Yorke, Nathan Trustee

NATHAN YORKE, TRUSTEE 819 Nathan Yorke, Trustee in Bankruptcy, Successor in seven employees were still actively working.3 It Bankruptcy, or Alter Ego to the Seeburg Corpo- appears the layoffs and recalls took place in ac- ration and Seeburg Service Parts Co.,' a Single cordance with the seniority provisions of the par- Employer and Local Union 743, Warehouse, ties' collective-bargaining agreement and that the Mail Order, Technical and Professional Emr - Maployees U , Inec rnatinal Barothfessional Union did not request bargaining or object to any ployees Union, International Brotherhood of of the layoffs when they occurred. Teamsters, Chauffeurs, Warehousemen and f he layoffs when they occurred. Helpers of America. Case 13-CA-19631 On February 4, 1980, the bankruptcy court ap- pointed Nathan Yorke to act as Seeburg's trustee in December 28, 1981 bankruptcy and Yorke was given authority to con- DECISION AND ORDER ~ tinue to operate the business. At a creditors' meet- ing on February 8, 1980, Yorke learned from On April 23, 1981, Administrative Law Judge Joseph P. Dillon, Seeburg's treasurer and chairman Nancy M. Sherman issued the attached Decision in of its board, that Seeburg had lost about $350,000 this proceeding. Thereafter, the General Counsel since it had filed its October 19, 1979, petition, and and the Union filed exceptions and supporting that its liabilities exceeded $8 million and the book briefs and Respondent filed cross-exceptions and an value of its assets approximated $6 million which, answering brief. when liquidated, amounted to about $1.5 million. Pursuant to the provisions of Section 3(b) of the On February 11, 1980, Yorke requested, and the National Labor Relations Act, as amended, the Na- bankruptcy court issued, an order authorizing him, tional Labor Relations Board has delegated its au- inter alia, to curtail Seeburg's operations by "termi- thority in this proceeding to a three-member panel. nating all personnel save certain key individuals The Board has considered the record and the at- who will be retained for services the trustee deems tached Decision in light of the exceptions and necessary in furtherance of the instant reorganiza- briefs and has decided to affirm the rulings, find- tion . . . ings, and conclusions of the Administrative Law Upon receipt of the order on February 11, Yorke Judge and to adopt her recommended Order, as shut down the plant facility used by both Seeburg modified herein. and Seeburg Service and released all personnel in- The Administrative Law Judge found, and we cluding the seven unit employees who were still agree, that Respondent violated Section 8(a)(5) and working on that date. 4 Four days later, the Union (1) of the Act by terminating its operations at its found out about the shutdown and demanded that Chicago, Illinois, facility without prior notice to an immediate meeting be set up to discuss, inter the Union and without affording it an opportunity alia, the effects of Yorke's action. In his reply of to bargain with Respondent concerning the effects February 25, Yorke failed to accede to this of such conduct on unit employees. However, we demand. Thereafter, the bankruptcy court author- disagree with her further finding that no Transmar- ized Yorke to offer some parts for sale and, in ine backpay order2 is warranted in the circum- April 1980, Yorke and Dillon made arrangements stances of this case. with the Union to recall two or three individuals to The record shows that the unit employees were assist in this endeavor. According to Yorke, he covered by a 3-year collective-bargaining agree- "operated the business" until July 1980, when, pur- ment effective to September 1980. Prior to the va- suant to a court-approved reorganization plan, See- cation period which traditionally ends in mid- burg and its purchaser in liquidation, Stern Elec- August, Respondent Seeburg had in mid-July 1979 tronics, agreed to set aside $49,000 of the estate's an active payroll of about 385 or 395 employees. assets should a finding of backpay liability ultimate- However, as Seeburg had financial or cash-flow ly be made by the Board.? In addition, Stern Elec- problems, no one was called back to work until tronics agreed to cover an additional $6,000 of po- mid-September 1979 when only 250 unit employees tential backpay liability. Upon completion of the were recalled. sale at the end of July 1980, Yorke terminated the On October 19, 1979, Seeburg filed a petition for employees who had been recalled in April 1980. reorganization under Chapter 11 of the Bankruptcy reorganization under Chapter II of the Bankruptcy I" Their names appear in the record as follows: G. Pawlick, Mr. Sza- Act. At this time, there were further layoffs and, fader, Johnnie Miller Mr. Kopczynski, T. Swienton, Mr. Lakos, and T by January 1980, the complement was reduced to A. valenza. about 60 employees. By February 4, 1980, only Pursuant to an order of the bankruptcy court. Yorke paid these em- aou e. yy ployees their wages through February 9. 1980. Yorke did not notify the Union of the shutdown. In fact, Yorke at that time did not know that a 'Herein respectively called Seeburg and Seeburg Service. union represented Seeburg's employees. Transmarine Navigation Corporation and its Subsidiary. International s By that time the charge in the instant proceeding had been filed with Terminals. Inc., 170 NLRB 389 (1968). the Board by the Union. 259 NLRB No. 105 NATHAN YORKE, TRUSTEE 819 Nathan Yorke, Trustee in Bankruptcy, Successor in seven employees were still actively working. 3 It Bankruptcy, or Alter Ego to the Seeburg Corpo- appears the layoffs and recalls took place in ac- ration and Seeburg Service Parts Co.,' a Single cordance with the seniority provisions of the par- Employer and Local Union 743, Warehouse, ties' collective-bargaining agreement and that the Mail Order, Technical and Professional Em- t qu bargaining or object to any ployees Union, International Brotherhood of of the layoffs when they occurred. ec to an Teamsters, Chauffeurs, Warehousemen andof the layoffs when they occurred. Helpers of America. Case 13-CA-19631 On February 4, 1980, the bankruptcy court ap- pointed Nathan Yorke to act as Seeburg's trustee in December 28, 1981 bankruptcy and Yorke was given authority to con- DECISION AND ORDER t i n u e t o operate t h e business. At a creditors' meet- ing on February 8, 1980, Yorke learned from On April 23, 1981, Administrative Law Judge Joseph P. Dillon, Seeburg's treasurer and chairman Nancy M. Sherman issued the attached Decision in of its board, that Seeburg had lost about $350,000 this proceeding. Thereafter, the General Counsel since it had filed its October 19, 1979, petition, and and the Union filed exceptions and supporting that its liabilities exceeded $8 million and the book briefs and Respondent filed cross-exceptions and an value of its assets approximated $6 million which, answering brief. when liquidated, amounted to about $1.5 million. Pursuant to the provisions of Section 3(b) of the On February 11, 1980, Yorke requested, and the National Labor Relations Act, as amended, the Na- bankruptcy court issued, an order authorizing him, tional Labor Relations Board has delegated its au- inter alia, to curtail Seeburg's operations by "termi- thority in this proceeding to a three-member panel. nating all personnel save certain key individuals The Board has considered the record and the at- who will be retained for services the trustee deems tached Decision in light of the exceptions and necessary in furtherance of the instant reorganiza- briefs and has decided to affirm the rulings, find- tion . . . ." ings, and conclusions of the Administrative Law Upon receipt of the order on February 11, Yorke Judge and to adopt her recommended Order, as shut down the plant facility used by both Seeburg modified herein. and Seeburg Service and released all personnel in- The Administrative Law Judge found, and we eluding the seven unit employees who were still agree, that Respondent violated Section 8(a)(5) and working on that date.' Four days later, the Union (1) of the Act by terminating its operations at its found out about the shutdown and demanded that Chicago, Illinois, facility without prior notice to a n immediate meeting be set up to discuss, inter the Union and without affording it an opportunity alia, th e effects of Yorke's action. In his reply of to bargain with Respondent concerning the effects February 25, Yorke failed to accede to this of such conduct on unit employees. However, we demand. Thereafter, the bankruptcy court author- disagree with her further finding that no Transmar- ized Yorke to offer some parts for sale and, in ine backpay order2 is warranted in the circum- April 1980, Yorke and Dillon made arrangements stances of this case. with the Union to recall two or three individuals to The record shows that the unit employees were assist in t h is endeavor. According to Yorke, he covered by a 3-year collective-bargaining agree- "operated the business" until July 1980, when, pur- ment effective to September 1980. Prior to the va- su a n t to a court-approved reorganization plan, See- cation period which traditionally ends in mid- burg and its purchaser in liquidation, Stern Elec- August, Respondent Seeburg had in mid-July 1979 tronics, agreed to set aside $49,000 of the estate's an active payroll of about 385 or 395 employees. a sset s should a finding of backpay liability ultimate- However, as Seeburg had financial or cash-flow ly b e m ad e by t h e Board.s In addition, Stern Elec- problems, no one was called back to work until tro nic s agreed to c o v e r an additional $6,000 of po- mid-September 1979 when only 250 unit employees tential backpay liability. Upon completion of the were recalled. sale at the end of July 1980, Yorke terminated the On October 19, 1979, Seeburg filed a petition for employees who had been recalled in April 1980. reorganization under Chapter 11 of the Bankruptcy--- reorganization under Chapter I I of the Bankruptcy I Their names appear in the record as follows: G. Pawlick, Mr. Sza- Act. At this time, there were further layoffs and, fader, Johnnie Miller, Mr. Kopczynski, T. Swienton, Mr. Lakos, and T. by January 1980, the complement was reduced to A. vaienza. about 60 emnlnvees. Bv February 4, 1980, nnlv I Pursuant to an order of the bankruptcy court, Yorke paid these em- about 60 employees. By February 4, 1980, only ployees their wages through February 9, 1980. Yorke did not notify the Union of the shutdown. In fact, Yorke at that time did not know that a 'Herein respectively called Seeburg and Seeburg Service. union represented Seeburg's employees. Transmarine Navigation Corporation and its Subsidiary. International I By that time the charge in the instant proceeding had been filed with Terminals Inc., 170 NLRB 389 (1968). the Board by the Union. 259 NLRB No. 105 NATHAN YORKE, TRUSTEE 819 Nathan Yorke, Trustee in Bankruptcy, Successor in seven employees were still actively working. 3 It Bankruptcy, or Alter Ego to the Seeburg Corpo- appears the layoffs and recalls took place in ac- ration and Seeburg Service Parts Co.,' a Single cordance with the seniority provisions of the par- Employer and Local Union 743, Warehouse, ties' collective-bargaining agreement and that the Mail Order, Technical and Professional Em- t quest bargaining or object to any ployees Union, International Brotherhood of of the layoffs when they occurred. ec to an Teamsters, Chauffeurs, Warehousemen andof the layoffs when they occurred. Helpers of America. Case 13-CA-19631 On February 4, 1980, the bankruptcy court ap- pointed Nathan Yorke to act as Seeburg's trustee in December 28, 1981 bankruptcy and Yorke was given authority to con- DECISION AND ORDER t i n u e t o operate t h e business. At a creditors' meet- ing on February 8, 1980, Yorke learned from On April 23, 1981, Administrative Law Judge Joseph P. Dillon, Seeburg's treasurer and chairman Nancy M. Sherman issued the attached Decision in of its board, that Seeburg had lost about $350,000 this proceeding. Thereafter, the General Counsel since it had filed its October 19, 1979, petition, and and the Union filed exceptions and supporting that its liabilities exceeded $8 million and the book briefs and Respondent filed cross-exceptions and an value of its assets approximated $6 million which, answering brief. when liquidated, amounted to about $1.5 million. Pursuant to the provisions of Section 3(b) of the On February 11, 1980, Yorke requested, and the National Labor Relations Act, as amended, the Na- bankruptcy court issued, an order authorizing him, tional Labor Relations Board has delegated its au- inter alia, to curtail Seeburg's operations by "termi- thority in this proceeding to a three-member panel. nating all personnel save certain key individuals The Board has considered the record and the at- who will be retained for services the trustee deems tached Decision in light of the exceptions and necessary in furtherance of the instant reorganiza- briefs and has decided to affirm the rulings, find- tion . . . ." ings, and conclusions of the Administrative Law Upon receipt of the order on February 11, Yorke Judge and to adopt her recommended Order, as shut down the plant facility used by both Seeburg modified herein. and Seeburg Service and released all personnel in- The Administrative Law Judge found, and we eluding the seven unit employees who were still agree, that Respondent violated Section 8(a)(5) and working on that date.' Four days later, the Union (1) of the Act by terminating its operations at its found out about the shutdown and demanded that Chicago, Illinois, facility without prior notice to an immediate meeting be set up to discuss, inter the Union and without affording it an opportunity alia, th e effects of Yorke's action. In his reply of to bargain with Respondent concerning the effects February 25, Yorke failed to accede to this of such conduct on unit employees. However, we demand. Thereafter, the bankruptcy court author- disagree with her further finding that no Transmar- ized Yorke to offer some parts for sale and, in ine backpay order2 is warranted in the circum- April 1980, Yorke and Dillon made arrangements stances of this case. with the Union to recall two or three individuals to The record shows that the unit employees were assist in this endeavor. According to Yorke, he covered by a 3-year collective-bargaining agree- "operated the business" until July 1980, when, pur- ment effective to September 1980. Prior to the va- su an t to a court-approved reorganization plan, See- cation period which traditionally ends in mid- burg and its purchaser in liquidation, Stern Elec- August, Respondent Seeburg had in mid-July 1979 tronics, agreed to set aside $49,000 of the estate's an active payroll of about 385 or 395 employees. assets should a finding of backpay liability ultimate- However, as Seeburg had financial or cash-flow ly b e made by the Board. 8 In addition, Stern Elec- problems, no one was called back to work until tro nic s agreed to cover an additional $6,000 of po- mid-September 1979 when only 250 unit employees tential backpay liability. Upon completion of the were recalled. sale at the end of July 1980, Yorke terminated the On October 19, 1979, Seeburg filed a petition for employees who had been recalled in April 1980. reorganization under Chapter 11 of the Bankruptcy--- reorganization under Chapter I I of the Bankruptcy I Their names appear in the record as follows: G. Rawlick, Mr. Sza- Act. At this time, there were further layoffs and, fader, Johnnie Miller, Mr. Kopczynski, T. Swienton, Mr. Lakos, and T. by January 1980, the complement was reduced to A. vaienza. about 60 emnlnvees. Bv February 4, 1980, nnlv I Pursuant to an order of the bankruptcy court, Yorke paid these em- about 60 employees. By February 4, 1980, only ployees their wages through February 9, 1980. Yorke did not notify the Union of the shutdown. In fact, Yorke at that time did not know that a 'Herein respectively called Seeburg and Seeburg Service. union represented Seeburg's employees. Transmarine Navigation Corporation and its Subsidiary. International I By that time the charge in the instant proceeding had been filed with Terminals Inc., 170 NLRB 389 (1968). the Board by the Union. 259 NLRB No. 105 NATHAN YORKE, TRUSTEE 819 Nathan Yorke, Trustee in Bankruptcy, Successor in seven employees were still actively working. 3 It Bankruptcy, or Alter Ego to the Seeburg Corpo- appears the layoffs and recalls took place in ac- ration and Seeburg Service Parts Co.,' a Single cordance with the seniority provisions of the par- Employer and Local Union 743, Warehouse, ties' collective-bargaining agreement and that the Mail Order, Technical and Professional Em- Unodintreusbagnngrojctoay ployees Union, International Brotherhood of of , t the gaming or object to any Teamsters, Chauffeurs, Warehousemen andof the layoffs when they occurred. Helpers of America. Case 13-CA-19631 On February 4, 1980, the bankruptcy court ap- pointed Nathan Yorke to act as Seeburg's trustee in December 28, 1981 bankruptcy and Yorke was given authority to con- DECISION AND ORDER t i n u e t o operate t h e business. At a creditors' meet- ing on February 8, 1980, Yorke learned from On April 23, 1981, Administrative Law Judge Joseph P. Dillon, Seeburg's treasurer and chairman Nancy M. Sherman issued the attached Decision in of its board, that Seeburg had lost about $350,000 this proceeding. Thereafter, the General Counsel since it had filed its October 19, 1979, petition, and and the Union filed exceptions and supporting that its liabilities exceeded $8 million and the book briefs and Respondent filed cross-exceptions and an value of its assets approximated $6 million which, answering brief. when liquidated, amounted to about $1.5 million. Pursuant to the provisions of Section 3(b) of the On February 11, 1980, Yorke requested, and the National Labor Relations Act, as amended, the Na- bankruptcy court issued, an order authorizing him, tional Labor Relations Board has delegated its au- inter alia, to curtail Seeburg's operations by "termi- thority in this proceeding to a three-member panel. nating all personnel save certain key individuals The Board has considered the record and the at- who will be retained for services the trustee deems tached Decision in light of the exceptions and necessary in furtherance of the instant reorganiza- briefs and has decided to affirm the rulings, find- tion . . . ." ings, and conclusions of the Administrative Law Upon receipt of the order on February 11, Yorke Judge and to adopt her recommended Order, as shut down the plant facility used by both Seeburg modified herein. and Seeburg Service and released all personnel in- The Administrative Law Judge found, and we eluding the seven unit employees who were still agree, that Respondent violated Section 8(a)(5) and working on that date.' Four days later, the Union (1) of the Act by terminating its operations at its found out about the shutdown and demanded that Chicago, Illinois, facility without prior notice to an immediate meeting be set up to discuss, inter the Union and without affording it an opportunity alia, th e effects of Yorke's action. In his reply of to bargain with Respondent concerning the effects February 25, Yorke failed to accede to this of such conduct on unit employees. However, we demand. Thereafter, the bankruptcy court author- disagree with her further finding that no Transmar- ized Yorke to offer some parts for sale and, in ine backpay order2 is warranted in the circum- April 1980, Yorke and Dillon made arrangements stances of this case. with the Union to recall two or three individuals to The record shows that the unit employees were assist in this endeavor. According to Yorke, he covered by a 3-year collective-bargaining agree- "operated the business" until July 1980, when, pur- ment effective to September 1980. Prior to the va- su an t to a court-approved reorganization plan, See- cation period which traditionally ends in mid- burg and its purchaser in liquidation, Stern Elec- August, Respondent Seeburg had in mid-July 1979 tronics, agreed to set aside $49,000 of the estate's an active payroll of about 385 or 395 employees. assets should a finding of backpay liability ultimate- However, as Seeburg had financial or cash-flow ly be made by the Board. 8 In addition, Stern Elec- problems, no one was called back to work until tro nic s agreed to cover an additional $6,000 of po- mid-September 1979 when only 250 unit employees tential backpay liability. Upon completion of the were recalled. sale at the end of July 1980, Yorke terminated the On October 19, 1979, Seeburg filed a petition for employees who had been recalled in April 1980. reorganization under Chapter 11 of the Bankruptcy--- reorganization under Chapter I I of the Bankruptcy I Their names appear in the record as follows: G. Pawlick, Mr. Sza- Act. At this time, there were further layoffs and, fader, Johnnie Miller, Mr. Kopczynski, T. Swienton, Mr. Lakos, and T. by January 1980, the complement was reduced to A. vaienza. about 60 emnlnvees. Bv February 4, 1980, nnlv I Pursuant to an order of the bankruptcy court, Yorke paid these em- about 60 employees. By February 4, 1980, only ployees their wages through February 9, 1980. Yorke did not notify the Union of the shutdown. In fact, Yorke at that time did not know that a 'Herein respectively called Seeburg and Seeburg Service. union represented Seeburg's employees. Transmarine Navigation Corporation and its Subsidiary. International I By that time the charge in the instant proceeding had been filed with Terminals Inc., 170 NLRB 389 (1968). the Board by the Union. 259 NLRB No. 105 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the Administrative Law Judge Union interposed no objection to them at the time properly found that Respondent violated Section they occurred. However, in view of the employee 8(a)(5) and (1) of the Act by failing to bargain with status of the individuals who were laid off prior to the Union regarding the effects on unit employees February 4, 1980, we specifically find that the bar- of its decision to terminate operations on February gaining order extends to them as well as to the em- 11, 1980. However, as already indicated, she found ployees who worked until the time of the shut- that a Transmarine backpay remedy as sought by down. the General Counsel was not warranted. In this connection, she pointed to the fact that 97 percent THE REMEDY of the unit employees had been laid off before Having found that Respondent has engaged in Yorke became trustee, that Seeburg had suffered a and is engaging in unfair labor practices within the $350,000 loss during the 4 months before Yorke meaning of Section 8(a)(5) and (1) of the Act, we became trustee, and that Yorke served as trustee shall order that Respondent cease and desist there- for only 1 week before shutting down the plant. In from and take certain affirmative action designed these circumstances, she also relied on the Board's Decision in National Terminal6 to support her hold- to e e t p o t We shall also order that Respondent bargain ing that, contrary to the Transmarine line of cases no oer the e ts o t e upon which the General Counsel relied, Respond he discontinuance of its operations. It is clear, ent's failure to bargain about the effects of the clos- t i tia oeraon ing did not occur at a time when the Union was in however, that a bargaining order alone cannot fully ing did not occur at a time when the Union was in remedy the unfair labor practices committed by a position of economic strength. We find that Na- emedy the unfair labor practices committed by Respondent because, as a result of Respondent's tional Terminal, supra, is inapposite as the employer Respondent because, as a result of Respondent's failure to bargain with the Union about the effects therein was forced to close "in an almost emergen- failure to bargain with the Union about the effects cy situation" because of "a calamitous event," of discontinuing operations, Respondent's employ- namely, the theft of its delivery trucks which made ees were denied an opportunity to bargain through it impossible to continue its operations.7 In signifi- their exclusive representative at a time when such cant contrast, Respondent still had valuable assets bargaining would have been meaningful. Meang- at the time of the shutdown and, in fact, found it ul bargaining cannot now be assured until some necessary to recall some employees to operate the measure of economic strength is restored to the business until its sale to another companyion. Accordingly, in order to effectuate the pur- we find, contrary to the Administrative Law poses of the Act, we shall accompany our order to Judge, that in the instant case, unlike the situation bargain with a limited backpay requirement de- in National Terminal, supra, a measure of balanced signed both to make whole the seven employees, bargaining power existed prior to and at the time who were on the payroll on February 11, 1980, for of the shutdown. As we held in Burgmeyer Bros., losses suffered as a result of the violation and to re- Inc., 254 NLRB 1027 (1981), and the cases cited create in some practicable manner a situation in therein, an employer is not relieved of its obliga- which the parties' bargaining position is not entire- tion to provide backpay in accordance with the ly devoid of economic consequences for Respond- Transmarine formula merely because it has become ent. We shall do so in this case by requiring Re- a debtor-in-possession under the Bankruptcy Act spondent to pay backpay to its employees in a and believes that, as a result thereof, it would be manner similar to that required in Transmarine financially unable to meet any of the union's bar- Navigation Corporation, supra. As in Transmarine, gaining demands. we shall require that the backpay for those employ- Accordingly, we shall, in addition to ordering ees be not less than the amounts they would have Respondent to bargain with the Union concerning earned during a 2-week period of employment, 8 at the effects of the shutdown, accompany said Order the rate of their normal wages when last in Re- with a limited backpay requirement for the seven spondent's employ. employees who were actively working as of the Accordingly, we shall order Respondent to bar- time of the shutdown. The Union contends that the gain upon request with the Union about the effects backpay remedy should also extend to the laid-off on its employees of the discontinuance of its oper- employees. We find no merit in this contention as ations; and to pay these employees amounts at the the layoffs were lawfully made pursuant to the col- lective-bargaining agreement of the parties and the l Despite his dissent in Transmarine, Member Jenkins notes that the lective-bargaining agreement of the parties and the ^ , ^ p remedy there has been accepted by the courts and the Board and, since some type of remedy for the misconduct is needed, he is therefore willing 6 National Terminal Baking Corp., a Subsidiary of Kosher Kitchens, Inc., to join in the Decision herein. Underwood Hair Adaption Process, Inc., 242 190 NLRB 465 (1971). NLRB 1017, fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, 'See National Terminal Baking Corp., supra at 466-467. fn. 7 (1977). 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the Administrative Law Judge Union interposed no objection to them at the time properly found that Respondent violated Section they occurred. However, in view of the employee 8(a)(5) and (1) of the Act by failing to bargain with status of the individuals who were laid off prior to the Union regarding the effects on unit employees February 4, 1980, we specifically find that the bar- of its decision to terminate operations on February gaining order extends to them as well as to the em- 11, 1980. However, as already indicated, she found ployees who worked until the time of the shut- that a Transmarine backpay remedy as sought by down. the General Counsel was not warranted. In this connection, she pointed to the fact that 97 percent THE REMEDY of the unit employees had been laid off before Having found that Respondent has engaged in Yorke became trustee, that Seeburg had suffered a and is engaging in unfair labor practices within the $350,000 loss during the 4 months before Yorke meaning of Section 8(a)(5) and (1) of the Act, we became trustee, and that Yorke served as trustee shall order that Respondent cease and desist there- for only 1 week before shutting down the plant. In from and take certain affirmative action designed these circumstances, she also relied on the Board's Decision in National Terminal6 to support her hold- t e t p o th e Act. ing that, contrary to the Transmarine line of cases W s also over the Respondentloyeeain uponwhic theGeneal ounsl reiedRespnd- with t he Union over the effects on its employees of upon hichthe enera Cousel elied Resond- discontinuance of its operations. It is clear, ent's failure to bargain about the effects of the clos- t dc t in g operalone It fully ing did not occur at a time when the Union was in, t a b o, a cann.t.full " . . „ . ., ,i, r , ,, . . remedy the unfair labor practices committed by a position of economic strength. We find that Na- r labor icso by .',„, ., . . .. ., i ~~~Respondent because, as a result of Respondent s tional Terminal, supra, is inapposite as the employer R b as a r o R ., . ,. " , „* , t~~~~~failure to bargain with the Union about the effects therein was forced to close "in an almost emergen- fl t b w t U a t cy situation" because of "a calamitous event," o f discontinuing operations, Respondent's employ- namely, the theft of its delivery trucks which made ees were denied an opportunity to bargain through it impossible to continue its operations.7 In signifi- t h eir e x c l u siv e representative at a time when such cant contrast, Respondent still had valuable assets.bargaining would have been meaningful. Meaning- at the time of the shutdown and, in fact, found it f u l bargaining cannot now be assured until some necessary to recall some employees to operate the measure of economic strength is restored to the business until its sale to another company. Thus, Union. Accordingly, in order to effectuate the pur- we find. contrary to the Administrative Lawnposes of the Act, we shall accompany our order to Judge, that in the instant case, unlike the situation bargain with a limited backpay requirement de- in National Terminal, supra, a measure of balanced "ed both to make whole the seven employees, bargaining power existed prior to and at the time lw h o w er e on the payroll on February 11, 1980, for of the shutdown. As we held in Burgmeyer Bros., l o ssea i somered as a result of the violation and to re- Inc., 254 NLRB 1027 (1981), and the cases cited eate in some practicable manner a situation in therein, an employer is not relieved of its obliga- w h ic h t h e Parties' bargaining position is not entire- tion to provide backpay in accordance with the ly devoid of economic consequences for Respond- Transmarine formula merely because it has become ent. We shall do so in this case by requiring Re- a debtor-in-possession under the Bankruptcy Act spondent to pay backpay to its employees in a and believes that, as a result thereof, it would be manner similar to that required in Transmarine financially unable to meet any of the union's bar- Navigation Corporation, supra. As in Transmarine, gaining demands. w e shall require that the backpay for those employ- Accordingly, we shall, in addition to ordering ees be not less than the amounts they would have Respondent to bargain with the Union concerning earned during a 2-week period of employment, 8 at the effects of the shutdown, accompany said Order the rate of their normal wages when last in Re- with a limited backpay requirement for the seven spondent's employ. employees who were actively working as of the Accordingly, we shall order Respondent to bar- time of the shutdown. The Union contends that the gain upon request with the Union about the effects backpay remedy should also extend to the laid-off on its employees of the discontinuance of its oper- employees. We find no merit in this contention as ations; and to pay these employees amounts at the the layoffs were lawfully made pursuant to the col------- lective-bargaining agreement of the parties and the ^ ^ ^ ^^ ^ ,^ ^^ ^ ' p^ ^ remedy there has been accepted by the courts and the Board and, since some type of remedy for the misconduct is needed, he is therefore willing National Terminal Baking Corp., a Subsidiary of Kosher Kitchens, Inc., to join in the Decision herein. Underwood Hair Adaption Process, Inc., 242 190 NLRB 465 (1971). NLRB 1017, fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, 'See National Terminal Baking Corp.. supra at 466-467. fn. 7 (1977). 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the Administrative Law Judge Union interposed no objection to them at the time properly found that Respondent violated Section they occurred. However, in view of the employee 8(a)(5) and (1) of the Act by failing to bargain with status of the individuals who were laid off prior to the Union regarding the effects on unit employees February 4, 1980, we specifically find that the bar- of its decision to terminate operations on February gaining order extends to them as well as to the em- 11, 1980. However, as already indicated, she found ployees who worked until the time of the shut- that a Transmarine backpay remedy as sought by down. the General Counsel was not warranted. In this connection, she pointed to the fact that 97 percent THE REMEDY of the unit employees had been laid off before Having found that Respondent has engaged in Yorke became trustee, that Seeburg had suffered a and is engaging in unfair labor practices within the $350,000 loss during the 4 months before Yorke meaning of Section 8(a)(5) and (1) of the Act, we became trustee, and that Yorke served as trustee shall order that Respondent cease and desist there- for only 1 week before shutting down the plant. In from and take certain affirmative action designed these circumstances, she also relied on the Board's Decision in National Terminal6 to support her hold- t e t p o th e Act. ing that, contrary to the Transmarine line of cases W s also over the Respondentloyeeain uponwhic theGeneal ounsl reiedRespnd- with t he Union over the effects on its employees of upon hichthe enera Cousel elied Resond- discontinuance of its operations. It is clear, ent's failure to bargain about the effects of the clos- t dc t in g operalone It fully ing did not occur at a time when the Union was in, t a b o, a cann.t.full " . . „ . ., ,i, r , ,, . . remedy the unfair labor practices committed by a position of economic strength. We find that Na- r labor icso by .',„, ., . . .. ., i ~~~Respondent because, as a result of Respondent s tional Terminal, supra, is inapposite as the employer R b as a r o R ., . ,. " , „* , t~~~~~failure to bargain with the Union about the effects therein was forced to close "in an almost emergen- fl t b w t U a t cy situation" because of "a calamitous event," o f discontinuing operations, Respondent's employ- namely, the theft of its delivery trucks which made ees were denied an opportunity to bargain through it impossible to continue its operations.7 In signifi- t h eir e x c l u siv e representative at a time when such cant contrast, Respondent still had valuable assets.bargaining would have been meaningful. Meaning- at the time of the shutdown and, in fact, found it f u l bargaining cannot now be assured until some necessary to recall some employees to operate the measure of economic strength is restored to the business until its sale to another company. Thus, Union. Accordingly, in order to effectuate the pur- we find. contrary to the Administrative Lawnposes of the Act, we shall accompany our order to Judge, that in the instant case, unlike the situation bargain with a limited backpay requirement de- in National Terminal, supra, a measure of balanced "ed both to make whole the seven employees, bargaining power existed prior to and at the time lw h o w er e on the payroll on February 11, 1980, for of the shutdown. As we held in Burgmeyer Bros., l o ssea i somered as a result of the violation and to re- Inc., 254 NLRB 1027 (1981), and the cases cited eate in some practicable manner a situation in therein, an employer is not relieved of its obliga- w h ic h t h e Parties' bargaining position is not entire- tion to provide backpay in accordance with the ly devoid of economic consequences for Respond- Transmarine formula merely because it has become ent. We shall do so in this case by requiring Re- a debtor-in-possession under the Bankruptcy Act spondent to pay backpay to its employees in a and believes that, as a result thereof, it would be manner similar to that required in Transmarine financially unable to meet any of the union's bar- Navigation Corporation, supra. As in Transmarine, gaining demands. w e shall require that the backpay for those employ- Accordingly, we shall, in addition to ordering ees be not less than the amounts they would have Respondent to bargain with the Union concerning earned during a 2-week period of employment, 8 at the effects of the shutdown, accompany said Order the rate of their normal wages when last in Re- with a limited backpay requirement for the seven spondent's employ. employees who were actively working as of the Accordingly, we shall order Respondent to bar- time of the shutdown. The Union contends that the gain upon request with the Union about the effects backpay remedy should also extend to the laid-off on its employees of the discontinuance of its oper- employees. We find no merit in this contention as ations; and to pay these employees amounts at the the layoffs were lawfully made pursuant to the col------- lective-bargaining agreement of the parties and the ^ ^ ^ ^^ ^ ,^ ^^ ^ ' p^ ^ remedy there has been accepted by the courts and the Board and, since some type of remedy for the misconduct is needed, he is therefore willing National Terminal Baking Corp., a Subsidiary of Kosher Kitchens, Inc., to join in the Decision herein. Underwood Hair Adaption Process, Inc., 242 190 NLRB 465 (1971). NLRB 1017, fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, 'See National Terminal Baking Corp.. supra at 466-467. fn. 7 (1977). 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the Administrative Law Judge Union interposed no objection to them at the time properly found that Respondent violated Section they occurred. However, in view of the employee 8(a)(5) and (1) of the Act by failing to bargain with status of the individuals who were laid off prior to the Union regarding the effects on unit employees February 4, 1980, we specifically find that the bar- of its decision to terminate operations on February gaining order extends to them as well as to the em- 11, 1980. However, as already indicated, she found ployees who worked until the time of the shut- that a Transmarine backpay remedy as sought by down. the General Counsel was not warranted. In this connection, she pointed to the fact that 97 percent THE REMEDY of the unit employees had been laid off before Having found that Respondent has engaged in Yorke became trustee, that Seeburg had suffered a and is engaging in unfair labor practices within the $350,000 loss during the 4 months before Yorke meaning of Section 8(a)(5) and (1) of the Act, we became trustee, and that Yorke served as trustee shall order that Respondent cease and desist there- for only 1 week before shutting down the plant. In from and take certain affirmative action designed these circumstances, she also relied on the Board's Decision in National Terminal6 to support her hold- t e t p o th e Act. ing that, contrary to the Transmarine line of cases W s also over the Respondentloyeeain uponwhic theGeneal ounsl reiedRespnd- with t he Union over the effects on its employees of upon hichthe enera Cousel elied Resond- discontinuance of its operations. It is clear, ent's failure to bargain about the effects of the clos- t dc t in g operalone It fully ing did not occur at a time when the Union was in, t a b o, a cann.t.full " . . „ . ., ,i, r , ,, . . remedy the unfair labor practices committed by a position of economic strength. We find that Na- r labor icso by .',„, ., . . .. ., i ~~~Respondent because, as a result of Respondent s tional Terminal, supra, is inapposite as the employer R b as a r o R ., . ,. " , „* , t~~~~~failure to bargain with the Union about the effects therein was forced to close "in an almost emergen- fl t b w t U a t cy situation" because of "a calamitous event," o f discontinuing operations, Respondent's employ- namely, the theft of its delivery trucks which made ees were denied an opportunity to bargain through it impossible to continue its operations.7 In signifi- t h eir e x c l u siv e representative at a time when such cant contrast, Respondent still had valuable assets.bargaining would have been meaningful. Meaning- at the time of the shutdown and, in fact, found it f u l bargaining cannot now be assured until some necessary to recall some employees to operate the measure of economic strength is restored to the business until its sale to another company. Thus, Union. Accordingly, in order to effectuate the pur- we find. contrary to the Administrative Lawnposes of the Act, we shall accompany our order to Judge, that in the instant case, unlike the situation bargain with a limited backpay requirement de- in National Terminal, supra, a measure of balanced "ed both to make whole the seven employees, bargaining power existed prior to and at the time lw h o w er e on the payroll on February 11, 1980, for of the shutdown. As we held in Burgmeyer Bros., l o ssea i somered as a result of the violation and to re- Inc., 254 NLRB 1027 (1981), and the cases cited eate in some practicable manner a situation in therein, an employer is not relieved of its obliga- w h ic h t h e Parties' bargaining position is not entire- tion to provide backpay in accordance with the ly devoid of economic consequences for Respond- Transmarine formula merely because it has become ent. We shall do so in this case by requiring Re- a debtor-in-possession under the Bankruptcy Act spondent to pay backpay to its employees in a and believes that, as a result thereof, it would be manner similar to that required in Transmarine financially unable to meet any of the union's bar- Navigation Corporation, supra. As in Transmarine, gaining demands. w e shall require that the backpay for those employ- Accordingly, we shall, in addition to ordering ees be not less than the amounts they would have Respondent to bargain with the Union concerning earned during a 2-week period of employment, 8 at the effects of the shutdown, accompany said Order the rate of their normal wages when last in Re- with a limited backpay requirement for the seven spondent's employ. employees who were actively working as of the Accordingly, we shall order Respondent to bar- time of the shutdown. The Union contends that the gain upon request with the Union about the effects backpay remedy should also extend to the laid-off on its employees of the discontinuance of its oper- employees. We find no merit in this contention as ations; and to pay these employees amounts at the the layoffs were lawfully made pursuant to the col------- lective-bargaining agreement of the parties and the ^ ^ ^ ^^ ^ ,^ ^^ ^ ' p^ ^ remedy there has been accepted by the courts and the Board and, since some type of remedy for the misconduct is needed, he is therefore willing National Terminal Baking Corp., a Subsidiary of Kosher Kitchens, Inc., to join in the Decision herein. Underwood Hair Adaption Process, Inc., 242 190 NLRB 465 (1971). NLRB 1017, fn. 6 (1979); Uncle John's Pancake House, 232 NLRB 438, 'See National Terminal Baking Corp.. supra at 466-467. fn. 7 (1977). NATHAN YORKE, TRUSTEE 821 rate of their normal wages when last in Respond- "(b) Provide backpay to G. Pawlick, Johnnie ent's employ from 5 days after the date of this De- Miller, T. Swienton, T. A. Valenza, Mr. Szafader, cision until the occurrence of the earliest of the fol- Mr. Kopczynski, and Mr. Lakos in the manner set lowing conditions: (1) the date Respondent bar- forth in the section of the Board's Decision entitled gains to agreement with the Union on those sub- 'The Remedy.' jects pertaining to the effects of Respondent's dis- "(c) Preserve and, upon request, make available continuance of its operations; (2) a bona fide im- to the Board or its agents, for examination and passe in bargaining; (3) the failure of the Union to copying, all payroll records, social security pay- request bargaining within 5 days of this Decision, ment records, timecards, personnel records and re- or to commence negotiations within 5 days of Re- ports, and all other records necessary to analyze spondent's notice of its desire to bargain with the the amount of backpay due under the terms of this Union; or (4) the subsequent failure of the Union to Order." bargain in good faith; but in no event shall the sum 3. Substitute the attached notice for that of the paid to any of these employees exceed the amount Administrative Law Judge. each would have earned as wages from the time Respondent discontinued its operations to the time APPENDIX each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, how- POSTED BY ORDER OF THE ever, in no event shall this sum be less than such NATIONAL LABOR RELATIONS BOARD employees would have earned for a 2-week period An Agency of the United States Government at the rate of their normal wages when last in Re- spondent's employ. Backpay shall be based upon After a hearing at which all sides had an opportu- earnings which the discharged employees would nity to present evidence and state their positions, normally have received during the applicable the National Labor Relations Board found that we period, less any net interim earnings, and shall be have violated the National Labor Relations Act, as computed on a quarterly basis in the manner set amended, and has ordered us to post this notice. forth in F. W. Woolworth Company, 90 NLRB 289 WE WILL NOT fail to bargain with Local (1950), with interest thereon computed in the Union 743, Warehouse, Mail Order, Technical manner provided in Florida Steel Corporation, 231 and Professional Employees Union, Interna- NLRB 651 (1977).9 tional Brotherhood of Teamsters, Chauffeurs, ORDER Warehousemen and Helpers of America, about the effect on employees in the following unit Pursuant to Section 10(c) of the National Labor of the decision to terminate operations on Feb- Relations Act, as amended, the National Labor Re- ruary 11, 1980: lations Board adopts as its Order the recommended A , Order of the Administrative Law Judge, as modi- Al pian c le ri ca l, a n d a l production and fied below, and hereby orders that the Respondent,m en e epoee on the pyrol Nathan Yorke, Trustee in Bankruptcy, Successor in The Seebrg Corporation and Seeburg Serv- Bankruptcy, or Alter Ego to the Seeburg Corpora- ce Parts Corporation at the Chicago, Illi- tion and Seeburg Service Parts Co., a Single Em-nois, excluding executive, supervisory ployer, Chicago, Illinois, its officers, agents, succes- employeesr timekeepers, foremen with sors, and assigns, shall take the action set forth in poe to he and fre or to effectively rec- the said recommended Order, as so modified:ommend such action, office cle employ- ees, guards and professional employees as 1. Add the following as paragraph l(b):ee guard in p onl e s defined in the Act. "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- WE WILL NOT in any like or related manner ercise of their rights guaranteed under Section 7 of interfere with, restrain, or coerce employees in the Act." the exercise of the rights guaranteed them 2. Add the following as new paragraphs 2(b) and under Section 7 of the Act. (c) respectively and reletter the subsequent para- WE WILL, upon request, bargain collectively graphs accordingly: with respect to the effect on employees in the above-described unit of the decision to termi- ' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). nate operations, and reduce to writing any Member Jenkins would compute interest on backpay in accordance agreement reached as a result of such bargain- with his partial dissent in Olympic Medical Corporation, 250 NLRB 146., 148 (1980). ing. NATHAN YORKE, TRUSTEE 821 rate of their normal wages when last in Respond- "(b) Provide backpay to G. Pawlick, Johnnie ent's employ from 5 days after the date of this De- Miller, T. Swienton, T. A. Valenza, Mr. Szafader, cision until the occurrence of the earliest of the fol- Mr. Kopczynski, and Mr. Lakos in the manner set lowing conditions: (1) the date Respondent bar- forth in the section of the Board's Decision entitled gains to agreement with the Union on those sub- 'The Remedy.' jects pertaining to the effects of Respondent's dis- "(c) Preserve and, upon request, make available continuance of its operations; (2) a bona fide im- to the Board or its agents, for examination and passe in bargaining; (3) the failure of the Union to copying, all payroll records, social security pay- request bargaining within 5 days of this Decision, ment records, timecards, personnel records and re- or to commence negotiations within 5 days of Re- ports, and all other records necessary to analyze spondent's notice of its desire to bargain with the the amount of backpay due under the terms of this Union; or (4) the subsequent failure of the Union to Order." bargain in good faith; but in no event shall the sum 3. Substitute the attached notice for that of the paid to any of these employees exceed the amount Administrative Law Judge. each would have earned as wages from the time Respondent discontinued its operations to the time APPENDIX each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, how- POSTED BY ORDER OF THE ever, in no event shall this sum be less than such NATIONAL LABOR RELATIONS BOARD employees would have earned for a 2-week period An Agency of the United States Government at the rate of their normal wages when last in Re- spondent's employ. Backpay shall be based upon After a hearing at which all sides had an opportu- earnings which the discharged employees would nity to present evidence and state their positions, normally have received during the applicable the National Labor Relations Board found that we period, less any net interim earnings, and shall be have violated the National Labor Relations Act, as computed on a quarterly basis in the manner set amended, and has ordered us to post this notice. forth in F. W. Woolworth Company, 90 NLRB 289 WE WILL NOT fail to bargain with Local (1950), with interest thereon computed in the Union 743, Warehouse, Mail Order, Technical manner provided in Florida Steel Corporation, 231 and Professional Employees Union, Interna- NLRB 651 (1977).9 tional Brotherhood of Teamsters, Chauffeurs, ORDER Warehousemen and Helpers of America, about the effect on employees in the following unit Pursuant to Section 10(c) of the National Labor of the decision to terminate operations on Feb- Relations Act, as amended, the National Labor Re- ruary 11, 1980: lations Board adopts as its Order the recommended A p ceia, a a p a Order of the Administrative Law Judge, as modi- mainean cl e r e c alo a n d a th Production and fied below, and hereby orders that the Respondent,maintenance employees on the payroll of Nathan Yorke, Trustee in Bankruptcy, Successor iniThe Seeburg Corporation and Seeburg Serv- Bankruptcy, or Alter Ego to the Seeburg Corpora-ni c e pa rt s Corporation at the Chicago, Illi- tion and Seeburg Service Parts Co., a Single Em-e n o y s e p^ excluding executive, supervisory ployer, Chicago, Illinois, its officers, agents, succes-employees timekeepers, foremen with sors, and assigns, shall take the action set forth inpomen t o sce a n d f c re or to effectively rec- the said recommended Order, as so modified: o m m e n d su c h action, office clenca employ- 1. Add the following as paragraph l(b): e e d in the as .. „. . ,., 11 * . r *~~~~~denined in the Act. "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- WE WILL NOT in any like or related manner ercise of their rights guaranteed under Section 7 of interfere with, restrain, or coerce employees in the Act." the exercise of the rights guaranteed them 2. Add the following as new paragraphs 2(b) and under Section 7 of the Act. (c) respectively and reletter the subsequent para- WE WILL, upon request, bargain collectively graphs accordingly: with respect to the effect on employees in the above-described unit of the decision to termi- See, generally, Isis plumbing < Heating Co., 138 NLRB 716 (1962). nate operations, and reduce to writing any Member Jenkins would compute interest on backpay in accordance agreement reached as a result of such bargain- with his partial dissent in Olympic Medical Corporation, 250 NLRB 146. 148 (1980). ing. NATHAN YORKE, TRUSTEE 821 rate of their normal wages when last in Respond- "(b) Provide backpay to G. Pawlick, Johnnie ent's employ from 5 days after the date of this De- Miller, T. Swienton, T. A. Valenza, Mr. Szafader, cision until the occurrence of the earliest of the fol- Mr. Kopczynski, and Mr. Lakos in the manner set lowing conditions: (1) the date Respondent bar- forth in the section of the Board's Decision entitled gains to agreement with the Union on those sub- 'The Remedy.' jects pertaining to the effects of Respondent's dis- "(c) Preserve and, upon request, make available continuance of its operations; (2) a bona fide im- to the Board or its agents, for examination and passe in bargaining; (3) the failure of the Union to copying, all payroll records, social security pay- request bargaining within 5 days of this Decision, ment records, timecards, personnel records and re- or to commence negotiations within 5 days of Re- ports, and all other records necessary to analyze spondent's notice of its desire to bargain with the the amount of backpay due under the terms of this Union; or (4) the subsequent failure of the Union to Order." bargain in good faith; but in no event shall the sum 3. Substitute the attached notice for that of the paid to any of these employees exceed the amount Administrative Law Judge. each would have earned as wages from the time Respondent discontinued its operations to the time APPENDIX each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, how- POSTED BY ORDER OF THE ever, in no event shall this sum be less than such NATIONAL LABOR RELATIONS BOARD employees would have earned for a 2-week period An Agency of the United States Government at the rate of their normal wages when last in Re- spondent's employ. Backpay shall be based upon After a hearing at which all sides had an opportu- earnings which the discharged employees would nity to present evidence and state their positions, normally have received during the applicable the National Labor Relations Board found that we period, less any net interim earnings, and shall be have violated the National Labor Relations Act, as computed on a quarterly basis in the manner set amended, and has ordered us to post this notice. forth in F. W. Woolworth Company, 90 NLRB 289 WE WILL NOT fail to bargain with Local (1950), with interest thereon computed in the Union 743, Warehouse, Mail Order, Technical manner provided in Florida Steel Corporation, 231 and Professional Employees Union, Interna- NLRB 651 (1977).9 tional Brotherhood of Teamsters, Chauffeurs, ORDER Warehousemen and Helpers of America, about the effect on employees in the following unit Pursuant to Section 10(c) of the National Labor of the decision to terminate operations on Feb- Relations Act, as amended, the National Labor Re- ruary 11, 1980: lations Board adopts as its Order the recommended A p ceia, a a p a Order of the Administrative Law Judge, as modi- mainean cl e r e c alo and all production and fied below, and hereby orders that the Respondent,maintenance employees on the payroll of Nathan Yorke, Trustee in Bankruptcy, Successor iniThe Seeburg Corporation and Seeburg Serv- Bankruptcy, or Alter Ego to the Seeburg Corpora-ni c e pa rt s Corporation at the Chicago, Illi- tion and Seeburg Service Parts Co., a Single Em-e n o y s e p^ excluding executive, supervisory ployer, Chicago, Illinois, its officers, agents, succes-employees timekeepers, foremen with sors, and assigns, shall take the action set forth inpomen t o sce and fire or to effectively rec- the said recommended Order, as so modified: o m m e n d su c h action, office clenca employ- 1. Add the following as paragraph l(b): e e d in the as .. „. . ,., it * . r *~~~~~defined in the Act. "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- WE WILL NOT in any like or related manner ercise of their rights guaranteed under Section 7 of interfere with, restrain, or coerce employees in the Act." the exercise of the rights guaranteed them 2. Add the following as new paragraphs 2(b) and under Section 7 of the Act. (c) respectively and reletter the subsequent para- WE WILL, upon request, bargain collectively graphs accordingly: with respect to the effect on employees in the above-described unit of the decision to termi- See, generally, Isis plumbing < Heating Co., 138 NLRB 716 (1962). nate operations, and reduce to writing any Member Jenkins would compute interest on backpay in accordance agreement reached as a result of such bargain- with his partial dissent in Olympic Medical Corporation, 250 NLRB 146. 148 (1980). ing. NATHAN YORKE, TRUSTEE 821 rate of their normal wages when last in Respond- "(b) Provide backpay to G. Pawlick, Johnnie ent's employ from 5 days after the date of this De- Miller, T. Swienton, T. A. Valenza, Mr. Szafader, cision until the occurrence of the earliest of the fol- Mr. Kopczynski, and Mr. Lakos in the manner set lowing conditions: (1) the date Respondent bar- forth in the section of the Board's Decision entitled gains to agreement with the Union on those sub- 'The Remedy.' jects pertaining to the effects of Respondent's dis- "(c) Preserve and, upon request, make available continuance of its operations; (2) a bona fide im- to the Board or its agents, for examination and passe in bargaining; (3) the failure of the Union to copying, all payroll records, social security pay- request bargaining within 5 days of this Decision, ment records, timecards, personnel records and re- or to commence negotiations within 5 days of Re- ports, and all other records necessary to analyze spondent's notice of its desire to bargain with the the amount of backpay due under the terms of this Union; or (4) the subsequent failure of the Union to Order." bargain in good faith; but in no event shall the sum 3. Substitute the attached notice for that of the paid to any of these employees exceed the amount Administrative Law Judge. each would have earned as wages from the time Respondent discontinued its operations to the time APPENDIX each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, how- POSTED BY ORDER OF THE ever, in no event shall this sum be less than such NATIONAL LABOR RELATIONS BOARD employees would have earned for a 2-week period An Agency of the United States Government at the rate of their normal wages when last in Re- spondent's employ. Backpay shall be based upon After a hearing at which all sides had an opportu- earnings which the discharged employees would nity to present evidence and state their positions, normally have received during the applicable the National Labor Relations Board found that we period, less any net interim earnings, and shall be have violated the National Labor Relations Act, as computed on a quarterly basis in the manner set amended, and has ordered us to post this notice. forth in F. W. Woolworth Company, 90 NLRB 289 WE WILL NOT fail to bargain with Local (1950), with interest thereon computed in the Union 743, Warehouse, Mail Order, Technical manner provided in Florida Steel Corporation, 231 and Professional Employees Union, Interna- NLRB 651 (1977).9 tional Brotherhood of Teamsters, Chauffeurs, ORDER Warehousemen and Helpers of America, about the effect on employees in the following unit Pursuant to Section 10(c) of the National Labor of the decision to terminate operations on Feb- Relations Act, as amended, the National Labor Re- ruary 11, 1980: lations Board adopts as its Order the recommended A p ceia, a a p a Order of the Administrative Law Judge, as modi- mainean cl e r e c alo a n d a th Production and fied below, and hereby orders that the Respondent,maintenance employees on the payroll of Nathan Yorke, Trustee in Bankruptcy, Successor iniThe Seeburg Corporation and Seeburg Serv- Bankruptcy, or Alter Ego to the Seeburg Corpora-ni c e pa rt s Corporation at the Chicago, Illi- tion and Seeburg Service Parts Co., a Single Em-e n o y s e p^ excluding executive, supervisory ployer, Chicago, Illinois, its officers, agents, succes-employees timekeepers, foremen with sors, and assigns, shall take the action set forth inpomen t o sce and fire or to effectively rec- the said recommended Order, as so modified: o m m e n d su c h action, office clenca employ- 1. Add the following as paragraph l(b): e e d in the as .. „. . ,., it * . r *~~~~~defined in the Act. "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- WE WILL NOT in any like or related manner ercise of their rights guaranteed under Section 7 of interfere with, restrain, or coerce employees in the Act." the exercise of the rights guaranteed them 2. Add the following as new paragraphs 2(b) and under Section 7 of the Act. (c) respectively and reletter the subsequent para- WE WILL, upon request, bargain collectively graphs accordingly: with respect to the effect on employees in the above-described unit of the decision to termi- See, generally, Isis plumbing < Heating Co., 138 NLRB 716 (1962). nate operations, and reduce to writing any Member Jenkins would compute interest on backpay in accordance agreement reached as a result of such bargain- with his partial dissent in Olympic Medical Corporation, 250 NLRB 146. 148 (1980). ing. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: At all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski nois. During the calendar year preceding November 28, T. Swienton Mr. Laks 1980, a representative period, Seeburg sold and shipped -~T. -- wlenton~ Mr..~ Lagoods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMEN~T OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent ther, I find that the Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and and Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- same entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped their products to the same customers. Seeburg operations and exercise all powers necessary to the ad- ervice kept an inventory and filled orders on request ministration of Seeburg ad S g for spare parts relating to the finished product that See- ministration of Seeburg and Seeburg Service. The com- l..o of S g an S g *s , co~ ~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- r old A ll he employee on the Seeburg payro fi tion 8(a)(5) and () of the Act about February 8, 1980, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, urg and Seeburg Service constitute a single in- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees e California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the corn- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the [National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay the following unit employees FINDINGS OF FACT who were discharged on February 11, 1980, when we terminated our operations, their I. JURISDICTION; THE RELATIONSHIP BETWEEN when we terminated our operations, their SEEBURG AND SEEBURG SERVICE; THE APPROPRIATE normal wages, for the period set forth in the UNIT remedy section of the Board's Decision and Order, plus interest: A t all material times until February 8, 1980, Seeburg, a Delaware corporation, has been engaged in the manufac- G. Pawlick Mr. Szafader ture of jukeboxes and other machinery in Chicago, Illi- Johnnie Miller Mr. Kopczynski n o is. During the calendar year preceding November 28, T. Swienton Mr. Lakos 19 80, a representative period, Seeburg sold and shipped goods and materials valued in excess of $50,000 directly T. A. Valenza to points outside Illinois. At all times material herein, Seeburg Service, a Delaware corporation, has been en- NATHAN YORKE, TRUSTEE IN BANK- gaged in the manufacture and/or distribution of parts in RUPTCY Chicago, Illinois. During the calendar year preceding THE SEEBURG CORPORATION November 28, 1980, a representative period, Seeburg Service sold and shipped goods and services valued in SEEBURG SERVICE PARTS CO. excess of $50,000 directly to points outside Illinois. During the calendar year preceding November 28, 1980, DECISION a representative period, Seeburg, Seeburg Service, and STATEMENT OF THE CASE Yorke as trustee, in the course of the business operations described above, collectively sold and shipped goods and NANCY M. SHERMAN, Administrative Law Judge: This provided services valued in excess of $50,000 directly to proceeding was heard before me on February 17, 1981, points located outside Illinois. I find that Seeburg and pursuant to a charge filed on February 28, 1980, and Seeburg Service were at all material times each engaged amended on June 6 and 12, 1980, and a complaint issued in commerce within the meaning of the Act; and that on June 17, 1980, and amended on November 28, 1980. Respondents collectively were at all material times en- The complaint alleges that Respondent The Seeburg gaged in commerce within the meaning of the Act. Fur- Corporation (herein called Seeburg) and Respondent th e ', I fin d th a t th e Board's jurisdictional standards are Seeburg Service Parts Co. (herein called Seeburg Serv- satisfied by the operations of Seeburg, Seeburg Service, ice) constitute a single integrated business enterprise and a nd Respondents, collectively. single and/or joint employer within the meaning of the Seeburg and Seeburg Service are both owned by the National Labor Relations Act, as amended. The com- sam e entity; are operated at the same Chicago, Illinois, plaint further alleges that since about February 4, 1980, facility; are run by the same management; purchased Respondent Nathan Yorke, who is admittedly trustee in goods and services from the same customers; and bankruptcy for Seeburg, has had authority to continue shipped th eir products to the same customers. Seeburg operations and exercise all powers necessary to the ad- Se rv ice k e p t an inventory and filled orders on request ministration of Seeburg and Seeburg Service, The comn- for spar e parts rel ating to the f inished pr oduct that See- ... . „ .,..„ , , * , ie ~~burg sold. All the employees on the Seeburg Service plaint goes on to allege that Respondents violated Sec- br s All bees on the Seeburg Service tion8(a(5)and 1) f te Ac abut ebrury , 180, payroll had formerly been on the Seeburg payroll. I find tion 8(a)(5) and (1) of the Act about February 8, 1980, uranSebgSrvccosiueaigli- that Seeburg and Seeburg Service constitute a single in- by terminating operations and discharging employees tegrated business enterprise and single and/or joint em- without prior notice to Local Union 743, Warehouse, ployer within the meaning of the Act. Sakrete of North- Mail Order, Technical and Professional Employees er California, Inc., 137 NLRB 1220 (1962), 140 NLRB Union, International Brotherhood of Teamsters, Chauf- 765 (1963), enfd. 332 F.2d 902 (9th Cir. 1964), cert. feurs, Warehousemen and Helpers of America (herein denied 379 U.S. 961 (1965). called the Union), and without having afforded the In November 1977, Seeburg and the Union entered Union an opportunity to negotiate and bargain concern. into a collective-bargaining agreement effective between ing the effect of said conduct. An answer to the com- October 1977 and September 1980, with respect to a unit plaint was filed by counsel for Seeburg and counsel for of "all plant clerical, and all production and maintenance Yorke, but not by Seeburg Service as such. employees of the Company [The Seeburg Products Divi- At the hearing, appearances were filed on behalf of sion of the Seeburg Corporation of Delaware] at its Chi- Yorke and Seeburg, but not on behalf of Seeburg Service cago, Illinois Plant" excluding "executive, supervisory as such. On the basis of the entire record, including the employees, timekeepers, foremen with power to hire and demeanor of the witnesses, and after due consideration of fire or to effectively recommend such action, office cleri- the briefs filed by counsel for Yorke, counsel for the cal employees, guards and professional employees, as de- Union, and counsel for the General Counsel, I hereby fined in the (National Labor Relations Act], as amend- make the following: ed." In October 1978, certain employees on Seeburg's payroll were transferred to Seeburg Service's payroll. All of the employees on Seeburg Service's payroll about January 1980 had at one time worked for Seeburg. The NATHAN YORKE, TRUSTEE 823 terms of the 1977-80 collective-bargaining agreement until mid-September. Also, at that time only about 250 were applied to the employees on the Seeburg Service unit employees were recalled. payroll. Joseph P. Dillon, Seeburg's treasurer and the On October 19, 1979, Seeburg filed a petition for reor- chairman of its board, testified that the contract was so ganization under Chapter 11 of the Bankruptcy Act. At applied on a "voluntary basis." However, Dillon further or about this time, further layoffs were effected, and the testified that at least some Seeburg Service employees complement was reduced to about 150 unit employees. were subject to the arrangement, set forth in the con- About early January 1980, the complement was again re- tract, that on an employee's written request, the Employ- duced to no more than 60 employees, mostly on See- er would deduct union dues from his wages and pay burg's payroll. By February 4, 1980, only about seven them to the Union. Also, the contract contains a union- unit employees were still actively working. Between Oc- shop clause; and all of Seeburg Service's plant clerical, tober 19, 1970, and February 8, 1980, when except for production, and maintenance employees were union the last 4 days Seeburg was a debtor-in-possession, See- members. Sections 8(a)(3) and 302(c)(4) of the Act forbid burg lost about $350,000. an employer to pay to a union any membership dues de- The foregoing recalls and (inferentially) layoffs were ducted from its employees' wages, and to require union effected in accordance with the seniority provisions of membership as a condition of employment, without a the collective-bargaining agreement. The Union never collective-bargaining agreement calling for such action. I requested bargaining about the matter of the layoffs ef- conclude that the Seeburg-union agreement covered See- fected before February 4, 1980. burg Service's employees. Accordingly, I find that, at all material times herein, the appropriate unit consisted of B. The Appointment of Trustee Yorke; the Shutdown both Seeburg's and Seeburg Service's employees with of Operations the job classifications described in the collective-bargain- On February 4, 1980, the bankruptcy court appointed ing agreement. Yorke to act as trustee in bankruptcy for Seeburg. Yorke On February 4, 1980, Yorke was appointed by the testified that his duties as trustee were to investigate See- United States bankruptcy court to act as Seeburg's trust- burg's financial condition and determine whether See- ee in bankruptcy. As shown infra, a few days later he burg had operated at a profit while it was a debtor-in- closed down the operations of both Seeburg and Seeburg possession, to evaluate Seeburg's assets, and to attempt to Service. At the hearing before me, Seeburg's attorney, file a plan of reorganization on which creditors could Neil P. Gantz, stated without disagreement from any vote. He further testified that he assumed that, when he party that, in preparing the schedules in the bankruptcy was appointed on February 4, he had full authority to court, he had considered Seeburg Service's assets to be operate Seeburg. Seeburg assets, "and as it turned out, we agreed later on On February 4, 1980, at or about 2 p.m., Yorke paid that [Seeburg Service's assets] were, in fact, part of the his first visit to the plant being used by Seeburg and See- assets of the Seeburg Corporation."' Gantz further burg Parts. He was accompanied by Attorney Malcolm stated, in effect, that parts received from Seeburg Serv- Gaynor, who represented the creditors' committee, and a ice by various distributors after the filing of Seeburg's man named Greenhouse, who represented Seeburg. petition for reorganization were received by them pursu- During this visit, Yorke saw only the first floor produc- ant to petitions filed with and ruled on by the bankrupt- tion area, where the lights were turned off and nobody cy court. I find that Yorke was the trustee in bankruptcy was present, and the office, where he saw only Dillon for both Seeburg and Seeburg Parts. I find that at all ma- and a bookkeeper. However, as of that date, about seven terial times after February 4, 1980, Yorke has been an unit employees were still on the payroll. employer within the meaning of the Act, and (for rea- At the first creditors' meeting on February 8, 1980, sons stated infra, part II, E) an alter ego of Seeburg and Dillon told them and Yorke under oath that Seeburg had Seeburg Parts. lost about $350,000 since it filed its October 19 petition, it had about $5,000 in the bank, and it owed Seeburg's employees (unit and nonunit) more than $5,000 in A. Background wages.2 Dillon further stated that Seeburg was on a se- cured-lending basis with the Chase Manhattan Bank, all Before mid-July 1979, Seeburg and Seeburg Service of Seeburg's receivables and inventory were pledged to had an active payroll of about 385 or 395 employees. Chase in return for periodic loans to Seeburg, and Chase The traditional vacation period was in late July or early had joined with other creditors in the petition to appoint August. However, because in 1979 Seeburg had financial a trustee. As of that date, Seeburg's liabilities exceeded or cash flow problems, the vacation period that year $8 million and the book value of its assets approximated began in mid-July; and (although the vacation period $6 million; when liquidated, its assets amounted to about ended in mid-August), nobody was called back to work $1.5 million. Yorke testified that, as trustee, he had the power to Gantz stated that he had believed until late 1979 or January 1980 that continue the business in operation without the approval Seeburg Service was a subsidiary of Seeburg rather than, as it in fact of the bankruptcy court. He further testified that he was, a subsidiary of the same corporation which owned Seeburg. When the real corporate relationship was ascertained, separate bank accounts and payrolls were established. The Seeburg Service accounts were con- They had been paid through February 2, 1980, but not for work per- trolled by Seeburg Treasurer Dillon. The record fails to show what other formed thereafter. Dillon had control of a separate fund sufficient to role, if any, he played in managing Seeburg Service. meet the payroll of Seeburg Service (see supra, fn. ). NATHAN YORKE, TRUSTEE 823 terms of the 1977-80 collective-bargaining agreement until mid-September. Also, at that time only about 250 were applied to the employees on the Seeburg Service unit employees were recalled. payroll. Joseph P. Dillon, Seeburg's treasurer and the On October 19, 1979, Seeburg filed a petition for reor- chairman of its board, testified that the contract was so ganization under Chapter 11 of the Bankruptcy Act. At applied on a "voluntary basis." However, Dillon further or about this time, further layoffs were effected, and the testified that at least some Seeburg Service employees complement was reduced to about 150 unit employees. were subject to the arrangement, set forth in the con- About early January 1980, the complement was again re- tract, that on an employee's written request, the Employ- duced to no more than 60 employees, mostly on See- er would deduct union dues from his wages and pay burg's payroll. By February 4, 1980, only about seven them to the Union. Also, the contract contains a union- unit employees were still actively working. Between Oc- shop clause; and all of Seeburg Service's plant clerical, tober 19, 1970, and February 8, 1980, when except for production, and maintenance employees were union the last 4 days Seeburg was a debtor-in-possession, See- members. Sections 8(a)(3) and 302(c)(4) of the Act forbid burg lost about $350,000. an employer to pay to a union any membership dues de- The foregoing recalls and (inferentially) layoffs were ducted from its employees' wages, and to require union effected in accordance with the seniority provisions of membership as a condition of employment, without a the collective-bargaining agreement. The Union never collective-bargaining agreement calling for such action. I requested bargaining about the matter of the layoffs ef- conclude that the Seeburg-union agreement covered See- fected before February 4, 1980. burg Service's employees. Accordingly, I find that, at all material times herein, the appropriate unit consisted of B. The Appointment of Trustee Yorke; the Shutdown both Seeburg's and Seeburg Service's employees with of Operations the job classifications described in the collective-bargain- On February 4, 1980, the bankruptcy court appointed ing agreement. Yorke to act as trustee in bankruptcy for Seeburg. Yorke On February 4, 1980, Yorke was appointed by the testified that his duties as trustee were to investigate See- United States bankruptcy court to act as Seeburg's trust- burg's financial condition and determine whether See- ee in bankruptcy. As shown infra, a few days later he burg had operated at a profit while it was a debtor-in- closed down the operations of both Seeburg and Seeburg possession, to evaluate Seeburg's assets, and to attempt to Service. At the hearing before me, Seeburg's attorney, frile a plan of reorganization on which creditors could Neil P. Gantz, stated without disagreement from any vote. He further testified that he assumed that, when he party that, in preparing the schedules in the bankruptcy was appointed on February 4, he had full authority to court, he had considered Seeburg Service's assets to be operate Seeburg. Seeburg assets, "and as it turned out, we agreed later on On February 4, 1980, at or about 2 p.m., Yorke paid that [Seeburg Service's assets] were, in fact, part of the his first visit to the plant being used by Seeburg and See- assets of the Seeburg Corporation."' Gantz further burg Parts. He was accompanied by Attorney Malcolm stated, in effect, that parts received from Seeburg Serv- Gaynor, who represented the creditors' committee, and a ice by various distributors after the filing of Seeburg's man named Greenhouse, who represented Seeburg. petition for reorganization were received by them pursu- During this visit, Yorke saw only the first floor produc- ant to petitions filed with and ruled on by the bankrupt- tion area, where the lights were turned off and nobody cy court. I find that Yorke was the trustee in bankruptcy was present, and the office, where he saw only Dillon for both Seeburg and Seeburg Parts. I find that at all ma- and a bookkeeper. However, as of that date, about seven terial times after February 4, 1980, Yorke has been an unit employees were still on the payroll. employer within the meaning of the Act, and (for rea- At the first creditors' meeting on February 8, 1980, sons stated infra, part II, E) an alter ego of Seeburg and Dillon told them and Yorke under oath that Seeburg had Seeburg Parts. lost about $350,000 since it filed its October 19 petition, IL. THE ALLEGED UNFAIR LABOR PRACTICESit h a d a b o u t $ 5,000 in t h e b a n k , a n d it o w e d S e e b u r g 's employees (unit and nonunit) more than $5,000 in A. Background wages.2 Dillon further stated that Seeburg was on a se- cured-lending basis with the Chase Manhattan Bank, all Before mid-July 1979, Seeburg and Seeburg Service of Seeburg's receivables and inventory were pledged to had an active payroll of about 385 or 395 employees. Chase in return for periodic loans to Seeburg, and Chase The traditional vacation period was in late July or early had joined with other creditors in the petition to appoint August. However, because in 1979 Seeburg had financial a trustee. As of that date, Seeburg's liabilities exceeded or cash flow problems, the vacation period that year S8 million and the book value of its assets approximated began in mid-July; and (although the vacation period $6 million; when liquidated, its assets amounted to about ended in mid-August), nobody was called back to work $1.5 million. Yorke testified that, as trustee, he had the power to 'Gantz slated that he had believed until late 1979 or January 1980 that continue the business in Operation without the approval Seeburg Service was a subsidiary of Seeburg rather than, as it in fact of the bankruptcy court. He further testified that he was, a subsidiary of the same corporation which owned Seeburg. When the real corporate relationship was ascertained, separate bank accounts and payrolls were established. The Seeburg Service accounts were con- They had been paid through February 2, 1980, but not for work per- trolled by Seeburg Treasurer Dillon. The record fails to show what other formed thereafter. Dillon had control of a separate fund sufficient to role, if any, he played in managing Seeburg Service. meet the payroll of Seeburg Service (see supra. In. 1). NATHAN YORKE, TRUSTEE 823 terms of the 1977-80 collective-bargaining agreement until mid-September. Also, at that time only about 250 were applied to the employees on the Seeburg Service unit employees were recalled. payroll. Joseph P. Dillon, Seeburg's treasurer and the On October 19, 1979, Seeburg filed a petition for reor- chairman of its board, testified that the contract was so ganization under Chapter 11 of the Bankruptcy Act. At applied on a "voluntary basis." However, Dillon further or about this time, further layoffs were effected, and the testified that at least some Seeburg Service employees complement was reduced to about 150 unit employees. were subject to the arrangement, set forth in the con- About early January 1980, the complement was again re- tract, that on an employee's written request, the Employ- duced to no more than 60 employees, mostly on See- er would deduct union dues from his wages and pay burg's payroll. By February 4, 1980, only about seven them to the Union. Also, the contract contains a union- unit employees were still actively working. Between Oc- shop clause; and all of Seeburg Service's plant clerical, tober 19, 1970, and February 8, 1980, when except for production, and maintenance employees were union the last 4 days Seeburg was a debtor-in-possession, See- members. Sections 8(a)(3) and 302(c)(4) of the Act forbid burg lost about $350,000. an employer to pay to a union any membership dues de- The foregoing recalls and (inferentially) layoffs were ducted from its employees' wages, and to require union effected in accordance with the seniority provisions of membership as a condition of employment, without a the collective-bargaining agreement. The Union never collective-bargaining agreement calling for such action. I requested bargaining about the matter of the layoffs ef- conclude that the Seeburg-union agreement covered See- fected before February 4, 1980. burg Service's employees. Accordingly, I find that, at all material times herein, the appropriate unit consisted of B. The Appointment of Trustee Yorke; the Shutdown both Seeburg's and Seeburg Service's employees with of Operations the job classifications described in the collective-bargain- On February 4, 1980, the bankruptcy court appointed ing agreement. Yorke to act as trustee in bankruptcy for Seeburg. Yorke On February 4, 1980, Yorke was appointed by the testified that his duties as trustee were to investigate See- United States bankruptcy court to act as Seeburg's trust- burg's financial condition and determine whether See- ee in bankruptcy. As shown infra, a few days later he burg had operated at a profit while it was a debtor-in- closed down the operations of both Seeburg and Seeburg possession, to evaluate Seeburg's assets, and to attempt to Service. At the hearing before me, Seeburg's attorney, frile a plan of reorganization on which creditors could Neil P. Gantz, stated without disagreement from any vote. He further testified that he assumed that, when he party that, in preparing the schedules in the bankruptcy was appointed on February 4, he had full authority to court, he had considered Seeburg Service's assets to be operate Seeburg. Seeburg assets, "and as it turned out, we agreed later on On February 4, 1980, at or about 2 p.m., Yorke paid that [Seeburg Service's assets] were, in fact, part of the his first visit to the plant being used by Seeburg and See- assets of the Seeburg Corporation."' Gantz further burg Parts. He was accompanied by Attorney Malcolm stated, in effect, that parts received from Seeburg Serv- Gaynor, who represented the creditors' committee, and a ice by various distributors after the filing of Seeburg's man named Greenhouse, who represented Seeburg. petition for reorganization were received by them pursu- During this visit, Yorke saw only the first floor produc- ant to petitions filed with and ruled on by the bankrupt- tion area, where the lights were turned off and nobody cy court. I find that Yorke was the trustee in bankruptcy was present, and the office, where he saw only Dillon for both Seeburg and Seeburg Parts. I find that at all ma- and a bookkeeper. However, as of that date, about seven terial times after February 4, 1980, Yorke has been an unit employees were still on the payroll. employer within the meaning of the Act, and (for rea- At the first creditors' meeting on February 8, 1980, sons stated infra, part II, E) an alter ego of Seeburg and Dillon told them and Yorke under oath that Seeburg had Seeburg Parts. lost about $350,000 since it filed its October 19 petition, IL. THE ALLEGED UNFAIR LABOR PRACTICESit h a d a b o u t $ 5,000 in t h e b a n k , a n d it o w e d Seeburg's employees (unit and nonunit) more than $5,000 in A. Background wages.2 Dillon further stated that Seeburg was on a se- cured-lending basis with the Chase Manhattan Bank, all Before mid-July 1979, Seeburg and Seeburg Service of Seeburg's receivables and inventory were pledged to had an active payroll of about 385 or 395 employees. Chase in return for periodic loans to Seeburg, and Chase The traditional vacation period was in late July or early had joined with other creditors in the petition to appoint August. However, because in 1979 Seeburg had financial a trustee. As of that date, Seeburg's liabilities exceeded or cash flow problems, the vacation period that year S8 million and the book value of its assets approximated began in mid-July; and (although the vacation period $6 million; when liquidated, its assets amounted to about ended in mid-August), nobody was called back to work $1.5 million. Yorke testified that, as trustee, he had the power to 'Gantz slated that he had believed until late 1979 or January 1980 that continue the business in Operation without the approval Seeburg Service was a subsidiary of Seeburg rather than, as it in fact of the bankruptcy court. He further testified that he was, a subsidiary of the same corporation which owned Seeburg. When the real corporate relationship was ascertained, separate bank accounts and payrolls were established. The Seeburg Service accounts were con- They had been paid through February 2, 1980, but not for work per- trolled by Seeburg Treasurer Dillon. The record fails to show what other formed thereafter. Dillon had control of a separate fund sufficient to role, if any, he played in managing Seeburg Service. meet the payroll of Seeburg Service (see supra. In. 1). NATHAN YORKE, TRUSTEE 823 terms of the 1977-80 collective-bargaining agreement until mid-September. Also, at that time only about 250 were applied to the employees on the Seeburg Service unit employees were recalled. payroll. Joseph P. Dillon, Seeburg's treasurer and the On October 19, 1979, Seeburg filed a petition for reor- chairman of its board, testified that the contract was so ganization under Chapter 11 of the Bankruptcy Act. At applied on a "voluntary basis." However, Dillon further or about this time, further layoffs were effected, and the testified that at least some Seeburg Service employees complement was reduced to about 150 unit employees. were subject to the arrangement, set forth in the con- About early January 1980, the complement was again re- tract, that on an employee's written request, the Employ- duced to no more than 60 employees, mostly on See- er would deduct union dues from his wages and pay burg's payroll. By February 4, 1980, only about seven them to the Union. Also, the contract contains a union- unit employees were still actively working. Between Oc- shop clause; and all of Seeburg Service's plant clerical, tober 19, 1970, and February 8, 1980, when except for production, and maintenance employees were union the last 4 days Seeburg was a debtor-in-possession, See- members. Sections 8(a)(3) and 302(c)(4) of the Act forbid burg lost about $350,000. an employer to pay to a union any membership dues de- The foregoing recalls and (inferentially) layoffs were ducted from its employees' wages, and to require union effected in accordance with the seniority provisions of membership as a condition of employment, without a the collective-bargaining agreement. The Union never collective-bargaining agreement calling for such action. I requested bargaining about the matter of the layoffs ef- conclude that the Seeburg-union agreement covered See- fected before February 4, 1980. burg Service's employees. Accordingly, I find that, at all material times herein, the appropriate unit consisted of B. The Appointment of Trustee Yorke; the Shutdown both Seeburg's and Seeburg Service's employees with of Operations the job classifications described in the collective-bargain- On February 4, 1980, the bankruptcy court appointed ing agreement. Yorke to act as trustee in bankruptcy for Seeburg. Yorke On February 4, 1980, Yorke was appointed by the testified that his duties as trustee were to investigate See- United States bankruptcy court to act as Seeburg's trust- burg's financial condition and determine whether See- ee in bankruptcy. As shown infra, a few days later he burg had operated at a profit while it was a debtor-in- closed down the operations of both Seeburg and Seeburg possession, to evaluate Seeburg's assets, and to attempt to Service. At the hearing before me, Seeburg's attorney, frile a plan of reorganization on which creditors could Neil P. Gantz, stated without disagreement from any vote. He further testified that he assumed that, when he party that, in preparing the schedules in the bankruptcy was appointed on February 4, he had full authority to court, he had considered Seeburg Service's assets to be operate Seeburg. Seeburg assets, "and as it turned out, we agreed later on On February 4, 1980, at or about 2 p.m., Yorke paid that [Seeburg Service's assets] were, in fact, part of the his first visit to the plant being used by Seeburg and See- assets of the Seeburg Corporation."' Gantz further burg Parts. He was accompanied by Attorney Malcolm stated, in effect, that parts received from Seeburg Serv- Gaynor, who represented the creditors' committee, and a ice by various distributors after the filing of Seeburg's man named Greenhouse, who represented Seeburg. petition for reorganization were received by them pursu- During this visit, Yorke saw only the first floor produc- ant to petitions filed with and ruled on by the bankrupt- tion area, where the lights were turned off and nobody cy court. I find that Yorke was the trustee in bankruptcy was present, and the office, where he saw only Dillon for both Seeburg and Seeburg Parts. I find that at all ma- and a bookkeeper. However, as of that date, about seven terial times after February 4, 1980, Yorke has been an unit employees were still on the payroll. employer within the meaning of the Act, and (for rea- At the first creditors' meeting on February 8, 1980, sons stated infra, part II, E) an alter ego of Seeburg and Dillon told them and Yorke under oath that Seeburg had Seeburg Parts. lost about $350,000 since it filed its October 19 petition, IL. THE ALLEGED UNFAIR LABOR PRACTICESit h a d a b o u t $ 5,000 in t h e b a n k , a n d it o w e d Seeburg's employees (unit and nonunit) more than $5,000 in A. Background wages.2 Dillon further stated that Seeburg was on a se- cured-lending basis with the Chase Manhattan Bank, all Before mid-July 1979, Seeburg and Seeburg Service of Seeburg's receivables and inventory were pledged to had an active payroll of about 385 or 395 employees. Chase in return for periodic loans to Seeburg, and Chase The traditional vacation period was in late July or early had joined with other creditors in the petition to appoint August. However, because in 1979 Seeburg had financial a trustee. As of that date, Seeburg's liabilities exceeded or cash flow problems, the vacation period that year S8 million and the book value of its assets approximated began in mid-July; and (although the vacation period $6 million; when liquidated, its assets amounted to about ended in mid-August), nobody was called back to work $1.5 million. Yorke testified that, as trustee, he had the power to 'Gantz slated that he had believed until late 1979 or January 1980 that continue the business in Operation without the approval Seeburg Service was a subsidiary of Seeburg rather than, as it in fact of the bankruptcy court. He further testified that he was, a subsidiary of the same corporation which owned Seeburg. When the real corporate relationship was ascertained, separate bank accounts and payrolls were established. The Seeburg Service accounts were con- They had been paid through February 2, 1980, but not for work per- trolled by Seeburg Treasurer Dillon. The record fails to show what other formed thereafter. Dillon had control of a separate fund sufficient to role, if any, he played in managing Seeburg Service. meet the payroll of Seeburg Service (see supra. In. 1). 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought an order to shut it down. On an undisclosed date fects that your action has on our bargaining unit between the close of the creditors' meeting on Friday, employees. February 8, and the issuance of an order of the bankrupt- cy court on Monday, February 11, Yorke filed a motion, The letters went on to inquire the identity of the which is not in the record before me, with that court. On shareholders of Seeburg, X Cor International, Inc., and February 11, 1980, the bankruptcy court issued an Choice Vend, Inc., and asked a number of other ques- "Order Authorizing Trustee to Curtail Operations of the tions which answers would tend to show whether these Debtor," which stated, in part: three corporations were interrelated in a manner which might impose duties on X Cor and/or Choice Vend with THIS CAUSE coming on to be heard on the appli- t m p o se d u t ies o r an d / o r respect to employees on Seeburg's payroll.4 Further, the cation of Nathan Yorke, trustee in bankruptcy, for letters asked for the namesee and argdd payrollesses Furthers the authority to curtail the debtor's operations; due l et t er s a sk ed f o r the n am e s a nd addresses of any prospec- written notice having been given to all parties enti- tive purchasers of Seeburg. The letters concluded: tied thereto and the court being fully advised in the Please be advised that we expect our collective premises, it appearing that continued operations of bargaining agreement to be abided by and we the debtor in a manner similar to that which has expect a response to this letter by close of business been followed since the initiation of these proceed- February 22, 1980. Failure to answer this letter by ings, would be unprofitable and counter-productive the time indicated will necessitate the institution of to the instant reorganization proceeding; the proper proceeding. IT IS ORDERED that Nathan Yorke, trustee in bankruptcy, be and he hereby is, authorized to cur- Seeburg, as such, never answered this letter. Yorke's tail the debtor's operations by: reply is dated February 25, 1980, and reads in its entire- (a) Terminating all personnel save certain key ty: individuals who will be retained for services the trustee deems necessary in furtherance of the in- I am in receipt of your letter dated February 15, stant reorganization. 1980. Please be advised that the undersigned was appointed Trustee on February 4, 1980. Be further C. The Shutdown Without Notice to the Union advised that the Trustee discontinued the operation Yorke received this order the day it was issued, Febru- of the business and has no employees. ary 11. That same day, he shut down the plant facility In reply to your questions, Excor [sic] is a public- being used by both Seeburg and Seeburg Service, and re- ly owned company. Consolidated Entertainment leased all the personnel, including about seven unit em- owns all the stock of the Seeburg Corporation. I do ployees. Yorke did not, before taking this action, give not know who owns Choice Vend. I do not know if any notice to the Union that such action was contemplat- Choice Vend or Excor have any collective bargain- ed.3 He credibly testified that, when he took this action, ing agreements with labor organizations. he did not know that a union represented Seeburg's em- If there is any further information you desire, I ployees: ". . . the only one I spoke to was Mr. Dillon, will be happy to furnish same. and he didn't advise me of it." Benn filed the initial charges herein on February 28, D. Events After the February 11, 1980, Shutdown 1980, and made no further attempt to get in touch with 1. The February 1980 correspondence between the Yorke. Meanwhile, on February 19, Yorke received Union and Yorke about $6,000, apparently constituting all of Seeburg's cash on hand, which moneys, pursuant to an order of the On February 15, 1980, Union Attorney Edwin H. bankruptcy court, he used on February 25 to pay the Benn sent virtually identical letters to Yorke and to See- Seeburg employees' wages for periods through Saturday, burg which read in part as follows: February 9, 2 days before the terminations. The undersigned represents Local 743, I.B.T. The Union has a collective bargaining agreement covering the employees of Seeburg Corporation. . . It has also come to our attention that the re- maining employees of Seeburg Corp. have been ' The June 1980 initial complaint herein alleges, inter alia, that "Re- olockprlit a< nf February 11, 1980. spondent X Cor, Respondent Seeburg, Respondent Choice [Vend], Re- locked out as of February 11, 1980. spondent Yorke, . . Respondent Seeburg Service" and other corpora- tions were a single employer, a joint employer, or alter egos; and that * * * * * Yorke was a successor in bankruptcy to Seeburg and/or the other corpo- rations. The June 1980 complaint also includes allegations that all the re- This is also to demand that an immediate meeting spondents named therein had violated Sec. 8(a(S) and (I) when Choice Vend transferred unit work to Windsor Locks, Connecticut, from the be set up so that we can discuss the decision and ef- Chicago plant involved herein, and discharged Chicago employees, with- out prior notice to the Union and without affording the Union an oppor- ' ne of the laid-off employees was the union steward. No contention tunity to negotiate regarding the decision to transfer and its effects. Prior is made that whatever notice he received of his own layoff constituted to the hearing before me, the case was apparently settled with respect to legally adequate notice to the Union that the operation had been shut X Cor, Choice Vend, and the other corporations named in the June 1980 down. complaint but not in the November 1980 complaint before me. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought an order to shut it down. On an undisclosed date fects that your action has on our bargaining unit between the close of the creditors' meeting on Friday, employees. February 8, and the issuance of an order of the bankrupt- cy court on Monday, February 11, Yorke filed a motion, The letters went on to inquire the identity of the which is not in the record before me, with that court. On shareholders of Seeburg, X Cor International, Inc., and February 11, 1980, the bankruptcy court issued an Choice Vend, Inc., and asked a number of other ques- "Order Authorizing Trustee to Curtail Operations of the tions which answers would tend to show whether these Debtor," which stated, in part: three corporations were interrelated in a manner which THIS CAUSE coming on to be heard on the appli- m ig h t m p o se d u t ies on X C o r an d / o r C h o ice V e nd t cation of Nathan Yorke, trustee in bankruptcy, for r es p t emploee o n Seeburg's payroll Further, the authority to curtail the debtor's operations; due l et t er s a sk ed f o r t h e n am e s a nd addresses of any prospec- written notice having been given to all parties enti- tiv e purchasers of Seeburg. The letters concluded: tied thereto and the court being fully advised in the Please be advised that we expect our collective premises, it appearing that continued operations of bargaining agreement to be abided by and we the debtor in a manner similar to that which has expect a response to this letter by close of business been followed since the initiation of these proceed- February 22, 1980. Failure to answer this letter by ings, would be unprofitable and counter-productive the time indicated will necessitate the institution of to the instant reorganization proceeding; the proper proceeding. IT Is ORDERED that Nathan Yorke, trustee in bankruptcy, be and he hereby is, authorized to cur- Seeburg, as such, never answered this letter. Yorke's tail the debtor's operations by: reply is dated February 25, 1980, and reads in its entire- (a) Terminating all personnel save certain key ty: individuals who will be retained for services the trustee deems necessary in furtherance of the in- I am in receipt of your letter dated February 15, stant reorganization. 1980. Please be advised that the undersigned was appointed Trustee on February 4, 1980. Be further C. The Shutdown Without Notice to the Union advised that the Trustee discontinued the operation Yorke received this order the day it was issued, Febru- o f t h e business and has no employees. ary 11. That same day, he shut down the plant facility In reply to your questions, Excor [sic] is a public- being used by both Seeburg and Seeburg Service, and re- ly owned company. Consolidated Entertainment leased all the personnel, including about seven unit em- owns all the stock of the Seeburg Corporation. I do ployees. Yorke did not, before taking this action, give not know who owns Choice Vend. I do not know if any notice to the Union that such action was contemplat- Choice Vend or Excor have any collective bargain- ed.3 He credibly testified that, when he took this action, ing agreements with labor organizations. he did not know that a union represented Seeburg's em- If there is any further information you desire, I ployees: ". . . the only one I spoke to was Mr. Dillon, will be happy to furnish same. and he didn't advise me of it." Benn filed the initial charges herein on February 28, D. Events After the February 11. 1980, Shutdown 1980, and made no further attempt to get in touch with 1. The February 1980 correspondence between the Y o r k e. Meanwhile, on February 19, Yorke received Union and Yorke about $6,000, apparently constituting all of Seeburg's cash on hand, which moneys, pursuant to an order of the On February 15, 1980, Union Attorney Edwin H. bankruptcy court, he used on February 25 to pay the Benn sent virtually identical letters to Yorke and to See- Seeburg employees' wages for periods through Saturday, burg which read in part as follows: February 9, 2 days before the terminations. The undersigned represents Local 743, I.B.T. The Union has a collective bargaining agreement covering the employees of Seeburg Corporation. ... It has also come to our attention that the re- maining employees Of Seeburg Corp. have been * The June 1980 initial complaint herein alleges, inter alia, that "Re- lockprlniit a< nf February 11, 198. spondent X Cor, Respondent Seeburg, Respondent Choice [Vend], Re- locked out as of F-ebruary 11, 1980. spondent Yorke, . . . Respondent Seeburg Service" and other corpora- tions were a single employer, a joint employer, or alter egos; and that Yorke was a successor in bankruptcy to Seeburg and/or the other corpo- rations. The June 1980 complaint also includes allegations that all the re- This is also to demand that an immediate meeting spondents named therein had violated Sec. 8(aM5) and (1) when Choice be <iet un so that we can discuss the decision and ef- V en d tra n sfer re d unit w o rk to Windsor Locks, Connecticut, from the be set Up SO that we Can discuss the decision and ef- Chicago plant involved herein, and discharged Chicago employees, with- out prior notice to the Union and without affording the Union an oppor- One of the laid-off employees was the union steward. No contention tunity to negotiate regarding the decision to transfer and its effects. Prior is made that whatever notice he received of his own layoff constituted to the hearing before me, the case was apparently settled with respect to legally adequate notice to the Union that the operation had been shut X Cor, Choice Vend, and the other corporations named in the June 1980 down. complaint but not in the November 1980 complaint before me. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought an order to shut it down. On an undisclosed date fects that your action has on our bargaining unit between the close of the creditors' meeting on Friday, employees. February 8, and the issuance of an order of the bankrupt- cy court on Monday, February 11, Yorke filed a motion, The letters went on to inquire the identity of the which is not in the record before me, with that court. On shareholders of Seeburg, X Cor International, Inc., and February 11, 1980, the bankruptcy court issued an Choice Vend, Inc., and asked a number of other ques- "Order Authorizing Trustee to Curtail Operations of the tions which answers would tend to show whether these Debtor," which stated, in part: three corporations were interrelated in a manner which THIS CAUSE coming on to be heard on the appli- m ig h t impose d u t ies on X C o r an d / o r C h o ice V e nd t cation of Nathan Yorke, trustee in bankruptcy, for r es p t emploee o n Seeburg's payroll Further, the authority to curtail the debtor's operations; due l et t er s a sk ed f o r t h e n am e s a nd addresses of any prospec- written notice having been given to all parties enti- tiv e purchasers of Seeburg. The letters concluded: tied thereto and the court being fully advised in the Please be advised that we expect our collective premises, it appearing that continued operations of bargaining agreement to be abided by and we the debtor in a manner similar to that which has expect a response to this letter by close of business been followed since the initiation of these proceed- February 22, 1980. Failure to answer this letter by ings, would be unprofitable and counter-productive the time indicated will necessitate the institution of to the instant reorganization proceeding; the proper proceeding. IT Is ORDERED that Nathan Yorke, trustee in bankruptcy, be and he hereby is, authorized to cur- Seeburg, as such, never answered this letter. Yorke's tail the debtor's operations by: reply is dated February 25, 1980, and reads in its entire- (a) Terminating all personnel save certain key ty: individuals who will be retained for services the trustee deems necessary in furtherance of the in- I am in receipt of your letter dated February 15, stant reorganization. 1980. Please be advised that the undersigned was appointed Trustee on February 4, 1980. Be further C. The Shutdown Without Notice to the Union advised that the Trustee discontinued the operation Yorke received this order the day it was issued, Febru- o f t h e business and has no employees. ary 11. That same day, he shut down the plant facility In reply to your questions, Excor [sic] is a public- being used by both Seeburg and Seeburg Service, and re- ly owned company. Consolidated Entertainment leased all the personnel, including about seven unit em- owns all the stock of the Seeburg Corporation. I do ployees. Yorke did not, before taking this action, give not know who owns Choice Vend. I do not know if any notice to the Union that such action was contemplat- Choice Vend or Excor have any collective bargain- ed.3 He credibly testified that, when he took this action, ing agreements with labor organizations. he did not know that a union represented Seeburg's em- If there is any further information you desire, I ployees: ". . . the only one I spoke to was Mr. Dillon, will be happy to furnish same. and he didn't advise me of it." Benn filed the initial charges herein on February 28, D. Events After the February 11. 1980, Shutdown 1980, and made no further attempt to get in touch with 1. The February 1980 correspondence between the Y o r k e. Meanwhile, on February 19, Yorke received Union and Yorke about $6,000, apparently constituting all of Seeburg's cash on hand, which moneys, pursuant to an order of the On February 15, 1980, Union Attorney Edwin H. bankruptcy court, he used on February 25 to pay the Benn sent virtually identical letters to Yorke and to See- Seeburg employees' wages for periods through Saturday, burg which read in part as follows: February 9, 2 days before the terminations. The undersigned represents Local 743, I.B.T. The Union has a collective bargaining agreement covering the employees of Seeburg Corporation. ... It has also come to our attention that the re- maining employees Of Seeburg Corp. have been * The June 1980 initial complaint herein alleges, inter alia, that "Re- lockprlniit a< nf February 11, 198. spondent X Cor, Respondent Seeburg, Respondent Choice [Vend], Re- locked out as of F-ebruary 11, 1980. spondent Yorke, . . . Respondent Seeburg Service" and other corpora- tions were a single employer, a joint employer, or alter egos; and that Yorke was a successor in bankruptcy to Seeburg and/or the other corpo- rations. The June 1980 complaint also includes allegations that all the re- This is also to demand that an immediate meeting spondents named therein had violated Sec. 8(aM5) and (1) when Choice be <iet un so that we can discuss the decision and ef- V en d tra n sfer re d unit w o rk to Windsor Locks, Connecticut, from the be set Up SO that we Can discuss the decision and ef- Chicago plant involved herein, and discharged Chicago employees, with- out prior notice to the Union and without affording the Union an oppor- One of the laid-off employees was the union steward. No contention tunity to negotiate regarding the decision to transfer and its effects. Prior is made that whatever notice he received of his own layoff constituted to the hearing before me, the case was apparently settled with respect to legally adequate notice to the Union that the operation had been shut X Cor, Choice Vend, and the other corporations named in the June 1980 down. complaint but not in the November 1980 complaint before me. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought an order to shut it down. On an undisclosed date fects that your action has on our bargaining unit between the close of the creditors' meeting on Friday, employees. February 8, and the issuance of an order of the bankrupt- cy court on Monday, February 11, Yorke filed a motion, The letters went on to inquire the identity of the which is not in the record before me, with that court. On shareholders of Seeburg, X Cor International, Inc., and February 11, 1980, the bankruptcy court issued an Choice Vend, Inc., and asked a number of other ques- "Order Authorizing Trustee to Curtail Operations of the tions which answers would tend to show whether these Debtor," which stated, in part: three corporations were interrelated in a manner which THIS CAUSE coming on to be heard on the appli- m ig h t impose d u t ies on X C o r an d / o r C h o ice V e nd t cation of Nathan Yorke, trustee in bankruptcy, for r es p t emploee o n Seeburg's payroll Further, the authority to curtail the debtor's operations; due l et t er s a sk ed f o r t h e n am e s a nd addresses of any prospec- written notice having been given to all parties enti- tiv e purchasers of Seeburg. The letters concluded: tied thereto and the court being fully advised in the Please be advised that we expect our collective premises, it appearing that continued operations of bargaining agreement to be abided by and we the debtor in a manner similar to that which has expect a response to this letter by close of business been followed since the initiation of these proceed- February 22, 1980. Failure to answer this letter by ings, would be unprofitable and counter-productive the time indicated will necessitate the institution of to the instant reorganization proceeding; the proper proceeding. IT Is ORDERED that Nathan Yorke, trustee in bankruptcy, be and he hereby is, authorized to cur- Seeburg, as such, never answered this letter. Yorke's tail the debtor's operations by: reply is dated February 25, 1980, and reads in its entire- (a) Terminating all personnel save certain key ty: individuals who will be retained for services the trustee deems necessary in furtherance of the in- I am in receipt of your letter dated February 15, stant reorganization. 1980. Please be advised that the undersigned was appointed Trustee on February 4, 1980. Be further C. The Shutdown Without Notice to the Union advised that the Trustee discontinued the operation Yorke received this order the day it was issued, Febru- o f t h e business and has no employees. ary 11. That same day, he shut down the plant facility In reply to your questions, Excor [sic] is a public- being used by both Seeburg and Seeburg Service, and re- ly owned company. Consolidated Entertainment leased all the personnel, including about seven unit em- owns all the stock of the Seeburg Corporation. I do ployees. Yorke did not, before taking this action, give not know who owns Choice Vend. I do not know if any notice to the Union that such action was contemplat- Choice Vend or Excor have any collective bargain- ed.3 He credibly testified that, when he took this action, ing agreements with labor organizations. he did not know that a union represented Seeburg's em- If there is any further information you desire, I ployees: ". . . the only one I spoke to was Mr. Dillon, will be happy to furnish same. and he didn't advise me of it." Benn filed the initial charges herein on February 28, D. Events After the February 11. 1980, Shutdown 1980, and made no further attempt to get in touch with 1. The February 1980 correspondence between the Y o r k e. Meanwhile, on February 19, Yorke received Union and Yorke about $6,000, apparently constituting all of Seeburg's cash on hand, which moneys, pursuant to an order of the On February 15, 1980, Union Attorney Edwin H. bankruptcy court, he used on February 25 to pay the Benn sent virtually identical letters to Yorke and to See- Seeburg employees' wages for periods through Saturday, burg which read in part as follows: February 9, 2 days before the terminations. The undersigned represents Local 743, I.B.T. The Union has a collective bargaining agreement covering the employees of Seeburg Corporation. ... It has also come to our attention that the re- maining employees Of Seeburg Corp. have been * The June 1980 initial complaint herein alleges, inter alia, that "Re- lockprlniit a< nf February 11, 198. spondent X Cor, Respondent Seeburg, Respondent Choice [Vend], Re- locked out as of F-ebruary 11, 1980. spondent Yorke, . . . Respondent Seeburg Service" and other corpora- tions were a single employer, a joint employer, or alter egos; and that Yorke was a successor in bankruptcy to Seeburg and/or the other corpo- rations. The June 1980 complaint also includes allegations that all the re- This is also to demand that an immediate meeting spondents named therein had violated Sec. 8(aM5) and (1) when Choice be <iet un so that we can discuss the decision and ef- V en d tra n sfer re d unit w o rk to Windsor Locks, Connecticut, from the be set Up SO that we Can discuss the decision and ef- Chicago plant involved herein, and discharged Chicago employees, with- out prior notice to the Union and without affording the Union an oppor- One of the laid-off employees was the union steward. No contention tunity to negotiate regarding the decision to transfer and its effects. Prior is made that whatever notice he received of his own layoff constituted to the hearing before me, the case was apparently settled with respect to legally adequate notice to the Union that the operation had been shut X Cor, Choice Vend, and the other corporations named in the June 1980 down. complaint but not in the November 1980 complaint before me. NATHAN YORKE, TRUSTEE 825 2. Arrangements made between the Union and proof of claim so as to total $55,000. Also on July 28, the Yorke to recall a few employees bankruptcy court approved a reorganization plan under Thereafter, the bankruptcy court authorized Yorke to which Seeburg and its purchaser-in-liquidation, Stern offer some parts for sale.5 During an early April 1980 Electronics, Inc., agreed to set aside $49,000 of the es- conference initiated by Yorke and Dillon, they discussed tate's assets should a finding of backpay liability ultimate- with Union Representative Harry Peters a plan to recall ly be made Stern Electronics agreed to commit to cover two or three unit employees to assist in the sale of the the remaining S6,000 of the potential liability. Seeburg, parts. Later, Peters telephoned Yorke that Peters would supra, 105 LRRM at 3356. commit York and Dillon to recall certain individuals, The July 25, 1980, hearing on confirmation before the and they were in fact recalled. Yorke and/or Dillon bankruptcy court was attended by, inter alia, Attorney asked Peters for a letter authorizing this recall, and he William G. Kocol on behalf of the NLRB, Benn on the sent that letter. Union's behalf, Gaynor on behalf of the creditors' com- mittee, Attorney Joseph Matz on Seeburg's behalf, and 3. Yorke's efforts to reject the bargaining agreement Yorke. Matz stated on the record that, following the On an undisclosed date after February 15, Yorke filed bankruptcy court's order confirming the plan of arrange- with the bankruptcy court an application to reject the ment, there would be a closing as provided for in the collective-bargaining agreement. This application was contract, and Seeburg's assets would be transferred in opposed by both the Union and the Board, and was sub- due course to Stern- Matz went on to say that as of that sequently withdrawn. However, the contract was even- moment there would be no more need for Yorke to tually rejected under the specific terms of the plan of ar- maintain any operation whatsoever, that he would be ter- rangement eventually approved by the bankruptcy court minating the remaining employees, and that he had told on July 28, 1980. Matz that three of these employees were union employ- ees. Gaynor said that, if the Union wanted Yorke to bar- 4. The July 22, 1980, settlement meeting gain with respect to the effect of what he was doing pur- suant to the plan and in the order of confirmation, "he is After the issuance of the original complaint herein, and we would be glad to do such bargaining in Gaynor, the attorney for the creditors' committee, tele- h er e an d w e w o u l d be d to d o suh b inin i phoned Union Attorney Benn and requested a meeting. ope court. thk we shoud do s rst The Benn told Gaynor that "we could discuss the charges, bankruptcy judge said that he would not attend bargain- the complaint, and hopefully settlement." During this ing, but his courtroom could be used for that purpose. the complaint, and hopefully settlement." During this Benn said that the Union would be more than happy to meeting, which was held on July 22, 1980, Gaynor made B ein sa d that the Union would be more than happy to an unsuccessful effort to induce the Union to withdraw s do w n w th Y o r k e meditely. but might be unable to its unfair labor practice charges. At the hearing and in d o so t hat day b ec a u se th e Unio n s bargaining repe- its unfair labo r practice charges At the hearing asentative, Business Agent Peters, was not there. Gaynor post-hearing briefs, the General Counsel and union coun- sentative Business Agent Peters, was not there. Gaynor sel requested me to disregard the evidence about what d t ha t h e wanted a stenographic record of the bargain- was said during this July 22 meeting, on the ground that ing. Benn sad that the Labor Board has held repeatedly it constituted "compromise negotiations" within the that is unlawful [cf., infra, fn. 10]. It takes away from the meaning of Rule 408 of the Federal Rules of Evidence. I give and take of what happens at the bargaining table conclude that their position in this respect is well taken.6 . . I am happy [Gaynor] recognizes his right as of this point to let the bargainers do whatever they want to 5. Bankruptcy court proceedings do." Gaynor said that there should be a stenographic record: "There is no give and take because there is noth- July 28, 1980, the bankruptcy court ruled that the ing that Mr. Yorke has to give." The bankruptcy judge backpay claimed by the Board as due in the instant pro- said, "Mr. Gaynor, we have the record here. You have ceedings was an administrative expense entitled to prior- made it very clear. This stenographic reporter is availa- ity order under Section 507(a)(1) of the Bankruptcy ble. You have made your offer to negotiate, counsel has Code. Seeburg Corp. v. N.LR.B., 105 LRRM 3050, 5 responded." B.R. 364. 7 As of that date, the Board had modified its 6. The late August discussions 'The record fails to show whether these parts were owned by Seeburg or by Seeburg Parts. See supra, part 1. By letter to Yorke dated July 31, 1980, Union Attor- ' Rule 408 is applicable to compromise offers made by a party to the ney Benn demanded that negotiations commence imme- litigation to a nonparty. 2 Weinstein's Evidence paras. 408[01], p. 408-413 diately "concerning the effects of the final phase out of (1980). Accordingly, I need not and do not consider whether Yorke's status as a party hereto rendered the creditors' committee a party also. the Seeburg operation which was accomplished July 28, Yorke Exh. 1, a July 23, 1980, letter from Benn to Gaynor purporting to 1980." In consequence of this letter, a late August 1980 summarize the July 22 meeting, was offered by the General Counsel, and meeting was held between Seeburg Attorney Gantz, the received in evidence, solely for the purpose of showing that the July 22 creditors' committee attorneys, Gaynor and Gettleman, meeting was a settlement discussion. ' The court also granted the request of Seeburg, Yorke, and the credi- Union Attorney Benn, Union Representative Peters, and tors' committee for an order enjoining the Board from processing the in- Yorke. Benn asked how many employees had been on stant unfair labor practice case, which the court said would be disposed the Seeburg payroll as of February 1980. Gantz said of by the court itself. On November 13, 1980, the United States District seven. Benn asked for their names wage rates and clas- Court for the Northern District of Illinois vacated the bankruptcy judge's order, and directed him to refrain from hearing the unfair labor practice sifications, and Gantz said he would get that information charges. (105 LRRM 3355.) for Benn. There is no claim that Gantz failed to do so. NATHAN YORKE, TRUSTEE 825 2. Arrangements made between the Union and proof of claim so as to total $55,000. Also on July 28, the Yorke to recall a few employees bankruptcy court approved a reorganization plan under Thereafter, the bankruptcy court authorized Yorke to w h ic h Seeburg and its purchaser-in-liquidation, Stern offer some parts for sale.- During an early April 1980 Electronics, Inc., agreed to set aside $49,000 of the es- conference initiated by Yorke and Dillon, they discussed t a te 's a sse t s s h o u ld a fin d ing o f backpay liability ultimate- with Union Representative Harry Peters a plan to recall ly b e m a d e. Ste r n Electronics agreed to commit to cover two or three unit employees to assist in the sale of the t h e remaining $6,000 of the potential liability. Seeburg. parts. Later, Peters telephoned Yorke that Peters would supra, 105 LRRM at 3356. commit York and Dillon to recall certain individuals, T h e July 25, 1980, hearing on confirmation before the and they were in fact recalled. Yorke and/or Dillon bankruptcy court was attended by, inter alia, Attorney asked Peters for a letter authorizing this recall, and he William G. Kocol on behalf of the NLRB, Benn on the sent that letter. Union's behalf, Gaynor on behalf of the creditors' com- mittee, Attorney Joseph Matz on Seeburg's behalf, and 3. Yorke's efforts to reject the bargaining agreement Yorke. Matz stated on the record that, following the On an undisclosed date after February 15, Yorke filed bankruptcy court's order confirming the plan of arrange- with the bankruptcy court an application to reject the m e n t , th e r e w o u l d be a closing as provided for in the collective-bargaining agreement. This application was contract, and Seeburg's assets would be transferred in opposed by both the Union and the Board, and was sub- d u e c o urs e to Stern. Matz went on to say that as of that sequently withdrawn. However, the contract was even- moment there would be no more need for Yorke to tually rejected under the specific terms of the plan of ar- maintain any operation whatsoever, that he would be ter- rangement eventually approved by the bankruptcy court minating the remaining employees, and that he had told on July 28, 1980. Matz that three of these employees were union employ- ees. Gaynor said that, if the Union wanted Yorke to bar- 4. The July 22, 1980, settlement meeting gain with respect to the effect of what he was doing pur- After the issuance of the original complaint herein, su an t to t h e plan a nd in t h e order of confirmation, "he is Gaynor, the attorney for the creditors' committee, tele- h er e an d w e w o u l d be glad to d o su c h bargaining in phoned Union Attorney Benn and requested a meeting. o p e n c o u r t .. . . t h i k w e s h o u d d o t his f r s t. T h e Benn told Gaynor that "we could discuss the charges, bankruptcy judge said that he would not attend bargain- the complaint, and hopefully settlement." During this in g , but his courtroom could be used for that purpose. meeting, which was held on July 22, 1980, Gaynor made B e nn said that the Union would be more than happy to an unsuccessful effort to induce the Union to withdraw si t d o w n wi t h Y o r k e immediately, but might be unable to its unfair labor practice charges. At the hearing and in d o so t hat day b ec a u se th e Unio n 's bargaining repre- post-hearing briefs, the General Counsel and union coun- sentative, Business Agent Peters, was not there. Gaynor sel requested me to disregard the evidence about what said t ha t h e wanted a stenographic record of the bargain- was said during this July 22 meeting, on the ground that ing. B e n n sa id that "t h e L ab o r Board has held repeatedly it constituted "compromise negotiations" within the that is unlawful [cf., infra, fn. 10]. It takes away from the meaning of Rule 408 of the Federal Rules of Evidence. I give an d ta k e o f w h at happens at the bargaining table conclude that their position in this respect is well taken. 6 ... I am happy [Gaynor] recognizes his right as of this point to let the bargainers do whatever they want to 5. Bankruptcy court proceedings do." Gaynor said that there should be a stenographic record: "There is no give and take because there is noth- July 28, 1980, the bankruptcy court ruled that the ing that Mr. Yorke has to give." The bankruptcy judge backpay claimed by the Board as due in the instant pro- said, "Mr. Gaynor, we have the record here. You have ceedings was an administrative expense entitled to prior- made it very clear. This stenographic reporter is availa- ity order under Section 507(a)(l) of the Bankruptcy ble. You have made your offer to negotiate, counsel has Code. Seeburg Corp. v. N.LR.B., 105 LRRM 3050, 5 responded." B.R. 364. 7 As of that date, the Board had modified its 6. The late August discussions 'The record fails to show whether these parts were owned by Seeburg or by Seeburg Parts. See supra, part I. By letter to Yorke dated July 31, 1980, Union Attor- I Rule 408 is applicable to compromise offers made by a party to the ney Benn demanded that negotiations commence imme- litigation to a nonparty. 2 Weinstein's Evidence para. 408[01], p. 408-413 diately "concerning the effects of the final phase out of (1980). Accordingly, I need not and do not consider whether Yorke's status as a party hereto rendered the creditors' committee a party also, the Seeburg Operation which was accomplished July 28, Yorke Exh. 1, a July 23, 1980, letter from Benn to Gaynor purporting to 1980." In Consequence of this letter, a late August 1980 summarize the July 22 meeting, was offered by the General Counsel, and meeting was held between Seeburg Attorney GantZ, the received in evidence, solely for the purpose of show ing t hat the J uly 22 creditors' committee attorneys, Gaynor and Gettleman, meeting was a settlement discussion. I The court also granted the request of Seeburg, Yorke, and the credi- Union Attorney Benn, Union Representative Peters, and tors' committee for an order enjoining the Board from processing the in- Yorke. Benn asked how many employees had been on stant unfair labor practice case, which the court said would be disposed the Seeburg payroll as of February 1980. GantZ said of by the court itself. On November 13, 1980, the United States District seven. Benn asked for their names, wage rates, and clas- Court for the Northern District of Illinois vacated the bankruptcy judge's order, and directed him to refrain from hearing the unfair labor practice sifications, and GantZ said he would get that information charges. (105 LRRM 3355.) for Benn. There is no claim that Gantz failed to do so. NATHAN YORKE, TRUSTEE 825 2. Arrangements made between the Union and proof of claim so as to total $55,000. Also on July 28, the Yorke to recall a few employees bankruptcy court approved a reorganization plan under Thereafter, the bankruptcy court authorized Yorke to w h ic h Seeburg and its purchaser-in-liquidation, Stern offer some parts for sale.- During an early April 1980 Electronics, Inc., agreed to set aside $49,000 of the es- conference initiated by Yorke and Dillon, they discussed t a te 's a sse t s s h o u ld a fin d ing o f backpay liability ultimate- with Union Representative Harry Peters a plan to recall ly b e m a d e. St e r n Electronics agreed to commit to cover two or three unit employees to assist in the sale of the t h e remaining $6,000 of the potential liability. Seeburg. parts. Later, Peters telephoned Yorke that Peters would supra, 105 LRRM at 3356. commit York and Dillon to recall certain individuals, T h e July 25, 1980, hearing on confirmation before the and they were in fact recalled. Yorke and/or Dillon bankruptcy court was attended by, inter alia, Attorney asked Peters for a letter authorizing this recall, and he William G. Kocol on behalf of the NLRB, Benn on the sent that letter. Union's behalf, Gaynor on behalf of the creditors' com- mittee, Attorney Joseph Matz on Seeburg's behalf, and 3. Yorke's efforts to reject the bargaining agreement Yorke. Matz stated on the record that, following the On an undisclosed date after February 15, Yorke filed bankruptcy court's order confirming the plan of arrange- with the bankruptcy court an application to reject the m e n t , th e r e w o u l d be a closing as provided for in the collective-bargaining agreement. This application was contract, and Seeburg's assets would be transferred in opposed by both the Union and the Board, and was sub- d u e c o urs e to Stern. Matz went on to say that as of that sequently withdrawn. However, the contract was even- moment there would be no more need for Yorke to tually rejected under the specific terms of the plan of ar- maintain any operation whatsoever, that he would be ter- rangement eventually approved by the bankruptcy court minating the remaining employees, and that he had told on July 28, 1980. Matz that three of these employees were union employ- ees. Gaynor said that, if the Union wanted Yorke to bar- 4. The July 22, 1980, settlement meeting gain with respect to the effect of what he was doing pur- After the issuance of the original complaint herein, su an t to t h e plan a nd in t h e order of confirmation, "he is Gaynor, the attorney for the creditors' committee, tele- h er e an d w e w o u l d be glad to d o su c h bargaining in phoned Union Attorney Benn and requested a meeting. o p e n c o u r t .. . . t h i k w e s h o u d d o t his f r s t. T h e Benn told Gaynor that "we could discuss the charges, bankruptcy judge said that he would not attend bargain- the complaint, and hopefully settlement." During this in g , but his courtroom could be used for that purpose. meeting, which was held on July 22, 1980, Gaynor made B e nn said that the Union would be more than happy to an unsuccessful effort to induce the Union to withdraw si t d o w n wi t h Y o r k e immediately, but might be unable to its unfair labor practice charges. At the hearing and in d o so t hat day b ec a u se th e Unio n 's bargaining repre- post-hearing briefs, the General Counsel and union coun- sentative, Business Agent Peters, was not there. Gaynor sel requested me to disregard the evidence about what said t ha t h e wanted a stenographic record of the bargain- was said during this July 22 meeting, on the ground that ing. B e n n sa id that "t h e L ab o r Board has held repeatedly it constituted "compromise negotiations" within the that is unlawful [cf., infra, fn. 10]. It takes away from the meaning of Rule 408 of the Federal Rules of Evidence. I give an d ta k e o f w h at happens at the bargaining table conclude that their position in this respect is well taken. 6 ... I am happy [Gaynor] recognizes his right as of this point to let the bargainers do whatever they want to 5. Bankruptcy court proceedings do." Gaynor said that there should be a stenographic record: "There is no give and take because there is noth- July 28, 1980, the bankruptcy court ruled that the ing that Mr. Yorke has to give." The bankruptcy judge backpay claimed by the Board as due in the instant pro- said, "Mr. Gaynor, we have the record here. You have ceedings was an administrative expense entitled to prior- made it very clear. This stenographic reporter is availa- ity order under Section 507(a)(l) of the Bankruptcy ble. You have made your offer to negotiate, counsel has Code. Seeburg Corp. v. N.LR.B., 105 LRRM 3050, 5 responded." B.R. 364. 7 As of that date, the Board had modified its 6. The late August discussions 'The record fails to show whether these parts were owned by Seeburg or by Seeburg Parts. See supra, part I. By letter to Yorke dated July 31, 1980, Union Attor- I Rule 408 is applicable to compromise offers made by a party to the ney Benn demanded that negotiations commence imme- litigation to a nonparty. 2 Weinstein's Evidence para. 408[01], p. 408-413 diately "concerning the effects of the final phase out of (1980). Accordingly, I need not and do not consider whether Yorke's status as a party hereto rendered the creditors' committee a party also, the Seeburg Operation which was accomplished July 28, Yorke Exh. 1, a July 23, 1980, letter from Benn to Gaynor purporting to 1980." In Consequence of this letter, a late August 1980 summarize the July 22 meeting, was offered by the General Counsel, and meeting was held between Seeburg Attorney GantZ, the received in evidence, solely for the purpose of show ing t hat the J uly 22 creditors' committee attorneys, Gaynor and Gettleman, meeting was a settlement discussion. I The court also granted the request of Seeburg, Yorke, and the credi- Union Attorney Benn, Union Representative Peters, and tors' committee for an order enjoining the Board from processing the in- Yorke. Benn asked how many employees had been on stant unfair labor practice case, which the court said would be disposed the Seeburg payroll as of February 1980. GantZ said of by the court itself. On November 13, 1980, the United States District seven. Benn asked for their names, wage rates, and clas- Court for the Northern District of Illinois vacated the bankruptcy judge's order, and directed him to refrain from hearing the unfair labor practice sifications, and GantZ said he would get that information charges. (105 LRRM 3355.) for Benn. There is no claim that Gantz failed to do so. NATHAN YORKE, TRUSTEE 825 2. Arrangements made between the Union and proof of claim so as to total $55,000. Also on July 28, the Yorke to recall a few employees bankruptcy court approved a reorganization plan under Thereafter, the bankruptcy court authorized Yorke to w h ic h Seeburg and its purchaser-in-liquidation, Stern offer some parts for sale.- During an early April 1980 Electronics, Inc., agreed to set aside $49,000 of the es- conference initiated by Yorke and Dillon, they discussed t a te 's a sse t s s h o u ld a fin d ing o f backpay liability ultimate- with Union Representative Harry Peters a plan to recall ly b e m a d e. St e r n Electronics agreed to commit to cover two or three unit employees to assist in the sale of the t h e remaining $6,000 of the potential liability. Seeburg. parts. Later, Peters telephoned Yorke that Peters would supra, 105 LRRM at 3356. commit York and Dillon to recall certain individuals, T h e July 25, 1980, hearing on confirmation before the and they were in fact recalled. Yorke and/or Dillon bankruptcy court was attended by, inter alia, Attorney asked Peters for a letter authorizing this recall, and he William G. Kocol on behalf of the NLRB, Benn on the sent that letter. Union's behalf, Gaynor on behalf of the creditors' com- mittee, Attorney Joseph Matz on Seeburg's behalf, and 3. Yorke's efforts to reject the bargaining agreement Yorke. Matz stated on the record that, following the On an undisclosed date after February 15, Yorke filed bankruptcy court's order confirming the plan of arrange- with the bankruptcy court an application to reject the m e n t , th e r e w o u l d be a closing as provided for in the collective-bargaining agreement. This application was contract, and Seeburg's assets would be transferred in opposed by both the Union and the Board, and was sub- d u e c o urs e to Stern. Matz went on to say that as of that sequently withdrawn. However, the contract was even- moment there would be no more need for Yorke to tually rejected under the specific terms of the plan of ar- maintain any operation whatsoever, that he would be ter- rangement eventually approved by the bankruptcy court minating the remaining employees, and that he had told on July 28, 1980. Matz that three of these employees were union employ- ees. Gaynor said that, if the Union wanted Yorke to bar- 4. The July 22, 1980, settlement meeting gain with respect to the effect of what he was doing pur- After the issuance of the original complaint herein, su an t to t h e plan a nd in t h e order of confirmation, "he is Gaynor, the attorney for the creditors' committee, tele- h er e an d w e w o u l d be glad to d o su c h bargaining in phoned Union Attorney Benn and requested a meeting. o p e n c o u r t .. . . t h i k w e s h o u d d o t his f r s t. T h e Benn told Gaynor that "we could discuss the charges, bankruptcy judge said that he would not attend bargain- the complaint, and hopefully settlement." During this in g , but his courtroom could be used for that purpose. meeting, which was held on July 22, 1980, Gaynor made B e nn said that the Union would be more than happy to an unsuccessful effort to induce the Union to withdraw si t d o w n wi t h Y o r k e immediately, but might be unable to its unfair labor practice charges. At the hearing and in d o so t hat day b ec a u se th e Unio n 's bargaining repre- post-hearing briefs, the General Counsel and union coun- sentative, Business Agent Peters, was not there. Gaynor sel requested me to disregard the evidence about what said t ha t h e wanted a stenographic record of the bargain- was said during this July 22 meeting, on the ground that ing. B e n n sa id that "t h e L ab o r Board has held repeatedly it constituted "compromise negotiations" within the that is unlawful [cf., infra, fn. 10]. It takes away from the meaning of Rule 408 of the Federal Rules of Evidence. I give an d ta k e o f w h at happens at the bargaining table conclude that their position in this respect is well taken. 6 ... I am happy [Gaynor] recognizes his right as of this point to let the bargainers do whatever they want to 5. Bankruptcy court proceedings do." Gaynor said that there should be a stenographic record: "There is no give and take because there is noth- July 28, 1980, the bankruptcy court ruled that the ing that Mr. Yorke has to give." The bankruptcy judge backpay claimed by the Board as due in the instant pro- said, "Mr. Gaynor, we have the record here. You have ceedings was an administrative expense entitled to prior- made it very clear. This stenographic reporter is availa- ity order under Section 507(a)(l) of the Bankruptcy ble. You have made your offer to negotiate, counsel has Code. Seeburg Corp. v. N.LR.B., 105 LRRM 3050, 5 responded." B.R. 364. 7 As of that date, the Board had modified its 6. The late August discussions 'The record fails to show whether these parts were owned by Seeburg or by Seeburg Parts. See supra, part I. By letter to Yorke dated July 31, 1980, Union Attor- I Rule 408 is applicable to compromise offers made by a party to the ney Benn demanded that negotiations commence imme- litigation to a nonparty. 2 Weinstein's Evidence para. 408[01], p. 408-413 diately "concerning the effects of the final phase out of (1980). Accordingly, I need not and do not consider whether Yorke's status as a party hereto rendered the creditors' committee a party also, the Seeburg Operation which was accomplished July 28, Yorke Exh. 1, a July 23, 1980, letter from Benn to Gaynor purporting to 1980." In Consequence of this letter, a late August 1980 summarize the July 22 meeting, was offered by the General Counsel, and meeting was held between Seeburg Attorney GantZ, the received in evidence, solely for the purpose of show ing t hat the J uly 22 creditors' committee attorneys, Gaynor and Gettleman, meeting was a settlement discussion. I The court also granted the request of Seeburg, Yorke, and the credi- Union Attorney Benn, Union Representative Peters, and tors' committee for an order enjoining the Board from processing the in- Yorke. Benn asked how many employees had been on stant unfair labor practice case, which the court said would be disposed the Seeburg payroll as of February 1980. GantZ said of by the court itself. On November 13, 1980, the United States District seven. Benn asked for their names, wage rates, and clas- Court for the Northern District of Illinois vacated the bankruptcy judge's order, and directed him to refrain from hearing the unfair labor practice sifications, and GantZ said he would get that information charges. (105 LRRM 3355.) for Benn. There is no claim that Gantz failed to do so. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benn said that 300 or 400 people had been on layoff E. Analysis and Conclusions status when Seeburg filed its October 1979 petition, and asked whether Yorke could obtain jobs for them with hen an employer decides to terminate or close its Stern Electronics, the purchaser in liquidation. Yorke re- entire operation it must, once that decision is made, plied that he had no control over Stern. He said that let- afford the employees' collective-bargaining representa- ters of reference would be furnished to these employees, tive the opportunity to bargain over the impact and but no such letters were ever furnished. Benn asked if effect of that decision on unit employees. Burgmeyer payments to the pension plan were current. He was told Bros., Inc, 254 NLRB 1027 (1981); Summit Tooling Co., that they were, and accepted this representation. Benn 195 NLRB 479 (1972), enfd. 474 F.2d 1352 (7th Cir. asked whether payments had been made to the hospital- 1973). This duty is not relieved by the employer's bank- ization insurance carrier. Gantz said that a claim for the ruptcy, and any consequent belief by it that it would be premiums had been filed by the carrier, there was going financially unable to meet any of the union's bargaining to be no objection, the bankruptcy court was going to demands. Burgmeyer, supra. A trustee-in-bankruptcy is allow it, and employees would thereby obtain coverage the alter ego of the bankrupt employer and, like that em- for that period of time. ployer, is under a duty to comply with the National Benn said that he would like to discuss severance pay. Labor Relations Act, including the requirement to Gaynor and Yorke told him to show some authority engage in collective bargaining. Jersey Juniors, Inc., 230 where Yorke could give severance pay. Benn said that NLRB 329, 331-332 (1977); Burgmeyer, supra. the bankruptcy court had set aside $55,000 and had de- Immediately after the General Counsel and the Union termined that it would "come off the top" as a cost of had rested, counsel for Respondent Yorke admitted the administration; that the Labor Board settlement, if truth of the complaint allegation that, about February 8, agreed to, would amount to $7,000 or $8,000; and that 1980, Respondents terminated operations, and discharged the remainder could be distributed among the 400 em- the employees, without prior notice to the Union and ployees (aside from the 7 retained on the payroll) as sev- without having afforded the Union an opportunity to ne- erance pay. Gaynor and Yorke said that they did not gotiate regarding the effect of such conduct. Moreover, know under what section of the Bankruptcy Act Yorke the record as a whole establishes that on February 11, would be able to make such a distribution, that these 300 1980, Respondents in fact did this. The foregoing estab- or 400 employees whose jobs had been terminated in Oc- lishes, at least prima facie, that Respondents thereby vio- tober 1979 had filed no claims in the bankruptcy pro- lated Section 8(a)(5) and () of the Act. ceedings, and that the time had expired for them to file Respondent Yorke defends his own failure to give the such claims. Benn said that he was not talking about the Union such notice on the ground that, when he shut Bankruptcy Code, that he was talking about obligations down the plant, he did not know that the employees had under the National Labor Relations Act and the duty to a collective-bargaining representative. Because Seeburg bargain about effects. Yorke said that he did not operate and Seeburg Parts obviously did know, I doubt the legal under the labor laws, he operated under the Bankruptcy sufficiency of Yorke's defense in this respect. See A c t. , N.L.R.B. v. E.D.S. Service Co., 466 F.2d 157 (9th Cir. Gaynor said that, as to the Labor Board case, the 1972) Jersey Juniors supra 230 NLRB at 331-332; Government had a "bullshit case," and that Benn andRB v uuerue oeni press, 3 2 1, NLRB Attorney Kocol had conspired to file a fraudu- N2-45 v. A erqe Ph. 1966)E lent claim. Benn suggested that Gaynor tell this to the 45 453 (1th Cir. 1966). bankruptcy court judge. Benn said that he had heard In any event, Yorke faled to bargain wth the Union from Kocol that there were discussions concerning set- about the shutdown's effect on employees even after it concerning found out about the shutdown and made a written tiement of the Labor Board case. Gaynor said that he fo u n d o ut ab o u t t h e sh u t d o w n a nd ad e a w tt would not settle the Labor Board case. Benn said that "demand that an immediate meeting be set up so that we someone should tell a cas Benn that to Kocl, becan discuss the Benn felt that your action has on our Kocol was "being led down the path." Gaynor replied, bargaining unit employees" Yorke's written response did "they only listened to the Labor Board's offer, they were not refer to the request for a meeting, but merely said not going to settle it." Gaynor then asked Benn whether that he had discontinued the operation of the business "we had bargained." Benn replied, "I suppose that re- and had no employees, gave some of the information re- mains to be seen at a later date." Nobody suggested a quested by the Union regarding corporations allegedly future meeting.8 related to Seeburg, and said that he would be happy to furnish further information. 9 Furthermore, during the 'My findings as to what was said during this late August meeting are based mostly on the testimony of Union Attorney Benn, who was called shows that he had a poor memory. Accordingly, I do not accept the tes- as a witness by Respondent Yorke. I perceive no basis in Benn's credible timony of Yorke summarized in this footnote. Hence, I perceive no credi- testimony for his statement, at the end of his direct testimony, that "the ble factual predicate for Benn's contention, not renewed in his brief, that entire meeting was settlement." A finding that at least part of this meet- evidence as to the late August meeting is inadmissible under Fed. R. ing constituted a settlement discussion would be warranted were I to Evid. 408 as "statements made in compromise negotiations." credit Yorke's testimony that Gaynor said "he wouldn't suggest settling ' Yorke's counsel stated at the outset of the hearing that the Union's with the National Labor Relations Board unless the Union was a party to letter included a request that Yorke "bargain about the effects of" the it . . . because that would leave the Union as an open end to the agree- closing. I agree, and do not accept counsel's contention, in his post-hear- ment." However, such testimony is inconsistent with Benn's credible tes- ing brief, that this letter was "ambiguous." See Hankamer Ready Mix timony regarding Oaynor's expressed position, Yorke's counsel makes no Concrete Co., 234 NLRB 608, 615 (1978); Richmond, Division of Pak-Well, contention that Benn's testimony varied from his contemporaneous notes 206 NLRB 260, 261 (1973). Moreover. I find that Yorke's failure to (which he supplied to Yorke's counsel), and Yorke's testimony as a whole Continued 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benn said that 300 or 400 people had been on layoff E. Analysis and Conclusions status when Seeburg filed its October 1979 petition, and When a e d asked whether Yorke could obtain jobs for them with W h en a " employer decides to terminate or close its Stern Electronics, the purchaser in liquidation. Yorke re- entire operation it must, once that decision is made, plied that he had no control over Stern. He said that let- afford the employees' collective-bargaining representa- ters of reference would be furnished to these employees, ti v e the opportunity to bargain over the impact and but no such letters were ever furnished. Benn asked if ef ec t o f t h at d ec ision on u nit employees. Burgmeyer payments to the pension plan were current. He was told Bros., I n c. 25 4 NLRB 1027 (1981); Summit Tooling Co., that they were, and accepted this representation. Benn 195 NLRB 479 (1972), enfd. 474 F.2d 1352 (7th Cir. asked whether payments had been made to the hospital- 197 3). T h is duty is not relieved by the employer's bank- ization insurance carrier. Gantz said that a claim for the ruptcy, and any consequent belief by it that it would be premiums had been filed by the carrier, there was going financially unable to meet any of the union's bargaining to be no objection, the bankruptcy court was going to demands. Burgmeyer, supra. A trustee-in-bankruptcy is allow it, and employees would thereby obtain coverage the alter ego of the bankrupt employer and, like that em- for that period of time. ployer, is under a duty to comply with the National Benn said that he would like to discuss severance pay. Labor Relations Act, including the requirement to Gaynor and Yorke told him to show some authority engage in collective bargaining. Jersey Juniors, Inc., 230 where Yorke could give severance pay. Benn said that NLRB 329, 331-332 (1977); Burgmeyer, supra. the bankruptcy court had set aside $55,000 and had de- Immediately after the General Counsel and the Union termined that it would "come off the top" as a cost of had rested, counsel for Respondent Yorke admitted the administration; that the Labor Board settlement, if truth of the complaint allegation that, about February 8, agreed to, would amount to $7,000 or $8,000; and that 1980, Respondents terminated operations, and discharged the remainder could be distributed among the 400 em- the employees, without prior notice to the Union and ployees (aside from the 7 retained on the payroll) as sev- without having afforded the Union an opportunity to ne- erance pay. Gaynor and Yorke said that they did not gotiate regarding the effect of such conduct. Moreover, know under what section of the Bankruptcy Act Yorke the record as a whole establishes that on February 11, would be able to make such a distribution, that these 300 1980, Respondents in fact did this. The foregoing estab- or 400 employees whose jobs had been terminated in Oc- lishes, at least prima facie, that Respondents thereby vio- tober 1979 had filed no claims in the bankruptcy pro- lated Section 8(a)(5) and (1) of the Act. ceedings, and that the time had expired for them to file Respondent Yorke defends his own failure to give the such claims. Benn said that he was not talking about the Union such notice on the ground that, when he shut Bankruptcy Code, that he was talking about obligations down the plant, he did not know that the employees had under the National Labor Relations Act and the duty to a collective-bargaining representative. Because Seeburg bargain about effects. Yorke said that he did not operate and Seeburg Parts obviously did know, I doubt the legal under the labor laws, he operated under the Bankruptcy sufficiency of Yorke's defense in this respect. See A c t. N.L.R.B. v. E.D.S. Service Co., 466 F.2d 157 (9th Cir. Gaynor said that, as to the Labor Board case, the 1972); Jersey Juniors, supra, 230 NLRB at 331-332; Government had a "bullshit case," and that Benn and N.R.B. v. Albuquerque Phoenix Express, 368 F.2d 451, NLRB Attorney Kocol had conspired to file a fraudu- 452-453 (,0th Cir. 1966). lent claim. Benn suggested that Gaynor tell this to the I a , Y fl t b w t Union bankruptcy court judge. Benn said that he had heard a th es t d e ff ec o emlye even t e it from Kocol that there were discussions concerning set- fab o u t t h e shutdowr's effect on employees even after it tlement of the Labor Board case. Gaynor said that he "dm nd t a tai e dia te m ng b e a w e would not settle the Labor Board case. Benn said that cad em iu d t h a t a n. .ediate meeting be set up so that we someone should tell that to Kocol, because Benn felt that c an d br ingu ss t h e eml eyects that your action has on our Kocol was "being led down the path." Gaynor replied, bargaining unit employeest Yorkees written response did "they only listened to the Labor Board's offer, they were tn o t h e f er t o d oe request for a meeting, but merely said not going to settle it." Gaynor then asked Benn whether th at h e h a( continued the operation of the business "we had bargained." Benn replied, "I suppose that re- and h ad no employees, gave some of the information re- mains to be seen at a later date." Nobody suggested a ques t ed by the Union regarding corporations allegedly future meeting.' related to Seeburg, and said that he would be happy to furnish further information. 9 Furthermore, during the 'My findings as to what was said during this late August meeting are based mostly on the testimony of Union Attorney Benn, who was called shows that he had a poor memory. Accordingly, I do not accept the tes- as a witness by Respondent Yorke. I perceive no basis in Benn's credible timony of Yorke summarized in this footnote. Hence, I perceive no credi- testimony for his statement, at the end of his direct testimony, that "the ble factual predicate for Benn's contention, not renewed in his brief, that entire meeting was settlement." A finding that at least part of this meet- evidence as to the late August meeting is inadmissible under Fed. R. ing constituted a settlement discussion would be warranted were I to Evid. 408 as "statements made in compromise negotiations." credit Yorke's testimony that Oaynor said "he wouldn't suggest settling I Yorke's counsel stated at the outset of the hearing that the Union's with the National Labor Relations Board unless the Union was a party to letter included a request that Yorke "bargain about the effects ofr the it ... because that would leave the Union as an open end to the agree- closing. I agree, and do not accept counsel's contention, in his post-hear- ment." However, such testimony is inconsistent with Benn's credible tes- ing brief, that this letter was "ambiguous." See Hankamer Ready Mix timony regarding Oaynor's expressed position, Yorke's counsel makes no Concrete Co., 234 NLRB 608, 615 (1978); Richmond, Division of Pak-Well, contention that Benn's testimony varied from his contemporaneous notes 206 NLRB 260, 261 (1973). Moreover. I find that Yorke's failure to (which he supplied to Yorke's counsel), and Yorke's testimony as a whole Continued 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benn said that 300 or 400 people had been on layoff E. Analysis and Conclusions status when Seeburg filed its October 1979 petition, and When a e d asked whether Yorke could obtain jobs for them with W h en an employer decides to terminate or close its Stern Electronics, the purchaser in liquidation. Yorke re- entire operation it must, once that decision is made, plied that he had no control over Stern. He said that let- afford the employees' collective-bargaining representa- ters of reference would be furnished to these employees, ti v e the opportunity to bargain over the impact and but no such letters were ever furnished. Benn asked if ef ec t o f t h at d ec ision on unit employees. Burgmeyer payments to the pension plan were current. He was told Bros., I n c. 25 4 NLRB 1027 (1981); Summit Tooling Co., that they were, and accepted this representation. Benn 195 NLRB 479 (1972), enfd. 474 F.2d 1352 (7th Cir. asked whether payments had been made to the hospital- 197 3). T h is duty is not relieved by the employer's bank- ization insurance carrier. Gantz said that a claim for the ruptcy, and any consequent belief by it that it would be premiums had been filed by the carrier, there was going financially unable to meet any of the union's bargaining to be no objection, the bankruptcy court was going to demands. Burgmeyer, supra. A trustee-in-bankruptcy is allow it, and employees would thereby obtain coverage the alter ego of the bankrupt employer and, like that em- for that period of time. ployer, is under a duty to comply with the National Benn said that he would like to discuss severance pay. Labor Relations Act, including the requirement to Gaynor and Yorke told him to show some authority engage in collective bargaining. Jersey Juniors, Inc., 230 where Yorke could give severance pay. Benn said that NLRB 329, 331-332 (1977); Burgmeyer, supra. the bankruptcy court had set aside $55,000 and had de- Immediately after the General Counsel and the Union termined that it would "come off the top" as a cost of had rested, counsel for Respondent Yorke admitted the administration; that the Labor Board settlement, if truth of the complaint allegation that, about February 8, agreed to, would amount to $7,000 or $8,000; and that 1980, Respondents terminated operations, and discharged the remainder could be distributed among the 400 em- the employees, without prior notice to the Union and ployees (aside from the 7 retained on the payroll) as sev- without having afforded the Union an opportunity to ne- erance pay. Gaynor and Yorke said that they did not gotiate regarding the effect of such conduct. Moreover, know under what section of the Bankruptcy Act Yorke the record as a whole establishes that on February 11, would be able to make such a distribution, that these 300 1980, Respondents in fact did this. The foregoing estab- or 400 employees whose jobs had been terminated in Oc- lishes, at least prima facie, that Respondents thereby vio- tober 1979 had filed no claims in the bankruptcy pro- lated Section 8(a)(5) and (1) of the Act. ceedings, and that the time had expired for them to file Respondent Yorke defends his own failure to give the such claims. Benn said that he was not talking about the Union such notice on the ground that, when he shut Bankruptcy Code, that he was talking about obligations down the plant, he did not know that the employees had under the National Labor Relations Act and the duty to a collective-bargaining representative. Because Seeburg bargain about effects. Yorke said that he did not operate and Seeburg Parts obviously did know, I doubt the legal under the labor laws, he operated under the Bankruptcy sufficiency of Yorke's defense in this respect. See A c t. N.L.R.B. v. E.D.S. Service Co., 466 F.2d 157 (9th Cir. Gaynor said that, as to the Labor Board case, the 1972); Jersey Juniors, supra, 230 NLRB at 331-332; Government had a "bullshit case," and that Benn and N.R.B. v. Albuquerque Phoenix Express, 368 F.2d 451, NLRB Attorney Kocol had conspired to file a fraudu- 452-453 (,0th Cir. 1966). lent claim. Benn suggested that Gaynor tell this to the I a , Y fl t b w t Union bankruptcy court judge. Benn said that he had heard a th es t d e ff ec o emlye even t e it from Kocol that there were discussions concerning set- fab o u t t h e shutdowr's effect on employees even after it tlement of the Labor Board case. Gaynor said that he "dm nd t a tai e dia te m ng b e a w e would not settle the Labor Board case. Benn said that cad em iu d t h a t a n. .ediate meeting be set up so that we someone should tell that to Kocol, because Benn felt that c an d br ingu ss t h e eml eyects that your action has on our Kocol was "being led down the path." Gaynor replied, bargaining unit employeest Yorkees written response did "they only listened to the Labor Board's offer, they were tn o t h e f er t o d oe request for a meeting, but merely said not going to settle it." Gaynor then asked Benn whether th at h e h a( continued the operation of the business "we had bargained." Benn replied, "I suppose that re- and h ad no employees, gave some of the information re- mains to be seen at a later date." Nobody suggested a ques t ed by the Union regarding corporations allegedly future meeting.' related to Seeburg, and said that he would be happy to furnish further information. 9 Furthermore, during the 'My findings as to what was said during this late August meeting are based mostly on the testimony of Union Attorney Benn, who was called shows that he had a poor memory. Accordingly, I do not accept the tes- as a witness by Respondent Yorke. I perceive no basis in Benn's credible timony of Yorke summarized in this footnote. Hence, I perceive no credi- testimony for his statement, at the end of his direct testimony, that "the ble factual predicate for Benn's contention, not renewed in his brief, that entire meeting was settlement." A finding that at least part of this meet- evidence as to the late August meeting is inadmissible under Fed. R. ing constituted a settlement discussion would be warranted were I to Evid. 408 as "statements made in compromise negotiations." credit Yorke's testimony that Oaynor said "he wouldn't suggest settling I Yorke's counsel stated at the outset of the hearing that the Union's with the National Labor Relations Board unless the Union was a party to letter included a request that Yorke "bargain about the effects ofr the it ... because that would leave the Union as an open end to the agree- closing. I agree, and do not accept counsel's contention, in his post-hear- ment." However, such testimony is inconsistent with Benn's credible tes- ing brief, that this letter was "ambiguous." See Hankamer Ready Mix timony regarding Oaynor's expressed position, Yorke's counsel makes no Concrete Co., 234 NLRB 608, 615 (1978); Richmond, Division of Pak-Well, contention that Benn's testimony varied from his contemporaneous notes 206 NLRB 260, 261 (1973). Moreover. I find that Yorke's failure to (which he supplied to Yorke's counsel), and Yorke's testimony as a whole Continued 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benn said that 300 or 400 people had been on layoff E. Analysis and Conclusions status when Seeburg filed its October 1979 petition, and When a e d asked whether Yorke could obtain jobs for them with W h en a " employer decides to terminate or close its Stern Electronics, the purchaser in liquidation. Yorke re- entire operation it must, once that decision is made, plied that he had no control over Stern. He said that let- afford the employees' collective-bargaining representa- ters of reference would be furnished to these employees, ti v e the opportunity to bargain over the impact and but no such letters were ever furnished. Benn asked if ef ec t o f t h at d ec ision on unit employees. Burgmeyer payments to the pension plan were current. He was told Bros., I n c. 25 4 NLRB 1027 (1981); Summit Tooling Co., that they were, and accepted this representation. Benn 195 NLRB 479 (1972), enfd. 474 F.2d 1352 (7th Cir. asked whether payments had been made to the hospital- 197 3). T h is duty is not relieved by the employer's bank- ization insurance carrier. Gantz said that a claim for the ruptcy, and any consequent belief by it that it would be premiums had been filed by the carrier, there was going financially unable to meet any of the union's bargaining to be no objection, the bankruptcy court was going to demands. Burgmeyer, supra. A trustee-in-bankruptcy is allow it, and employees would thereby obtain coverage the alter ego of the bankrupt employer and, like that em- for that period of time. ployer, is under a duty to comply with the National Benn said that he would like to discuss severance pay. Labor Relations Act, including the requirement to Gaynor and Yorke told him to show some authority engage in collective bargaining. Jersey Juniors, Inc., 230 where Yorke could give severance pay. Benn said that NLRB 329, 331-332 (1977); Burgmeyer, supra. the bankruptcy court had set aside $55,000 and had de- Immediately after the General Counsel and the Union termined that it would "come off the top" as a cost of had rested, counsel for Respondent Yorke admitted the administration; that the Labor Board settlement, if truth of the complaint allegation that, about February 8, agreed to, would amount to $7,000 or $8,000; and that 1980, Respondents terminated operations, and discharged the remainder could be distributed among the 400 em- the employees, without prior notice to the Union and ployees (aside from the 7 retained on the payroll) as sev- without having afforded the Union an opportunity to ne- erance pay. Gaynor and Yorke said that they did not gotiate regarding the effect of such conduct. Moreover, know under what section of the Bankruptcy Act Yorke the record as a whole establishes that on February 11, would be able to make such a distribution, that these 300 1980, Respondents in fact did this. The foregoing estab- or 400 employees whose jobs had been terminated in Oc- lishes, at least prima facie, that Respondents thereby vio- tober 1979 had filed no claims in the bankruptcy pro- lated Section 8(a)(5) and (1) of the Act. ceedings, and that the time had expired for them to file Respondent Yorke defends his own failure to give the such claims. Benn said that he was not talking about the Union such notice on the ground that, when he shut Bankruptcy Code, that he was talking about obligations down the plant, he did not know that the employees had under the National Labor Relations Act and the duty to a collective-bargaining representative. Because Seeburg bargain about effects. Yorke said that he did not operate and Seeburg Parts obviously did know, I doubt the legal under the labor laws, he operated under the Bankruptcy sufficiency of Yorke's defense in this respect. See A c t. N.L.R.B. v. E.D.S. Service Co., 466 F.2d 157 (9th Cir. Gaynor said that, as to the Labor Board case, the 1972); Jersey Juniors, supra, 230 NLRB at 331-332; Government had a "bullshit case," and that Benn and N.R.B. v. Albuquerque Phoenix Express, 368 F.2d 451, NLRB Attorney Kocol had conspired to file a fraudu- 452-453 (,0th Cir. 1966). lent claim. Benn suggested that Gaynor tell this to the I a , Y fl t b w t Union bankruptcy court judge. Benn said that he had heard abu th es t d e ff ec o emlye even t e it from Kocol that there were discussions concerning set- fab o u t t h e shutdowr's effect on employees even after it tlement of the Labor Board case. Gaynor said that he "dm nd t a t ani se a we would not settle the Labor Board case. Benn said that cad em iu d t h a t a n. .ediate meeting be set up so that we someone should tell that to Kocol, because Benn felt that c an d br ingu ss t h e eml eyects that your action has on our Kocol was "being led down the path." Gaynor replied, bargaining unit employeest Yorkees written response did "they only listened to the Labor Board's offer, they were tn o t h e f er t o d oe request for a meeting, but merely said not going to settle it." Gaynor then asked Benn whether th at h e h a( continued the operation of the business "we had bargained." Benn replied, "I suppose that re- and h ad no employees, gave some of the information re- mains to be seen at a later date." Nobody suggested a ques t ed by the Union regarding corporations allegedly future meeting.' related to Seeburg, and said that he would be happy to furnish further information. 9 Furthermore, during the 'My findings as to what was said during this late August meeting are based mostly on the testimony of Union Attorney Benn, who was called shows that he had a poor memory. Accordingly, I do not accept the tes- as a witness by Respondent Yorke. I perceive no basis in Benn's credible timony of Yorke summarized in this footnote. Hence, I perceive no credi- testimony for his statement, at the end of his direct testimony, that "the ble factual predicate for Benn's contention, not renewed in his brief, that entire meeting was settlement." A finding that at least part of this meet- evidence as to the late August meeting is inadmissible under Fed. R. ing constituted a settlement discussion would be warranted were I to Evid. 408 as "statements made in compromise negotiations." credit Yorke's testimony that Oaynor said "he wouldn't suggest settling I Yorke's counsel stated at the outset of the hearing that the Union's with the National Labor Relations Board unless the Union was a party to letter included a request that Yorke "bargain about the effects ofr the it ... because that would leave the Union as an open end to the agree- closing. I agree, and do not accept counsel's contention, in his post-hear- ment." However, such testimony is inconsistent with Benn's credible tes- ing brief, that this letter was "ambiguous." See Hankamer Ready Mix timony regarding Oaynor's expressed position, Yorke's counsel makes no Concrete Co., 234 NLRB 608, 615 (1978); Richmond, Division of Pak-Well, contention that Benn's testimony varied from his contemporaneous notes 206 NLRB 260, 261 (1973). Moreover. I find that Yorke's failure to (which he supplied to Yorke's counsel), and Yorke's testimony as a whole Continued NATHAN YORKE, TRUSTEE 827 July 25, 1980, bankruptcy court session, Yorke remained employees, guards and professional employees as silent when the attorney for the creditors' committee defined in the Act. stated that there could be no give and take in bargaining because Yorke had nothing to give, and when Gaynor 8. The Union is a labor organization within the mean- adhered to his insistence on a stenographic transcript of ing of Section 2(5) of the Act. any bargaining sessions, notwithstanding Benn's state- 9. By virtue of Section 9(a) of the Act, the Union has ment that the Union would exercise its right to corn- been at all material times and still is the exclusive repre- mence negotiations without a stenographer. 0 Indeed, at sentative of the unit described in Conclusion of Law 7. the hearing before me, Yorke attributed to himself some On February 11, 1980, The Seeburg Corporation, See- of the remarks which the bankruptcy court transcript burg Service Parts, and Yorke terminated operations at shows were in fact made by Gaynor. Finally, when in the Chicago, Illinois, facility, and discharged the employ- August 1980 the Union asked Yorke to discuss severance ees at that facility, without prior notice to the Union and pay, Yorke said that he had no authority under the without having afforded the Union an opportunity to ne- Bankruptcy Act to make such payments and that he op- gotiate and bargain concerning the effects of such con- erated under that Act and not the labor laws. Indeed, duct on unit employees. York did not even keep the promise which he gave 11. By engaging in the conduct described in Conclu- during that meeting, after he was asked about obtaining sion of Law 10, The Seeburg Corporation, Seeburg jobs for the employees with Stern, to furnish the employ- Service Parts, and Yorke engaged in unfair labor prac- ees with letters of reference. tices within the meaning of Section 8(a)(5) and (1) of the Act, which unfair labor practices affect commerce within CONCLUSIONS OF LAW the meaning of Section 2(6) and (7) of the Act. 1. At all material times until February 8, 1980, The Seeburg Corporation was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondents have violated the Act 2. At all material times herein, Seeburg Service Parts in certain respects, I shall recommend that Respondents Corporation was engaged in commerce within the mean- be required to cease and desist therefrom. Affirmatively, ing of Section 2(6) and (7) of the Act. Respondents will be required to bargain with the Union, 3. At all material times herein, The Seeburg Corpora- upon request, with respect to the effects on employees of tion, Seeburg Service Parts Corporation, and Nathan the decision to terminate operations, and to mail appro- Yorke, Trustee in Bankruptcy, collectively, were en- priate notices. gaged in commerce within the meaning of Section 2(6) I agree with Respondent that under National Terminal and (7) of the Act. Baking Corp.. a Subsidiary of Kosher Kitchens, 190 NLRB 4. At all material times herein, The Seeburg Corpora- 465 (1971), no backpay order should issue here. Al- tion and Seeburg Service Parts Corporation have consti- though it is unclear just when Yorke reached his deci- tuted a single integrated business enterprise and single sion to ask the bankruptcy court for permission to shut and/or joint employer within the meaning of the Act. down the plant, 97 percent of the unit employees had 5. At all material times on and after February 4, 1980, been laid off before he became trustee, Seeburg had lost Yorke has been the trustee in bankruptcy for The See- $350,000 during the 4 months before he became trustee, burg Corporation and Seeburg Service Parts Corpora- and Yorke had been trustee for only a week before re- tion, and an employer within the meaning of Section 2(1) ceiving and acting on permission to shut down the plant. and (2) of the Act. Under these circumstances, as in National Terminal, Re- 6. At all material times on and after February 4, 1980, spondents' failure to bargain about effects did not occur Yorke has occupied alter ego status with respect to The at a time when the Union was in a position of economic Seeburg Corporation and Seeburg Parts Corporation. strength. The backpay orders in the cases cited by the 7. The following employees of The Seeburg Corpora- General Counsel and the Union constituted efforts to tion, Seeburg Service Parts Corporation, and/or Yorke, assure meaningful bargaining by restoring such strength constitute a unit appropriate for the purposes of collec- in situations where, if the employer had timely complied tive bargaining within the meaning of Section 9(b) of the with its duty to bargain about effects, the union could Act: have imposed some economic pressure to compel the employer to accede to the union's demands. " All plant clerical and all production and mainte- The Union requests an order affording it "bargaining nance employees at the Chicago, Illinois, plant, ex- expenses, attorneys' fees and other costs" on the ground cluding executive, supervisory employees, time- that because "the Respondent [sic] has admittedly stated keepers, foremen with power to hire and fire or to that it purposely refused to acknowledge its obligations effectively recommend such action, office clerical under the Act, it is apparent that the defenses raised are answer that portion of the letter constituted a refusal to bargain. First Na- " Burgmeyer, supra: First National Maintenance, supra; Thompson Trans- tional Maintenance Corp., 242 NLRB 462, fn. 1 (1979), enfd. 627 F.2d 596 port Co., 184 NLRB 38 (1970); Transmarine Navigation Corp., 170 NLRB (2d Cir. 1980), 452 U.S. 666; Summersville Industrial Equipment Co., Divi- 389 (1968). See also Drapery Manufacturing Co.. Inc.. 170 NLRB 1706 sion of Marathon Coal Bit Co., 197 NLRB 731, 735 (1972). (1968), enfd. 425 F.2d 1026 (8th Cir. 1970), where there was a possibility ' Bartlett-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d 652 (10th that the employees who lost their jobs could have been absorbed into one Cir. 1981). of the employer's other operations. NATHAN YORKE, TRUSTEE 827 July 25, 1980, bankruptcy court session, Yorke remained employees, guards and professional employees as silent when the attorney for the creditors' committee defined in the Act. stated that there could be no give and take in bargaining because Yorke had nothing to give, and when Gaynor 8. The Union is a labor organization within the mean- adhered to his insistence on a stenographic transcript of ing of Section 2(5) of the Act. any bargaining sessions, notwithstanding Benn's state- 9. By virtue of Section 9(a) of the Act, the Union has ment that the Union would exercise its right to com- been at all material times and still is the exclusive repre- mence negotiations without a stenographer." o Indeed, at sentative of the unit described in Conclusion of Law 7. the hearing before me, Yorke attributed to himself some On February 11, 1980, The Seeburg Corporation, See- of the remarks which the bankruptcy court transcript burg Service Parts, and Yorke terminated operations at shows were in fact made by Gaynor. Finally, when in the Chicago, Illinois, facility, and discharged the employ- August 1980 the Union asked Yorke to discuss severance ees at that facility, without prior notice to the Union and pay, Yorke said that he had no authority under the without having afforded the Union an opportunity to ne- Bankruptcy Act to make such payments and that he op- gotiate and bargain concerning the effects of such con- erated under that Act and not the labor laws. Indeed, duct on unit employees. York did not even keep the promise which he gave 11. By engaging in the conduct described in Conclu- during that meeting, after he was asked about obtaining sion of Law 10, The Seeburg Corporation, Seeburg jobs for the employees with Stern, to furnish the employ- Service Parts, and Yorke engaged in unfair labor prac- ees with letters of reference. tices within the meaning of Section 8(a)(5) and (1) of the Act, which unfair labor practices affect commerce within CONCLUSIONS OF LAW the meaning of Section 2(6) and (7) of the Act. 1. At all material times until February 8, 1980, TheT REMD Seeburg Corporation was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondents have violated the Act 2. At all material times herein, Seeburg Service Parts in certain respects, I shall recommend that Respondents Corporation was engaged in commerce within the mean- be required to cease and desist therefrom. Affirmatively, ing of Section 2(6) and (7) of the Act. Respondents will be required to bargain with the Union, 3. At all material times herein, The Seeburg Corpora- upon request, with respect to the effects on employees of tion, Seeburg Service Parts Corporation, and Nathan the decision to terminate operations, and to mail appro- Yorke, Trustee in Bankruptcy, collectively, were en- priate notices. gaged in commerce within the meaning of Section 2(6) I agree with Respondent that under National Terminal and (7) of the Act. Baking Corp.. a Subsidiary of Kosher Kitchens, 190 NLRB 4. At all material times herein, The Seeburg Corpora- 465 (1971), no backpay order should issue here. Al- tion and Seeburg Service Parts Corporation have consti- though it is unclear just when Yorke reached his deci- tuted a single integrated business enterprise and single sion to ask the bankruptcy court for permission to shut and/or joint employer within the meaning of the Act. down the plant, 97 percent of the unit employees had 5. At all material times on and after February 4, 1980, been laid off before he became trustee, Seeburg had lost Yorke has been the trustee in bankruptcy for The See- $350,000 during the 4 months before he became trustee, burg Corporation and Seeburg Service Parts Corpora- and Yorke had been trustee for only a week before re- tion, and an employer within the meaning of Section 2(1) ceiving and acting on permission to shut down the plant. and (2) of the Act. Under these circumstances, as in National Terminal, Re- 6. At all material times on and after February 4, 1980, spondents' failure to bargain about effects did not occur Yorke has occupied alter ego status with respect to The at a time when the Union was in a position of economic Seeburg Corporation and Seeburg Parts Corporation. strength. The backpay orders in the cases cited by the 7. The following employees of The Seeburg Corpora- General Counsel and the Union constituted efforts to tion, Seeburg Service Parts Corporation, and/or Yorke, assure meaningful bargaining by restoring such strength constitute a unit appropriate for the purposes of collec- in situations where, if the employer had timely complied tive bargaining within the meaning of Section 9(b) of the with its duty to bargain about effects, the union could Act: ha v e imposed some economic pressure to compel the employer to accede to the union's demands. " All plant clerical and all production and mainte- The Union requests an order affording it "bargaining nance employees at the Chicago, Illinois, plant, ex- expenses, attorneys' fees and other costs" on the ground eluding executive, supervisory employees, time- that because "the Respondent [sic] has admittedly stated keepers, foremen with power to hire and fire or to that it purposely refused to acknowledge its obligations effectively recommend such action, office clerical under the Act, it is apparent that the defenses raised are answer that portion of the letter constituted a refusal to bargain. First Na- " Burgmeyer, supra; First National Maintenance, supra; Thompson Trans- tional Maintenance Corp., 242 NLRB 462, fn. 1 (1979), enfd. 627 F.2d 596 port Ca. 184 NLRB 38 (1970); Transmarine Navigation Corp.. 170 NLRB (2d Cir. 1980), 452 U.S. 666; Summersville Industrial Equipment Co., Divi- 389 (1968). See also Drapery Manufacturing Co.. Inc.. 170 NLRB 1706 sion of Marathon Coal Bit Co., 197 NLRB 731, 735 (1972). (1968), enfd. 425 F.2d 1026 (8th Cir. 1970), where there was a possibility 1° Bartlel-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d 652 (10th that the employees who lost their jobs could have been absorbed into one Cir. 1981). of the employer's other operations. NATHAN YORKE, TRUSTEE 827 July 25, 1980, bankruptcy court session, Yorke remained employees, guards and professional employees as silent when the attorney for the creditors' committee defined in the Act. stated that there could be no give and take in bargaining because Yorke had nothing to give, and when Gaynor 8. The Union is a labor organization within the mean- adhered to his insistence on a stenographic transcript of ing of Section 2(5) of the Act. any bargaining sessions, notwithstanding Benn's state- 9. By virtue of Section 9(a) of the Act, the Union has ment that the Union would exercise its right to com- been at all material times and still is the exclusive repre- mence negotiations without a stenographer." o Indeed, at sentative of the unit described in Conclusion of Law 7. the hearing before me, Yorke attributed to himself some On February 11, 1980, The Seeburg Corporation, See- of the remarks which the bankruptcy court transcript burg Service Parts, and Yorke terminated operations at shows were in fact made by Gaynor. Finally, when in the Chicago, Illinois, facility, and discharged the employ- August 1980 the Union asked Yorke to discuss severance ees at that facility, without prior notice to the Union and pay, Yorke said that he had no authority under the without having afforded the Union an opportunity to ne- Bankruptcy Act to make such payments and that he op- gotiate and bargain concerning the effects of such con- erated under that Act and not the labor laws. Indeed, duct on unit employees. York did not even keep the promise which he gave 11. By engaging in the conduct described in Conclu- during that meeting, after he was asked about obtaining sion of Law 10, The Seeburg Corporation, Seeburg jobs for the employees with Stern, to furnish the employ- Service Parts, and Yorke engaged in unfair labor prac- ees with letters of reference. tices within the meaning of Section 8(a)(5) and (1) of the Act, which unfair labor practices affect commerce within CONCLUSIONS OF LAW the meaning of Section 2(6) and (7) of the Act. 1. At all material times until February 8, 1980, TheT REMD Seeburg Corporation was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondents have violated the Act 2. At all material times herein, Seeburg Service Parts in certain respects, I shall recommend that Respondents Corporation was engaged in commerce within the mean- be required to cease and desist therefrom. Affirmatively, ing of Section 2(6) and (7) of the Act. Respondents will be required to bargain with the Union, 3. At all material times herein, The Seeburg Corpora- upon request, with respect to the effects on employees of tion, Seeburg Service Parts Corporation, and Nathan the decision to terminate operations, and to mail appro- Yorke, Trustee in Bankruptcy, collectively, were en- priate notices. gaged in commerce within the meaning of Section 2(6) I agree with Respondent that under National Terminal and (7) of the Act. Baking Corp.. a Subsidiary of Kosher Kitchens, 190 NLRB 4. At all material times herein, The Seeburg Corpora- 465 (1971), no backpay order should issue here. Al- tion and Seeburg Service Parts Corporation have consti- though it is unclear just when Yorke reached his deci- tuted a single integrated business enterprise and single sion to ask the bankruptcy court for permission to shut and/or joint employer within the meaning of the Act. down the plant, 97 percent of the unit employees had 5. At all material times on and after February 4, 1980, been laid off before he became trustee, Seeburg had lost Yorke has been the trustee in bankruptcy for The See- $350,000 during the 4 months before he became trustee, burg Corporation and Seeburg Service Parts Corpora- and Yorke had been trustee for only a week before re- tion, and an employer within the meaning of Section 2(1) ceiving and acting on permission to shut down the plant. and (2) of the Act. Under these circumstances, as in National Terminal, Re- 6. At all material times on and after February 4, 1980, spondents' failure to bargain about effects did not occur Yorke has occupied alter ego status with respect to The at a time when the Union was in a position of economic Seeburg Corporation and Seeburg Parts Corporation. strength. The backpay orders in the cases cited by the 7. The following employees of The Seeburg Corpora- General Counsel and the Union constituted efforts to tion, Seeburg Service Parts Corporation, and/or Yorke, assure meaningful bargaining by restoring such strength constitute a unit appropriate for the purposes of collec- in situations where, if the employer had timely complied tive bargaining within the meaning of Section 9(b) of the with its duty to bargain about effects, the union could Act: ha v e imposed some economic pressure to compel the employer to accede to the union's demands. " All plant clerical and all production and mainte- The Union requests an order affording it "bargaining nance employees at the Chicago, Illinois, plant, ex- expenses, attorneys' fees and other costs" on the ground eluding executive, supervisory employees, time- that because "the Respondent [sic] has admittedly stated keepers, foremen with power to hire and fire or to that it purposely refused to acknowledge its obligations effectively recommend such action, office clerical under the Act, it is apparent that the defenses raised are answer that portion of the letter constituted a refusal to bargain. First Na- " Burgmeyer, supra; First National Maintenance, supra; Thompson Trans- tional Maintenance Corp., 242 NLRB 462, fn. 1 (1979), enfd. 627 F.2d 596 port Ca. 184 NLRB 38 (1970); Transmarine Navigation Corp.. 170 NLRB (2d Cir. 1980), 452 U.S. 666; Summersville Industrial Equipment Co., Divi- 389 (1968). See also Drapery Manufacturing Co.. Inc.. 170 NLRB 1706 sion of Marathon Coal Bit Co., 197 NLRB 731, 735 (1972). (1968), enfd. 425 F.2d 1026 (8th Cir. 1970), where there was a possibility 1° Bartlel-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d 652 (10th that the employees who lost their jobs could have been absorbed into one Cir. 1981). of the employer's other operations. NATHAN YORKE, TRUSTEE 827 July 25, 1980, bankruptcy court session, Yorke remained employees, guards and professional employees as silent when the attorney for the creditors' committee defined in the Act. stated that there could be no give and take in bargaining because Yorke had nothing to give, and when Gaynor 8. The Union is a labor organization within the mean- adhered to his insistence on a stenographic transcript of ing of Section 2(5) of the Act. any bargaining sessions, notwithstanding Benn's state- 9. By virtue of Section 9(a) of the Act, the Union has ment that the Union would exercise its right to com- been at all material times and still is the exclusive repre- mence negotiations without a stenographer." o Indeed, at sentative of the unit described in Conclusion of Law 7. the hearing before me, Yorke attributed to himself some On February 11, 1980, The Seeburg Corporation, See- of the remarks which the bankruptcy court transcript burg Service Parts, and Yorke terminated operations at shows were in fact made by Gaynor. Finally, when in the Chicago, Illinois, facility, and discharged the employ- August 1980 the Union asked Yorke to discuss severance ees at that facility, without prior notice to the Union and pay, Yorke said that he had no authority under the without having afforded the Union an opportunity to ne- Bankruptcy Act to make such payments and that he op- gotiate and bargain concerning the effects of such con- erated under that Act and not the labor laws. Indeed, duct on unit employees. York did not even keep the promise which he gave 11. By engaging in the conduct described in Conclu- during that meeting, after he was asked about obtaining sion of Law 10, The Seeburg Corporation, Seeburg jobs for the employees with Stern, to furnish the employ- Service Parts, and Yorke engaged in unfair labor prac- ees with letters of reference. tices within the meaning of Section 8(a)(5) and (1) of the Act, which unfair labor practices affect commerce within CONCLUSIONS OF LAW the meaning of Section 2(6) and (7) of the Act. 1. At all material times until February 8, 1980, TheT REMD Seeburg Corporation was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondents have violated the Act 2. At all material times herein, Seeburg Service Parts in certain respects, I shall recommend that Respondents Corporation was engaged in commerce within the mean- be required to cease and desist therefrom. Affirmatively, ing of Section 2(6) and (7) of the Act. Respondents will be required to bargain with the Union, 3. At all material times herein, The Seeburg Corpora- upon request, with respect to the effects on employees of tion, Seeburg Service Parts Corporation, and Nathan the decision to terminate operations, and to mail appro- Yorke, Trustee in Bankruptcy, collectively, were en- priate notices. gaged in commerce within the meaning of Section 2(6) I agree with Respondent that under National Terminal and (7) of the Act. Baking Corp.. a Subsidiary of Kosher Kitchens, 190 NLRB 4. At all material times herein, The Seeburg Corpora- 465 (1971), no backpay order should issue here. Al- tion and Seeburg Service Parts Corporation have consti- though it is unclear just when Yorke reached his deci- tuted a single integrated business enterprise and single sion to ask the bankruptcy court for permission to shut and/or joint employer within the meaning of the Act. down the plant, 97 percent of the unit employees had 5. At all material times on and after February 4, 1980, been laid off before he became trustee, Seeburg had lost Yorke has been the trustee in bankruptcy for The See- $350,000 during the 4 months before he became trustee, burg Corporation and Seeburg Service Parts Corpora- and Yorke had been trustee for only a week before re- tion, and an employer within the meaning of Section 2(1) ceiving and acting on permission to shut down the plant. and (2) of the Act. Under these circumstances, as in National Terminal, Re- 6. At all material times on and after February 4, 1980, spondents' failure to bargain about effects did not occur Yorke has occupied alter ego status with respect to The at a time when the Union was in a position of economic Seeburg Corporation and Seeburg Parts Corporation. strength. The backpay orders in the cases cited by the 7. The following employees of The Seeburg Corpora- General Counsel and the Union constituted efforts to tion, Seeburg Service Parts Corporation, and/or Yorke, assure meaningful bargaining by restoring such strength constitute a unit appropriate for the purposes of collec- in situations where, if the employer had timely complied tive bargaining within the meaning of Section 9(b) of the with its duty to bargain about effects, the union could Act: ha v e imposed some economic pressure to compel the employer to accede to the union's demands. " All plant clerical and all production and mainte- The Union requests an order affording it "bargaining nance employees at the Chicago, Illinois, plant, ex- expenses, attorneys' fees and other costs" on the ground eluding executive, supervisory employees, time- that because "the Respondent [sic] has admittedly stated keepers, foremen with power to hire and fire or to that it purposely refused to acknowledge its obligations effectively recommend such action, office clerical under the Act, it is apparent that the defenses raised are answer that portion of the letter constituted a refusal to bargain. First Na- " Burgmeyer, supra; First National Maintenance, supra; Thompson Trans- tional Maintenance Corp., 242 NLRB 462, fn. 1 (1979), enfd. 627 F.2d 596 port Ca. 184 NLRB 38 (1970); Transmarine Navigation Corp.. 170 NLRB (2d Cir. 1980), 452 U.S. 666; Summersville Industrial Equipment Co., Divi- 389 (1968). See also Drapery Manufacturing Co.. Inc.. 170 NLRB 1706 sion of Marathon Coal Bit Co., 197 NLRB 731, 735 (1972). (1968), enfd. 425 F.2d 1026 (8th Cir. 1970), where there was a possibility 1° Bartlel-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d 652 (10th that the employees who lost their jobs could have been absorbed into one Cir. 1981). of the employer's other operations. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patently frivolous." In further support of this contention, America, about the effect, on employees in the following the Union alleges that the unfair labor practices in this unit, of the decision to terminate operations on February case are "flagrant" and that it was "required to partici- 11, 1980: pate" in "many forays . . . in Respondent's [sic] actions in the bankruptcy court seeking injunctive relief against All plant clerical, and all production and mainte- the Board proceedings." To the extent that the Union is nance employees on the payroll of The Seeburg requesting its costs in the proceedings before the bank- Corporation and Seeburg Service Parts Corporation ruptcy court and the district court, the Union's request at the Chicago, Illinois, plant, excluding executive, should be directed to those courts and not to me. Fur- supervisory employees, timekeepers, foremen with ther, Board precedent points to the denial of "costs" in power to hire and fire or to effectively recommend connection with the instant litigation before the agency such action, office clerical employees, guards and itself, because a major issue in this case is whether a professional employees as defined in the Act. backpay order should issue and, if so, to whom; and as to this issue, I have found Yorke's position not only non- 2. Take the following affirmative action which will ef- frivolous, but warranted. See Heck's, Inc., 215 NLRB fectuate the policies of the Act: 765 (1974); Wellman Industries, Inc., 248 NLRB 325 bargain collectively with the above- (1980). Indeed, I note that, although the General Counsel (a) on ree organization with respect to the effect on named labor organization with respect to the effect on and the Union both seek a backpay order, they disagree em between themselves as to whether the beneficiaries employees in the above-described unit of the decision to terminate operations on February 11, 1980, and reduce to should include the employees on layoff before the shut- terminate orations on February 11, 1980 and reduce to down. writing any agreement reached as a result of such bar- Upon the entire record, and pursuant to Section 10(c) gaining. of the Act, I hereby issue the following recommended: (b) Mail a copy of the attached notice marked "Ap- pendix" 13 to each employee in the appropriate unit ORDER 12 (whether actively working or on layoff status) as of Feb- Respondents Nathan Yorke, Trustee in Bankruptcy; ruary 11, 1980. Copies of said notice, on forms provided The Seeburg Corporation; Seeburg Service Parts Corpo- by the Regional Director for Region 13, after being duly ration; their officers, agents, successors, and assigns, signed by Respondents' authorized representatives, shall shall: be mailed immediately upon receipt thereof. 1. Cease and desist from failing to bargain with Local (c) Notify the Regional Director for Region 13, in Union 743, Warehouse, Mail Order, Technical and Pro- writing, within 20 days from the date of this Order, what fessional Employees Union, International Brotherhood of steps Respondents have taken to comply herewith. Teamsters, Chauffeurs, Warehousemen and Helpers of 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the ' In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patently frivolous." In further support of this contention, America, about the effect, on employees in the following the Union alleges that the unfair labor practices in this unit, of the decision to terminate operations on February case are "flagrant" and that it was "required to partici- 11, 1980: pate" in "many forays ... in Respondent's [sic] actions in the bankruptcy court seeking injunctive relief against All plant clerical, and all production and mainte- the Board proceedings." To the extent that the Union is nance employees on the payroll of The Seeburg requesting its costs in the proceedings before the bank- Corporation and Seeburg Service Parts Corporation ruptcy court and the district court, the Union's request at the Chicago, Illinois, plant, excluding executive, should be directed to those courts and not to me. Fur- supervisory employees, timekeepers, foremen with ther, Board precedent points to the denial of "costs" in power to hire and fire or to effectively recommend connection with the instant litigation before the agency such action, office clerical employees, guards and itself, because a major issue in this case is whether a professional employees as defined in the Act. backpay order should issue and, if so, to whom; and as to this issue, I have found Yorke's position not only non- 2. Take the following affirmative action which will ef- frivolous, but warranted. See Heck's, Inc., 215 NLRB fectuate the policies of the Act: 765 (1974); Wellman Industries, Inc. 248 NLRB 325 (a) Upon request, bargain collectively with the above- (1980). Indeed, I note that, although the General Counsel named labor organization with respect to the effect on and the Union both seek a backpay order, they disagree employees in the above-described unit of the decision to between themselves as to whether the beneficiaries.terminate operations on February 11, 1980, and reduce to should include the employees on layoff before the shut- t in g n y aP e n reac y as a re duch to down.writing any agreement reached as a result of such bar- Upon the entire record, and pursuant to Section l0(c) gaining. of the Act, I hereby issue the following recommended: (b) M a i l a copy of the attached notice marked "Ap- pendix""3 to each employee in the appropriate unit ORDER 12 (whether actively working or on layoff status) as of Feb- Respondents Nathan Yorke, Trustee in Bankruptcy; r ua ry 11, 1980. Copies of said notice, on forms provided The Seeburg Corporation; Seeburg Service Parts Corpo- by t h e Regional Director for Region 13, after being duly ration; their officers, agents, successors, and assigns, signed by Respondents' authorized representatives, shall shall: be mailed immediately upon receipt thereof. 1. Cease and desist from failing to bargain with Local (c) Notify the Regional Director for Region 13, in Union 743, Warehouse, Mail Order, Technical and Pro- writing, within 20 days from the date of this Order, what fessional Employees Union, International Brotherhood of steps Respondents have taken to comply herewith. Teamsters, Chauffeurs, Warehousemen and Helpers of 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patently frivolous." In further support of this contention, America, about the effect, on employees in the following the Union alleges that the unfair labor practices in this unit, of the decision to terminate operations on February case are "flagrant" and that it was "required to partici- 11, 1980: pate" in "many forays ... in Respondent's [sic] actions in the bankruptcy court seeking injunctive relief against All plant clerical, and all production and mainte- the Board proceedings." To the extent that the Union is nance employees on the payroll of The Seeburg requesting its costs in the proceedings before the bank- Corporation and Seeburg Service Parts Corporation ruptcy court and the district court, the Union's request at the Chicago, Illinois, plant, excluding executive, should be directed to those courts and not to me. Fur- supervisory employees, timekeepers, foremen with ther, Board precedent points to the denial of "costs" in power to hire and fire or to effectively recommend connection with the instant litigation before the agency such action, office clerical employees, guards and itself, because a major issue in this case is whether a professional employees as defined in the Act. backpay order should issue and, if so, to whom; and as to this issue, I have found Yorke's position not only non- 2. Take the following affirmative action which will ef- frivolous, but warranted. See Heck's, Inc., 215 NLRB fectuate the policies of the Act: 765 (1974); Wellman Industries, Inc. 248 NLRB 325 (a) Upon request, bargain collectively with the above- (1980). Indeed, I note that, although the General Counsel named labor organization with respect to the effect on and the Union both seek a backpay order, they disagree employees in the above-described unit of the decision to between themselves as to whether the beneficiaries.terminate operations on February 11, 1980, and reduce to should include the employees on layoff before the shut- t in g n y aP e n reac y as a re duch to down.writing any agreement reached as a result of such bar- Upon the entire record, and pursuant to Section l0(c) gaining. of the Act, I hereby issue the following recommended: (b ) M a i l a copy of the attached notice marked "Ap- pendix"' 3 to each employee in the appropriate unit ORDER 12 (whether actively working or on layoff status) as of Feb- Respondents Nathan Yorke, Trustee in Bankruptcy; r ua ry 11, 1980. Copies of said notice, on forms provided The Seeburg Corporation; Seeburg Service Parts Corpo- by t h e Regional Director for Region 13, after being duly ration; their officers, agents, successors, and assigns, signed by Respondents' authorized representatives, shall shall: be mailed immediately upon receipt thereof. 1. Cease and desist from failing to bargain with Local (c) Notify the Regional Director for Region 13, in Union 743, Warehouse, Mail Order, Technical and Pro- writing, within 20 days from the date of this Order, what fessional Employees Union, International Brotherhood of steps Respondents have taken to comply herewith. Teamsters, Chauffeurs, Warehousemen and Helpers of 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patently frivolous." In further support of this contention, America, about the effect, on employees in the following the Union alleges that the unfair labor practices in this unit, of the decision to terminate operations on February case are "flagrant" and that it was "required to partici- 11, 1980: pate" in "many forays ... in Respondent's [sic] actions in the bankruptcy court seeking injunctive relief against All plant clerical, and all production and mainte- the Board proceedings." To the extent that the Union is nance employees on the payroll of The Seeburg requesting its costs in the proceedings before the bank- Corporation and Seeburg Service Parts Corporation ruptcy court and the district court, the Union's request at the Chicago, Illinois, plant, excluding executive, should be directed to those courts and not to me. Fur- supervisory employees, timekeepers, foremen with ther, Board precedent points to the denial of "costs" in power to hire and fire or to effectively recommend connection with the instant litigation before the agency such action, office clerical employees, guards and itself, because a major issue in this case is whether a professional employees as defined in the Act. backpay order should issue and, if so, to whom; and as to this issue, I have found Yorke's position not only non- 2. Take the following affirmative action which will ef- frivolous, but warranted. See Heck's, Inc., 215 NLRB fectuate the policies of the Act: 765 (1974); Wellman Industries, Inc. 248 NLRB 325 (a) Upon request, bargain collectively with the above- (1980). Indeed, I note that, although the General Counsel named labor organization with respect to the effect on and the Union both seek a backpay order, they disagree employees in the above-described unit of the decision to between themselves as to whether the beneficiaries.terminate operations on February 11, 1980, and reduce to should include the employees on layoff before the shut- t in g n y ap e n reac y as a re duch to down.writing any agreement reached as a result of such bar- Upon the entire record, and pursuant to Section l0(c) gaining. of the Act, I hereby issue the following recommended: (b) Mail a copy of the attached notice marked "Ap- pendix""3 to each employee in the appropriate unit ORDER 12 (whether actively working or on layoff status) as of Feb- Respondents Nathan Yorke, Trustee in Bankruptcy; r ua ry 11, 1980. Copies of said notice, on forms provided The Seeburg Corporation; Seeburg Service Parts Corpo- by t h e Regional Director for Region 13, after being duly ration; their officers, agents, successors, and assigns, signed by Respondents' authorized representatives, shall shall: be mailed immediately upon receipt thereof. 1. Cease and desist from failing to bargain with Local (c) Notify the Regional Director for Region 13, in Union 743, Warehouse, Mail Order, Technical and Pro- writing, within 20 days from the date of this Order, what fessional Employees Union, International Brotherhood of steps Respondents have taken to comply herewith. Teamsters, Chauffeurs, Warehousemen and Helpers of 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patently frivolous." In further support of this contention, America, about the effect, on employees in the following the Union alleges that the unfair labor practices in this unit, of the decision to terminate operations on February case are "flagrant" and that it was "required to partici- 11, 1980: pate" in "many forays ... in Respondent's [sic] actions in the bankruptcy court seeking injunctive relief against All plant clerical, and all production and mainte- the Board proceedings." To the extent that the Union is nance employees on the payroll of The Seeburg requesting its costs in the proceedings before the bank- Corporation and Seeburg Service Parts Corporation ruptcy court and the district court, the Union's request at the Chicago, Illinois, plant, excluding executive, should be directed to those courts and not to me. Fur- supervisory employees, timekeepers, foremen with ther, Board precedent points to the denial of "costs" in power to hire and fire or to effectively recommend connection with the instant litigation before the agency such action, office clerical employees, guards and itself, because a major issue in this case is whether a professional employees as defined in the Act. backpay order should issue and, if so, to whom; and as to this issue, I have found Yorke's position not only non- 2. Take the following affirmative action which will ef- frivolous, but warranted. See Heck's, Inc., 215 NLRB fectuate the policies of the Act: 765 (1974); Wellman Industries, Inc. 248 NLRB 325 (a) Upon request, bargain collectively with the above- (1980). Indeed, I note that, although the General Counsel named labor organization with respect to the effect on and the Union both seek a backpay order, they disagree employees in the above-described unit of the decision to between themselves as to whether the beneficiaries.terminate operations on February 11, 1980, and reduce to should include the employees on layoff before the shut- t in g n y ap e n reac y as a re duch to down.writing any agreement reached as a result of such bar- Upon the entire record, and pursuant to Section l0(c) gaining. of the Act, I hereby issue the following recommended: (b) Mail a copy of the attached notice marked "Ap- pendix"' 3 to each employee in the appropriate unit ORDER 12 (whether actively working or on layoff status) as of Feb- Respondents Nathan Yorke, Trustee in Bankruptcy; r ua ry 11, 1980. Copies of said notice, on forms provided The Seeburg Corporation; Seeburg Service Parts Corpo- by t h e Regional Director for Region 13, after being duly ration; their officers, agents, successors, and assigns, signed by Respondents' authorized representatives, shall shall: be mailed immediately upon receipt thereof. 1. Cease and desist from failing to bargain with Local (c) Notify the Regional Director for Region 13, in Union 743, Warehouse, Mail Order, Technical and Pro- writing, within 20 days from the date of this Order, what fessional Employees Union, International Brotherhood of steps Respondents have taken to comply herewith. Teamsters, Chauffeurs, Warehousemen and Helpers of 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."