NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Paint America Services, Inc., SRS Group, Inc.,
Paint America, Paint America, Inc., and Paint America of Michigan, Inc. and District Council 22, International
February 25, 2009
SUPPLEMENTAL DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On September 29, 2008, Administrative Law Judge John H.
West issued the attached supplemental decision.
Respondent SRS Group, Inc. (SRS) and its affiliate Paint
The National Labor Relations Board2 has considered the decision and the record in light of the exceptions and brief3 and has decided to affirm the judge’s rulings, findings,4 and conclusions5 and to adopt the recommended Order as modified and set forth in full below.
(1) Single-employer
status. We adopt the judge’s conclusion
that the Respondents constitute a single employer based on his application of
the Board’s four-factor test, under which the Board considers (1) interrelation
of operations, (2) common management, (3) centralized control of labor relations,
and (4) common ownership or financial control.
See, e.g.,
Similarly, relying on
(2) Due Process. SRS also asserts that it was denied due process and a fair hearing. Specifically, SRS argues that two union representatives who testified under the General Counsel’s subpoena, as well as the Board agent who testified about compliance calculations, were not present to testify as part of SRS’ case following a 7-1/2-week continuance. It further excepts to the judge’s denial of its motions for a further continuance and for discovery after the General Counsel furnished affidavits from SRS’ president, Salvatore Randazzo, and his wife, Jamile Randazzo, who is the president of Paint America Services, Inc., Paint America, Inc., and Paint America of Michigan, Inc. After a careful examination of the record, we find that the judge complied with due process requirements and afforded SRS a fair opportunity to present its case. As the judge stated on the record, SRS had an opportunity to and in fact did cross-examine the General Counsel’s witnesses, and it neither reserved its right to recall the witnesses nor subpoenaed them to testify after the continuance. We further find that the judge properly denied SRS’ motions. Salvatore Randazzo, who served as SRS’ representative, acknowledged signing his affidavit. In addition, he offered no reason why he could not have obtained and reviewed Jamile Randazzo’s affidavit before the hearing resumed.7
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondents, Paint America Services, Inc., SRS Group, Inc., Paint America, Paint America, Inc., and Paint America of Michigan, Inc., a single employer, Saline, Michigan, its officers, agents, successors, and assigns, shall make whole George Lancaster and the Union’s vacation fund by paying them $26,029.20 and $4,117.68, respectively, plus interest accrued to the date of payment, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws.8
Dated,
Wilma B. Liebman,
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Eric S. Cockrell, Esq., for the General Counsel.
Mr. Salvatore Randazzo, for SRS Group, Inc.
Mr. Tommy Thomas, for the Charging Party.
SUPPLEMENTAL DECISION
John H. West, Administrative Law Judge. On September
30, 2004, the National Labor Relations Board (the Board) issued a Decision and
Order[1]
which ordered, as here pertinent, Respondent Paint America Services, Inc.
(PASI) to make whole discriminatee George Lancaster for any loss of earnings
and other benefits that he may have suffered as a result of his discharge by
the Respondent in violation of Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act). On April 28, 2005, the United States Court of Appeals
for the Sixth Circuit entered its judgment enforcing the Board’s Order.[2]
Since a controversy arose regarding the
amount of backpay and benefits due under the Order, the Regional Director for
Region 7 issued a compliance specification and notice of hearing on December
20, 2006 (1) naming as Respondents not only PASI, but also SRS Group, Inc.
(SRS), Paint America (PA), and Dutchman Waterproofing & Restoration, Inc.
(Dutchman), (2) alleging (a) that all four entities constitute a single employer,
and (b) the amounts due under the Board’s Order, and (3) notifying Respondents
that they should file a timely answer complying with the Board’s Rules and
Regulations. The Respondents described above in this paragraph filed an answer
(1) denying (a) that they constitute a single employer, (b) that they had any
obligation to contribute to the educational fund of District Council 22,
International Union of Painters and Allied trades, AFL–CIO, CLC (the Union),
and (c) the compliance specification’s allegations regarding the amounts due,
and (2) claiming that Lancaster had not been the victim of unlawful
discrimination and asserted that it had not received any proof that Lancaster
had suffered any loss.
On May 14, 2007, the Regional Director
for Region 7 issued an amended compliance specification (1) naming as Respondents
PASI, SRS, PA, Paint America, Inc. (PAI), and Paint America of Michigan, Inc.
(PAMI), and (2) alleging (a) that all five Respondents constitute a single
employer, (b) Lancaster’s interim earnings, and (c) the backpay due to
Lancaster and to the vacation fund through December 31, 2006.
SRS and PA filed an answer to the amended
compliance specification denying (a) that PASI,
On July 24, 2007, the General Counsel
filed with the Board a Motion for Partial Summary Judgment against Respondents
SRS and PA and a Motion for Partial Default Judgment and/or Partial Summary
Judgment against Respondents PASI, PAI, and PAMI.
On August 6, 2007, the Board issued an
order transferring the proceeding to the Board and a Notice to Show Cause why
the General Counsel’s motions should not be granted. On August 17, 2007, SRS
filed an answer to Notice to Show Cause, and subsequently the General Counsel
filed an opposition to SRS’s answer. PA, PAMI, PAI, and PASI did not respond to
the Notice to Show Cause.
On February 29, 2008, the Board issued a
Supplemental Decision and Order.[3]
In it the Board pointed out, as here pertinent, that the General Counsel, in
both of his motions, seeks summary and/or default judgment on only those allegations
in the amended compliance specification to be admitted as true against them,
except for the single-employer allegation—as to which the General Counsel does
not seek judgment. The Board concluded that it would grant the General Counsel’s
alternative Motion for Partial Summary Judgment against PASI because PASI’s
answer to the original compliance specification fails to satisfy the requirements
of Section 102.56(b) and otherwise fails to raise an issue warranting a hearing; that the General Counsel’s amended
compliance specification sets forth a formula for calculating gross backpay;
that PASI’s responses to the
corresponding allegations in the original compliance specification fail to deny
those allegations with the specificity required by Section 102.56(b); that PASI’s
answer fails to set forth an alternative backpay formula, an alternative
backpay period, an alternative applicable wage rate, or an alternative number
of hours that Lancaster would have worked but for the unlawful discrimination;
that these are matters within the Respondent’s knowledge, and PASI’s failure to
furnish such alternative supporting figures and premises renders summary judgment
appropriate; that PASI may not relitigate the Board’s prior finding that
Lancaster was terminated during the term of a collective-bargaining agreement;
that the General Counsel’s Motion for Partial Summary Judgment against PASI is
granted, except to the extent that the issue of interim earnings is remanded,
which issue was adequately raised by Respondents SRS and PA; that resolution of
the derivative liability on remand will necessarily resolve the question of the
adequacy of the answer and amended answer of SRS and PA to the gross backpay
allegations of the amended compliance specification; that if SRS and PA are not
found to constitute a single employer together with PASI, then SRS and PA will
not be liable for backpay; that if, on the other hand, the General Counsel
proves that such a relationship exists, then SRS and PA will be bound by the
failure of PASI to file an adequate answer here; that the answer of SRS and PA,
which generally denies the interim earnings allegations, timely placed into
issue Lancaster’s interim earnings because interim earnings are generally not
matters within the knowledge of a respondent and, therefore, a general denial
is sufficient to defeat a motion for summary judgment; that the General Counsel’s
Motion for Partial Default Judgment against Respondents PAI and PAMI and his
Motion for Partial Summary Judgment against Respondent PASI is granted, except
to the extent that issues raised by SRS and PA have been remanded for a
hearing; and that PASI, PAI, and PAMI are not permitted to participate in that
hearing. The Board ordered that the General Counsel’s Motion for (1) Partial
Default Judgment against Respondents Paint America, Inc. and Paint America of
Michigan, Inc., and (2) Partial Summary Judgment against Respondent Paint
America Services, Inc. is granted, except to the extent that the issue of interim
earnings is remanded to be decided at a hearing; and that a hearing be held
before an administrative law judge, which shall be limited to the determination
of derivative liability and interim earnings.
The remanded hearing was held in
Findings of Fact
When called as a 611(c) witness by counsel
for the General Counsel, Salvatore Randazzo testified that he is president of
SRS; that he does not hold a position with any of the other companies named at
the top of the amended compliance specification; that General Counsel’s Exhibit
5 is an October 7, 1999 Michigan Certificate of Assumed Name which (a)
indicates that the true name of the corporation is SRS Group, Inc.; (b) assigns
the identification number of 142-92A; (c) indicates that the assumed name under
which the business is to be transacted is Paint America; and (d) indicates that
Sal Randazzo is the president; that General Counsel’s Exhibit 6 is a Michigan
Department of Labor & Economic Profit Corporation Information Update form
which indicates that the resident agent name and mailing address of the registered
office for SRS Group, Inc., identification number 142-92A, is Sal Randazzo, 107
E. Bennett, Saline, Michigan 48176, and which shows that he signed the form as president,
dated it “4/24/06,” and gave the telephone number of 734–429–2366; that General
Counsel’s Exhibit 8 is his business card[5];
that General Counsel’s Exhibit 9 is a check signed by his wife, Jamile
Randazzo, made payable to SRS Group but he could not recall receiving it[6];
that General Counsel’s Exhibits 10–15 are invoices from “Paint America (a SRS
Company), P.O. Box 456, Saline, MI 48176, Telephone 734–429–2366” to Dearborn
Campus Support Serv.[7];
that General Counsel’s Exhibit 16 is a five-page request for quotation sent to “Paint
America of Michigan, Inc, Sal Randazzo, FAX # 734–429–8184”; that the request is “misnamed and
misaddressed on its face, but it’s been corrected in the final page” (Tr. 78);
and that the last page of General Counsel’s Exhibit 16 has handwriting which
indicates a date of “6–24–05,”
the supplier’s legal name is “Paint America,” the name of the person signing is
Sal Randazzo, his title is president, the specified address for “Paint America”
is 107 E. Bennett, Saline, Michigan 48176, the e-mail address is Salrandazzo@comcast.net,
the phone number is 734–429–2366,
the toll free fax number is 734–429–8184, and the taxpayer identification number
is 38-3484068.
General
Counsel’s Exhibit 104 is a Notarized Discharge
of Lien which Salvatore Randazzo Signed as President
of Paint
Robert Kennedy, who is business manager/secretary-treasurer
of Painter’s District Council 22, testified that he has responsibility for the
records of the Charging Party, he is the keeper of the records that are kept in
the normal course of business; that General Counsel’s Exhibit 54 is the front
and back pages of a collective-bargaining agreement that was in effect from
June 1, 1992, through May 31, 1995; that, as indicated on the second page, the
employer involved is Paint America, Inc., its shop address is P.O. Box 456,
Salina, Michigan 48176, its business phone is 429–5190, its president is Jamile
Randazzo, her telephone number is 429–5190, and her address is 640 Hickory
Lane, Saline, Michigan 48176; that Jamile Randazzo signed the agreement for the
employer in two places and “Sal Randazzo J.R.” appears on a signature line[8];
that General Counsel’s Exhibit 55 is the front and back page of a collective-bargaining
agreement between Paint America of Michigan, Inc. and Painter’s District
Council 22 which was in effect from June 1, 1998, through May 31, 2003; that as
indicated on the back page of General Counsel’s Exhibit 55, the Employer
involved is Paint America of Michigan, Inc., its shop address is 640 Hickory
Lane, Saline, Michigan 48176, P.O. Box 456, Saline, Michigan 48176, its
business phone is (734)–429–5190, its President is Jamile Randazzo, her
telephone number is (734)–429–5190, her address is 640 Hickory Lane, Saline,
Michigan 48176, and Jamile Randazzo signed the agreement for the employer
indicating that her title was president; that he originally met Sal and Jamile
Randazzo between 1985 and 1990 and his understanding at the time from the
conversation that they had was that Sal Randazzo was in charge of Paint
America, he was the owner of Paint America, and Jamile Randazzo was his wife;
and that he received the following letter (GC Exh. 56, on the letterhead of
“Paint America, EXCELLENCE APPLIED, SINCE 1989:”
March 27, 2003 VIA Certified Mail
Robert Kennedy
. . . .
Re: Termination of Collective Bargaining
Agreement
Dear Mr. Kennedy ,
Please be advised that the current collective bargaining
agreement between Paint
In accordance with that agreement we are hereby notifying
you that Paint America of Michigan, Inc. will withdraw from that agreement at
its date of termination. Paint
To reiterate, the present agreement between paint America of Michigan, Inc. and the International Union of Painters and Allied Trades, AFL–CIO, District Council No. 22 will cease on its expiration of May 31, 2003 and will not be renewed.
Sincerely,
Jamile Randazzo
President
cc: Michigan
Alliance of Union Painting Contractors, Inc.
National
Labor Relations Board,
Steven
Hilger, Atty.
Kennedy further testified that General
Counsel’s Exhibit 57 is a letter he received by fax (“Jun 06 03 12:23p SRS GROUP INC 734 429 8184” appears at the
top of the letter) on the letterhead of “Paint America, EXCELLENCE APPLIED,
SINCE 1989”[9];
and that the body of General Counsel’s Exhibit 57 reads as follows:
NOTICE
June 6, 2003VIA FAX: 586-552-4477
Robert Kennedy
. . . .
Re: Painters Union Failure to Bargain
Dear Mr. Kennedy,
Please be advised of the following.
1. The current collective bargaining agreement between
Paint
2. The Painters Union has made no attempt to bargain with
Paint
3. The Painters
4. Paint
5. Paint
Due to the above facts Paint America of Michigan Inc. is notifying you that we will hold the International Union of Painters and Allied Trades, AFL–CIO District Council 22 (Painters Union), its employees, members and associates responsible for any and all damages as a result of any type of disruption to or at projects where we are directly or indirectly involved.
Paint
Paint
Sincerely,
Jamile Randazzo
President
cc: National
Labor Relations Board, Michigan Office
Congressman
Nick Smith, 7th Congressional District
Steven
Hilger, Atty.
The attached letter, page two of General
Counsel’s Exhibit 57, has the same letterhead, the same address, the same date,
the same fax number at the top, is signed by the same person, and has the same
“cc” as page one of General Counsel’s Exhibit 57. As here pertinent, the body
of the second page of General Counsel’s Exhibit 57 reads as follows:
In order to show good faith Paint
This extension does not bind Paint
Paint
Further, Kennedy testified that General
Counsel’s Exhibit 58 is a letter he received by fax (“Jul 01 03 06:37p SRS
GROUP INC 734 429 8184” appears at the top of the fax). It is on the same
letterhead, with the same address as General Counsel’s Exhibit 57. The body of
the letter, which is handwritten, reads as follows:
07–01–03
Dear Bob [Kennedy],
Thank you for extending our contract for thirty days. (From May 31st to June 30, 2003)
Please Bob, send me the new contract to sign as soon as you can. Meanwhile I am requesting from you to please give me a second extension from July 1st, 2003 to July 31, 2003 so that we can keep working. Thank you for your attention in this matter.
Sincerely,
Jamile Randazzo
General Counsel’s Exhibit 59 is,
according to the testimony of Kennedy, a card that the Charging Party keeps in
a file, a record maintained in the normal course of the Charging Party’s
business operations, when a collective bargaining is signed with an employer,
which card gives the date of the agreement, the name, address, and phone number
of the company. Kennedy testified that the Company on General Counsel’s Exhibit
59 is Paint America, 640 Hickory Lane, P.O. Box 456, Saline, Michigan 48176,
telephone 734–429–5190, and the “Owner, President, Partner” is Jamile Randazzo
with a phone number of 734–429–5190 and a fax number of 734–429–8184. The card
has a date at the top, namely “JULY 2, 2003.” Kennedy testified that General
Counsel’s Exhibit 60 consists of three pages, the first of which is a November
19, 2004 letter from him to Paint America at 640 Hickory Lane, Saline, Michigan
48176 enclosing three contracts of the Painting Articles of Agreement for
signing, and requesting a $300 check for the arbitration fund; that the second
page is a certificate of liability insurance, dated “12/07/04” which indicates
that the insured is Paint America Services, Inc., P.O. Box 456, Saline,
Michigan 48176; and that the third page is a copy of a check of “PAINT AMERICA,
A PAINT AMERICA SERVICES INC. COMPANY, P.O. BOX 456, SALINE, MI 48176,” dated
“12–06–04,” made payable to the Painters Arbitration Fund for $300 and signed
by Jamile Randazzo. With respect to General Counsel’s Exhibit 61, Kennedy
testified that it is the front and back page of a collective-bargaining
agreement between the Charging Party and Paint America Services, Inc. effective
June 1, 2004, through May 31, 2007; and that the business phone number of Paint
America Services, Inc. is 734–429–5190, the office address is 640 Hickory . . .
[Lane], Saline, Michigan 48176, Jamile Randazzo is designated as the
“President, Partner,” her telephone is 734–429–2193, and Jamile Randazzo signed
the agreement giving the title “President.” Kennedy testified that General Counsel’s
Exhibit 62 is a fringe benefit report that all employers turn in monthly; that
this one, which is dated January 30, 2004, is from a firm named Paint America
of Michigan, P.O. Box 456, Saline, Michigan 48176; that Jamile Randazzo signed
the report on the line designated “OWNER’S SIG-NATURE”; that General Counsel’s
Exhibits 63, 64, and 65 are other fringe benefit reports, dated “02/27/04,” “03–26–04,”
and “April 30, 04,” respectively, from Paint America of Michigan, P.O. Box 456,
Saline, Michigan 48176, all of which are signed by Jamile Randazzo on the line
designated “OWNER’S SIGNATURE”; that General Counsel’s Exhibits 66 and 67 are
print-out fringe reports for May and June 2004, respectively, and the June 2004
report has a fax number at the top, namely, “Jul 16 04 09:13a SRS GROUP INC 734
429 8184”[10];
that General Counsel’s Exhibit 68 is a fringe report for the period October
2004 through July 31, 2005, from Paint America Services, P.O. Box 456, Salina,
Michigan 48176 which is signed by Jamile Randazzo on the line designated
“OWNER’S SIGNATURE”; and that General Counsel’s Exhibits 69–72 are printout
fringe reports collectively for July, August, and September 2004, for Paint
America Services, Inc., all of which are signed by Jamile Randazzo; and that
Sal Randazzo used to be in charge of the Washtenaw County Painting and
Decorating Contractors of America and he used to work on collective-bargaining
agreements with the District Council.
On cross-examination, Kennedy testified
that Jamile Randazzo’s name appears in the “EMPLOYEES NAME IN FULL” column of
the fringe benefit report for “1–30–04,” “02–27–04,” and “03–26–04” (GC Exhs.
62, 63, and 64), respectively, because she was paying for health insurance for
her and her family; and that the Painters Union insurance fund also provides insurance
for the signatory contractor and their family if they pay the premium.
Thomas Trueman, who was a business agent/organizer
for the Charging Party, testified that General Counsel’s Exhibit 74 is the
front and back pages of a contract between the Charging Party and Paint America
which (a) he signed, (b) Jamile Randazzo signed on “07–02–03” as president of
Paint America (It is noted that the box for “Corporation” is checked on the
signature page.), (c) was an extension of the contract from June 1, 1998,
through May 31, 2004, (d) has his July 2. 2003 handwritten notations of “extend”
and “2004” after “May 31” on the back page, and (e) has the company shop
address as 640 Hickory Lane, Saline, Michigan, P.O. Box 456, 48176, a business
phone of 734–429–5190, and a fax number of 734–429–8184; that the 1-year
extension of the collective-bargaining agreement came about because on July 1,
2003, he received notification from a union member that Paint America got the
painting contract on the Law Quad for the University of Michigan; that he went
to this jobsite and found painters working there for Paint America; that since
Sal Randazzo did not have a contract with the Charging Party at the time and
one was required to work that job, he telephoned Sal Randazzo; that Sal
Randazzo told him to bring the contract out to the job and he, Sal Randazzo,
would sign the contract; that he met Sal Randazzo’s wife, Jamile, at the
jobsite and she signed the contract in his presence; that he was not sure if he
asked Jamile Randazzo why she was signing the contract instead of Sal Randazzo
but he recalled that she told him the day she signed this contract that she was
Sal Randazzo’s wife; that General Counsel’s Exhibit 75 is a May 7, 2004 letter
his secretary drafted and he sent to Mrs. Randazzo of Paint America of Michigan
advising her “that George E. Lancaster . . . has been appointed Shop Steward
for Paint America of Michigan effective May 7, 2004”; that on May 10, 2004, he
received a telephone call from Lancaster who told him that he was let go from
Paint America; that he telephoned Sal Randazzo that day or the next day and
asked him why Lancaster was let go; that Sal Randazzo told him that Lancaster
had to be employed with him for at least 15 days before he could be made
steward; that he told Sal Randazzo that Lancaster was not a new employee, he
had been a past employee, so he did not need to be employed for 15 days to be
made steward; that during this conversation Sal Randazzo said that he did not
need a union steward, and he could do anything he pleased; that during this
conversation Sal Randazzo did not say that he was not responsible for managing
or supervising Lancaster and he did not say that he was not affiliated with
Paint America of Michigan; that he knows the Paint America that Sal Randazzo
owns; that Paint America has been around for a while and when he became business
agent for the Charging Party Sal Randazzo was the person that owned it and
operated it; and that he is not familiar with a company called SRS Group.
On cross-examination, Trueman testified
that General Counsel’s Exhibit 55 is a contract between the Charging Party and
Paint America of Michigan, Inc. effective from June 1, 1998, through May 31,
2003; that on the front page of General Counsel’s Exhibit 74 “Paint America” is
typed on the line naming the contracting party and on the back page “Paint
America” is handwritten on the line for the name of the Employer; that his
secretary typed the former and he wrote the latter; that he put Paint America
on General Counsel’s Exhibit 74 because as far as he knew Sal Randazzo was
Paint America; that he may have told the secretary what to type on the
contract; that he wrote Paint America on the back sheet on the “Name of Employer”
and that is what his secretary used to typed up the remainder of General
Counsel’s Exhibit 74; that after Lancaster was terminated he, Trueman,
telephoned Sal Randazzo because he, Trueman, viewed Sal Randazzo as the owner
and operator of Paint America; and that at the seminar for the Saline schools
Sal Randazzo introduced himself to him as the owner of Paint America.
On redirect, Trueman testified that he
did not have any involvement in the preparation of the contract received as General
Counsel’s 55 and he did not sign that document; and that with respect to the
contract received as General Counsel’s Exhibit 74, Jamile Randazzo did not
voice any objection to him before she signed the contract.
On recross, Trueman testified that General
Counsel’s Exhibit 75 contains a copy of
Tommy Thomas testified that when he
became business agent for District Council 22 in 2003 he met Sal Randazzo in
July 2003 at a job at the
Paint
Excellence Applied
Since 1989
Sal Randazzo 107 E. Bennett
President
sal@paint-america.com Phone: 734–429–2366
Fax:
734–429–8184
An SRS Group Co. Web: www.paint-america.com
COMMERCIAL/INDUSTRIAL COATING AND WALL-COVERING
Thomas further testified that General
Counsel’s Exhibit 59 is a copy of a card which is maintained in a card file on
the business representative’s desk at the District Council and it is used for
correspondence with each individual signatory contractor. The card is dated
July 2, 2003, the name of the Employer is Paint America, the business phone
listed is 734–429–5190, the address is 640 Hickory Lane, P.O. Box 456, Saline,
Michigan 48176, the owner, president, partner listed is Jamile Randazzo, her
phone number is 734–429-5190, and her fax is 734–429–8184.
Lancaster testified that he worked for
Paint America from June 1999 through May 10, 2004; that he was a painter
foreman and a member of Local 514 since 1999 and he became a member of Local
675 in August or September 2004; that he was hired by Sal Randazzo after he was
interviewed, at the behest of Sal Randazzo, by Maurice, who was Sal Randazzo’s
head foreman; that he was laid off by Sal Randazzo during the winter months,
November through March, and then Sal Randazzo would telephone him and tell him
to report back to work; that he understood Sal Randazzo to be the owner of
Paint America because he always took directions from Sal Randazzo; that at a
point in time Sal Randazzo handed him a Nextel telephone so that Sal Randazzo
could communicate with him, and he, Lancaster, started running jobs; that when
he received the Nextel phone Lead Foreman Maurice told him he was a foreman, “you
got the phone, that means that you’re a foreman” (Tr. 159); that from then on
mainly he was the head on the jobs that he ran and he only reported to Sal
Randazzo; that the equipment he used included paint brushes and rollers, poles
for the rollers, airless spray equipment, ladders, scaffolding (including
bakers and perrys which are on wheels and are smaller than scaffolding), and
sandblasters; that this equipment was delivered by Sal Randazzo whenever the
equipment was needed; that every Friday Sal Randazzo would bring the paychecks
to the jobsite; that Sal Randazzo would bring time and material slips to the
jobsite when they were needed; that any time he did extra work he would fill
out the time and material slips, have the contractor on the site sign it, and
he would return it to Sal Randazzo[11];
that the painters wore white painters pants and Sal Randazzo delivered white
Paint America shirts, which had the red, white, and blue Paint America logo (see
GC Exh. 40) on them, to the painters and Sal Randazzo liked to see the painters
wearing the shirts; that at one time Sal Randazzo may have had some hats with
the Paint America logo on them that he handed out; that he never took any direction
in his daily work activities from Jamile Randazzo, who is Sal Randazzo’s wife;
that once in a while when he telephoned the office to turn in time or see where
he was going to go Jamile Randazzo would answer the telephone; that maybe a
total of five or six times throughout his employment with Paint America, Jamile
Randazzo delivered the paychecks to the jobsite; that once a week he called in
his hours to the office of Paint America and most of the time Sal Randazzo
answered the telephone; that there was another gentlemen in the office who
would answer the telephone and take the painters time but he did not remember
the person’s name; that Paint America had a 14- or 16-foot white GMC box van
which had the Paint America logo on it with the words “wall-to-wall,
coast-to-coast”; that Sal Randazzo used the box van to haul equipment,
materials, and tools; that he went to Paint America’s office which is located
on Bennett Street in Saline, Michigan, and which consisted of a house, a mobile
home trailer which was used as an office, and three tool trailers; that he
received Sal Randazzo’s business card which indicates that Sal Randazzo was president
of Paint America which, according to the card, was “[a]n SRS Group Co.”; that
with respect to “[a]n SRS Group Co.” on the card, Sal Randazzo told him that “sometimes
the SRS Group would win a contract, and if it was a union job, . . . the SRS
Group would subcontract the work to Paint America, which was a union contractor”
(Tr. 188); that General Counsel’s Exhibit 43 is his W-2 statement from “Paint
America of Michigan Inc., 640 Hickory Lane, Saline, MI 48176” for 2003; that
during 2003 there was never a change with respect to who he reported to on
jobsites, his uniform did not change, the paperwork he normally filled out in
his daily work activities did not change, he did not call any different phone
numbers to reach the Bennett Street office, he did not report to any different
office, no one other than Sal or Jamile Randazzo delivered his paycheck to the
jobsite during 2003, he did not report his time to anyone else other than Sal
Randazzo during 2003, and he did not use any different equipment; that 640
Hickory Lane Saline, Michigan, 48176 is Sal Randazzo’s home address, and he,
Lancaster, picked up a number of things there such as blueprints or paperwork
or attended a meeting there; and that he saw Jamile Randazzo at that location.
On cross-examination, Lancaster testified
that to the extent that he recalled Paint America of Michigan, Inc. was on his
paychecks; that Paint America changed banks several times during his employment
with the company; that a few times Sal Randazzo had handwritten different
checks, indicating that there was something wrong with the bank account; that
General Counsel’s Exhibit 43, a W-2 showing wages of $9,490.16, represents
about 10 weeks of work in 2003; that 90 percent of the time he worked 8-hour
days in 2003; that he did work for the SRS Group and he has received a
paychecks from the SRS Group, Inc; that when he received a paycheck from SRS
Group he was under the impression that he was still working for Paint America;
and that Paint America of Michigan, Incorporated was a union contractor when he
worked for Paint America.
On redirect,
On recross,
With respect to his termination,
Lancaster testified that the last job he worked on for Paint America was at the
dorm rooms of the University of Michigan in Ann Arbor, Michigan; that he
started this job on May 5 or 6, 2004, at the direction of Sal Randazzo; that
Sal Randazzo took the painters to the jobsite when the job started and Sal
Randazzo introduced them to the University of Michigan in-house painter who
showed them the rooms which needed to be painted with paint supplied by the
University; that he worked the job for 4 or 5 days; that the week he went back
to work for Paint America Local 514 Business Agent Tommy Trueman asked him to
be a union shop steward because the Union had trouble with Paint America keeping
up in all their benefits and keeping track of their hours; that he received his
union shop steward card; that 2 days later, a Monday night, Sal Randazzo telephoned
him, saying that he, Sal Randazzo, received paperwork from the Union indicating
that they had made Lancaster a shop steward for Paint America; and that
. . . right away he told me that he
didn’t need it, he didn’t want it, there was nobody else that he knew of that
had a shop steward. He was too small of a business, and he just wouldn’t have
it.
. . . .
Well, I explained to Sal that I thought it was a good thing that , you know, I knew in the past that there was some friction between Paint America, Sal Randazzo, and the union hall and District Council 22 and that I could be the mediator and maybe, . . . it would help things out. And he all—he just disagreed with me and—right away and said no, he said maybe you should have called me before I received this paperwork and no, and by the way I don’t need you to go to work tomorrow. So then I proceeded to ask him, well, there’s work there. You don’t need me, you don’t want me, am I laid off? And he says I don’t know. And I—and the conversation just went back and forth from there . . . . Sal are you laying me [off]? I don’t know.
. . . .
. . . . And I kept asking him, well, do I call you
tomorrow morning? I don’t know. Do I need to call you tomorrow; am I laid off,
Sal? I don’t know. And that went on for a good while, maybe four, five minutes.
And then the conversation ended that I wasn’t to work the next day. He would
call me when he needed me. And that’s how the conversation ended. [Tr. 196, 197.]
Lancaster further testified that he was
never recalled by Paint America; that General Counsel’s Exhibit 44 is a payroll
check from “PAINT AMERICA, A PAINT AMERICA SERVICES INC. COMPANY, PO BOX 456,
SALINE, MI 48176,” dated June 11, 2004, made payable to him and signed by
Jamile Randazzo; that General Counsel’s Exhibit 45 is the paycheck stub for
General Counsel’s Exhibit 44, for pay period “06/06/04,” both of which were
mailed to him in June 2004; that he did not know that he was working for a
company called Paint America Services Inc. Company; that before he received the
June 11, 2004 paycheck nothing had changed with respect to who he reported to
on a daily basis, his uniform, the paperwork he filled out in carrying out his
daily activities, the telephone number of the Bennett Street shop did not
change, the office location did not change, he did not use any different type
of equipment, and no one other than Sal or Jamile Randazzo delivered his
paycheck to the jobsite; that General Counsel’s Exhibit 46 is a payroll check
made payable to him, signed by Jamile Randazzo, dated “5/14/04,” with the name
of the company handwritten in the upper left corner of the check, namely “Paint
America, P.O. Box 456, Saline, Mi. 48176, Ph. 734–429–5190”; and that General
Counsel’s Exhibit 47 is a paycheck stub (described on the document as a payroll
summary report) for pay period “05/09/04.”[12]
General Counsel’s Exhibit 76 is a letter
dated May 20, 2004, from Union Business Representative Tommy Thomas to “PAINT
AMERICA and SRS GROUP, a Single Employer” requesting specified information
regarding employees and jobsites within the Union’s jurisdiction because the
Union was concerned that the two corporations were alter egos or a single
employer and engaged in double breasting. Thomas testified that as indicated by
page two of General Counsel’s Exhibit 76, he sent this letter to Paint America,
640 Hickory Lane, P.O. Box 456, Saline, Michigan 48176; that Jamile Randazzo,
who is the wife of Sal Randazzo, signed the receipt for the letter; that he
forwarded this correspondence because he had been approached by some of the
Union’s members, George Lancaster, Joezef Klimek, and Jac Kubicz, who told him
that during the week they would be painting for Paint America and receive a
Paint America check, and they would do weekend work for SRS Group and they
would either receive cash or a check without a check stub; that the work was
performed at the Henry Ford apartments; that he went to that location on May
20, 2004; that he was concerned that there was an attempt being made by using
two different companies to circumvent the Union and the collective-bargaining
contract; that he went to the Henry Ford apartments on May 23 and 24, 2004, he
saw Klimek and another union member, Fred Petracaj, working there on the weekend,
and they told him that they have to work weekends for either cash or straight
time or they would be removed from Paint America’s employ; that on Monday May
25, 2004, he telephoned the number on the card file at the Union for Paint America,
namely 734–429–5190; that he requested to speak with Sal Randazzo; that Sal Randazzo
told him that Klimek and Petracaj were working for SRS Group and not Paint America,[13]
SRS Group was not a signatory contractor and was not subject to the collective-bargaining
agreement, and his wife owned Paint America; that later that same day he dialed
the same telephone number (734–429–5190) and asked to speak to Jamile Randazzo;
that Jamile Randazzo told him that Klimek and Petracaj were working for her
husband’s company and not hers, they were working for her husband’s company on
the weekends and for her during the week, and she had no control over how her
husband did business; that this is the first time he realized of this attempt
to not pay fringe benefits for the Union’s members; and that General Counsel’s
Exhibit 77 is a handwritten letter which reads as follows:
June 22, 2004
Dear Mr. Thomas,
In response to your letters dated May 20th, or & June 16th, 2004 and having limited English proficiency; it took me days to translate your words and terms written in your letters. I still don’t understand clearly what are you accusing me of wrong doing!.
Mr. Thomas, for your information: I am the solely [sic]
owner of Paint
Mr. Thomas, from your accusations and persecuting attitude
I might conclude that you have issues against hard working minorities [sic]
individuals like me. You must have a lot of time in [sic] your hands to play
detective!!. Please do not waste any time in senseless accusations. Next time
you address a correspondence to me please do it in Spanish. Espanol is my first
language and the National Labor Relations Board Agency informed me that I am
intitle [sic] to request a translator from your office that I can understand
clearly what you are accusing me of wrong doing. Viva
gracias,
Jamile
Randazzo
As indicated by the printing at the top
of both pages of the letter it was faxed to Thomas. The printing at the top of
the pages reads “Jun 25 04 02:12a SRS
GROUP INC 734 429 8184 . . . .”
Thomas testified that he received this letter by fax on June 25, 2004; that the
fax number at the top both pages of the letter is for SRS Group and it happens
to be the exact same fax number for the signatory company Paint America, as
indicated on the card kept on file by the Union, General Counsel’s Exhibit 59;
and that he sent a letter to Paint America and SRS Group on June 16, 2004 but
he did not have a copy of the letter since it has been misplaced or lost.
Jacek Kubicz testified that he worked for
Paint America for 2 or 3 years, ending his employment with that Company in
2004; that at the time he was a member of Local 42 of the Painters’ Union; that
he got Paint America’s telephone from a union sheet of contractors and he telephoned
Paint America looking for job; that the man he spoke to on the telephone, Sal
Randazzo, asked him some questions about his work experience and then told him
to report to the Henry Ford Hospital job site the next day and speak to
Maurice, who was the supervisor; that the next day he told Maurice that he was
the new person, and he had spoken with the owner of the Company who sent him to
report to the job; that Maurice was expecting him; that he wore white pants and
a T-shirt and there was no lettering or insignia on the pants or shirt; that he
worked with Lancaster; that he had some of his own tools and there were other
tools on the job site; that a couple of times he saw a truck with a Paint
America logo or insignia on it, reading in part “Coast to Coast”; that the
truck was used to carry equipment; that he never saw Sal Randazzo drive that
truck; that he went to Sal Randazzo’s house on Bennett Street once for dinner;
that Maurice, Jamile, or Sal brought his paycheck to the jobsite; that
sometimes Lancaster, who was a foreman, delivered his paycheck at the jobsite;
that for about 1 year he painted on a job in the West Hall at the University of
Michigan; that General Counsel’s Exhibit 73 looks like the paycheck he received
every week[14];
that he left Paint America in August 2004 when the painting that he was doing
since May 2004 on the dorm rooms at the University of was completed; that a couple of times Jamile
Randazzo telephoned him when he was on lay off and she asked him if he wanted
to work because they had some work to be done; that he has heard of a company
called SRS Group, Inc., and he received a few paychecks from them while he was
employed by Paint America; and that during the time that he received paychecks
from SRS Group, Inc. and the time when he received General Counsel’s Exhibit 73
nothing had changed regarding (a) who he reported to, (b) who gave him his
paycheck, (c) the equipment that he used, or (d) the clothing that he wore. On
cross-examination, Kubicz testified that he did not know who the owner of Paint
Regarding his employment after he was
terminated on May 10, 2004, by Sal Randazzo, Lancaster testified that he was unemployed
from May 10–28, 2004; that with respect to attempts to secure alternative
employment he contacted District Council 22 and had his name put on the
out-of-work list; that he sent out four or five resumes each week (GC Exh. 48),
starting at the top of the contractor’s list, which is handed out by the District
Council and has the names of every union contractor in the District Council
area, and working his way down; that when he signed up for unemployment between
May 10–28, 2004, he put his resume on the web site of the Michigan Works; that
between May 10–28, 2004, he telephoned several business agents, namely Tommy
Trueman, Tommy Thomas, and Frank Neeb, and let them know that he was on the
out-of-work list; that he collected unemployment benefits between May 10–28,
2004; that he was hired by Interior Exterior Specialists at the end of May
2004; that General Counsel’s Exhibit 49 is his paycheck stubs from Interior
Exterior Specialists[15];
that his starting wage rate at Interior Exterior Specialists was $23.66, he received
an additional $2 an hour when he became a foreman for Interior Exterior
Specialists, he received $2,32 for every hour worked which went into a vacation
fund, and his benefits included retirement and health insurance; that Interior
Exterior Specialists was supposed to pay a prevailing wage on the painting work
done on schools but in August 2004 Interior Exterior Specialists stopped paying
all of his benefits; that Interior Exterior Specialists advised him that it
would not pay his benefits but would pay him the prevailing wage rate; that
when Interior Exterior Specialists ceased paying him the prevailing wage rate
he filed a claim for it and when Interior Exterior Specialists received the
paperwork regarding the prevailing wage rate claim he was advised on or about
February 9, 2005, by the owner of Interior Exterior Specialists that it did not
have any work for him; that he then collected unemployment; and that he was unemployed
from February 9, 2005, until the first part of March 2005 and during this period
he put his name on the out-of-work list, sent out a few resumes, talked to his
business agent, and updated his resume on the Michigan Works website.
Thomas testified that when a member
becomes unemployed for whatever reason there were two things the member could
do, namely have their name placed on the Union’s out-of-work list and get a
list of the signatory contractors from the
On March 16, 2005,
On cross-examination,
Lancaster testified that the day after
being laid off by Boice he was hired by Tye Painting, Inc. (Tye); that General
Counsel’s Exhibit 51 is the payroll pay stubs from Tye; that Tye is located in
Chelsea, Michigan, which is about a 1.5-hour drive from his home; that his wage
rate, $26.66, did not change while he worked for Tye; and that when the job he
was hired for was completed in late July 2005 he was let go with the owner of
Tye, Danny Tye, telling him that he did not have any more work for him.
According to his testimony, within a few
days after leaving Tye, the beginning of August 2005, he was hired by Woods
Construction, Inc. (Woods) in
William Erwin, who is a senior
procurement agent for the University of Michigan in Ann Arbor, Michigan,
testified that General Counsel’s Exhibit 17 is a February 6, 2004, $25,000 for
painting services purchase order (described as an award document to the vendor
for an article or product) of the University of Michigan which indicates that
the vendor is Paint America of Michigan Incorporated, P.O. Box 456, Saline, Michigan
48176[17];
that General Counsel’s Exhibit 19 is a March 23, 2004, $5,848.40 purchase order
of the University of Michigan which indicates that the vendor is Paint America
of Michigan Incorporated, P.O. Box 456, Saline, Michigan 48176, and that the
job is to paint closets and remove closet doors; that General Counsel’s Exhibit
20 is a March 24, 2004 $7270 purchase order receipt of the University of
Michigan which indicates that the vendor is Paint America of Michigan Incorporated,
P.O. Box 456, Saline, Michigan 48176; that General Counsel’s Exhibit 21 is a
Checklist, Processing Guideline, Purchase Order/Requisition, dated “3/24” of
the University of Michigan[18];
that General Counsel’s Exhibit 22 is a University of Michigan transaction report
dated March 25, 2004, of a faxed request for a quote which was sent to “Paint
America, ATTN: Sal Randazzo, FAX # 734–429–8184”; that General Counsel’s
Exhibit 23 is a University of Michigan March 24, 2004 five-page request for quotation
which was sent to “Paint America, ATTN: Sal Randazzo, FAX # 734–429–8184” and
the last page of which was filled out in handwriting specifying a date of “4/5/04,”
a supplier’s legal name of “Paint America,” a purported signature of Sal Randazzo
who also printed his name, a title was “GM,” next to the printed name Sal
Randazzo, an address of 107 E. Bennett, Saline, MI 48176, an email address of Salrandazzo@comcast.net, a phone number of
734–429–2366, a fax number of 734–429–8184, and a taxpayer identification
number of 38-3484068; that General Counsel’s Exhibit 24 is a March 26, 2004 e-mail
which is kept in the normal course of business by the University of Michigan[19];
that General Counsel’s Exhibit 26 is an eight-page March 31, 2004 University of
Michigan request for quotation faxed to “Paint America, Sal, Fax# 734–429–8184”[20]
with the last page filled out in handwriting to show (1) a date of “4/12/04,”
(2) “Paint America” as the supplier’s legal name, (3) an authorized signature
of Jamile Randazzo, who according to the form has the title of president, (4)
an address of “640 Hickory/P.O. Box 456, Saline, MI 48176,” (5) an e-mail
address of “Salrandazzo@comcast.net,” and (6) a telephone number of 734–429–5190;
that General Counsel’s Exhibit 27, which is a sign up sheet for those attending
a walk through on April 12, 2004, is signed by “Jamile R.” for “Paint America”
and a fax number of 1–734–429–8184 appears on the form next to “Jamile R.”;
that General Counsel’s Exhibit 28 is a March 31, 2004 request for quotation
from the University of Michigan to Paint America, Sal, FAX # 734–429–8184 which
was sent back to the University with a cover sheet from Paint America and with
page 8 of the exhibit filled out in handwriting to show (1) a date of “4/12/04,”
(2) “Paint America” as the supplier’s legal name, (3) an authorized signature
of Jamile Randazzo who according to the form has the title of president, (4) an
address of “640 Hickory/P.O. Box 456, Saline, MI 48176,” (5) an email address
of “Salrandazzo@comcast.net,” and (6) a telephone number of 734–429–5190[21];
that General Counsel’s Exhibit 29 is a University of Michigan internal e-mail
dated April 28, 2004, referring to Paint America being the lowest bidder on a
$175,000 job; that General Counsel’s Exhibit 30 is a University of Michigan,
April 29, 2004, purchase order to vendor “Paint America of Michigan Incorporated,
P.O. Box 456, Saline, MI 48176” for a job costing $8400; that General Counsel’s
Exhibit 31 is a May 4, 2004 University of Michigan internal e-mail indicating
that a $7270 job was being awarded to Paint America; that General Counsel’s
Exhibit 32 is a University of Michigan May 10, 2004 purchase order award for
vendor “Paint America of Michigan Incorporated, PO Box 456, Saline MI 48176”
for a $175,000 job; that General Counsel’s Exhibit 33 is a May 26, 2004
purchase order of the University of Michigan for vendor “Paint America of Michigan,
Incorporated, PO Box 456, Saline MI 48176” for painting the Martha Cook
building not to exceed $13,500[22];
that General Counsel’s Exhibit 34 is a University of Michigan internal e-mail
dated June 15, 2004, which indicates “[p]lease extend our Paint America P.O.
(3-412726) and add $25,000[23];
that General Counsel’s Exhibit 35 is a University of Michigan purchase order
dated July 27, 2004, for vendor “Paint America of Michigan Incorporated, PO Box
456, Saline MI 48176” for a paint job for $2950; that General Counsel’s Exhibit
36 is a University of Michigan July 27, 2004 purchase order for vendor Paint
America of Michigan Incorporated, PO Box 456, Saline, MI 48176” for a paint job
for $3500; that General Counsel’s Exhibit 37 is a University of Michigan July
27, 2004 purchase order for vendor “Paint America of Michigan Incorporated, PO
Box 456, Saline, MI 48176” for a paint job for $250; that General Counsel’s Exhibit
38 is a University of Michigan July 28, 2004 purchase order for vendor Paint
America of Michigan Incorporated, PO Box 456, Saline, MI 48176” for a paint job
for $9000[24];
and that General Counsel’s Exhibit 39 is a University of Michigan April 25,
2004 purchase order for vendor Paint America of Michigan Incorporated, PO Box
456, Saline, MI 48176” for a paint job for $331820.
Thomas testified that he went to the
Michigan Department of Labor & Economic Growth website and searched for
Paint America Services, Inc. on May 12, 2008. The results of his search (GC Exh.
78), read as follows:
Searched for: PAINT AMERICA SERVICES, INC.
ID NUM: 16200D
Entity Name: PAINT AMERICA SERVICES, INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: JAMILE RANDAZZO
Registered Office Address:
SALINE MI 48176
Mailing Address: MI
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 12–16–2003
Jurisdiction of Origin:
Number of Shares: 1,500
Year of the most Recent Annual Report:
Year of the Most Recent Report With Officers &
Directors:
Status: AUTOMATIC DISSOLUTION Date: 7–15–
2006
Further, Thomas testified that General
Counsel’s Exhibit 79 is a Filing Endorsement for the articles of incorporation
for Paint America Services, Inc. which is dated December 16, 2003, and which
includes the Articles of Incorporation which indicate that the address of the
registered office of this corporation is 640 Hickory Lane, Saline, Michigan
48176[25];
that he went to the Michigan Department of Labor & Economic Growth website
and searched for SRS Group, Inc. on May 12, 2008. The results of his search (GC
Exh. 7), read as follows:
Searched for: SRS GROUP, INC.
ID NUM: 14292D
Entity Name: SRS GROUP, INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: SAL RANDAZZO
Registered Office Address: 107 E. BENNETT,
SALINE MI 48176
Mailing Address: MI
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 8–12–1999
Jurisdiction of Origin:
Number of Shares: 60,000
Year of the most Recent Annual Report: 06
Year of the Most Recent Report With Officers &
Directors: 01
Status: ACTIVE Date: Present
Assumed Names Id NUM Creation Date Renew
Date Expiration Date
SRS
PAINT
DUTCHMAN CAULKING &
WATERPROOFING 14292A 10–13–1999 12-31–
2004
DECK RX 14292A 10–13–1999 12–31–
2004
Further, Thomas testified that General
Counsel’s Exhibit 80, which is dated 2004, is a document he printed off the
Michigan Department of Labor’s website; that the focus of his inquiry was SRS
GROUP, INC.,[26]
the resident agent listed on the document is Sal Randazzo of 107 E. Bennett,
Saline, Michigan 48176, the address of the registered office is the same, Sal
Randazzo’s title is president, the document was signed on “4/24/06,” and the
phone number is 734–429–2366. Additionally, Thomas testified that he went to
the Michigan Department of Labor & Economic Growth website and searched for
Paint
Searched for: PAINT
ID NUM: 281683
Entity Name: PAINT AMERICA INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: JAMILE RANDAZZO
Registered Office Address:
SALINE MI 48176
Mailing Address:
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 3–29–1990
Jurisdiction of Origin:
Number of Shares: 100,000
Year of the most Recent Annual Report: 92
Year of the Most Recent Report With Officers &
Directors:
Status: AUTOMATIC DISSOLUTIOIN
Date: 7–15–1995
Assumed Names Id NUM Creation Date Renew
Date Expiration Date
PAINT
Further, Thomas testified that he went to
the Michigan Department of Labor & Economic Growth website and searched for
Paint
Searched for: PAINT
ID NUM: 14292D
Entity Name: SRS GROUP, INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: SAL RANDAZZO
Registered Office Address: 107 E. BENNETT,
SALINE MI 48176
Mailing Address: MI
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 8–12–1999
Jurisdiction of Origin:
Number of Shares: 60,000
Year of the most Recent Annual Report: 06
Year of the Most Recent Report With Officers &
Directors: 01
Status: ACTIVE Date: Present
Assumed Names Id NUM Creation Date Renew
Date Expiration Date
SRS
2004
PAINT
DUTCHMAN CAULKING &
WATERPROOFING 14292A 10–13–1999 12–31–
2004
DECK RX 14292A 10–13–1999 12–31–2004
Thomas testified he went to the Michigan
Department of Labor & Economic Growth website and searched for Paint America,
Inc. on May 12, 2008. The results of his search (GC Exh. 83), read as follows:
Searched for: PAINT AMERICA, INC.
ID NUM: 281683
Entity Name: PAINT AMERICA, INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: JAMILE RANDAZZO
Registered Office Address:
SALINE MI 48176
Mailing Address:
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 3–29–1990
Jurisdiction of Origin:
Number of Shares: 100,000
Year of the most Recent Annual Report: 92
Year of the Most Recent Report With Officers &
Directors: 01
Status: AUTOMATIC DISSOLUTION Date: 7–15–
1995
Assumed Names Id NUM Creation Date Renew
Date Expiration Date
PAINT
Thomas testified that General Counsel’s
Exhibit 84 is a Certificate of Assumed Name that he printed off the Michigan Department
of Commerce website; that Paint America, Inc. was the subject of his search;
that the true name given on the certificate is Paint America, Inc.; that the
location of the corporate registered office is 640 Hickory Lane, Saline,
Michigan 48176; that the assumed name under which the business is to be transacted
is Paint America; that Jamile Randazzo signed the Certificate, which is dated
July 5, 1990, as president; that General Counsel’s Exhibit 85 is the Articles
of Incorporation for Paint America, Inc. which were filed March 29, 1990, with
the Michigan Department of Commerce, which document indicates that (a) the
address of the registered office is 640 Hickory Lane, Saline, Michigan 48176,
(b) the name of the resident at the registered office is Jamile Randazzo, (c)
the incorporators were Jamile and Salvatore James Randazzo of the same address,
and (d) the document was signed by Jamile and Salvatore Randazzo as
incorporators; and that he went to the Michigan Department of Labor &
Economic Growth website and searched for Paint America of Michigan, Inc. on May
12, 2008. The results of his search (GC Exh. 86), read as follows:
Searched for: PAINT
INC.
ID NUM: 14291D
Entity Name: PAINT
INC.
Type of Entity: Domestic Profit Corporation
Resident Agent: JAMILE RANDAZZO
Registered Office Address:
SALINE MI 48176
Mailing Address: MI
Formed Under Act Number(s):284–1972
Incorporation/Qualification Date: 8–12–1999
Jurisdiction of Origin:
Number of Shares: 60,000
Year of the most Recent Annual Report: 03
Year of the Most Recent Report With Officers &
Directors: 01
Status: DISSOLVED Date: 4–12–2005
Thomas testified that General Counsel’s
Exhibit 87 is the Articles of Incorporation for Paint America of Michigan, Inc.
that he printed off the Michigan Department of Commerce website; that the
specified registered office address is 640 Hickory Lane, Saline, Michigan
48176; that the name of the registered agent is Jamile Randazzo of the same
address; and that Jamile Randazzo signed the document.
Jay Greenhill, who is a Board field examiner
who works on compliance issues, testified that he drafted the involved amended
compliance specification (GC Exh. 1(j)); that General Counsel’s Exhibit 49 is
the pay stubs for Lancaster when he worked for Interior/Exterior Specialists
(Interior); that General Counsel’s Exhibit 50 is the pay stubs for Lancaster
when he worked for Boice Bird & Sons, Inc. (Boice); that General Counsel’s
Exhibit 51 is the pay stubs for Lancaster when he worked for Tye Painting, Inc.
(Tye); that General Counsel’s Exhibit 52 is the pay stubs for Lancaster when he
worked for Woods Construction, Inc. (Woods); that General Counsel’s Exhibit 53
is a print out of Lancaster’s hours at Woods; that General Counsel’s Exhibit 88
is a fax he received from Union Representative Thomas pursuant to his request
for a copy of the Union wage scale; that General Counsel’s Exhibit 89 is an
amendment to the amended compliance specification[27];
that Lancaster asserted that he worked for Paint America 40 hours per week
pretty regularly so without documentation from Paint America he used the 40-hour-per
week calculation; that General Counsel’s Exhibit 47 is the documents that Lancaster provided from
the time he worked for Paint America; that the pay stubs from Interior, Boice,
Tye, and Woods were used to determine interim earnings for the involved backpay
quarters; that the amendments to schedules A and B, General Counsel’s Exhibits
90 and 91, respectively, of the amended compliance specification are based on
the new records, General Counsel’s Exhibits 51 and 52, he received from
Lancaster; that he determined the revised interim earnings on schedule A by
using Lancaster’s pay stubs, and by taking the amount of hours that Lancaster
worked, and multiplying that figure by Lancaster’s hourly wage rate; that schedule
B is Lancaster’s union vacation fund earnings and he determined the Interim
Union Vacation Funds Earned by multiplying 40 hours a week by $2.32 per hour
for the backpay period up to August 1, 2004; that beginning August 1, 2004, he
began using the pay stubs Lancaster provided from Interior and he multiplied
the hours worked by $2.32 an hour; that starting about the pay period of
November 21–27, 2004, Lancaster stopped earning union vacation fund wages from
Interior; that the amount for Interim Union Vacation Funds Earned for the 1st
quarter of 2005 is $0 because Lancaster stopped earning union vacation fund
wages from Interior and Boise (GC Exh. 50) also did not pay the union vacation
fund; that the Interim Union Vacation Funds Earned is $320 for the second
quarter of 2005 because Lancaster started working for Tye; that for the third
quarter of 2005 he used the Tye and Woods pay stubs; and that for the fourth
quarter of 2005, all of 2006, and the first quarter of 2007 he used the Woods
pay stubs.[28]
On cross-examination, Greenhill testified
that, other than what
Salvatore Randazzo testified that he
resides at
At one point Salvatore Randazzo made the
following statement:
Judge West: Is it your position that the Respondents are not privy or were not privy to Mr. Lancaster’s earnings with the Respondent’s before he was terminated? Is that your position?
Mr. Randazzo: That’s my position, your Honor. [Tr. 685.]
Analysis
As noted above, this proceeding was
limited to a determination of derivative liability and interim earnings.
Counsel for the General Counsel on brief contends that he has met his burden of
proving by a preponderance of the evidence that Respondents constitute a single
employer; that the Board uses a four-factor test to determine whether two or
more businesses constitute a single employer, namely (1) common management, (2)
interrelation of operation, (3) centralized control of labor relations, and (4)
common ownership or financial control; that no single factor is dispositive,
nor must all factors be satisfied to prove single-employer status, Bolivar-Tees, Inc., 349 NLRB 720 (2007);
that the totality of the evidence in a particular case is controlling, Dow Chemical Co., 326 NLRB 288 (1988);
that the Board does not vest all four factors with equal importance and has
placed emphasis on the third factor, namely centralized control of labor
relations, Mercy Hospital of Buffalo,
336 NLRB 1282 (2001); that the Board uses a single-factor test to determine
single-employer status, namely the presence or absence of an arm’s-length
relationship amongst unrelated companies, Lanier
Corp., 346 NLRB 748 fn. 5 (2006); that the Board will find a
single-employer relationship where one spouse exercises control over key business
decisions of the other spouse’s company, such as finances, Silver Court Nursing Center, 313 NLRB 1141, 1142 (1994); that the
common management and centralized control of labor relations factors in the
single employer analysis are satisfied here because Salvatore Randazzo
exercised dominant control over Respondents’ managerial duties and supervised
Respondents’ employees on a daily basis; that Respondents’ business operations
were so interrelated as to constitute a single-integrated enterprise because
PA, SRS, PAMI, and PASI held themselves out to the public as a single
enterprise; that the Board treats ownership of separate companies owned by
close family members as common ownership where there is evidence that the
companies have less than an arm’s-length relationship and where there is
evidence of common management, centralized control of labor relations, and an
interrelationship of operations, Truck
& Dock Services, 272 NLRB 592 fn. 2 (1984); that here Salvatore and
Jamile Randazzo have been married since at least the mid- to late 1980s, they
share a residence at 640 Hickory Lane, Saline, and in 2004 the Board determined
in the underlying unfair labor practice decision that Jamile was “President”
and Salvatore was “Manager” of PASI; that Salvatore and Jamile shared “overall
control of critical matters at the policy level” on one another’s companies to
the extent that the common ownership is equivalent to actual or common control,
Emsing’s Supermarket, 284 NLRB 302,
303 (1987); that Salvatore managed Respondents’ day-to-day operations, and he
was the primary authority for the conduct of their labor operations (counsel
for the General Counsel provides 22 record citations); that in the mid- to late
1980s Salvatore cosigned a collective-bargaining agreement, along with his
wife; that about the summer of 2001 Salvatore introduced himself to the Union
as the owner of PA; that in July 2003 Salvatore negotiated the signing of a
collective-bargaining agreement telling the Union that his wife would sign the
agreement, which she did the following day; that the Union considered PA and
PAMI one and the same company, and Respondents presented no evidence that they
attempted to correct the Union’s belief; that the Board will find
single-employer status among companies owned by family members where they hold
themselves out to the public and there is evidence of common management,
centralized control of labor relations, common ownership and financial control,
and there is the sharing of business facilities and public signage, Silver Court Nursing Center, supra; that
Jamile signed checks to employees and SRS blurring the lines between SRS, PA,
and PASI because they share the same post office box, namely P.O. Box 456,
Saline; that since the creation of SRS and PA in 1999, Salvatore has
distributed a business card to not only the Union and employees, but to the
public stating he is the president for both PA and SRS companies; that
Salvatore’s business card (GC Exh. 8), lists the same fax number found on PA
letterhead, and lists the phone number and post office belonging to PAMI, PASI,
and PAI; that a single-employer relationship will be found among companies
where one spouse is a “dominant force” in managing the business, respondents
share the same customers and business purpose, and there is “some” intermingling
of respondents’ employees, Carthage Sheet
Metal Co., 286 NLRB 1249, 1283 (1987); that Salvatore was the primary
supervisor of Respondent’s employees because he was solely responsible for
managing and directing their daily activities; that employees’ contacts with
Jamile were minimal and infrequent; that employees saw Salvatore as the owner
of PA and manager of PASI; that
Salvatore hired Lancaster and Kubicz, Salvatore instructed them at the job site
either directly or indirectly by Lancaster-who he appointed jobsite foreman,
Salvatore assigned Lancaster a tool box containing small hand tools and issued
him a uniform with the PA logo, Salvatore laid off Lancaster when work was slow
(after Lancaster laid off Kubicz per Salvatore’s instructions), Salvatore
recalled Lancaster, Salvatore fired Lancaster on May 20, 2004,[30]
and Salvatore alone explained to the Union why he discharged Lancaster; that
here there was extensive intermingling of employees among PA, SRS, PAMI, and
PASI; that Lancaster received paychecks from PA, SRS, PAMI, and PASI, and
Kubicz received paychecks from PA, PASI, and SRS; that when employees received
different paychecks from Respondents, nothing changed about their management or
supervision, work clothing, equipment, or the persons handling payroll matters;
that Respondent’s management and supervision was so seamless that the various
Respondents were indistinguishable from one another; that Respondents made no
effort to distinguish themselves as separate employers in that in 2001
Salvatore Randazzo told Lancaster that when SRS won a contract involving union
work, it would subcontract the work to PA; that SRS and PA are not separate entities
as demonstrated by what Salvatore told the Union when it inquired as to whether
the collective-bargaining agreement was circumvented by having union members
Joezef Klimek and Frederik Petracaj work for cash on weekends, namely that SRS
was not bound by the PA collective-bargaining contract on the grounds that the
employees were working for SRS; that the intermingling of employees among
Respondents was further demonstrated by
the fringe benefit reports they submitted to the Union’s fringe benefit funds
on employees’ behalf in that (a) for January–May 2004, Jamile submitted fringe
benefit reports on behalf of PAMI naming union members Klimek, Lancaster, and
Kubiez, (b) for June 2004, SRS faxed a fringe benefit report naming Lancaster,
Kubiez, Klimek, and Petracaj, (c) that for July–September 2004, Jamile
submitted fringe benefit reports on behalf of PASI naming Kubiez, Klimek, and
Petracaj; that PA was scheduled to begin work at the University of Michigan on
May 4, 2004, and PAMI was already scheduled to be performing work there when
Lancaster was discharged on May 20, 2004; that Lancaster’s final two checks
show that he was employed by PA and PASI; that in February 2007 Salvatore generated
invoices on behalf of SRS and PA to University of Michigan for the payment for painting services performed
by Salvatore and union member Petracaj; that the interrelationship of
operations, centralized control of labor relations, and common ownership and
financial control factors in the single-employer analysis is satisfied here
because Salvatore and Jamile Randazzo exercised control over Respondents’
finances through the bidding process and labor relations; that Salvatore
exercised primary control over the finances of not only SRS and PA, but PAMI,
his wife’s company; that Salvatore used fax machines belonging to SRS, PA, and
PAMI to fax bid quotations addressed to PAMI from University of Michigan,
exercised judgment in deciding the wage rates he believed the proposed work
would involve, and returned the documents to University of Michigan, listing
the supplier’s name as PA; that PAMI shares the same post office box with PA,
SRS, PASI, and PAI; that PAMI shares the same phone number with PA, SRS, PAI, and
PASI; that Respondents did not present any evidence that they attempted to
counter the hand-in-glove relationship among PA, SRS, and PAMI from the
perspective of University of Michigan; that Jamile indirectly exercised limited
management and control over Respondents’ finances in that in April 2004, on
behalf of Salvatore, she returned job bid quotations and paint specifications
to University of Michigan using the fax
machine belonging to SRS, she identified herself as PA’s president and referenced
the residential address she shares with Salvatore on the documents, along with
the post office box publicly listed as also belonging to PAMI, PAI, and PASI;
that Jamile participated in a walk-through, which is a necessary part of the
job bid process, to review contractor specifications; that while the Board
gives less weight to the centralized control of labor relations factor when one
of a number of entities have no employees, here there was intermingling of employees
among PA, SRS, PAMI, and PASI, and Salvatore supervised their daily activities;
that Jamile exercised control over critical labor relations matters in that in
1993, 1999, 2003, and 2004 she signed collective-bargaining agreements with the
Union as president of PAI (also signed by Salvatore), PAMI, PA, and PASI, respectively;
that Jamile forwarded correspondence to the Union concerning the PAMI and PA
collective-bargaining agreements in March, June, and July 2003, and the last
two were sent from SRS’s fax machine; that Jamile prepared and submitted fringe
benefit reports to the Union as part of Respondent’s payment of employees’
fringe benefits; that in May 2004 when the Union questioned her about whether union
members employed by PA were also working weekends without benefit of the union
contract, Jamile told the Union that the union members worked for her husband’s
company during the weekend and for her during the week; that the absence of PAI
employees does not mitigate against a finding that PAI is a single employer together
with PA, SRS, PASI, and PAMI because the common management, interrelation of
operations, and common ownership and financial control factors are satisfied;
that there is interrelationship of operations because (a) PAI shares the same
post office box with PA, SRS, PAMI, and PASI; (b) PAI shares the Hickory Lane
address with Salvatore, Jamile, PA, SRS, PAMI, and PASI; (c) PAI shares the
same phone number with PA, PAMI, and PASI; and (d) despite the apparent
dissolution of PAI in 1995, PAI and SRS use PA as an assumed name and as recently
as May 2008, SRS was an active corporation that continues to use PA as an
assumed name; that counsel for the General Counsel has met his burden of
proving that Lancaster did not willfully fail to find interim employment; that
even though Lancaster did not secure employment with Boice until six weeks
after his layoff from Interior/Exterior, November to March has been traditionally
a period of slow work; that subsequently Lancaster worked for Woods on an
ongoing basis except for periods of unemployment from about November through
February because of a lack of work; that he did not seek interim employment
during his layoffs at Woods because he was promised and he was recalled when
work became available at Woods; that Respondents did not present any evidence
that there were substantially equivalent jobs in Lancaster’s relevant
geographic area during his periods of unemployment since Respondents discharged
him; that Respondents did not present any evidence that Lancaster failed to
exercise reasonable diligence in searching for interim employment, and they
have not recalled him to work; that SRS and PA (a) presented only Salvatore as
part of their case-in-chief, and (b) did not present any evidence to contradict
the evidence presented by counsel for the General Counsel; that Salvatore
Randazzo was not credible in his testimony about his failure to produce
subpoenaed documents; that Salvatore refused to provide any of the subpoenaed
documents concerning SRS and PA; that an adverse inference against SRS and PA
is warranted, namely that the subpoenaed documents concerning the
single-employer issue, if produced, would be unfavorable to PA and SRS; and
that counsel for the General Counsel’s renewed motion to strike the purported
physician’s letter attached to the Petition to Revoke filed by SRS should be
granted since it is unauthenticated, hearsay, and counsel for the General
Counsel was not given the opportunity to cross-examine the purported physician.
As noted above, Salvatore Randazzo filed
a brief, which he titled “THE Alleged RESPONDENT’S FINAL SUMMATION AND CLOSING
ARGUMENTS.” One of Salvatore Randazzo’s arguments reads as follows:
ARGUMENT No. 6
The third page from the end of the
Salvatore Randazzo’ pleading, contains the following:
CONSTRUCTIVE NOTICE OF LIS
PENDENS IS HEREIN GIVEN TO ALL PARTIES, WHO HAVE DELIBERATELY WITH MALICE AND
FORTHOUGHT SOUGHT TO INJURE ME, OR MY BUSINESS, OR MY FAMILY! TAKE HEADE [sic]
!! YOU ARE ABOUT TO BE SUED!!! [Emphasis in original.]
And the following appears on the tenth
unnumbered page of the brief:
VERY IMPORTANT NOTE HERE:
LOSS OF JUDICIAL IMMUNITY
It has also been well established that:
When a judge knows that he/she lacks
jurisdiction, or acts in face of clearly valid statutes expressly depriving
him/her of jurisdiction, jurisdictional immunity is lost. [Citation omitted.] .
. . . A judge must be acting within his
jurisdiction as to subject matter and person, to be entitled to immunity from
civil action for his acts. [Citation omitted.]
Generally, judges are immune from suit for judicial acts within or in
excess of their jurisdiction even if those acts have been done maliciously or
corruptly; the only exception being for acts done in the clear absence of all
jurisdiction. [Emphasis in original.]
No worthwhile purpose would be served
here by summarizing any other portion of this brief. Notwithstanding the fact
that Salvatore Randazzo was repeatedly told that the proceeding was limited to
derivative liability and interim earnings, he still, on brief, attempts to
address matters (a) he tried to relitigate, and (b) which are beyond the scope
of this proceeding.
In my opinion, Salvatore Randazzo is not
credible. His answers under oath to many of counsel for the General Counsel
questions regarding subpoenaed documents were obviously outright lies. His
conduct throughout the trial demonstrated that has a difficult time being
truthful, even while under oath. Salvatore Randazzo has been gaming the system.
For the most part, he has refused to comply unless and until he had no choice.
Counsel for the General Counsel’s renewed
Motion to Strike the purported doctor’s note attached to SRS’s Petition to Revoke
(see GC Exh. 2), is granted. No attempt was made to even properly authenticate
this hearsay letter.
Counsel for the General Counsel’s request
for an adverse inference is granted to the extent specified below. Salvatore Randazzo
did not turn over any documents pursuant to counsel for the General Counsel’s
subpoena requests. As noted above, the involved employees received payment from
SRS Group, Inc. and Paint
As noted above, the scope of this
proceeding is limited to determining derivative liability and interim earnings.
With respect to the former, the Board indicated as follows in Bolivar-Tees, Inc., 349 NLRB 720, 720
(2007):
The hallmark of a single employer is the absence of an arm’s-length relationship among seemingly independent companies. RBE Electronics of S.D., 320 NLRB 80 (1995); Hydrolines, Inc., 305 NLRB 416, 417 (1991). The Board looks at four factors in making a finding on this issue: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. Central Mack Sales, 273 NLRB 1268, 1271–1272 (1984). While the Board considers common control of labor relations a significant indication of single-employer status, Beverly Enterprises, 341 NLRB 296, 306 (2004), no single aspect is controlling, and all four factors need not be present to find single-employer status. Instead, the ultimate determination turns on the totality of the evidence in a given case. Dow Chemical Co., 326 NLRB 288, 288 (1998).
All of the four relevant criteria are met
here: interrelation of operations, common management, centralized control of
labor relations, and common ownership or financial control. In view of the
substantial interrelationship and the repeated lack of arm’s-length dealings
among the companies, single-employer status exists between PASI,
Interrelation of Operations
Respondents share the same customers, the
same business purpose, and there is intermingling of Respondents’ employees
among PA, SRS, PAMI, and PASI.
Common Management
As demonstrated by record evidence,
Salvatore Randazzo is the dominant force in managing Respondents. He is the one
who directs Respondents’ day-to-day business. He is the one who directs
employees. He is the one that the Union, the employees, and the
Centralized Control of Labor Relations
Salvatore Randazzo exercises dominant
control over the labor relations of the Respondents. As noted above, Salvatore
Randazzo was the one who discharged
Common Ownership or Financial Control
As pointed out by counsel for the General
Counsel on brief, the Board has used a single-factor test to determine single-employer
status, namely the presence or absence of an arm’s-length relationship amongst
unrelated companies, Lebanite Corp.,
346 NLRB 748 fn. 5 (2006), and the Board will find a single-employer
relationship where one spouse exercises control over key business decisions of
the other spouse’s company, such as finances, Silver Court Nursing Center, 313 NLRB 1141, 1142 (1994). Also as
pointed out by counsel for the General Counsel on brief, the Board treats
ownership of separate companies owned by close family members as common ownership
where there is evidence that the companies have less than an arm’s-length
relationship and where there is evidence of common management, centralized
control of labor relations, and an interrelationship of operations, Truck & Dock Services, 272 NLRB 592
fn. 2 (1984). All of these have been found above. Additionally, there is the
matter of the November 22, 2004, $5000 check signed by Jamile Randazzo, drawn
on the account of “Paint America, A
PAINT AMERICA SERVICES, INC. COMPANY, P.O. BOX 456, SALINE, MI 48176” made
payable to SRS Group. As noted above, Salvatore Randazzo claimed under oath
that he did not recall receiving it. Jamile Randazzo was not called as a witness
by the Respondents to explain this check that she signed and made out to her husband’s
company.[32]
Additionally, Salvatore Randazzo was the only one who entered an appearance at
the trial and testified for one of the Respondents (As noted above, Salvatore
Randazzo limited his appearance.), in the matter I have before me. Consequently,
it was not shown that anyone other than Salvatore Randazzo made the decision on
who would testify about this financial matter. This is a direct transfer of
funds from one of the Respondents to another Respondent. If Respondents are
unwilling to explain this transfer of funds, it cannot be found that the
transfer was an arm’s-length transaction. In view of the above and in view of
the financial control that Salvatore Randazzo has over the Respondents, I
believe that counsel for the General Counsel has shown by a preponderance of
evidence that in terms of this factor, in addition to the other factors described
above, all of the Respondents constitute a single employer.
With respect to interim employment, while
it took Lancaster from May 28 to May 18, 2004, to find employment with Interior/Exterior
Specialists after he was discharged by Salvatore Randazzo, Lancaster exercised
diligence in looking for employment in that during this period he contacted
District Council 22 and had his name put on the out-of-work list, he sent out
four or five resumes each week (GC Exh. 48), starting at the top of the
contractor’s list, which is handed out by the District Council (It has the
names of every union contractor in the District Council area.), and working his
way down, he signed up for unemployment between May 10–28, 2004, he put his resume
on the web site of the Michigan Works, he telephoned several business agents,
namely Tommy Trueman, Tommy Thomas, and Frank Neeb, and let them know that he
was on the out-of-work list, and he collected unemployment benefits between May
10–28, 2004. When he was without work between February 9 and March 16, 2005,
On these findings of fact and conclusions
of law and on the entire record, I issue the following recommended[33]
ORDER
The Respondents PASI, SRS, PA, PAI, and
PAMI, all of which constitute a single employer, are jointly and severally
liable for all backpay owed to George Lancaster and the Union’s vacation fund
on his behalf, and their officers, agents, successors, and assigns shall make
whole George Lancaster and the Union’s vacation fund in the amounts of
$26,029.20 and $4,117.68, respectively, plus interest to be computed in the
manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987); that the backpay owed to George Lancaster
and the union vacation fund continues to accrue because none of Respondents
have offered George Lancaster reinstatement; and that Respondents SRS and PA
are bound by the failure of PASI to file an appropriate answer to the original
compliance specification.
Dated,