLRB 425 (1992); Postal Service, 276
NLRB 1282 (1985).
19 NLRB v. Katz, 369 U.S. 736 (1962).
20 See, for example, Gray’s Cleaning Service, 323 NLRB No. 195
(1997) (not reported in Board volumes) (welfare and pension funds),
Delano Hotel, 263 NLRB 1418 (1982) (annuity fund), H. Jonas and
Son, Inc., 325 NLRB No. 228 (1998) (not reported in Board volumes)
(vacation fund), Decorative Floors, Inc., 315 NLRB 188 (1994) (ap-
prenticeship and scholarship funds).
ALEXANDER PAINTING, INC. 1355
its out-of-work list, even after the 2001 contract expired,21 and
their failures to do so also violated Section 8(a)(5).
The Respondents have not, however, violated Section 8(a)(5)
by their failures to deduct and transmit Union dues after the
April 30 expiration of the 2001 contract because such require-
ments do not survive the expiration of the collective-bargaining
agreement that created them.22
Finally, the complaint alleges that, in violation of Section
8(a)(3) beginning in February, the Respondents “conditioned
employment of [their] unit employees at Silver Palette on their
resignations from the Union.” The only evidence of what the
Respondents told Alexander Painting employees about working
for Silver Palette is contained in the testimonies of Siska and
Blose. Siska testified that in 2002, Etnyre told him that Silver
Palette was being activated as a nonunion company and asked
if Siska would be interested in managing it. Siska declined.
Then, shortly after he was laid off by Alexander Painting, Et-
nyre asked Siska not to encourage former Alexander Painting
employees to “stay with the Union.” Blose testified that Etnyre
told him, shortly before he was laid off by Alexander Painting,
that Silver Palette was being activated and that Blose could go
to work for Silver Palette and that “everything would be the
same as far as the money, the same hourly rate, and the only
thing that would be different would be I didn’t have to worry
about union dues.” Blose further testified that, shortly after he
was laid off by Alexander Painting, Pamphilis called him and
stated that “there would be an opening available if I wanted it,
to work for the nonunion company.”
The testimony of Siska and Blose, especially in view of the
other evidence described above, strongly indicates that Alexan-
der Painting discharged (or “laid off”) its employees in order to
continue its business operations as the nonunion Silver Palette.
And there is no question that discharges for such an objective
would have constituted violations of Section 8(a)(3) by both of
the Respondents.23 Violative discharges, however, are not al-
leged in the complaint.24 The only 8(a)(3) allegation of the
complaint is that the Respondents conditioned the continued
employment of the employees upon “their resignations” from
the Union. In none of the testimony, however, is there evi-
dence that any Alexander Painting employee was told that he
was required to resign his membership from the Union if he
wanted to be employed by Silver Palette. To be sure, the testi-
monies of Siska and Blose prove that the Respondents were
telling the employees that they would be required to forgo un-
ion representation if they wished to work for Silver Palette,25
and such evidence fortifies my conclusions that the Respon-
dents violated Section 8(a)(5) by repudiating the 2001 contract
and by repudiating their continuing statutory obligations to
recognize and bargain with the Union. But, although several of

21 American Commercial Lines, Inc., 296 NLRB 622 fn. 10 (1989).
22 See Hacienda Resort Hotel & Casino, 331 NLRB 665, 667
(2000).
23 On brief, the General Counsel cites many cases on this point.
24 Why the General Counsel chose not to allege discharge violations
went unexplained.
25 Why the complaint does not allege a violation of Section 8(a)(3)
by the Respondents’ conditioning employment with Silver Palette on
the employees’ forgoing union representation also went unexplained.
the Alexander Painting employees did resign their member-
ships, there nevertheless is no evidence that Pamphilis or Et-
nyre told them to do so before they were hired by Silver Palette,
and, again, that is all that is alleged as a violation of Section
8(a)(3). In this posture of the case, it is therefore necessary to
recommend dismissal of this allegation of the complaint.
THE REMEDY
On brief, the Respondents argue that processing of the com-
plaint herein violates “the automatic stay provisions of the fed-
eral bankruptcy law.” This is another misstatement of the law.
It is well established that the institution of bankruptcy proceed-
ings does not deprive the Board of jurisdiction or authority to
entertain and process an unfair labor practice case to its final
disposition.26 Moreover, Board proceedings fall within the
exception to the automatic stay provisions for proceedings by a
governmental unit to enforce its police or regulatory powers.27
The Respondents further argue on brief that the General Coun-
sel may not seek any monetary remedies for the violations
found herein because Alexander Painting has been discharged
from Chapter 7 bankruptcy. Chapter 7, 11 U.S.C. Sec.
727(a)(1) clearly specifies that “The courts shall grant the
debtor a discharge unless . . . the debtor is not an individual.”
Alexander Painting, of course, is a corporation, not an individ-
ual. Moreover, as fully discussed in NLRB v. Better Building
Supply Corp., 837 F.2d 377, 378–379 (9th Cir. 1989), the legis-
lative history makes clear that discharge of corporations is not
possible under Chapter 7 precisely because Congress did not
wish to allow mere paper contrivances to be employed for the
purpose of evading contractual (or statutory) obligations. Cre-
ating Silver Palette may not have been a contrivance, but hus-
band-Alexander’s putting 100 percent of its stock in the name
of wife-Lisa assuredly was. Had there been some legitimate
reason for the transfer, Lisa would have had some inkling of
what it was, and Pamphilis himself could have done better than
“I just thought it would be wise to do that.”28
Finally, Board adjudication must proceed despite the bank-
ruptcy because Silver Palette, as the alter ego of Alexander
Painting, is jointly and severally liable for the remedies found
appropriate herein.29 There is no argument, of course, that
Silver Palette has been discharged in bankruptcy. Accordingly,
these contentions of the Respondents must be rejected.
Having concluded that the Respondent Silver Palette is the
alter ego of the Respondent Alexander Painting, that the Re-
spondents constitute a single employer, and that the Respon-
dents have committed certain violations of the Act, I shall rec-

26 See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and
cases cited therein.
27 See id., and cases cited therein; NLRB v. 15th Avenue Iron Works,
Inc., 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc.
v. NLRB, 703 F.2d 23 (1st Cir. 1983).
28 Again, the scheme of using Silver Palette to escape Alexander
Painting’s obligations was clearly devised after the effective date of the
2001 contract and after Alexander Painting’s second round of falling
behind in meeting its obligations to the union funds.
29 See Redway Carriers, Inc., 301 NLRB 1113 (1991), where not
only were the involved corporations held jointly and severally liable for
remedy of the unfair labor practices, the husband and wife who had
concocted the alter ego scheme were also held personally liable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1356
ommend that they be ordered to cease and desist therefrom and
take appropriate remedial action. The ordered action shall in-
clude the posting of the appropriate notice to employees and the
making whole of employees who performed bargaining unit
work for Alexander Painting or Silver Palette on and after Sep-
tember 3, 2003, for any losses suffered as a result of the Re-
spondents’ unlawful failure to abide by the terms of the 2001
agreement between Alexander Painting and the Union,30 the
amounts to be computed as provided in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest and other required payments computed in
the manner prescribed in Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). The Respondents shall further
be required to continue in full force and effect the 2001 con-
tract, except for the union security and checkoff provisions,
unless and until an agreement is reached or there is an impasse
on all mandatory subjects of bargaining.31
The Respondents shall further be ordered to comply with the
exclusive hiring hall provisions of the parties’ contract, to offer
full and immediate employment to those work applicants who
would have been referred to the Respondent for employment
through the Union’s hiring hall were it not for the Respondent’s
unlawful conduct, and to make them whole for any loss of earn-
ings and other benefits they may have suffered by reason of the
Respondents’ failures to hire them. Backpay is to be computed
as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The Respondents, Alexander Painting, Inc. and Silver
Palette, Inc., are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. At all material times, the Respondent Silver Palette, Inc.,
has been and is the alter ego of the Respondent Alexander
Painting, Inc.

30 Kraft Plumbing and Heating, Inc., 252 NLRB 891 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).
31 Midwest Precision, supra.
3. At all material times, International Union of Painters &
Allied Trades, District Council 21 (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
4. All painters, decorators, wall coverers, drywall finishers,
glaziers, and apprentices employed by Alexander Painting, Inc.,
or Silver Palette, Inc., constitute a unit appropriate for bargain-
ing within the meaning of Section 9(b) of the Act (the unit).
5. At all material times, the Union has been the designated
exclusive collective-bargaining representative of the employees
employed in the unit under Section 9(a) of the Act.
6. By the following acts and conduct the Respondents have
violated Section 8(a)(5):
(a) Since September 3, 2003, and continuing to date, failing
to make required contributions to the Union’s welfare, pension,
annuity, vacation, scholarship and education funds.
(b) Since on or about February 23, 2004, and continuing to
date, withdrawing recognition from the Union as the collective-
bargaining representative of the unit employees.
(c) Since on or about February 23, 2004, and continuing to
date, bypassing the Union as the exclusive representative of the
employees in the bargaining unit and dealing directly with
those employees over their terms and conditions of employ-
ment.
(d) Since on or about February 23, 2004, and continuing to
date, failing and refusing to abide by provisions of their collec-
tive-bargaining agreement with the Union by failing to use the
Union’s exclusive hiring hall when hiring bargaining unit em-
ployees.
(e) Since on or about March 1, 2004, and continuing to date,
failing and refusing to furnish to the Union upon request infor-
mation that is relevant and necessary for the Union to function
as the collective-bargaining representative of the unit employ-
ees or to process their grievances.
(f) From on or about February 23, 2004, until April 30, 2004,
failing to deduct and transmit employee dues to the Union as
required by the collective-bargaining agreement which, by its
express terms, was in effect during that period.
7. The Respondents have not otherwise violated the Act as
alleged in the complaint.
[Recommended order omitted from publication.]