Penntech Papers, Inc.; T. P. Property Corporation and Kennebec River Pulp and Paper Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penntech Papers, Inc.; T. P. Property Corporation and Kennebec River Pulp and Paper Company and United Paperworkers International Union, Locals 36 and 73; International Brotherhood of Firemen & Oilers Local 270; International Brotherhood of Machinists and Aerospace Workers, Local 559, AFL-CIO and District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 1- CA-12975 and 1-CA-12978 August 9, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On January 21, 1981, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the General Counsel, Respondents, and the Charging Parties filed excep- tions, supporting briefs, and statements of position,' and the Charging Parties filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs2 and has decided to affirm the rulings, find- ings,3 and conclusions of the Administrative Law Judge only to the extent consistent herewith. In his Decision, the Administrative Law Judge found that Respondents Penntech Papers, Inc., T. P. Property Corporation, and Kennebec River Pulp and Paper Company are a single employer and that Respondents violated Section 8(a)(1) and (5) by failing and refusing to bargain with the l On September 4, 1981, the Board provided the parties an opportunity to submit statements of position regarding the effect on the present pro- ceeding of First .National Maintenance Corp v. N.L.R.., 452 U.S. 666 (1981), issued after the receipt of briefs herein 2 Respondents have requested oral arguiment. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties I Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standurd Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. !951) We have carefully examined the record and find no basis for reversing his findings As cited in Respondents' exceptions, the Adminiistrative Law Judge's Decision contains a number of misstatements of fact, which we hereby find to be inadvertent. Contrary to certain findings in the underlying De- cision, the record shows that Kennebec River Pulp and Paper Company at all times material herein has been a Maine corporation, all of whose shares have been ownled solely by T. P. Property Corporation. 'F. P. Property purchased Kennebec stock for $225,000), of which $100,000 was in cash and the remainder of which was in notes of T. P Property. Final- ly, the Unions herein infrmed the Regional Director for Region I that they were no longer pursuing arbitration of a related grievance by letter of November 15, 1978, and the Regional Director revoked deferral pro- cedures by letter of December 4, 1978 263 NLRB No. 33 Charging Party Unions concerning the decision and effects of closing the Kennebec paper mill in Madison, Maine. We agree with the Administrative Law Judge's single-employer finding, based on the facts set forth by him. In so finding we agree that this result is not precluded by the principles of res judicata or collateral estoppel, based on the outcome of a prior court suit by the Unions herein to compel arbitra- tion by Penntech, T. P. Property, and Kennebec under the terms of a bargaining agreement execut- ed by Kennebec. 4 In that suit, under Section 301 of the Labor Management Relations Act, the district court applied Federal common law and held that the separate corporate existence of Penntech and T. P. Property would not be ignored in order to compel them to join Kennebec in the arbitration of a dispute under a bargaining agreement to which they were not signatories. In affirming this holding, the circuit court stated: We also agree that the real issue in this case is . . . whether parent corporations should be bound to the collective-bargaining agreements of their subsidiaries. [583 F.2d at 35.] However, the present proceeding, as noted by the General Counsel, is based on allegations that Penn- tech, T. P. Property Corporation, and Kennebec are a single employer under the National Labor Relations Act, and that they engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. This proceeding, consequently, is not controlled by Federal common law and the issue is not the enforceability of the provisions of a specific bargaining agreement. On the contrary, the Board's test is, as stated with approval by the Su- preme Court in Radio & Broadcast Technicians Local Union 1264, International Brotherhood of Elec- trical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965): [I]n determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N.L.R.B. Twenty-first Ann. Rep. 14-15 (1956). The controlling criteria, set out and elaborated in Board Decisions, are interrelation of oper- ations, common management, centralized con- trol of labor relations and common owner- ship.5 4United Paperworkers International Union v. T P. Property Corp., et al., 583 F.2d 33 (Ist Cir. 1978), affg. 439 F.Supp 610 (1977). 5 See alse N.L.R.R. v. C. K. Smith & Co, Inc., 569 F.2d 162 (Ist Cir. 1977), cert. denied 436 U.S. 957 (1978); N.L.R.B. v. Pizza Pizzaz, Inc. d/bia Jacob Wirth Restaurant, 646 F.2d 706 (Ist Cir. 1981). 264 PENNTECH PAPERS, INC., ET AL. An examination of these criteria was not the basis for the holdings in the aforementioned court pro- ceedings. Accordingly, due to the lack of identity in either the cause of action or the respective issues involved, it is manifest that the principles of res ju- dicata and collateral estoppel do not apply. The criteria cited from Broadcast Service of Mobile, supra, were those relied upon by the Administra- tive Law Judge, they are the criteria distinctly ap- plicable to Board proceedings on this issue, and the conclusion that Respondents are a single employer is fully supported by the record. Regarding the disputed violations, we agree with the Administrative Law Judge that Respondent violated Section 8(a)(l) and (5) only to the extent that they failed and refused to bargain about the ef- fects of the decision to close the Kennebec plant. In his complaint, the General Counsel did not allege that Respondents engaged in unlawful con- duct involving its actual decision to close the Ken- nebec plant, and at the hearing he resisted the Charging Parties' attempt to amend the complaint to place into issue this allegation. Accordingly, he expressly limited the violation alleged to involve only Respondents' failure to bargain about the ef- fects of the closing. In these circumstances we find merit in the exceptions of the General Counsel and Respondents and conclude that the legality of Re- spondents' actual decision to close the plant was not properly before the Administrative Law Judge and that he should not have granted the Charging Parties' motion to amend the complaint in this regard.6 We also reject the Charging Parties' exception that we find Respondents violated Section 8(aX)(5) and (1) of the Act by unilaterally changing em- ployment terms incident to their decision to close the Kennebec plant. At the hearing the General Counsel disavowed any intention to expand the scope of the complaint to cover such an allegation. * Member Jenkins concurs in the finding that Respondents have not violated Sec. 8(aX5) and (1) by not bargaining about the decision to close the Kennebec plant, but does so in light of the recent Supreme Court opinion in First National Maintenance Corp. v. N.LR.B., 452 U.S. 666 (1981). In reaching this decision on the merits, he finds that the issue was before the Administrative Law Judge. The evidence considered was nei- ther objected to by the General Counsel nor introduced for a limited pur- pose. In addition. Respondents received adequate notice during the course of the hearing that the Charging Parties sought to litigate Re- spondents' duty to bargain about the decision to close, a matter closely connected to the charge and complaint herein regarding Respondents' duty to bargain about the effects of that decision. Accordingly, as this issue was fully litigated at the hearing, he would find the belated objec- tion of the General Counsel regarding the scope of the instant proceeding to be without merit. See M & J Trucking Ca. Inc., 214 NLRB 592, 597 (1974); Clinton Foods, Inc., d/b/a Morton's L.G.A. Foodliner, e atl., 240 NLRB 1246 (1979). In his view, the Decisions relied upon by the Gener- al Counsel and Respondents are distinguishable in that the evidence sought to be relied upon in those cases was objected to by the General Counsel prior to its admission. See, for example, Winn-Dixie Stores, Inc., 224 NLRB 1418, 1420 (1976). Accordingly, this allegation may not be litigated in this proceeding.7 The General Counsel and the Charging Parties assert that the Administrative Law Judge's descrip- tion of the appropriate bargaining units for which the Unions herein are the employees' respective bargaining representatives is inaccurate. The Gen- eral Counsel notes that the Administrative Law Judge's reliance on portions of the complaint, ad- mitted by Respondents, is the source of this alleged inaccuracy. The General Counsel and the Charging Parties further point out that such unit descriptions are not fully reflective of the various job classifica- tions set forth in the joint bargaining agreement be- tween Kennebec and the Unions herein and that the unit description of the largest of the four units is omitted entirely. Upon review of these conten- tions in light of the applicable joint bargaining agreement, it appears that the General Counsel's and the Charging Parties' revised unit descriptions are identical and consistent with the job classifica- tions in that agreement. Noting that Respondents have raised no objection to these revisions, we find that the respective appropriate bargaining units represented by the Unions herein are as stated in these exceptions and are set forth below in our Order. THE REMEDY Having found that Respondents have engaged in an unfair labor practice within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom, and take certain affirmative action designed to effectuate the poli- cies of the Act. As a result of Respondents' unlawful failure to bargain about the effects of their partial cessation of operations, the terminated employees have been denied an opportunity to bargain through their col- lective-bargaining representatives at a time when Respondents might still have been in need of their services, and a measure of balanced bargaining power existed. Meaningful bargaining cannot be as- sured until some measure of economic strength is restored to the Unions. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practice committed. Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require Re- spondents to bargain with the Unions concerning I Member Jenkins concurs in finding no merit to this exception. At no time during the hearing did the Charging Parties put Respondents on notice that this issue was being litigated. In the absence of adequate notice and opportunity to litigate fully the issue, he finds no merit in the Charging Parties' contentions with respect to this issue See The Nestle Company, 248 NLRB 732. fn 3 (1980). 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the effects on their employees, of the closing of their operations, and shall include in our Order a limited backpay requirement s designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some prac- ticable manner a situation in which the parties' bar- gaining is not entirely devoid of economic conse- quences for Respondents. We shall do so in this case by requiring Respondents to pay backpay to their employees in a manner similar to that re- quired in Transmarine.9 Thus, Respondents shall pay employees backpay at the rate of their normal wages when last in Respondents' employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following con- ditions-(I) the date Respondents bargain to agree- ment with the Unions on those subjects pertaining to the effects of the closing of Respondents' oper- ations on their employees; (2) a bona fide impasse in bargaining; (3) the failure of the Unions to re- quest bargaining within 5 days of this Decision and Order, or to commence negotiations within 5 days of Respondents' notice of their desire to bargain with the Union; or (4) the subsequent failure of the Unions to bargain in good faith; but in no event shall the sum to any of these employees exceed the amount he or she would have earned as wages from March 29, 1977, the date on which Respond- ents terminated the Madison, Maine, operations, to the time he or she secured equivalent employment elsewhere, or the date on which Respondents shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the normal rate of their normal wages when last in Respondents' employ.' 0 R We hase indicated that b.ackpay orders are appropriate means of re- medying 8(a)(5) violations of the type involved herein, even where such violations are unaccompanied by a discriminatory shutdown of oper- ations. Cf Royal Plating and Polishing Co., Inc., 148 NLRB 545, 548 (1964), and cases cited therein. 9 Transmarine Navigation Corporation and its Subsidiary. International Terminals, Inc., 170 NLRB 389 (1968). 10 Transmarine Nasvigation Corporation, supra. In the absence of allega- tions and a finding that Respondents unlawfully rescinded contractual provisions covering the permanent layoff of Kennebec employees, we find no basis for modifying this traditional remedy in order to award ad- ditional sums which might have been due under the terms of that bar- gaining agreement. In remedying Respondents' failure to bargain over the effects of the decision to close the Kennebec plant, Member Jenkits joins the majority in its stated purpose of providing the, employees' collective-bargaining representative with a measure of economic strength which would have existed had bargaining occurred when Respondents still were in need of the employees' services. Accordingly, he agrees with the majority's for- mulation of a traditional limited backpay requirement. However, where the parties' relevant bargaining agreement, negotiated when the employ- ees' services were in fact needed, provides additional provisions for back- pay in the present circumstance, he would find that the traditional remedy should be modified to take these additional provisions into ac- count. He notes that even in the absence of a finding that these benefits were unilaterally withdrawn, it is within the scope of our remedial Interest on all such sums shall be paid in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).'' To effectuate further the policies of the Act, Re- spondents shall be required to establish a preferen- tial hiring list of all terminated unit employees fol- lowing the system of seniority provided for in the collective-bargaining agreement and, if Respond- ents ever resume operations anywhere in the Madi- son, Maine, area, they shall be required to offer these employees reinstatement. If, however, Re- spondents were to resume their Madison operation, Respondents shall be required to offer unit employ- ees reinstatement to their former or substantially equivalent positions. 2 Furthermore, in view of the fact that Respond- ents' Kennebec facility is no longer in operation and their former employees may be in different lo- cations, we shall order Respondents to mail each of their employees employed on the date they ceased operations copies of the attached notice signed by Respondents. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondents, Penntech Papers, Inc.; T. P. Property Corporation and Kennebec River Pulp and Paper Company, Madison, Maine, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain with United Paperworkers International Union, Locals 36 and 73; International Brotherhood of Firemen & Oilers Local 270; and International Brotherhood of Ma- chinists and Aerospace Workers, Local 559, AFL- CIO, herein called the Unions, as the exclusive rep- resentatives of employees in the appropriate units set forth herein below with respect to the effect on their represented employees of the decision to close the Kennebec facility. The appropriate unit represented by United Pa- perworkers International Union, Local 36, is: All bleach plant operators, panel board opera- tors, chemical makeup men no. 1, chemical make up men no. 2, floor men, brake beater- powers to provide for backpay in part based on the terms negotiated by the parties. i In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. L2 Drapery Manufacturing Co.. Inc., and American White Goods Compa. ny, 170 NLRB 1706 (1968); Burgmeyer Bros., Inc.. 254 NLRB 1027 (1981). 266 PENNTECH PAPERS, INC.. ET AL. men, hydra-pulper operators, head grinder men, magazine men, screen men, lead men (lower grinder room), grinder men, woodmen, lead men (wet room), Kamyr operators, ship- pers, fork lift truck operators (wet room), Kamyr operators' helpers, oilers-cleaners, lead men (wood room), operators, sorters, feeders, bark truck employees, truck drivers, crane op- erators, rackmen, rakemen, turbine operators, station operators, station operators' helpers, switchboard operator (power station), weigh- ers, fork lift truck operators (finishing and shipping), car men, finishers, finisher helpers, core and wrapper men, label and sample em- ployees, laborers, cleaners and spare pool em- ployees employed by Respondents at the Madison, Maine, locations, excluding manage- ment employees, superintendents, foremen, as- sistant foremen, laboratory employees, office forces, scalers, storekeepers, watchmen, guards and supervisors as defined in Section 2(11) of the Act. The appropriate unit represented by United Pa- perworkers International Union, Local 73, is: All machine tenders, back tenders, third hands, fourth hands, fifth hands, coater tenders, beater engineers and utility men employed by Respondents at the Madison, Maine, location, excluding management employees, superinten- dents, foremen, assistant foremen, laboratory employees, office forces, scalers, storekeepers, watchmen, guards and supervisors as defined in Section 2(11) of the Act. The appropriate unit represented by Internation- al Brotherhood of Firemen & Oilers Local 270 is: All head firemen, head oilers and oilers em- ployed by Respondents at the Madison, Maine, location, excluding management employees, office forces, scalers, storekeepers, watchmen, guards and supervisors as defined in Section 2(11) of the Act. The appropriate unit represented by Internation- al Brotherhood of Machinists and Aerospace Workers, Local 559, AFL-CIO, is: All chief electricians, fire chiefs, shift motor- men, head journeymen, and journeymen AAA, AA, A, B and C and journeymen helpers A, B, C and D in the following crafts: machinists, millwrights, pipers, masons, blacksmiths, paint- ers, electricians, welders, tinsmiths, instrument men, roll grinders and knife grinders employed by Respondents at the Madison, Maine, loca- tion, excluding management employees, super- intendents, foremen, assistant foremen, labora- tory employees, office forces, scalers, store- keepers, watchmen, guards and supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Unions as the exclusive bargaining representatives of all employees in the aforesaid appropriate units with respect to the effect on their employees of the decision to terminate their operations in Madison, Maine, and, if any understanding is reached, embody it in a signed agreement. (b) Pay the terminated employees their normal wages for the period set forth in the remedy sec- tion of this Decision. (c) Establish a preferential hiring list of all em- ployees in the appropriate units, following the system of seniority provided for under the collec- tive-bargaining contract with the Unions and, if op- erations are ever resumed anywhere in the Madi- son, Maine, area, offer reinstatement to those em- ployees. If, however, Respondents were to resume their operations at the Madison, Maine, facility, they shall offer all those in the appropriate units re- instatement to their former or substantially equiva- lent positions. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Mail an exact copy of the attached notice marked "Appendix""' to the Unions herein and to all employees employed by Respondents in the above-described appropriate units at the Madison, Maine, facility. Copies of said notice, on forms pro- vided by the Regional Director for Region 1, after being duly signed by their authorized representa- tive, shall be mailed immediately upon receipt thereof, as herein directed. (f) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. :J In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT fail and refuse to bargain with United Paperworkers International Union, Locals 36 and 73; International Broth- erhood of Firemen & Oilers Local 270; Inter- national Brotherhood of Machinists and Aero- space Workers, Local 559, AFL-CIO, con- cerning the effects of our decision to close our Madison, Maine, facility on the employees in the bargaining units described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL, upon request, bargain collectively with United Paperworkers International Union, Locals 36 and 73; International Broth- erhood of Firemen & Oilers Local 270; and In- ternational Brotherhood of Machinists and Aerospace Workers, Local 559, AFL-CIO, as the exclusive representatives of the employees in the respective bargaining units described below, concerning the effects of our decision on unit employees, to close our Madison, Maine, facility and reduce in writing any agreement reached as a result of such bargain- ing. WE WILL pay the employees who were em- ployed at the above facility their normal wages for a period specified by the National Labor Relations Board, plus interest. The bargaining unit represented by United Pa- perworkers International Union, Local 36, is: All bleach plant operators, panel board op- erators, chemical makeup men no. 1, chemi- cal makeup men no. 2, floor men, brake beatermen, hydra-pulper operators, head grinder men, magazine men, screen men, lead men (lower grinder room), grinder men, woodmen, lead men (wet room), Kamyr operators, shippers, fork lift truck operators (wet room), Kamyr operators' helpers, oilers-cleaners, lead men (wood room), operators, sorters, feeders, bark truck employees, truck drivers, crane operators, rackmen, rakemen, turbine operators, station operators, station operators' helpers, switch- board operator (power station), weighers, fork lift truck operators (finishing and ship- ping), car men, finishers, finisher helpers, core and wrapper men, label and samples employees, laborers, cleaners and spare pool employees employed by us at the Madison, Maine, location, excluding management em- ployees, superintendents, foremen, assistant foremen, laboratory employees, office forces, scalers, storekeepers, watchmen, guards and supervisors as defined in Section 2(11) of the Act. The bargaining unit represented by United Pa- perworkers International Union, Local 73, is: All machine tenders, back tenders, third hands, fourth hands, fifth hands, coater tenders, beater engineers and utility men em- ployed by us at the Madison, Maine, loca- tion, excluding management employees, su- perintendents, foremen, assistant foremen, laboratory employees, office forces, scalers, storekeepers, watchmen, guards and supervi- sors as defined in Section 2(11) of the Act. The bargaining unit represented by Interna- tional Brotherhood of Firemen & Oilers Local 270 is: All head firemen, head oilers and oilers em- ployed by us at the Madison, Maine, loca- tion, excluding management employees, office forces, scalers, storekeepers, watch- men, guards and supervisors as defined in Section 2(11) of the Act. The bargaining unit represented by Interna- tional Brotherhood of Machinists and Aero- space Workers, Local 559, AFL-CIO, is: All chief electricians, fire chiefs, and shift motormen, head journeymen, and journey- men AAA, AA, A, B and C and journey- men helpers A, B, C, and D in the following crafts: machinists, millwrights, pipers, masons, blacksmiths, painters, electricians, welders, tinsmiths, instrument men, roll grinders and knife grinders employed by us at the Madison, Maine, location, excluding management employees, superintendents, foremen, assistant foremen, laboratory em- ployees, office forces, scalers, storekeepers, watchmen, guards and supervisors as de- fined in Section 2(11) of the Act. WE WILL establish a preferential hiring list of all terminated employees in the above bar- 268 PENNTECH PAPERS, INC., ET AL. gaining units, following the seniority system provided for in the collective-bargaining agreement with the Unions and, if we resume operations anywhere in the Madison area, we shall offer these employees reinstatement. If, however, we resume our operations at the Madison facility, said unit employees shall be offered reinstatement to their former or sub- stantially equivalent positions. PENNTECH PAPERS, INC.; T. P. PROP- ERTY CORPORATION; KENNEBEC RIVER PULP AND PAPER COMPANY DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed in Case l-CA-12975 on April 11, 1977, by United Paperworkers International Union, Locals 36 and 73 (herein referred to as Locals 36 and 73), and Interna- tional Brotherhood of Firemen & Oilers Local 270 (herein referred to as Local 270) was served on Kenne- bec River Pulp and Paper Company, herein referred to as Kennebec, a Respondent herein, on April 11, 1977. The charge in Case i-CA-12978 filed by District 99, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO,' on April 11, 1977, was served on Kennebec on April 11, 1977. An amended charge in Case 1-CA-12975, filed on November 7, 1977, was served on Kennebec, Penntech Papers, Inc., herein referred to as Penntech, and T. P. Property Corporation, herein re- ferred to as T. P. Property, the Respondents herein, on November 8, 1977. On January 23, 1979, an order con- solidating cases, complaint and notice of hearing was issued. In the complaint it was alleged among other things that the Respondents were a single employer and that since March 26, 1977, the Respondents have refused to bargain in good faith over the effects of the close- down of their Madison, Maine, facility in violation of the National Labor Relations Act, as amended, herein re- ferred to as the Act. The Respondents Penntech and T. P. Property filed a timely joint answer; Kennebec answered separately. In these answers certain admissions were made and affirma- tive defenses pled which have been duly considered in this Decision. The consolidated cases came on for hear- ing on August 29, 30, and 31, September 4, 5, and 6, Oc- tober 30, 1979,2 and July 29 and 30, 1980, at Waterville, Maine. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record,3 to submit proposed findings I The Local involved was Local 559. 2 On this date the Charging Parties moved for a continuance in order to "file an amended charge with the Regional Office.. . making it crys- tal clear that one of the elements in the case is the issue of refusal to bargain over the decision to close the plant." All parties bejig in agree- ment, the cases were continued. An amended charge was filed which was dismissed by the Regional Director. His dismissal was affirmed on appeal. The hearing was reconvened on July 29, 1980. s There being no opposition thereto, the General Counsel's motion to correct transcript is granted. The transcript is corrected accordingly. of fact and conclusions of law, and to file briefs. All briefs4 have been carefully considered.5 FINDINGS OF FACT, CONCI USIONS, AND REASONS THEREFOR . rTHE BUSINESS OF THF RESPONDENTS Penntech and T. P. Property are and have been at all times material herein corporations duly organized under and existing by virtue of the laws of the State of Dela- ware. Kennebec is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of New York. Penntech and T. P. Property maintain an office in New York City and Penntech is engaged in the oper- ation of a mill located in Johnsonburg, Pennsylvania. Kennebec maintained its principal office and place of business in Madison, Maine, where it operated a paper- mill at various times until March 26, 1977. Pcnntech in the course and conduct of its business has caused quanti- ties of materials used by it in the operation of its mill to be purchased and transported in interstate commerce and has caused paper products to be sold and transported from its Johnsonburg mill in interstate commerce. Kennebec in the course and conduct of its business has caused at all times herein material large quantities of ma- terials used by it in the operation of its mills to be pur- chased and transported in interstate commerce from and through various States of the United States other than the State of Maine and has caused at all times herein mentioned substantial quantities of paper products to be sold and transported from its Madison facility in inter- state commerce to States of the United States other than the State of Maine. Penntech and T. P. Property annually purchase goods and services valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. Ken- nebec prior to March 29, 1977, annually purchased goods and materials valued in excess of $50,000 directly from points outside the State of Maine. Penntech and T. P. Property annually ship goods and materials valued in excess of $50,000 directly to points located outside the Commonwealth of Pennsylvania. Kennebec, up until March 29, 1977, annually shipped goods and services valued in excess of $50,000 directly to points located out- side the State of Maine. The Respondents are now and have been at all times material herein employers within the meaning of Section 2(6) and (7) of the Act. 4 The General Counsel and the Respondents were given all opportuni- ty to reply to the following issues raised in the Charging Parties' brief: "The Charging Party can properly move to conform the pleadings to the Proof," "..he failure of the company to bargain over its decision to close Kennebec violates [Sec.] 8(aHX ) and (5) of the Act," and "Unilateral changes in working conditions by the Cornpanr violates the Act " Briefs were filed bh the General Counsel and .he Respondents which have been carefully considered s The foregoing Unions art referred to collectively as the Unions. 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATIONS INVOLVED The Unions are and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First: Kennebec acquired the Madison Mills, herein re- ferred to as the Kennebec Mills, in 1959. As of 1971 all of the outstanding stock of Kennebec was owned by 10 educational and charitable institutions. In 1971, in order to finance the rebuilding of its No. One Paper Machine, Kennebec effected a $4,953,900 sale and lease-back fi- nancing which in essence conveyed all of Kennebec's assets to the Kennebec Development Corporation, here- inafter referred to as KDC. KDC obtained the funds for this project through the issuance of bonds which were secured by a real estate mortgage. Kennebec's lease pay- ments were to be used to retire the bonds. Under the terms of the lease, if Kennebec fulfilled its obligation in respect thereto, it could buy back the premises for KDC for a nominal sum. KDC assigned its interest in the lease to Merrill Trust Company, the mortgagee and trustee of the bonds. Kennebec personally guaranteed the payment of the bonds, as did the State of Maine through the Maine Industrial Building Authority, which later became the Maine Guarantee Authority, hereinafter referred to as MGA. The Unions had been Kennebec's employees' bargain- ing representatives since the mill commenced operations in Madison. In 1971 and 1972 Kennebec experienced losses of $2,157,907 and $3,247,234, respectively. In 1973 South- eastern Capital Corporation, herein called SCC, acquired the stock of Kennebec from the charitable institutions and provided additional financing for continued oper- ation. Kennebec lost $3,725,374 in 1975. On December 20, 1976, while still under the ownership of Southeastern Capital Corporation, Kennebec discontinued its oper- ations and laid off all its employees other than a skeleton force. Thereafter T. P. Property, a wholly owned subsid- iary of Penntech, acquired all the outstanding stock of Kennebec on March 3, 1976. T. P. Property, a Delaware corporation, was organized by Penntech and incorporat- ed on May 12, 1975. T. P. Property was initially incor- porated to purchase a real estate parcel, containing a su- permarket, which was adjacent to Penntech's papermill in Johnsonburg, Pennsylvania. The purchase was not ef- fected. T. P. Property had no other corporate function until its purchase of the Kennebec capital stock. During the negotiations for the acquisition of the Ken- nebec stock, Penntech and SCC opened a joint bank ac- count to which they contributed equal amounts to fi- nance the employment by Kennebec of individuals on the mill premises to maintain the premises and the boil- ers. Prior to acquisition in March 1976 Kennebec effected a write-down of its debt with four major secured credi- tors. T. P. Property and Penntech participated in the ne- gotiations. Penntech guaranteed approximately 25 per- cent on a nonaccelerated basis of such debt as written down. Otherwise, Kennebec's financial structure re- mained the same. Prior to the acquisition, T. P. Property's immediate liquid assets consisted of several hundred thousand dol- lars, derived from an advance from Penntech with the acknowledged purpose that the advance was to accom- plish the Kennebec stock acquisition. The purchase price paid for the Kennebec stock was $225,000, $10,000 of which was cash and $215,000 of which were notes of T. P. Property. Around March 3, 1976, T. P. Property made advances to Kennebec in the amount of $101,000 for which Ken- nebec executed two demand notes dated March 3, 1976, in principal amounts of $1,000 and $100,000. Additional- ly, Kennebec granted T. P. Property security interest in certain property and after acquired property such as in- ventory, equipment, accounts, etc. Shortly after March 3, 1976, the operations of Kenne- bec mill were resumed. Laid-off employees covered by the labor agreement were recalled. Most of the salaried employees also continued in the employment of Kenne- bec, including William Anderson, marketing manager; Kenneth Smith, director of scheduling; Arthur Leho, manager of engineering and maintenance; Robert Rowell, accountant; and John McLeod, industrial rela- tions manager. Donald Martin, president, was replaced by Allen Nadeau, a vice president of Penntech. Penntech, a Delaware corporation, incorporated in 1920, owned and operated a papermill located in John- sonburg, Pennsylvania, and maintained a corporate office in New York. According to William B. Ford, vice president of fi- nance and security of Penntech, a loss had been expected in Kennebec's operation for 4 or 5 months after startup; a profitable operation was anticipated in late 1976. Profit- able operations were not achieved as anticipated and Kennebec was faced with the prospect of defaulting in its obligations to make certain lease and tax payments due and owing on November 15, 1976. Minutes of the meeting of Penntech's board of directors on October 18, 1976, disclose: The Chairman stated that progress to date in the effort to improve productivity at the Company's Kennebec River Pulp & Paper Co., Inc. subsidiary was less than had been anticipated at the time the subsidiary was acquired. A detailed review of oper- ational and financial problems encountered at the Kennebec mill was then presented to the Board by the Chairman, Mr. Dodge, Mr. Nadeau and Mr. Ford. The Chairman indicated that certain propos- als to the Maine Guarantee Authority for deferral of Kennebec debt and tax obligations were being developed which, if accepted by the Authority, would make it possible to continue operations at the Kennebec mill for several more months during which time solutions to the operational problems could be developed. These matters were then fully discussed, and it was agreed that the negotiations with the Maine Guarantee Authority should pro- ceed and that the Company should continue oper- 270 PENNTECH PAPERS, INC., ET AL. ations at Kennebec pending the conclusion of the negotiations. [Jt. Exh. 4, p. 797.] At this time a decision had also been made for Penn- tech "not to advance the funds that would avoid de- fault." The minutes of the November 17, 1976, meeting of the Maine Guarantee Authority reveal: Mr. Ford and Mr. Weinroth reviewed the prog- ress at Kennebec River Pulp & Paper Company, Inc. since Penntech Papers, Inc. had purchased it in March 1976. A lengthy discussion took place rela- tive to the financial investment already made by Penntech, the fine market acceptance of Kennebec's products, the production and engineering problems which had been overcome, those that still needed to be overcome, the financial situation facing Kenne- bec and the various alternatives open to the Author- ity. Thereafter the MGA adopted a motion accepting in prin- ciple the provisions of the letter agreement dated No- vember 22, 1976. The "Letter Agreement" dated November 22, 1976, was executed between MGA, Merrill, KDC, T. P. Prop- erty, and American General Bond Fund, Inc., as a means of channeling additional funds into Kennebec's oper- ations. The agreement provided a device by which cer- tain payments due on KDC bonds and tax obligations would be met by MGA's purchase of certain timberlands from KDC which Kennebec had originally owned. Upon the purchase of such timberlands, T. P. Property was re- quired to make available $500,000 for Kennebec in addi- tion to funds which had been made available prior to November 22, 1976 ($2,832,000). Additionally, T. P. Property was allowed an option to purchase certain tim- berlands owned by KDC, the purchase price of which would consist of advances over $3,332,000 to Kennebec. Attached to the agreement was a paragraph in which Penntech agreed to provide the above-mentioned $500,000 to T. P. Property. The letter agreement further provided that "Kennebec shall furnish to MGA, within 20 days after the end of each operating month of Kennebec, a copy of Kenne- bec's confidential, internal management report ... which shall include an income statement for the year to date and a balance sheet as of the last day of such oper- ation month." (Jt. Exh. 4, p. 595.) As recited in the letter agreement, its purpose was to "provide incentives for continuing the operations of Kennebec (including specifi- cally its papermill in Madison, Maine) and in order to induce Kennebec and the other parties to participate herein." While Penntech's commitment bears the date of No- vember 22, 1976, acknowledgements attached to the letter agreement for Kennebec, MGA, Merrill, KDC, T. P. Property, and American General Bond Fund, Inc., are dated respectively, February 10, February 15, February 15, February 15, February 15, and February 9, 1977. The minutes of the meeting of Penntech's board of directors dated March 9, 1977, reveal: The Chairman advised the meeting that the ar- rangements negotiated with the Maine Guarantee Authority whereby the Corporation's subsidiary T. P. Property Corp. would purchase timberland owned by its subsidiary Kennebec River Pulp & Paper Company, Inc. in order to provide operating funds to the latter had been concluded on February 28, 1977. These arrangements, and the Corpora- tion's agreement to guarantee certain obligations of, and to advance funds to, T. P. Property Corp., were summarized. On motion, duly seconded, all actions taken by the Corporation's officers in con- nection with these agreements were ratified and ap- proved. Mr. Ford then presented a brief review of oper- ations for the month of January 1977 at the Corpo- ration's two papermills, and a summary of the Cor- poration's financial statements for the year 1976, noting that they were before final audit adjustments which had not yet been made by the Corporation's outside auditors. [Jt. Exh. 4, pp. 802, 803.] Pursuant to the letter agreement T. P. Property in February 1977 obtained title to certain timberlands. Ac- cording to Ford, the consideration was around $800,000. However, because of the credit T. P. Property had re- ceived for previous advances to Kennebec, "the land transaction was primarily a cancellation of indebtedness." The purchase money constituted T. P. Property's ad- vancements to Kennebec. Thus, under the letter agree- ment T. P. Property obtained timberlands for money ad- vanced and paid to Kennebec. On November 19, 1976, union representatives and de- partment heads were assembled at the "company house" in Madison. John Leslie, director of Kennebec, president and chairman of the board of Penntech, and president and director of T. P. Property, told the assemblage that unless production immediately increased to specified levels the Kennebec mill would not be viable for contin- ued operations. As related by Bruce St. Ledger, the then manager of Kennebec mill, Leslie told the audience that "the production over a relatively short period of time had to be increased to the rate of 120 saleable tons per day. And, that after that was accomplished, at some period of time not specified following that it had to be raised to 140 to 150 tons per day or the mill was not viable for continued operation." Douglas E. Murray, president of Local 36, remembered Leslie to have said that "if these things didn't happen that we're going down. They're not putting any money in it. And Kenne- bec River would be down and they are not taking Penn- tech with them." Or as Blanchard Hupper, secretary and treasurer of Local 270, testified, "Kennebec . . . was not going to drag Penntech with it." Clifford Miller, presi- dent of Local 73, also testified that Leslie said that "he was not going to drag Penntech down with us." Accord- ing to St. Ledger the union representatives present at the meeting were "not given an opportunity at that time to respond-to Mr. Leslie directly." After the meeting production improved for 3 or 4 weeks and then fell off. At no time thereafter did pro- duction reach the standards mentioned by Leslie in the 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 19 meeting. Such lack of achievement was at- tributed by St. Ledger to "excessive number of breaks on the paper machine, [and] the addition of the size presses in September had, in fact, reduced the speed at which the paper machine could be operated on particular grades. There were considerable maintenance difficulties or maintenance breakdowns." Other witnesses added that the use of sludge and the lack of preventive maintenance also attributed to the inability to reach the goals set by Leslie. According to St. Ledger the failure to reach these goals was not due in any part to the "lack of coop- eration of the employees." "[B]etween December '76 until the mill shut down [Leslie] was very much hands on during that period." He was on the Kennebec premises "over fifty percent of the time." On March 17, T. P. Property addressed a letter, signed by Leslie as president, to Kennebec as follows: Reference is made to the promissory note of Kenne- bec River Pulp & Paper Company, Inc. (Kennebec) dated March 3, 1976 payable on demand to the order of T. P. Property Corp. (TP) in the original principal amount of $100,000 and the promissory note of Kennebec dated December 31, 1976 payable on demand to the order of TP in the original princi- pal amount of $2,700,000. Such notes are collective- ly herein referred to as the Notes. No payments have been made by Kennebec under the Notes. This is to confirm that on March 16, 1977 TP de- manded payment of $2,500,000 loaned to Kennebec and evidenced by the Notes. TP hereby repeats said demand for payment. TP reserves the right to demand payment of the ad- ditional principal evidenced by the Notes and pay- ment of the other amounts required to be paid under the Notes. TP further reserves the right to demand payment of other amounts loaned to Ken- nebec. According to Ford this letter was tendered "in anticipa- tion of a possible shutdown. Better our position properly for exercising the lien." Kennebec had no means of meet- ing the demand. Twelve days after the date of the letter, on March 29, 1977, St. Ledger assembled the union representatives around 1:30 p.m. and advised the employees that the mill would be shut down and the employees should have that accomplished by 3 o'clock. The "maintenance people were to move their tools from the property" and "per- sonnel" were given 3 days "to get their clothing and stuff out of their lockers." According to Ford, Kennebec had lost "about $750,000" in January and February 1977 and "it was very obvious from the production levels that were being achieved in March that March was going to be a very sizeable loss also." After the operations report in Febru- ary 1977 Ford concluded that Kennebec would not prof- itably operate in the future; "it became obvious from the analysis of that report that a number of the steps we had taken were not being successful." Ford "transmitted [his] ideas on this subject to everyone in management in both companies." Between November 19, 1976, and March 29, 1977, the Respondents had not engaged the Union in any discus- sions in regard to the prospects of the Kennebec mill's termination of operations. Ford testified that there had been "some discussion" about whether to talk with the Unions in reference to reducing wages or "something of that character," but, "We felt, basically, that any amount involved in doing so or what could be reasonably be bar- gained would not be even helpful to reducing losses of this magnitude." Thus it would appear that the Unions were bypassed and that it was with deliberate iilnlct that they were not informed of the impending termination of Kennebec mill's operations. St. Ledger, whom I do not consider to be a credible witness on the whole, testified that the termination of Kennebec mill's operations occurred without any specific discussions on the subject prior to March 29, 1977. St. Ledger first testified that on that date he informed Leslie by phone that he did not "feel that it was going to be a viable operation in view of the present condition of funds being short and it was going to take a great deal more money and it was [his] recommendation to shut the mill down." Later Leslie denied that "shortage of funds" had been mentioned. St. Ledger testified, ". . . we had a discussion involving consideration of the production at the level which it was at, and he asked for my recom- mendation and I said that I recommended that we shut the mill down. .... [T]he reason was that we obviously were not meeting the production required in order to make it a viable, profitable operation." While St. Ledger insisted that it was his decision to close the mill he ad- mitted that Leslie had the power to veto the decision. On the same date Leslie decided that Penntech "would no longer cover the losses of Kennebec." In this regard St. Ledger claimed that the decision to close the mill on March 29 had been made prior to Leslie's decision. However, in any event the "cut off" of funds meant that "Kennebec probably would have no choice but to [shut] down." Although St. Ledger testified that he had made the final decision to close the mill, his testimony in this re- spect is not credited. Not only is it unrealistic for Leslie to have allowed St. Ledger to have made such an impor- tant decision, but St. Ledger told the union representa- tives at the April 4, 1977, meeting (see infra) that he had received a call and was told to shut down the mill. 6 The decision to close the mill was not discussed with any other officers of Kennebec. Ford, the other director, learned of the closing after the fact. After the decision to close the mill was communicated, St. Ledger and Leslie discussed the procedure to be fol- lowed in shutting down the mill "as far as cleanup and maintenance and maintaining whatever operations [the 6 It is also significant that the record does not disclose that St. Ledger was privy to the letter agreement. Had Kennebec mill been closed prior to the consummation of the real estate deal, T. P. Property's chance to recoup around $800,000 would have probably been imperiled. Thus it seems reasonable to conclude that Leslie chose the shutdown date so as not to interfere with such an important and financially rewarding deal. 272 PENNTECH PAPERS, INC., ET AL. mill] was going to maintain." The Respondents acted "so expeditiously" in closing the mill because, according to St. Ledger, "there was no reason for prolonging it. The decision had been made, and there was no point in having rumors circulated." On March 30, 1977, John E. McLeod, manager of in- dustrial relations, addressed a letter to George Lambert- son, International representative of United Paperworkers International Union,7 advising of the closing of the mill on March 29, 1977, and observing, "This would immedi- ately result in an indefinite layoff of virtually all of the mill employees, salaried as well as hourly and total layoff within the near future." The final paragraph read, "Al- though we cannot see any possibility of Penntech resum- ing operation nor can we see the purchase or operation of the Company by any otherfirm, we shall treat the layoff of personnel as indefinite so that full recall rights will be afforded all concerned." (C.P. Exh. 1, emphasis sup- plied.) Lambertson first heard of the mill's closing on March 29, 1977, over the radio while driving his car on the same date. He contacted Manager of Industrial Relations McLeod and a meeting was set for April 4, 1977. Prior to this meeting and by letter dated March 20, 1977, Kennebec acknowledged that T. P. Property "has taken possession of the property upon which it has a first security interest." (Jt. Exh. 4, p. 480.) This included all supplies, materials, spare parts, finished goods, four trucks, a front-end loader, two mobile cranes, waste paper, and softwood pulp. Immediately after the shut- down, salaried employees were instructed to make sten- cils which read "subject to the first security interest of T. P. Properties" and to stencil a "great deal of equip- ment" and the "store room door." The storeroom was "cleaned out, loaded into a moving van, moved away." Other items were also being removed. These facts were known to the union representatives prior to the April 4, 1977, meeting. Second: St. Ledger and McLeod appeared at the April 4 meeting. St. Ledger indicated that he was also repre- senting Penntech. Representatives of all the contracting unions were also present. Lambertson acted as spokes- man for the Unions. I The current labor agreement provides: C. Indefinite Layoff Indefinite layoff procedures shall be implemented for layoffs of un- known duration which extend beyond the maximum allowable time period stipulated for short-term layoffs and they shall remain in effect until the earlier of I. The resumption of the operation(s). 2. The expiration of six (6) continuous months of layoffs including cut-back, short-term and indefinite layoff periods. The six (6) months period may, by mutual agreement of all parties, be extended. 3. The decision of management to permanently shut down a por- tion or portions of its operations. D. Reduction in work force Reduction in work force procedures shall be implemented upon: I. The expiration of the maximum allowable duration for an indefi- nite layoff 2. The decision of Management to permanently shut down a por- tion of its operations According to St. Ledger the union representatives were "requesting answers regarding the length of the time of the layoff . . . how benefits, vacations, early re- tirements and how things of that nature would be han- dled." According to Lambertson, St. Ledger advised the Unions that "it was not a permanent shutdown . . . it was what they call an extended layoff which was in accord with the contract. He said that was what they were calling it and that a section of the contract covered it." St. Ledger testified that the closing was an "indefi- nite layoff" being taken "to secure or interest another purchaser that would come in and operate the plant or supply funds to operate the plant." "By indefinite layoff, I meant it was not known the duration of the layoff be- cause we did not know what was going to be the out- come of seeking these other operators or other suppliers of funds. " s On the question of insurance, St. Ledger said an an- nouncement would appear in the newspaper. On the question of severance pay, St. Ledger responded that "severance pay is not paid in an indefinite layoff until after a certain period of time." On the question of con- tinuing pension payments, St. Ledger answered, "I don't know." Ont the question of vacations, St. Ledger said, "It is an indefinite layoff and they cannot take their vaca- tions at this time." During the meeting St. Ledger was asked with whom the Unions could talk who exercised some authority. The answer was, "[T]he best thing you can do is talk to the On this same subject St. Ledger testified: THE WITNESS: I told them that an indefinite layoff as defined in their contract for up to a period of six months and that what I was terming as an indefinite layoff is one in that we did not know what the future of the mill would be up to the end of that period. JUDGE GOERLICH: When you say you didn't know what the future would be, did you elaborate on that? THE WITNESS: Only in the respect that we did not-or I did not know of personal knowledge whom we had for prospective purchas- ers or anyone that might be willing to supply funds. JUDGE GOERLICH: Well, in your discussion with them did you in- dicate to them that the present management of Penntech would not continue to operate, but that if some other individuals came in that they would be the operators? Is that what you told them, or some- thing along that line? THE WITNESS: No, I don't think I stated it in that manner. JUDGE GOERLICH: How did you state it to them? THE WITNESS: Just that if Penntech-if someone would come in and supply funds, even through Penntech, that Penntech could possi- bly once again consider operating the mill. JUDGE GOERLICH: In other words, if someone came in and un- derwrote, so to speak. Kennebec that it might continue to operate, is that what you told them? THE WITNESS: Yes, sir. JUDGE IOERLICH: Did you indicate to them that Penntech had de- cided not to further supply monies for Kennebec? THE WITNESS: I can't recall the exact terminology, but I think that was clear to them. JUDGE GOERI.ICH: That that was the situation? THE WITNESS: That that was the situation. Q. (Mr. Ohlweiler, resuming) Did you also state that efforts were being made or were going to be made to try to find a new buyer who might infuse funds into the company? A. I did. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorneys of Penntech." The Unions were given their names and telephone numbers. In respect to the mill closing, St. Ledger informed the Unions that "[a]ll he knew was that he got a call and he was told to bring in people and tell them that the mill was to be down in an orderly-hopefully, an orderly shutdown by three o'clock on the 29th." On April 10, 1977, Local 559 filed a grievance which cited contract violations involving vacations, pensions, and severance pay. In the statement of facts appears: At a meeting on April 4, 1977 with Mill Manager, Bruce St. Ledger and John McLeod and representa- tives of Local #559 the above-named management would not furnish the union with any information in respect to the company's contractual obligation for payment of earned wages and other benefits. Richard McQuarrie, president of Local 559, explained that he had tried to obtain information from McLeod by phone as to the matters raised in the April 4 meeting for about 3 or 4 days thereafter without success, whereupon McQuarrie prepared the grievance. After the mill closed the boiler and powerhouse re- mained in operation. In the meantime trucks continued moving certain materials and items from the mill prem- ises.9 Certain leased property was also removed. As noted above unfair labor practice charges were filed on April 11, 1977. On April 21, 1977, the District Judge for the United States District Court for the Distrct of Maine, Northern Division, granted a temporary re- straining order enjoining the removal of certain property from the mill premises. On April 22, 1977, St. Ledger and McLeod met again with the Unions' representatives. Lambertson was again the Unions' spokesman. Minutes were taken at this meet- ing by both the parties. This meeting followed a letter dated April 19, 1977, in which St. Ledger wrote: If you would like to meet and discuss with us this matter [request for arbitration], or the effects of any future decision to permanently close the plant, or any other related matter, please so advise us and we shall be pleased to meet and confer with you. [G.C. Exh. 2.] At the meeting the Unions asked for information on the status of vacation pay, severance pay, 10 and pen- 9 At the time MGA held a first mortgage but it did not include "cur- rent assets or inventory or accounts receivable or motorized vehicles." 'o The contract provision for severance pay is as follows: 5. SEVERANCE PAY Employees who are permanently laid off by Company action due to a relocation of all, or substantially all of the Company's operations to a new location one hundred or more miles from the present loca- tion, or, as a result of substantial cessation of the company's oper- ation, shall receive severance pay as follows: One day of straight time pay for each year of continuous service after three years of con- tinuous service. Severance pay shall not be paid under the following circum- stances: I When relocation or termination is necessitated by a physical ca- lamity such as fire, flood or other natural disasters. sions. St. Ledger stated that no vacation or severance pay would be allowed during the indefinite layoff. St. Ledger also stated that early retirement would not be al- lowed. St. Ledger was not sure on the subject of pen- sions but said that they expected to pay pensions the next month as it had paid the last and that insurance for the retirees was being carried by the mill. St. Ledger was asked whether the mill was going down. He answered that Penntech was in touch with "people in the hope to start up." (G.C. Exh. 7.) The Unions' minutes reveal: Boiler house and power house will be down at 3 a.m. today. People were working in the plant for removal of equipment and Broke. Injunction halted that. The plant could start in less than a month. Penntech still holds the lease. The decision to close the boilers and powerhouse made by me. Also said several times, "I have no new information." [G.C. Exh. 5.] During the meeting St. Ledger reiterated that the clos- ing was an indefinite layoff. Union representatives quer- ied how this could be when "they were moving stuff out." According to the Unions' minutes St. Ledger said, "I am still working for Penntech. I have no answers. I take my orders from Penntech." (G.C. Exh. 5.) St. Ledger was also asked whether he had an answer to Local 559's grievance. He stated that he had no answer at the present time but would let Local 559 know at the time limit for answering the grievance. After the meeting adjourned, the Unions' representatives returned and asked St. Ledger and McLeod whether the Local 559 grievance could be expanded to include the other locals. They agreed to accept a combined submission of the grievance. Thereafter the Unions' attorneys handled the grievance. On December 4, 1978, the Unions advised the National Labor Relations Board that it was no longer pursuing arbitration of the grievance. Withdrawal of the arbitration was accomplished in June 1979. 1 According to Lambertson the last information the Unions received on the subject of plant closure was in the April 22 meeting; to wit: "We don't know at this time. All we can tell you is for all intents and purposes it is an indefinite layoff." The parties never met again after April 22. Thereafter Lambertson phoned St, Ledger two or three times as to the "status of everything." St. Led- ger's response was "I don't know." Lambertson testified that "there was no necessity to meet. This is what we were told by Mr. St. Ledger. ... He said that he didn't have anything new." St. Ledger resigned in August 1977. 2. In compliance with the final order of any federal, state, or local government agency, including an adjudicated bankruptcy. 3. When the employee accepts employment at the new location. 4 When the employee has been employed by the company for less than three years. "l By a letter dated May 27, 1977, the Regional Director administra- tively deferred proceedings on the Unions' charges pursuant to Dubo Manufacturing Corporation, 142 NLRB 431 (1963). The Regional Director revoked his deferral letter on December 4, 1978. 274 PENNTECH PAPERS. INC. ET AL St. Ledger testified that by the "end of July. first of July" 1977 it was "obvious then that the mill could not be restarted within that period of time [6 months]." At this point of time St. Ledger said that he did not contact the Unions. He explained. "When the union left me they said that they did not X ant any further meetings; that they were not satisfied with the answers I was giving them and they were going to pursue it in another manner." "And I did not contact the union."' 2 The Madison Paper Company is presently operating the mill. A substantial number of Kennebec employees were hired by this company. Third: The litigation in the district court which was commenced by the Unions in April 1977 against the Re- spondents after trial came on for decision by the United States District Court of Maine, Northern Division. on October 21, 1977. The defendants in such action were Kennebec, Penntech, T. 1'. Property, and MGA The plaintiffs were the Unions herein. Tht court defined the issue as "whether Penntech Papers, Inc., which was not a signatory. can be ordered to arbitrate certain provisions of a collective bargaining agreement entered into be- tween the plaintiff unions and the defendant Kennebec." (Jt. Exh. I(v).) The action was brought pursuant to Sec- tion 301 of the Labor Management Relations Act, 1947, as amended, 29 U.S.C. § 165. The court found against the plaintiff unions on the issue. United Papetworksers In- ternational LUnionm tal a. v. Pcnntech Papers, Inc., 439 F.Supp. 610. The Unions appealed to the United States Court of Appeals for the First Circuit. The court of ap- peals affirmed the district court. The Unions did not appeal the court of appeals' decision. A stipulation of dis- missal was filed in the district court oil or about July 3, 1979, in which the pal ties pursuant to Fed. R. Civ. P. 41(a)(i)(ii) dismissed "the instant actions with prejudice." (Jt. Exh. 2(p).) As noted above the Unions withdrew their demand for arbitration and the Regional Director issued the within complaint on January 23, 1979. The claims under the contract which were the subject of the arbitration demand remain unsettled and unpaid. Fourth: The General Counsel and the Charging Parties contend that the Respondents failed and refused to bar- gain in good faith with the Unions concerning the effects upon employees of the decision to terminate operations of the Kennebec mill in Madison, Maine. The Respond- ents insist that tile General Counsel has failed to prove a violation of Section 8(a)(5) of the Act "since the ei- dence demonstrates that the Unions failed to request ne- gotiations as such, and the Respondent Kennebec, in full satisfaction of its responsibilities, met with the Unions when requested and answered all questions asked by the Unions regarding contract benefits and all other matters raised by the Unions." (Resp. br., p. 25.) From the record evidence it is clear that the termina- tion of Kennehec's operations on March 29, 1977, and the separation of its employees from employment oc- 12 On April 25, 1977, an unfair labor practice charge was filed for the refusal by Kennehec It provicia information in respect io the pending ar- bitration proceedings A comnplainl was issued The matter as continueid sine die pending compliancie i Kennebec with an agrecneenl It produce the informalion On December 15, i1'77. the complaini was dismidssed on the Unions' requeqi of wsithdrais' it of the unfair labor practice charge curred 'without notice to or affording the Unions an op- portunity to bargain in regard to the effects upon the ern- ployees of the Respondents' decision under such circum- stances as would have allowed the Unions a reasonable time in w hich to bargain prior to closing. In failing in this respect, the Respondents violated Section 8(a)(5) of the Act even though the tUnions made no request to bar- gain about the closing prior to March 29, 1977 O.zar Trailers, Incorporated und/or Ilutco Equipment Cornpany and/or .Motilefreeze Comnpauyi. Inc., 161 NL RB 561 (1h66). As in such casc, "the Union, during the most critical period. at the ver\ time when bargaining would have been the most productive, was completely unassare of Respondents' intention to close the Ozark plant per- manently.' 161 NLRB at 564. Indeed, as of the present time there is no credible evidence that the Respondents have ever informed the Unions that the Kennebec mill is actually closed. Nevertheless, the Respondents contend that they fulfilled their duty by responding to the Unions' questions regarding certain claims raised at thie April 4 and 22, 1977. meetings In other words, the Re- spondents rely upon their conduct at those two meetings as absols mtg them from a refusal to bargain in good faith about the effects of the mill's closing. On the other hand, the General Counsel asserts that the Respondents' good faith was wanting in that the notice of closing was withheld from the Unions in order to deprive them of "an opportunity to bargain over the effects of the decision while they maintained a semblannce of an equality of bargaining power." In any event, this obviously was the effect of closing the mill without noti- fying the Unions. Such inference also obtains since the credited record discloses no emergency circumstances which would have justified the Respondents' precipitant action. Indeed. the Respondents considered and rejected the idea of contacting the Unions in regard to the clo,- ing. The General Counsel also maintains that the Respond- ents acted in bad faith when "no responsible officials of Petnntech were present during the April 4 atnd 22 meet- ings." In this respect St. (Iedger disclosed his very limit- ed authori.: when he referred the union representatives to Penntech's attorneys in New York. His bargaining au- thority was insufficient to satisfy the requirements of bar- gaining in good faith. Cf. Pepper & Tanner, Inc., 197 NLRB 109 (1972). Fhe General Counsel next contends that the Respond- ems "denied the Unions an opportunity to engage in meaningful bargaining by making false and misleading statements concerning the future of continued operations of Kennebec." I his point seems to be well taken. St. Ledger claimed the closing was an "indefinite layofF' and that the possibility was that Kennebec would resume operations by the infusion of new money or through a purchaser. McLeod's letter of March 30, 1977, asserts the opposite; to wit, "... we cannot see any possibility of Pcnntech resuming operations nor can we see the pur- chase or operation of the company by any other firm...." (C.P. Exh. 1.) Moreover, the records of MGA reveal that at a special meeting on April 11. 1977, it was voted: DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) That the Manager is authorized to seek an agreement relative to the surrender of the premises by the present tenant, Kennebec River Pulp & Paper Company, Inc., and the assumption of lawful possession by the Maine Guarantee Authority and/or the Trustee, and, (2) That the Manager is di- rected to request the Trustee, Merrill Trust Compa- ny, to declare a default under the bond indenture and to initiate foreclosure proceedings. [G.C. Exh. 25.1 Additionally, it was noted: That the Manager is authorized to enter into an agreement for a period not to exceed 60 days with William Anderson, former production manager of Kennebec River Pulp & Paper Company, Inc. and Arthur Lehto, former plant engineer for Kennebec River Pulp & Paper Company, Inc. for the purpose of maintaining the Kennebec mill. It is understood that the roles of Mr. Anderson and Mr. Lehto will be those of technical advisors, maintenance supervi- sors and directors of plant security. [G.C. Exh. 25.1 With the occurrence of these events the Respondents must have known that Kennebec, having been deprived of Penntech's resources, had no chance of resuming the operation of the mill. Ford testified that one might draw the conclusion that Kennebec, "as a corporation, to a stock purchaser was virtually unmarketable because of the long term debt situation the corporation faced and its other obligations."' s Ford observed "what happened was is that the MGA foreclosed, took possession of the asset involved-that is the mill, and sold that to some- body else. And, Kennebec is still sitting there with its in- debtedness." According to Ford the buyer from MGA declined the opportunity to purchase Kennebec stock. Under these circumstances it is clear that the Respond- ents, as reasonable and knowledgeable members of the business community, on April 24, 1977, when St. Ledger was insisting that the mill closing was an indefinite layoff, knew that there was no chance of Kennebec re- opening the mill or disposing of Kennebec stock as a going concern. Kennebec was a corporate shell full of li- abilities and few assets. Indeed, Penntech immediately commenced removing the assets (which St. Ledger told the union representatives belonged to Penntech) from the shell when the mill was closed. St. Ledger's statement that the closing was an "indefinite layoff" was a gross misrepresentation and constituted bad-faith bargaining. St. Ledger's responses to the union representatives and his take-it-or-leave-it attitude 1 4 were the antithesis of good-faith bargaining. Because the Respondents failed to notify the Unions of the closing, failed to cloak their ne- gotiator, St. Ledger, with sufficient authority, misrepre- sented the nature of the closing, and adopted a take-it-or- leave-it attitude which foreclosed a good-faith exchange of ideas, the Respondents did not bargain in good faith over the effects of the closing of Kennebec and are a Kennebec owed Penntech S3 million. "4 St. Ledger was quoted as saying, " ... this is the way it is and this is the way it is going to continue until further notice." guilty of a violation of Section 8(a)(5) and (1) of the Act. The Respondents failed and refused to bargain in good faith concerning such bargainable matters as severance pay, pension, and vacation benefits, among others, which was their duty.' The Unions were given a brushoff. Indeed, the Unions were never informed by the Re- spondents that Kennebec mill was ever closed. Fifth: The Charging Parties contend that by failing to bargain over their decision to close Kennebec the Re- spondents violated Section 8(a)(1) and (5) of the Act.' 6 The credited facts in this case disclose that the Re- spondents experienced production problems and losses throughout their entire operation of the Kennebec mill. While Penntech had sought and obtained modification of Kennebec's labor agreement satisfactory for its assump- tion of the operation of the mill, the Respondents did not again approach the Unions for either assistance or sug- gestions in regard to their operation of the mill except for Leslie's blast in November 1976 which, of course, was not a notice to close the mill. On this occasion the Unions were given no opportunity to respond. Although between November 1976 and March 1977 Leslie's goals set for the mill were not reached, the Respondents nei- ther advised the Unions during these 4 months of a likely mill closure nor suggested that the Unions bargain in re- spect to such a prospect. Moreover, the Respondents had ample time to notify the Unions of the shutdown prior to their unilateral announcement of the closing. The closing was not based on some sudden or unanticipated situation which required immediate action. Why the Respondents avoided raising the problem with the Unions finds no valid explanation in the record unless the date was chosen to accommodate the completion of the above- mentioned real estate deal. St. Ledger's weak retort as to why March 29, 1977, was the date chosen for the shut- down day manifests a certain callousness and a disregard of the Respondents' employees' interests; i.e., "there was no reason for prolonging it. The decision had been made, and there was no point in having rumors circulated." By presenting the Unions with a fait accompli the Respond- ents foreclosed and prevented them from suggesting a possible remedy for the Respondents' predicament or from participating in the implementation of the timing of the closing so that the impact would not have fallen so harshly on the employees. The problems on March 29 were no different and were of the same kind which had existed for several months. If there were an urgency for action it did not first emerge on March 29. Indeed, had the Respondents chosen to bargain with the Unions prior to March 29, they would have been in no way hampered in exercising their decisional prerogatives nor would their entrepreneurial control have been surrendered for, having bargained in good faith with the Unions, they could have taken such action as they deemed provi- dent. 7 The economic factors existing prior to the Re- Is The facts in the instant case distinguish it from cases cited by the Respondents. "6 Whether a violation on this issue should be charged against the Re- spondents will be considered infmr 17 The Board said in Brockway Motor Trucks; Division of Mack Trucks Inc., 251 NLRB 29 (1980): Continued 276 PENNTECH PAPERS, INC., ET AL. spondents' closure of their Kennebec mill were not of such urgent moment as to overcome the presumption in favor of the duty to bargain. Collective bargaining in ad- vance of the closure might well have produced a union offer which would have persuaded the Respondents to continue to operate the mill. As was stated in Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 213 (1964), "to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business." The Court further said: [A]lthough it is not possible to say whether a satis- factory solution could be reached, national labor policy is founded upon the congressional determina- tion that the chances are good enough to warrant subjecting such issues to the process of collective negotiation. Thus, the Respondents clearly frustrated the congres- sional purpose by unilaterally closing their Kennebec mill and foreclosing a chance to modify the decision to close which not only may have preserved jobs for the employees but also might have continued a payroll in the community. Sound public policy cannot look askance at such a salutary effect. In the case of Brooks-Scanlon. Inc., 246 NLRB 476 (1979), the Board said: We recognize that in past cases the Board has consistently found that an employer has an obliga- tion to bargain about decisions involving subcon- tracting, plant removal, and partial closure. The purpose of this requirement is to afford the union an opportunity to propose alternative measures which might alleviate the need for the elimination of unit jobs. The record, which contains a full treatment of the clo- sure issue, presents no valid reason why the Respondents should be excepted from the obligation to bargain in re- spect to the closing of the Kennebec mill. The situation is no different in effect from the case of Royal Typewriter Company, a Division of Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc., and Litton Industries, Inc., 209 NLRB 1006 (1974), in which the Board found a duty to bargain in respect to the closing of one of the respondent's subsidiaries. In that case, referring to Board precedent, the Board stated that the Board has held that "an employer operating two or more plants was obligat- ed to bargain with respect to a decision to close one of those plants." 209 NLRB at 1012. Here the Respondents operated mills at Johnsonburg and Madison. According- ly, it appears that the Respondents by failing and refus- ing to bargain in respect to the closing of Kennebec mill were in violation of Section 8(a)(l) and (5) of the Act. See, also, National Car Rental System, Inc., 252 NLRB we must not lose sight of the minimal burden that a duty to bar- gain places on jn employer Rather than impinge on an employer's freedom to manage its business, bargaining over a partial closing simply requires the employer to discuss the matter at the bargaining table, and may even benefit the employer by obviating the need to close. Should the parties fail to roach agreement the employer is free to implement its plan to close the plant. 159 (1980), and Brockway Motor Trucks, Division of Mack Trucks, Inc.. supra. Additionally, through St. Ledger the Respondents ad- mitted that the alleged indefinite layoffs ripened into a permanent closing by the end of July 1977. If the perma- nent closing occurred at this time the Respondents again avoided their bargaining duty. Thus, whatever date is re- solved as the permanent closing date it is clear that the Respondents have refused to bargain not only in respect to the effects of the closing but also in respect to the de- cision to close. What was stated by the Board in Brockway Motor Trucks, Division of Mack Trucks, Inc., supra at 31, is ap- posite here, ". . . we conclude that the evidence here shows that Respondent's freedom to manage its business and determine the direction of its enterprise would not have been impaired had it bargained with the Union over the decision to close ... ." IV. THE CHARGING PARTIES' MOTION TO AMEND THE COMPLAINT TO COMFORM WITH THE PROOF At the conclusion of the General Counsel's case, coun- sel for the Charging Party stated: Well, it was my conclusion as a result of the completion of the General Counsel's case, the charging party's case, back in September of 79, that the record demonstrated that this company had not only failed and refused to bargain over the impact of the closing of the plant, but they had in fact also failed and refused to bargain over the decision to close and I ask that the amend-the complaint be amended to embrace the evidence in the case to the extent that it also establish that the company failed to bargain over the decision to close. I move that the complaint be amended to em- brace the evidence in the case to that affect [sic], and I believe that your Honor has the authority to grant the motion. In any Court of Law it's custom- ary to move that the complaint be enlarged to em- brace the evidence, but General Counsel did not join me in that application but felt that it should go through the bureaucratic process of the Board which I did, without any success, but my position is still the same and that is that the complaint should be amended to embrace all the evidence before this Court-before this Board. The motion of the Charging Parties was not ruled upon during the hearing. In GTE Automatic Electric, Inc., 196 NLRB 902 (1972), the Board said: The authority of the Trial Examiner to amend the complaint under Section 10(b) of the Act is clearly limited to those instances where the amendment is sought or consented to by the General Counsel, or where evidence has been received into the record with- out objection. [Emphasis supplied.] 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case the evidence which supports a finding that the Respondents refused to bargain over the deci- sion to close Kennebec mill was offered by the General Counsel, obviously without his objection. Much of it was introduced as joint exhibits and enough evidence is un- controverted to support a finding that the Respondents refused to bargain with respect to the decision to close Kennebec mill. Thus, it would appear under these cir- cumstances that an administrative law judge may exer- cise jurisdiction to grant or deny an amendment to the complaint to conform the complaint to the proof even though the General Counsel is construed to control the complaint. In this respect an administrative law judge ex- ercises a judicial function which does not obtain to the General Counsel as the prosecutor. As was said in The Frito Company, Western Division v. N.L.R.B., 330 F.2d 458, 465 (9th Cir. 1964): Once having elected to prosecute a complaint before the Board, the General Counsel is cast in the role of prosecutor in a judicial proceeding. His au- thority as a prosecutor is not reviewable by the Board, but this authority does not extend to control of the proceeding itself. He cannot limit the scope of the decision which may be rendered upon the evidence adduced. It is a judicial function to permit an amend- ment of the complaint to conform to proof admitted without objection. The matter of allowance of such an amendment is addressed to the discretion of the court. The proof having been admitted without objection, what is to be done with it is no longer a part of the prosecution of the cause. A ruling by the Board ad- verse to the wishes of the General Counsel is not a review of a decision of the General Counsel. In the prosecution of the complaint he could have objected to the introduction of the evidence. He did not do so and he thereby consented to the introduction of the issue to which the evidence was addressed. The trial examiner and the Board were then free to consider the evi- dence and to exercise judicial discretion as to whether to permit amendment to conform to proof. On the matter of amendment to conform to proof admitted in the record, especially if amendment may be necessary to enable the Board to effectively discharge its duty to declare policy, we hold that the Board does have the authority to allow an amendment over the objection of the General Counsel and that this is a judicial function rather than a review of a decision of the General Counsel in the course of the discharge of the duties of a prosecutor over which he has final authority. The Board could adopt the view of its trial exam- iner, it could dismiss the case for public policy rea- sons, or it could render a decision based upon the issues actually tried without ordering amendment, or it could order amendment to conform to proof or conduct further hearings in the premises. [Em- phasis supplied.] The Charging Parties' motion to amend the complaint to conform with the proof is granted. Having offered evidence on the issue, it is not within the province of the General Counsel's prosecutorial power to foreclose the exercise of the Board's judicial power to pass on the issue. There appears to be nothing in the Act which reveals a congressional intent to lodge power in the General Counsel to close the Board's eyes to an unfair labor practice appropriately brought to its attention in a record before it composed in conformity with the statute's procedures. "The Board was created . . . to advance the public interest in eliminating obstruc- tions to interstate commerce .... " N.L.R.B. v. Fant Milling Co., 360 U.S. 301, 307, 308 (1959). Even though the charging party's motion was not granted, the Board has said in the case of Monroe Feed Store, 112 NLRB 1336, 1337 (1955): It is well established that when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifi- cally alleged to be an unfair labor practice in the complaint. (Emphasis supplied.] See also Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973); Crown Zellerbach Corporation, 225 NLRB 911, 912 (1976); National Family Opinion, Inc., 246 NLRB 521, 528 (1979). In the instant case the issue of the refusal to bargain concerning the decision to close and the effects of the closing on the employees is related both to the allega- tions of the complaint and the charges.' Each are 8(a)(5) violations which stem from the Re- spondents' closing of Kennebec mill on March 29, 1977. In the case M & J Trucking Co., Inc., 214 NLRB 592, 597 (1974), a finding of an unfair labor practice was en- tered although the misconduct was not specifically al- leged in the complaint and at the hearing the counsel for the General Counsel acknowledged that he was not seek- ing a finding of a violation. The respondent was found not to be prejudiced by the counsel for the General Counsel's disclaimer, that the matter was fully litigated, and that misconduct directly related to other specifically alleged unfair labor practices. The case of Moore Feed Store, supra, was relied upon. The Board has said in C & E Stores, Inc., C & E Super- value Division, 221 NLRB 1321, fn. 3 (1976): 18 See .VL.R.B. v. Inland Empire Meat Company. 611 F.2d 1235 (9th Cir. 1980), citing NL.R.B. v. Central Power & Light Companvy, 425 F.2d 1318, 1320 (5th Cir. 1970). The court pointed out in Inland Empire Meat Company, supra, that the violation alleged in the complaint which was not specifically contained in the charge was "covered by the general language (i.e., 'other acts and conducts') of [the] charge." The same is true in the instant case for the charge contains this language: By the acts set forth in the paragraph above, and by other acts and conduct, it, by its officers, agents and representatives, interfered with, restrained, and coerced, and continues to interfere with, re- strain, and coerce its employees in the exercise of the rights guaran- teed in Section 7 of the Act. In Gulf States Manufacturer, Inc. v. NL.R.B., 579 F.2d 1298, 1302--03 (5th Cir. 1978). the court said that the "'catch-all' phrase 'by other acts and conduct' in the charges was sufficient to include other acts and con- duct if they are sufficiently related to the specific acts alleged." 278 PENNTECH PAPERS, INC., ET AL. It is well established that where, as here, the facts underlying the violation are fully developed at the hearing, an unfair labor practice finding can be based on the issues litigated as well as those specifi- cally alleged in the complaint. Relying on this decision, the Board has held that it is not precluded from finding a violation under an alternative theory although the complaint alleged a different theory of the case. Illinois Bell Telephone Company, 251 NLRB 932 (1980). Since the events surrounding the closure of the Kenne- bec mill and the failure and refusal of the Respondents to bargain over the decision to close were fully litigated and the refusal to bargain over the decision to close was intimately related to the subject matter of the complaint and the charge, as noted in Monroe Feed Store, supra, an administrative law judge and the Board are "expected to pass upon it even if not specifically alleged to be an unfair labor practice in the complaint." And this is true even though the General Counsel is not pressing a find- ing on the issue. M & J Trucking Co., Inc., supra. The Board may properly find an unfair labor prac- tice when the issue has been fully litigated even though not specifically pleaded in the com- plaint. . . The Board may either render a decision upon the issues actually tried or order an amend- ment to conform with the proof. vN.L.R.B. v. International Association of Bridge, Structural and Ornamental Iron Workers, Local 433 [Associated Gen- eral Contractors], 600 F.2d 770, 775 (9th Cir. 1979). See also Ackerman Manufacturing Company, 241 NLRB (1979), in which the Board reversed the administrative law judge, opining . . .inasmuch as Atkins' testimony concerning this incident was uncontroverted and fully credited, and because the matter is closely related to the subject [matter] of the complaint, we shall find the 8(a)(l) violation and provide an appropriate remedy. Hence it is incumbent for the Board to enter a finding that the Respondents violated Section 8(a)(5) of the Act by failing and refusing to bargain in respect to the deci- sion to close the Kennebec mill. As said in The Frito Company v. V.I..R.B., 330 F.2d at 463: "The Board cannot fulfill its obligation to uphold the purposes of the Act if it conceives itself powerless to exercise an inde- pendent examination . . . of the case presented by the General Counsel." The Respondents having committed the unfair labor practice ought not be held to complain because they do not come off scotfree. The credited record is void of any proof that the Re- spondents either fulfilled their duty to bargain in respect to the decision to close Kennebec mill or the effects of said closing. Thus, unless it is found that Penntech, Ken- nebec, and T. P. Property are not a single employer, a finding must be entered against each that each was guilty of violations of Section 8(a)(5) of the Act. In its conclusion, the Charging Parties set this case in its proper focus: In a case as blatantly violative of the Act as this one, the relief provided should be the maximum permitted under the Act. The Company unilaterally decided not to follow the agreed-upon contract terms. There was nothing the Union could do, since its leverage had been re- moved when the mill was closed. The closing of the mill was carefully orchestrat- ed. First the Company negotiated favorable terms with the MGA for $1,250,000; $750,000 of which went directly to Penntech as Kennebec paid off its obligations. As soon as the deal was final, T. P. re- called Kennebec's notes in anticipation of a closing. Twelve days later Penntech shut off funds-perma- nently. That same day the Company shut down the Kennebec mill. No notice was given to the employ- ees so as to deprive the Union of bargaining power. At the same time, the Company stripped the mill of its assets. The closing was called a layoff to avoid the severance payment and the other contractual obligations of the Company in the event of shut- down. In less than a month, there was no one around for the Union to talk to. The scenario went off like clockwork. And such purposeful avoidance by the Company of its duties under the Act cannot go unheeded. The employees are entitled to complete, make-whole relief. [C.P. br., p. 46.] V. THE SINGLE -PLANT ISSUE The General Counsel and the Charging Parties con- tend that the Respondents, Kennebec, T. P. Property, and Penntech, constitute a single employer. The Re- spondents admit that Penntech is the sole stockholder of T. P. Property and Kennebec. The parties agree that the following facts are true. Penntech and T. P. Property share the same corporate headquarters, 600 Third Avenue, New York, New York, on the 35th floor. The offices are not physically separate. The title on the office door reads only "Penntech Papers, Inc." No portion of the office contains separate space for T. P. Property. T. P. Property has no separate employees or furniture of its own. Penntech leases its corporate headquarters in New York City. T. P. Proper- ty is not a party to that or any other lease related to that property. Neither Penntech nor T. P. Property pay taxes in New York related to that facility. Both Penntech and T. P. Property pay franchise taxes to the State of New York. No T. P. Property officer is paid any salary by T. P. Property. T. P. Property does not employ legal counsel on a re- tainer basis. T. P. Property engages legal counsel to the extent it needs legal counsel and, in the past, such coun- sel has been the same as engaged by Penntech. T. P. Property has not conducted regularly scheduled Board meetings. To date all of T. P. Property's corpo- rate formal decisions have been recorded as unanimous consents as permitted under Delaware law. 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of T. P. Property's acquisition of the Ken- nebec stock John Leslie, the president, chairman of the Board, and director of Penntech, was president and di- rector of T. P. Property. William B. Ford, vice president of finance and secretary of Penntech, was a vice presi- dent and director of T. P. Property. According to Ford, T. P. Property was used by Penntech as the purchaser and holder of the Kennebec stock because Penntech was subject to an indenture which "had a number of restric- tions on operations . . . it was easier for [it] to incorpo- rate a separate subsidiary to make the acquisition itself, rather than to do it directly through Penntech." Thus, T. P. Property was used as a funneling vehicle through which Penntech money was channeled in to Kennebec's operations. Accordingly, as claimed by the General Counsel, T. P. Property was an alter ego of Penntech. After the Kennebec stock acquisition, the directors of Kennebec became John Leslie, William B. Ford, and Robert S. Malina, and Leslie (according to Ford) desig- nated Allen J. Nadeau, as president; William B. Ford, as vice president, secretary, and treasurer; Steven B. Bittel, as corporate controller, and Fred C. Scribner, Jr., as clerk. Except for the clerk attorney all of the above were associated with Penntech. After assuming their duties with Kennebec, Ford and Bittel retained their positions with Penntech. Of Nadeau, Ford testified, "Mr. Nadeau continued in the capacity at Penntech as a director of the company and as a vice president of Penntech. But the vast majority of his time, his responsibilities, involved managing Kennebec River Pulp and Paper Company." Bill Picard, who had been mill manager at Penntech in Johnsonburg, Pennsylvania, was asked to assume a similar position at Kennebec; he ceased all his responsibilities with respect to Penntech and spent full time with Kennebec. Picard was replaced by St. Ledger in June 1976. In February 1977 St. Ledger was named president of Kennebec. Although Nadeau re- mained president of Kennebec until replaced by St. Ledger and as such was the "chief operating officer" of Kennebec, from mid-December until the end of his tenure as Mill Manager St. Ledger reported directly to Leslie per his instructions. Fred C. Scribner, Jr., was re- placed by Robert E. Stevens and Stephen D. Weinroth was added as a vice president. Weinroth was vice presi- dent, secretary, and director of T. P. Property. Since February 1977 directors have been Leslie and Ford. Malina resigned. According to Ford the functions of the board of directors were "strictly nominal." Although Leslie filled no office with Kennebec other than as a member of the board of directors it is clear that he, in his capacity with Penntech, was the moving force behind Kennebec. Leslie followed the affairs of Kenne- bec "very closely" and actively engaged in its oper- ations. He initiated the idea of using sludge in Kenne- bec's papermaking process and insisted that the idea be put into effect. He allowed or disapproved capital ex- penditures. On November 19, 1976, he convened depart- ment heads and union representatives in a group and warned them that production must increase or the mill would not be "viable for continued operation," and that "Kennebec . . . was not going to drag Penntech with it." (See supra.) Leslie participated in discussions which "involved af- fairs having to do with personnel relations at Kennebec River Pulp and Paper Co." Ford and McLeod were present in these discussions. One of these meetings, ac- cording to Ford, concerned "developing means of im- proving production in the mill." Finally, Leslie cut off Kennebec's funding and closed the mill. Charles W. Anderson, who had been Kennebec's "marketing manager," was contacted by Penntech per- sonnel prior to the stock acquisition. Jack Dodge, vice president of marketing sales of Penntech, invited Ander- son to Penntech's New York office "to pass on to the Penntech sales force the pertinent details about Kenne- bec from a sales standpoint" and "to instruct or educate . . .the Penntech salesmen in marketing and selling of ground wood papers." In January 1977, Dodge "made it very clear" to Anderson that if Penntech "purchased" the Kennebec mill Anderson would be hired. Anderson also visited the Johnsonburg mill with Dill Paiste, the production manager of Kennebec, when the mill closed and discussed scheduling mechanics of pro- duction at Kennebec with Penntech personnel. Anderson also met with Nadeau during which meeting the Kenne- bec labor agreement was reviewed line by line. Com- ments were made by Penntech representatives such as "... we can live with this or we can't live with that." Anderson testified that, when his employment ceased with Kennebec mill in March 1977, after the mill's clo- sure his settlement check was drawn on T. P. Property. Kenneth Smith was employed by Kennebec mill in charge of production scheduling before the 1975 shut- down. Smith and Anderson, about the time of the Ken- nebec stock acquisition, traveled to Johnsonburg mill and met with Dodge and Jim Nestlerod, Penntech's market- ing manager. Dodge offered Smith employment similar to that which he had performed for Kennebec before the mill was closed in 1975. Smith explained: Jack Dodge had made up an extensive booklet on what the chain of command would be. I was at the bottom. I was the customer service man at Kenne- bec in Madison. Louis [Wolf] was the customer service manager for Kennebec and Johnsonburg. Jim Nesselroll [sic] was the marketing manager who was my boss. And then of course Jim answered to Jack Dodge who was the vice president for market- ing. Also on that plan it told how the orders would be made up. Louis had-took all the orders at John- sonburg. The orders were typed and sent up to me, and it was up to me to make distribution, figure trims, keep track of production and shipping fig- ures, and make sure those were sent out by teletype to Johnsonburg. Smith received his orders from Johnsonburg through Louis Wolf. Each morning Smith gave Wolf "a report of production and shipment." Wolf was the customer ser- viceman at Penntech's Johnsonburg plant. 280 PENNTECH PAPERS, INC., ET AL. Smith spoke to Wolf every morning, giving him a report of production and equipment. Smith and Wolf maintained identical running schedule boards so that pro- duction could be coordinated over the telephone. Final authority for scheduling matters was vested in Penntech personnel in Johnsonburg. Elmer C. Bragg, at the time of the acquisition, was a purchasing agent of Kennebec. He was introduced by Nadeau to Bill Detwiler, purchasing director of Penn- tech, as his boss. Bragg took orders from Detwiler who appeared at the Madison mill every other week for 3 or 4 days. Purchase orders were "okayed" by Penntech. Pur- chase orders carried printed thereon "Ship and Invoice to Penntech Papers, Inc. c/o Kennebec River Pulp and Paper Company, Madison, Maine." Penntech through its advertisements offered "Penntech's Pennbrite Board" and "Kennebec's DynaBond" bond papers. The contact was C. J. Stone, business papers manager, Penntech Papers, Inc., New York, New York. Supervisory and rank-and-file employees from the maintenance department at Penntech's Johnsonburg mill were utilized in Kennebec maintenance and engineering work both after the start of Kennebec mill in 1977 and thereafter while the mill was in operation. Computations for the wages and salaries for the hourly bargaining unit employees were made by the main com- puter in Johnsonburg based on information from the timecards punched into the computer by Kennebec per- sonnel. Continuation sheets were prepared by the main computer in Johnsonburg. Kennebec's W-2 forms were mailed to employees in Penntech Papers, Inc., envelopes from Johnsonburg. The collective-bargaining agreement effective by its terms from November 1, 1976, to June 30, 1977, which was in effect when the Kennebec mill was closed was unacceptable to Penntech. Negotiations for modifications were conducted between Martin and McLeod and repre- sentatives of the Unions. Through the efforts of Martin, who told union negotiators that he was negotiating for Penntech,' 9 the labor agreement was modified to the liking of Penntech. The Unions accepted the modifica- tions because Martin asserted that Penntech would not take over the operations of Kennebec mill unless they ac- cepted the proposed modifications.20 The modified contract was executed on March 1, 1976. After the acquisition on March 3, 1976, Martin was replaced as president and manager of Kennebec by Allen J. Nadeau, a vice president of Penntech. While Nadeau's name appeared typewritten on the contract he did not sign the contract until later.2a In or about 3 weeks Ken- nebec mill commenced operations under the conditions of employment set by Penntech in the modified contract executed March 1, 1976. 19 During the negotiating sessions Martin stated that "Penntech was in a hotel room some place and he was more or less going back and forth with them to decide on this agreement." 0O Martin was quoted as saying "that this is an agreement that Penn- tech wants in order to start up the paper mill again. If we don't accept it they would not further negotiate the sale of the State of Maine. MGA." 21 Upon inquiry by union representatives, they were told that Nadeau was a vice president of Penntech. In the letter dated July 29, 1977, from Provident Life and Accident Insurance Company to Richard J. McQuarrie it was stated, "Ms. Georgie Penrose, the Treasurer of T. P. Property Corporation and T. P. Prop- erty has agreed to extend the conversion period [for life insurance for Kennebec employees] to August 20, 1977." (G.C. Exh. 8.) Manager of Industrial Relations McLeod in a letter dated February 17, 1977, used the words "before" Penn- tech purchased Kennebec. (G.C. Exh. 9.) The Home Insurance Companies on a check dated Oc- tober 6, 1977, to Francis J. Goodwin listed the insured as "Penntech Paper Company (Kennebec River Pulp and Paper Co.)." (G.C. Exh. 13.) The same was true on a check to Leo P. Veilleux dated September 23, 1977. A letter directed to retirees dated April 4, 1976, from William A. Henry, controller, used the language, "Ken- nebec has been purchased by Penntech Papers, and paper production was resumed on March 27." (G.C. Exh. 15.) In a letter dated March 30, 1977. addressed to George W. Lambertson, International Representative, United Pa- perworkers, Manager of Industrial Relations, McLeod used language, "[W]e cannot see any possibility of Penn- tech resuming operation." In the meetings between St. Ledger and union representatives after the mill's closure on March 29, 1977 (see infra), St. Ledger indicated that he was in the employ of and was representing Penntech. According to Ford, Penntech was "financing the on going operation at Kennebec via advances." Penntech did all of Kennebec's purchasing and paid the suppliers directly when the credit terms were due. Penntech billed Kennebec for such purchases at "the time Kennebec ac- tually used the equipment itself or material or supply." The changes were made at cost. According to Ford, "all of the customers for paper manufactured at Kennebec Pulp and Paper Company were Penntech customers and were billed by Penntech while Kennebec River Pulp and Paper Company had only one customer, namely Penntech Papers . . . the sales flow went through T. P. Property as the interven- ing subsidiary for the reason I explained earlier. But it was passed on up to Penntech." Penntech allowed Ken- nebec immediate credit for products shipped. Penntech carried the accounts receivable and sold the products. Penntech covered Kennebec's losses by general advance. Picard, who was employed as Kennebec's manager, re- mained on the Penntech payroll in order to avail himself of certain benefits. Picard's salary and benefits were charged to Kennebec. St. Ledger was also carried on the Penntech payroll; his salary was charged to Kennebec. Ford and Weinroth were on the Penntech payroll, but the work they performed for Kennebec was charged to Kennebec. Apparently the work Leslie performed for Kennebec was not charged to Kennebec. Ford testified that Leslie had the authority to discharge him and while working for Kennebec he considered Leslie his "boss." In the case of Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO, et al. v, Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court in af- firming a "single employer" holding said: 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The controlling criteria, set out and elaborated in Board [D]ecisions, are interrelation of operations, common management, centralized control of labor relations and common ownership. In reviewing the Supreme Court's decision and other authorities, the United States Court of Appeals for the District of Columbia said in Local No. 627, International Union of Operating Engineers, AFL-CIO v. N.L.R.B., 518 F.2d 1040, 1045 (1975), affd. 425 U.S. 80 (1976): From the foregoing, we conclude that "single employer" status, for purposes of the National Labor Relations Act, depends upon all the circum- stances of the case, that not all of the "controlling criteria" specified by the Supreme Court need be present .... In N.L.R.B. v. Big Bear Supermarkets #3, 640 F.2d 924, 930 (9th Cir. 1980), it was stated along the same line: The presence of all four criteria [interrelation of op- erations, common managemrent, centralized control of labor relations, and common ownership] of the single-employer test is not necessary to a finding of single-employer status; the ultimate question is whether there is an absence of an arm's length rela- tionship between the business entities in question. 22 While the facts above detailed satisfy the criteria for a "single employer," a review of Leslie's activities provide the clincher. Leslie was not an officer of Kennebec; thus, he could derive no power or authority from such source. His duties as a director of Kennebec were "strictly nominal" and obviously could not be exercised except in conjunc- tion with other directors. Thus, Leslie derived no power or authority from such office to personally administer Kennebec's affairs as if he were the chief operating offi- cer. Nor is there any credible evidence that any action was ever taken by the board of directors of Kennebec giving Leslie the powers he exercised in connection with Kennebec's affairs. The board did not even approve or confirm Kennebec mill's closure. Nevertheless, Leslie ex- ercised plenary power and authority over the affairs and operations of Kennebec. St. Ledger, the president, and Ford, the treasurer and secretary of Kennebec, considered Leslie their boss as pertained to their duties for Kennebec. Leslie decided on what capital expenditures could he made by Kennebec and determined manufacturing procedures to be fol- 22 The Circuit Court of Appeals for the Ninth Circuit has also said in N.L.R.B. v. Don Burgess Construction Corporation, d/hba Burgess Con- struction, 596 F.2d 378, 384 (1979): However, no one of the factors is controlling, NL.R.B. v. Welcome- American Fertilizer Co.. 443 F.2d 19, 21 (9th Cir. 1971), nor need all criteria be present. Single employer status ultimately depends on "all the circumstances of the case" and is characterized as an absence of an "arm's length relationship found among unintegrated companies." Local 627. International Union of Operating Engineers v. NL.R.B., 171 U.S.App D.C. 102, 107-108, 518 F 2d 1040, 1045-46 (1975), affd on this issue sub nom. South Prairie Construction Co. v. Local 627. In- ternational Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). lowed, such as the use of sludge. He visited the mill and participated in meetings in which labor relations were discussed. He caused representatives of the Unions to be assembled, whom he warned to shape up or else. Finally. it was his decision which closed the mill. The power and authority which he exercised did not emanate from Ken- nebec. It was derived from his office as president and chairman of the board of Penntech. His intervention and administration of the affairs of Kennebec were the acts of Penntech through its agent, Leslie. Leslie provided common management and, together with the labor agree- ment insisted on by Penntech, supplied a centralized con- trol of labor relations. Common ownership and interrela- tion of operations are also apparent. The criteria being satisfied, accordingly it is found that the Respondents are a single employer or enterprise. See Royal Typewriter Company, etc., 209 NLRB 1006 (1974). VI. WHETHER THE UNITED STAlTES COURT OF APPEAIS FINDING ON THE SINGI.E-I.MPI.OYER ISSUE IS BINDING IN THIS ACTION The Respondents claim that the single-employer issue has been litigated and finally decided by the United States District Court for the District of Maine and the United States Court of Appeals for the First Circuit in an action brought by the Unions against the Respondent pursuant to the Labor Management Relations Act of 1947, as amended. The action in the district court was to compel Penntech and T. P. Property to enter into arbi- tration with the Unions concerning certain provisions of a collective-bargaining agreements : between the Unions and Kennebec. The collective-bargaining agreement was the same as offered in this case, bearing the execution date of March 1, 1976. The court of appeals defined the issue involved as "whether parent corporations should be bound to the collective bargaining agreements of their subsidiaries." (583 F.2d 33, 35). The district court drew its findings of fact from stipu- lated facts also a part of the instant record. The district court found (which findings are the same as in the in- stant case): There can be no question but that Penntech, as sole stockholder of Kennebec, controlled it com- pletely. The collective bargaining agreement was changed at Penntech's request. Penntech participat- ed in the negotiations to write down Kennebec's debt. Penntech's attorneys were used by both cor- porations. The management of all three companies, Penntech, T. P. Property, and Kennebec. were so intertwined that the officers and directors of each would scarcely know when they were acting for 23 The charge filed by the Machinists on April 11, 1977, charges that Kennebec refused to bargain collectively with respect to "wages, sever- ance pay, vacation pay, pension payments and sesting as well as other contractual benefits." The issue which ¥was submitted to arbitration was "Failure of employer to pay its employees the wages, vacation pay. pen- sions, insurance and other entitlements due under the terms of the plan and termination of employment of the affected employees." 282 PENNTECH PAPERS, INC., ET AL. one corporation or the other. [439 F.Supp. at 621.]24 Nevertheless, the district court ruled that this integration was insufficient to supply an affirmative answer to the question: "Was Kennebec sufficiently integrated to satis- fy the traditional test for determining when corporate en- tities must be disregarded." On the same set of facts the court of appeals found no basis to consider Penntech and Kennebec to be other than separate legal entities. Thus, the court of appeals failed to find that Penntech and Kennebec constituted a single corporation. The conclu- sion follows that the court of appeals also ruled that Penntech and Kennebec did not constitute a single em- ployer. The General Counsel in the instant case has raised the question (see discussion supra) whether Respondents Kennebec, Penntech, and T. P Property do constitute a single employer. The answer to this question must be in the affirmative in order for Penntech and T. P. Property to be found guilty of the unfair labor practices alleged. Thus, for the General Counsel to prevail against T. P. Property and Pennicch the ultimate finding must be that Kennebec and Penittech constitute a single employer. Since this claim was rejected on the same set of facts by the court of appeals, consequently it follows that, if the Board is bound by re¥ judicata or collateral cstoppel as claimed by the Respondents, T. P. Property and Penn- tech must be dismissed frn,) this action. As pointed out by the Respondents a voluntary dis- missal with prejudice effected following the decision of the court of appeals "constitutes an adjudication of the merits as fully and completely as if the order had been entered after trial." Hloward Jamison v. Miracle Mile Rambler. Inc., 536 F.2d 560, 564 (3d Cir. 1976). In Lawlor et al., rading as Independent Poster Exchange v. National Screen Service Co'p.. et al., 349 U.S. 322, 327 (1955), the Supreme Court said, "It is of course true that the . . . judgment dismissing the previous suit 'with prej- udice' bars a later suit on the same cause of action." Fur- thermore, in the same case the Court comments on the distinction between the doctrines of res judicata and col- lateral estoppel. Speaks the Court (id. at 326): Thus, under the doctrine of res judicata, a judgment "on the merits" in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of col- lateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. It is the issue as to whether Penntech, T. P. Property, and Kennebec constitute a single employer which the Respondents maintained was litigated in the district court case and which the Charging Parties and the General Counsel seek to relitigate here. That issue obviously was litigated in the district court. 24 The facts appear to meet the criteria for a single employer as set forth by the Supreme Court In Radio & lelevision Broadcast Technicians Local Lnion 1264 .Br,adoast Servire of Mobile, supra. The Respondents rely on N.L.R.B. v. Walter E. Heyman, d/b/a Stanwood Thriftmart, 541 F.2d 796 (9th Cir. 1976). In this case the Board sought enforcement of an order based on a finding that Thrifimart violated Sec- tion 8(a)(5) of the Act. The issue before the court of ap- peals was what effect the Board must give to a United States district court judgment which is antithetical to the Board's subsequent determination regarding the validity of a collective-bargaining agreement. As stated by the court, "The continued existence of a contract previously rescinded by the court was a premise of the Board's find- ings." (Id. at 797.) The question posed by the court was "What consideration must the Board give the judgment of rescission."25 The court further commented: In finding unfair [labor] practices, the Board de- clared that a contract, lawful on its face, raises a presumption that the contracting Union was the ma- jority representative at the time the contract was executed. [Id. at 798.] In establishing a duty on behalf of T. P. Property and Penntech to bargain in respect to the effects of the clos- ing of Kennehec mill the General Counsel must likewise rely for the presumption of majority status on the con- tract between Kennebec and the Unions for no other proof of majority status was offered. The General Coun- sel alleges in his complaint: "Kennebec and the Unions executed final collective bargaining agreements on March 1, 1976." The Respondents admitted that Kenne- bec and the Unions have been parties to successive col- lective-hargaining agreements since 1970, the most recent one having been executed on March 1, 1976. The Re- spondents do not admit that T. P. Property or Penntech is bound by the contracts Obviously a finding of majority status must be estab- lished before the duty to bargain in respect to the effects of closing Kennebec mill will attach. As in the Heyman case, supra, if there be no contract, the duty to bargain cannot be established. As to Kennebec there is no diffi- culty in charging it with the duty to bargain for Kenne- bec executed the contract. On the other hand Penntech and T. P. Property were not signatories to the contract and as found by the district court were discrete corpora- tions and not bound by the contract Thus, as in Heyman, there are no grounds for holding them to a duty to bar- gain with the Unions for a presumption of majority did not obtain in the absence of a valid and subsisting con- tract binding them. As to Penntech and T. P. Property, there was no contract. Accordingly, if Heyman is ap- plied, T. P. Property and Penntech must be dismissed from this action. On the other side of the coin it has been held that cer- tain Agency action is binding on the courts. In United States v. Utah Construction & Mining Co., 384 U.S. 394, 422 (1966). the Court said: 2s The Board in Sierra Development Company dh/bha Club Cal- Neva, 231 NLRB 22, 23, fn. 4 (1977), cited the issue as: "The issue was what effect the district court's rescission of a contract has on the Board's find- ing a presumption of majority representation based on that contract." 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When an administrative agency is acting in a judi- cial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply resjudicata to enforce repose. In Sylvester Tipler v. E. I. DuPont de Nemours and Co., Inc., 443 F.2d 125, 128 (6th Cir. 1971), the court said, "It is now accepted that both res judicata and collateral es- toppel can be applicable to decisions of administrative agencies acting in judicial capacity." In Painters District Council No. 38, Brotherhood of Painters, Decorators and Paperhangers of America, AFL- CIO v. Edgewood Contracting Company, 416 F.2d 1081, 1084 (5th Cir. 1969), the court opined: The policy considerations which underlie resjudi- cata-finality to litigation, prevention of needless litigation, avoidance of unnecessary burdens of time and expense-are as relevant to the administrative process as to the judicial. Old Dutch Farms, Inc. v. Milk Drivers and Dairy Employees Local Union No. 584, 281 F.Supp. 971, 974 (E.D.N.Y. 1968). Nor is there any difference in the underlying principles be- cause the administrative decision is sought to be given effect in a judicial proceeding. In this case, the court found that the National Labor Relations Board's determination that a local union was guilty of secondary boycott was resjudicata on the ques- tion of liability in a subsequent damage suit brought under Section 303 of the Labor Management Relations Act, as amended. Cf. United Brick & Clay Workers of America et al. v. Deena Artware, Inc., 198 F.2d 637 (6th Cir. 1952). The foregoing cases, although they may point the di- rection, do not answer whether a determination by a court of competent jurisdiction may constitute res judi- cata in a proceeding before the National Labor Relations Board. This is the question which is before me. Although Heyman would seem to impose an affirmative answer and command the dismissal of Penntech and T.P. Prop- erty from these proceedings, I am bound by the Board's ruling in Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852 (1975), since such case seems to be the applicable law to which I must adhere. Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772-773 (1957). ". .. [No] inference can be drawn that the Board has ac- cepted an adverse court decision from the mere failure to petition for certiorari in the case." Novak Logging Com- pany, 119 NLRB 1573, 1575, 1576 (1958). Thus, the Re- spondents' arguments are misdirected to me and must be overruled. vii. THE RESPONDENTS' CLAIM THAT SECTION 10(B) OF THE ACT BARS CHARGING PARTIES FROM SEEKING ANY REMEDY AGAINST PENNTECH AND T. P. PROPERTY The Respondents contend that Section 10(b) of the Act is applicable because Penntech and T. P. Property were not named in or served with the amended charge until November 7, 1977, 7 months after the alleged refus- al to bargain. This argument is without merit since it has been found that Kennebec, T. P. Property, and Penntech constitute a single employer. Key Coal Company, 240 NLRB 1013 (1979); Royal Typewriter Company, etc. v. N.L.R.B., 533 F.2d 1030, 1041-44. CONCLUSIONS OF LAW 1. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised here. 2. The Respondents constitute a single employer within the meaning of the Act. 3. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 4. (a) All boss machine tenders, machine tenders, back tenders, third hand, fourth hand, fifth hand and beater engineers employed by Respondents at the Madison, Maine, location excluding guards and supervisors as de- fined in the Act, constitute a unit appropriate for pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. (b) All head firemen and waste firemen and oilers em- ployed by the Respondents at the Madison, Maine, loca- tion excluding guards and supervisors as defined in the Act, constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. (c) All head machinists, millwright and electricians and all journeymen machinists, millwright, piper, mason, blacksmith, painter, electrician welder, tinsmith, roll grinder, knife grinder, bolt men and helpers employed by the Respondents at their Madison, Maine, location ex- cluding guards and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.26 5. At all times material herein the labor organizations have been and now are the exclusive representatives of all employees in the aforesaid appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By failing and refusing to bargain collectively in good faith with the labor organizations in respect to the closing of the Kennebec mill on March 29, 1977, and as to the effects of said closedown, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondents have en- gaged in certain unfair labor practices, it is recommend- ed that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of 26 The Respondents have admitted that the foregoing units are appro- priate for the purpose of collective bargaining, 284 PENNTECH PAPERS, INC., ET AL. the Act. The remedy pronounced by the Board in the case of The Ohio Brake & Clutch Corporation, 244 NLRB 35 (1979), is adopted as the appropriate remedy in this case. Accordingly, to effectuate the purposes of the Act, I will provide a bargaining order with a backpay require- ment designed to make whole the employees for losses suffered as a result of the violation, in the manner estab- lished by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977).27 Thus, the Respondents shall pay their dis- placed employees backpay at the rate of their normal wages when last in the Respondents' employ from on or about March 29, 1977, the date that the Respondents closed the Madison, Maine, facility and terminated the employees until the occurrence of the earliest of the fol- lowing conditions: (1) the date that the Respondents bar- gain to agreement with the Unions on those subjects per- taining to the decision to close the Madison facility and the effects of the closing on unit employees; (2) the par- ties reach a bona fide impasse in bargaining; (3) the fail- ure of the Unions to request bargaining within 5 days of issuance of this Decision and Order or to commence ne- gotiations within 5 days of the Respondents' notice of 27 See, generally, his Plumbing & Heaing Co., 138 NLRB 716 (1962). their desire to bargain with the Union; or (4) the subs- quent failure of the Unions to bargain in good faith. Additionally, the Charging Parties request a make- whole remedy which compensates employees for losses involving severance pay, vacation pay, insurance benefits and premiums, and pensions, all such losses resulting from the Respondents' failure and refusal to honor the labor agreement. The uncontroverted evidence in this case establishes that the Respondents by refusing to abide by the terms of the labor agreement have altered its terms in violation of Section 8(d) of the Act. It is well established that "[a]n employer cannot alter mandatory contractual terms during the effective period of the agreement without the consent of the union." Los Ange- les Marine Hardware Co. v. N.L.R.B., 602 F.2d 1302, 1307 (9th Cir. 1979). Such a repudiation of the contract as here amounts to a violation of Sections 8(d), 8(a)(1), and 8(a)(5) of the Act. Ibid. Thus, it is recommended that the Respondents, as a part of the remedy herein, and because of their flagrant disregard of their employees' rights protected by the Act and their unwarranted refus- al to conform with the plain commands of the Act, be required to comply with those provisions of the labor agreement which concern severance pay, vacation pay, insurance benefits and premiums, and pensions. See, also, The Nestle Company, Inc., 251 NLRB 1023 (1980). [Recommended Order omitted from publication.] 285