Demonstrating an Illegal Double-Breast
Double-breasting (where one business operates a non-union shop along with a union shop) may be a violation of the union’s collective bargaining agreement. Double-breasting alone is not illegal. However, if the alter ego or double-breast is used to avoid the contractual obligations of the signatory employer, that likely violates the collective bargaining agreement.
When evaluating a claim that a company is double-breasting, a court or arbitrator will consider several factors. These are very fact-intensive, so one should gather as much information as possible before bringing a claim. The factors are:
Do the companies have the same owners? Compare the companies’ corporate structures, and look for common shareholders in management positions, common directors, officers, and RMOs.
Do the companies have the same managers and supervisors? Consider all the managers: do the same people manage the bidding and other aspects of running the business? The supervisors who supervise the field employees, i.e., superintendents, foremen, etc., are particularly relevant.
Is there centralized control of labor relations? Who is responsible for hiring, firing, discipline, assignments, and payroll?
Do the companies have the same employees? Again, field employees, who are performing the construction services, are particularly important.
Do the companies share common equipment? For instance, are the companies interchanging trucks, materials, or other supplies?
Do the companies share common office space? In addition to physical office space, also consider office telephone numbers, office fax numbers, common equipment yards, shared secretarial services, etc.
Do the companies have the same financial management or an interrelation of financial affairs? There are many ways to show this. For example, try to find out whether the companies use common estimators, common bank accounts, common workers’ compensation, common lawyers, common bonding, common lending, common payroll service providers, common bidding, etc.
These factors are used to show that the companies are so closely related that they should be treated as a single employer. To prevail on a double-breasting claim, you do not need to prove all the factors, but some combination is required: common supervision and sharing of equipment and employees is usually critical. It is important to develop a strong factual body of evidence before you pursue a grievance on this issue. Once the claim is started, the companies will likely take steps to make the companies seem more distinct, and it may be harder to get this information.
Author: Daniel S. Brome
