Rogers Cleaning Contractors, Inc. And Its Alter Ego, Olmsted Cleaning Contractors, Inc.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rogers Cleaning Contractors, Inc. and its alter ego, Olmsted Cleaning Contractors, Inc. and Service, Hospital, Nursing Home and Public Employees Union, Local 47, affiliated with Service Employ- ees International Union, AFL-CIO-CLC. Cases 8-CA-15104-2 and 8-CA-15104-3 15 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 8 September 1983 Administrative Law Judge William A. Pope II issued the attached decision. The Respondent filed exceptions and a supporting brief, to which the General Counsel filed an an- swering brief, and the Charging Party filed cross- exceptions and a supporting brief to which the Re- spondent filed a brief in reply. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Rogers Cleaning Contractors, Inc. and its alter ego, Olmstead Cleaning Contractors, Inc., Olmstead Falls, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(g). "(g) 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. Insert the following as paragraph 2(f) and re- letter the subsequent paragraphs. "(1) Expunge from its files any reference to the discriminatory terminations of Judy Thompson, 2 We shall modify the recommended Order by incorporating a provi- sion requiring the Respondent to remove from its files any reference to the unlawful terminations of employees Thompson, Murphy, and Gulan and to notify them in writing that it has done so and that evidence of their unlawful terminations will not be used as a basis for future person- nel actions against them See Sterling Sugars, 261 NLRB 472 (1982) We do not find that the Respondent has been shown to have a procliv- ity to violate the Act or a general disregard for the employees' funda- mental statutory rights as to warrant a broad cease-and-desist order as recommended by the judge. Hickmott Foods, 242 NLRB 1357 (1979) Consequently, we shall substitute a narrow cease-and-desist order for the broad injunctive language he recommended Laura Murphy, and Ann Gulan, and notify them in writing that this has been done and that evidence of their unlawful terminations will not be used as a basis for future personnel actions against them." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain with Service, Hospital, Nursing Home and Public Employees Union, Local 47, affiliated with Service Employees International Union, AFL-CIO-CLC as the exclu- sive bargaining representative for collective-bar- gaining purposes of our employees in the appropri- ate unit set forth in the collective-bargaining agree- ment in effect between ourselves and the Union since 1 May 1978. WE WILL NOT bypass the Union as the exclusive bargaining representative of our employees, as set forth above, by negotiating directly with them con- cerning rates of pay and other terms and conditions of employment. WE WILL NOT threaten or discharge employees because of their union activities and sympathies or because they joined, supported, or assisted a union and engaged in concerted activities for the pur- poses of collective bargaining and other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and bargain with the Union by acknowledging that we are bound by the collec- tive-bargaining agreement referred to above. 277 NLRB No. 53 ROGERS CLEANING CONTRACTORS WE WILL honor, implement, and apply the exist- ing collective-bargaining agreement referred to above. WE WILL make all required contributions to the Union's health and welfare fund, and pension fund as required by the collective-bargaining agreement. WE WILL make our employees whole for any and all loss of wages and benefits they may have suffered as the result of our unfair labor practices, with interest. WE WILL offer immediate reinstatement, if not already provided, to Judy Thompson, Laura Murphy, and Ann Gulan, to their former positions or, if those positions no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay they may have suffered by reason of our unlawful termi- nation of their employment, with interest. 'WE WILL notify each of them that we have re- moved from our files any reference to her termina- tion and that the termination will not be used against her in any way. ROGERS CLEANING CONTRACTORS, INC. AND ITS ALTER EGO, OLMSTED CLEANING CONTRACTORS, INC. Allen Binstock, Esq, for the General Counsel. Peter H. Hessler, Esq. and David Hessler, Esq., of Brecks- ville, Ohio, for the Respondent. Steven Potter, Esq. and Melvin Schwarzwald, Esq., of Cleveland, Ohio, for the Charging Party. DECISION WILLIAM A. POPE II, Administrative Law Judge. In a consolidated complaint dated April 28, 1982, the General Counsel of the National Labor Relations Board alleged that the Respondents, Rogers Cleaning Contractors, Inc., and its alter ego, Olmsted Cleaning Contractors, Inc., committed unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act by threatening to discharge and by discharging employ- ees because of union activities and/or sympathies, by by- passing the Union and dealing directly with their em- ployees, and by unilaterally changing terms and condi- tions of employment and failing to make payments to the Union's health and welfare fund and pension fund. The unfair labor practice charge in Case 8-CA-15104-2 was filed by the Charging Party on August 20, 1981; the unfair labor practice charge in Case 8-CA-15104-3 was filed on August 28, 1981. Trial was held from November 1 through 4, 1982, in Cleveland, Ohio, before me. I. BACKGROUND A. Stipulated Facts The following facts were stipulated by the parties: 483 (1) At all times material, Rogers Cleaning Contractors, Inc. was an employer engaged in commerce, within the meaning of Section 2(6) and (7) of the Act. Rogers ceased business operations on July 10, 1981. (2) Olmsted Cleaning Contractors, Inc. annually, in the course and conduct of its business, provides services valued in excess of $50,000 to the Davy McKee Corpo- ration, which is directly engaged in interstate commerce. (3) At all times material through July 10, 1981, except as otherwise noted, the following named individuals oc- cupied the positions as set forth after their names and were agents of Respondent Rogers acting in its behalf, and were supervisors within the meaning of Section 2(11) of the Act: Richard Rogers, president; Debra Rogers, secretary (until April 10, 1981); Trudy Rogers, vice president (until April 10, 1981); Mark Matjasic, op- erations manager; Bob Smith, supervisor; and Esther Ellis, foreman. (4) At all times material from July 13, 1981, except as otherwise noted, the following named individuals occu- pied the positions set forth after their names, and have been and are now agents of Respondent Olmsted acting in its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Debra Rogers, president and treasurer; Trudy Rogers, vice president and secretary; Richard Rogers, consultant (until March 1982); Mark Matjasic, supervisor; Bob Smith, supervisor (until April 1982); and Esther Ellis, supervisor (until February 1982). (5) About August 13, 1981, Respondent Olmsted rec- ognized the Charging Party as the exclusive representa- tive for the purpose of collective bargaining for its non- supervisory cleaning employees.' (6) Respondent Rogers was a party to a collective-bar- gaining agreement with the Charging Party, which ex- pired on April 30, 1981. (7) In May and/or June 1981, Respondent Rogers en- gaged in negotiations with the Charging Party in order to arrive at a new collective-bargaining agreement be- tween the parties. No agreement was reached. (8) Rogers Cleaning Contractors, Inc. was incorporat- ed in the State of Ohio about July 5, 1966, for the pur- pose of providing cleaning services. Richard Rogers has been its president from its inception until the present time. From approximately March 14, 1980, until April 10, 1981, the shares of Rogers were owned as follows: Richard Rogers, 2625; Julia Rogers, his wife, 1275; Debra Rogers, his daughter, 750; and, Trudy Rogers, his daughter, 750. Kerry Mueller and Harvey Biefelt ceased to be shareholders in March 1980. From at least January 1980, until April 10, 1981, Debra Rogers was secretary of Respondent Rogers, and Trudy Rogers was its vice president. From approximate- ly March 14, 1980, until May 30, 1981, the board of di- , The parties stipulated that the following employees of Respondent Olmsted constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Sec. 9(b) of the Act. All employees engaged in janitorial work, excluding office employ- ees and supervisors as defined in the Labor Management Act of 1947, as amended, and also excluding any such employee working 15 hours or less in an account where only one employee is engaged if such account is not owned or operated by an entity which operates in more then one location serviced by the employer 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rectors of Respondent Rogers was composed of Richard Rogers, Julia Rogers, Debra Rogers, and Trudy Rogers. After April 1981, Richard and Julia Rogers were the sole shareholders and officers of Respondent Rogers. After May 30, 1981 , Richard Rogers'was the sole direc- tor. (9) Olmsted Cleaning Contractors , Inc. was incorpo- rated in the State of Ohio on July 6, 1981, for the pur- pose of providing cleaning services . At its inception, Re- spondent Olmsted issued 500 shares of common stock at a face value of $100 per share, which were equally divid- ed between Debra Rogers and Trudy Rogers. Debra Rogers was and is the president and treasurer of Re- spondent Olmsted, and Trudy Rogers was and is its vice president and secretary. Debra and Trudy Rogers were and are the sole members of the board of directors of Respondent Olmsted. (10) Until the time it ceased its business operations, the offices of Respondent Rogers were located at 8660 Co- lumbia Road, Olmsted Falls, Ohio. Since at least July 13, 1981, the offices of Respondent Olmsted have been locat- ed at the same address. Respondent Olmsted is the sole occupant of the building at 8660 Columbia Road, Olmst- ed Falls, Ohio. The building is owned by Julia Rogers, who owned it at the time it was occupied by Respondent Rogers. B. Background Until financial difficulties forced it out of business in July 1981, and eventually into bankruptcy,2 Rogers Cleaning Contractors, Inc., was engaged in providing contractual janitorial and cleaning services to customers in the Greater Cleveland, Ohio area. The janitorial and cleaning services which Respondent Rogers provided, in- volving mainly the cleaning of office buildings, were per- formed by hourly workers, most of whom, it appears, were women. From May 1, 1978, until Respondent Rogers went out of business, the exclusive representative of its nonsupervisory cleaning employes for collective- bargaining purposes was the Charging Party, Hospital, Nursing Home and Public Employees, Local 47, affili- ated with Service Employees International Union, AFL- CIO-CLC.3 Rogers Cleaning Contractors was a family business owned and operated by Richard Rogers, its president and chief executive officer, his wife, Julia, and his two daughters, Debra and Trudy Rogers, who worked for the Company in clerical capacities and, until April 1981, held the corporate offices of secretary and vice presi- dent, respectively.4 Prior to changes in corporate struc- 2 Rogers Cleaning Contractors, Inc. filed for bankruptcy on November 20, 1981 3 Respondent Rogers and Local 47 were parties to a collective-bar- gaining agreement covering the period from May 1, 1978, through April 30, 1981 4 Both Debra and Trudy Rogers were employed by Rogers Cleaning Contractors as clerical workers in its offices at 8660 Columbia Road, Olmsted Falls, Ohio. As of 1981, Debra Rogers had worked for Respond- ent Rogers for 13 years and her sister, Trudy Rogers, had worked for the Company for 11 years There is nothing in the record indicating that their mother, Julia Rogers, took an active role in the management of the business ture brought about by financial reverses in early 1981, the' four members of the Rogers family constituted Re- spondent Rogers' board of directors, and were its corpo- rate officers and the sole stockholders in the corpora- tion.5 Although its business had been unprofitable for several years, in early 1981 the financial position of Rogers Cleaning Contractors worsened to the point that in Feb- ruary 1981 its line of bank credit was cut off. Then, by final notice, dated March 27, 1981, the Internal Revenue Service gave Respondent Rogers 10 days to pay a tax li- ability of over $25,000, or face enforcement action. Fearing that they might be held liable for the Compa- ny's Federal tax liability, Debra and Trudy Rogers re- signed as officers of the corporation on April 10, 1981, and returned their corporate stock.6 For the same reason, on May 30, 1981 , Debra and Trudy Rogers re- signed as directors of the corporation, and their mother, Julia Rogers, resigned as both an officer and a director. After May 30, 1981, Richard Rogers was the sole officer and director of Respondent Rogers. Because of his Company's financial problems, in the spring of 1981, Richard Rogers testified he considered closing his cleaning business and moving to Tennessee,7 but instead, he decided to keep the cleaning business in operation as long as possible. Motivated, it appears, mainly by the uncertain future prospects of Rogers Cleaning Contractors, Debra and Trudy Rogers began making plans to open their own cleaning business, using the name "Olmsted Cleaning Contractors." However, by June 1981, their venture had not progressed beyond the preliminary planning stage." Richard Rogers failed to resolve Rogers Cleaning Contractors' tax liability, and on June 4, 1981, the Inter- nal Revenue Service filed a tax lien on all of Rogers Cleaning Contractors' property and rights to property.9 Subsequently, in late June and early July 1981, the Inter- nal Revenue Service levied upon Respondent Rogers' bank accounts and money due to it from at least three of its customers. 1 ° At that point, Rogers Cleaning Contractors was, for all practical purposes, unable to carry on in business. It lacked the funds to meet its payroll for the last week of June, and the liens and levies by the Internal Revenue 5 There were at least two other nonfamily member stockholders in the past, but the parties stipulated that these two individuals, identified as Kerry Mueller and Harvey Bielfelt, ceased to be stockholders in March 1980 a At the time of their resignation as secretary and vice president, re- spectively, of the corporation , Debra and Trudy Rogers each owned ap- proximately 14 percent of the corporation's stock. They did not receive anything of value for the return of their shares of stock to the corpora- tion. 7 Richard Rogers testified that a year later, in March 1982, he and his wife actually did move to Tennessee, where he owns a mobile home park and campground. 3 Debra Rogers testified that she applied for "my workmen's comp " in April, opened a bank account in the name of Olmsted Cleaning Con- tractors in April or May 1981, and ordered letterhead stationery in May or June 9 The amount of the lien was $25,570 64. io Notices of Levy were issued to BancOhio National Bank on June 26, 1981 , and to American Airlines, Air Canada, and Midway Airlines on July 1, 1981 ROGERS CLEANING CONTRACTORS Service effectively precluded any realistic possibility that the company could raise additional cash to remain in business. The principal assets of Rogers Cleaning Con- tractors, consisting of its equipment and supplies, and business goodwill and its customers, therefore, were of no value, unless some means could be found to continue in the business of providing service to its customers. The method chosen by Richard Rogers to salvage what he could from Rogers Cleaning Contractors was to set up a new business to take over as many of his old customers as possible. The vehicle chosen for this pur- pose by Richard Rogers and his daughters, Debra and Trudy, who, like their father, would be left without work and income by the failure of Rogers Cleaning Con- tractors, was the daughters' nascent cleaning business, Olmsted Cleaning Contractors, which at that point was actually little more than an idea. Richard Rogers and his daughters worked quickly, however, and it did not take long before Olmsted took on form and substance, as well. Five days later, on July 6, 1981, Olmsted Cleaning Contractors, Inc. was incorporated. Its stockholders were Debra and Trudy Rogers, who each owned 250 shares, or 50 percent, of the corporation's stock. The next day, July 7, 1981, Respondent Olmsted entered into an agreement with Respondent Rogers to purchase the latter's equipment, cleaning supplies, and vehicles.1' Under the terms of the agreement, Respondent Olmsted promised to pay $2984.68 and to assume Respondent Rogers' outstanding obligations to $ancOhio in an amount not exceeding $16,000.12 Meanwhile, during the week of July 6, 1981, Richard Rogers visited most, if not all, his customers and solicit- ed their business for Olmsted Cleaning Contractors. Roger's offered terms and services by Olmsted which were approximately the same as offered by Rogers Cleaning Contractors. As a result of Richard Rogers' ef- forts, most of Respondent Rogers' customers agreed to transfer their business to Respondent Olmsted.13 Also, during the week of July 6, Richard Rogers and other supervisory employees of Respondent Rogers vis- ited all of the Rogers Cleaning Contractors jobsites and notified all of Respondent Rogers' employees that the Company was going out of business. The employees were given Olmsted Cleaning Contractors job applica- tions, which they were told to submit if they wanted jobs, and were told that Olmsted would be nonunion and would pay lower wages and not offer the benefits which the employees had received under the collective-bargain- ing agreement between Respondent Rogers and Local 47,14 II The agreement was signed by Debra Rogers, as president of Re- spondent Olmsted, and Richard Rogers, as president of Respondent Rogers. 12 Richard Rogers set the value of the equipment, supplies, and vehi- cles included in the agreement . There was no independent appraisal. 's Richard Rogers testified that initially all but one of Respondent Rogers' former major customers agreed to transfer their business to Re- spondent Olmsted. 14 The employees were told their pay would be lowered from $5.16 per hour to $5 per hour, and there would be no benefits 485 The result of the preparations by Richard Rogers and his daughter was the orderly phasing out of Rogers Cleaning Contractors and the transferral of its assets and most of its customers to Olmsted Cleaning Contractors, which opened for business on July 13, 1981, without any break or interruption in service to the customers. On its first day in business, Olmsted Cleaning Contractors es- sentially provided the same service to the same custom- ers,15 at the same price as had been charged by Rogers Cleaning Contractors, using the same employees,16 su- pervisors,17 equipment, and offices.'s Richard Rogers was not a stockholder, officer, or di- rector of the new business,19 but he was carried on its payroll as a part-time consultant,20 at a salary of $350 per week.21 In addition to soliciting new business for Olmsted and handling customer contacts,22 Richard Rogers gave directions to Olmsted's supervisors,23 was involved in employee discipline,24 and acted as Olmst- ed's operations manager for a 2-week period of time in August 1981.25 Even though Rogers Cleaning Contractors was unable to meet its payroll after June 21, 1981, its employees con- tinued working for the Company until it went out of business about July 10, 1981, after which most of them 15 According to Richard Rogers, all 15 of Olmsted's customers on July 13, 1981, were former customers of Rogers Cleaning Contractors. Debra Rogers, on the other hand, testified that Olmsted started with 13 customers, of which 9 were former customers of Rogers Cleaning Con- tractors is Only two of Olmsted's employees on July 13, 1981, were not former employees of Rogers Cleaning Contractors Nine of Respondent Rogers employees did not apply for jobs with Olmsted, and three former Rogers' employees who did apply were not hired-Ann Gulan, Judy Thompson, and Laura Murphy. The former Rogers employees hired by Olmsted kept the same work hours and same job assignments. 17 Although job titles changed, the parties stipulated the supervisors were the same. is The parties stipulated that both Rogers and Olmsted occupied of- fices at 8660 Columbia Road, Olmsted Falls, Ohio, in a building owned by Julia Rogers Although Rogers Cleaning Contractors occupied the space until July 10, 1981, when it went out of business, the entire rent for the month of July was paid by Olmsted. 19 Olmsted Cleaning Contractors' sole stockholders, officers, and di- rectors were Debra and Trudy Rogers, who held concurrently the offices of president and treasurer, and vice president and secretary, respectively. 20 Richard Rogers described himself as a "troubleshooter" for his daughters. In reality, however, it is apparent from the record that he ex- ercised overall managerial supervision of the business and provided the continuity of management and business experience needed to keep the business going until his daughters gained enough knowledge and experi- ence of their own to carry on alone. 21 Richard Rogers' salary was substantially greater than that paid by Olmsted to anyone else, including its owners (Debra and Trudy Rogers drew $250 per week, each) and other supervisors. Richard Rogers appar- ently continued to draw this salary from Olmsted until he moved to Ten- nessee in March 1982, although, by his own admission, as time passed he devoted less of his time to Olmsted's business. 22 Olmsted's advertisement in the telephone directory yellow pages re- quests callers to ask for "Dick Rogers," and makes the claim of "Quality Cleaning for Over 36 years." 23 Lillian Previts, an Olmsted employee called as a witness by the General Counsel, testified that some time after Olmsted started , Esther Ellis, her supervisor, indicated she received orders from Dick Rogers. 24 Francine Rowe, a former employee of Olmsted and a former em- ployee of Rogers Cleaning Contractors, testified that soon after Olmsted started in business, she was fired by Richard Rogers 25 Richard Rogers acknowledged that he acted as Olmsted 's operations manager for 2 weeks in August and September 1981, while the regular operations manager was on vacation 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to work for Olmsted Cleaning Contractors, Shortly after Olmsted began operations, Debra and Trudy Rogers, reportedly using their personal funds, paid the wages due to the former Rogers employees for their work for Rogers during the period from June 21 through July 10, 1981.26 Prior to expiration of the collective-bargaining agree- ment between Local 47 and Rogers Cleaning Contrac- tors on April 30, 1981, negotiations on a new multiem- ployer contract began between the Union and the Con- tractors Multi-Employer Bargaining Group, of which Rogers Cleaning Contractors was then a member.27 Finding himself in disagreement with other members of the bargaining group over strategy, however, Rogers withdrew Rogers Cleaning Contractors from the bar- gaining group, effective April 30, 1981. By letter of May 1, 1981, the bargaining group's representative informed the president of Local 47 of the withdrawal of Rogers Cleaning Contractors from the bargaining group. After April 30, 1981,28 Richard Rogers participated in several separate bargaining sessions with Local 47's rep- resentatives, during which he declined to agree to some of the contract provisions already negotiated by the Union and the bargaining group . Instead, citing financial losses,29 Rogers requested concessions from the Union concerning pay, benefits, and working conditions. The Union refused to accept terms less favorable than con- tained in the contract it had negotiated with Contractors Multi-Employer Bargaining Group, and even though there apparently was agreement between Rogers Clean- ing Contractors and Local 47 on all except five or six provisions, the June 23, 1981 bargaining session, which proved to be the last meeting between the two parties, ended without agreement on a contract. Although the June 23 meeting also ended without a specific date being set for further discussions, there is no doubt that the par- ties contemplated further bargaining sessions.30 The Union apparently made no request for another meeting between June 23 and July 10, 1981, when Rogers Clean- ing Contractors went out of business; but, neither did Rogers Cleaning Contractors give notice to the Union in the interim that it was going out of business.31 26 The employees were paid in cash for 1 week , and by checks drawn on the bank account of Olmsted for the other According to Richard Rogers, the entire obligation was approximately $8000 27 Richard Rogers testified that he attended three bargaining sessions prior to April 30, 1981. 28 Rogers Cleaning Contractors continued to observe the terms of the expired collective-bargaining agreement after April 30, 1981, except for the provisions requiring it to make periodic payments to Local 47's health and welfare and pension funds. 29 According to a June 5 , 1981 letter from Richard Rogers and his at- torney, Peter A. Hessler, addressed to Local 47, Rogers Cleaning Con- tractors had suffered net losses of approximately $48,000 in 1979, $29,000 in 1980, and $8000 in the first quarter of 1981. 30 Richard Rogers testified that at the end of the June 23 meeting, he "told Joe [Joseph Murphy, the president of Local 47] to contact David [David Hessler, Rogers' attorney] at any time he wanted to set up the next meeting. 31 Nor, for that matter, did Olmsted give the Union notice it was start- ing in business But, the Union was not entirely in the dark as to the changes taking place; Rogers' union employees were told of the pending closing of Rogers Cleaning Contractors and starting up of Olmsted Cleaning Contractors , and there is evidence in the record of a union meeting on the subject which was held on July 13, 1981 Some time in July 1981, Local 47 initiated contact with Olmsted Cleaning Contractors concerning the wages owed to the former Rogers employees,32 and to ascertain if Olmsted Cleaning Contractors would sign a contract with the Union. Initially, Debra Rogers, speak- ing for Olmsted, took the position that Olmsted would not then enter into a union contract. Subseqently, how- ever, on August 13, 1981, Olmsted and Local 47 entered into a recognition agreement, ' under which Olmsted rec- ognized Local 47 as the exclusive collective-bargaining agent for its janitorial employees ,33 and agreed to begin negotiations on a new collective-bargaining agreement on August 18, 1981. The negotiating session took place, as agreed, but no agreement on a contract was reached, and there were no further bargaining sessions between the parties.34 Debra Rogers, testifying as president of Olmsted, ac- knowledged that Olmsted has never made any payments to Local 47's health and welfare and pension funds.35 II. ISSUES The issues raised by the complaint and evidence in this case can be summarized as follows: (1) Are Rogers Cleaining Contractors , Inc., and Olmst- ed Cleaning Contractors, Inc. (together referred to as the Respondent), alter egos and a single employer within the meaning of the Act? (2) Did Respondent violate Section 8(a)(1), (3), and (5) of the Act by: (a) About the last week of April 1981, acting , through its agent and supervisor, Richard Rogers, during a tele- phone conversation, threaten its employee, Laura Murphy, because of her union activities and/or sympa- thies? (b) About July 13, 1981, terminating the employment of its employees, Laura Murphy and Ann Gulan, and re- fusing thereafter to reinstate them, because they had joined, supported , or assisted a union and engaged in 32 As previously noted, Debra and Trudy Rogers and Olmsted Clean- ing Contractors paid the former employees of Rogers Cleaning Contrac- tors the wages they were due for the last 2 weeks during which Rogers Cleaning Contractors was in operation. 33 The recognition agreement states that Olmsted Cleaning Contrac- tors began operations about July 1, 1981 , performing the same cleaning work previously performed by Rogers Cleaning Contractors for some of the same customers, and that a majority of the initial employees of Ol fist- ed Cleaning Contractors were former employees of Rogers ' Cleaning Contractors. The recognition agreement covers all of Olmsted Cleaning Contractors' employees engaged in janitorial work, excluding office em- ployees and supervisors , and also excluding employees working 15 hours or less where only one employee is engaged in performing cleaning work for a customer which has only one location 34 It does not appear that Local 47 requested further bargaining ses- sions after August 18, 1981 Instead, the Union initiated proceedings under the National Labor Relations Act by filing an unfair labor practice charge against Olmsted Cleaning Contractors on August 20, 1981, alleg- ing refusal by the employer to hire Ann Gullan, Judy Thompson, and Laura Murphy because of their activities on behalf of the Union. In a second charge, filed on August 28, 1981 , the Union alleged that Olmsted Cleaning Contractors had failed to bargain in good faith with Local 47 3s The parties stipulated that Rogers Cleaning Contractors owes to the trustees of Local 47's health and welfare and pension funds a sum of money representing contributions and assessments which it failed to pay to the various funds during the period from October 1, 1979, through June 30, 1981 ROGERS CLEANING CONTRACTORS concerted activities for the purpose of collective bargain- ing and other mutual aid or protection? (c) About July 10, 1981, acting through its agent and supervisor, Bob Smith, bypass the Union (Local 47) and deal directly with employees represented by the Union, and inform the employees that they would have to accept reduced wages and loss of benefits as a condition of continued employment? (d) About July 10, 1981, or shortly thereafter, the e Kact date being unknown, unilaterally changing wage rates by reducing hourly wage rates of its employees for whom the Union was the duly recognized and designat- ed collective-bargaining representative? (e) About July 10, 1981, the exact date being un- known, and since that time,36 unilaterally failing and re- fusing to make payment to the Union's health and wel- fare fund and pension funds? (f) About July 13, 1981, unilaterally changing the ap- plication of its rule for reporting off work, so that the rule became more onerous for employment? (g) About July 13, 1981, terminating the employment of its employee, Judy Thompson, for an offense which prior to its unilateral change of its rule for reporting off work would not have resulted in disciplinary action? The General Counsel argues that Olmsted Cleaning Contractors, Inc. is merely a "disguised continuance" of Rogers Cleaning Contractors, Inc., because the evidence demonstrates that the two enterprises have substantially identical management, business purposes, operations, equipment, customers, and supervision. Although there is no identity of ownership, the General Counsel concedes, identical corporate ownership is not the "sine qua non of alter ego status." The two ventures were "the product of a single family operation and comprised a single continu- ous entity," argues the General Counsel, and in the pres- ence of all of the other substantially identical factors, closed family corporations may be alter egos in the ab- sence of "identical" ownership. Because the two enterprises are alter egos, continues the General Counsel's argument, and therefore consid- ered to be one employer under the Act, the failure of Olmsted to continue the employment of three former employees of Rogers (Laura Murphy, Ann Gulan, and Judy Thompson) was actually a termination of their em- ployment, or discharge. Based on the evidence, the Gen- eral Counsel asserts, it is clear that the Respondent vio- lated the Act, because Laura Murphy was first threat- ened by Richard Rogers with discharge because of her union activities, then, subsequently, her employment, as well as that of Ann Gulan, was terminated by Olmsted Cleaning Contractors for the same reason. The termina- tion of Judy Thompson's employment by Olmsted Clean- ing Contractors also violated the Act because she was discharged for violating a reporting to work rule which 36 On a motion of the General Counsel, made and granted during the trial, par. 13(b) of the complaint was amended to insert the words "and since that time," after the word "unknown," so that as amended, par 13(u) alleges that: "On or about July 10, 1981, or shortly thereafter, the exact date being unknown, and since that time, Respondent unilaterally failed and refused to make payments to the Union's health and welfare fund and pension fund " 487 the Respondent had unilaterally, without notice to the Union, instituted. In the General Counsel's view, no impasse was ever reached between Respondent Rogers Cleaning Contrac- tors, Inc., and Local 47 during their negotiations for the purpose of renewing their collective-bargaining agree- ment which had expired on April 30, 1981, and, there- fore, Respondent Olmsted Cleaning Contractors, Inc., as the alter ego of Rogers, was obliged to recognize and bargain with Local 47, and, in the interim, abide by the terms of the expired agreement. Its failure to do so, argues the General Counsel, by bypassing the Union and directly contacting the employees concerning the terms and conditions of their employment, and unilaterally changing wages and working conditions, as well as by failing to make payments to Local 47's health and wel- fare fund and pension fund, without notifying the Union beforehand or giving it an opportunity to bargain, was a clear failure to bargain in violation of the Act. The Charging Party's theory of the case is generally the same as that of the General Counsel, except about the matter of Respondent's failure to make payments, as required under the terms of the collective-bargaining agreement which expired on April 30, 1981, to Local 47's health and welfare fund and pension fund. The Charging Party takes exception to the General Counsel's conclusion that the Respondent is liable only for contri- butions to the funds which became due on July 10, 1981, and thereafter. Instead, argues the Charging Party, inas- much as Rogers Cleaning Contractors, Inc., and Olmsted Cleaning Contractors, Inc., are alter egos, and thus one employer for purposes of the Act, and are collectively referred to in the complaint as the "Respondent," Olmst- ed is not only responsible for its own contributions which became due about July 10, 1981, but also for the failure of Rogers Cleaning Contractors, Inc., its alter ego, prior to that date, to make its contractually required payments. Conceding that the complaint charges as an unfair labor practice only the Respondent's failure to make payments about July 10, 1981, the approximate date when Rogers went out of business and Olmsted began operations, the Charging Party argues that the Re- spondent was fully and fairly aware of its theory prior to trial, and that the issue was fully and fairly litigated at trial. The Respondent, for its part, argues that Rogers and Olmsted were not alter egos but, instead, were merely successor employers. As such, maintains Respondent, Olmsted had the right to offer different terms and condi- tions of employment from those previously offered by Rogers. By extension, therefore, Olmsted did not violate the Act because of its refusal to hire Judy Thompson be- cause of an alleged change in the reporting off work rules. But, further argues the Respondent, even if Rogers and Olmsted were to be considered alter egos, a status which Respondent does not concede, Respondent Olmst- ed was free to unilaterally impose less favorable terms and conditions of employment, because Respondent Rogers and Local 47 had earlier reached an impasse in negotiations for the purpose of reaching accord on a new collective-bargaining agreement to replace the one which 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had expired on April 30, 1981 . Finally, asserts Respond- ent, the refusal of Olmsted to hire Laura Murphy and Ann Gulan was not motivated by antiunion animus, but, rather, was justified because the two former Rogers em- ployees were physically unable to perform a required aspect of their jobs, that of wet mopping. III. FINDINGS AND CONCLUSIONS A. Alter Ego Status On the evidence before me, I find and conclude that Olmsted Cleaning Contractors, Inc. was the disguised continuance or alter ego of Rogers Cleaning Contrac- tors, Inc. But for Rogers' financial problems, which became in- tolerably burdensome when tax liens were filed by the Internal Revenue Service in mid-1981 , Rogers Cleaning Contractors would not have gone out of business when it did, and Olmsted Cleaning Contractors, Inc., at that par- ticular time , would not have been formed or taken over a substantial part of Rogers ' business as its successor. Rogers was a closed family-owned business , which was the primary, if not only, livelihood of Richard Rogers and his two daughters , Debra and Trudy Rogers, who, together with Richard Rogers' wife, Julia Rogers, prior to May 10, 1981 , owned all of the corporation's stock.37 Faced with the prospect of losing their livelihood and the assets of the corporation , the most valuable of which, of course, were its equipment and its customers and busi- ness goodwill, Richard Rogers and his daughters seized upon the device of setting up a new corporation , which, using Rogers Cleaning Contractors' equipment, supplies, and employees , hopefully would be able to attract the business of many Rogers' customers and carry on in Rogers' place. The successor which the Rogers family set up for that purpose was Olmsted Cleaning Contrac- tors, Inc., whose stockholders, officers, and directors were Debra and Trudy Rogers. Olmsted Cleaning Con- tractors, with Richard Rogers acting as consultant and salesman, purchased Rogers Cleaning Contractors' equip- ment and supplies on very favorable terms, retained its management , hired most of its employees, and, using the same business offices, went into operation servicing a substantial number of Rogers' former customers to whom Olmsted provided the same services at the same price, all of which was accomplished in 1 week's time without any break in service to the customers who agreed to transfer their business to Olmsted. Although it is true that Richard Rogers, who clearly dominated the management of Rogers Cleaning Contrac- tors and controlled the majority of its stock,38 did not 34 Prior to May 10, 1981, the stockholders of Rogers Cleaning Con- tractors were Richard Rogers, his wife, Julia Rogers, and two daughters, Debra and Trudy Rogers. On May 10, 1981, in order to avoid personal liability for unpaid taxes owed by Rogers Cleaning Contractors, Debra and Trudy Rogers resigned as officers of the corporation and returned their stock. 38 Richard Rogers, with over 30 years ' experience in the cleaning busi- ness, formed Rogers Cleaning Contractors, together with his wife, owned the majority of its stock, managed its business, and made all-important business decisions His daughters, although officers of the corporation and minority stockholders, were clerical employees of the Company, who did not participate in its day-to-day management. have an ownership interest in Olmsted , it is also clear that at the outset he dominated Olmsted's management. Even crediting the testimony of Richard Rogers that he was thinking of getting out of the cleaning business, and the testimony of his daughter , Debra Rogers, that she and her sister hoped to start their own cleaning busi- ness,39 neither the father nor his daughters intended to go through with their long-range plans when Rogers Cleaning Contractors' tax and other financial troubles forced it out of business. In particular, it is apparent that Debra and Trudy Rogers, although they may have gained considerable ex- perience in running Rogers Cleaning Contractor 's office, lacked overall management experience in the day-to-day operation of the business, especially in such important areas as customer contacts and personnel management. For Olmsted Cleaning Contractors to succeed in business on the short notice with which it was set up, it is obvi- ous that Richard Rogers had to supply and continue to supply the management knowledge and business experi- ence which his daughters lacked, until such future time as his daughters were ready to take over the business themselves. In the interim, Richard Rogers , who it turns out received a higher salary from Olmsted than did his daughters who owned the business-a strong indicator that his services were of more value to Olmsted than those of his daughters-began training his daughters to take over the management of the business , while exercis- ing overall supervision himself and making his own ar- rangements to move to Tennessee and devote his atten- tion to other business interests . Thus, it was not until nearly 10 months later, when apparently it suited the in- terests of Richard Rogers and his daughters, that Rich- ard Rogers moved from the Cleveland area, stopped drawing a salary from Olmsted, and left the operation of Olmsted entirely to his daughters. In summary, under Olmsted Cleaning Contractors, the business of the defunct Rogers Cleaning Contractors "continued under the same roof with the same employees and management, the same business, same customers, same equipment. The only change really was that of the name of the business and a shuffling of ownership among the family."40 As stated by the National Labor Relations Board in Crawford Door Sales Co., 226 NLRB 1144 (1976), "generally we have found alter ego status where the two enterprises have `substantially identical' manage- ment, business purpose, operation, equipment, customers, and supervisors, as well as ownership."41 In this case, as in the Crawford Door Sales Co., case, there was a change in ownership of Rogers Cleaning Contractors and Olmst- ed Cleaning Contractors, but at the time material to de- termination of alter ego status ,42 both were wholly- 39 Debra Rogers stated that she did not intend to go into competition with her father's business 40 Sturdevant Roofing Co., 238 NLRB 186, 188 (1978) 4i Crawford Door Sales Co., supra at 1144 42 Alter ego status must be determined based on the developments which took place at the time Olmsted was formed in July 1981 , not what may have happened at a later time George C. Schearer Exhibitors Delivery Service, 262 NLRB 623 (1982) ROGERS CLEANING CONTRACTORS 489 owned by members of the Rogers family and "never lost their character as a closed corporation." 43 In such cir- cumstances, the Board, in Crawford Door Sales Co., found that ownership and control in both enterprises were sub- stantially identical. Likewise, in this case, I find that ownership and control of Rogers Cleaning Contractors and Olmsted Cleaning Contractors, at the time Olmsted was formed and went into business, was substantially identical.44 In view of this, and because there is no doubt that the two Respondents have common business purpose, management, operations, equipment, customers, and supervision, I find that Olmsted Cleaning Contrac- tors is the alter ego of Rogers Cleaning Contractors. B. Obligation of Alter Ego to Bargain The Board stated in Denzil S. Alkire, "It is well estab- lished that an alter ego has the same obligation to em- ployees as the original employer."45 Although an em- ployer may go out of business rather than enter into a contract with a union, once an employer and a union do enter into a collective-bargaining agreement, "the em- ployer may not `escape' from it through the expedient of .. . `going out of business' only to resume it in another form."46 It is, of course, an unfair labor practice, in vio- lation of Section 8(a)(5) of the Act, "for an employer to make a change affecting any matter which is a mandato- ry subject for bargaining without first advising the bar- gaining representative and providing it with an opportu- nity to bargain concerning the change."47 Thus, in the instant case if, at the time it went out of business, Rogers Cleaning Contractors was obligated under the terms of a collective-bargaining agreement with the Charging Union in this case to bargain over wages, hours, and other conditions of employment, and to make payments to the Union's health and welfare fund and pension fund, then, as alter ego, Olmsted Cleaning Contractors had the same obligations. I find, in this case, that Olmsted Cleaning Contractors was bound to the same extent Rogers Cleaning Contrac- tors would have been to bargain with Local Union 47 over such matters as pay, benefits, work rules, and other terms and conditions of employment, and to make pay- ments to Local 47's health and welfare and pension fund. The refusal by Olmsted in July 1981 to recognize the Local 47 as bargaining representative of its employees and its bypassing of the Local 47 in imposing unilateral changes concerning matters over which it was obligated to bargain with Local 47 were unfair labor practices, in violation of Section 8(a)(1) and (5) of the Act, as alleged. The real question here does not concern the factual ex- istence of a collective-bargaining agreement to which Rogers Cleaning Contractors was a party, nor even whether or not Olmsted Cleaning Contractors refused initially to recognize Local 47 as the bargaining repre- 43 Crawford Door Sales Co, supra at 1144 14 The Board similarly held in other cases that identical corporate ownership is not the sine qua non of alter ego status . See J. M. Tanaka Construction, 249 NLRB 238 (1980), Denzil S. Alkire, 259 NLRB 1323 (1982), '15 Supra at 1325 48 P A. Hayes Inc., 226 NLRB 230, 235 (1976). 114 Production Plated Plastics, 254 NLRB 560, 563 ( 1981). sentative of its employees and unilaterally imposed changes concerning matters covered by the expired col- lective-bargaining agreement without notice to the Union or without affording it an opportunity to bargain. All of this was stipulated,48 or conceded by Respondent's wit- nesses during their testimony.49 What is actually at issue here is whether or not Olmsted Cleaning Contractors had any obligation to recognize the Union, notify it of proposed changes in pay, benefits, or other working con- ditions, and give the Union the opportunity to bargain over the changes, before putting them into effect. On this issue, Respondent first contended that Olmsted Cleaning Contractors was a successor employer of Rogers Clean- ing Contractors, and not its alter ego and, therefore, was free to set the initial terms on which it would hire the employees of its predecessor.50 As I have already found as a matter of fact and law that Olmsted Cleaning Con- tractors was the alter ego of Rogers Cleaning Contrac- tors, that argument is without merit, and requires no fur- ther discussion. Also without merit is Respondent's alternative argu- ment that even assuming, arguendo, alter ego status, Olmsted, nevertheless, was still entitled to unilaterally change the terms and conditions of employment because Rogers Cleaning Contractors had withdrawn from the multiemployer bargaining group51 and conducted sepa- rate negotiations with Local 47, which had broken down when a clear impasse had been reached over the issue of employees' wages and benefits. It is well settled that even though a collective-bargain- ing agreement may have expired, an employer has a duty to continue to consult and negotiate with the union, and 48 As previously noted, the parties stipulated that there was a collec- tive-bargaining agreement, which expired on April 30, 1981, between Rogers Cleaning Contractors and Local 47, the Charging Union, as the exclusive bargaining representative for the purpose of collective bargain- ing of Rogers' nonsupervisory cleaning employees. The terms of that agreement covered such matters as pay, benefits, and other working con- ditions, and provided that Rogers was obligated to make periodic pay- ments to the Union's health and welfare fund and pension fund. 49 Richard Rogers and Debra Rogers acknowledged during their testi- mony that before Olmsted Cleaning Contractors went into business on July 13, 1981, it had announced to its employees that it would be a non- union employer and that it would reduce the wage scale previously paid Rogers Cleaning Contractors and terminate all benefits previously re- ceived by the employees while working for Rogers, all without notice to the Union or affording it an opportunity to bargain. Debra Rogers also acknowledged that Olmsted never made payments to the Union's health and welfare fund and pension fund so In support of this proposition, Respondent cites NLRB v. Burns Se- curity Services, 406 U S. 272 (1972), and Spruce Up Corp, 209 NLRB 194 (1974) Inasmuch as, however, I have found that Olmsted Cleaning Con- tractors was the alter ego of Rogers Cleaning Contractors, it is unneces- sary to decide here the question of the extent to which Olmsted could have gone in setting the initial terms of employment of its predecessor's former employees, if Olmsted was, itself, no more than a successor em- ployer s i The issue of whether or not Rogers Cleaning Contractors' with- drawal from the multiemployer bargaining group after negotiations had begun on a new contract was proper is not before me It was not alleged in the complaint to be an unfair labor practice, although at trial, Richard Rogers testified that he attended three bargaining sessions as a member of the multiemployer bargaining group before withdrawing his company from the group effective April 30, 1981. See Nelson Electric v. NLRB, 638 F.2d 965 (6th Cir 1981), in which the Court of Appeals for the Sixth Circuit noted that withdrawal from a multiemployer bargaining unit is untimely if attempted after the commencement of negotiations 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that an employer violates Section 8(a)(5) of the Act by unilaterally changing terms and conditions of employ- ment prior to the negoiations reaching a genuine im- passe.52 A genuine impasse is defined as "synonymous with a deadlock; the parties have discussed a subject or subjects in good faith, and despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its respective position."53 The facts here do not support a finding of genuine im- passe because the negotiating sessions between the par- ties were few in number, agreement had been reached on all but five or six issues, and there is no evidence that either side had reached final uncompromising positions or felt further negotiations would be useless . Indeed, al- though at the last meeting between Local Union 47 and Rogers Cleaning Contractors the two sides were in dis- agreement over issues relating to pay and benefits, the meeting ended with Richard Rogers requesting the Union to contact his attorney anytime they wanted to set up another meeting. The Union did not request another meeting between that date (June 23, 1981), and the date Rogers Cleaning Contractors went out of business (July 10, 1981). Only 17 days elapsed between the two events and Rogers gave no notice to the Union of its intention to close down nor did it give the Union any opportunity to bargain over the effects of the closing on Rogers' em- ployees.54 Under these conditions, no reasonable grounds exist to support an inference that the Union felt an impasse had been reached and it was not prepared to negotiate further, or that it had delayed for an unreason- able period of time without calling for additional bar- gaining sessions. Conversely, Richard Rogers, on behalf of Rogers Cleaning Contractors, gave every indication that he was prepared to negotiate further with the Union. Whether or not the two sides would have eventually reached agreement is not the question. "The Act does not compel agreements between employers and employ- ees."55 What the Act does require, however, is that the employer meet with the employees' collective-bargaining representative, in this case, Local 47, and consider any proprosals the union may advance.56 Before there can be said to be an impasse, the parties must not only meet to- gether, but they must have discussed the proposal before them in good faith and they must have devoted their best efforts to achieving agreement.57 Where, as here, the parties had just begun to negotiate, there was not sufficient time or opportunity for them to devote their best efforts to reaching agreement, and the evidence of deadlock cited by Respondent is not persua- 52 Electric Machinery Co. v NLRB, 653 F 2d 958 (5th Cir 1981) 53 Electric Machinery Co v. NLRB, supra at 963 54 Rogers Cleaning Contractors' failure to give notice to the Union of its intention to go out of business and to give the Union an opportunity to bargain over the effects on the employees is not alleged in the com- plaint to be an unfair labor practice . Accordingly, the issue is not before me in this proceeding It should be noted in passing , however, that an employer's failure to give notice of closing to the union representing its employees, and to give the union an opportunity to bargain on the effects of the closing on the employees, constitutes an unfair labor practice First National Corp v NLRB, 452 U S 666 (1981). 55 First National Corp v. NLRB, supra at 678. 55 Id at 678-679 57 Electrical Machinery Corp. v NLRB, supra. sive. Therefore, I find that there was no impasse and, in the absence of an impasse , neither Respondent Rogers Cleaning Contractors, nor its alter ego, Respondent Olm- stead Cleaning Contractors, had the right to impose uni- lateral changes concerning wages, hours, and other terms and conditions of employment, regardless of whether or not the changes were within the scope of preimpasse proposals. Here, Respondent Olmsted instituted unilateral changes, by reducing pay rates and eliminating benefits, and that constituted a refusal to bargain collectively with the Union, in violation of Section 8(a)(1) and (5). The unilateral changes instituted by Respondent were not limited to employee pay and benefits, however. Re- spondent Olmstead Cleaning Contractors also failed to make payments, as provided in the expired collective- bargaining contract between Rogers Cleaning Contrac- tors, its alter ego, and Union Local 47, to the latter's health and welfare fund and pension fund.58 58 Respondent Rogers Cleaning Contractors was also in arrears in its payments to the two funds; however par. 3(B) of the complaint alleges as an unfair labor practice only Respondent's failure to make payments during the period from about July 10, 1981, and afterwards Because the beginning date coincides with the approximate date Olmsted Cleaning Contractors went into operation (the last day of services by Rogers Cleaning Contractors was July 10, 1981, the first day of services by Olmsted Cleaning Contractors was July 13, 1981 ), the failure to make payments to Local Union 47's two funds, as alleged in the complaint, is limited to Respondent Olmsted . The General Counsel refused to join in a motion to amend the complaint, offered by the Charging Party during the trial, which the latter argues would have had the effect of broadening par. 13(B) of the complaint to include as an unfair labor practice Re- spondent Rogers' failure and refusal to make payments to the two funds during the period from October 1, 1980, through June 30, 1981. In the absence of agreement by the General Counsel to join in the proposed amendment, the amendment to the complaint proposed by the Charging Party was denied A complaint may not be amended at trial except on motion made or joined in by the General Counsel Sec. 3(d) of the Act, cf. Electrical Workers Local 134 IBEW v NLRB, 487 F.2d 1113 (D C Car. 1972). The Charging Party, in its brief, asserts that, as used in the complaint, the term "Respondent" includes both Rogers Cleaning Con- tractors and Olmsted Cleaning Contractors, and that the language in par 13(B) alleging the "Respondent" unilaterally failed and refused to make payments necessarily encompasses payments of contributions already due and owing on July 10, 1981, as well as payments coming due after that time Thus, reasons the Charging Party, Olmsted Cleaning Contractors should be held liable for the payments which its alter ego failed to make It is well settled, however, that each failure to make required periodic payments to a union's benefit fund constitutes a separate and distinct vio- lation of an employer's bargaining obligation. Farmingdale Iron Works, 249 NLRB 98 (1980) Thus, the Charging Party's theory that the failure to make payments to the funds amounted to cumulative continuing of- fenses is without merit, and it is plain that the language of par. 13(b) of the complaint, which refers to failure to make payments about July 10, 1981, and afterwards, does not include, directly or indirectly, any refer- ence to failure to make payments which occurred prior to July 10, 1981. (Moreover, even if it could be argued that the pre-July 10, 1981, missed payments are included within the scope of the complaint only those fail- ures to make payments which occurred in the 6-month period preceding the filing (on August 20, 1981) of the first charge in this case could be remedied Farmingdale Iron Works, supra ) Although in some instances a violation of the Act may be found even though it was not charged in the complaint, as where the issue was fully litigated at trial and the employer was not prejudiced, that is not the situation here As provided in Sec. 3(d) of the Act, the General Counsel has final authority in the prosecu- tion of complaints before the Board, and here, even though fully aware of facts indicating that Respondent Rogers also failed to make required payments to Local Union 47's two funds, the General Counsel declined to make that alleged violation a part of his case ROGERS CLEANING CONTRACTORS The unilateral failure of an employer to make contrac- tually required periodic payments to a union 's health and welfare and pension fund is a violation of the employer's obligation to bargain , and constitutes a violation of Sec- tion 8(a)(5) of the Act .59 The employer's obligation to continue making pension and health and welfare contri- butions continues after expiration of the collective-bar- gaining agreement requiring such contributions. 60 As alter ego of Rogers Cleaning Contractors , Olmsted Cleaning Contractors was obligated to continue making the pension, health, and welfare contributions required by the expired collective-bargaining agreement with Local Union 47, until such time as a new contract was agreed on, or an impasse was reached in the negotiations over a new contract.61 Here, as previously stated, no im- passe had been reached in the bargaining process and, therefore, Respondent Olmsted's unilateral refusal and failure to make pension, health, and welfare contribu- tions, as required by the expired contract between its alter ego predecessor and Local Union 47, was a viola- tion of Olmsted's obligation to bargain and, as such, a violation of Section 8(a)(5) of the Act. It is well established that an employer acts in bad faith and violates the Act by dealing directly with employees, who are represented by an exclusive collective-bargain- ing representative, concerning wages, hours, and other terms and conditions of employment, particularly when the employer is engaged in negotiations with the bargain- ing representative concerning these matters.62 In the in- stant case, as previously held, Rogers Cleaning Contrac- tors and Local Union 47, the exclusive bargaining repre- sentative of Rogers' employees, were engaged in bargain- ing over the terms of a new contract and, although they had reached no agreement on wages and several other apparently key issues, their disagreement had not pro- gressed to the point of a genuine impasse when Rogers was supplanted in business by its alter ego, Olmsted Cleaning Contractors . As alter ego of Rogers, Olmsted had the same duty to bargain with Local Union 47 as did Rogers. When Olmsted bypassed the Union and went di- rectly to Rogers' employees during the workweek ending July 10, 1981, and unilaterally announced differ- ent wages and terms and conditions of employment for those employees who wished to work for Olmsted, the latter breached its obligation to bargain in violation of Section 8(a)(1) and (5) of the Act. C. Discharge of Judy Thompson Judy Thompson was one of three employees of Rogers Cleaning Contractors who were denied employment by Rogers' alter ego, Olmsted Cleaning Contractors. The 69 Farmingdale Iron Works, 249 NLRB 98 (1980). 50 Farmingdale Iron Works, supra. 61 The requirement to make pension , health, and welfare contributions is directly related to employee wages and terms and conditions of em- ployment, and as such it survives the expiration of a contract and cannot be altered without bargaining. A unilateral change can be made by the employer only after a genuine impasse has been reached in the bargaining process, and even then only if the unilateral change was reasonably en- compassed in a preimpasse proposal . Peerless Roofing Co., 247 NLRB 500 (1980). 82 Hiney Printing Co., 262 NLRB 157 (1982); Farm Crest Bakeries, 241 NLRB 1191, 1196 (1979). 491 facts of the matter are that on or about July 10, 1981, Judy Thompson, as did the rest of Rogers Cleaning Con- tractors employees, received an application for employ- ment by Olmsted Cleaning Contractors, which she was told to turn in when she reported for work on July 13, 1981. Finding herself unable to report for work on July 13 because of personal reasons, Thompson testified, she completed the application, and gave it to Laura Murphy, the union steward, with a request that Murphy turn in the application for her . Thompson said she also placed a telephone call to her jobsite. She spoke with Bob Smith, her supervisor, explaining her reason for being unable to report for work on time, but saying that she still intend- ed to report for work later that night. It appears , howev- er, that Thompson actually did not report for work at all that night. According to Thompson, she was told by Smith to call Olmsted's office, but when she dialed the number, she heard only a recording stating that the number was not in service . According to Murphy, when she submitted Thompson's application to Smith, he told her that there was no job opening for Thompson. When Thompson attempted to report for work the next evening, July 14, Smith told her that she was a day late and he had all the people he needed, but that he would call her when there was a job opening.63 In her trial testimony, Debra Rogers stated that she and her sister decided not to hire Thompson because "the first day she was to report for work (for Olmsted) she never showed up." Debra Rogers also testified that she did not believe that Rogers' employees were told when they received their Olmsted applications that they would not be hired if they did not report on the first day. Pointing to evidence that no employee of Rogers Cleaning Contractors had ever been fired because they had missed a day's work without calling in to report their absence,64 the General Counsel argues that the dis- charge of Thompson resulted from a unilaterally imposed stricter application of a work rule, imposed without notice to the Union, in violation of Section 8(a)(5) of the Act. Respondent takes the position that , as a successor em- ployer, Olmsted was free to establish its own hiring poli- cies and, in any event, even though there were no writ- ten work rules established by Rogers or Olmsted, both companies had an unwritten policy that if newly hired employees expected to work , they were expected to report the first night, and that because Thompson violat- ed that rule, she was not hired. 65 es Thompson was never called 94 Trial testimony suggests that there was an unwritten procedure which employees of Rogers who did not intend to report for scheduled work on a particular day were expected to follow in order to give the employer notice and time to locate a replacement. The details of the pro- cedure and whether or not Judy Thompson complied with it are not par- ticularly relevant here, because Debra Rogers testified that she was un- aware that anyone had ever been fired by Rogers Cleaning Contractors for missing a day's work without calling in. 96 The finding that Olmsted Cleaning Contractors is the alter ego of Rogers Cleaning Contractors disposes of Respondent's first argument that as a mere successor employer it was free to establish its own terms and conditions of employment, including hiring policies 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As correctly pointed out by Respondent, there is no evidence that Judy Thompson was refused employment because of antiunion animus on the part of the Respond- ent.66 However, a showing of antiunion animus is unnec- essary if an employee was discharged (in this case, not hired by a successor alter ego) as a result of an employ- er's unilateral imposition and application of a stricter work rule. As alter ego of Rogers Cleaning Contractors, Olmsted was obligated to bargain with Local Union 47 over terms and conditions of employment. Any unilateral change of terms and conditions of employment imposed by Olmsted, without notice to the Union or affording it an opportunity to bargain, is a clear violation of Section 8(a)(1) and (5).67 At issue here is the question of whether or not Olmst- ed's refusal to hire Thompson, ostensibly because she did not report for work the night of July 13, 1981, actually resulted from the application of a stricter work rule uni- laterally implemented by Olmsted. Under the circum- stances, I find that it did. It was clearly the intent of Richard Rogers and his daughters, Debra and Trudy Rogers, that Olmsted take over the business of Rogers Cleaning Contractors, with- out interruption of service, keeping as many of Rogers' former customers as possible. To accomplish this, Olmst- ed needed more than just the agreement of the custom- ers. To avoid a substantial delay, it needed Rogers' equipment and supplies, employees, and supervisors. Any appreciable delay while Olmsted acquired new equip- ment and supplies and hired and trained new employees and supervisors would surely have resulted in some or all of Rogers' customers taking their business elsewhere. That the plan, in fact, was basically to substitute one cor- porate entity for another and carry on as before is clear from the circumstances which necessitated the switch in the first place and the manner in which it was actually carried out. Olmsted was hurriedly incorporated, it occu- pied Rogers' business offices, acquired Rogers' supplies and equipment under favorable conditions, retained Rogers' supervisors, and began operations on July 13, 1981, with only two employees who had not previously worked for Rogers (12 of Rogers' employees did not go to work for Olmsted, 9 by choice and 3 who were re- fused employment), providing the same service as per- formed by Rogers, at the same price, to a substantial number of Rogers' former customers.68 As a practical matter, all of Rogers' employees became employees of Olmsted as a matter of course without it being necessary for them to do anything other than con- tinuing to do their jobs. In fact, it required positive action by either an employee of Rogers who did not want to go to work for Olmsted, or by Olmsted, as in the case of several Rogers employees whom it did not 68 The General Counsel suggests that the reason Thompson was not hired might have been because her application was submitted through a union steward. Unsupported by evidence as it is, that suggestion amounts to no more than mere speculation 67 Production Plastics, supra; Denzil S Alkire, supra. 88 The testimony is to conflict about whether on its first day of oper- ations Olmsted had 13 customers, 9 of which were former Rogers cus- tomers, or 15 customers, all of which were former Rogers customers. wish to employ, in order for a Rogers employee not to become an Olmsted employee. Whatever use Olmsted may have had for the employment applications which were distributed to all of Rogers' employees during the last week that Rogers was in business, it is clear that they were not "applications" in the sense that they were the first step by a former Rogers employee in obtaining employment by Olmsted. Because the employees of Rogers became employees of Olmsted simply on the basis of their prior employment by Rogers, for purposes of the Act, Judy Thompson was an employee of Olmsted on July 13, 1981, when Olmsted terminated her employment. The delivery of her com- pleted application to her supervisor and her telephone call to her supervisor made her intention to accept em- ployment by Olmsted unequivocally clear. The only thing which Thompson did not do on the night of July 13, 1981, was to physically report for work. As no one had previously been fired for missing work without re- porting off, Olmsted's termination of Judy Thompson's employment on that basis imposed on her a harsher sanc- tion for an infraction of an informal work rule than pre- viously imposed by Rogers Cleaning Contractors against other employees for a similar infraction, and amounted to a unilateral change in the terms and conditions of em- ployment. On the basis of the evidence before me, I conclude that the termination of Thompson's employment resulted from the application of a work rule affecting terms and conditions of employment which Respondent Olmsted Cleaning Contractors had unilaterally changed without notice to Local 47 or affording it an opportunity to bar- gain. Therefore, the termination of Thompson's employ- ment was an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act. D. Threatening Statements The General Counsel alleges that Laura Murphy, an employee of Rogers Cleaning Contractors, who was the union steward representing Rogers' employees at the Davy McKee Corporation job site, was threatened with discharge because of her union activities by Richard Rogers during the course of a telephone conversation in April 1981. According to the General Counsel, the tele- phone conversation was initiated by Laura Murphy to discuss the discharge of a fellow employee. During the course of the conversation, Rogers warned Murphy to stay out of his business or be fired, and indicated that she could either work for the Union or Rogers, but not both. In the view of the General Counsel, those statements by Rogers violated Murphy's rights guaranteed under Sec- tion 7 of the Act and were in violation of Section 8(a)(1) of the Act. I agree. According to testimony offered by Laura Murphy, she placed a telephone call to Richard Rogers in April 1981, to discuss the discharge of another employee named Francine Buchanan. According to Murphy, during the course of the conversation, Rogers said to her "Laura, stay out of my business. If you don't, I'm going to fire you too." Later in the conversation, according to Murphy, Roger stated, "Laura, let me tell you some- ROGERS CLEANING CONTRACTORS thing. You work for Art Worthy, Joe Murphy and that Union, or you work for me, but you do not work for tooth of us." Laura Murphy's husband, George Murphy, who was also called as a witness during the trial of this case, testified that at his wife's request he had listened on an extension telephone to the conversation between his wife and Richard Rogers. He had heard Richard Rogers threaten his wife with discharge on two occasions during the conversation. Respondent did not address this issue in its posthearing brief; however, Richard Rogers denied in testimony, which he gave during the trial of this case, that he had threatened to fire or discharge Laura Murphy during the April 1981 telephone conversation. Resolution of this issue obviously turns on the wit- nesses' credibility, or lack of it. Laura Murphy testified that she was threatened by Richard Rogers, and her tes- timony was corroborated by her husband, George Murphy, who testified that he had heard the threat while listening to the telephone conversation on an extension telephone. Richard Rogers, on the other hand, testified that he had made no threats during that telephone con- versation. Concerning this matter, I give greater weight to the testimony of Laura Murphy and her husband. I do not find Richard Rogers to have been candid in his testi- mony concerning many aspects of this case, particularly his relations with his employees, the Union, and Olmsted Cleaning Contractors. I do not find his bare denial that he threatened Laura Murphy to be convincing. The threats made by Richard Rogers to Laura Murphy to terminate her employment in April 1981 were clearly related to her union activities. As such, those threats constituted the unfair labor practices in violation of Section 8(a)(1) of the Act. E. Discharge of Laura Murphy and Ann Gulan Laura Murphy, the union steward at the Davy McKee worksite, and Ann Gulan, both of whom had worked for Rogers Cleaning Contractors at the Davy McKee site since 1978, were refused employment by Olmsted Clean- ing, Contractors when they reported for work on July 13, 1981, and presented their completed job applications to Bob Smith, their supervisor. Smith stated that there were no job openings for them, and that he would contact them when an opening occurred. Neither Murphy nor Gulan was ever contacted subsequently by Olmsted and offered employment. Seemingly contradicting Smith's ex- planation at the time, Debra Rogers, during testimony given in the course of the trial of this case, stated that Gulan and Murphy were not hired because they were not physically able to perform wet mopping of wash- rooms, which was a required part of their jobs. The General Counsel, on the other hand, contends that, contrary to the testimony of Debra Rogers, Murphy and Gulan were terminated by Olmsted Clean- ing Contractors because of their past activity on behalf of the Union, and as part of Olmsted's efforts to rid itself of the Union. Accordingly, argues the General Counsel, the discharges of Ann Gulan and Laura Murphy violated Section 8(a)(3) of the Act. I agree. Laura Murphy was first elected union steward in Oc- tober 1979. After she became union steward, she was in- 493 volved in a number of grievance proceedings, both on behalf of others in her capacity of union steward and on her own behalf. In addition to the grievance proceeding on behalf of Francine Buchanan, over which Richard Rogers, in the course of a telephone conversation in April 1981, threatened to discharge her because of her involvement, Murphy also became involved in grievance proceedings brought by Ann Gulan. Murphy received warning letters from Rogers Clean- ing Contractors on November 16 and 26, 1979, for tear- ing a garbage bag and talking, respectively, and was given a 3-day suspension. She filed a grievance concern- ing the warning letters which she and others had re- ceived and her 3-day suspension, which led, ultimately, to Richard Rogers agreeing to rescind her suspension and withdraw the warning letters. Laura Murphy injured her back and shoulder in Janu- ary 1980, and was off work until April 14, 1980. When she returned to work, she presented a medical certificate stating that she was physically unable to wet mop. The issue of wet mopping became significant about that time because of disagreement between Rogers Cleaning Con- tractors and its employees over whether or not the female employees were required as part of their jobs to wet mop where necessary in the areas in which they cleaned, such as in bathrooms. The employees took the position that they were not obligated under the union contract to wet mop.69 The issue came to a climax in June 1980, when Richard Rogers issued warning letters to his employees telling them that they would be re- quired to wet mop where necessary in the areas in which they cleaned. Laura Murphy, however, appealed to Bob Smith, her supervisor, on the basis of her medical certifi- cate which excluded her from wet mopping, and Richard Rogers excused her from wet mopping. She was not thereafter requested to wet mop as part of her job. About the same time in October 1979, as Laura Murphy received two warning letters and a 3-day sus- pension, Ann Gulan also received two warning letters, one for sitting down on the job and the other for taking an unauthorized work break, and on October 26, 1979, she was fired. Laura Murphy filed a grievance under the union contract on behalf of Gulan, and at a meeting be- tween Richard Rogers and union representatives at the Union's office at the end of November 1979, Richard Rogers agreed to reinstate Ann Gulan with backpay and withdraw the warning letters. Ann Gulan, too, suffered an on-the-job back injury which left her unable to perform wet mopping in the opinion of her physician. She first injured her back on June 6, 1980, and reinjured it on June 13, 1980. She was off work for the latter injury from until August 11, 1980. When she returned to work she was told by her supervi- sor, Bob Smith, that she would have to wet mop. She called on Laura Murphy and the Union for assistance, and eventually Rogers Cleaning Contractors dropped the requirement that she wet mop. However, according to Gulan, Richard Rogers changed her work assignment by 69 Up to that time, apparently, wet mopping had been largely, if not exclusively, performed by one or more male employees of Rogers Clean- ing Contractors at the Davy McKee worksite 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increasing her workload in comparison to that of other employees. A grievance filed by Gulan over this matter was eventually settled in her favor. Finally, Gulan pre- vailed in two separate workmen's compensation claims which she filed as a result of injuries sustained while em- ployed by Rogers Cleaning Contractors. It is, of course, an unfair labor practice for a successor employer to refuse to hire employees of its predecessor solely because they were union members, or engaged in union activity, or as part of the successor employer's effort to discourage union membership among his em- ployees.70 Thus, the question here is whether or not Re- spondent Olmsted refused to hire either or both Laura Murphy and Ann Gulan, two employees of its alter ego predecessor, Respondent Rogers Cleaning Contractors, because they had engaged in union activities or as part of an effort by Respondent Olmsted to discourage union membership among its employees. I find this question must be answered in the affirmative. There can be no doubt that Olmsted's refusal to hire Murphy and Gulan had nothing to do with the availabil- ity or lack of availability of work for the two former Rogers employees. According to Laura Murphy's undis- puted testimony, when she and other applicants for work reported to the Davy McKee work site on July 13, 1980, they were required to wait for the arrival of Bob Smith, the job site supervisor, before being admitted to the building. When Smith arrived, he read from a list of names, stating, "I will call off these names. You go in and wait for me at the timeclock. If I don't call your name, I don't have a enough work. I don't have any work for you." He did not call either Laura Murphy's or Ann Gulan's name. It is obvious from all of this, that for reasons of its own, not having anything to do with the amount of work available, Olmsted had decided in ad- vance, not to employ certain employees of its alter ego, Rogers Cleaning Contractors, a fact tacitly later admit- ted by Debra Rogers, president of Olmsted Cleaning Contractors. There were, it appears from this record, only two em- ployees of Rogers Cleaning Contractors whom Olmsted had made a decision in advance not to hire. They were Laura Murphy and Ann Gulan. I find that the reason given by Debra Rogers for deciding not hire Murphy and Gulan is unbelievable under the circumstances, and was a mere subterfuge designed to conceal the real reason why Murphy and Gulan were not offered em- ployment. Although Debra Rogers claimed that the reason for not hiring Murphy and Gulan was that they had physical disabilities which prevented them from wet mopping, it is evident from the record that this reason was nothing more than an excuse of convenience. What- ever physical disabilities Murphy and Gulan had, those disabilities had existed for over a year prior to Rogers Cleaning Contractors transferring its business and em- ployees to its alter ego, Olmsted Cleaning Contractors, and they had been the subject of grievance proceedings 'O Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U S. 249, 262 fn. 8 (1974), Nevis Industries, 246 NLRB 1053 (1979), Love's Bar- heque Restaurant No. 62, 245 NLRB 78 (1979); Patter's Chalet Drug, 233 NLRB 15 (1977) resolved against the employer. Once having been re- buffed in its efforts to take action against Murphy and Gulan because of their disability, as a result of union intervention, Rogers Cleaning Contractors did not again raise the issue that either Murphy or Gulan were unable to perform all of the work required of them. Curiously, that issue was not again raised until Rogers Cleaning Contractors was succeeded in business by its alter ego, Olmsted Cleaning Contractors, who announced that they would be a nonunion employer and promptly refused to hire Laura Murphy, a union steward and leading union activist, and Ann Gulan, a Rogers employee who had benefited on a number of occasions from the collective- bargaining agreement grievance procedures. On the basis of the record before me, I find that Laura Murphy and Ann Gulan were two of the most visible union activists in the employment of Rogers Cleaning Contractors, and that their union activities and their re- sorting to the collective-bargaining agreement grievance procedures were considered by Richard Rogers to be an unwanted nuisance. Indeed, Richard Rogers considered Laura Murphy to be such a thorn in his side because of her union activities, that on one occasion he threatened to fire her. Later, when the opportunity presented itself on the occasion of the start up of Olmsted Cleaning Con- tractors under Richard Rogers' guidance as a nonunion employer, he carried out his threat to get rid of Murphy, and refused employment to Gulan, as well, because she had resorted to seeking union assistance on a number of occasions concerning employment disputes, largely through Laura Murphy. Clearly, it was the intent of Richard Rogers and Olmsted to eliminate two union ac- tivists, and to provide a warning to other employees de- signed to discourage them from engaging in union activi- ty. Any other reason Olmsted may now assert, including physical limitations, pales to insignificance in comparison to the antiunion animus which so obviously underlies Olmsted's refusal to hire Laura Murphy and Ann Gulan. Accordingly, the refusal by Olmsted Cleaning Con- tractors to hire Laura Murphy and Ann Gulan was an unfair labor practice, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. CONCLUSIONS OF LAW 1. Rogers Cleaning Contractors, Inc., and its alter ego, Olmsted Cleaning Contractors, Inc., constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all times material, Service, Hospital, Nursing Home and Public Employees Union, Local 47, affiliated with Service Employees International Union, AFL- CIO-CLC was a labor organization within the meaning of Section 2(5) of the Act, and was the exclusive repre- sentative for the purpose of collective bargaining within the meaning of Section 9(b) of the Act of the following employees of Rogers Cleaning Contractors, Inc., and Olmsted Cleaning Contractors, Inc.: All employees engaged in janitorial work, excluding office employees and supervisors as defined in the Labor Management Relations Act of 1947, as ROGERS CLEANING CONTRACTORS 495 amended, and also excluding any such employees working 15-1/2 hours or less in an account where only one employee is engaged, if such account is not owned or operated by an entity which operates in more than one location serviced by the employer. 3. At all times material, and continuing to date, Re- spondent and the Union have been, and continue to be, bound by the terms and conditions of a collective-bar- gaining agreement covering the period from May 1, 1978, to May 1, 1981, embodying rates of pay, wages, hours of employment, and other terms and conditions of employment of all employees of Respondent in the unit referred to in the paragraph 2, above. 4. About July 13, 1981, Respondent unilaterally with- drew recognition from the Union, and repudiated the collective-bargaining agreement existing between them, thereby violating Section 8(a)(1) and (5) of the Act. 5. By unilaterally changing wage rates and other terms and conditions of employment-of the bargaining unit em- ployees, on and after July 13, 1981, Respondent has vio- lated, and continues to violate Section 8(a)(1) and (5) of the Act. 6. By unilaterally changing working conditions, on and after July 13, 1981, with respect to failure by bargaining unit employees to report for work, Respondent violated Section 8(a)(1) and (5) of the Act. 7. By terminating the employment of bargaining unit employee Judy Thompson, about July 13, 1981, for vio- lation of the work rule with respect to failure of bargain- ing unit employees to report for work which Respondent had unilaterally changed, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act. 8. By about July 10, 1981, the exact date being un- known, and since that time, unilaterally failing and refus- ing to make payments to the Union's health and welfare fund, and pension fund, as required by the collective-bar- gaining agreement, Respondent violated, and continues to violate, Section 8(a)(1) and (5) of the Act. 9. By threatening employee Laura Murphy during the last week of April 1981 with discharge because of her union activities and sympathies, Respondent violated Section 8(a)(1) of the Act. 10. By about July 13, 1981, terminating the employ- ment of Laura Murphy and Ann Gulan, and refusing thereafter to reinstate them because they had joined, sup- ported, or assisted a union, and engaged in concerted ac- tivities for the purpose of collective bargaining and other mulual aid or protection, Respondent violated Section 8(a)(1) and (3) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices, I find it appropriate to order Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent, having committed unfair labor practices by unilaterally changing wage rates and other terms and conditions of employment, shall make the employees af- fected by the changes whole for any loss of earnings they may have sustained as a result of the Respondent having changed their wage rate on July 13, 1981, and thereafter. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Furthermore, Respondent shall be required to re- store the status quo ante as existed prior to the imple- mentation of the changes in wage rates and other terms and conditions of employment. Respondent shall cease and desist from unilaterally changing conditions of em- ployment, and shall bargain collectively, on request, with the Union as the exclusive representative of the bargain- ing unit employees concerning terms and conditions of employment and, if an understanding is reached, embody such terms in a signed agreement. Respondent, having unilaterally failed and refused to make payments to the Union's health and welfare fund, and pension fund, from on or about July 10, 1981, the exact date being unknown, and since that time, shall be required to make whole the Union for any and all contri- butions due to the Union's funds as required by the col- lective-bargaining agreement. Respondent, having violated Section 8(a)(1), (3), and (5) of the Act by unlawfully terminating the employment of Judy Thompson, Laura Murphy, and Ann Gulan, and, thereafter refusing to reinstate them to their former posi- tions, shall now offer to reinstate them to their former positions, or if those positions no longer exist, to substan- tially equivalent positions, without prejudice to any rights or privileges, and make them whole for any loss of earnings which they may have sustained as a result of the termination of their former employment. The loss of earnings shall be computed as set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed71 ORDER The Respondent, Rogers Cleaning Contractors, Inc. and its alter ego Olmsted Cleaning Contractors, Inc., Olmstead Falls, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Service, Hospital, Nursing Home and Public Employees Union, Local 47, affiliated with Service Employees International Union, AFL-CIO-CLC as the exclusive bargaining rep- resentative of its employees in the appropriate unit set forth above. 71 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing to honor and implement the collective- bargaining agreement between Respondent and the Union covering the period from May 1, 1978, to May 1, 1981, and remaining in effect to the present. (c) Bypassing the Union as the exclusive bargaining representative of Respondent 's employees by notifying them of reduction in wage rates and other changes in terms and conditions of employment. (d) Refusing to make all necessary contributions to the Union Local 47's health and welfare fund and pension fund, as required by the collective -bargaining agreement. (e) Threatening employees in the above-described unit because of their union activities and sympathies. (f) Discharging employees, and refusing thereafter to reinstate them, because they joined, supported, or assist- ed a union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid or protection. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and bargain collectively with Local 47 by acknowledging that they are bound by the existing collective-bargaining agreement. (b) Honor, implement, and apply the collective-bar- gaining agreement referred to above. (c) Make whole Union Local 47 for any and all benefit fund and health and welfare fund payments due and owing pursuant to the collective-bargaining agreement referred to above in the manner set forth in the remedy section of this decision. (d) Make whole its employees for any loss of wages and benefits incurred as a result of the unfair labor prac- tices found herein in the manner set forth in the remedy section of this decision. (e) Offer Judy Thompson, Laura Murphy, and Ann Gulan 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 any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (g) Post at their facility at 8660 Columbia Road, Olmsted Falls, Ohio, and at all locations at which they provide service in the greater Cleveland, Ohio area, copies of the attached notice marked "Appendix."72 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 72 If 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 Nation- al 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."