Century Printing Co.

CENTURY PRINTING COMPANY Lewis Canter d/b/a Century Printing Company; and/ or Stanford G. Davis, as Receiver-Trustee for Lewis Canter d/b/a Century Printing Company; and/or John Wilson d/b/a Century Printing Company; and/or Century Printing, Inc. and Graphic Arts In- ternational Union, Local 24-L, AFL-CIO-CLC. Case 6-CA-9869 set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. IT IS FURTHER ORDERED that the complaint allega- tions not specifically found herein be, and they hereby are, dismissed. APPENDIX May 30, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On June 16, 1978, Administrative Law Judge Rob- ert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, Respondent Stanford G. Davis, as Receiver-Trustee for Lewis Canter d/b/a Century Printing Company, and Respondent John Wilson d/ b/a Century Printing Company, and/or Century Printing, Inc., filed exceptions with supporting briefs. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondents, Lewis Canter d/b/a Century Printing Company; and/or Stanford G. Da- vis, as Receiver-Trustee for Lewis Canter d/b/a Cen- tury Printing Company; and/or John Wilson d/b/a Century Printing Company; and/or Century Print- ing, Inc., Pittsburgh, Pennsylvania, their officers, agents, successors, and assigns, shall take the action i The General Counsel and the Charging Party have expected to certain credibuiaty 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 credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Inasmuch as we agree with the Administrative Law Judge's finding that Respondent Corporation is an alter ego to Respondent Company we deem it unnecessary to pass on his further finding that the corporation is also the successor of the Company. NOTICE To EMPLOYEES POSTED BY ORDER OF HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides were given the op- portunity to participate, it has been found that we have violated the National Labor Relations Act, as amended, in certain respects. To correct and remedy these violations, we have been directed to take certain action and to post this notice. WE WILL NOT refuse to recognize and bargain with Graphic Arts International Union, Local 24-L, AFL-CIO CLC, as the exclusive bargain- ing representative of the employees in the follow- ing unit found appropriate for purposes of col- lective bargaining: All lithographic employees, including all pressmen, feeders, stripper platemen, and cameramen employed by Lewis Canter d/b/a Century Printing Company: and/or Stanford G. Davis, as Receiver-Trustee for Lewis Can- ter d/b/a Century Printing Company; and/or John Wilson d/b/a Century Printing Com- pany; and/or Century Printing, Inc., at our fa- cility in Pittsburgh, Pennsylvania, excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, and all other employees. WE WILL NOT make changes in the terms and conditions of employment of the employees in the above-described unit without first consulting and bargaining with the above-named Union concerning such changes. WE WILL NOT deal individually with unit em- ployees concerning their terms and conditions of employment in disregard of their Union. WE WILL NOT sell or otherwise transfer the as- sets of our business without first bargaining with the above-named Union about the effects of such action. WE WILL NOT lay off and replace unit employ- ees without first bargaining with the above- named Union with respect to such action. WE WILL NOT discourage membership in the above-named Union, or any other labor organi- 242 NLRB No. 108 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation, by layoffs or by otherwise discriminating against employees because of their union mem- bership or activities. WE WILL NOT refuse to recall laid off employ- ees and hire other employees in order to get rid of the above-named Union. WE WII.. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed under Section 7 of the Act. WE WILL recognize and, upon request, bargain in good faith with the aforesaid Union as the exclusive representative of our employees in the above-described bargaining unit and embody in a written, signed agreement any understanding reached. WE WILL offer Donald Vasbinder, Herman Baumgarten, Cleon Richardson, and Charles Diederich immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, terminating, if nec- essary, employees later assigned to replace them. and WE WILI. make them and Frank Lugar whole, with interest, for any loss of earnings or other benefits they may have suffered as a result of their discriminatory layoffs. WE WILL make whole the above-named indi- viduals for any medical and hospital expenses incurred and for other moneys which would have been payable under the sickness, accident, and disability funds in the period from December 20, 1976, to February 23, 1977, and WE WILL make such payments to the pension and educational and training funds as would have been made in that period had we not disregarded the collec- tive-bargaining agreement. LEWIS CANTER D/B/A CENTURY PRINTING COMPANY STANFORD G. DAVIS, AS RECEIVER-TRUSTEE FOR LEWIS CANTER D/B/A CENTURY PRINT- ING COMPANY JOHN WILSON D/B/A CENTURY PRINTING COMPANY CENTURY PRINTING, INC. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in Pittsburgh, Pennsylvania, on Sep- tember 6 and 8, 1977, pursuant to charges filed by Graphics Arts International Union, Local 24-L, AFL-CIO-CLC, herein the Union,' and a complaint issued on July 25, 1977. The complaint alleges that Lewis Canter, d/b/a Century Printing Company, herein Respondent Company; and/or its asserted alter egos or successors, Stanford G. Davis, as the Receiver-Trustee in bankruptcy of Respondent Com- pany; John Wilson. d/b/a Century Printing Company; and/or Century Printing, Inc., herein Respondent Corpora- tion, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Respondents in answer- ing the complaint denied the commission of unfair labor practices. ISSU ES I. Whether Respondents are alter egos and/or whether other Respondents are successors to Respondent Company. 2. Whether Respondent Company violated Section 8(a)(3) of the Act by laying off employees Cleon Richard- son, Donald Vasbinder, Herman Baumgarten, Charles Die- derich, and Frank Lugar from their employment at Re- spondent Company, and thereafter refusing to recall or rehire them because of their membership in the Union while the plant was under the consecutive administrations of the Receiver-Trustee and Respondent Corporation, and whether Respondents, having subsequently recalled Lugar, later constructively terminated him because of his contin- ued membership in the Union. 3. Whether Respondents violated Section 8(a)(5) of the Act by refusing to bargain with the Union as the recognized representative of its employees in an appropriate unit em- bodied in the existing collective-bargaining agreement be- tween Respondent Company and the Union2 and by at- tempting to escape from this bargaining relationship by ultimately transferring the employees and operation to Re- spondent Corporation, a nonunion company. 4. Whether Respondents also violated Section 8(a)(5) of the Act by the failure and refusal of Respondent Corpora- tion to apply the terms of the above collective-bargaining agreement to its unit employees both before and after repu- diation of the contract by the Receiver-Trustee in bank- ruptcy. All parties were given full opportunity to participate, produce relevant evidence, examine and cross-examine wit- nesses, and file briefs. Briefs, which have been carefully considered, were filed by the General Counsel, the Union, and Respondents. Upon the entire record of the case' and from my observa- tion of the witnesses and their demeanor, I now make the following: 'The original and first amended charges were filed on January 14 and June 28, 1977, respectively. The appropriate unit as actually employed by Respondent Company was: All lithographic employees, including all pressmen, feeders, stripper platemen and cameramen employed by the Respondent Company at its Pittsburgh, Pennsylvania, facility, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act, and all other employees. 3 The General Counsel's unopposed post-hearing motion to correct page 33, line 16 of the transcnpt to read, "I have not consulted," is hereby granted. 660 CENTURY PRINTING COMPANY FINDINGS OF FA(TI 1. TilE BtSINFSS OF RSPONI)IN S Lewis Canter. d/b/a Century Printing Company, a sole proprietorship with its only place of business in Pittsburgh. Pennsylvania, was engaged in the nonretail printing busi- ness until on or about January 7, 1977, when voluntary bankruptcy proceedings were instituted by Respondent Company in the United States District Court for the West- ern District of Pennsylvania. On or about January 10, 1977. Stanford G. Davis. Esq.. herein the Receiver-Trustee, was appointed Receiver of Re- spondent Company's estate by the district court and, at the first meeting of creditors on or about February 23, 1977. was named trustee, with continuing authority to operate Respondent Company's business. On about February 18, 1977, John Wilson, an individual. submitted an offer to purchase the assets of Respondent Company, which offer was approved by the court on March 16, 1977. On about April 1, 1977, Wilson and Ruth Canter, wife of Lewis Canter, incorporated Respondent Corporation in the Commonwealth of Pennsylvania. which thereafter has op- erated the business enterprise. During the 12-month period preceding the issuance of the complaint and notice of hearing herein Respondent Company performed services valued in excess of $50,000 for persons who were themselves engaged in interstate com- merce. During the 12-month period preceding the issuance of the complaint herein. Respondent Company and Respon- dent Corporation shipped goods and materials valued in excess of $50,000 from their Pittsburgh. Pennsylvania. facil- ity to points directly outside the Commonwealth of Penn- sylvania. During the same 12-month period. Respondents, Company and Corporation, received goods and materials valued in excess of $50,000 from points directly outside the Commonwealth of Pennsylvania for use at their Pittsburgh. Pennsylvania, facility. The complaint alleges, Respondents admit, and I find that Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOI.VED The Union is a labor organization within the meaning of Section 2(5) of the Act. tll. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The alleged status of the Respondents as alter egos and successors to the Respondent Company Before the start of 1977, Respondent Company, engaged since 1949 as an unincorporated commercial printer, was solely owned and operated by Lewis Canter. In mid-De- cember 1976, and for some years prior thereto. Respondent Company was located in a building on Brushton Avenue in Pittsburgh's "inner city." This building was owned by Can- ter and his wife. Ruth. as tenants by the entirety. Ruth Canter was also a salaried employee of the C'ompany who operated the typesetting computers. However. she was not an owner and exercised no managerial role. Respondent Company was party to a collective-bargain- ing agreement with the Union for its lithographic employ- ees. who, in mid-December 1976. numbered five. The cur- rent contract with the Union. effective May . 1975, to April 30. 1978. provided for union security and dues check- off, and set forth a minimum weekl' wage scale for the various work classifications covered therein. The contract also specified the number of unit employees required to man the various presses and provided for contributions by the employer on behalf of employees, to various funds in- cluding the Lithographic Union Pittshurgh Employers Sickness and Accident Fund: Local 24-L Graphic Arts In- ternational Union and Union Employers Disability and Supplemental Pension Plan: and Local 24-L, Graphic Arts International Union and Union Employers Educational and Training Fund.4 Respondent Company, in the first half of December 1976. also employed approximately 10 em- ployees who worked outside the bargaining unit in various capacities including Esther W. Gottesman, the bookkeeper who also did purchasing, and others who were engaged in production-related work. such as typesetting. bindery. pasteup, and camera preparation. Equipment owned by Respondent Company in early De- cember 1976 included one 2-color and two single color presses, one platemaker and camera, four folders, two com- puters, one headline computer, and a machine used to set headlines. It is undisputed that until mid-December 1976. Respon- dent Company recognized and bargained with the Union and, generally. applied the terms of the collective-bargain- ing agreement to its unit employees. Respondent Company, however, for some time, had been experiencing financial difficulties and, on July 28. 1975., a stipulated judgment was entered in the above district court' against Respondent Company on behalf of the Union and the three above- named funds on the ground that Respondent Company had been delinquent in its remittance of vacation pay and union dues to the Union and was substantially in arrears in its contributions to the respective funds. The parties concur- rently agreed. however. that execution in enforcement of these judgments would not be made as long as Respondent Company followed a prescribed payment schedule. However, Respondent Company was not able to meet its payment obligations as specified in the stipulation. Accord- ingly, on December 8. 1976, averment of default was filed by the Union and the three funds, and a first writ of execu- tion was issued, which resulted only in the attachment on about December 14. 1976, of Respondent's Company bank account. Canter, however, remained in possession of and continued to operate the business. 'This indusirywide collective-bargaining agreement was actually between the Union and tInion Employers Printing Industry Association of Western PennsyIvania. Inc. the Employer bargaining representative. On June 20. 1975. Lewis Canter and Theodore I Meers. president of the Union, signed a memorandum b which Respondent Company became hound bN the in- dustrywide contract and subscribed to certain other terms and conditions of employ ment ' Cisil Action 75 364 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 5, 1977, the same plantiffs issued a second writ of execution, as a result of which the marshal, on Janu- ary 7, padlocked Respondent Company's building, prevent- ing continuation of the business. On January 10, Canter filed a voluntary petition in bank- ruptcy and, on that date, the court named Stanford G. Da- vis as receiver of Respondent Company's estate.' Respon- dent Company reopened for business under Davis. as receiver, on January 12, 1977, with the same personnel, ex- cept that four of the five union employees, all of whom had been laid off on or before December 18, 1976, were not recalled to work.7 Under the receivership, Lewis and Ruth Canter resumed their former roles with the Company, with Lewis Canter managing all aspects of the business for the receiver. The business continued as before, serving the same customers and using the same equipment and essentially the same suppliers. This arrangement remained unchanged after the appointment as Davis as trustee in bankruptcy on February 23 and continued until March 16, 1977, when the court approved the purchase of the estate by John W. Wil- son, a partner in a local public relations firm. Approxi- mately 2 years before, Wilson's firm had offered to pur- chase Respondent Company from Canter, but had backed off for financial reasons and, as Wilson testified, because of the existing union contract. During the Christmas holiday period of 1976, while Wil- son was patronizing Respondent's Company. Canter told Wilson that he knew there was going to be a sale of the business and that if Wilson ever wanted to purchase it, this would be the time. Canter promised Wilson any assistance that he might require and told Wilson of Respondent Com- pany's financial situation including its attached bank ac- count. Wilson soon expressed an interest. Thereafter. Wil- son and Canter met several times during which the sale of the business and Wilson's role as a prospective purchaser were discussed. Canter testified that during these discussions, he told Wil- son that he felt that the latter could acquire the assets, in- ventory, and accounts receivable of the business for $9,500. When Wilson declared that he only had $4,500 at that time, Canter told him that his wife, Ruth Canter, had some money and suggested that they ask her to advance the addi- tional $5,000. Accordingly, Canter and Wilson did confer with Ruth Canter, who agreed to put up $5,000 of her own funds, which sum she gave Wilson on March 12.9 No written agreement was prepared to define the terms under which Ruth Canter delivered the $5,000 to Wilson. If it was a loan, no interest rate or repayment schedule was established. Canter testified that it was understood that his I As noted, on February 23, 1977, Davis also became the trustee of the estate. 7 The circumstances affecting the five union employees, who have been alleged herein as discriminatees, will be considered below in a separate dis- cussion. s Wilson, whose race is material, unlike the Canters, is black. Wilson, who has a college degree in the graphic arts, had worked in that field for several years before coming a member of a public relations firm. Through his firm, Wilson had been a customer of Respondent Company. 'Although the Canters initially testified that the $5,000 was a loan, on closer examination, Ruth Canter later averred that the sum represented an investment rather than a loan, and that it had been decided at the time that a new corporation would be formed to operate the business and that she would be an owner. wite was to be a part of the business and that he would help Wilson to manage it while training Wilson to independently operate the plant. Wilson's bid to purchase the estate of Respondent Company for the price oft'$9,500 was approved by the court on March 16,i' at which time Wilson took possession of the still unincorporated business. During the period of about 2 months. from January 7 to March 16, when Davis was receiver and later trustee, Can- ter, as noted, continued to run the business as before, using his former employees, except that only one laid off unit employee, Frank Lugar, was recalled to operate the single press then being operated." Other nonunion employees were retrained and assigned to perfbrm jobs previously filled by unit employees. On April 1, 1977, the Commonwealth of Pennsylvania approved the charter of Century Printing, Inc., Respondent Corporation, formed to run the business of Respondent Company. Of the 1,000 original shares of stock issued that date, Ruth Canter received 900 shares and Wilson was is- sued 100 shares. The Canters testified that they had made an original attempt to keep control of the Company and Ruth Canter specifically related that she had advanced the $5.000 in an effort to salvage the business for which she and her husband had worked so long and hard, and to protect their investment. Nevertheless, the Canters and Wilson very soon decided that in order to attract more business, it would be necessary for Respondent Corporation to become minority-owned. In this way, the new corporation would be in a position to attract customers, who, in seeking Federal governmental contracts, would have to establish that they did a percent- age of their business with minority-owned firms. To do this, it was necessary that there be minority ownership of at least 50 percent plus one share of the corporate stock. Accord- ingly, on April 4, 1977, Ruth Canter conveyed 401 of her shares to Wilson without payment by Wilson of any addi- tional consideration therefor. Again, except for a notation on the stock certificate transferring the shares to Wilson of an obligation by him to pay a sum on money in return, 2 no additional funds were exchanged, no written agreement was executed, and no oral understanding was reached as to a payment schedule or for a rate of interest. However, Re- spondent Corporation thereafter publicly represented itself as a minority-owned business and, thus, was able to obtain major concerns as customers, in addition to those previ- ously served by Respondent Company.' '° Over the objections of a creditor bank. the court approved a private sale to Wilson. " Lugar. who had been employed by Respondent Company as a pressman assigned to the 2-color press, had been with the Company since 1953 and was the most senior unit employee. Under circumstances which will be dis- cussed below. Lugar's employment at the plant ended on March 18, 1977. 2 The face of the stock certificate giving Wilson the 401 shares bore the following typewritten notation: These shares cannot be transferred except upon payment to Ruth L. Canter of the sum of $51.000 and proof of same given to the transferee. 3 The parties stipulated at the hearing that Respondent Corporation has performed work for 86 customers, 51 of whom were former customers of Respondent Company. Nine of the 10 largest customers of the prior Com- pany are now customers of the Corporation. Two of the largest customers of Respondent Company are presently the two largest customers of Respondent Corporation. Eight of the 10 largest customers of the Corporation were for- merly customers of the Company. 662 CENTURY PRINTING COMPANY Although Ruth Canter owns 49 percent of Respondent Corporation stock, she has remained inactive in the man- agement of the business, continuing her former job of oper- ating the typesetting computers. In so doing, since the for- mation of Respondent Corporation, she has received a weekly pay raise of $25 above what she earlier had received from Respondent Company. Lewis Canter, while on Re- spondent's Corporation's payroll, was compensated at the same rate as his earlier weekly draw from Respondent Company. Lewis Canter and Wilson, in their testimony, agreed that after March 16, when Wilson's purchase bid was approved, Canter, in consultation with Wilson. made most of the ma- jor decisions affecting the operation of the business, based upon his principal experience. Accordingly, Canter testified that after Wilson's takeover, he initially served as manager and salesman and principally decided upon the employee assignments, rates of pay, and how the work previously per- formed by the unit personnel would thereafter be done.' After January 12, when the building was reopened, Canter brought in technicians from the camera manufacturers to train George Kanidis. a nonunit employee, for I month in the use of their product, enabling him to replace the former unit cameraman, Herman Baumgarten. Donald Vasbinder, a former unit employee who had stripped (assembled) nega- tives prior to their reproduction on metallic printing plates, was replaced, in part, by Canter and also by Greg Metecko, who, before mid-December, had worked outside of the unit. By the end of January 1977, Metecko, with the help of Canter's training, was able to do Vasbinder's job indepen- dently. Union member Frank Lugar continued to run the 30-inch press that had been the job of unit pressman Cleon Richardson during the period when the Receiver-Trustee was in charge, but Lugar left Respondent Company's em- ploy about 2 days after the approval of Wilson's purchase bid. Lugar was replaced by Tom Greene, a nonunit bindery employee. Greene's bindery work was thereafter distributed among other bindery employees. During the 2 months of the Receiver-Trusteeship, Canter hired a press helper and a driver. The press helper was terminated in June 1977 by Canter in consultation with Wilson, and the driver volun- tary left Respondent Corporation's employ in July to take another job. In May 1977, as a result of newspaper adver- tisements, pressman Michael Warnock was also hired by Canter. Later in 1977, a third pressman, William Powell, was hired by Wilson. In this manner, the work of the plant was continued. Canter made all the basic decisions at the plant prior to January 7, while the business was under his sole proprietor- ship, and, continued to do so while the Receiver-Trustee was in charge, subject to Davis' approval. From March 16. until about June 1, Canter still had the major voice and, in practice, was more in charge of the business than was Wil- son, ..hile the latter gradually gained in experience and control. From the start, Wilson was involved in the finan- cial matters, and had custody of personnel matters, such as the establishment of vacation and holiday policies, the granting of time off, and disciplinary matters, while Canter was principally engaged in the general operation of the 14 After the plant resumed operations on about January 12, all nonbar- gaining unit employees ultimately were recalled, but, except for Lugar, the union personnel were not plant. the training and assignment of employees. deciding how the presses were to run. Both Canter and Wilson worked in the plant 7 days a week while Canter sought to impart his knowledge of the business. After June 1, the two men continued to work long hours together, but Wilson was basically in charge of the entire business. On August 15. Canter left Respondent Corporation for a job with an out- side concern, and, since, returns to Respondent Corpora- tion's premises on 2 or 3 afternoons a week, as needed. Although Canter had not been compensated by Respon- dent Corporation since mid-August, on occasion when he is in the plant, during Wilson's absence. Canter will answer questions from the production crew and attempt to resolve any difficulties. Bookkeeper Gottesman has continued to purchase sup- plies under Wilson, as she had before January 7. Apart from the foregoing services and assistance to Wil- son in acquiring and managing the business. Canter on June 29, 1977. raised the sum of $500 which he loaned without interest to Respondent Corporation to enable it to meet its payroll. This sum was repaid to Canter about 2 months later. Canter also financially assisted Respondent Corporation by not cashing his last paychecks, issued be- tween July I and August 15. pursuant to an understanding with Wilson that the checks would not be cashed unless there were sufficient funds. These checks were still unre- deemed at the time of the hearing. Respondent Corporation continued to do business at the premises previously occupied by Respondent Company. which, as noted. are owned b the Canters, for which the Corporation paid the same rent as the sole proprietorship. Respondent Corporation uses the same telephone number and printing equipment as did the Company, except that Wilson also has added another 30-inch press and a multilith press. Two principal suppliers have been changed. Wilson testified that although the plant has been run in essentially the same way as before since he has been in charge. producing the same basic products, there has been a swing over to minority customers. While. at the time of the hearing, Respondent Corporation employed only two mi- nority members, it is Wilson's intent, noting the plant's in- ner city location. to gradually make it a source for minority employment. 2. The alleged discriminatory discharges Canter testified that on Friday, December 17, 1976, a payday. he called a meeting of his five union employees. Baumgarten. Lugar, Richardson, Diederich, and Vasbin- der. and announced that while he had work for them and they could work, he had no way to pay them as the Union had attached Respondent Company's bank account.' He asked if they would speak to the Union about releasing the account so that the Company could operate. None of the employees replied to this request.', IS The hank account in the name of Respondent Company. as noted, had been attached about 2 days earlier under the first levy ordered by the Union and the funds. "' Canter, in his tt,timony, explained that the approximately 10 nonunion employees had not been called to this meeting as the smaller number of union employees constituted two-thirds of this payroll costs and as the nonbargaining unit employees were paid from a separate unfrozen bank account jointl\ owned by the Canters. 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Canter related that the unit employees did not appear for work on the next business day, Monday. December 20. and did not thereafter respond to his request that they intercede with the Union with respect to the bank account." Canter related that he did not recall any of the unit employees to work after December 20, except for Lugar, because he was waiting to hear from them as to their success in getting the Union to release the bank account. Richardson, Vasbinder, Baumgarten, and Lugar directly contradicted Canter's account, denying that any such meet- ing had taken place. Richardson testified that although De- cember 17 was his last day on the job, Canter had told him privately 1 or 2 days before that there were no funds left to pay him as they had been tied up and that Friday. Decem- ber 17, would be his last day of work, s Donald Vasbinder, who had been employed as a stripper and platemaker, ' 9 related that he did not work for Respon- dent Company at all on December 17, as he had taken that day off. Accordingly, his last day of work was on December 16, on which date he was paid. However, in the late after- noon of December 18, he received a call at his home from Lewis Canter who told him not to come in as there was no work and his attorney had told him to finish what work there was and to close the plant. Canter said nothing to Vasbinder about when he might come back to work and did not ask him to attempt to have the Union release the Com- pany's bank account. When Vasbinder asked if he should file for unemployment compensation, Canter replied that he should. Vasbinder testified that the check he had received from Canter on December 16 was no good and that 2 weeks later, he returned to the plant to ask Canter to redeem it. After Canter paid Vasbinder the amount due, he declared that he still did not know why the Union would not release the bank account. Vasbinder replied that he had no juris- diction over this. Again, no reference was made as to wher Vasbinder, who with the others originally believed the lay- offs to be temporary, would return. Herman Baumgarten, a cameraman,2 0 also testified that his last day of work had been December 17. On the next day, a Saturday, he received a telephone call from Canter who said that he hated to tell Baumgarten this, but that he had no work for him. Baumgarten could not remember his response. With the others who testified, he denied Canter's account that there had been a meeting of unit employees on December 17. "1 As matters developed, the Union, at Canter's request, released sufficient funds from the attached bank account to meet the payroll for the unit for that week, and, on its own initiative, also released moneys which would have enabled the Company to meet the Christmas payroll for the following week as well. ' Richardson, who started with Respondent Company in April 1964, and whose -F sic assignment had been to operate the single-color, 30-inch press. also had had experience with Respondent Company's 2-color press, an(t, consequently, was paid at the higher rate afforded to 2-color press operators. In February 1977, after his layoff, he telephoned the plant in response to a newspaper advertisement for a pressman that had been placed by Respon- dent Company. However, he did not call back when the employee of his acquaintance who answered the telephone told him that Canter was not in at the time. 19 Vasbinder had been with Respondent Company since March 1967. 20 Baumgarten had begun to work for Respondent Company in March 1967. Frank Lugar testified that he did not report to work on December 20 because on the preceding Friday, December 17, at 3:30 p.m., Canter had approached him at his work station by the 2-color press and had told him that he had no work. that the Union had frozen his bank account, and that he was going to have a hard time paying his men. Canter continued that as Lugar had vacation time coming and they were approaching the holidays. I.ugar should take off until the first of the year." Canter, in turn, expressed surprise that his unit employees did not show up for work on De- cember 20 and Respondents, in their brief, referred to this nonappearance as a work stoppage. Canter asserted that none of the unit men had been laid off and there was work in the plant for all to do, except that the funds to pay these men had been attached and it was necessary to have these moneys released before he could meet the unit payroll. Canter related that he had badly needed the services of a pressman at the time and by Tuesday., December 21, he called Lugar, based on the latter's seniority, to help com- plete the work in the plant. Lugar replied that he had to get permission from the Union before he could return, but, having received same, Lugar returned to the plant on about December 22.2 However, none of the fringe benefits called for in the collective-bargaining agreement, including contributions by Respondent Company to the various funds referred to above, were afforded Lugar at any time after his return. Lugar was recalled to work again after the plant resumed operations under the receiver on about January 12. As noted, after returning to the plant following the layoffs, Lu- gar no longer operated the 2-color press, but instead, worked the single-color, 30-inch press previously run by Richardson. In late February 1977. the Union began to picket the plant on an intermittent basis. Lugar testified that on Fri- day. March 18, he arrived at the plant, but was stopped outside by Charles Diederich, a picket who had been em- ployed by Respondent Company until December 17 as a helper on the press. Diederich told Lugar that the bank- ruptcy had gone through, that as Canter was no longer as- sociated with the Company, there was no reason for him to go to work." Lewis Canter, from a plant window, observed the conver- sation between Diederich and Lugar and saw Lugar leave without coming to work. Canter, however, did not hear what was being said. Canter testified that that afternoon he called Lugar and asked why he did not come to work. Lu- gar had replied that he was tired of the harassment that he had been getting from the union men and that he could not '' Although Lugar was described as a shop foreman in a listing of unit personnel received in evidence. the parties did not contend or seek to estab- lish at the hearing that he was a supervisor within the meaning of the Act. Accordingly. I make no such finding. 22 The other union employees herein testified that at no time did the Union inform them that they could not go back to work for Respondent Company. 23 Although Lugar initially testified that Diederich also had informed him that the benefits whi.n had been in effect had become null and void and that he did not go back to work primarily because he would not be getting his benefits, Lugar subsequently denied that Diederich had said anything about the benefits and that he did not then cross the picket line because he was "scared to death" of the men on the picket line. 664 CENTURY PRINTING COMPANY take it any more. It was too much for him and he was going to go on unemployment. Respondent Company's nonunion employees remained comparatively unaffected. They continued to work until the business was padlocked on January 7. and, after operations resumed under the Receiver-Trustee, they' all were recalled to their jobs. Certain nonunit employees, as indicated, such as Greene. Metecko, and Kanidis, were trained and as- signed to replace the laid off former union employees. How- ever, although they thereafter performed work covered by the collective-bargaining agreement, they were not paid at the levels specified in that contract, the equipment manning requirements of the contract were not followed, and no con- tributions were made to the health and welfare, pension, and other funds in their behalf. Canter explained that these employees were afforded less compensation because they were trainees.?5 The principal factual conflict in this area is between the testimony of Canter that at a meeting on December 17, the union men were invited to continue working, but were told that unless they could intercede with the Union to obtain the release of Respondent Company's bank account, he would not thereafter be able to pay them, and the statement of the unit employees that they had been involuntarily and separately laid off. To the extent that the testimony of these witnesses con- flicts with that of Canter, Canter is not credited as he was an evasive witness who did not answer questions directly, and his testimony as to the events surrounding the layoffs appears improbable? Canter's expressed surprise at the unwillingness of his unit men to work without pay is not convincing. Canter had options as to which of his employees he would retain and pay from the joint bank account used to pay only the non- union personnel, and, faced with a need to operate under reduced circumstances, he could have kept some unit and nonunit personnel on the job so that most of the required skills would have been available. Instead, by his account, he told only the union employees that their future compensa- tion, in effect, was hostage to their ability to have the bank account released. The nonunion employees, whose services were no less basic, were left undisturbed and, with minimal interruption, were still employed at the time of the hearing. It is not clear that the attachment of the bank account, in any event, would have required the layoff of the union men, per se, as the Union, after attaching the account, twice re- leased sufficient sums to enable the payroll to be met, the second time acting on its own initiative. It, therefore, is concluded, contrary to Canter, that the five union employees were involuntarily laid off by Canter. 1 Lar's son. Burt. who, since September 1976. had been employed con- tinuously by Respondent Company as a trainee pressman, did work on March 18, but, on his own initiative, did not thereafter come to work. Burt Lugar had worked part-time and was not a union employee. 21 The collective-bargaining agreement provided for apprenticeship by mutual consent. 26 Had the employees tried to have the bank account released, as allegedly requested by Canter, they would not necessarily have been acting in their own interest as the account had been attached to collect employer contribu- tions due on their behalf to their pension, health and welfare, and other funds, which constituted a significant part of their compensation. 3. The disaffirmance of the collective-bargaining agreement and the conclusion of the bankruptcy proceeding On February 23. 1977 Stanford G. Davis wrote the fol- lowing letter to Floyd Lamm, assistant to the president of the Union: The undersigned was appointed receiver in the above-captioned matter by order of the Bankruptcy Court on January 10, 1977. You are hereby advised that any employment con- tract between Graphic Arts International Union, Local 24 L. AFL-CIO-CLC, and Lewis Canter td/b/a Century Printing Company which may have existed prior to the JanuarD 10, 1977. filing of bankruptcy is hereby disaffirmed. The effecti',e date of this disaffir- mation shall be January 10. 1977. The union attorneys, by letter, dated March 3, 1977, re- plied as follows, noting that Davis' earlier letter had been referred for reply: At the first meeting of creditors on February 23. 1977, the bankrupt testified that operations of his busi- ness were continuing and would continue until the conclusion of the sale of the equipment. He further testified that lithographic work was being performed by a pressman as well as by himself. Under the circumstances, where the bankrupt is con- tinuing to operate, and seeks to transfer the business as a going operation to the purchaser. we believe that the terms of the collecttive-bargaining agreement continue to be effective against the receiver, the trustee and the purchaser. Although duly afforded the opportunity, the record hav- ing been left open for such purpose, the parties could not produce evidence that the bankruptcy court thereafter had ruled on the receiver's retroactive repudiation of the collec- tive-bargaining agreement, or even that the Union, despite its protest, had specifically called this matter to the court's attention." Accordingly, it is found that the contract was rejected expressly only by action of the Receiver-Trustee and that the bankruptcy court has not separately ruled on such disaffirmance or whether this could be done retroac- tively. On June 28, 1977, the Union's president sent the follow- ing identical letters to Canter, d/b/a Respondent Com- pany, and to Respondent Corporation: As you know, Graphic Arts International Union. Local 24-L. has asserted in Court that you are bound by the terms of its Agreement with Lewis Canter, That assertion has been disputed in the Bankruptcy Court. Independently of that position, you are obligated to bargain with this Union over hours, wages and condi- tions of employment of your bargaining unit employ- ees. Please call me to arrange to meet. : Although the Union on about March 25, 1977. filed objections to Can- ter's discharge from his debts with the bankruptcy court on the ground that he had been using the bankruptcy proceeding as a means of perpetrating a fraud upon the Union and the plantiff funds, the court. on August 30. 1977, dismissed the objections to Canter's discharge in bankruptcy and granted him relief from his debts. 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No reply was made to these letters by either recipient. Canter related that he did not reply to the letter sent to him because by the time it was received the business was Wil- son's responsibility. Wilson related it was his ultimate pur- pose to use the inner city facility as a place for minority employment and that as, in his view, the Union discrimi- nated in its membership policies against minority workers, he did not feel morally, socially, or legally bound to recog- nize the Union. No evidence was adduced to support Wil- son's statement concerning the Union's alleged policies in this regard. B. Discussion and Concluding Findings 1. The status of the Respondents as alter egos The General Counsel and the Union, contrary to Re- spondents, contend that Respondent Corporation and its immediate predecessors, Wilson and the Receiver-Trustee, are alter egos of Respondent Company, or, at minimum. that they are Respondent Company's successors. These par- ties also assert that there was a continuing obligation on the part of Wilson, the Receiver-Trustee and, now, Respondent Corporation to recognize and bargain with the Union on behalf of the unit employees. Under the facts herein, it would appear that Respondents are alter egos. Before January 7, Respondent Company was entirely owned and operated by Lewis Canter. Canter re- mained the active management official in the period from January 12 to March 16, 1977, while Davis was in charge as the Receiver-Trustee, acting as Davis' agent. In their testimony, the Canters admit that in anticipation of and during the bankruptcy proceeding, they undertook to protect their long-term investment in the business by at- tempting to retain control, and Lewis Canter was instru- mental in creating the arrangement whereby Wilson, under the terms of a private sale, objected to by a creditor bank, became the successful purchaser of Respondent Company. In so doing, Canter used his inside information of the Com- pany's status, value, and his forthcoming voluntary bank- ruptcy petition to again interest Wilson in the purchase of the business, telling him that the business could be obtained on terms far more favorable than in the past, 8 what it would cost, and, forthwith, persuaded Ruth Canter to pro- vide most of the relevant amount. Canter, in short, used Wilson to help him engineer a court-approved resale of the business to Canter's own immediate family.29 Lewis Canter continued to have the principal voice in the operation of the business from the time the court approved the sale on March 16, until June 1977, making the assign- ments and, in consultation with Wilson, establishing the wage and work schedules. Canter continued thereafter to work with Wilson 7 days a week until about 3 weeks before 12 The record reveals that 2 years before, when Wilson first became inter- ested in the business, the purchase price was much higher and the Union's status as bargaining representative was unchallenged. 29 No evidence was adduced at the hearing that the bankruptcy court, when it approved the private sale of the business to Wilson, knew of Ruth Canter's equity in the purchase price or of the agreement to thereafter give her principal ownership while her husband continued to manage the busi- ness. the hearing in this matter, when he left to take another job. However, even after August 15, Canter continued to return to Respondent Corporation's plant during free afternoons to render gratuitous assistance. On the record herein, contrary to Respondents, I find that the $5,000 advanced by Ruth Canter for the purchase was not a loan, but, as she testified, was an investment. No agreement, written or oral, had been reached with respect to a repayment schedule, and, in return therefore, she re- ceived the stock shares described. Respondents emphasize in their brief that within 3 days after the corporation was formed, Wilson became the ma- jority stockholder with the conveyance to him of 401 shares of Ruth Canter's stock, and that, thereafter, principal own- ership no longer lay with either of the Canters. This, how- ever, is not consistent with the facts. In order to obtain the benefits which the Canters and Wilson believed could be available to minority-owned business, these shares, repre- senting majority ownership, were then delivered to Wilson. However, contrary to the notation on the relevant stock certificate that these shares could not be transferred except upon payment to Ruth Canter of $51,000, Wilson, 6 months after receiving them, still had not paid anything in return. Again, there was no written or oral understanding govern- ing payment for these shares, and no interest rate on the credit extended was established. As the language on the stock certificate marking the conveyance, on its face, pre- cludes transfer without payment of the sum shown, it is clear that the parties did not intend that title to the shares should irrevocably pass to Wilson until such time as he might pay the stated purchase price, and that, meanwhile, Ruth Canter could reclaim title to and possession of the 401 shares at her option. Even after Wilson undertook the active management of Respondent Corporation in June, Lewis Canter continued to render financial assistance to the enterprise. In late June, and, during his last month and a half with the corporation, to the time of the hearing, Canter did not cash his pay- checks as the corporation was short of funds. Noting, too, that Wilson and Respondent Corporation continued to operate the premises and had Respondent Company, using, except for the union personnel in issue, substantially the same employees and equipment, produced the same products for principally the same customers, paid rent to the same landlords, the Canters, and even used the same telephone number, I find that Wilson and Respondent Corporation and Respondent Company both are alter egos of Respondent Company.3o Noting also that the Receiver-Trustee had taken over the operation of Respondent Companys' business, which through Canter, he continued to run almost exactly as be- " See Marquis Printing Corporation and Mutual Lithograph Company, 213 NLRB 394 (1974); Ramos Iron Works Inc., and Rasol Engineering, 234 NLRB 896 (1978); P.A. Hayes, Inc., and P.H. Mechanical Corp., 226 NLRB 230, 236 (1976). Also see Crawford Door Sales Company, Inc., and Cordes Door Company, Inc., 226 NLRB 1144 (1976), where the Board noted that it generally has found alter egos status "where the . . . enterprises have 'sub- stantially identical' management, business purposes, operation, equipment, customers and supervision, as well as ownership." 666 CENTURY PRINTING COMPANY fore, I find that the Receiver-Trustee also was an alter ego of Respondent Company."' As the employing industry has remained the same, the form of the transfer is not controlling. 2 Accordingly, I find that Davis, as the Receiver-Trustee; Wilson, as purchaser; and Respondent Corporation are alter egos and successors of Respondent Company and that the intervening role of the Receiver-Trustee in the management of the business did not serve to interrupt the contractual privity between the parties so as to affect the alter ego status of Wilson and Respondent Corporation. 2. The alleged unlawful layoff of the unit employees The General Counsel and the Union contend that the five unit employees were discriminatorily laid off and, ex- cept for Lugar, were not recalled to work because of their union membership and, as their employment was governed by the more costly terms of the collective-bargaining agree- ment, which Respondents did not care to meet. The Gen- eral Counsel argues that Lugar, too, was a victim of multi- ple discrimination in that, in December, he initially was laid off unlawfully with others; upon recall, was not af- forded working conditions and benefits consistent with the terms of the union contract; and, further, that Lugar was constructively discharged on March 18, when after speak- ing to a picketing former unit member, he did not return to work. From the credited evidence, it has been found above that in the period from about December 16 through 18, Respon- dent Company laid off all five unit employees against their wishes and that their nonappearance for work on and after December 20, contrary to Respondents' contention in their brief, did not result from a work stoppage. This conclusion is underscored by the Union's willingness. when requested, to give Lugar permission to go to work for Respondent Company while the others were still on layoff. The Union's decision to picket the plant in late February 1977 consti- tuted nothing more than a belated protest of Respondents' discriminatory layoff and replacement of the union employ- ees, and was not a manifestation of the work stoppage. Upon the record herein, noting that only the union em- ployees were laid off and, except for Lugar, were not re- called, while the nonunion employees continued to work without appreciable interruption to the time of the hearing, the replacement of the unit employees with previously em- ployed and newly hired nonunion employees none of whom worked under the terms of the collective-bargaining agree- ment, in the context of Canter's testimony as to the high cost of meeting the contract's terms and of Wilson with respect to his own disinclination to deal with the Union, I find that these employees were discriminatorily laid off and "i See Cagle's Inc., 218 NLRB 603. 604 (1975): Airport Limousine Service Inc., etc., 231 NLRB 932, 934, fn. 2. Also see Marion Simcox, Trustee of Wagner Shipyard and Marina, Inc., and Stateside Service. Inc., d/b/a State- side Shipyard and Marina, Inc., 178 NLRB 516, 518 (1969), where the Board noted that it was not foreclosed from exercising junsdiction over trustees in bankruptcy or receivers and that the trustee in that matter was bound to honor the predecessor's bargaining obligation. 12 See Marquis Printing Corporation, supra at 401. where it was found that the successor was alter ego to the predecessor although the successor had purchased the assets from an intervening assignee for the benefit of creditors. denied recall because of their union membership and be- cause the cost of operating under the collective-bargaining agreement conflicted with Respondents' poor financial posi- tion. The Board made the following finding in Barwise Sheet- metal Co., nc-1.1 The record clearly demonstrates that Respondents' motive in closing Respondent American's operations and creating Barwise was to rid themselves of the union and escape from being bound by . . . the obliga- tions inherent in the collective-bargaining relationship with the Union.... Respondents may also have had some economic justification for their action, but that is no defense for outright discrimination prohibited by Section 8(a)(3).... The warning was clear; Respon- dent would no longer offer union work. This conduct clearly establishes discrimination based on antiunion considerations in violation of Section 8(a)(3). The General Counsel, contrary to Respondents, contends that Lugar was constructively discharged when he left Re- spondents' employ on March 18. after his recall by Canter. In support of this assertion, the General Counsel argues that Lugar left his job only after being informed by a pick- eting former fellow employee that with the bankruptcy, the benefits under the collective-bargaining agreement were no longer applicable, and that Lugar, in his testimony, had given this loss of benefits as the reason why he did not again report to work. Respondents. of course, take the position that Lugar would not be entitled to backpaN after March 18, in any event, as he quit at that time against the stated wishes of his employer. Lugar's testimony on this point is contradictory. Initially. Lugar did testify that the reason he did not go to work after speaking with Diederich, the picket, on the day in question was that Diederich had then told him that he would there- after be working without his contractual benefits and that he did not wish to work under those circumstances. How- ever, on cross-examination. Lugar testified that Diederich had not mentioned the matter of continuing benefits during their brief encounter and that he had not gone to work because he was "scared to death" of the men on the picket line.' From the evidence, noting the testimony of Canter and Wilson that they had not been applying the terms and con- ditions of the contract to employees working in unit jobs since the union employees were laid off in December. it is concluded that Lugar had to know, from the time he re- ported back to work after his recall and during the 2 months he remained on the job thereafter, that he was not working under the terms of the union contract, that he was not receiving'all of his former benefits, and that his fellow union employees, instead of being recalled, were being re- placed by nonunion personnel. In addition, his Union had been picketing the plant since about February 23. There- fore, it does not appear that when he spoke with Diederich on March 18, Lugar would have been particularly surprised to learn that he was not receiving the employment benefits " 199 NLRB 372 373. 34 On cross-examination. Lugar testified that Diederich had merely told him that the bankruptcy had gone through. Canter was no longer associated with the Company, and that there was no reason for him to go to work. 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formerly available to him so as to galvanize him into leav- ing his job. 1, therefore, credit Lugar's second account of his March 18 talk with Diederich that the continuation of benefits had not been mentioned and that his immediate reasons for not entering the plant had been his fear of the men on the picket line?5 Contrary to the General Counsel, I do not find that Lugar's departure from Respondent's employ on March 18 resulted from a constructive discharge. While Respondents' conduct, found unlawful herein, may have created the con- ditions which brought about the picket line, Respondents cannot be held responsible for Lugar's belated decision to observe it. As it is found that Lugar did not finally leave Respondents' employ because the terms of the contract were not being applied, because his fellow union employees were being replaced, or even because his Union had been picketing intermittently for several weeks, but because he felt threatened by the pickets, and as there is no evidence that Lugar thereafter joined the picketing, I find that Lugar's departure from Respondents' employ on March 18 does not constitute a constructive discharge. C. The Alleged Unlasful Refusals To Bargain 1. The appropriate unit; majority status As it has been found above that at all times material herein Respondents were alter egos, and as the parties agreed upon the basic unit description at the hearing, it hereby is concluded that the following unit is appropriate for purposes of collective-bargaining within the meaning of Section 8(b) of the Act. All lithographic production employees, including pressmen, feeders, stripper platemen and cameramen employed by the Respondents, or either of them, at their Pittsburgh, Pennsylvania, facility, excluding all office clerical employees, professional employees, guards and supervisors, as defined in the Act, and all other employees? 6 It further has been found that Respondents and the Union established a bargaining relationship and, through Respondent Company, have been parties to the collective- bargaining agreement between the Union and the Union Employers' Printing Industry Association of Western Penn- sylvania, Inc., by virtue of a supplemental memorandum incorporating that agreement, signed by Lewis Canter on June 20, 1975, to remain in effect until April 30, 1978. In Eastern Washington Distributing Company, Inc.," the Board noted: The existence of a prior contract, lawful on its face, is sufficient to raise a dual presumption of majority, first 5 There is no evidence that any of the pickets had menaced Lugar by anything more than their presence. 36 While the unit description found herein differs somewhat from the re- spective unit descriptions set forth in the collective-bargaining agreement and that alleged in the complaint, it draws upon the language of each and accurately describes the job classifications employed by Respondents in the unit. 37216 NLRB 1149, 1153. Also see Walter E. Heyman d/b/a Stanwood Thriftmarl, 216 NLRB 852 (1975); Harold W. Hinson d/bl/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970). that the Union had majority status when the contract was executed and second that the majority continued at least through the life of the contract. Following the expiration of the contract, the presumption continues, and the burden of rebutting it rests, of course, on the party who would do so. To rebut the foregoing presumption, then, Respondents must demonstrate either that the Union did not enjoy ma- jority support at the time of the refusal to bargain or that there was reasonable doubt based upon objective consider- ations for believing that the Union had lost its majority status when bargaining was refused." However, the asser- tion of doubt must be raised in a context free of unfair labor practices. In the instant case, it has been concluded that the Union enjoyed actual support from all of the employees in the bargaining unit as of mid-December, 1976, and any diminution of this support can be traced directly to Respon- dents' unlawful layoff and replacement of all the union em- ployees. It, therefore, is found that Respondents, at no time mate- rial herein, had a good faith doubt as to the Union's major- ity status. 2. The alleged 8(a)(5) violations Inherent in the General Counsel's position that Respon- dents, as alter egos, violated Section 8(a)(5) of the Act by withdrawing recognition from and by thereafter refusing to bargain with the Union, although duly requested, is the proposition that Respondent Company did not meet their bargaining obligation by failing and refusing to notify and bargain with the Union with respect to the layoff of the unit employees: by unilaterally changing the terms and condi- tions of employment of Lugar and other employees as- signed to perform unit work after the plant resumed opera- tion in January 1977; by bargaining individually with Lugar, after his recall, with respect to the terms of his em- ployment; and by failing to notify and bargain with the Union about the effect of the sale of the business to Wilson and Ruth Canter and, as intended by these purchasers, ulti- mately, to Respondent Corporation. In the Bell Company, Inc., etc., 3 9 Administrative Law Judge Maloney, in his Board-approved decision noted that: It is well settled that, when an organized company goes out of business, it has an obligation to notify the bargaining agent of its employees concerning its inten- tion and to bargain with the union regarding the effects upon employees of its decision. The facts of this case indicate fully that Bell did not notify the Union that it was going out of business until after the event took place and that it did not afford the Union an opportu- nity to bargain with it concerning the effects of its de- cision on . . . employees who were laid off. Without more, such considerations would warrant the conclu- sion that Bell violated Section 8(a)(5) of the Act be- cause of this neglect of its duty to bargain.... 1 have concluded that Bell did not in fact go out of business 3' Ibid Also see Impressions, Inc., 221 NLRB 389 (1975). 59 225 NLRB 474, 482. 668 CENTURY PRINTING COMPANY but merely caused to be transferred its assets. its credit. its work in progress, and some of its employees to Endurall, who has continued essentially the same op- eration as its unionized . . predecessor. * . . * * ... As found above, Endurall was and is an alter ego of Bell and, as such, is obligated to remedy all unfair la- bor practices committed by Bell and honor the con- tract which was in effect at the time of transition of enterprise from a corporation to private proprietor- ship. Endurall's failure to do so is more than a simple breach of contract. It amounts to a repudiation of a collective-bargaining relationship. and as such, consti- tutes a violation of Section 8(a)( I) and (5) of the Act. ... See C & S Industries, Inc.. 158 NLRB 454 (1966). In the instant case, although the expiration date of the most recent collective-bargaining agreement had not yet been reached when Respondent Corporation took posses- sion, as will be discussed, the contracts' continued efficacy was affected by its earlier disaffirmance by the Receiver- Trustee. However. the responsibility of Respondents to con- tinue to recognize and bargain with the Union in the pre- sent case survived the contract and is not less than that specified in the Bell Company, Inc., supra. Respondents' failure to do so is violative of Section 8a)(5) and (I) of the Act. As the record also reveals that Respondents withdrew recognition from the Union: unilaterally changed the terms and conditions of employment of Lugar after his recall; and discontinued contributions to the sickness and accident fund, the disability and supplemental pension plan, and the educational and training fund for Lugar and the four other discriminatees; bargained individually with Lugar after his recall concerning the terms of his employment; and failed and refused to notify and bargain with the Union concern- ing the layoff of the unit personnel and the effects of the sale of the business to Wilson. it is concluded by each of the foregoing that Respondents, further violated Section 8(a)(5) and (1) of the Act.0 3. The applicability of the collective-bargaining agreement after disaffirmance by the Receiver-Trustee The General Counsel and the Union both contend, under different theories. that Respondents further violated Section 8(a)(5) of the Act by refusing to apply the collective-bar- gaining agreement after its formal repudiation by the Re- ceiver-Trustee. The General Counsel. in accepting the reasoning of the U.S. District Court in Carpenters Local Union No. 2746, United Brotherhood of Carpenters and Joiners of America, AFL C10 v. Turne' Wood Prodi,cts, Inc.41 concedes that the Receiver-Trustee was within his authority in rejecting the contract and that such disaffirmance may have been proper until March 16. during the period of the bankruptcy. However, the General Counsel argues that, under the cir- 4o Laramee's Transit, Inc.. 224 NLRB 56. 65 ( 1976). P A.4 Hlaes. Inc., e a., 226 NLRB 230, 236. The scope of these violations and their duration will be included below in the discussion of the remed) 41 289 F.Supp. 143 I'. D Ark. 1968). cumstances of this case. Wilson and Respondent Corpora- tion, as alter egos, should be held responsible for assuming the contract to avoid utilization of bankruptcy proceedings to perpetrate a fraud that could enable Canter and Wilson to rid themselves of an undesirable collective-bargaining re- lationship and union contract, while enabling them to oper- ate their business through a "dummy" entity after Canter's discharge from debt. The Union simply contends that under the bankruptcy law, the Receiver-Trustee. by himself. did not have the power to validly disaffirm the contract, and as the bank- ruptcy court did not specifically approve his action, it is invalid. It now is established that a bankruptcy court itself may disaffirm a collective-bargaining agreement, authorize a re- ceiver-trustee or debtor-in-possession to reject such an agreement at the time of appointment, or. absent prior au- thorization, subsequently ratify' such action. 2 The facts in this case differ somewhat from cited cases. as here, there is no showing that the court, itself, had ever specifically ap- proved the Receiver-Trustee's rejection of the contract ei- ther by including such authority in the initial delegation of authority to Davis. or by express subsequent ratification. It also is clear that the Union and its coplaintiff funds in the bankruptcy proceeding also did not call the matter to the court's attention or otherwise appeal the Receiver-Trustee's action, although their attorney, upon receiving notice, wrote a letter of protest to the Receiver-Trustee. It is concluded fron the record herein that the Receiver- Trustee lawfully disaffirmed the collectire-hargaining agreement as of February 23. 1977. the date of his letter of repudiation to the Union. and that from that time. Respon- dents were not obliged to apply the terms of the collective- bargaining agreement to unit employees.1 The Receiver- Trustee's work was approved by the court when. over the Union's objection, it discharged Canter from his debts. Da- vis. as an officer of the court. was vested with its authority in administering the estate and his actions, unless set aside by the court or otherwise in conflict with law. are presump- tively valid. Accordingly., when the court discharged the bankrupt. it impliedly approved the Receiver-Trustee's con- duct. Although the Union argues that the repudiation of the contract is invalid because not specifically ruled on by the court, it was the Union's failure to appeal the contract rejection to the court, where it already was a part, which served to prevent such consideration. The General Counsel's argument that the contract, al- though validly disavowed during the bankruptcy period, should, by operation of law, become revived and binding upon Wilson and Respondent Corporation after March 16 sale, is not tenable. Contrary to the General Counsel, though mindful of the different procedures under the Bank- ruptcy Act as indicated in his brief, it would still appear that the right of the bankruptcy court, through its agents. to disaffirm the union contract of a bankrupt business exists whether it is contemplated that the business be continued 42 Shopmens I.o,'al lr'non .¥o 455. International .4xssocialon of Bridge. Structural and Ornamental Iron H'orkers. .4 FL CIO . K'ein Steel Products. Inc.. 519 F.2d 698 (2d Cir. 1975;: Jersey Juniors, Inc.. 230 NLRB 329 (1977): Airport limousine Serice, Inc. e 231 NLRB 932 1977). 4 Durand etc. v. .L.R B.. 296 F Supp. 1049 IW.D Ark. 1969). 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or liquidated within a comparatively short period of time thereafter.4" Not less to the point. however, is that having found here that the contract was lawfully rejected by the Receiver- Trustee as of February 23. and that his action in so doing had been impliedly approved by the court. I cannot now reconstitute and make binding the collective-bargaining agreement upon Respondents. Jurisdiction over that matter remains with the court. However, I do not find that the Receiver-Trustee could validly disaffirm the collective-hargaining agreement, as he did, retroactively. to January 10. but that he could do so only as of the date in which he took such action February 23. As was noted by Administrative Law Judge Pannier in his Board-approved decision in Jerseyt Juniors, Inc(.,4 "col- lective bargaining agreements remain in effect until such time as rejected by a bankruptcy court." Accordingly, noting also that the Receiver-Trustee is re- sponsible for violations of the Act occurring during his ad- ministration and that it is not appropriate to enable him to reduce his liability for such conduct by backdating his dis- affirmance. it is concluded that the collective-bargaining agreement and the obligations arising thereunder remained in effect until February 23, 1977. 'The duty to recognize and bargain with the Union, of course, continued thereafter.Y IV. i111t 1111( I )I t NIAR I Ai OR RA( 11(15 t UPON ( ()NMI R( F The activities of Respondents set forth in section III, above, found to constitute unfair labor practices occurring in connection with their operations described in section 1. above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. CON( lt.tSIONS (OF L.AW 1. The Respondents. Canter: the Receiver-Trustee. Wil- son; and the Respondent Corporation, are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Arts International Union. local 24 L. AFI,. CIO-CLC. is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, all lithographic employ- ees, including all pressmen, feeders, stripper platemen, and cameramen employed by Respondents. or either of them, at Respondents' facility in Pittsburgh. Pennsylvania, exclud- ing all office clerical employees, professional employees. guard-, and supervisors, as defined in the Act. and all other employees, constitute a unit appropriate for the purpose of 4 ('rpenter.s Local 'nion No 2746, et al . T'urne , Iod Produ-cts, Irn, supra; ShopmenS .local Unon No 455 v h Kevin Steel Pr,,du lis, Inc . 1u4/ra: Airport Limousine Service, In-.. supra. 45 230 NI.RB 329. 4 Since. as noted, no evidence was offered to support Respondent's de- fense that no bargaining order should issue as the Union discriminated against minorities in its membership policies no consideration will be given to this point. See hlurce'l lanu/aluring ('orp., 231 NLIRB 623 1977) collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive collective-bargaining representative of the em- ployees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By refusing to continue to recognize and bargain with the Union with respect to the terms and conditions of em- ployment of the employees in the above-described unit: by unilaterally changing such terms and conditions, including those relating to pay and contributions to the sickness and accident fund, the disability and supplemental pension plan and the educational and training fund: by bargaining in- dividually with employees with respect to the terms of their employment; and by failing and refusing to notify and bar- gain with the Union with respect to the layoff of the unit employees and the effect of the sale of the business. Re- spondents, jointly and severally, have violated Section 8(a)(5) and (I) of the Act. 6. B laying off Donald Vasbinder ('leon Richardson, Herman Baumgarten. Charles Diederich, and Frank Lugar. in December 1976, because of their membership in and sup- port for the Union, Respondents thereby have discouraged membership in a labor organization and, jointly and sever- ally. have engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 7. The Respondent Receiver-Trustee did not engage in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act by disavowing the collectie-bargaining agreement as of February 23, 1977. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Except for the foregoing. Respondents have com- mitted no unfair labor practices. TmI Rn D>) Having found that Respondents have engaged in certain unfair labor practices, I will recommend that they be or- dered to cease and desist therefrom and to take certain affir- mative action designed to effectuate the policies of the Act. As Respondents unlawfully laid off Donald Vasbinder, Herman Baumgarten. ('leon Richardson, and C'harles Die- derich on the dates indicated above in December 1976. I shall recommend that Respondents be ordered to offer each of them full and immediate reinstatement, without preju- dice to their seniority or other rights and privileges. and to reimburse them for any loss of pay and other employee benefits they may have suffered ' As I.ugar also was unlaw- ftully laid off in [December, but subsequently was recalled by Respondents and continued to work in the plant until his resignation on March 18. 1977, it will be recommended that lIugar be reimbursed for any loss of pay and other em- ployee benefits he may have suffered from December 20, 1976. until he resigned his employment on March 18, 1977. Ilowever, Ilugar's backpay claims will be reduced by the " I he backpal periods lir Vasbiider Baumrngarten. )iederich. and Rich- ardsoin will begin December 20. 1976, the first working day after their lay- ofis. and continue until compliance with the ternms of this Order is achieved. Itowever. their respective claims will he olled during the period from Janu- ar, 7 to 12. 1977. shen the plant was not in operation as padlocked 670 CENTURY PRINTING COMPANY amount of his earnings and other job-related benefits, if' any, afforded to him by Respondents during his period of employment with Respondent Company from December 22. 1976, to March 18, 1977. less any earnings which might have been accrued during the period when the building was padlocked. Backpay for the foregoing individuals and inter- est thereon shall be computed in the manner described in F. 145 Woolworth CompanY,. 4 and Florida Steel Corpora- lion."9 I also will recommend that Respondents. upon request. be required to recognize and bargain with the Union con- cerning wage rates, pay. and all other terms and conditions of employment to employees in the bargaining unit found appropriate herein. '0 In determining the remedial obligations of the Receiver- Trustee, it is noted that Davis was not in control of the business during all of the events found unlawful herein. The five discriminatees had been unlawfully laid off before Da- vis' appointment by the court and Davis, as the Receiver- Trustee, had no voice in the management of the business after the sale to Wilson was approved. He could not realis- tically be held accountable for events which preceded or followed the date of his official connection with the busi- ness January 10 to March 16, 1977. Nonetheless, during the interval. Canter ran the plant as the Receiver-Trustee's agent and could act only subject to his approval. Under agency principles, Canter's knowledge of matters relating to the business was imputable to Davis. Accordingly. I find that the Receiver-Trustee, from Janu- ary 10, is chargeable with knowledge that the five union employees comprising the entire unit previously had been discriminatorily laid off and, except for Lugar, were being unlawfully replaced during his administration. Also, while Davis was in charge. the collective-bargaining agreement remained in disregard and the ahove-ftound unilateral changes in the employment conditions of unit employees were perpetuated. As it is established that receivers and trustees in bankruptcy are liable for unfair labor practices, I recommend that Davis be held jointly and seseralls with the other Respondents for remedying those losses which accrued during the time of his tenure. The other Respon- dents, however, as parties principally responsible and as "90 NLRB 289 (1950) " 231 NilRB 651 (19771 See. generalls. I ts Plumbingn & Ilintg (Co. 138 NLRB 716 (1962j ·, See lJarmniei' TeansLi, In, supra at 66 Although Respondents' ulnlat- eral discontinuation of contributions t the above lunds, Iound .olatl'e herein, also parallels conduct underlying the 1975 consent judgment against Respondent Co(mpan, on behalf of these funds. liahilit3 under the ct com- mences only from I)ecember 20. 1976, when Respondent (ompan began its pattern of unlalful conduct. until ehruary 23. 1977. when the contract was repudiated he earlier clalis, of course. arose tinder the contract aind are not based upon unlafhli unilateral changes or other conduct derogating the duts to hbargain The violations affecting the fund shoiuld be remedied bh requiri,,g Respondents. jointis and se eralls. to make such contrilbitols to the pension plan on behalf It Baumgarten. I Ugar. Richardson. )iederich. and Vasbinder from December 20 until Februars 23, and to make the dis- criminatees whole tor ans medical and hospital expenses incurred and i,ther monies due in that period as wouild hale hbeen pa.iable hlad the relevant sickness. accident and dsabilitN. and pension plans nder the ollective- bargaining agreement remained in effect t nder it. bargaining oblihhgatin. Respondents hould lso mlake whole the educaltional and training und fIor contributions due or the tie union emplosees during Ihat periodl 4irport L.tnlew ie Scre Je In ,ii ri. 4.S5 A e'll , .. Prdil t. In , upri alter egos are also jointly and severally accountable for rem- edying all of the unfair labor practices found herein from December 20, including the continuing backpay obligation noted above. Wilson. in addition to his responsibility for the acts of the corporation, is personally liable under the circumstances herein. jointly and severally for the entire remed\ as he initially purchased and operated the business as a sole pro- prietorship, did not form Respondent Corporation until lat- er, and with Canter. was an active participant in events found unlawful herein. Finall., Canter's prior discharge in bankruptcy does not preclude the finding that he, too. is a party responsible for remedying the unfair labor practices herein.'t As the unfair labor practices committed by Respondents are of a character striking at the root of employees' rights safeguarded bhy the Act, it will be recommended that Re- spondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. l!pon the foregoing findings of fact and conclusions of law, and upon the entire record. and pursuant to Section 10(c) of the Act, I hereb b issue the following recommended: ORDER" The Respondents Lewis Canter, d/b/a Centur. Printing Company: Stanford C. Davis, as the Receiver-rustee for Lewis Canter. d/b/a Centur Printing Company: John Wilson, db:/a Century Printing Company: and (centur5 Printing, Inc., jointly and severally,. and their officers. agents. successors, and assigns. shall: 1. Cease and desist rolil: (a) Refusing to recognize and bargain with (iraphic Arts International Ulnion, I.ocal 24-1.. AI C(I C1.C. s the exclusive collective-bargaining representative of the em- ployees in the unit described belo, . concerning rtes of pay, wages. hours of'clllploNnlent a llt other terms nd con- ditions of employ ment: All lithographic emiplo.eces, including all pressmen. feeders, stripper platemen and cameramen employ ed by the Respondents or either of therr, at their facility in Pittsburgh. Penns l\ antia excluding all office clerical emptployee, prolfssional employees. guards and super- visors, as defined in the Act. and all other emploees. (b) Ulnilaterall changing the terms aind conditions of employment in the above-described unit without first bar- gaining with the abhoe-named LUnion concerning such con- templated changes. (c) Dealing individually with ts unit emploees concern- ing their terms of emplomenl in derogation of their bar- gaining representalice. (d) Selling or otheruise transferring the assets of their business without first bargaining Lwith the nion about the effects f such action. " I th Pu/, bg and ltlog (stntr,, lorn 4-o ittoi. 142 NI RB 379 ( 196)hl. " In the eent n excepl i re il ed a. pro- .dlc b Sec 1(12 46 t ieh Rules nd Regulhions ot Ithe Natlo.nal I.ahor Reltllons Boiard. Ihe iidings. conclusions. and recommenided ()rder herein hall. .Ls pros iled In Sec 102 48 olf the Rules and Regultiuns. hbe .h,ptcd hb the Board nid beile Its findings. conclusi.ns .ind Order. andal .i tbeclion, thereto hall he deemed waied lar all purposes 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Laying off and replacing unit employees without first bargaining with the Union with respect to such action. (f) Discouraging membership in the Union, or in any other labor organization, by discriminatorily laying off its union employees or by discriminating in any other manner with respect to their hire or tenure of employment or any other terms of conditions of employment. (g) Refusing to recall laid off employees and hiring other employees in order to get rid of the above-named Union. (h) In any other manner interfering with, restraining, or coercing the employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain with Graphic Arts International Union, Local 24-L, AFL-CIO-CLC, as the exclusive representative of the employees in the afore- said appropriate bargaining unit, with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and embody in a written, signed agreement any understanding reached. (b) Offer to Donald Vasbinder, Herman Baumgarten, Cleon Richardson, and Charles Diederich immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, the present employees of Respon- dent Corporation, and make them and Frank Lugar whole for any loss of earnings and other benefits they may have suffered in the manner set forth in the section of this Deci- sion entitled "The Remedy." (c) Make whole the above-named discriminatees for any medical and hospital expenses incurred and for other mon- eys which would have been payable under the sickness, ac- cident, and disability funds in the period from December 20, 1976, to February 23, 1977, and make such payments to the pension and educational and training funds as would been made in that period had Respondents not abrogated the collective-bargaining agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at their printing facility in Pittsburgh, Pennsyl- vania, copies of the attached notice marked "Appendix."4 Copies of the said notice, on forms to be provided by the Regional Director for Region 6, shall, after being duly signed by Respondents' representatives, be posted by Re- spondents immediately upon receipt thereof, and be main- tained by them for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 6, in writing, within 20 days of the date of this Order what steps Respon- dents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 4 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 by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National labor Relations Board." 672