Extract
Baker Electric, 515 (2007)
D. L. Baker, Inc. t/a Baker Electric and its alter ego and/or successor Baker Electric, Inc.; Herndon Animal Medical Center, Inc.; and Daniel L. Baker, and Maggie Barry, Individually and International Brotherhood of Electrical Workers, Local Union No. 26. Cases 5CA24131 and 5CA24190
September 29, 2007SUPPLEMENTAL DECISION AND ORDER REMANDINGBy Members Liebman, Kirsanow, and WalshOn March 28, 2001, Administrative Law Judge Thomas R. Wilks issued the attached Supplemental Decision, Order of Severance, and Remand. Thereafter, the General Counsel, the Charging Party International Brotherhood of Electrical Workers, Local Union No. 26 (the Union), and Respondent Baker Electric, Inc. (BEI) filed exceptions and supporting briefs. Respondents D.L. Baker, Inc. (DLB) and Herndon Animal Medical Center, Inc. (HAMCI) filed cross-exceptions[1] and supporting briefs. The General Counsel, the Union, and Respondents DLB, Daniel L. Baker (Baker), BEI, and Maggie Barry (Barry) filed answering briefs, and the General Counsel, the Union, and Respondents DLB and BEI filed reply briefs. The General Counsel also filed a motion to strike attachments to DLBs brief in support of its cross-exceptions.[2] DLB filed an opposition brief, and the General Counsel and the Union requested special permission to file a reply, which DLB opposed.[3]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 judges rulings, findings,[4] and conclusions only to the extent consistent with this Supplemental Decision and Order Remanding.i. overviewThis compliance proceeding is the latest chapter in protracted litigation over a variety of remedial issues arising out of the Boards Decision and Order finding merit in certain unfair labor practice (ULP) allegations. See Baker Electric, 317 NLRB 335 (1995). Respondent DLB is an electrical contractor. Dan Baker is the sole shareholder of DLB. In the liability phase, the Board found that DLB violated Section 8(a)(3) of the National Labor Relations Act (the Act) by discriminatorily discharging employee Michael Tangy due to his organizing efforts on behalf of the Union, and Section 8(a)(5) by refusing to recognize the Union and by failing to honor the terms of an 8(f) prehire agreement. As to the latter, the Board rejected DLBs defense that the charges were untimely filed under Section 10(b) of the Act because of the passage of 16 years and the occurrence of intervening events that assertedly precluded applying and enforcing the 8(f) agreement against DLB. The Boards remedial order provided for three categories of claimants: (1) Tangy (reinstatement, backpay), (2) DLBs own employees (wage rate differentials, expenses, and fringe benefit contributions), and (3) hiring hall claimants, i.e., individuals DLB should have hired and did not hire under the 8(f) agreements hiring hall provisions (backpay, expenses, and fringe benefit contributions). In mid-1995, almost immediately after the Boards Order in the ULP phase issued, DLB, also in trouble with the Internal Revenue Service (IRS), sold its assets to BEI. BEIs sole shareholder is Maggie Barry, Bakers wife. DLBs assets were not offered to any other potential buyer. Barry, a veterinarian, is also the sole shareholder of HAMCI. Originally a sole proprietorship, HAMCI was incorporated by Barry during the pendency of this case.[5]After the Fourth Circuit Court of Appeals enforced the Boards Order, mem. 105 F.3d 647 (1997) (per curiam), and the Supreme Court denied certiorari, 522 U.S. 1046 (1998), the Boards Regional Office issued a compliance specification (CS). The original CS alleged that BEI was both a successor to and an alter ego of DLB, and, under either theory, jointly and severally liable for DLBs obligations. The CS further alleged that Baker and Barry diverted DLBs and BEIs corporate funds to themselves; therefore, the CS seeks to pierce the corporate veils of DLB and BEI and hold Baker and Barry individually liable. The General Counsel amended the CS during the hearing to add HAMCI as a party. The Board granted partial summary judgment on the CS. See Baker Electric, 330 NLRB at 522523.The CS alleged a total backpay liability of $2,914,030.18. It alleged a backpay liability period for the Respondents failure to adhere to the 8(f) agreement from August 7, 1993 (the beginning of the 10(b) period), through May 28, 1997 (when the Respondents sent a letter to the Union formally repudiating the 8(f) agreement and bargaining relationsh...See the full content of this document
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