Reliable Electric Co.

National Labor Relations Board - Board Decisions

Feb 29, 2000

330 N.L.R.B. 714 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
Reliable Electric Company; Reliable Electric Con-
struction Company, Inc.; and Anthony Prilika
and International Brotherhood of Electrical
Workers, Local Union No. 68. Case 27–CA–
8682
February 29, 2000

SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On November 9, 1987, the National Labor Relations
Board issued a Decision and Order in this proceeding in
which it ordered the Respondent, Reliable Electric Com-
pany (Respondent Company), to make whole employees
for wages lost, plus interest: six as a result of their
unlawful discharges and any others who suffered as a
result of the Respondent’s failure to honor the union con-
tract while they remained employed.1 It further ordered
that Respondent Company make whole the employees by
remitting to seven trust funds contributions that it failed
to make.
The United States Court of Appeals for the Tenth Cir-
cuit, in an unpublished judgment, enforced the Board’s
Decision and Order.
A controversy having arisen over the liability for the
amount of payments due under the Board’s Decision and
Order, the Regional Director for Region 27 issued a
compliance specification and notice of hearing on March
31, 1994, alleging the amounts of backpay due the dis-
charged employees. The compliance specification also
alleged that (1) Anthony Prilika is an “alter ego” of Re-
spondent Company and Reliable Electric Construction,
Inc. (Respondent Construction); and (2) Respondent
Company and Respondent Construction are “alter egos
and a single employer”; alternatively, Respondent Con-
struction is Respondent Company’s successor.
Thus, the compliance specification sought to hold Re-
spondent Construction and Respondent Anthony Prilika
jointly and severally liable to remedy the unfair labor
practices of Respondent Company. A hearing was held
before Administrative Law Judge Schmidt.
On August 29, 1996, Judge Schmidt issued the at-
tached supplemental decision which, inter alia, added
amounts due two employees who had remained em-
ployed and fell within the scope of the remedy. Respon-
dents Construction and Anthony Prilika filed exceptions
and supporting briefs, and the General Counsel and the
Charging Party filed answering briefs. Respondent
Prilika also filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt his recommended Order.

1 286 NLRB 834.
We adopt Judge Schmidt’s recommendation to pierce
the corporate veil in regard to Respondent Anthony
Prilika. Under White Oak Coal, 318 NLRB 732, 735
(1995), the corporate veil may be pierced when:
(1) there is such unity of interest, and lack of respect
given to the separate identity of the corporation by its
shareholders, that the personalities and assets of the
corporation and the individuals are indistinct and (2)
adherence to the corporate form would sanction a
fraud, promote injustice, or lead to an evasion of legal
obligations. [Emphasis in original; citation omitted.]
Respondent Prilika and our dissenting colleague con-
cede, as they must, given the record evidence, that the
first prong is met. Thus, in his decision, the judge found
that Prilika “infused Construction with the necessary
cash, supplies and equipment—some of it his own, most
of it Company’s—to permit its operation without regard
to corporate formalities” and that the “personalities and
assets” of Company, Construction, and Prilika “are
indistinct.” These findings are based on extensive record
evidence demonstrating not only a disregard of the cor-
porate forms as between Company and Construction, but
also a commingling of assets and lack of arm’s-length
dealing between Prilika and Respondent Companies,
including evidence that Prilika and his wife contributed
cash, equipment, and supplies to the startup of Construc-
tion, purportedly as loans for which there is no documen-
tation; that Construction made and obtained numerous
other undocumented loans to and from members of the
Prilika family and others with whom they have business
associations; and that vehicles purportedly purchased
with Construction’s money were titled in the name of
another Prilika entity owned and controlled by Prilika.
The titling of Construction’s vehicles is evidence in
support of the second prong, i.e., that respecting the cor-
porate form as a bar against Prilika’s personal liability is
likely to lead to evasion of legal obligations. Blair Elec-
tric, the entity in whose name Prilika titled those vehi-
cles, was at least ostensibly different from the entity
against which the Board’s Order ran. (At this point, ac-
cording to the judge’s findings, Blair Electric is little
more than the name—“owned” by Anthony Prilika—of a
defunct business that operated about 20 years ago.) Al-
though, as our dissenting colleague notes, the vehicles
were eventually transferred to Construction, this was not
done until more than 2 years after three of them were
originally purchased and more than 1 year after purchase
of the others. In the interim those vehicles could not
have been reached as assets of Construction, and there is
no assurance, given the fluidity of transactions among
these various entities, that they might not be transferred
back to an entity not named in the Order.
As for the loans to and from Construction, the point is
not that Anthony Prilika was pouring money into Con-
struction. The point is, as the judge found, that it is un-
330 NLRB No. 111
RELIABLE ELECTRIC CO. 715
certain how much money was actually loaned, since the
loans were undocumented, and, as the judge further
noted, Anthony Prilika’s son, Robert, Construction’s
president and treasurer, was unable to state “when Con-
struction would complete the repayment of his parents’
loans.” As the judge found, weekly salary payments of
$850 from Construction to Prilika were being character-
ized as loan repayments, and theoretically these could
continue indefinitely even if Prilika were performing no
work. Thus, the assets of the alter ego company against
which the order runs are subject to claims by Anthony
Prilika in amounts that are impossible to determine accu-
rately. If he secures substantial payments on his claims
before the Board seeks payment of what is due under its
Order, Prilika may personally possess the money needed
to satisfy the Board’s claims; and there is no assurance
that his payments from Construction will not exceed
whatever amounts he may have supplied to it.
In short, in the absence of a finding of personal liabil-
ity, Respondent Prilika’s efforts to evade his legal
obligations will, in effect, be sanctioned. Contrary to our
dissenting colleague, it is not merely “speculative” that
Prilika will manipulate Construction, as he did Company,
in a way that hampers recovery of the amounts necessary
to satisfy the underlying backpay liability. As the judge
found, Construction has no distinct corporate identity or
assets, and appears to be entirely dependent on Prilika’s
support and day-to-day services for its continuing viabil-
ity; and as the titling of the vehicles discussed above in-
dicates, Prilika cannot be counted upon to desist from his
previous course of fraud and evasion and assure that
Construction will satisfy that liability.
For these reasons, we find that it is appropriate to
pierce the corporate veil and hold Respondent Prilika
personally liable, jointly and severally with the Respon-
dent Companies, for the backpay due in this case.
ORDER
The National Labor Relations Board orders that the
Respondents, Reliable Electric Company; Reliable Elec-
tric Construction Company, Inc.; and Anthony Prilika,
Denver, Colorado, their officers, agents, successors, and
assigns, shall make whole the employees named below,
or in the case of James Belshe, his estate, by paying them
the amounts following their names, as well as any addi-
tional amounts of backpay that may have accrued since
January 31, 1993, or which may accrue hereafter, with
interest to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholding required by Federal and state law.
The Respondent shall also remit to the trust funds the
contributions which the Respondent failed to make, plus
additional amounts, if any, as prescribed in Merry-
weather Optical Co., 240 NLRB 1213 (1979).2

2 To the extent that an employee has made personal contributions to
funds that are accepted by the funds in lieu of the employer’s delin-

Net Backpay
James Belshe Estate $ 50,303
Wesley Steven Goodwin 4,971
Robert Holcomb 175,144
Bill Jackson 93,606
Bruce Knoke 111,037
Kim MacIntyre 30,513
Robert McFarren 4,691
Dale Wittwer 29,109
TOTAL BACKPAY $499,374

Contributions
Owed
Electrical Industry Benefit
Health Fund
$ 7,870
Electrical Industry Benefit
Long-Term Disability Fund
191
Electrical Industry Benefit
Accidental Life Insurance Fund
507
Eighth District Electrical
Pension Fund
7,933
National Employee’s Benefit Fund 3,308
National Electrical Industry Fund 1,102
Joint Apprenticeship and
Training Fund
331
TOTAL CONTRIBUTIONS $ 21,242
TOTAL AMOUNTS DUE $520,616

MEMBER HURTGEN, dissenting in part.
I do not agree that the General Counsel has established
a sound basis for piercing the corporate veil and proceed-
ing personally against Anthony Prilika.
Under White Oak Coal, 318 NLRB 732 (1985), the
corporate veil can be pierced if (1) there is a lack of re-
spect for the separate identity of the corporation and the
shareholder; and (2) adherence to the corporate form
would sanction a fraud, promote injustice, or lead to eva-
sion of legal obligations.
The majority has focused on the first element. Prilika
concedes that this part of the test is met. However, I do
not agree that the second element has been established.
That is, Anthony Prilika may have ignored the corporate
form by infusing Construction with his personal assets,
but, in view of the fact that the Board is holding Con-
struction liable, it is difficult to see how Prilika’s infu-
sion of his assets into Construction would result in a
fraud, injustice, or evasion of legal obligations.1

quent contributions during the period of the delinquency, the respon-
dent will reimburse the employee for amounts paid, with interest, but
the amount of such reimbursement will constitute a setoff to the amount
that the respondent otherwise owes the funds. See Donovan & Associ-
ates, 316 NLRB 169, 170 (1995).
1 Compare: NLRB v. West Dixie Enterprises, 190 F.3d 1191 (11th
Cir. 1999), where it was undisputed that respondent West Dixie’s cor-
porate funds were used to pay rent on the individual’s personal apart-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
The majority acknowledges that Prilika gave assets to
Construction, not the other way around. They then
speculate that Prilika, in the future, may withdraw his
support from Construction, and thus there would be no
entity to satisfy the remedial obligation. The evidence
does not support this speculation. If and when it hap-
pens, and if it is done to avoid liability, then there may be
a basis for proceeding against Prilika.
Similarly, the evidence shows that Prilika made loans
to Construction. My colleagues seem to bemoan the fact
that Construction is repaying the loan through weekly
payments. In my view, there is nothing improper in the
repayment of a loan. Indeed, that would seem to be an
indicium of an arm’s-length transaction.
With respect to the vehicles which were titled, upon
acquisition, in the name of Blair Electric, the evidence
shows (at most) that Prilika did this to provide a “tax
shelter.” Of course, some “tax shelters” are quite lawful,
and there is no evidence here of tax fraud. Further, the
evidence in the instant case is that the vehicles were sub-
sequently transferred to Construction. Thus, it is diffi-
cult to see how this transaction was designed to diminish
Construction’s capacity to remedy an unfair labor prac-
tice.
As noted, the vehicles have been transferred to Con-
struction. My colleagues seek to discount this by saying
that the vehicles stayed in Blair’s name for a period of
time. However, the salient fact is that they were tran-
ferred to Construction at a time when the Board’s Order
was running against it. In these circumstances, it is diffi-
cult to find an intent to evade the legal obligations of
Construction.
My colleagues also speculate that these vehicles might
be transferred back from Construction in the future.
There is no record evidence to support this speculation.
Finally, the majority says that Construction made loans
to members of the Prilika family. The record shows no
loans to Anthony Prilika. Although there was a $5000
loan to Anthony Prilika’s son John, the evidence does not
establish that the loan was made at less than prevailing
market rate. In these circumstances, I conclude that the
General Counsel has not met his burden to show that
there has been fraud, injustice, or evasion of legal obliga-
tions.

Daniel F. Collopy, Esq., for the General Counsel.
Daniel J. Collyar and Kathryn Rackleff, Esqs. (Coan & Col-
lyar), of Denver, Colorado, for the Respondent.
Lynne L. Hicks, Esq. (Donald P. MacDonald, P.C.), of Denver,
Colorado, for the Charging Party.
Anthony Prilika, pro se.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. This hear-
ing in this case was to determine the formula and details for
computing the backpay due under the National Labor Relations
Board’s Order, as modified and enforced, in Reliable Electric,
Co., 286 NLRB 834 (1987), as well as those persons responsi-
ble for paying the backpay due.1 For reasons detailed below, I
find that liability for paying the backpay extends to all persons
named in the compliance specification, and that the Acting
Regional Director adopted a reasonable gross backpay formula
but erred as to the appropriate hourly rates applied for a portion
of the backpay period, the inclusion of medical premium reim-
bursements, the quarterly allocation of one individual’s interim
earnings, and the failure to include reimbursements for under-
paid wages at the outset of the backpay period. In reaching
these conclusions, I have rejected Respondents’ claims about
extending liability to other persons not named in the original
complaint, about the appropriate hourly rate to be used in the
Acting Regional Director’s gross backpay formula, and about
tolling the backpay generally as well as in certain specific in-
stances. I also corrected certain inadvertent errors.
This compliance specification issued on March 31, 1994,
over the signature of the Acting Regional Director for Region
27 of the National Labor Relations Board (the Board or
NLRB).2 In addition to the usual detailed allegations concern-
ing the backpay computation, the specification also alleges that:

(1) Anthony Prilika is “an alter ego” of Reliable Electric
Company and Reliable Electric Construction, Inc.; (2) that
Construction is Company’s successor; and (3) that Company
and Construction are “alter egos and a single employer.” A
detailed answer was filed on behalf of the Respondents’ ad-
mitting certain allegations and denying others.

I conducted a 5-day hearing in this case between December
13, 1994, and January 24, 1995, at Denver, Colorado. Having
carefully considered the record,3 the demeanor of the witnesses
while testifying, and the posthearing briefs of the General
Counsel, Local 68, and Construction, I now make the following
FINDINGS OF FACT
I. BACKGROUND AND ISSUES
In the underlying case, the Board concluded that Company
unlawfully repudiated a binding 8(f) collective-bargaining
agreement when its president, Anthony Prilika, informed em-
ployees at a meeting on January 24, 1984, that Respondent no
longer considered itself bound by the Union’s commercial

1 The United States Court of Appeals for the Tenth Circuit entered
an unpublished judgment enforcing the Board’s Order on May 4, 1992,
in Case 92–9520.
2 At the hearing, the General Counsel amended the compliance
specification’s appendices containing the detailed calculations to cor-
rect certain errors and to recalculate the interest due to December 13,
1994, the start of the hearing. GC Exh. 97. In all instances, GC Exh.
refers to the General Counsel’s exhibits; R. Exh. refers to Respondent
Construction’s exhibits; and R. Prilika Exh. refers to Respondent
Prilika’s exhibits. Those exhibits designated as “Government” exhibits
are hereby corrected to substitute “General Counsel” in place of that
designation.
3 At the hearing, I received R. Exhs. 29 through 34 provisionally in
order to allow for briefing of the General Counsel’s objection. I now
receive those exhibits without reservation. By an earlier order I re-
ceived R. Exh. 35 as a late filed exhibit in accord with arrangements at
the hearing. My order receiving and the entire exhibit, including the
foundation affidavit, are now included in the record. Finally, I hereby
designate the detailed alternate backpay computation appended to Re-
spondent’s brief as R. Exh. 41 and receive that exhibit to insure a com-
plete record for consideration by any future tribunals.
RELIABLE ELECTRIC CO. 717
agreement and offered to continue the employment of unit em-
ployees in accord with unilaterally established individual em-
ployment contracts. As this action “effectively presented the
[unit] employees with the Hobson’s choice between continued
employment with lower wages and benefits or no employment
at all,” the Board concluded in its November 9, 1987 decision
that Company constructively discharged six employees who
quit rather than work without a union contract. 286 NLRB at
836.
The Board’s remedial order included two separate backpay
requirements. Relying on its long-established precedent in Ogle
Protection and Kraft Plumbing,4 the first part requires Com-
pany, in effect, to reimburse all unit employees by paying them
“for any losses they may have suffered as a result of [Com-
pany’s] failure to adhere to the commercial agreement since
January 1984, with interest.” 286 NLRB at 836. Although the
Board initially limited this portion of its remedy until March
31, 1986, when the commercial agreement was, by its terms, to
expire, it subsequently modified this portion of its original Or-
der. (GC Exh. 1(b).) As modified, the effective period of the
Ogle remedy was “tolled as of June 1, 1984,” because the
original 1983–1986 commercial agreement was supplanted by a
new agreement effective June 1, 1984, pursuant to the terms of
a “settlement agreement,” apparently referred to in Judge Lit-
vack’s decision. 286 NLRB at 840 at fn. 14.
The second portion of the backpay remedy requires Com-
pany to make six constructively discharged employees—James
Belshe, Robert Holcomb, Bill Jackson, Bruce Knoke, Kim
MacIntyre, and Dale Wittwer—“whole for any loss of earnings
and other benefits, computed on a calendar quarterly basis from
the date of discharge to the date of a proper offer of reinstate-
ment, less any net interim earnings.” Company had ceased
business for over 2 years by the time the court of appeals en-
forced the Board’s modified Order on May 4, 1992.
The Acting Regional Director’s compliance specification al-
leges that a controversy exists only as to the amount of backpay
due the forenamed six discriminatees, including contributions
on their behalf to certain trust funds established under the
commercial agreement. The specification contains no allega-
tions concerning the Ogle portion of the Board’s remedy for
any employees. Allegations of trust fund reimbursements un-
der Kraft relate solely to the six named discriminatees. The
compliance specification calculated the backpay due through
January 31, 1993. Admittedly, no offers of reinstatement suffi-
cient to toll the future accrual of backpay have been made to
any of the discriminatees to date.
As to the liability issue, the compliance specification seeks a
finding that Construction, another similarly named Denver
electrical contractor, and Anthony Prilika in his personal capac-
ity are jointly and severally liable along with Company for
paying the backpay due and making the required trust fund
contributions. On this question, the General Counsel claims
that Construction is Company’s alter ego and Golden State
successor.5 In addition, the General Counsel claims that An-
thony Prilika is the alter ego of both Company and Construc-
tion, and engaged in conduct which warrants piercing the cor-
porate veils to impose liability upon him personally.

4 Ogle Protection Services, 183 NLRB 682 (1970), and Kraft Plumb-
ing, 252 NLRB 891 (1980).
5 Golden State Bottling v. NLRB, 4l4 U.S. 163 (1973).
Construction denies that it is either Company’s alter ego or
Golden State successor. But assuming otherwise, Construction
further claims that the General Counsel’s gross backpay com-
putation employs an excessively high hourly rate of pay for the
six constructively discharged employees in the periods follow-
ing May 31, 1984, that the backpay should be tolled entirely at
a much earlier date or, alternatively, that it should be tolled for
certain specific periods in individual cases, and that the claimed
reimbursements for certain discriminatees’ medical insurance
premiums are not appropriate. Prilika asserts that no basis ex-
ists to hold him personally liable, and I have assumed that he
joins in Construction’s claims concerning the gross backpay
computation.
II. THE SCOPE OF BACKPAY LIABILTY
A. Relevant Facts
Anthony Prilika was educated as an electrical engineer at
Zagreb University. Since coming to this country, he received
further education in contract litigation at Pepperdine Univer-
sity, became a member of the American Arbitration Associa-
tion, passed the master electrician examinations, and became
licensed as such in the State of Colorado as well as the city of
Denver. For a number of years Anthony also has been a mem-
ber in good standing of Charging Party, Local 68.
Anthony’s first foray into the electrical contracting business
occurred between 1970 and 1975. During that period he owned
and operated a business called Blair Electric. Anthony claims
that at some point in 1975 or 1976 he sold Blair Electric but he
retained ownership of the Blair Electric name and apparently
some of its vehicles and equipment. Over the years, he pur-
chased equipment and supplies through Blair Electric for use in
his other enterprises in order to take advantage of a more favor-
able sales tax rate resulting from Blair’s address.
In 1976 Anthony purchased Company, a going enterprise
that had been engaged in the electrical contracting business
since approximately 1920. Through the remainder of Com-
pany’s formal existence, Anthony was its president, chief ex-
ecutive officer, sole shareholder (apparently until 1988), corpo-
rate director, and registered master electrician. To comply with
the minimum requirements of Colorado corporate law relating
to the requisite number of officers and directors, Anthony
named his son, Robert (15 years old at the time), and his wife,
Kathy, as corporate directors and as corporate vice president
and secretary-treasurer, respectively. Except for minor recep-
tionist-type duties late in Company’s operation, Kathy never
actively participated in Company’s affairs and Robert did not
become active in Company, save for summer employment
while he attended school, until about 2 years after he graduated
from college in 1984. From early 1986 until he quit in Febru-
ary 1987, Robert worked at Company as its service manager,
warehouseman, and parts runner. After Anthony suffered a
heart attack in the late summer or early fall of 1988, Robert
returned to Company in September as a project manager. At
this time, Robert acquired a 25-percent ownership interest in
Company; Anthony retained the other 75-percent interest. Ap-
parently until his father returned in mid-November, Robert
essentially became responsible for Company’s overall opera-
tions.
For the decade between 1980 and 1990, Company operated
from a property located at 1740–8 South Broadway in Denver
which it leased from Kathy Prilika. Under that lease arrange-
ment, Company paid the taxes, insurance, and the debt load on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
the property directly. A building at that location served as
Company’s offices and warehouse, and the grounds served as a
yard for the storage of its vans, trucks, and equipment.
Over the years, Company performed electrical contracting or
subcontracting work in Colorado that included new construc-
tion work or remodeling for commercial and industrial custom-
ers as well as electrical service work for individual and corpo-
rate customers. Between 1980 and 1988, Company operated
under the protection of a Chapter 11 bankruptcy proceeding.
On May 7, 1992, 3 days after the Tenth Circuit’s judgment in
this proceeding and more than 2 years after it ceased opera-
tions, Company filed a Chapter 7 bankruptcy liquidation pro-
ceeding. Later, its charter as a Colorado corporation was re-
voked and its corporate existence ceased.
In addition to Company’s state electrical contractor’s li-
cense—apparently transferred to Anthony when he purchased
Company in 1976—Anthony also obtained a general contrac-
tor’s license. In the early 1980s, Anthony performed a few jobs
as a general contractor using a wholly owned entity which he
named Reliable Construction Company, Inc., an entity not to be
confused with Respondent Construction in this case. Despite
this corporate designation, Anthony had no recollection that he
ever took steps to formally incorporate Reliable Construction
and no independent evidence was adduced that this entity in
fact had been incorporated.6 According to Anthony, Reliable
Construction never performed any work after the early 1980s
but nonetheless it opened a commercial checking account at the
United Bank of Lakewood in Lakewood, Colorado, in June
1989 under the name of “Reliable Construction Company Inc,
d/b/a Reliable Electric” and, for reasons which remain unclear,
that account was used as a conduit for the payment of payroll
taxes.
The claim is made that after Robert returned to Company in
1988, he and his father undertook to finish up the work in pro-
gress and close down Company’s operations, a process which
purportedly continued throughout 1989 and into the first quar-
ter of 1990. Anthony blamed Company’s decline on the poor
business climate at the time as well as Company’s lack of
credibility resulting from the protracted Chapter 11 proceeding.
In any event, it is argued that Company’s slow demise caused
Robert to take steps toward securing his own future by forming
Construction to engage in the electrical contracting business
himself.
Robert formally incorporated Construction on March 15,
1990. Respondent Construction’s Exhibits 6 and 7. Robert and
Anthony are listed in the articles of incorporation as the two
initial directors. A stock certificate in Robert’s name reflects
his ownership of all 50,000 shares of Construction’s stock.
Robert admittedly selected Construction’s name to take advan-
tage of the fact that the name had “been . . . around since
1920.” There is no dispute about the fact that Construction
operated from the same location as Company; utilized the same
telephone number; retained the same distinctive logo on its
letterhead, vehicles, and equipment; and, judging from succes-
sive telephone book advertisements; engaged in precisely the
same type of work. General Counsel’s Exhibits 23 and 24.7 In

6 Given the overall evasive nature of Anthony’s testimony, I infer
from Anthony’s purported lack of recollection that Reliable Construc-
tion Company, Inc. was never incorporated.
7 John Prilika worked for both Company and Construction as a jour-
neyman electrician. He testified that there were significant differences
between the two companies in terms of the types of work they pursued.
the ensuing months, Company’s Colorado electrical contrac-
tor’s license was transferred to Construction.
Robert serves as the president and treasurer of Construction
and Anthony serves as its vice president. Although Anthony
acknowledged his status as Construction’s vice president, he
asserted repeatedly at this hearing that his title was a mere
technicality. Nevertheless, he devotes fulltime to his duties
with Construction and serves as Construction’s master electri-
cian, the key to Construction’s ability to operate as an electrical
contractor. In mid-1990, John Prilika, Robert’s brother, be-
came Construction’s corporate secretary. Robert and John are
now Construction’s corporate directors.
Acting in their capacity as Construction’s board of directors,
Robert and John annually executed a “Unanimous Consent”
document electing themselves to the aforementioned offices,
Anthony to the vice president’s office and fixing their “annual
salaries.” See General Counsel’s Exhibit 84. These documents
fixed their 1991, 1992, and 1993 Construction salaries as fol-
lows: Robert–—$40,000; Anthony—$44,200; and John—
$32,000. Nevertheless, Anthony claims that he receives no
compensation for his services at Construction; instead he pur-
portedly applies the amount of his weekly check (presently
$850 per week payable to him or his wife) against his out-
standing loans to Construction. The “Unanimous Consent”
documents are silent as to this arrangement.
Robert asserts sole ownership of Construction and Anthony
denies that he ever had any ownership interest in Construction.
A massive paper trail disputes their current claims. For exam-
ple, Construction’s Federal income tax returns for the years
1990 and 1991 both reflect an ownership split between An-
thony and Robert of 75 and 25 percent, respectively, the same
ownership split which existed at Company after Robert re-
turned in 1988. General Counsel’s Exhibit 16 at p. 2; General
Counsel’s Exhibit 17 at p. 2. On a Small Business Administra-
tion (SBA) loan application forms dated in September 1992,
Anthony and his wife Kathy declared that they own 37,500
shares of “Reliable Electric Const., Inc.” worth $300,000
“based upon 12/31/91 book value” and Robert declared that he
owned 12,500 shares of “Reliable Electric Construction, Inc.”
worth $100,000 “based upon book value of 100,000 at
12/31/91.” Robert further declared that these shares had been
gifted to him. General Counsel’s Exhibits 39 and 40. The
statement of financial condition as of December 31, 1991, pre-
pared for Anthony and Kathy Prilika lists one of their assets as
“Reliable Electric Construction, Inc.,” valued at $300,000.8
General Counsel’s Exhibit 58. Anthony stated in a 1992 depo-
sition provided to the General Counsel that he owned 75 per-
cent of Construction even though he claimed at the time that it
was merely security for the loans he had made to that firm.
General Counsel’s Exhibit 15.
Construction’s initial complement of employees unques-
tionably came directly from Company. Thus, a comparison of

According to John, Company’s principal business involved service
work whereas Construction was primarily a commercial and industrial
electrical contractor. Thus, John claimed that Company had 18 service
vans but Construction only had 1. Regardless of the veracity of his
claim about the vans, I do not credit his claim that Construction’s work
differed considerably from Company’s. Other independent evidence
demonstrates that Company also performed a substantial amount of
commercial and industrial contracting work over the years.
8 Presumably, this statement of financial condition served to support
the claim made in the SBA loan application as the two are parallel.
RELIABLE ELECTRIC CO. 719
Company’s unemployment insurance tax report for the first
quarter of 1990 and the same report of Construction for the
second quarter of 1990 shows that Construction employed 17 of
the 19 individuals (including Robert and John Prilika) who had
been employed by Company in the first quarter. (GC Exh. 8 at
pp. 15–16; GC Exh. 10 at pp. 1–2; and GC Exh. 9 at p. 8, show-
ing Construction employed 17 individuals subject to the tax
during the payroll period which included the week in which
April 12 fell. See also R. Exh. 13.) An unemployment insur-
ance tax report filed in September 1990 and signed by Anthony
reflects that Company had no employees after January (GC
Exh. 8 at p.13) and the agency’s records lists Company’s ac-
count as “inactive” as of March 31, 1990. General Counsel’s
Exhibit 8 at p. 2. All told, Construction employed 72 individu-
als during the 1990 calendar year. The bulk of these individu-
als were obviously employed intermittently or for limited peri-
ods typical in the construction industry.9 Construction’s em-
ployee wage rates and benefits appear to have been virtually
identical to Company’s during this transition.
Robert claims Company “orally” assigned all of its work in
progress to Construction when it commenced operating on
March 15, and that the general contractors involved consented
to these oral assignments. One project commenced by Com-
pany and completed by Construction involved the electrical
subcontract at the Longmont Life Care Center. Richard Storck,
owner of Storck Development Corporation and the general
contractor at the Longmont job, testified that he never con-
sented to the transfer of the electrical subcontract on that job
from Company to Construction. In fact, Storck testified that he
had never heard of Construction until contacted by the General
Counsel about this case.
In the years preceding its demise, Company had also per-
formed electrical subcontracting work for Pinkard Construction
on at least one occasion. In May 1990, Robert, assertedly act-
ing on behalf of Construction, submitted a proposal to Pinkard
for electrical work on a job known as the St. James Project,
Phase I. However, the cover letter for that proposal is written
on Company’s letterhead and the signature block, signed by
Robert as president, uses Company’s name. Among other
items transmitted with the proposal is a document titled “Finan-
cial Statements for the years 1988, 1989,” which clearly sets
out Company’s financial position and not Construction’s. Gen-
eral Counsel’s Exhibit 89.
Mark Olesen, Pinkard’s project manager on the St. James
job, testified that he had no recollection of any notice that
Company had gone out of business or had closed its doors as
the Prilikas claim here. Indeed, Olesen directed a raft of
change order proposals addressed to Company that run into the
1991 calendar year. General Counsel’s Exhibit 91. However,
Olesen testified that, in preparation for testifying at this hear-
ing, he discovered a December 1990 notice to his firm’s ac-
counting department requesting that checks for the St. James
project payments under the electrical subcontract be made pay-
able to Construction.
Robert also testified that Construction, rather than Company,
performed the electrical subcontracting work at that Brecken-
ridge Town Square project. Nevertheless, other evidence shows

.

9 Thus, 7 earned $1000 or less; 15 earned $1001 to $2000; 13 earned
$2001 to $4000; 13 earned $4001 to $6000; 3 earned $6001 to $8000; 2
earned $8001 to $10,000; and 18 earned more than $10,000. Of the 18
earning more than $10,000, 12 worked for Company in the first quarter
of 1990. See GC Exh. 82 and GC Exh. 8 at pp. 15–16.
that a surety bond for that work issued in late May 1990 bear-
ing Company’s name covering a subcontract entered into be-
tween M. A. Mortenson, the general contractor, and “Reliable
Electric.” General Counsel’s Exhibit 93.
After Construction commenced operations, Robert typically
corresponded with contractors, suppliers, and others as the
president of Construction and Anthony typically used his title
as vice president. In a few notable instances, however, An-
thony signed documents using other titles or making represen-
tations relating to his position at Construction. Thus, in a nota-
rized document included as a package of materials transferring
ownership of certain vehicles from Blair Electric to Construc-
tion so that the Westminster Bank could record a security inter-
est against them as collateral for Construction’s new credit line,
Anthony states that he is the “principal of Blair Electric” and
“also the principal of Reliable Electric Construction, Inc.”
General Counsel’s Exhibit 44. On other occasions, Anthony
signed documents for Construction using the title “CEO.”
General Counsel’s Exhibits 9, 37, and 38. And in a letter pur-
portedly submitted to a bonding company used by Construc-
tion, Anthony stated that in the event of his death Robert “will
assume complete control of Reliable Electric Const., Inc.”
General Counsel’s Exhibit 42.
Robert claims that he financed Construction’s startup mainly
with $105,000 in “prebillings” received before it commenced
operation. This assertion lacks any documentary support or
other form of corroboration. Anthony admittedly contributed
considerable financial support to start Construction. By his
own admission, the degree of his and his wife’s financial in-
volvement with Construction’s startup, purportedly in the na-
ture of loans, reached somewhere from $180,000 to $200,000
in cash, equipment, and supplies.10 No loan documents exist to
memorialize these financial contributions. According to Rob-
ert, he and his father have a dispute about the amount of his
parents’ contribution to Construction. During a 1992 deposi-
tion provided to the General Counsel, Robert could not state
when Construction would complete the repayment of his par-
ents’ loans under the system adopted or agreed to by Anthony
of applying his weekly $850 payment to reduce that loan nor
could he identify any documents which would aid in that
calculation
Both Robert and Anthony executed continuing guaranty
agreements on December 8, 1989, personally guaranteeing the
payment of a new $75,000 line of credit for Company at the 1st
National Bank of Westminster in Westminster, Colorado
(Westminster Bank). As a precondition for extending this line
of credit Westminster Bank required Company to obtain a re-
lease of certain outstanding Internal Revenue Service liens
against Company dating back to 1986 so the bank could “have
a valid first lien position on all accounts, accounts receivable,
inventory and equipment.” Grail Kister, Westminster Bank’s
vice president in charge of business loans, explained in a No-
vember 16, 1989 letter to the Prilikas that even though they
were “renaming the company to Reliable Electric Construction
Co., Inc. and placing it under a holding company [by the] name
of A&R Investments” this action would “not eliminate the lien
10 Eric Jonson, a certified public accountant retained by Anthony for
a period of time beginning in August 1991, testified that, based on his
conversations with Anthony, he booked the value of the fixed asset
contributions to Construction at $22,000 and the value of the supplies
contributed at $104,000. Jonson could recall no mention of cash con-
tributions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
filing by the IRS” against Company. General Counsel’s Ex-
hibit 27. Kister testified that the Prilikas discussed A & R in
the context of a holding company arrangement for estate plan-
ning purposes in one of their first meetings early in November
1989 preliminary to establishing a banking relationship.11 In
any event, Robert Prilika furnished Westminster Bank with a
release of lien document obtained from the IRS in order to
complete the transaction somewhere around December 12,
1989 (GC Exh. 27), and the line of credit documents were exe-
cuted on December 19, 1989.12 General Counsel’s Exhibits 29,
30, 31, and 32.
A business checking account was also opened at the West-
minster Bank on December 8, 1989, concurrent with Com-
pany’s efforts to obtain a new line of credit at that bank. (GC
Exh. 21.) Although this checking account bore Company’s tax
identification number (Compare: GC Exh. 21 and GC Exh. 27,
Certificate of Release of Federal Tax Lien), this account was
opened in the name of “Reliable Electric Construction, Inc.”
Regardless, Company’s current income receipts were clearly
deposited in that account. Thus, on December 20, a deposit
was made to this account in the amount of $16,059.97. On
December 28, another deposit was made to this account in the
amount of $7582.30. Copies of the checks, cash ticket, and
deposit slips underlying those two deposit transactions reflect
that all of the checks deposited were made payable to Company
or endorsed with Company’s stamp. Although the generic
deposit slips both bear Company’s name (one written in hand,
the other stamped), the preprinted account number on the de-
posit slip is for the account in Construction’s name. Immedi-
ately thereafter, four additional deposits—with Company’s
name stamped on the deposit slips—were made to this account
on December 29 ($4,173.56), January 3 ($3,808.79), January 5
($4,049.51), and January 16 ($25,257.69). General Counsel’s
Exhibits 103 and 104. The customer checks underlying all
those deposits were either made clearly payable to Company or
endorsed using Company’s endorsement stamp. Beginning
with a January 26, 1990 deposit, a preprinted deposit slip bear-
ing Construction’s name and account number was utilized for
the deposits to this account. Between January 26 and February
23, 1990, seven more deposits of checks totaling $93,051.40
payable to Company or endorsed with Company’s stamp were
made to Construction’s account at Westminster Bank. General
Counsel’s Exhibits 104 and 105. Robert explained that these
deposits resulted from a mistake the bank made in printing
deposit slips and that these deposits should have gone into an-
other account at Westminster Bank, presumably belonging to
Company. There is no evidence that this mistake was rectified
by corresponding deposits to an account belonging to Com-
pany. In fact, there is no evidence that either Construction or
Company had any other account at the Westminster Bank apart
from a savings account in Construction’s name.13

11 A & R Investments was incorporated in October 1989. John and
Nancy Prilika, both children of Anthony and Kathy, were its inital
directors. Kathy Prilika apparently has apartment house investments.
John testified that “A & R” stood for Accurate and Ready Investments,
an entity he formed to do maintenance and electrical work for apart-
ment owners that never got off the ground due mostly to the high cost
of liability insurance.
12 Later in June 1990, Construction established its own line of credit
at the Westminster Bank personally guaranteed by Robert and Anthony.
13 At one point, Westminster Bank Vice President Kister testified
that he thought there were two checking accounts as he recalled some
Moreover, throughout the first quarter of 1990, payroll
checks for Company’s employees were drawn on Construc-
tion’s Westminster Bank account. General Counsel’s Exhibit
88. Linda Hill, the bookkeeper for both Company and Con-
struction, could not explain why Company’s payroll was paid
from Construction’s account and she knew of no other account
which could have been used to write the payroll checks. Robert
asserted that this occurred because of prior planning on his part
in setting up his own company. This prior planning, however,
did not extend to the purchase of workers compensation insur-
ance by Construction as that was not done until late May 1990,
more than 2 months after at least 17 employees commenced
working for Construction.
In addition, Robert identified at least one check from this ac-
count of Construction as a payment on Company’s line of
credit at the Westminster Bank even though he claimed Con-
struction never had access to Company’s Westminster Bank
credit line.14 And as previously noted, a series of checks were
drawn on Construction’s Westminster Bank account to Reliable
Construction (the dormant general contracting company owned
by Anthony) or the United Bank of Lakewood and a series of
Reliable Construction checks were drawn on its United Bank
account for equal amounts payable to the Internal Revenue
Service. Robert explained that for a period of time after Con-
struction began operating, it put money into the Reliable Con-
struction checking account and then Reliable Construction paid
the payroll withholding taxes for Construction’s employees.
Robert had no explanation whatsoever for this procedure and
even conceded that the whole process appeared to be unneces-
sary paperwork.
Apart from Anthony, Construction obtained or made numer-
ous loans to members of the Prilika family and others with
whom they have business associations. Thus, in the course of
identifying the purpose of specific checks, Robert testified that
Construction made a $2500 loan to John, that he had loaned
Construction approximately $23,000, and that an entity known
as P & P Development, owned by his mother and an Dr. John
Popov, and managed by Anthony, had loaned money to Con-
struction. As in Anthony’s case, no loan documents exist in
connection with these loans.
Over the years, Cashway Electric Supply Co., Inc. (Cash-
way) served as one of Company’s sources for electrical sup-
plies in its construction and remodeling work. Construction
also purchased supplies from Cashway after it commenced
business in March 1990. Cashway’s records reflect that Com-
pany and Construction purchased supplies in the following

confusion at the time. However, Kister further testified that he had
little to do with this operational side of his bank’s business and other-
wise expressed such a degree of uncertainty about the existence of two
checking accounts that I am unable to rely on his testimony to conclude
that both Company and Construction had overlapping checking ac-
counts at that institution. Even assuming that some of Company’s
records were destroyed, the existence of two separate checking ac-
counts could easily have been resolved conclusively with other evi-
dence but it never was.
14 No conclusive evidence was produced to contradict this claim.
However, there is evidence that raises serious suspicions. Thus the
balance sheet submitted with Construction’s Cashway credit applica-
tion (GC Exh. 78) reflects a negative balance in the Westminster check-
ing account that exceeds $12,000 in March 1990, prior to Construc-
tion’s separate line of credit at that bank. It is inconceivable to me that
the bank would have permitted such a development without some alter-
nate source of funds.
RELIABLE ELECTRIC CO. 721
amounts: 1987—$338,539.32; 1988—$163,502.25; 1989—
$167,215.03; 1990—$342,083.16; 1991—$340,118.47;
1992—$388,952.28; 1993–$426,091.60; 1994 (through Oc-
tober) $780,659.92. General Counsel’s Exhibit 79.
On July 9, 1990, Robert filed a credit application with
Cashway in Construction’s name. Attached to that application
is a balance sheet and a “consolidated” profit-and-loss state-
ment as of March 1990, the first month Construction purport-
edly operated.15 Robert claimed that these financial statements
belonged to Construction. If so, according to the balance sheet
Construction appears to have been in quite good shape during
its first month of operation as it had total assets of $961,410.87
and total liabilities of $115,429.69. General Counsel’s Exhibit
78. In addition, the profit-and-loss statement lists Construc-
tion’s income for the period of January through March 1990 at
$419,100.95.
One of the final financial statements prepared for Company
and an early financial statement prepared for Construction pre-
sent the following picture. In the first place, Construction’s
financial statement (GC Exh. 96) purports to cover the 1989
and 1990 calendar years even though it was not incorporated
until March 15, 1990. Moreover, virtually all of the 1989 en-
tries in Company’s financial statement (GC Exh. 51) are identi-
cal with the entries in Construction’s financial statement for the
same year. Note 1(a) to Construction’s financial report states
that although it has been in business since 1920, “it has been
owned by the Prilikas since 1975.” General Counsel’s Exhibit
96 at p. 5. Further, footnote 3 to Construction’s financial
statement states: “The Company had no tax liabilities after
using netoperatingloss carry forwards from prior tax
years.” General Counsel’s Exhibit 96 at p. 6. (Emphasis
added.) No evidence shows that Construction, independently,
had “prior tax years” before 1990, the last year covered by this
financial report.
Robert denies that he knew anything about the underlying
case until the General Counsel telephoned him in 1992 de-
manding that Construction comply with the terms of the
Board’s Order. John Prilika denied that his father had ever
talked to him about this case but admitted that some of the six
discriminatees had mentioned to him over the years that they
were “suing” his father.
B. Further Findings and Conclusions
1. Credibility
In determining the relevant facts above and the conclusions
below, I have given no credence to the testimony of Anthony
and Robert explaining the demise of Company and the found-
ing of Construction except where their testimony has substan-
tial corroboration from other sources, is uncontested, or
amounts to a clear statement against interest. In the main, their
testimony is evasive, contradictory, unresponsive, and, in my
judgment, blatantly self-serving.
Both Anthony and Robert went to astonishing lengths in
their incredible effort to explain away the critical documentary
evidence proffered by the General Counsel. Thus, both An-
thony and Robert claim that they signed the SBA loan applica-
tions in blank in order to suggest that their own statements of
Construction’s ownership division between them had been
erroneously entered on the forms by someone else. The same

15 No indication was provided as to why the profit-and-loss state-
ment was treated as “consolidated.”
ownership division appearing on the Federal income tax returns
is, according to Robert, a mistake attributable to Anthony (to
whom he delegated the duties of preparing the tax returns and
the equally mystifying financial statements) that he did not
discover until deposed by the General Counsel in 1992. An-
thony engaged in argumentative bickering with counsel for the
General Counsel over the meaning of the word “principal”
when confronted with the vehicle transfer documents. Robert
explained that Construction actually paid for those particular
vehicles but his Machiavellian father titled them in the name of
Blair Electric “[s]o he could have control over me.” Anthony
accounted for the “CEO” designation on the city of Lakewood
form by speculating that the form had probably been prepared
for Robert’s signature. After CPA Eric Jonson testified that he
had obtained the information for the Prilikas December 1991
statement of financial condition (reflecting their majority inter-
est in Construction) from Anthony and his wife, Anthony at-
tempted to suggest that the accountant may have misunderstood
him because of his accent, presumably Serbo-Croatian, a very
improbable circumstance.
Their lack of veracity even extends to relatively minor mat-
ters. When asked to identify Linda Hill, Anthony attempted to
suggest that she had worked for Company for a relatively short
time when in fact she had been employed continuously by
Company and Construction since September 1989.16 When
asked if Robert was the vice president of Company in April
1997 as reflected in one exhibit, Anthony testified, “I don’t
know.” Robert claimed that a mistake was made on his own
personal resume in that it reflects that he has been employed
continuously for “Reliable Electric Construction, Inc.” for the
periods from May 1976 to February 1987 and again from Au-
gust 1988 to the present. John’s resume contains a similar ref-
erence and he too claimed mistake.
Finally, the fundamental premise, underlying Respondents’
whole argument, that Company spent 1989 and the early part of
1990 completing work in anticipation of closing lacks a credi-
ble quality. Thus, the evidence shows that Company com-
menced its work at the Longmont project in late 1989 and,
according to Robert, commenced the bid preparation work in
early 1990 for the St. James Place project. It strikes me as
highly improbable that a company engaged in closing up shop
would engage in these relatively major undertakings.
2. Construction’s liability
A “mere technical change in the structure or identity of [a
successor] employing entity . . . without any substantial change
in ownership or management” may result in the conclusion
“that the successor is in reality the same employer . . . subject
to all the legal and contractual obligations of the predecessor.”
Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 259 fn.
5 (1974). Identical ownership is not the sine qua non of the
alter ego concept. The Board has found an alter ego relation-
16 Anthony’s testimony to which I refer is as follows:
Q. Have you ever seen Linda Hill's signature before?
A. Yes.
Q. Has she ever been an employee of Reliable Electric Com-
pany, Inc.?
A. She was for some period of time. Not very long.
Q. How long did she work there?
A. I don't know. Maybe two or three months. Maybe less.
Q. It wasn’t any more than two or three months?
A. Probably one, I'm not sure. I can't testify to that. I don't
know.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
ship between nominally separate entities where the two enter-
prises have substantially identical management, business pur-
pose, operation, equipment, customers, and supervision. Craw-
ford Door Sales Co., 226 NLRB 1144 (1966).
In Golden State, supra at fn. 5, the Supreme Court held that a
bona fide purchaser who acquires the “employing enterprise
which was the locus of the unfair labor practice” with knowl-
edge that the “wrong remains unremedied” may be held respon-
sible for the remedy. In reaching this conclusion, the Court
relied heavily on its prior observations in Regal Knitwear Co. v.
NLRB, 324 U.S. 9 (1945), that a Board remedial order may
apply “in appropriate circumstances . . . [to] those to whom the
business may have been transferred, whether as a means of
evading the judgment or for other reasons.” Based on the prin-
ciples of these cases, I conclude that liability to remedy Com-
pany’s unfair labor practices extends to Construction.
In my judgment, it is unnecessary to resolve the question of
Construction’s true ownership as the evidence detailed above
establishes conclusively that Construction is Company’s suc-
cessor under either the Regal Knitwear or Golden State doc-
trines and its alter ego. Even if Robert’s putative ownership of
Construction is accepted, I would still conclude that Construc-
tion is Company under the Crawford criteria. Both retained
their essential character as closed corporations with only a
slight rearrangement of corporate officers—all within the
Prilika family—and a slightly different name. Apart from that,
Construction, admittedly seeking to maintain the name recogni-
tion resulting from an operation that spanned half a century,
continued Company’s operations from the same location with
the same management, supervisors, core employees, and, in the
main, the same suppliers in order to complete Company’s work
in progress before moving on to other available jobs as Com-
pany undoubtedly would have done had Construction never
existed. In addition, the early history of Construction’s West-
minster bank account discloses conclusively, in my judgment,
that Construction is little more than a new name for Company.
Even assuming that Construction may focus on some different
areas of electrical contracting as claimed, that minor change in
focus has no legal significance.
But regardless of the conclusion that I have reached about
Construction’s alter ego status, Construction undoubtedly quali-
fies as a successor with knowledge responsible for remedying
Company’s unfair labor practices. Even though I do not credit
Robert Prilika’s claim that he lacked knowledge of this case
until contacted by the General Counsel in 1992, I find that Rob-
ert’s prior knowledge of this remedial order, or lack thereof, is
really of no moment. Clearly Anthony, an officer, director, and
active in the management—whether in the form of his own
personal assets or that of Company’s which he controlled—
knew of the Board’s Order. For these reasons, Anthony’s
knowledge is imputable to Construction for purposes of a
Golden State–Regal Knitwear analysis. See, e.g., Sahara Las
Vegas Corp., 284 NLRB 337, 341–342 (1987), imputing
knowledge of an unfair labor practice charge to successor
where predecessor’s lawyer disclosed its existence to succes-
sor’s lawyer during sale negotiations. Accordingly, I will rec-
ommend that the Board hold Construction jointly and severally
liable with Company for the backpay due here. I will also rec-
ommend that the Board order Construction to offer reinstate-
ment to those living discriminatees who have not yet removed
themselves from the labor market.
3. Anthony Prilika’s personal liability
In White Oak Coal, 318 NLRB 732 (1995), the Board
adopted the following two-pronged test, derived from Federal
common law and applied in NLRB v. Greater Kansas City
Roofing, 2 F.3d 1047 (10th Cir. 1993), for piercing the corpo-
rate veil to impose personal liability on a shareholder:

Under Federal common law, the corporate veil may be
pierced when (1) there is such unity of interest, and lack of
respect given to the separate identity of the corporation by
its shareholders, that the personalities and assets of the
corporation and the individuals are indistinct, and (2) ad-
herence to the corporate form would sanction a fraud,
promote injustice, or lead to an evasion of legal obliga-
tions.
When assessing the first prong to determine whether
the shareholders and the corporation have failed to main-
tain their separate identities, we will consider generally (a)
the degree to which the corporate legal formalities have
been maintained, and (b) the degree to which individual
and corporate funds, other assets, and affairs have been
commingled. Among the specific factors we will consider
are: (1) whether the corporation is operated as a separate
entity; (2) the commingling of funds and other assets; (3)
the failure to maintain adequate corporate records; (4) the
nature of the corporation’s ownership and control; (5) the
availability and use of corporate assets, the absence of
same, or undercapitalization; (6) the use of the corporate
form as a mere shell, instrumentality or conduit of an indi-
vidual or another corporation; (7) disregard of corporate
legal formalities and the failure to maintain an arm’s
length relationship among related entities; (8) diversion of
the corporate funds or assets to noncorporate purposes;
and, in addition, (9) transfer or disposal of corporate assets
without fair consideration.
When assessing the second prong, we must determine
whether adhering to the corporate form and not piercing
the corporate veil would permit a fraud, promote injustice,
or lead to an evasion of legal obligations. The showing of
inequity necessary to warrant the equitable remedy of
piercing the corporate veil must flow from misuse of the
corporate form. Further, the individuals charged person-
ally with corporate liability must be found to have partici-
pated in the fraud, injustice, or inequity that is found.

Adherence to corporate formalities is virtually nonexistent
throughout this case. Moreover, nearly all of this renegade
conduct is attributable to Anthony Prilika. Loans by the
Prilikas to Construction are undocumented and of uncertain
amounts so that the actual amount of Anthony Prilika’s equita-
ble interest in Construction can be ascertained with only a mar-
ginal degree of certainty. No real records exist which would
allow a determination of the actual market value of the contri-
bution in equipment and supplies from Company to Construc-
tion. Company’s funds were deposited in Construction’s ac-
count before Construction commenced any operations or per-
formed any work. Company’s employees were paid from funds
in Construction’s accounts. Tax returns purportedly contained
erroneous statements of ownership although I seriously doubt
that. Accounting records obviously commingled the assets of
Construction and Company, and were used in obtaining credit
and bonding for Construction, an otherwise seriously under-
capitalized entity. Full disclosure of corporate identities were
RELIABLE ELECTRIC CO. 723
not made to important customers and the corporate designation
was used for substantial periods before incorporation occurred
in Construction’s case and not at all in the instance of Reliable
Construction, the entity through which tax withholding pay-
ments were made. Construction allowed Anthony to treat his
salary compensation as a loan repayment and vehicles purport-
edly purchased with Construction’s money were titled in the
name of another Prilika entity owned and controlled by An-
thony. In sum, I conclude that ample evidence exists to support
the conclusion “that the personalities and assets” of Company,
Construction, and Anthony Prilika “are indistinct.”
Would the failure to pierce these corporate veils permit a
fraud, promote injustice, or lead to an evasion of legal obliga-
tions? In my judgment, that question deserves an affirmative
answer. In essence, Company, the corporate entity liable under
the Board’s original order, has vanished but its substantive core
continues as Construction, a corporate entity so recklessly man-
aged that even its actual ownership cannot be ascertained with
certainty. However, it is abundantly clear that Anthony’s equi-
table interest and personal involvement in Construction is so
pervasive that it is unlikely it would have existed or would
continue to exist without his personal backing. The evidence in
this case shows that Anthony obviously infused Construction
with the necessary cash, supplies, and equipment—some of it
his own, most of it Company’s—to permit its operation without
regard to corporate formalities or candid disclosures to tax and
regulatory authorities, retained accounting professionals, credi-
tors, insurers, customers, or employees. Should Anthony de-
cide to withdraw that support, Construction would likely be-
come another empty shell and its legal obligations, including
the backpay liability in this case, would go unsatisfied. Where,
as here, the evidence implicates Anthony personally in avoid-
ance schemes, such as using the net-loss carryovers obviously
generated by his defunct corporation to offset the tax liability of
an ongoing enterprise he now claims he does not own, an ex-
treme risk of fraud, injustice and disregard for legal obligations
exists if the law fails to look beyond the corporate veils he has
constructed and perpetrated. Accordingly, I will recommend
that the Board hold Anthony personally liable, jointly, and sev-
erally, with Company and Construction for the backpay due in
this case.
III. THE BACKPAY COMPUTATION
The calculation of the gross backpay is the beginning point
in the computation of backpay for unlawfully discharged em-
ployees. The term “gross backpay” refers to an approximation
of what an employee would have earned absent the unlawful
discrimination. As the gross backpay due often cannot be de-
termined with scientific precision, the General Counsel need
only employ a formula designed to produce a reasonable ap-
proximation of what is owed. Intermountain Rural Electric
Assn., 317 NLRB 588, 591 (1995), enfd. in an unpublished
order and judgment in No. 95-9529 (10th Cir. Apr. 22, 1996).
Here, the compliance officer, Cynthia Renkel, was particularly
hampered in the calculation of the gross backpay because no
payroll records were furnished to aid in the computation of the
gross backpay until shortly before this hearing.
Nevertheless, the compliance officer’s backpay formulation
here is a standard calendar quarterly computation provided for
in F. W. Woolworth Co., 90 NLRB 289 (1950), with offsets for
net interim earnings. Respondents do not challenge the few
offsetting expenses in arriving at the net interim earnings. To
determine the quarterly gross backpay, the compliance officer
multiplied the imputed quarterly hours by the applicable con-
tract rate for all periods prior to June 1, 1984, and by $16 per
hour thereafter.17 As none of the discriminatees have been
offered reinstatement, the General Counsel contends that back-
pay continues to accrue unless tolled for some other reason.18
Although Respondents do not challenge the compliance offi-
cer’s basic gross backpay methodology, i.e., imputing 40 hours
of work per week to each discriminatee and multiplying the
resultant quarterly hours by an imputed wage rate, they do
make a number of specific challenges to the gross backpay
computation. First, Respondent argues that as all of the dis-
criminatees were referred from the Union’s hiring hall for work
on Company’s projects at the Rocky Flats Nuclear Weapons
Facility or the city of Westminster Municipal Center, backpay
should be tolled when those projects were completed as all of
the discriminatees would have been laid off and never referred
again to Company as it had legitimately become an “open
shop.” Second, Respondents alternatively argue that liability
should end as of June 1, 1984, on the theory that Company
would have been entitled to repudiate the commercial agree-
ment at that time and, as shown in the underlying case, the
discriminatees would not have worked for a nonunion shop.
Third, the imputed hourly rate used in the computation of gross
backpay should be $12 rather than $16 as the former is the
highest journeyman rate paid by both Company and Construc-
tion in succeeding years. Fourth, no basis exists for including
medical expenses after June 1, 1984, as neither Company nor
Construction provided health benefits to their employees. And
fifth, certain individual circumstances warrant the adjustment
of the gross backpay and interim earnings of discriminatees
Knoke, Holcomb, Jackson, and Wittwer.
Before turning to those specific contentions, I find that the
Acting Regional Director acted reasonably in the circumstances
by imputing 40 hours of work to the discriminatees throughout
the backpay period in making the gross backpay computation.
It would appear that he had little other choice because Com-
pany failed to furnish pay records to aid in the backpay compu-
tation, despite repeated demands that it do so, until shortly be-
fore the hearing. Anthony Prilika explained that those records
had not previously been furnished as required under Section
2(d) of the Board’s enforced order (286 NLRB at 837) because
the originals had been destroyed during a basement flood at the
South Broadway premises in July 1990. He furnished an insur-

17 The hourly rate for journeymen electricians under the commercial
agreement was $17.85. The compliance officer applied that rate for all
hours in the first and second quarters of 1984 until June 1 in calculating
the backpay for Belshe, Holcomb, Jackson, and Knoke. She did not
similarly apply that rate for the same period in MacIntyre’s calculation.
This appears to be an inadvertent error as no explanation appears for
not having treated him similarly. Accordingly, I have corrected this
apparent error in the recalculations I have made below. As Wittwer did
not complete his apprenticeship until August 1994, the compliance
office applied the appropriate apprentice rate from the commercial
agreement in calculating his gross backpay for that period.
18 Thus, Belshe is dead. Holcomb fully retired as of December 1989.
Jackson retired December 1, 1994, but his retirement was made retroac-
tive to June 1994 when he ceased active employment due to his poor
health. Obviously, Belshe’s backpay has been tolled. I further find that
Jackson’s backpay has been tolled as his retirement resulted from seri-
ous illnesses. Although Holcomb’s situation is less clear due to his
inability to find work at that time, I likewise conclude that the accrual
of backpay has tolled in his case also.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
ance agent’s letter which corroborates that Company’s records
were destroyed. (R. Prilika Exh. 2.) He further explained that
a copy of those records (R. Exhs. 29 through 34—Company’s
individual earnings records from 1984 through 1989) were
located in his former attorney’s files shortly before the hearing
and were promptly furnished. This latter explanation only
makes matters worse. Once the court of appeals enforced the
Board’s Order, that attorney must have known, or should have
known, that the production of records to aid in this computation
ceased to be a matter of voluntary cooperation and became a
legal duty.19 Although I have now received those records in
evidence and have utilized the 1984 records (R. Exh. 29) in
certain recalculations pertaining to the first and second quarters
of that year, I have concluded that neither I nor the Acting Re-
gional Director have a legal obligation to further delay this
matter in order to revise the entire 2-inch thick backpay compu-
tation because Company belatedly furnished records required
under the terms of a court order.20
A. The Tolling Issues
I reject the claims that the backpay period should be tolled
by the completion of Rocky Flats or Westminster jobs, or by
the termination of the commercial agreement on June 1, 1984.
Even assuming that these employees were originally referred to
Company for employment at these projects, Respondents ad-
duced no evidence (other that certain self-serving assertions by
Anthony which I do not credit) to support its claim that the six
employees at issue were hired solely for those two projects or
that all others employed there were laid off when those projects
ended. Instead, the offers Anthony made to these employees in
January 1984 strongly suggest that he contemplated their con-
tinued employment. Moreover, Judge Litvack’s findings in the
underlying case undermine the claim that these employees had
been hired for particular jobs. 286 NLRB at 842 fn. 18. Hence,
I find that Respondents failed to meet their burden of showing
that these six employees, or any one of them, would have been
laid off at the completion of those two jobs. Dean General
Contracting, 285 NLRB 573 (1987).
In reaching the foregoing conclusion, I reject Respondents’
premise that the equities lie with it in terminating the backpay
period because it has now been proven that Company had “le-
gitimately gone open shop at that time.” In effect, this claim
asserts it has now been shown that the Board’s original decision
is predicated on an erroneous factual conclusion that Company
was bound to the 1983 commercial agreement. In support,
Respondents rely on the minutes of a joint labor-management
meeting on December 16, 1982, showing that NECA represen-
tatives advised the Local 68 agents that “numerous contractors
. . . have canceled their collective bargaining authorization and
. . . NECA is therefore not representing [them].” The list of
those contractors included Company. (R. Exh. 35.) These
minutes are obviously the minutes Anthony referred to in a

19 I intend no aspersions on the conduct of Attorney Collyar. Indeed,
he was obviously instrumental in the production of the pay records and
his conduct at this hearing was otherwise exemplary.
20 Even if such a massive recalculation were undertaken, it is not at
all certain that appreciable differences would result. Thus, the pay
records might facilitate the use of a replacement group theory to deter-
mine the hours which should be credited to the discriminatees through-
out the backpay period. However, pursuit of that theory could lead to
adjustments of the applicable hourly rates for those occasions when
Company would have been obliged to pay higher prevailing wage rates.
December 8, 1983 letter to Local 68 Agent Heffernan that is
quoted in Judge Litvack’s decision. 286 NLRB at 841.
The Board’s original decision makes clear that the thread
binding Company to the 1983 commercial agreement was not
Company’s membership in NECA. Rather, Company’s obliga-
tions under the 1983 commercial agreement arose from its exe-
cution of the Letter of Assent-A in 1976 and its failure to
timely notify the Local 68 or NECA in writing, as required by
its terms, that it wanted to terminate its 1976 Letter of Assent-
A. Based on Judge Litvack’s findings, the Board concluded
“no such notice [terminating the Letter of Assent-A] had been
given at the time the . . . commercial agreement was executed
or the following winter when [Company] repudiated that
agreement. 286 NLRB at 836. In his decision, Judge Litvack
discussed at length other evidence similar to the December 16
minutes Respondents’ fashion their current argument from and
concluded, nonetheless, that the evidence failed to show that
Prilika properly terminated the 1976 Letter of Assent-A.21
Respondents’ further claim that the backpay should be tolled
as of June 1, 1984, on the theory that Company could have
lawfully repudiated the agreement as of that date would require,
in effect, that I rewrite the Board’s remedial order in this case
which I lack authority to do. Lenz Co., 153 NLRB 1399
(1965). This argument also ignores the fundamental fact that
the remedial action in this case has now been twice considered
by the Board. The Board’s Order as it now stands unmistaka-
bly contemplates a remedy for the six discriminatees involved
here beyond that time when Respondent could have lawfully
repudiated the commercial agreement. Consequently, I am
bound to give effect to that requirement.
B. The Gross Backpay Hourly Rate
Compliance Officer Renkel testified that, as she had no ac-
cess to Company’s pay records, she concluded on the basis of
her investigation that the $16 hourly rate used was the prevail-
ing journeyman’s rate in the Denver area among nonunion
shops. Likewise, Renkel assumed that since Company paid for
a medical benefits plan under the commercial agreement, it
substituted another plan when the agreement was repudiated in
1984.
Based on the pay records that have now been produced, Re-
spondents argue that throughout the period following Com-
pany’s repudiation of the commercial agreement, both Com-
pany and Construction employed electricians in a pay range
from $9 to $12 per hour. Although Respondents concede that it
paid some electricians above this range, they contend that they
did so only in those instances where an individual possessed
additional skills (such as welding) or worked as a foreman.
None of the discriminatees, Respondents assert, were qualified
to serve as a foreman and none had any special skills which
would merit a rate more than $12 per hour. Consequently,
21 Thus, Judge Litvack specifically found that “there is no dispute
that during the November 18, 1982 labor-management committee meet-
ing . . . [NECA director] Massey listed the contractors who had can-
celed their bargaining authorizations to NECA and for whom the asso-
ciation was not bargaining and included [Company] among the enu-
merated contractors.” 286 NLRB at 840. Despite this evidence, Judge
Litvack ultimately concluded that Anthony “never mailed any docu-
ment to NECA, with a copy to the Union”—as he claimed that he had
done—“in which he rescinded Respondent’s prior authorization to
NECA to represent it in bargaining with the Union.” 286 NLRB at
847.
RELIABLE ELECTRIC CO. 725
Respondents believe the backpay computation should be recal-
culated using a $12 rate.
Although the payroll records do reflect that Respondents
paid a number of individuals in the $9 to $12 range, the records
further reflect that Company had already began paying the five
journeymen at a $15-per-hour rate in the last 2 weeks of their
employment. (R. Exh. 29.) In addition, at least two other jour-
neyman electricians, Goodwin and McFarren, who were em-
ployed by Company at the same time were also paid at the con-
tract rate in the first 2 weeks of January 1984 and at the $15 an
hour rate thereafter.22 Moreover, as the underlying case shows,
Anthony specifically offered to employ the discriminatees at
$15 per hour.23 In view of these facts, I reject Respondents’
claim that the gross backpay should be calculated using a $12-
per-hour rate.
However, I have likewise concluded that the compliance of-
ficer’s use of a $16-an-hour rate from the outset of the noncon-
tract period (June 1, 1984) is not warranted. Instead, I find the
most reasonable rate to employ commencing on June 1, 1984,
would be $15 per hour for all discriminatees except Wittwer
and that the rate should be changed to $16 per hour commenc-
ing with the first quarter of 1986. I find that changing the rate
at that time is justified by the evidence pertaining to Steven
Goodwin, the only individual whose employment overlapped
with that of the discriminatees and who remained continuously
employed by both Company and Construction.
Respondents’ claim that Goodwin’s higher rate reflects his
status as foreman. However, at the time the discriminatees
worked at Company, Goodwin received the journeyman elec-
trician’s rate under the contract and, thereafter, $15 per hour
until the first pay period in January 1986, when his rate in-
creased to $16 per hour. Although Goodwin testified that he is
now a foreman, no evidence indicates when he acquired that
status or whether the foreman’s position he now holds was
accompanied by a pay increase. In addition, Goodwin testified
that he still occasionally works as an electrician rather than as a
foreman and that his rate of pay does not change in that circum-
stance. Accordingly, in light of Goodwin’s overlapping tenure
with the discriminatees and the similarity of their pay rates at
that time, I have concluded Goodwin’s increase in 1986 war-
rants adjusting the rate used for the calculating of the gross
backpay from $15 to $16 per hour commencing with the first
quarter of 1986.
In January 1984, Wittwer was an apprentice electrician in
Company’s employ. He completed his 4-year apprenticeship in
August 1984. The compliance officer calculated Wittwer’s
gross backpay for in the amended specification at the hourly
rate of $12.50 for the entire first quarter of 1984, consistent
with the wage rate specified in the commercial agreement for
fourth year apprentices, first 6 months. (R. Exh. 1 at p. 37.)
The compliance officer then calculated Wittwer’s gross back-
pay for the entire 1984 second quarter and 160 hours of the
1984 third quarter using the hourly rate of $14.28 specified in
the commercial agreement for fourth-year apprentices, second 6
months. Thereafter, the compliance officer applied the $16 per
hour rate used in the calculations for the other discriminatees.
However, in calculating the trust fund contributions due on

22 A third individual named Steward was also paid the $15 rate but it
appears that he was the service manager at that time. 286 NLRB at
842.
23 See employment agreement quoted in haec verba by Judge Lit-
vack. 286 NLRB at 843, 844.
Whitter’s behalf, the compliance officer changed Wittwer’s rate
from $12.50 to $14.28 effective March 1984.
Wittwer testified that he became a journeyman in August
1984 but did not specify when his change in status occurred
that month. I have recalculated Wittwer’s gross backpay to
more closely conform to the applicable commercial agreement
and the circumstances described in the underlying case. Thus, I
find that Wittwer would have become eligible for the higher
apprenticeship rate effective February 1984. Accordingly, I
have increased Wittwer’s applicable hourly rate from $12.50 to
$14.28 for 360 hours in the first quarter of 1984. My gross
backpay calculation for the second quarter of 1984 credits
Wittwer with 360 hours at his $14.28 apprenticeship rate and
160 hours (June 1984) at the $15 rate applicable to all remain-
ing discriminatees. In succeeding quarters, I have treated Witt-
wer in the same manner as the other discriminatees.
In my judgment, Judge Litvack’s findings in the underlying
case warrants the application of the $15-per-hour rate to Witt-
wer, a commercial wireman while employed by Company, at
the same time as the other discriminatees rather than applying
the lower apprenticeship rate until August 1984 as the compli-
ance officer has done. Thus, at 285 NLRB at 844−845, Judge
Litvack found that Anthony “gave a blank copy [of the Em-
ployment Agreement specifying the $15 per hour rate] to James
Belshe, instructing him to show it to the other members of his
crew (Holcomb, Bob McFarren, Steven Goodwin and two ap-
prentices, Napoleon Williams and Dale Wittwer).” A separate
employment agreement was tendered to the residential wiremen
specifying an $11 hourly rate. Subsequently, Judge Litvack
found that Wittwer requested that Anthony lay him off as he
had learned of the wage rate offer of $15 per hour with no
fringe benefits and no support of the apprentice program. The
following day, when Wittwer’s layoff request was denied, he
quit.
Although Judge Litvack’s findings might be regarded as am-
biguous as to the narrow issue now considered, I find that they
provide a sufficient basis for concluding that Anthony intended
similar treatment for all-existing commercial wiremen without
regard to their journeyman or apprentice status. Even though
Anthony’s agreement would have increased Wittwer’s pay rate,
Wittwer’s acceptance of that agreement under some lawful
circumstance clearly would have resulted in a lesser overall
cost to Company because of the fringe benefits costs under the
commercial agreement. This would be especially true after
Wittwer’s rate increased to $14.28 as scheduled in February.
Accordingly, I have concluded that these circumstances merit
the application of the $15-per-hour rate to Wittwer at the same
time as the other discriminatees.
Finally, as the 1984 individual employment records (R. Exh.
29) for Belshe, Knoke, Holcomb, Jackson, and MacIntyre re-
flect that they were compensated for work while still employed
at the $15-per-hour rate, I have added a separate reimbursement
calculation for the difference between that rate and the applica-
ble commercial agreement rate ($17.85) for those under–
compensated hours in accord with Ogle Protection, supra, for
the first quarter 1984 as specified in the Board’s Order. The
hours used in this calculation are: Belshe–60; Holcomb–40;
Jackson–56; Knoke–56.5; and MacIntyre–48.5. Wittwer’s
individual employment record is not included in that exhibit
and it is otherwise unclear what, if anything, actually occurred
as to his pay rate while still employed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
C. The Medical Expense Reimbursements
The Kraft Plumbing rule providing for the reimbursement of
unlawfully terminated employees “for any premiums they may
have paid to third-party insurance companies to continue medi-
cal and dental coverage” establishes that payment, in effect, as
a part of the gross backpay. As such, the General Counsel has
the burden to establish a discriminatee’s qualification for the
insurance premium reimbursement. Mastro Plastics, 136
NLRB 1342, 1346 (1962). To meet this burden, the General
Counsel would be required to provide evidence that Company
or Construction, or both, actually provided its employees with a
paid health insurance benefit after June 1, 1984.
Here, the General Counsel seeks such a reimbursement with
interest for three discriminatees, Bruce Knoke ($6447), Bill
Jackson ($664), and Kim MacIntyre ($1514). In each case, the
reimbursement sought is for premiums they paid to third-party
insurance companies in calendar quarters after June 1, 1984, the
date on which the commercial agreement ceased to be applica-
ble for backpay purposes in this case. In each instance, the
reimbursement sought is for the premiums the discriminatees
were required to pay for coverage of their spouses or depend-
ents rather than for themselves.
Compliance Officer Renkel testified that she included the in-
surance premium reimbursement in the backpay computation
because, without information from Company, “I reasoned that
[Respondents] probably continued some kind of health bene-
fits.” However, the General Counsel adduced no evidence that
either Company or Construction, in fact, ever actually provided
health benefits to employees after Anthony repudiated the con-
tract in January 1984. The three Prilikas (Anthony, Robert, and
John) repeatedly denied that the employees ever received em-
ployer-paid health benefits after that time. Steven Goodwin
corroborated their claim about this matter. Furthermore, the
proposed individual employment agreement quoted by Judge
Litvack in the underlying case provided that Company would
provide a health benefit plan for the employee only and that the
employee would be responsible for paying the added cost if he
elected coverage for “qualified dependents.”24
In these circumstances, I find that the General Counsel has
failed to meet the burden of proof required to obtain reim-
bursement for these medical insurance premiums because there
is no evidence that either Company or Construction actually
provided employees with a health insurance benefit let alone a
benefit that also included family members. Accordingly, I
disallow the premium reimbursements claimed for Knoke,
Jackson, and MacIntyre.
D. Respondents’ Claims for Individual Offsets
1. Knoke and Jackson
Respondents claim that the backpay calculations for Knoke
and Jackson should be modified for their failure to respond to
referral calls at the Local 68 hiring hall where they were regis-
tered. For this reason, Respondents would impute interim earn-
ings based on the Local 68 contract wage rate to Knoke from
December 1984 through March 1985 and to Jackson for the
month of August 1984.
Local 68’s hiring hall records confirm that Knoke and Jack-
son were both registered on the out of work list at the times

24 See also the findings by Judge Litvack in the underlying case, 285
NLRB 842 fn. 20.
relevant to Respondents’ claims. The same records also con-
firm that both were dropped to the bottom of the out-of-work
list when they failed to respond to calls from Local 68 for refer-
ral to jobs as claimed by Respondents.
However, the evidence shows that both Knoke and Jackson
had previously acquired interim employment as maintenance
electricians with the Littleton Public School district. Both testi-
fied that as their new positions paid less than the Local 68 con-
struction rate, they continued to register at the hiring hall in
hopes of obtaining long-term construction employment. Both
also claim that they made inquiries from time to time concern-
ing long-term employment through the hiring hall but, as such
work was not available, they chose not to risk the steady em-
ployment provided by the school district for the short-term
employment then available through the hiring hall.
As the compliance specification reflects, their interim earn-
ings from the school district eventually exceeded their gross
backpay and, prior thereto, served as a substantial offset to the
gross backpay for a considerable period. In these circum-
stances, I find that Knoke and Jackson did not incur a willful
loss of earnings by their failure to accept the referrals alluded to
by Respondent. Accordingly, I reject Respondents’ proposed
offset in their situations.
2. Robert Holcomb
Respondent claims that an early retirement benefit of $500
per month which Holcomb drew from June through November
1988 should be “deducted from his backpay calculation.” Hol-
comb testified that after his unemployment benefits expired in
June 1988 and he was still unable to locate work, he applied for
early retirement benefits under the Local 68 pension plan in
order to support himself. When Holcomb reached 62 in late
November 1988, he considered himself actually retired and
thereafter applied for a full Local 68 retirement and, shortly
later, for social security. According to Holcomb, his need to
draw early retirement benefits resulted in a 1-percent penalty
under his full retirement. There is no evidence that Holcomb
withdrew himself from the labor market until he commenced
his full retirement in December 1988. The amended compli-
ance specification tolled Holcomb’s backpay as of that time.
I deny Respondent’s request to offset Holcomb’s gross
backpay with his early retirement benefits. In my judgment,
those early retirement benefit sums drawn by Holcomb from
June through November 1988 do not represent compensation
for services rendered to an interim employer and, therefore, do
not properly qualify as interim earnings deductible from the
gross backpay. And where, as here, Holcomb’s circumstances
necessitated these early withdrawals for which he was penal-
ized when he fully retired, I likewise conclude that it would be
inappropriate to toll the accumulation of his gross backpay
when he commenced receiving those funds in June.
3. Dale Wittwer
Wittwer testified that he obtained interim employment at the
Rocky Mountain News in August 1985. The compliance offi-
cer testified that she did not have access to that company’s pay
records and, hence, calculated his interim earnings by dividing
those 1985 earnings reflected on his W-2 tax statement fur-
nished to him by that company. At the hearing, Respondent
obtained a more detailed statement of Wittwer’s 1985 earnings
from that interim employer and requests a recalculation of his
1985 backpay reflecting this more accurate information. I
agree and the calculations reflected in attachment 6 are in ac-
RELIABLE ELECTRIC CO. 727
cord with the quarterly allocation of 1985 interim earnings
reflected in Respondents’ alternate calculation. (R. Exh. 41.)
E. Additional Matters
As noted, the only backpay controversy alleged in the com-
pliance specification relates to the amounts due the six dis-
criminatees. As the basis for this allegation is unexplained but
probably lies in the lack of access to Company’s pay records, I
have prepared additional calculations reflected in attachments 7
and 8, and modified the Acting Regional Director’s calculations
concerning the required trust fund contributions (attachment 9)
to accord with the evidence in the underlying case, the Board’s
remedial order, and the evidence adduced at this hearing.
Attachments 7 and 8 include Ogle reimbursements for Ste-
ven Goodwin and Robert McFarren. In the underlying case, the
Board specifically found that Goodwin and McFarren were
commercial wiremen who continued their employment with
Company following the repudiation of the commercial agree-
ment. 286 NLRB at 835. Company’s 1984 records (R. Exh.
29) confirm that conclusion. Hence, under the terms of the
Board’s Order they would be entitled to a reimbursement for
the losses they suffered as a consequence of Company’s failure
to pay them at the $17.85 journeyman’s rate under the commer-
cial agreement. Company’s pay records reflect that both re-
ceived $15 per hour commencing with Company’s pay period
ending January 21, 1984, as did the other journeyman discrimi-
natees. Accordingly, under the Board’s Ogle remedy, Goodwin
and McFarren would be entitled to a reimbursement for the
difference between the $15 rate they actually received and the
commercial agreement rate for all hours worked through May
31, 1984. Attachments 7 and 8 reflect the calculations for
Goodwin and McFarren applying the difference in rates ($2.85)
to the hours they actually worked.25
Attachment 9 reflects the recalculation I have made for the
trust fund reimbursement under the terms of the Board’s Order.
In the amended specification appendices, the compliance offi-
cer has imputed 40 hours of work per week for the six dis-
criminatees throughout the month of January 1994. Based on
their individual earnings records (R. Exh. 29), I have concluded
that this would be inappropriate as it is evident that the five
journeyman discriminatees did not work 40 hours in the weeks
preceding the pay period ending January 21. Accordingly, I
have used the actual hours reflected for those pay periods and
imputed 40 hours to them for the remaining pay period ending
January 28 if they did not actually work that amount due to the
likelihood that they did not do so because of the constructive
discharge. In addition, this recalculation has been made to
reflect trust fund reimbursements on behalf of Goodwin and
McFarren. As Wittwer’s individual earnings record is not re-
flected in Respondent Construction’s Exhibit 29, I have cred-
ited him with the average of the hours credited to the others for
the month of January for trust fund reimbursement purposes.
The compliance specification seeks reimbursement for seven
fringe benefit funds. The 1983 commercial agreement specifies
the following fixed hourly rate for contributions to four of those

25 Based on the 1984 records, I credited Goodwin and McFarren, re-
spectively, with 389.5 and 389.25 hours in the first quarter, and 408.5
and 363.5 hours in the second quarter. As the records show that
Goodwin and McFarren both worked 32 hours in the pay period ending
June 2, I have deducted 16 hours from their total hours in the second
quarter to account for the fact that the Ogle remedy applied only
through May 31, 1984.
funds: (1) Electrical Industry Benefit Health Fund (EIB
Health)—$1.24; (2) EIB Long-Term Disability Fund (EIB Dis-
ability)—$.03; (3) EIB Accidental Life Insurance Fund (EIB
Insurance)–$.08; and (4) Eighth District Electrical Pension
Fund (Pension)—$1.25. Contributions to the other three funds
are computed on the basis of the following percentages of the
employer’s gross monthly payroll (gmp): (1) National Em-
ployee’s Benefit Fund (NEBF)—3 percent of gmp; (2) National
Electrical Industry Fund (NEIF)—1 percent of gmp; and (3)
Joint Apprenticeship and Training Trust Fund (JAT)—0.3 per-
cent of gmp. (R. Exh. 1 at pp. 23, 32–37.)26 In computing the
gross monthly payroll, I have applied the commercial agree-
ment journeyman rate ($17.85) for all hours except those cred-
ited to Wittwer. In his case, I have applied the apprentice rates
of $12.50 for his January 1984 hours and $14.28 for all subse-
quent hours. Consistent with the compliance specification, the
recalculation reflected in Attachment 9 provides for no interest.
IV. SUMMARY
Based on my findings and conclusions, above, backpay un-
der the terms of the remedial order in this case is due the fol-
lowing individuals: James Belshe, Steven Goodwin, Robert
Holcomb, Bill Jackson, Bruce Knoke, Kim MacIntyre, Robert
McFarren, and Dale Whittwer. The calculation of the amount
of backpay due each of these individuals as of January 31,
1993, with interest on those amounts through August 31, 1996,
is as set forth in attachments 1 through 8 hereto.27 The interest
factors used in calculating interest are set forth in attachment
10. Additional backpay could accrue to Knoke, MacIntyre, and
Whittwer until such time as they receive an appropriate written
offer of reinstatement required by the Board’s Order. The ac-
crual of backpay to Belshe has been tolled by reason of his
death and the amount of backpay due to him is payable to his
estate. Backpay due Jackson has been tolled by reason of his
withdrawal from the labor market as evidenced by his retire-
ment for health reasons and backpay due Holcomb has been
tolled by his full retirement.
Reimbursements for unpaid trust fund contributions required
under the terms of the Board’s Order are due to the following
trusts established under the commercial agreement: (1) Electri-
cal Industry Benefit Health Fund; (2) Electrical Industry Bene-
fit Long-Term Disability Fund; (3) Electrical Industry Benefit
Accidental Life Insurance Fund; (4) Eighth District Electrical
Pension Fund; (5) National Employee’s Benefit Fund; (6) Na-
tional Electrical Industry Fund; and (7) Joint Apprenticeship
and Training Trust Fund. The calculation of the reimbursement
amount due each of these funds is as set forth in attachment 9.
No interest is claimed or due in connection with these unpaid
contributions.
Company, Construction, and Anthony Prilika in his personal
capacity are jointly and severally responsible for the satisfac-
tion of the backpay, interest, and trust fund reimbursements
26 The 1983 commercial agreement also specifies a $1 per hour em-
ployer contribution to the Eighth District Annuity Fund. R. Exh. 1 at
pp. 34–35. The compliance specification seeks no reimbursement for
that fund. As that fund does not appear in the successor agreement (R.
Exh. 2) and as there appears to have been a controversy over the 1983
commercial agreement resulting in a “settlement agreement,” the terms
of which are not before me, I likewise include no reimbursement for
that fund.
27 In all calculations I have made, I applied the Federal income tax
rounding rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
presently due. Those same persons are also responsible in the
same manner for the satisfaction of any additional amounts of
backpay which may have accrued since January 31, 1993, or
which may accrue in the future, as well as interest on those
amounts and the amounts presently due calculated to the date of
payment.
On the foregoing findings and conclusions, I issue the fol-
lowing recommended28
ORDER
The Respondents, Reliable Electric Company; Reliable Elec-
tric Construction Company, Inc.; and Anthony Prilika their
officers, agents, successors, and assigns, shall
1. Jointly and severally pay the amounts of backpay with ad-
ditional interest calculated from September 1, 1996, to the date
of payment, less appropriate withholdings for any Federal,
state, and local income taxes, set forth below opposite the
names of the following individuals or, in the case of James
Belshe, his estate:

James Belshe Estate $ 50,303
Wesley Steven Goodwin 4,971
Robert Holcomb 175,144
Bill Jackson 93,606

28 If no exceptions are filed as provided by Sec. 102.59 and 102.46
of the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes. All pending motions inconsistent with this
recommended order are denied.
Bruce Knoke 111,037
Kim MacIntyre 30,513
Robert McFarren 4,691
Dale Wittwer 29,109

2. Jointly and severally pay any additional amounts of back-
pay which may have accrued since January 31, 1993, or which
may accrue hereafter, to Robert Holcomb, Bruce Knoke, Kim
MacIntyre, and Dale Wittwer together with interest thereon
calculated to the date of payment, less the appropriate income
taxes specified above.
3. Immediately offer in writing to reinstate Bruce Knoke,
Kim MacIntyre, and Dale Wittwer in accord with the terms of
the Order of the National Labor Relations Board dated Novem-
ber 9, 1987, as enforced on May 2, 1992.
4. Jointly and severally reimburse the trusts funds named be-
low in the amounts specified:

Electrical Industry Benefit Health Fund $7,870
Electrical Industry Benefit Long–Term
Disability Fund
191
Electrical Industry Benefit Accidental Life
Insurance Fund
507
Eighth District Electrical Pension Fund 7,933
National Employee’s Benefit Fund 3,308
National Electrical Industry Fund 1,102
Joint Apprenticeship and Training
Trust Fund
331

ATTACHMENT 1
BELSHE, JAMES HENRY

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST
THRU 8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $ 171 N/A $ 171 $ 205 $ 376
84/1 6,997 0 6,997 8,396 15,393
84/2 8,826 0 8,826 10,348 19,174
84/3 8,100 $ 5,273 2,827 3,237 6,064
84/4 8,100 7,343 757 846 1,603
85/1 8,100 7,038 1,062 1,152 2,214
85/2 8,100 8,079 21 22 43
85/3 8,100 9,082 0 0 0
85/4 8,100 7,394 706 704 1,410
86/1 8,320 9,362 0 0 0
86/2 8,320 7,667 653 619 1,272
86/3 8,320 10,071 0 0 0
86/4 8,320 7,800 520 469 989
87/1 8,320 7,381 939 826 1,621
87/2 8,320 8,499 0 0 0
TOTALS $23,479 $26,824 $50,303

ATTACHMENT 2
HOLCOMB, ROBERT

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST
THRU 8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $ 114 N/A $ 114 $ 137 $ 251
84/1 6,997 0 6,997 8,396 15,393
84/2 8,826 $ 1,205 7,621 8,936 16,557
84/3 8,100 6,131 1,969 2,255 4,224
84/4 8,100 934 7,166 8,008 15,174
RELIABLE ELECTRIC CO. 729
85/1 8,100 3,571 4,529 4,914 9,443
85/2 8,100 7,737 363 382 745
85/3 8,100 7,737 363 372 735
85/4 8,100 4,964 3,136 3,128 6,264
86/1 8,320 11,530 0 0 0
86/2 8,320 627 7,693 7,289 14,982
86/3 8,320 6,521 1,799 1,664 3,463
86/4 8,320 7,065 1,255 1,133 2,388
87/1 8,320 678 7,642 6,725 14,367
87/2 8,320 6,103 2,217 1,901 4,118
87/3 8,320 6,612 1,708 1,426 3,134
87/4 8,320 5,086 3,234 2,620 5,854
88/1 8,320 0 8,320 6,510 14,830
88/2 8,320 0 8,320 6,302 14,622
88/3 8,320 0 8,320 6,094 14,414
88/4 8,320 0 8,320 5,866 14,186
TOTALS $91,086 $84,058 $175,144

ATTACHMENT 3
JACKSON, BILL

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST THRU
8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $160 N/A $160 $192 $352
84/1 6,997 0 6,997 8,396 15,393
84/2 8,826 0 8,826 10,348 19,174
84/3 8,100 $2,295 5,805 6,647 12,452
84/4 8,100 4,538 3,562 3,981 7,543
85/1 8,100 5,718 2,382 2,584 4,966
85/2 8,100 5,840 2,260 2,379 4,639
85/3 8,100 6,063 2,037 2,149 4,186
85/4 8,100 6,000 2,100 2,095 4,195
86/1 8,320 6,248 2,072 2,015 4,087
86/2 8,320 6,246 2,074 1,965 4,039
86/3 8,320 6,456 1,864 1,724 3,588
86/4 8,320 6,582 1,738 1,569 3,307
87/1 8,320 7,621 699 615 1,314
87/2 8,320 8,073 247 212 459
87/3 8,320 7,947 373 311 684
87/4 8,320 7,748 572 463 1,035
88/1 8,320 8,073 247 193 440
88/2 8,320 7,704 616 467 1,083
88/3 8,320 8,181 139 102 241
88/4 8,320 8,692 0 0 0
89/1 8,320 8,087 233 158 391
89/2 8,320 8,297 23 15 38
[No further calculation is shown as Jackson’s interim earnings exceed the gross backpay in all subsequent quarters.]
TOTALS $45,026 $48,580 $93,606

ATTACHMENT 4
KNOKE, BRUCE

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST THRU
8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $ 161 N/A $ 161 $ 202 $ 363
84/1 6,997 0 6,997 8,396 15,393
84/2 8,826 $ 653 8,173 9,583 17,756
84/3 8,100 3,658 4,442 5,086 9,528
84/4 8,100 4,590 3,510 3,922 7,432
85/1 8,100 5,196 2,904 3,151 6,056
85/2 8,100 5,252 2,848 2,998 5,846
85/3 8,100 5,508 2,592 2,657 5,249
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
85/4 8,100 5,689 2,411 2,405 4,816
86/1 8,320 5,568 2,752 2,676 5,428
86/2 8,320 6,034 2,287 2,167 4,454
86/3 8,320 5,952 2,368 2,190 4,558
86/4 8,320 6,028 2,292 2,069 4,361
87/1 8,320 7,042 1,279 1,126 2,405
87/2 8,320 7,251 1,069 917 1,986
87/3 8,320 7,432 888 741 1,629
87/4 8,320 7,251 1,069 866 1,935
88/1 8,320 7,037 1,283 1,004 2,287
88/2 8,320 7,105 1,215 920 2,135
88/3 8,320 7,497 823 603 1,426
88/4 8,320 7,654 666 470 1,136
89/1 8,320 7,400 920 623 1,543
89/2 8,320 7,497 823 533 1,356
89/3 8,320 7,722 598 369 967
89/4 8,320 7,900 420 248 668
90/1 8,320 8,466 0 0 0
90/2 8,320 8,108 212 113 325
[No further calculation is shown as Knoke’sinterim earnings exceed the gross backpay in all subsequent quarters.]
TOTALS $55,002 $56,035 $111,037

ATTACHMENT 5
MACINTYRE, KIM

YR./QTR.
TOTAL GROSS
BACK-PAY
NET INTERIM
EARNINGS

NET BACK-PAY
INTEREST THRU
8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $ 138 N/A $ 138 $ 166 $ 304
84/1 6,997 0 6,997 8,396 15,393
84/2 8,826 $ 2,158 6,669 7,819 14,488
84/3 8,100 8,237 0 0 0
84/4 8,100 10,250 0 0 0
85/1 8,100 9,284 0 0 0
85/2 8,100 11,471 0 0 0
85/3 8,100 8,540 0 0 0
85/4 8,100 7,981 119 119 238
86/1 8,320 8,450 0 0 0
86/2 8,320 11,414 0 0 0
86/3 8,320 8,572 0 0 0
86/4 8,320 9,258 0 0 0
87/1 8,320 8,686 0 0 0
87/2 8,320 9,240 0 0 0
87/3 8,320 8,271 49 41 90
[No further calculation is shown as MacIntyre’s interim earnings exceed the gross backpay in all subsequent quarters.]
TOTALS $13,972 $16,541 $30,513

ATTACHMENT 6
WITTMER, DALE

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST THRU
8/31/96
TOTAL
AMOUNT DUE

84/1 $5,541 $3,435 $2,106 $2,527 $4,633
84/2 7,541 5,585 1,956 2,293 4,249
84/3 8,100 8,067 33 38 71
84/4 8,100 8,067 33 37 70
85/1 8,100 9,097 0 0 0
85/2 8,100 2,099 6,001 6,316 12,317
85/3 8,100 4,927 3,173 3,252 6,425
85/4 8,100 7,427 673 671 1,344
[No further calculation is shown as Wittmer’s interim earnings exceed the gross backpay in all subsequent quarters.]
TOTALS $13,975 $15,134 $29,109
RELIABLE ELECTRIC CO. 731

ATTACHMENT 7
GOODWIN, WESLEY STEVEN

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST THRU
8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $1,110 N/A $1,110 $1,332 $2,442
84/2 (Ogle) 1,164 N/A 1,164 1,365 2,529
TOTALS $2,274 $2,697 $4,971

ATTACHMENT 8
MCFARREN, ROBERT

YR./QTR.
TOTAL GROSS
BACKPAY
NET INTERIM
EARNINGS

NET BACKPAY
INTEREST
THRU 8/31/96
TOTAL
AMOUNT DUE

84/1 (Ogle) $1,109 N/A $1,109 $1,331 $2,440
84/2 (Ogle) 1,036 N/A 1,036 1,215 2,251
TOTALS $2,145 $2,546 $4,691

ATTACHMENT 9

January 1984 February 1984 March 1984 April 1984 May 1984

Belshe 132 160 160 160 160
Goodwin 137 160.25 194.25 157.5 218.75
Holcomb 136 160 160 160 160
Jackson 137 160 160 160 160
Knoke 141.5 160 160 160 160
Macintyre 132 160 160 160 160
McFarren 139 162.25 200 147.5 176
Wittwer 139 160 160 160 160
Total Hours 1090.5 1,282.5 1,354.25 1,265 1,354.75
Gross Monthly
Payroll

$18,738

$22,322

$23,602

$22,009

$23,611

January 1984 February 1984 March 1984 April 1984 May 1984 Total

EIB Health
($1.24/hr.) $1,352 $1,590 $1,679 $1,569 $1,680 $7,870
EIB Disabilty
($.03/hr.) 33 38 41 38 41 191
EIB Insurance
($.08/hr.) 87 103 108 101 108 507
Pension
($1.25/hr.) 1363 1603 1693 1581 1693 7933
NEBF
(3% gmp) 562 670 708 660 708 3308
NEIF
(1% gmp) 187 223 236 220 236 1102
JAT
(0.3% gmp) 56 67 71 66 71 331

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
ATTACHMENT 10

Cumulative Interest Rate Percentages for Interest Through August 31, 1996.
R/QTR. RATE PERCENTAGE
84/1 120.00
84/2 117.25
84/3 114.50
84/4 111.75

85/1
108.50
85/2 105.25
85/3 102.50
85/4 99.75

86/1
97.25
86/2 94.75
86/3 92.50
86/4 90.25

87/1
88.00
87/2 85.75
87/3 83.50
87/4 81.00

88/1
78.25
88/2 75.75
88/3 73.25
88/4 70.50

89/1
67.75
89/2 64.75
89/3 61.75
89/4 59.00

90/1
56.25
90/2 53.50
90/3 50.75
90/4 48.00