The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
:
PIPE FITTERS LOCAL 120, : CASE NO. 21-cv-00253
:
Plaintiff, : OPINION & ORDER
: [Resolving Docs. 32, 33]
v. :
:
QWEST MECHANICAL :
CONTRACTORS, et al. :
:
Defendant. :
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
In this case, Pipe Fitters Local Union No. 120 (“Local 120”) seeks to confirm a joint
committee grievance procedure award.1 In that award under a collective bargaining
agreement covering construction-area contractors, a joint contractors-labor union committee
found Defendant had violated the collective bargaining agreement by using non-bargaining
unit members to perform bargaining unit work.2
Defendants answer that the Union makes claim for work done by Qwest Mechanical
Corp. workers. Defendants acknowledge that Qwest Mechanical Contractors, Inc. signed
the collective bargaining agreement and is bound by its terms but also say that Qwest
Mechanical Corp. is separate from Qwest Mechanical Contractors, Inc. and never agreed to
be bound by the collective bargaining agreement.
Plaintiff responds that Defendants Qwest Mechanical Contractors, Inc. and Qwest
Mechanical Corp. (“Qwest Mechanical Defendants”), are alter egos of each other.
1 Doc. 1 at ¶¶ 24-39.
Now, Plaintiff moves for summary judgment.3 Defendants move to dismiss for lack
of subject matter jurisdiction, or, in the alternative, for summary judgment.4
The central issue the Court resolves is whether Defendants are alter egos. To decide
this question, the Court applies the Sixth Circuit balancing test, considering whether
Defendants have “substantially identical management, business purpose, operation,
equipment, customers, supervision and ownership.”5 If the two Defendant corporations
operate as alter egos, both are bound to the agreement that one corporation signed.
For the foregoing reasons, the Court GRANTS Plaintiff’s summary judgment motion.
The Court DENIES Defendants’ motion to dismiss and summary judgment motion.
I. Background
Plaintiff Local 120 sues Qwest Mechanical Defendants for breaching a collective
bargaining agreement.6
The parties entered into a collective bargaining agreement through a memorandum
of understanding. In 2015, Nicole Mikolak signed a memorandum of agreement on behalf
of “Qwest Mechanical.”7 The memorandum of agreement bound “Qwest Mechanical” to a
collective bargaining agreement negotiated by Local 120 and the Mechanical Contractors
Association.8 “Qwest Mechanical” did not withdraw from that agreement, binding it to the
current collective bargaining agreement.9
Defendants now argue that the signature on behalf of “Qwest Mechanical” only
3 Doc. 33.
4 Doc. 32
5 , 910 F.2d 331, 336 (6th Cir. 1990).
6 Doc. 1.
7 Doc. 33-9 (Memorandum of Agreement).
8 ; Doc. 33-7 (Predecessor Agreement).
9 Doc. 33-7 (Predecessor Agreement) at Art. XIX; Doc. 33-8 (Current Agreement); Doc. 33-6 (Ols Declaration) at
bound Defendant Qwest Mechanical Contractors, Inc., not Defendant Qwest Mechanical
Corp.10
Nicole Mikolak owns both Defendant corporations.11 Nicole and her husband Brian
Mikolak created Qwest Mechanical Corp. in 1996.12 Nicole and Brian Mikolak created
Qwest Mechanical Contractors, Inc. in 2011.13 Nicole Mikolak manages labor relations and
performs clerical work for both corporations.14 Brian Mikolak is an employee of both
companies.15 For some time, the two companies also shared a third employee, Brian
Kizzen.16
The Defendant corporations have filed shared federal tax returns. 17 The corporations
share accounting and tax services.18
This lawsuit against Qwest Mechanical Defendants concerns a joint committee
award. Before this lawsuit, Local 120 submitted a grievance under the collective bargaining
agreement grievance procedure.19 Local 120 claimed that Qwest Mechanical Defendants
violated the collective bargaining agreement by performing covered work with non-
bargaining unit members.20 A joint committee that included employer and union
representatives conducted a grievance hearing. The joint committee issued an award in
10 Doc. 32 at 1.
11 Doc. 33-51 (QMCI Discovery Responses) at 6; Doc. 33-52 (QMC Discovery Responses) at 6; Doc. 33-41 (Nicole
Mikolak Tr.) at 8:5-8, 23:18-25.
12 Doc. 33-41 (Nicole Mikolak Tr.) at 24:9-13.
13 at 8:21- 9:2.
14 Doc. 33-51 (QMCI Discovery Responses) at 7, 10; Doc. 33-52 (QMC Discovery Responses) at 7, 10; Doc. 33-
41 (Nicole Mikolak Tr.) at. 10:8-13, 11:25-12:12, 25:13-21.
15 Doc. 33-51 (QMCI Discovery Responses) at 18-19; Doc. 33-52 (QMC Discovery Responses) at 19; Doc. 33-33
(Brian Mikolak Tr.) at 8:20-23, 9:9-16, 23:14-19
16 Doc. 33-41 (Nicole Mikolak Tr.) at. 34:15-16, 44:8-20; Doc. 33-35.
17 Doc. 33-51 (QMCI Discovery Responses) at 18; Doc. 33-52 (QMC Discovery Responses) at 18.
18 Doc. 33-45 (sealed); Doc. 33-46 (sealed); Doc. 33-51 (QMCI Discovery Responses) at 10; Doc. 33-52 (QMC
Discovery Responses) at 11-12.
19 Doc. 33-6 (Ols Declaration) at ¶¶ 13-20; Doc. 33-10; Doc. 33-34 at Art. XIV (Predecessor Agreement); Doc.
33-8 at Art. XIV (Current Agreement).
Local 120’s favor.21
After the joint committee hearing, Plaintiff Local 120 brought this federal court lawsuit
to confirm the joint committee award.22 Plaintiff seeks to confirm the joint committee award
under Labor Management Relations Act Section 301, 29 U.S.C. § 185.
This Court previously granted Plaintiff Local 120’s motion to dismiss Defendant
Qwest Mechanical Contractors, Inc.’s counterclaims.23 The Court held that it did not have
subject matter jurisdiction to grant Defendant’s requested declaratory judgment declaring
that Defendant lawfully withdrew from the collective bargaining agreement. The Court also
held that Defendant did not sufficiently plead a breach of contract.
Now, Plaintiff Local 120 moves for summary judgment.24 Plaintiff argues that, as alter
egos, both Defendants are bound to the collective bargaining agreement and must follow
the joint committee award. Defendants move to dismiss the complaint or, in the alternative,
for summary judgment.25 Defendants claim that the Court does not have jurisdiction to
consider Plaintiff’s claims. The Defendant corporations also deny that they are alter egos.
II. Legal Standard
Courts grant summary judgment if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.”26 A genuine issue of material fact exists where “a reasonable jury could
21 Doc. 33-12; Doc. 33-13; Doc. 33-27 (Wanner Declaration) at ¶¶ 4-14.
22 Doc. 1.
23 Doc. 31.
24 Doc. 33.
25 Doc. 32.
return a verdict for the nonmoving party” based on the evidence.27
In reviewing a motion for summary judgment, the Court views all evidence in the
light most favorable to the nonmoving party.28 The nonmoving party “must show sufficient
evidence to create a genuine issue of material fact”29 as to each of the claim’s required
elements.30 But summary judgment is still appropriate “[i]f the evidence is merely colorable
. . . or is not significantly probative.”31
III. Discussion
A. Subject Matter Jurisdiction
Plaintiff Local 120 filed this lawsuit to confirm a joint committee award. Plaintiff
obtained the award under the collective bargaining agreement grievance procedures.32
This Court receives jurisdiction to confirm the joint committee award under Labor
Management Relations Act Section 301, 29 U.S.C. § 185. Section 301 gives federal courts
jurisdiction over suits alleging breach of a collective bargaining agreement.33 Under this
authority, a district court may grant enforcement of a joint committee award where the
collective bargaining agreement makes the joint committee award final and binding.34
Where parties agreed to binding joint committee procedures in the collective
bargaining agreement, the National Labor Relations Board, the U.S. Supreme Court, and the
Sixth Circuit have applied the same standards to joint committee awards that courts generally
27 , 880 F.3d 256, 262 (6th Cir. 2018) (quoting , 477 U.S. 242,
248 (1986)).
28 , 506 F.3d 496, 500–01 (6th Cir. 2007) (citation omitted).
29 (citation omitted).
30 (noting that a scintilla of evidence is not enough to defeat a summary judgment motion).
31 , 477 U.S. at 249–50.
32 Doc. 33-6 (Ols Declaration) at ¶¶ 13-20; Doc. 33-10; Doc. 33-7 at Art. XIV (Predecessor Agreement); Doc. 33-
8 at Art. XIV (Current Agreement); Doc. 33-12; Doc. 33-13; Doc. 33-27 (Wanner Declaration) at ¶¶ 4-14.
33 29 U.S.C. § 185.
apply to arbitration awards.35
In this case, under the collective bargaining agreement, the parties agreed to submit
grievances to a joint committee composed of employer and union representatives.36
Management and Local 120 appoint equal number of joint committee members.
The grievance procedure allowed later arbitration of “unresolved disputes” “[i]f the
Committee is unable to resolve the dispute.”37 Here, the Joint Committee resolved the
dispute by granting an award in favor of Plaintiff Local 120. This award is binding under the
collective bargaining agreement. The Court therefore has Section 301 jurisdiction to enforce
the award.
Unlike the counterclaims this Court previously dismissed, ruling on Plaintiff’s claim
would not alter the bargaining relationship between the parties. Instead, Plaintiff seeks to
enforce an award obtained through the parties’ agreed-on private dispute settlement
procedures.
Defendant argues that the court does not have jurisdiction because the joint
committee award is inconsistent with Defendants’ agreement with another union.38
Defendants did not raise this challenge to the Joint Committee.39 Defendants also did not
raise this defense within the three-month statute of limitations for challenging arbitration
awards.40 Defendants waived this challenge under Sixth Circuit law by failing to appear at
35 132 NLRB 1416, 1421 (1961); , 372 U.S. at 519;
, 560 F. Appx. 529, 538 (6th Cir. 2014) (unpublished).
36 Doc. 33-7 at Art. XIV (Predecessor Agreement); Doc. 33-8 at Art. XIV (Current Agreement).
37 Doc. 33-7 at Art. XIV, § 3 (Predecessor Agreement); Doc. 33-8 at Art. XIV, § 3 (Current Agreement).
38 Doc. 32 at 9-10.
39 Doc. 33-12; Doc. 33-27 (Wanner Declaration) at ¶¶ 8-12.
40 Ohio Rev. Code § 2711.13;
06-12917, 2008 WL 506350, at *6 (E.D. Mich. Feb. 22, 2008) (“Decisions which derive from employer-
union grievance panels are subject to the same statute of limitations for actions to vacate an arbitration award—three
the join t committee grievance hearing.41
B. Defendants’ Alter Ego Status
a. Alter Ego Legal Standard
“The alter ego doctrine is an equitable doctrine ‘developed to prevent employers from
evading obligations under the [National Labor Relations] Act merely by changing or altering
their corporate form.’”42 When two corporations are alter egos, both are bound to union
agreements even if only one of the corporations signed the agreement.43
To decide whether corporations are alter egos, the Sixth Circuit applies a balancing
test. Under this test, courts consider “whether the two enterprises have substantially identical
management, business purpose, operation, equipment, customers, supervision and
ownership.”44 Courts also consider whether an employer had intent to evade the collective
bargaining agreement, though this factor is not dispositive.45 Courts apply the alter ego test
flexibly, with no single factor predominating over others.46
Alter egos arise in two factual scenarios: (1) disguised continuance, where a union
employer closes and reopens as a non-union employer; and (2) a “double-breasted
operation,” where “two or more coexisting employers performing the same work are in fact
one business, separated only in form.”47
This case involves a double-breasted analysis. The Sixth Circuit has recognized alter
41 Doc. 33-12; Doc. 33-27 (Wanner Declaration) at ¶¶ 8-12.;
, 560 F. App'x 529, 540 (6th Cir. 2014) (unpublished);
, 707 F.2d 254, 258 (6th Cir. 1983).
42 , 581 F.3d 313, 317-18 (6th Cir.
2009) (quoting , 780 F.2d 576, 579 (6th Cir. 1986)).
43 at 318.
44 , 910 F.2d at 336.
45 , 780 F.2d at 581; , 581 F.3d at 319.
46 , 83 F.3d 747, 759 (6th Cir. 1996).
ego employers in the “reverse double-breasting” context at issue here, where “a non-union
company opens a sister company that becomes a union signatory.”48
b. Factors in Favor of Alter Ego Status
After balancing the Sixth Circuit factors—"substantially identical management,
business purpose, operation, equipment, customers, supervision and ownership”—the Court
finds that Defendant Qwest Mechanical Contractors, Inc. and Defendant Qwest Mechanical
Corp. are alter egos under the Sixth Circuit standard. The corporations have substantially
identical management, business purpose, operations, supervision, and ownership.
The Defendant corporations have shared ownership, management, and supervision.
Nicole Mikolak owns both companies.49 Nicole is an officer of both corporations.50 Nicole
oversees labor relations for both companies.51 Her husband Brian Mikolak also helped
establish both companies and claims a leadership role at both.52
Defendants also share a business purpose. With the business purpose factor, courts
consider “overlap in the type of work performed.”53 Both Defendant corporations worked
in construction and construction maintenance.54 This common business purpose supports an
alter ego finding.
Defendants have overlapping operations. Most importantly, the Defendant
48 , 581 F.3d at 318.
49 Doc. 33-51 (QMCI Discovery Responses) at 6; Doc. 33-52 (QMC Discovery Responses) at 6; Doc. 33-41 (Nicole
Mikolak Tr.) at 8:5-8, 23:18-25.
50 Doc. 33-51 (QMCI Discovery Responses) at 5; Doc. 33-52 (QMC Discovery Responses) at 5;
51 Doc. 33-51 (QMCI Discovery Responses) at 7; Doc. 33-52 (QMC Discovery Responses) at 7; Doc. 33-41 (Nicole
Mikolak Tr.) at. 10:8-13, 25:13-21.
52 Doc. 33-33 (Brian Mikolak Tr.) at 8:20-23, 9:9-16, 23:11-19; Doc. 33-41 (Nicole Mikolak Tr.) at 8:21- 9:2; 24:9-
13.
53 , 919 F.3d 368, 377 (6th
Cir. 2019) (quotation marks omitted).
54 Doc. 33-51 (QMCI Discovery Responses) at 9; Doc. 33-52 (QMC Discovery Responses) at 10; Doc. 33-33 (Brian
corporations have filed shared federal tax returns.55 The Defendants also share contractor
licenses.56 Defendants have offices in the same building and sometimes use the same mailing
address.57 Defendants share accounting and estimating services, use the same individual for
bookkeeping services, and use the same tax preparation service.58 The same employee
accepts service of process on behalf of both companies.59 Finally, the Defendant
corporations share three employees.60
While company names are not a factor in the alter ego test, some courts consider
company names as part of the alter ego inquiry.61 Here, Nicole Mikolak signed the
memorandum of understanding as “Qwest Mechanical.”62 That name could apply to either
Defendant Qwest Mechanical Contractors, Inc. or Defendant Qwest Mechanical Corp.
These similar names supply added support for the Court’s alter ego finding.
c. Factors Against Alter Ego Status
Several factors cut against alter ego status. The record does not show shared
equipment or customers.63 In addition, the record does not suggest that Defendants formed
the two corporations with intent to evade a collective bargaining agreement.
When balanced, however, the factors favoring alter ego status outweigh the factors
against it.64
55 Doc. 33-51 (QMCI Discovery Responses) at 18; Doc. 33-52 (QMC Discovery Responses) at 18.
56 Doc. 33-51 (QMCI Discovery Responses) at 17.
57 Doc. 33-41 (Nicole Mikolak Tr.) at 15:7-10, 27:5-21; Doc. 33-45 (sealed); Doc. 33-46 (sealed).
58 Doc. 33-51 (QMCI Discovery Responses) at 10; Doc. 33-52 (QMC Discovery Responses) at 11-12.
59 Doc. 33-41 (Nicole Mikolak Tr.) at 60:20-63:14; Doc. 33-49; Doc. 33-50.
60 Doc. 33-51 (QMCI Discovery Responses) at 18-19; Doc. 33-52 (QMC Discovery Responses) at 19; Doc. 33-33
(Brian Mikolak Tr.) at 71:24-72:18.
61 , , 1:13-CV-858, 2015 WL 4191297,
at *19 (S.D. Ohio July 10, 2015).
62 Doc. 33-9 (Memorandum of Agreement).
63 Doc. 33-51 (QMCI Discovery Responses) at 8, 16; Doc. 33-52 (QMC Discovery Responses) at 8, 13.
64 , 83 F.3d at 759 (affirming alter ego finding where corporations had shared headquarters and
employees, shared labor relations supervision, and a shared supervisor);
d. Alter Ego Finding
The Court holds that Defendant Qwest Mechanical Contractors, Inc. and Defendant
Qwest Mechanical Corp. are alter egos. The corporations have a shared owner, overlapping
management and supervision, and two shared employees. The corporations also have
overlapping operations, with shared federal tax filings, shared accounting and tax preparation
services, and shared service of process. The Defendant corporations also have offices in the
same building and sometimes share a mailing address. Taken together, these factors show
that the Defendants are alter egos.
Because the two corporations are alter egos, the “Qwest Mechanical” signature binds
both corporations to the collective bargaining agreement with Local 120. Both Defendants
must satisfy the joint committee award.
C. Defendants’ Objections to the Joint Committee Award
When considering the validity of a joint committee award, district courts apply “one
of the narrowest standards of judicial review in all of American jurisprudence.”65 This
standard represents longstanding federal policy favoring “private settlement of disputes”
under collective bargaining agreements.66
Under this narrow standard of review, courts consider whether the process was
legitimate, whether the collective bargaining agreement commits grievances to the joint
committee procedure, and whether fraud, a conflict of interest or dishonesty makes the joint
(holding that corporations were alter egos where corporations had shared owner, shared officer, three shared employees,
but separate bank accounts).
65 , 560 F. App'x 529, 540
(6th Cir. 2014) (unpublished).
66 v. Hoosier Cardinal
committee award unenforceable.67
Defendants argue that the joint committee award is invalid because Defendant Qwest
Mechanical Corp. did not have notice of the grievance.68 The Court finds that both
Defendants had sufficient notice because Brian Mizolak, an employee of both companies,
received official notice.69 The intertwined nature of the two corporations also undermines
Defendants’ notice argument. Finally, Nicole Mizolak, owner of both Defendant
corporations, received the joint committee award letter.70 This letter gave her sufficient
notice to challenge the award within the three-month statute of limitations.
Further undermining Defendants’ objections, Defendant Qwest Mechanical
Contractors, Inc. did not participate in the joint committee hearing.71 The Sixth Circuit has
held that an employer who does not participate in a joint committee grievance proceeding
waives the right to challenge the outcome.72 “To allow a party to avoid the effect of a
grievance proceeding by merely refusing to participate would destroy any incentive to
peacefully negotiate labor disputes.”73
IV. Conclusion
For the reasons stated above, the Court GRANTS summary judgment in favor of
Plaintiff and DENIES Defendants’ summary judgment motion.
The Court ORDERS Defendants’ compliance with the joint committee award. The
Court retains jurisdiction until Defendants comply with the award. The Court retains
67 , 475 F.3d 746, 752, 754 (6th Cir.
2007).
68 Doc. 36 at 8.
69 Doc. 33-10.
70 Doc. 33-12.
71 ; Doc. 33-27 (Wanner Declaration) at ¶¶ 8-12.
72 , 560 F. Appx. at 540; , 707 F.2d at 258.
jurisdiction to consider any motion for an attorney fee award.
IT IS SO ORDERED.
Dated: December 22, 2021
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE