Fallon-Williams, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2001

336 N.L.R.B. 602 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
Fallon-Williams, Inc. and its alter egos G.B.S. Consult-
ants, Ltd., d/b/a Fallon-Williams Services, and
Mercury Mechanical Services, Inc. and The
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO, Local
537. Cases 1–CA–34968 and 1–CA–35272
September 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On September 4, 1998, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondents filed exceptions and a supporting brief.1
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 brief and has decided to affirm
the judge’s rulings, findings, and conclusions as modified
and set forth in full below.
The complaint alleges that the Respondents violated
Section 8(a)(5) and (1) of the Act by repudiating their col-
lective-bargaining agreement with the Charging Party Un-
ion, by failing to apply the provisions of the agreement to
the operations of Respondent Mercury Mechanical Ser-
vices, Inc. (Mercury), and by failing and refusing to fur-
nish the Union with relevant information. The judge
found the violations.2 Thus, he found that Respondent
G.B.S. Consultants, Ltd. (GBS) was the successor to Re-
spondent Fallon-Williams, Inc.3 and that GBS assumed
Fallon-Williams’ collective-bargaining agreement with the
Union. He also found that GBS and Mercury were alter
egos, which means that Mercury, like GBS, was obligated
to honor the collective-bargaining agreement. He there-
fore concluded that Mercury (and its alter ego GBS) acted
unlawfully by failing to honor the terms of the contract
and by failing to supply the requested information.

1 Stephen J. Fallon Jr. filed a request that the complaint be dismissed
as to Fallon-Williams, Inc. and Fallon in his individual capacity or, in
the alternative, that the case be remanded to the judge for the taking of
additional evidence. Because we find, for the reasons discussed below,
that Fallon-Williams did not violate the Act, and because Fallon him-
self was neither alleged nor found to have acted unlawfully, we find it
unnecessary to address this request.
The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the issues
and the positions of the parties.
2 Although the judge did not include the repudiation of the contract
in his conclusions of law, his recommended Order includes injunctive
relief for that conduct. We therefore infer that the judge found the
violation.
3 See NLRB v. Burns Security Services, 406 U.S. 272 (1972). The
judge found that Fallon-Williams and GBS were neither alter egos nor
a single employer. He found instead that GBS was the successor to
Fallon-Williams, although that relationship was not alleged in the com-
plaint. The judge also found that Fallon-Williams and Mercury were
not alter egos or a single employer. No exceptions were filed to any of
those findings.
1. We agree with the judge that GBS and Mercury are
alter egos. In determining whether an alter ego relation-
ship exists, the Board considers whether two entities have
substantially identical ownership, management and super-
vision, business purpose, operation, customers, and
equipment.4 Another relevant factor is whether one entity
was created in an attempt to enable another to avoid its
obligations under the Act. However, the Board has consis-
tently 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 showing
that Mercury was created in order to avoid GBS’ obliga-
tions under the Act. As our colleague concedes, however,
that position has been rejected by the Board and, appar-
ently, by most circuit courts of appeals that have consid-
ered 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-
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. denied 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 Engineers 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).
336 NLRB No. 54
FALLON-WILLIAMS, INC. 603
isting collective-bargaining agreement[.]” NLRB v. Hospi-
tal San Rafael, 42 F.3d at 51.
In sum, there is no disagreement with our dissenting
colleague that all of the elements for finding that Mercury
is the alter ego of GBS are present except for unlawful
motive. While a colorable case could be made for finding
unlawful motive, we need not decide that issue because
that factor is not determinative of an alter ego finding.
Accordingly, we affirm the judge’s finding that the two
companies are alter egos.
2. The Respondents have excepted to the judge’s find-
ing that Mercury and GBS unlawfully failed to apply the
provisions of the contract to Mercury’s operations.8 They
contend that Mercury and GBS should be absolved from
their duty to apply the contract terms. Thus, by June 1995,
Fallon-Williams had fallen more than $100,000 in arrears
in payments to the union fringe benefit funds. GBS was
attempting to pay off the arrearages and by June 1996 had
reduced them to just over $50,000. At that point, the Un-
ion exercised its contractual right to remove the employees
from GBS while GBS remained delinquent in payments.9
Although the contract explicitly provides that it shall con-
tinue in effect even if the Union does remove the employ-
ees, the Respondents argue that the Union, by its actions,
made it impossible for them to comply with the contract.
Thus, by removing the employees (who assertedly took
their company vans home with them and failed to return
them for some time), the Union prevented GBS from ful-
filling its contracts with customers and, consequently,
from making further payments into the funds. Accord-
ingly, the Respondents contend, when Mercury began to
operate on a nonunion basis, not applying the collective-
bargaining agreement, it was out of necessity, not out of
any desire to avoid dealing with the Union. They there-
fore argue that they should not be held liable for failing to
honor the terms of the contract.
We reject those contentions. To begin with, we find the
Respondents’ “impossibility” argument unpersuasive. The
Board has consistently rejected defenses to allegations of
8(a)(5) violations based on the employer’s inability to
pay.10 Although here the Respondents argue
that their inability to pay was caused by the Union’s ac-
tions, the fact is that GBS’ financial woes were caused not
by the Union but by Fallon-Williams’ prior failure to make
the contractually required payments to the benefit funds.

8 No exceptions were filed to the judge’s finding that the Respon-
dents unlawfully failed to furnish the requested information.
9 The judge inadvertently stated that this occurred in 1966, rather
than 1996. We correct the error.
10 See, e.g., Nick Robilotto, Inc., 292 NLRB 1279 (1989), in which
the Board found an 8(a)(5) violation even though the employer, like
GBS, was taking steps to become current in its fringe benefit contribu-
tions.
Moreover, the Union was contractually entitled to remove
the employees, as the Respondents concede. The contract
provision that allowed the Union to remove the employees
from GBS jobs without abrogating the contract gave the
Union the power to cause difficulties for employers with-
out enabling the employers to walk away from the con-
tract. So, while the Union may have contributed to GBS’
difficulties by invoking its rights under this provision,
those are the terms the Respondents agreed to.11 At bot-
tom, the Respondents’ “impossibility” defense is that, hav-
ing failed to comply with the plain terms of the contract,
and having provoked a response by the Union that, while
perhaps harsh, was expressly permitted by the contract,12
the Respondents should now be allowed to walk away
from the contract altogether and operate nonunion. Need-
less to say, we reject that contention.
The Respondent also argues that they should not have to
pay into the funds during periods in which the Union was
refusing to supply employees. We also reject that conten-
tion. The contract provides that it shall continue in effect
even during periods in which the Union is withholding
employees. Contrary to the Respondents’ urging, we find
nothing unfair in holding them to the terms of the contract
they adopted.13 And the contract explicitly states that such
payments are required only for periods in which employ-
ees are actually working; thus, the Respondents are liable
only for hours during which employees performed work
covered by the contract.
We find no merit in the Respondents’ further argument
that Mercury could ignore the contract because the Union
waived its application by denying that it had a contract
with GBS. The Respondent argues that, during discus-
sions over the moneys owed to the funds, the Union’s ne-
gotiators stated that the Union had no contract with GBS.
11 The Respondents’ contention that the multiemployer collective-
bargaining agreement was a contract of adhesion is without merit. No
employer is required to engage in multiemployer bargaining without its
consent. See, e.g., Longshoremen (General Ore, Inc.), 126 NLRB 172
(1960). Had Fallon-Williams wished to negotiate different employ-
ment terms, it could have timely withdrawn from the multiemployer
unit and bargained on an individual basis. And as the successor to
Fallon-Williams, GBS was not obliged to adopt the contract. NLRB v.
Burns Security Services, 406 U.S. at 281–291.
12 The employees had no contractual right to keep the Respondents’
vans when they were not working for the Respondents. There is noth-
ing in the Respondents’ offers of proof, however, to indicate that the
employees were acting at the Union’s request when they failed to return
the vans. Moreover, the Respondents’ counsel, in his closing argument
to the judge, did not contend that the employees’ actions in keeping the
vans contributed to the Respondents’ inability to operate.
13 The Respondents argue that the judge refused to allow them to in-
troduce testimony concerning the construction of the collective-
bargaining agreement and its requirement that they pay into the funds
while the Union was withholding employees. That simply is not true.
The Respondents made no such proffer at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
In his affidavit, however, GBS’ president conceded that
the Union’s contract was, in fact, with Fallon-Williams.
Moreover, when GBS took over Fallon-Williams’ opera-
tions and adopted the union contract, it made payments to
the funds in Fallon-Williams’ name. The Respondents
stipulated that the Union was not informed of GBS’ take-
over of Fallon-Williams. In these circumstances, the Un-
ion’s statement that it had no contract with GBS likely
reflected the Union’s understanding of the situation.14
Nor do we find merit in the Respondents’ argument that
the Union is barred by res judicata from litigating its claim
for pension moneys because of a default judgment against
Mercury in Federal district court. Initially, there is nothing
in the record on which the Board could conceivably base a
finding of res judicata. The only mention of the judgment
in the record is the following statement by the Respon-
dents’ counsel at the hearing: “[t]here’s an arrearage in the
Federal District Court by way of a default judgment.”
That is all. There is nothing in the record even identifying
the parties or describing the particulars of the judgment.
The Respondents did not raise the judgment as an affirma-
tive defense in answer to the complaint or make any sort
of res judicata argument to the judge.
Moreover, res judicata applies, if at all, only to parties to
the judgment and their privies.15 The Respondents have
not shown that either the General Counsel or the Union
was a party to the district court litigation. According to
the Respondents’ brief, the suit was brought by the admin-
istrator of the Union’s pension funds. It is well established
that fund trustees and administrators are separate parties
from the unions and employers who establish the funds.16
The Respondents do not explain why the Union or the
General Counsel should be found to be in privity with the
pension funds or their officials. In any event, the Board
has consistently held that the Government is not precluded
from litigating issues of Federal law even though related
claims have previously been decided in State or Federal
courts in actions to which the Government was not a
party.17 For all of these reasons, the Respondents’ res ju-
dicata argument must fail. Contrary to the Respondents,
however, the Union will not benefit from a double recov-

14 The Respondent also argues that the Union was trying to put GBS
out of business, and that the Union’s conduct therefore was no longer
protected activity. Nonetheless, in their answer to the complaint, the
Respondent’s explicitly acknowledged that the Union’s actions were
protected under the Act.
15 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 fn. 5 (1979).
16 NLRB v. Amax Coal Co., 453 U.S. 322 (1981).
17 See, e.g., Precision Industries, 320 NLRB 661, 663 (1996), enfd.
118 F.3d 585 (8th Cir. 1997), cert. denied 523 U.S. 1020 (1998); Field
Bridge Associates, 306 NLRB 322 (1992), enfd. sub nom. Service
Employees v. NLRB, 982 F.2d 845 (2d Cir. 1993), cert. denied 509 U.S.
904 (1993).
ery. Our Order requires only that the Respondents make
the Union and the funds whole for any losses resulting
from the Respondents’ unlawful conduct. To the extent
that the Respondents have already done so pursuant to the
court judgment, our Order will not require them to do so
again.
Finally, we find, contrary to the Respondent’s asser-
tions, that the Respondents were not prejudiced by the
judge’s exclusion of certain proffered testimony. The
judge allowed the Respondents’ attorney to make offers of
proof concerning the testimony each witness would have
given had he been allowed to testify. Indeed, many of the
judge’s factual findings were apparently based on those
offers of proof. The judge simply found that the facts and
arguments that the Respondents proffered were irrelevant.
As is evident from our foregoing discussion, we agree
with the judge.
For all the foregoing reasons, we adopt the judge’s find-
ing that GBS and Mercury violated Section 8(a)(5) by
failing to honor the terms of the collective-bargaining
agreement since August 18, 1996.18
3. The judge found that Fallon-Williams and GBS vio-
lated Section 8(a)(5) by failing to stay current in their
payments to the funds prior to June 1996. The judge rec-
ognized that the Respondents’ conduct in this regard took
place outside the 10(b) period, but noted that they had not
raised the 10(b) statute of limitations as a defense. The
Respondents have excepted to those findings, and we find
merit in their exception.
Section 10(b) provides, in pertinent part, that “no com-
plaint shall issue based upon any unfair labor practice oc-
curring more than 6 months prior to the filing of the
charge with the Board and the service of a copy thereof
upon the person against whom such charge is made[.]”
The original charge in Case 1–CA–34968 was filed on
February 18, 1997, and was served on Fallon-Williams on
February 26, 1997. The 10(b) period thus began on Au-
gust 26, 1996.19
As the judge indicated, Section 10(b) is an affirmative
defense that is waived unless it is raised in a timely fash-
ion.20 The doctrine of waiver does apply here, to a limited
18 The judge’s recommended Order is modified to reflect that em-
ployees shall receive backpay computed in the manner specified in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), and shall be reimbursed for any expenses they may
have incurred as a result of the Respondents’ unlawful failure to make
payments into the funds, as discussed in Kraft Plumbing & Heating,
Inc., 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981). Payments into the funds shall be made as discussed in Merry-
weather Optical Co., 240 NLRB 1213, 1216 (1979).
19 See, e.g., Dun & Bradstreet Software Services, 317 NLRB 84, 85
(1995), affd. sub nom. Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996).
20 Public Service Co., 312 NLRB 459, 461 (1993).
FALLON-WILLIAMS, INC. 605
extent. It prevents Respondents from now raising Section
10(b) as a defense to the complaint’s allegation of viola-
tions dating from August 18, 1996 (the date 6 months be-
fore the charge was filed, not served, and several days
before the start of the 10(b) period). The Respondents thus
are liable for the violations found above beginning on Au-
gust 18, 1996, as the complaint alleged.
But the judge erred in finding a violation related to con-
duct that occurred prior to June 1996. The complaint did
not allege any unlawful conduct during 1995 and early
1996, and nothing in the record suggests that the General
Counsel intended to litigate, or did litigate, any issues
other than those pleaded in the complaint. There is no
basis, then, for finding that Respondents violated Section
8(a)(5) during that period. The failure to raise a 10(b)
defense is immaterial, since there was no reason to assert
it.
We shall, therefore, dismiss the complaint with regard
to Fallon-Williams (which permanently ceased to perform
work in June 1995), and we find that GBS (and Mercury)
violated the Act only beginning August 18, 1996. We
shall revise the judge’s recommended Order and notices
accordingly.21
ORDER
The National Labor Relations Board orders that the Re-
spondents, G.B.S. Consultants, Ltd., d/b/a Fallon-Williams
Services, and Mercury Mechanical Services, Inc., Quincy,
Massachusetts, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Repudiating and refusing to honor the collective-
bargaining agreements between the New England Me-
chanical Contractors Association Incorporated (NEMCA)
and The United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL−CIO, Local 537, unless
and until they have ended their assent to such agreements
pursuant to the terms of such agreements.
(b) Failing to provide information requested by Local
537 where such information is necessary for and relevant
to the Union’s performance of its duties as the collective-
bargaining representative of Mercury’s employees who are
members of the following unit:

All journeymen and apprentices employed by the Re-
spondents performing the work of erecting, rigging,

21 Since we find no violations on the part of Fallon-Williams, we
shall not require the Respondents to make the employees whole for
expenses they may have incurred as a result of Fallon-Williams’ failure
to make payments into the funds. GBS and Mercury will be required to
make employees whole only for any expenses they may have incurred
because of the Respondents’ failure to pay into the funds since Aug. 18,
1996. Kraft Plumbing & Heating, supra.
installing, joining together, dismantling, adjusting, al-
tering, repairing, maintaining, and servicing any and
all types of refrigeration and food cases and air condi-
tioning equipment for any and all purposes, excluding
guards and supervisors as defined in the Act.

(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole their unit employees by paying to them
the amounts due by reason of GBS’s and Mercury’s failure
since August 18, 1996, to comply with the 1995–1998
collective-bargaining agreement between NEMCA and
Local 537 and any follow-on agreements, as provided in
the remedy section of this decision.
(b) Make whole Local 537 and its associated benefit
funds by making the payments mandated by the 1995–
1998 collective-bargaining agreement between NEMCA
and Local 537, and any follow-on agreements, that GBS
and Mercury failed to make since August 18, 1996, as
provided in the remedy section of this decision.
(c) Make whole the unit employees of GBS and Mer-
cury by reimbursing them for any expenses that the em-
ployees may have incurred that resulted from failures to
make required benefit fund payments since August 18,
1996, as provided in the remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of
this Order.
(e) Provide to Local 537 the information about Mercury
sought by the Union’s January 9, 1997, letter to John
Handrahan.
(f) Within 14 days after service by the Region, post at
their facility in Quincy, Massachusetts, copies of the at-
tached notice marked “Appendix.”22 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being signed by representatives of GBS and Mercury,
shall be posted by them immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
22 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 BOARD 606
tomarily posted. GBS and Mercury shall take reasonable
steps to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, either GBS or Mercury has
gone out of business or closed the facility involved in
these proceedings, that Respondent shall duplicate and
mail, at its own expense, copies of the notice to all current
employees and former employees employed by the
Respondents at any time since August 18, 1996.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the GBS and Mercury have taken to comply.

CHAIRMAN HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent GBS is
a successor to the Respondent Fallon-Williams and that
the two firms are not a single employer or alter egos. I
also note that there are no exceptions to the conclusion that
GBS and the Respondent Mercury Mechanical Services
are a single employer. However, I do not agree with my
colleagues that Mercury has been shown to be an alter ego
of GBS. In my view, in order for the General Counsel to
meet his burden of showing that one entity is an alter ego
of another, he must show that the transaction between the
two was motivated by an intent to avoid legal obligations
under the Act. The General Counsel has failed to make
that showing in this case.
The factors for establishing single employer status are:
interrelation of operations, common management, central-
ized control of labor relations and common ownership or
financial control. Radio & Television Broadcasting Local
1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255
(1965). The factors for establishing alter ego status are:
substantially identical ownership, management and super-
vision, business purpose, operation, customers, and
equipment. In addition, the Board considers whether there
was an intention to avoid statutory obligations.1 Indeed,
some courts hold that a finding of such an intention is a
sine qua non for alter ego status.2 Other courts have held
that such intention is a relevant factor, but not a necessary
one.3 However, at least one of those other courts has ex-

1 Crawford Door Sales Co., 226 NLRB 1144 (1976).
2 Iowa Express Distribution, Inc. v. NLRB, 739 F.2d 1305 (8th Cir.
1984), cert. denied 469 U.S. 1088 (1984); and Plumbers Local 343 v.
Nor-Cal Plumbing, 48 F.3d 1465, 1470 (9th Cir. 1994), cert. denied
516 U.S. 912 (1995). See also Operating Engineers Local 150 v. Cen-
tor Contractors, Inc., 831 F.2d 1309, 1312–1313 (7th Cir. 1987) (in
enforcing arbitration award, finds unlawful motive or intent are critical
inquiries in an alter ego analysis).
3 E.g., Goodman Piping Products v. NLRB, 741 F.2d 10, 11 (2d Cir.
1984); Fugazy Continental Corp. v. NLRB, 725 F.2d 1416, 1419 (D.C.
Cir. 1984); and NLRB v. Allcoast Transfer, Inc., 780 F.2d 576, 581 (6th
Cir. 1986).
pressed concern as to whether the Board’s view is the bet-
ter one.4 As set forth below, I agree with those courts that
hold that such intention is a necessary factor.
My colleagues have found alter ego status as between
GBS and Mercury, without a finding that these companies
acted for an illegal motive, i.e., to avoid obligations under
the Act. As noted above, I believe that such a finding is
necessary. The differences between “alter ego” and “sin-
gle employer” are significant. In a “single employer”
situation, a contract covering one entity will apply to an-
other entity if the two companies satisfy the criteria for
single employer status and the two sets of employees have
such a community of interest that they are appropriately in
the same bargaining unit.5 By contrast, in the “alter ego”
situation, the contract that covers one entity will be applied
to the other entity, provided only that the criteria for “alter
ego” are met. There is no necessity for showing that two
sets of employees share a community of interest. It is only
necessary to show that the one entity is the “disguised con-
tinuance” of the other.6
The phrase “disguised continuance” is a key to the reso-
lution of the issue before us. The phrase indicates an ele-
ment of deception, i.e., the actor wishes to conceal the fact
that the new entity is the same as the first one. There is a
reason for the deception and for the desire to conceal; the
actor seeks, through the disguise, to avoid a legal obliga-
tion.
Because the term “disguised continuance” connotes an
element of deception, and because the consequences of an
“alter ego” finding are greater (contract will apply, without
the necessity for showing community of interest), I con-
clude that a showing of intention to evade is essential to
“alter ego” status. In addition, my analysis manifests an
appropriate regard for Section 7 rights. As discussed, in
single employer cases, the contract will apply to the sec-
ond entity if the employees of the second entity are
deemed to be in the same bargaining unit as those of the
first. Although the employees of the second entity do not
get an opportunity to vote on the issue of union representa-
tion, it is appropriate to cover them with union representa-
tion, for they are essentially new employees coming into
an extant represented unit. By contrast, as discussed
above, in an “alter ego” situation the employees are cov-
ered by the union contract without regard to unit issues. In
my view, this is appropriate if unlawful motive can be
shown. For, if there is an unlawful motive, the Board must
4 Stardyne, Inc. v. NLRB, 41 F.3d 141, 148 (3d Cir. 1994) (“while
we are by no means sure that we would select the Board’s test if we
were choosing our own, we find that test to be a permissible construc-
tion of the Act”).
5 South Prairie Construction Co. v. NLRB, 425 U.S. 800 (1976).
6 Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942).
FALLON-WILLIAMS, INC. 607
restore the status quo ante the unlawful conduct. It is
therefore appropriate to bind the “alter ego” (the disguised
continuance) to the contract. However, absent such an
unlawful motive, there is no warrant for subjecting the
employees of the other entity to a union contract without
their consent.
My colleagues say that the absence of a finding of alter-
ego status would mean that the employer could “walk
away” from its contract with the union. However, as dis-
cussed above, a single employer will be bound to the con-
tract, and there can be single-employer status, even in the
absence of an alter-ego relationship. Such status depends
on a finding of a single unit, i.e., a community of interest.
My colleagues would find alter ego status, and a conclu-
sion of contract application, without regard to such unit
issues.
Since I agree with those courts which hold that unlawful
motivation is a sine qua non for alter ego status, and since
there is no finding of such motive here, I conclude that
alter ego status has not been shown.

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

WE WILL NOT repudiate or refuse to honor the col-
lective-bargaining agreements between the New England
Mechanical Contractors Association Incorporated
(NEMCA) and The United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL−CIO, Local 537,
unless and until we have ended our assent to such agree-
ments pursuant to the terms of such agreements.
WE WILL NOT fail to provide information requested
by Local 537, where such information is necessary for and
relevant to the Union’s performance of its duties as the
collective-bargaining representative of our employees who
are members of the following unit:

All journeymen and apprentices performing the work
of erecting, rigging, installing, joining together, dis-
mantling, adjusting, altering, repairing, maintaining,
and servicing any and all types of refrigeration and
food cases and air conditioning equipment for any and
all purposes, excluding guards and supervisors as de-
fined in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole our unit employees by paying to
them, with interest, the amounts due by reason of our fail-
ure and the failure of Mercury Mechanical Services to
comply with the collective-bargaining agreements between
NEMCA and Local 537, since August 18, 1996.
WE WILL make whole Local 537 and its associated
benefit funds by making the payments mandated by the
collective-bargaining agreements between NEMCA and
Local 537, and any follow-on agreements, that we and
Mercury failed to make since August 18, 1996.
WE WILL make whole our unit employees by reim-
bursing them, with interest, for any expenses that they may
have incurred that resulted from our failure, and the failure
by Mercury, to make required benefit fund payments since
August 18, 1996.
GBS CONSULTANTS, LTD.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

WE WILL NOT repudiate or refuse to honor the collec-
tive-bargaining agreements between the New England
Mechanical Contractors Association Incorporated
(NEMCA) and The United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL−CIO, Local 537,
unless and until we have ended our assent to such agree-
ments pursuant to the terms of such agreements.
WE WILL NOT fail to provide information requested
by Local 537, where such information is necessary for and
relevant to the Union’s performance of its duties as the
collective-bargaining representative of our employees who
are members of the following unit:

All journeymen and apprentices performing the work
of erecting, rigging, installing, joining together, dis-
mantling, adjusting, altering, repairing, maintaining,
and servicing any and all types of refrigeration and
food cases and air conditioning equipment for any and
all purposes, excluding guards and supervisors as de-
fined in the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole our unit employees by paying to
them, with interest, the amounts due by reason of our fail-
ure and the failure of G.B.S. Consultants, Ltd., to comply
with the collective-bargaining agreements between
NEMCA and Local 537, since August 18, 1996.
WE WILL make whole Local 537 and its associated
benefit funds by making the payments mandated by the
collective-bargaining agreements between NEMCA and
Local 537, and any follow-on agreements, that we and
G.B.S. failed to make since August 18, 1996.
WE WILL make whole our unit employees by reim-
bursing them, with interest, for any expenses that they may
have incurred that resulted from our failure, and the failure
by G.B.S., to make required benefit fund payments since
August 18, 1996.
MERCURY MECHANICAL SERVICES,
INC.

Scott R. Kardel, Esq., for the General Counsel.
David G. Hanrahan, Esq. (Gilman, McLaughlin & Hanrahan),
of Boston, Massachusetts, for the Respondent.
Burton Rosenthal, Esq. (Siegal, Roitman & Coleman), of Boston,
Massachusetts, for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The New
England Mechanical Contractors Association Incorporated
(NEMCA) is an organization of employers engaged in the heat-
ing, ventilating and air-conditioning (HVAC) business. One of
NEMCA’s purposes is to represent its employer-members in
negotiating and administering collective-bargaining agreements
with various unions, including the Charging Party, the United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL−CIO,
Local 537 (Local 537 or the Union). At all material times the
Association and Local 537 have been parties to collective-
bargaining agreements. In such agreements NEMCA has recog-
nized Local 537 to be “the sole collective bargaining agency” for
the following employees:

All journeymen and apprentices performing the work of
erecting, rigging, installing, joining together, dismantling,
adjusting, altering, repairing, maintaining, and servicing any
and all types of refrigeration and food cases and air condi-
tioning equipment for any and all purposes.1

1 The quotation is from the collective-bargaining agreement. The
unit to which the complaint refers (and which is admitted to by the
Respondents) is worded differently in ways that are not material to this
proceeding. All parties agree that the unit is appropriate for the pur-
poses of collective bargaining within the meaning of Sec. 9(b) of the
Act.
The current agreement covers the period September 1, 1995,
through August 31, 1998.2 (In this decision when I refer to “the
collective bargaining agreement,” I will be referring to the 1995–
1998 agreement.)
In April 1980 a company in the HVAC business named
Fallon-Williams, Inc. (one of the Respondents in this proceeding)
began an 8(f) relationship with Local 537 by entering an assent to
the collective-bargaining agreement then in effect between the
Union and NEMCA, thereby binding Fallon-Williams to the
terms of that agreement with respect to work within the scope of
the agreement.
Fallon-Williams remained bound to successive collective-
bargaining agreements between the Association and Local 537,
including the 1995−1998 agreement referred to above.

The Local 537 collective-bargaining agreements to which
Fallon-Williams was a party required employers to, among other
things, pay specified amounts per employee hour into funds asso-
ciated with Local 537, including, for example, a health and hospi-
talization fund, a pension fund and a vacation fund. (Hereafter I
will refer collectively to all such funds as the Union Funds.)
Fallon-Williams continued its collective-bargaining relation-
ship with Local 537 in the years after 1980 and, apparently, com-
plied with its obligations under the various successor collective
bargaining agreements with, however, one important exception.
The Company did not stay current in its payment to the Union
Funds. As a result, by June 1995 Fallon-Williams owed the
Funds more than $100,000.
GBS Comes into Existence
Fallon-Williams had two owners and managers: Steven J.
Fallon, Jr. (who was Fallon-Williams’ President) and John F.
Handrahan. In June 1995 Fallon ended his connection with
Fallon-Williams, and Fallon-Williams permanently ceased to
perform work. Fallon-Williams did not notify Local 537 about
this cessation of business.
Shortly before Fallon-Williams ended its operations, Handra-
han (Fallon-Williams’ other owner and manager), formed a new
corporation called G.B.S. Consultants, Ltd.3 It did business as
Fallon-Williams, Fallon-Williams Services, and, sometimes,
Fallon-Williams Co. Inc.4 But in this decision I will refer to this
second company as GBS.
Handrahan is GBS’s President, its sole director, and its only
owner. Upon Fallon-Williams’ demise, GBS purchased all of
2 That agreement is in the record as GC Exh. 2, Attachment 6. I note,
in this regard, that there are only two numbered exhibits in the record,
GC Exhs. 1 and 2. GC Exh. 1 is the formal papers. GC Exh. 2 is a
“Stipulation of Facts.” There are six attachments to GC Exh. 2: GBS’s
Articles of Organization (Attachment 1); an affidavit of John F.
Handrahan (No. 2); a series of “employer reports” showing GBS’s
payments to the Union Funds (although in the reports the “Employer”
is listed as “Fallon-Williams”) (No. 3); the Articles of Organization of
Mercury Mechanical Services (No. 4); GBS’s invoices to Mercury
(although the invoices purport to be from “Fallon-Williams Co. Inc.”)
(No. 5); and the 1995–1998 collective-bargaining agreement (No. 6).
3 At the hearing on June 22 I granted the General Counsel’s motion
to amend the complaint by adding GBS Consultants, Inc. [sic] d/b/a
Fallon-Williams Services as an additional alter ego. Prior to this
amendment the complaint did not refer to GBS.
4 In that last respect, see fn. 2, supra.
FALLON-WILLIAMS, INC. 609
Fallon-Williams’ assets and assumed its contracts and liabilities,
including Fallon-Williams’ 8(f) contract with Local 537 and
Fallon-Williams’ debt to the Union Funds. GBS had identical or
substantially identical business operations, management (except
for Fallon’s departure), facilities, employees, equipment, working
conditions and supervisors as Fallon-Williams. GBS did not
notify Local 537 about its relationship to Fallon-Williams or its
assumption of Fallon-Williams’ obligations under the collective
bargaining agreement. (While GBS did communicate with the
Union Funds—in the process of making its monthly payments to
the Funds—GBS did so using its doing-business-as name:
“Fallon-Williams.”)
In large part GBS met its contract obligations to Local 537 and
to the Union Funds. All of GBS’s bargaining unit employees
were members of Local 537, GBS remunerated them in accor-
dance with the collective-bargaining agreement, and GBS sub-
stantially reduced its (previously Fallon-Williams’) debt to the
Union Funds.
The General Counsel and Local 537 argue that GBS was an al-
ter ego of and a single employer with Fallon-Williams.
As for Fallon-Williams and GBS being a single employer, that
is not the case. Fallon-Williams ceased doing business before
GBS began operating, a circumstance antithetical to a single
employer relationship which, after all, is characterized by interre-
lated operations. Hartman Mechanical, Inc., 316 NLRB 395,
401 (1995).
I conclude also that GBS was not the alter ego of Fallon-
Williams.
The many ways that GBS was identical or substantially identi-
cal to Fallon-Williams obviously point toward an alter ego rela-
tionship. So does GBS’s use of the “Fallon-Williams” name and
Fallon-Williams’ and GBS’s failure to notify the Union about
Fallon-Williams’ cessation of business and about the existence of
GBS and its stepping into Fallon-Williams’ shoes.
But Handrahan’s motive in switching from Fallon-Williams to
GBS was not an illegal one; as noted, GBS assumed Fallon-
Williams’ obligations under the collective-bargaining agreement.
And there was a major shift in ownership. (I note, in this regard,
that Fallon and Handrahan are not members of the same family.)
As for the lack of an illegal motive, “the Board does not re-
quire . . . that an illegal motive be established in order to find
alter ego status.” Johnstown Corp., 313 NLRB 170, 171 (1993),
affd. in pertinent part sub nom. Stardyne, Inc. v. NLRB, 41 F.3d.
141, 144 (3d Cir. 1994).
On the other hand, illegal motivation, or the lack of it, is a fac-
tor to take into account in determining whether one entity is an
alter ego of another. E.g., NLRB v. Hospital San Rafael, Inc., 42
F.3d 45, 51 (1st Cir.), cert. denied 516 U.S. 927 (1994). Indeed,
“an attempt to avoid the obligations of a collective bargaining
agreement” is virtually part of the definition of an “alter ego.”
See Electronic Data Systems Corp., 305 NLRB 219 (1991), enfd.
in pertinent part 985 F.2d 801 (5th Cir. 1993). And here GBS
explicitly assumed Fallon-Williams’ obligations under the collec-
tive-bargaining agreement.
As for the shift in ownership, it is true that an alter ego rela-
tionship does not hinge on identical ownership. Still, where the
Board has found alter ego status notwithstanding differences in
ownership, the ownership changes have generaly involved shifts
from husband to wife, father to son, or the like. See, e.g., Sobeck
Corp., 321 NLRB 259 (1996). Here Handrahan went from being
a half-owner of Fallon-Williams to being the sole owner of GBS.
Surely that is not a “mere technical change” in ownership, but
rather is one that amounts to a change that is “substantial.” How-
ard Johnson Co v. Hotel Employees, 417 U.S. 249, 259 at fn. 5
(1974).
While GBS is thus neither an alter ego of Fallon-Williams nor
a single employer with Fallon-Williams, GBS is beyond all ques-
tion a successor to Fallon-Williams. GBS, after all, continued
Fallon-Williams’ business, acquired and thereafter utilized in its
business Fallon-Williams’ facilities, equipment and other assets,
and employed the bargaining unit employees that had previously
been working for Fallon-Williams. See generally NLRB v. Burns
Security Services, 406 U.S. 272 (1972). And “in a variety of
circumstances, involving a[n] . . . assets purchase, the Board
might properly find as a matter of fact that the successor has
assumed the obligations of the old [collective bargaining] con-
tract.” Burns, supra, 406 U.S. at 291; accord: Volk & Huxley,
280 NLRB 219, 226 (1986), enfd. 817 F.2d 996 (2d Cir.), cert.
denied 484 U.S. 925 (1987). Here, the facts compel just such a
finding, particularly, of course, because GBS explicitly “assumed
the contracts . . . of Fallon-Williams, Inc., including the collective
bargaining agreement with the Union.”6
The Switch From GBS to Mercury Mechanical Services
As touched on above, GBS substantially reduced its debt to the
Union Funds, from more than $100,000, which was the amount
that Fallon-Williams owed the Funds when GBS assumed
Fallon-Williams’ liabilities, to about $52,000. But the Union
Funds treated GBS’s payments as reductions in past-due
amounts, not as payments covering GBS’s current operations.
(There is no dispute about the propriety of that treatment by the
Funds of GBS’s payments.) As a result, as of June 1996 GBS
was 3 months in arrears to the Union Funds.
The collective-bargaining agreement, at article XXI(c), in-
cludes the following provision:

During any period of delinquency of wages or fringes,
the Union shall have the right to remove all Employees of
the delinquent Employer from their work for that Employer,
but in such event this Agreement shall remain in full force
and effect during the period of delinquency.

In June 1966 the Union removed all of GBS’s bargaining unit
employees pursuant to this provision. This precluded GBS from
meeting numerous commitments it had made to its customers.
(That, in turn, precipitated GBS’s bankruptcy filing.)
About 3 months earlier, Handrahan had created Mercury Me-
chanical Services, Inc. Mercury’s articles of organization list
Handrahan’s wife, Margaret Curran, as Mercury’s sole
incorporator, officer and director. As Handrahan put it (in an
affidavit): “Mercury Mechanical is a company that I set up . . .
and put my wife’s name on as the sole officer.”7 Handrahan
created Mercury because of his and GBS’s many debts and
because Handra ther business entity in han wanted to have ano
6 The quotation is from GC Exh. 2, p. 2. The complaint does not al-
lege that GBS is a successor to Fallon-Williams. But the question of
whether there is a successor relationship was litigated.
7 GC Exh. 2, Attachment 2, p. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
wanted to have another business entity in being in the event that
GBS went into bankruptcy.
When Local 537 pulled all of GBS’s employees, Handrahan
began using Mercury to perform what had been GBS’s business
(maintenance and construction of HVAC systems), for a while
doing so as a subcontractor to GBS. Mercury initially subcon-
tracted out the work that it undertook to perform. But then Mer-
cury switched to using its own employees. The parties have stipu-
lated that Mercury

has identical or substantially identical management (in that
Jack Handrahan hired all of the employees of Mercury),
business purpose (service and maintenance of HVAC sys-
tems), operations, equipment (vans leased by Mercury from
GBS), customers, supervisors (Jack Handrahan) as, and
shared common premises and facilities . . . with GBS.

Mercury did not comply in any respect with the terms of the
collective-bargaining agreement. For example, Mercury has
never paid its employees at the rates specified in the collective-
bargaining agreement and it has made no payments to the Union
Funds.
Mercury, plainly, was and is an alter ego of GBS.
As for Handrahan’s motive in utilizing Mercury to perform the
kind of work in which GBS had been engaged, the General
Counsel and Local 537 sought to call witnesses for the purpose of
proving that Handrahan formed Mercury for the purpose of evad-
ing GBS’s responsibilities under the Act. The Respondents
sought to call a witness for the purpose of proving the opposite.
I refused to permit any testimony on the subject even though (as
touched on earlier) illegal motivation is a factor to consider in
determining alter ego status. I made that ruling because the alter
ego status of Mercury was already so patent as a result of the
stipulations of the parties and the Respondents’ admissions.
In addition to Mercury’s alter ego status, Mercury was, and is,
a single employer with GBS in that GBS and Mercury, “in real-
ity, constitute only one integrated enterprise.” NLRB v. Brown-
ing-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982 (em-
phasis in original).8 In this connection I note that Handrahan’s
motive in creating Mercury—good or bad—is of little moment
for the purpose determining whether GBS and Mercury are a
single employer. See Hospital San Rafael, Inc., supra at 50.
The complaint alleges that Mercury is an alter ego of, and a
single employer with, Fallon-Williams, not GBS. But the nature
of the relationship between Mercury and GBS clearly was liti-
gated.
As for the relationship between Mercury and Fallon-Williams,
Mercury is neither an alter ego of, nor a single employer with,
Fallon-Williams. On the other hand, given Mercury’s alter ego
and single employer status with GBS, and given that GBS is a
successor to Fallon-Williams, Mercury is also a successor to
Fallon-Williams and, like GBS, is bound by the collective-
bargaining agreement between NEMCA and Local 537. See, e.g.,
Sobeck Corp., supra, 321 NLRB at 266–267.

8 In so concluding, I have specifically taken into account that entities
that are in an alter ego relationship are not necessarily also in a single
employer relationship. See Johnstown Corp., 322 NLRB 818 (1997).
On January 9, 1997, Local 537 wrote to Handrahan, asking for
information about Fallon-Williams and Mercury, information
that was necessary for and relevant to the Union’s performance
of its duties as the collective-bargaining representative of Mer-
cury’s bargaining unit employees. The Respondents did not re-
spond to the Union’s letter. Mercury seeks to excuse this failure
to provide the requested information on the ground that at all
material times Local 537 has had all of the information about
Fallon-Williams that the Union’s questions seek. But even as-
suming that this otherwise would be a valid defense, many of the
Union’s questions specifically concerned Mercury, not Fallon-
Williams.9
The Respondents’ Defenses
I refused to permit the Respondents to present evidence rele-
vant to several contentions that, the Respondents claim, explain
why they should not be held to have violated the Act.
1. The Respondents argue that Mercury and GBS are deeply in
debt and are without the resources needed to pay the Union
Funds the amounts owed or to pay Mercury’s employees in ac-
cordance with the collective-bargaining agreement. The Board,
however, “has long held that the inability to pay is not a defense
to the allegation that Respondent has failed to make payments as
required under the parties’ collective bargaining agreement.”
Sonya Trucking Co., 312 NLRB 1159 fn. 1 (1993).
2. The Respondents contend that the Union, by removing all of
GBS’s employees, made it impossible for GBS (or Mercury) to
comply with the Respondents’ contractual obligations. The Re-
spondents’ problem here is that the collective-bargaining agree-
ment specifically provides that even if the Union does “remove
all Employees of the delinquent Employer,” the “Agreement
shall remain in full force and effect during the period of delin-
quency.” It may be that, as the Respondents claim, this provision
demonstrates that the collective-bargaining agreement is a “con-
tract of adhesion,” at least insofar as the Respondents are con-
cerned. Tr. at 22. But that does not excuse an employer’s failure
to comply with the terms of a collective-bargaining agreement to
which the employer had agreed to be bound. Cf. W.J. Holloway
& Son, 307 NLRB 487, 489 (1992).
3. According to the Respondents, the Union reneged on its ob-
ligations under an oral settlement agreement pursuant to which
GBS would have paid some of the amounts owing to Local 537
and the Union would “send the men back.” Tr. 24. I know of no
instance, however, where the Board has held that an oral settle-
ment agreement constitutes a defense to alleged violations of the
Act, particularly an agreement which is not claimed to have in-
cluded any undertaking to withdraw, or to forego the filing of, an
unfair labor practice charge.
The Violations of the Act
Mercury, obviously, violated Section 8(a)(5) and (1) when it
failed to abide by the terms of the collective-bargaining agree-
9 The information request does not ask for information about GBS,
apparently because Local 537 did not then know of GBS’s existence.
As will be touched on in the remedy section, the Union, armed with the
information that this litigation has provided, wants information only
about Mercury.
FALLON-WILLIAMS, INC. 611
ment and when it failed to respond to Local 537’s request for
information.
Since GBS is the alter ego of Mercury, and since GBS is a sin-
gle employer with Mercury, Mercury’s violations of the Act are
equally GBS’s. E.g., Dahl Fish Co., 299 NLRB 413, 418 (1990);
Las Villas Produce, 279 NLRB 883 (1986).
GBS failed to stay current in its payments to the Union Funds
even before Mercury arrived on the scene. That constituted a
violation of Section 8(a)(5) and (1) by both GBS and Mercury.
The first unfair labor practice charge in this proceeding was filed
on February 18, 1997, and GBS’s behavior here under discussion
occurred prior to June 1996, which was more than 6 months prior
to the charge. But the Respondents have not raised Section 10(b)
as a defense. See, e.g., Christopher Street Corp., 286 NLRB 253
(1987).
Fallon-Williams has no alter ego or single employer relation-
ship with either GBS or Mercury. And Fallon-Williams may not
be held responsible for the violations of the Act of GBS or Mer-
cury merely because they are Fallon-Williams’ successors. But
Fallon-Williams, like GBS, violated Section 8(a)(5) and (1) by
failing to stay current in its payments to the Union Funds. I am
hesitant to make such a finding since, according to the record
here, Fallon-Williams stopped operating in June 1995; that is, all
of its violations of the Act occurred more than 19 months prior to
the unfair labor practice charge. But as I understand the Board’s
teachings (and as touched on above), Section 10(b) does not
come into play unless raised as a defense.
CONCLUSIONS OF LAW
1. Local 537 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Fallon-Williams, Inc., was, and GBS Consultants, Ltd., and
Mercury Mechanical Services are, employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
3. The following unit is appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.

All journeymen and apprentices employed by the Re-
spondents performing the work of erecting, rigging, install-
ing, joining together, dismantling, adjusting, altering, repair-
ing, maintaining and servicing any and all types of refrigera-
tion and food cases and air conditioning equipment for any
and all purposes, excluding guards and supervisors as de-
fined in the Act.

1. GBS is a successor to Fallon-Williams and is required to
adhere to the collective-bargaining agreements between NEMCA
and Local 537 unless and until GBS has ended its assent to such
agreements pursuant to the terms of such agreements.
2. Mercury is an alter ego of and a single employer with GBS.
3. Fallon-Williams, GBS and Mercury violated Sec 8(a)(5)
and (1) of the Act by failing to abide by the terms of collective-
bargaining agreements between Local 537 and NEMCA.
4. Mercury and, by virtue of its single employer and alter ego
status, GBS, violated Section 8(a)(5) and (1) by failing to provide
information sought by Local 537, which information was neces-
sary for and relevant to the Union’s performance of its duties as
the collective-bargaining representative of Mercury’s bargaining
unit employees.
REMEDY
GBS and Mercury
Mercury employed employees to perform bargaining unit
work at rates of remuneration below those specified in the
1995−1998 collective-bargaining agreement between NEMCA
and Local 537. Additionally both GBS and Mercury failed to
make payments to the Union Funds.
The Respondents contend that the usual remedy in these cir-
cumstances would not result in any substantial payments either to
the employees involved or to the Union Funds (due to the deso-
late financial circumstances faced by both GBS and Mercury)
and that, accordingly, the only impact of the Board’s ordering
such a remedy would be the collapse of Mercury. That, however,
is a matter for consideration by the parties in connection with any
further settlement discussions in which they may choose to en-
gage; it is not a factor that can here be taken appropriately into
account in fashioning a remedy.10
It may be that employees of Fallon-Williams incurred some
expenses as a result of that Company’s violations of the Act (as
discussed below). GBS and Mercury, as Fallon-Williams’ suc-
cessors, are jointly and severally liable to those employees for
those expenses.
The recommended Order therefore requires that GBS and
Mercury:

1. Abide by the terms of the current collective-bargaining
agreement between NEMCA and Local 537.
2. Jointly and severally pay to their unit employees, with in-
terest computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987):
(a) the difference between (i) the remuneration that Mer-
cury’s unit employees did receive, and (ii) such amounts as
those employees would have received had Mercury
complied with the applicable collective bargaining
agreements, and
(b) any expenses incurred by the unit employees of
Fallon-Williams, GBS and Mercury that resulted from
Fallon-Williams’, GBS’s, or Mercury’s failure to make re-
quired benefit fund payments.
3. Jointly and severally make whole Local 537 and its asso-
ciated funds for the losses suffered from GBS’s and Mer-
cury’s failure to comply with their contractual obligations.11
See Merryweather Optical Co., 240 NLRB 1213, 1216
(1979).

Turning to the Respondents’ failure to respond to Local 537’s
information request, at this juncture the Union seeks only that
part of the requested information that relates specifically to Mer-

10 GBS’s and Mercury’s financial circumstances suggest that the
usual notice language (“WE WILL make whole our employees . . . .”)
will be misleading in the sense that it is unlikely that any of GBS’s or
Mercury’s employees will in fact be made whole. But it does not ap-
pear to be Board policy to take that into account. See, e.g., Redway
Carriers, 301 NLRB 1113, 1118 (1991).
11 Although make whole remedies are generally limited to those vio-
lations of the Act that occurred within 6 months of the unfair labor
practice charge, as discussed above the Respondents did not raise Sec.
10(b) as a defense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
cury (as opposed to information about either Fallon-Williams or
GBS). The recommended order requires GBS and Mercury to
provide this information about Mercury.
Fallon-Williams
The recommended order requires Fallon-Williams to cease
failing to honor its contractual obligations toward Local 537. See
Redway Carriers, supra, fn. 10, 301 NLRB at 1113 (“It is well
settled that mere discontinuance in business does not necessarily
render moot allegations of unfair labor practices against a re-
spondent”).
Fallon-Williams’ indebtedness to the Union Funds was paid in
full by GBS and, therefore, no make whole remedy requiring
payment by Fallon-Williams to the Union Funds is warranted. It
is conceivable, however, that some of Fallon-Williams’ employ-
ees incurred expenses as a result of Fallon-Williams’ failure to
make required benefit fund payments. The recommended order
requires Fallon-Williams, jointly and severally with GBS and
Mercury, to make whole, with interest, any Fallon-Williams
employees who suffered such expenses. Interest shall be com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
Fallon-Williams’ cessation of operations in June 1995 raises
an issue about what to do about a notice to employees. The rec-
ommended order deals with this by requiring Fallon-Williams to
mail copies of a notice to all unit employees it employed subse-
quent to the date on which Fallon-Williams first failed to make
the required payments to the Union Funds.
[Recommended Order omitted from publication.]