Hiysota Fuel Co., And Hiysota Fuel Co., Inc., Debtor-In-Possession And Mark Gregg, Trustee In Bankruptcy And/Or J.R. Sales, Inc.

HIYSOTA FUEL CO. 'Hiysota Fuel Co., Inc., and Hiysota Fuel Co., Inc., Debtor-In-Possession and Mark Gregg, Trustee in Bankruptcy and/or J.R. Sales, Inc. and United Mine Workers of America and Its Local 1023. Cases 6-CA-15852, 6-CA-15944, and 6- CA-16206 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, BABSON, AND STEPHENS On 4 March 1985 Administrative Law Judge Mi- chael O. Miller issued the attached decision. The Respondents, the Charging Party, and the General Counsel filed exceptions and supporting briefs; and the General Counsel filed a response to and motion to strike portions of the Respondents' exceptions. i 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,2 and conclusions and to adopt the recommended Order.4 i The General Counsel's motion to strike portions of the Respondent's exceptions is denied 2 With respect to the judge's failure to find alter ego status, we would not rely on any implication in the judge's analysis that a showing of un- lawful motivation is essential to such a finding Rather, the presence or absence of unlawful motivation is merely one factor that the Board con- siders in weighing the circumstances of any particular case See, e g , Fugary Continental Corp, 265 NLRB 1301, 1302 (1982), enfd 725 F 2d 1416 (D C. Cir 1984), NLRB v Tricor Products, 636 F 2d 266, 270 (10th Cir 1980), Leslie Oldsmobile, Inc, 276 NLRB 1314 (1985). Noting that Hiysota and Sales lacked a common business purpose , operations, super- vision, equipment, premises, and customers and that there was an absence of evidence of unlawful motivation , we adopt the judge's conclusions that Hiysota and Sales were not alter egos Based on the judge's findings that Respondents Sales and Hrysota had common ownership, management, financial control, and labor relations control, and did not have an "arm's length relationship," Member Dennis would find that they have an alter ego relationship, notwithstanding the absence of evidence that they were created as separate corporations to avoid labor-law obligations. See Fugary Continental Corp, 265 NLRB 1301 (1982), Goodman Piping Products v NLRB, 741 F 2d 10 (2d Cir. 1984) a In the absence of exceptions we adopt pro forma the judge's conclu- sion that the Respondents did not violate Sec 8(a)(5) and (I) of the Act by refusing to process grievances filed by the Union on 27 September 1982 and 3 January 1983 ' 4 In the recently issued Rapid Fur Dressing, 278 NLRB 905 (1986), the majority rejected the same argument raised by the Chairman's dissent here. See particularly fn. 4 of that Decision and Order. In his dissent, Member Johansen concedes that economic necessity is not a defense to an unfair labor practice charge based on the repudiation of the monetary provisions of a collective -bargaining agreement E g , Oak Cliff-Golman Baking Co, 207 NLRB 1063 (1973), enfd 505 F 2d 1302 (5th Cir 1974), cert denied 423 U S. 826 (1975), NLRB v. Manley Truck Line, 779 F 2d 1327 (7th Cir. 1985) Yet the dissent finds that the Respondent Hiysota did not violate the Act when it unilaterally changed contract terms by failing to observe the provisions requiring payment to union trust funds We see no basis for the conclusion that finding a viola- tion is unwarranted because the Respondent's unilateral action represents "only a delinquency or temporary failure to make timely payments " In June 1982 the Respondent settled a grievance over its failure to make trust fund payments after December 1981 by agreeing for collection of back payments by the trust funds' legal department The Respondent, however, never resumed payments to the funds between 2 June and 8 September 1982 when the bankruptcy petition was filed On these facts, 763 ORDER The National Labor ,Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Hiysota Fuel Co., Inc., Hiysota Fuel Co., Inc., Debtor-in- Possession and Mark Gregg, Trustee in Bankrupt- cy, and J.R. Sales, Inc., Ralphton, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. CHAIRMAN DOTSON, concurring and dissenting. For the reasons set forth by the judge in his de- cision, I concur with my colleagues in their find- ings that J. R. Sales, Inc. is not an alter ego of Hiy- sota Fuel Co., Inc. and that Hiysota did not violate Section 8(a)(5) and (1) by failing to bargain with the Union after the bankruptcy petition was filed and by dealing directly with employees over terms and conditions of employment. I do not agree, however, with their adoption of the judge' s fording that the Respondents violated Section 8(a)(5) and (1) by failing to make contractually required pay- ments to the health and retirement trust funds from 2 June until 8 September 1982. As I stated in my dissent in -Rapid Fur Dressing Inc., 278 NLRB 905 (1986), the Board in my opinion should decline to become involved in contract disputes. As the Re- spondents' conduct constitutes nothing more than a contract violation, I would dismiss the complaint in its entirety. MEMBER JOHANSEN, dissenting in part. At issue before the Board is whether the Re- spondent violated Section 8(a)(5) and (1) of the Act by its failure to make contractually required pay- ments to the union trust funds from 2 June 1982 until 8 September 1982, the date on which the Re- spondent filed a petition in bankruptcy. The major- ity' finds, as did the judge, that the Respondent's actions constitute a repudiation of the contract and thus violate Section 8(a)(5) and (1) of the Act. I disagree. Generally, an employer's unilateral change con- cerning a mandatory subject of bargaining during the course of a collective-bargaining relationship must be deemed an unlawful refusal to bargain. Thus, an employer acts in derogation of its bar- gaining obligation under Section 8(d) of the Act when, during the life of a collective-bargaining agreement to which it is bound, it unilaterally we find nothing "temporary" about the Respondent's failure to honor its contractual obligations . Nor do these facts support a finding that the Re- spondent was merely "delinquent" in making trust fund payments Rather, the undisputed fact remains that the payments were never made 280 NLRB No. 89 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes or otherwise repudiates terms and condi- tions of employment contained in the agreement. See, e.g., C & S Industries, 158 NLRB 454 (1966). Further, with certain exceptions, an employer acts contrary to its bargaining obligation when, upon the expiration of its collective-bargaining agree- ment, it unilaterally changes or discontinues exist- ing terms and conditions of employment. See NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Court, at 748, noted that it did not: foreclose the possibility that there might be circumstances which the Board could or should accept as excusing or justifying unilat- eral action ... . The Board has recognized that circumstances in- volving impasse or waiver may justify unilateral action. Further, the Board must recognize that there are limited circumstances in which an employer's uni- lateral actions, while changing the employees' terms and conditions of employment, are mandated by factors beyond an employer's control and should not be deemed an unfair labor practice. That is, in circumstances in which an employer had not repudiated its contractual obligations but has been forced to fail to observe temporarily certain contractual provisions, an employer has, at most, breached its contract. It has not unlawfully refused to bargain. Contrary to the opinion of the majority and the judge, I find the Respondent's failure to make trust fund payments from June to September 1982 cannot fairly be characterized as a repudiation of its contractual obligations. Repudiation implies that a party has totally abrogated, disowned, or rejected certain obligations. Here, to the contrary, the Re- spondent consistently acknowledged that it owed certain moneys to the trust funds.' It explained its failure to pay was dictated by its inability to pay.2 ' After the Respondent ceased its payments to the trust funds, a gnev- ance was filed by the Union The grievance alleged that the Respondent was delinquent in its payments and was failing to provide written notices of payments. In settling the grievance, the Respondent agreed to provide all necessary notices to the Union The notices would acknowledge the amounts owed to the trust funds . However, the actual collection of those amounts would be left to the legal department of the trust funds. 2 The judge viewed the Respondent's inability to pay defense as "claimed" but not "proved." I cannot agree First, although the record evidence regarding the Respondent's economic condition is not as de- tailed as it might be, uncontradicted evidence indicates that at times ma- tenal the Respondent was losing money and in "financial trouble " Second, the Union's settling of its grievance over the delinquent pay- ments suggests the Union was aware of the Respondent's difficulties Thus, the Union settled on the basis of the Respondent's providing no- tices of amounts due but the collection of the payments was deferred Fi- nally, the filing of a petition in bankruptcy on 8 September 1982 lends support to the Respondent's position that from June to September 1982- the payments for only those months are in issue-it was encountering severe financial reverses In Katz, the Court, supra at 747, viewed the vice of unilateral action by an employer to be as fol- lows: Unilateral action by an employer without prior discussion with the union does amount to a re- fusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy. However, when an employer's actions are tem- porary in nature, necessitated by forces beyond the employer's control (e.g., financial problems), do not precipitate a strike, and the employer further continues to acknowledge and discuss its contrac- tual obligations,3 the employer has not acted to un- dermine or obstruct bargaining. As I understand it, all Board Members recognize that Congress intended that not every contract vio- lation be deemed an unfair labor practice. Howev- er, if the Board is ever to give meaning to this Congressional intent, it must decline to find an unfair labor practice in cases like this one. As, in my view, the Respondent's failure to make trust fund payments from June to September con- stituted no more than a breach of contract, I would dismiss the complaint's allegation that the Respond- ent's conduct was violative of Section 8(a)(5) of the Act.4 The Board has long held that economic necessity is not a defense to the unilateral repudiation of the monetary provisions of a collective-bar- gaining agreement See, e g , Campo Slacks, 266 NLRB 492, 496 (1983); Morelli Construction Co, 240 NLRB 1190 (1979); and Oak Cliff-Golman Bakery Co, 207 NLRB 1063 (1973) My position does not run afoul of this precedent While economic necessity does not justify repudiation, it certainly should excuse actions-at least to the extent of not finding those actions constitute a refusal to bargain-but represent only a delinquency or temporary failure to make timely payments 2 As noted, the Respondent met with the Union regarding that griev- ance over delinquent payments The settlement suggests that the Re- spondent was attempting to reach an accommodation with the Union. Similarly, after filing its petition in bankruptcy and again after the bank- ruptcy court approved its request for rejection of the contract, the Re- spondent requested bagaining with the Union ' My holding is a limited one Certainly, there will be situations in which an employer's delinquencies regarding its contractual obligations will be sufficiently significant to warrant a finding that the employer has repudiated its contract Further, if an employer fails to carry its burden to prove that outside forces dictated its unilateral actions or if an employ- er fails to honor a union's request to meet and discuss the employer's conduct, a violation of Sec 8(a)(5) may well be established HIYSOTA FUEL CO. 1 765 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. WE WILL NOT refuse to bargain with the United Mine Workers of America or its Local 1023 by failing to make contractually required payments to health and benefit trust funds. 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 make our employees whole by paying to the union benefit trust funds those contributions which we withheld between 2 June and 8 Septem- ber 1982, with interest, and WE WILL make our em- ployees whole for any losses directly attributable to our withholding of those contributions,, with inter- est. by the Regional Director for -Region 6 of the National Labor Relations Board, on December 30, 1982, February 3, April 12, and November 1, 1983, and October 23, 1984. The consolidated amended complaint alleges that Hiysota Fuel Co., Inc. (Hiysota), Hiysota Fuel Co., Inc., Debtor-in-Possession (DIP), Mark Gregg, Trustee in Bankruptcy, and/or J.R. Sales Inc. (Sales), as a single, intergrated business enterprise and single employer and/or alter ego of each other, violated Section 8(a)(l) and (5) of the National Labor Relations Act by: promis- ing employees increased benefits or employment oppor- tunities if they rejected the Union as their collective-bar- gaining representative or accepted the Employer's con- tract proposals, failing and refusing to process griev- ances, abrogating its collective-bargaining agreement by failing to remit required fund payments, failing and refus- ing to bargain with the Union, and by engaging in direct negotiations with employees. Repondent's timely filed answers deny the commission of any unfair labor prac- tices. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respond- ents, and the Union. Based on the entire record,2 including my observation of the witnesses and their demeanor, I make the follow- ing HIYSOTA FUEL CO., AND HIYSOTA FUEL CO., INC., DEBTOR-IN-POSSES- SION AND MARK GREGG, TRUSTEE IN BANKRUPTCY AND/OR J.R. SALES, INC. Michael Poprik, Esq., for the General Counsel. Philip R Jamison, President, of Jerome, Pennsylvania, for Respondents Hiysota Fuel Co., Inc., Hiysota Fuel Co., Inc., Debtor-in-Possession and J.R. Sales, Inc. Mark A. Gregg, Esq., of Johnstown, Pennsylvania, Trust- ee in Bankruptcy. John M. Tishok, Esq. (Kuhn, Engle & Stein), of Pitts- burgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on November 15 and 16, 1984, in Ebens- burgh, Pennsylvania, based on duly served unfair labor practice charges filed and amended by United Mine Workers of America and its Local 1023 (individually the International Union and Local 1023 and collectively the Union),' and complaints and amended complaints issued i The charge in Case 6-CA-15852 was filed on October 12, 1982 The charge in Case 6-CA-15944 was filed on November 22, 1982 Although Respondent Hiysota Fuel and Respondent Sales denied service of the charge and amended charge in Case 6-CA-15944, the formal papers con- tam signed certified mail return receipts establishing that they were signed for by employees of Sales, consistent with the practice of both companies, as discussed infra The charge in Case 6-CA-16206 was filed FINDINGS OF FACT 1. RESPONDENTS' BUSINESSES AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW A. Jurisdiction The complaint alleges and Hiysota admits that at all times material, at least through December 1, 1982, Hiy- sota was a Pennsylvania corporation operating a coal mine in Ralphton, Pennsylvania, where it was engaged in the mining and nonretail sale of coal and in providing coal mining and related services. Hiysota admits that during the 12-month period ending November 30, 1982, it sold and shipped coal valued in excess of $50,000 to Sales, an enterprise which, as discussed infra, is itself di- rectly involved in interstate commerce. The complaint alleges and Sales admits that Sales is a Pennsylvania corporation with an office and place of business in Jerome, Pennsylvania, where it is engaged in the processing and nonretail sale of coal. Sales admits that during the 12-month period ending November 30, 1982, it sold and shipped coal valued in excess of $50,000 from its Pennsylvania facilities directly' to points located outside the State of Pennsylvania. Based on the foregoing, I find and conclude that at all material times Hiysota and Sales have been employers on March 4, 1983 All the charges were amended about September 26 and October 22, 1984 8 The General Counsel's unopposed motion to correct transcript is granted 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. Labor Organization Status The complaint alleges, all Respondents admit, and I find and conclude that the International Union and Local 1023 have been at all material times labor organizations within the meaning of Section 2(5) of the Act. C. The Relationships Between Respondents In June 1980, Philip Jamison, through other compa- nies, which he owned in their entirety, purchased Hiy- sota and Sales in a leveraged buyout. Ninety-five percent of the purchase price was for Sales, the remaining 5 per- cent for Hiysota. At all times, Jamison has been the president, sole stockholder, and sole director of both cor- porations. Until February 1981, he was also the sole cor- porate officer of both. At that time he "elected" Jack Wilson and another individual as vice president and treasurer of both corporations, respectively. In February 1982, Jamison resumed his position as the sole corporate officer of Hiysota and as secretary-treasurer of Sales. Wilson was retained as Sales' vice president and its gen- eral manager. At the same time, Wilson was general manager of all Jamison's mining interests. At all times, Jamison has been responsible for the major financial de- cisions of both corporations. Wilson established and car- ried out the labor relations policies at Hiysota, according to Jamison. However, in earlier testimony before the bankruptcy court, Jamison had acknowledged that Wil- son's duties at the mine included "carrying out [Jamis- on's] instructions, ensuring that the mine is operated in a safe [workmen] like manner, handling any local labor problems." Jamison also conducted collective-bargaining negotiations on behalf of Hiysota. Jamison testified that he retained primary responsibility for both financial deci- sions and labor relations policies at Sales. Hiysota was a contract mine for Sales. It performed the mining services in a mine at Ralphton, Pennsylvania, the lease for which was held by Sales. All the major mining equipment and the surface buildings were similar- ly owned by Sales. Hiysota's assets were of limited value, small when compared to the value of the mining equipment. In addition to providing the equipment for mining, Sales also provided Hiysota with certain admin- istrative services, including the requisite permits, bond- ing, and insurance. Hiysota sold all the coal that it mined to Sales, at prices set by Jamison. The price paid to Hiy- sota was a fixed percentage of the price at which Sales ultimately sold the coal, based on the customary percent- age in the industry, taking into account the fact that Hiy- sota was using equipment owned by Sales and was pro- ducing coal on Sales' lease. For a period of time, at least, that price was 70 percent of the ultimate sale price. During the period of Jamison's ownership of Hiysota, it only sold its coal to Sales. Sales, however, also dealt in coal from other mines; in 1981 its sales of non-Hiysota coal were insignificant. They increased in 1982 to per- haps as much as 50 percent of the coal that it sold that year. On occasion prior to Hiysota's bankruptcy petition, Sales advanced funds to Hiysota, as prepayments for coal to be delivered, based on Hiysota's need for operating funds. As of September 8, 1982, when the Chapter 11 pe- tition was filed, Hiysota owed Sales in excess of $280,000. For a few pay periods, when Hiysota's assets were tied up as a result of liens filed by the Union's health or pension funds, wages were paid to Hiysota's employees on Sales' checks. Similarly, during the period of January through May 1983, Sales paid Hiysota' s tele- phone, electric, equipment repair, engineering services, mine supplies, and maintenance bills, equipment rental charges, health insurance premiums, and legal and ac- counting fees. The indebtednesses were not formalized by any notes or documentation other than bookkeeping entries by the respective companies, as accounts payable or receivable. Hiysota maintained an office at the coal mine in Ralphton. Sales' office was in Jerome, Pennsylvania. Hiysota's clerk and bookkeeper also worked in the Jerome office. After July 1982, Hiysota and Sales shared a post office box and, generally, had a single individual pickup and sign for the mail for both companies. In Truck & Dock Services, 272 NLRB 592 fn. 2 (1984), the Board concisely summarized Board and court law with respect to single employer status, as follows: To determine where two entities are sufficiently integrated so that they may fairly be treated as a single employer, the Board and the courts examine four principal factors: (1) common management; (2) centralized control of labor relations; (3) interrela- tion of operations; and (4) common ownership. Radio Union v. Broadcast Service of Mobile, 380 U.S. 255, 256 (1965); NLRB v. Browning-Ferris Inds., 691 F.2d 1117, 1122 (3d Cir. 1982); Shellmaker, Inc., 265 NLRB 749, 754 (1982). While none of these factors, viewed separately, has been held controlling, the Board has stressed the first three factors, particular- ly centralized control of labor relations. Parklane Hosiery Co., 203 NLRB 597, 612 (1973). Single em- ployer status depends on all of the circumstances and has been characterized as an absence of an "arm's length relationship . . . among unintegrated companies." Blumenfeld Theatres Circuit, 240 NLRB 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980). The General Counsel and the Union contend, and I agree, that application of these standards requires a conclusion that Hiysota and Sales constitute a single employer. Hiysota and Sales were commonly owned; Jamison owned all the stock of each corporation. In this regard, the two corporations are more closely held than were the corporations in Truck & Dock Services, in which the two corporations were owned by a father and son, re- spectively. Similarly, Hiysota and Sales shared common manage- ment. Jamison was the sole corporate director of each. He was also the president, secretary, and treasurer of each and had total control over the "election" of other officers. Jack Wilson was vice president of both corpora- HIYSOTA FUEL CO. tions for a period of time; in February 1982, Jamison re- sumed that post at Hiysota. Since then, Wilson has been vice president of Sales and general manager of both Sales and Hiysota. Financial control of both corporations rested solely in Jamison. Moreover, it is clear that the centralized control of labor relations in both corporations rested exclusively in Jamison. The record establishes that Jamison was con- sulted on grievances filed at Hiysota and instructed Wilson on whether and how those grievances were to be processed. Indeed, he acknowledged that Wilson carried out his instructions with respect to labor relations in the Hiysota mine. Proposals for collective bargaining were prepared by Jamison and it was Jamison who presented Hiysota's proposals to the Union and who offered new terms and conditions of employment to Hiysota' s miners. Jamison admitted controlling labor relations at Sales. Finally, the operations of Hiysota were thoroughly and totally intertwined with those of Sales. As admitted in Jamison's brief, the two corporations were purchased to satisfy a particular business requirement, a contract to supply "low volatile metallurgical grade coal to a Bel- gium steel company." Hiysota existed only to mine the coal on Sales' lease and it did so using equipment and buildings owned by Sales; Hiysota owned practically nothing. It operated under permits and bonds acquired by Sales. It sold the coal mined from Sales' lease only to Sales, at a price unilaterally determined by Jamison. In addition, Sales advanced substantial funds to Hiysota, memorializing these loans or advances with mere book- keeping entries. No notes were executed. Nothing hap- pening between the two corporations could be said to be indicative of an "arm's length relationship." See Angelus Block Co., 250 NLRB 868 (1980), and Land Equipment, 248 NLRB 685 (1980). Given the common ownership, comon management, centralized control of labor relations, and the interrela- tionship of their operations, I find and conclude that Hiysota and Sales are a "single employer." The General Counsel further asserts that Hiysota and Sales are but alter egos of one another. To find an alter ego relationship, the Board must consider, in addition to factors similar to those establishing single employer, "whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was to evade responsibilities under the Act." Advance Electric, 268 NLRB 1001 (1984), quoting Fugazy Conti- nental Corp., 265 NLRB 1301, 1302 (1982).4 The term "disguised continuance" is another way of describing an alter ego. See Marquis Printing Corp., 213 NLRB 394 (1974). In Howard Johnson Co. v. Detroit Joint Board, 417 U.S. 249, 259 fn. 5 (1974), the Supreme Court pointed out that alter ego or disguised continuance cases "in- volve a mere technical change in the structure or identi- ty of the employing entity, frequently to avoid the effect 3 That the contract mine is a common form of organization for the mining industry in central Pennsylvania, as shown and argued by Re- spondent, does not negate this conclusion 4 Alter ego status generally requires that two enterprises have "sub- stantially identical management, business purpose, operation, equipment, customers supervison, as well as ownership " Denzil S Alkire, 259 NLRB 1323-1324 (1982), enf denied 716 F 2d 1014 (4th Cir 1983) 767 of the labor laws, without any substantial change in its ownership or management." The facts of the instant case do not fit the pattern of alter ego cases. Hiysota and Sales, as separate corpora- tions, existed before Jamison's acquisition of the two cor- porations. Moreover, although separate corporate struc- tures may have offered a number of advantages, there is no evidence that avoidance of the labor laws was the reason for the creation of two corporations. Contrary to the General Counsel's contentions, I do not find in either Jamison's testimony or in his arguments justifying lines of questioning directed to Wilson any acknowledgement that "Hiysota existed in order to insulate J.R. Sales from the obligations of the Union contract." One might sus- pect that such was the case, but suspicion is not proof. If that was the intent of the separate corporate structures, this record does not establish it. Neither can I conclude, from Sales payments of some of Hiysota's expenses before and after September 6, that Sales was a "disguised continuance" of Hiysota. I note, in this regard, that Hiy- sota and Sales were engaged in different aspects of the coal industry, that they were essentially a vertically inte- grated operation, and that Hiysota never resumed mining operations after November 20, 1982. Accordingly, I shall recommend that the General Counsel's assertion that Hiysota and Sales are alter egos be dismissed. The record establishes that about September 8, 1982, DIP was duly designated by the United States Bankrupt- cy Court for the Western District of Pennsylvania as debtor-in-possession of Hiysota Fuel Co. As debtor-in- possession, DIP was empowered with full authority to continue the business operations of Hiysota. DIP, I find, was " the same entity" as Hiysota. NLRB v. Bildisco & Bildisco, 465 U.S. 513 (1984). On January 10, Bankruptcy Judge Joseph L. Cosetti granted DIP's motion to reject the collective-bargaining agreement. The Union had opposed rejection alleging, inter alia, "that because Phillip Jamison owns and con- trols both the Debtor and J.R. Sales, Inc., that the bank- ruptcy petition is a bad-faith attempt . . . to reject the collective-bargaining agreement." Judge Cosetti did not reach this issue. He stated: "We believe the issues raised by the U.M.W. are premature at this time. . . . The Court does not accept or reject the U.M.W.'s arguments regarding the piercing of the corporate veil. We believe these issues would be more appropriately raised at an- other time and perhaps in another forum." In March 1984, the bankruptcy proceeding was con- verted from reorganization under Chapter 11 to liquida- tion pursuant to Chapter 7 of the Bankruptcy Act. Mark Gregg was appointed Trustee in Bankruptcy. Trustee in Bankruptcy admits, as alleged in the complaint, that since that date it has been a successor in bankruptcy to Hiysota. Its authority is to liquidate the bankrupt's assets. 11 U.S.C. § 704. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Collective-Bargaining Relationship The complaint alleges and Hiysota admits that the fol- lowing constituted a unit appropriate for collective bar- gaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Hiysota at its Ralphton, Pennsylvania mine facility; excluding office clerical employees and guards, professional employees and supervisors as defined in the Act. The complaint alleges and Hiysota admits that since at least 1979, the Union has been the designated collective- bargaining representative of the employees in the above- described unit. Hiysota had recognized the Union and Ja- mison continued that recognition upon his acquisition of Hiysota in 1980. That recognition was embodied in suc- cessive collective-bargaining agreements, the most recent of which, the Nation Bituminous Coal Wage Agreement of 1981 (NBCWA), was to be in effect from June 1, 1981, through September 30, 1984. However, on January 10, 1983, the bankruptcy court granted DIP's motion to reject that collective-bargaining agreement. At the relevant times, Hiysota employed anywhere from 16 to more than 50 production and maintenance employees. Sales employed no more than six employees, none of whom were production and maintenance em- ployees. There was no evidence or overlap or inter- change between the employee complements. The em- ployees of Sales were not represented by any collective- bargaining representative. No contention was made that Sales' employees were included within the Union's bar- gaining unit. B. Alleged Promises of Benefits and Interrogation The General Counsel's complaint alleges that in Sep- tember and mid-November 1982,5 Jack Wilson, the man- ager of Jamison's mining operations, promised employees greater benefits if they would reject the Union as their collective-bargaining representative and interrogated them concerning their union sympathies. The evidence is as follows : According to Frank Barta, an employee and Local 1023 officer, Wilson came into the mine about midday on a day in September when the mining equip- ment was broken down and addressed five employees who were eating lunch in the area known as the dinner hole. He asked about their willingness to go nonunion and stated "that they could afford to give us a little better pension and better health coverage . . . if we agreed to take the paycut so they could make up the dif- ference in benefits." Wilson continued, asking several of the employees what they thought about his suggestion. The employees, all long-time union members, were un- willing to give up their union status; they voiced doubts that the Company could afford a better pension plan than the plan they were currently under . Leo Legarksi, a fellow employee and union officer , corroborated Barta 5 Except where otherwise indicated, all the events occurred between June 1982 and March 1983 with respect to Wilson's query about their willingness to go nonunion. None of the other employees allegedly present when these statements were made were called by the General Counsel. Wilson denied that he even went into the mine during this period. He noted that little coal was being produced at that time and he specifically denied telling any employees that they would receive im- proved or increased benefits if Hiysota went nonunion. He denied that this subject was discussed at all except in the context of employees saying that they would lose benefits if they went nonunion. Further, he testified, the employees appeared to equate rejection of the current bargaining agreement with "going nonunion." In mid-November, according to both Legarski and Barta, Wilson again spoke to employees in the mine, asking whether Legarski had given any further thought to going nonunion and reminding him that his pension was vested and would not be lost. Legarski, pointing out his years as a union miner and his belief that he would lose certain credits if the mine went nonunion, said he would have no part of it. Then, according to Legarski, Wilson stated that the Company could offer a better pen- sion plan if they went nonunion and could call more people back if they took a cut in wages. Wilson, on the other hand, testified that this conversation was initiated by Legarski asking about the effect of the cancellation of their collective-bargaining agreement, discussed else- where. He briefly explained the effect of a bankruptcy proceeding and of a petition to revoke a collective-bar- gaining agreement and responded to employee questions by assuring them that their pensions were vested. Wilson claimed that he explained the nature of vested benefits and did not respond when Barta asked him whether they would get more money if the mine went nonunion. About November 17, just before the mine ceased oper- ations, Barta spoke with Jamison in Jamison's office. Ac- cording to Barta, following a brief discussion concerning an alleged pay discrepancy, Jamison "said something about giving some thought to the pension plan or some- thing similar to that" and that "if we went nonounion he could give us a better pension plan."s Jamison recalled the conversation in somewhat different terms. He re- called that Barta asked whether they were going to go nonunion and whether Respondent was going to increase their wages as a result. Jamison explained that he was at- tempting to negotiate a new contract, which he was not at liberty to discuss. In resolving the credibility conflicts regarding to these three incidents, I have observed that each of the wit- nesses appeared to be attempting to describe the events as honestly as possible. Much time has passed, however, and memories have dimmed. In these circumstances, the facts must be determined from the probabilities and in- herent inconsistencies. Hiysota had filed for protection under Chapter 11 and was seeking to escape its obliga- tions under the union contract. The evidence discussed infra, however, does not support a conclusion that Re- spondent was seeking to operate nonunion; it is clear 6 Barta, acknowledging that his memory was failing after 2 years, re- quired repeated references to his affidavit for the purpose of refreshing recollection with respect to this conversation HIYSOTA FUEL CO. from Jamison's repeated efforts to renegotiate his agree- ment that he only sought more advantageous terms from the Union. Given that state of facts, I deem it improbable that Wilson or Jamison would have solicited or attempt- ed to induce the employees to forgo union representa- tion. It is more probable, as contended by Jamison and Wilson, that the employees failed to appreciate the dis- tinction between setting aside the agreement and "going nonunion" and misunderstood what both Wilson and Ja- mison told them. Given this view of these events, I cannot find that the General Counsel has sustained her burden of proving the employees were coercively inter- rogated or promised benefits to encourage them to work without union representation. I shall, therefore, recom- mend that theses allegations be dismissed. C. Alleged Refusal to Process Grievances On September 27, ' following earlier discussions with Wilson, Bouch, and John Shaulis, a fellow employee and mine committee member, filed a grievance protesting the use of supervisors to fill the classified position of "out- side man." As they described the exchange, Wilson told them that Hiysota was no longer processing grievances; he said that it had been told by its bankruptcy lawyers that it did not have to do so. They insisted on a response to the grievance and Wilson completed that portion of the grievance form setting forth Hoysota's position. However, when he did so, they claimed, he told them that it meant nothing as Respondent would proceed no further on the grievance. Both employees testified that Jamison made similar statements concerning grievance processing in early October. Wilson denied refusing to accept the September grievance and Jamison testified that although he knew that he was not obligated to proc- ess grievances following the filing of the bankruptcy pe- tition, he instructed Wilson to process any grievances re- ceived in accordance with the terms of the contract. The Union did not proceed further on the September 27 grievance. According to company witnesses, the com- pleted grievance remained in the company offices, with- out being picked up by the Union, until mid-December. Bouch and Shaulis contended that Respondent returned the completed grievance form to the Union in October without ever removing its copies. On January 3, the Union filed two grievances concern- ing Hiysota's failure to pay accumulated vacation, sick and personal days, and accrued vacation pay. The griev- ances were addressed to "Hiysota or J.R. Sales." Ac- cording to Bouch and Barta, Wilson told them that Re- spondent was "not proceeding with them anymore .. . not proceeding in the grievance steps anymore with these grievances . . . [the] bankruptcy attorney said they do not hive to proceed with these grievance forms." He returned the grievance to the Union without either an- swering or removing Respondent's copies.7 Wilson had no recollection of the Union attempting to file these grievances. He testfied, however, that if they had tried to do so, he would have rejected them as im- 7 In response to a June 2 grievances concerning this same subject, Wilson had earlier (prepetition) assured the employees that they would be paid at the year's end for unused leave 769 proper because of the Union's inclusion of Sales along with Hiysota as the employer. In its Bildisco decision, the Supreme Court, although holding that a debtor-in-possession was free of the con- straints of Section 8(a)(5) in setting aside the terms of an existing. collective-bargaining agreement, was careful to underscore the debtor-in-possession's continuing obliga- tion to recognize and bargain with its employee's collec- tive-bargaining representative for a new agreement. The General Counsel and the Union contend that Respondent breached this continuing obligation by refusing to proc- ess the September 27 and January 3 grievances. I cannot agree. In filing these grievances, the Union was not seeking simply to bargain over new terms and conditions of em- ployment. Rather, it was seeking, through a contractual- ly established route, to enforce contractually guaranteed rights. At the time it sought to do so, Respondent had lawfully abrogated the contract that had established both the grievance procedure and the rights that the griev- ances sought to enforce. Even assuming that the specific grievance procedure, as distinguished from the right to discuss problems, survived abrogation of the agreement, the subjects of those grievances no longer had their basis in a collective-bargaining agreement; they were, there- fore, not grievable.8 Noting that the subject matters of the grievances argu- ably predated the filing of the bankruptcy petition, the General Counsel asserts that the duty to process the grievances survived rejection of the collective-bargaining agreement, citing John Wiley & Sons v. Livingston, 376 U.S. 543 (1964). This contention, while intriguing, is without merit. A merger cannot be equated with a bank- ruptcy. The former is a commercial transaction; the latter a legal status intended to insulate a debtor from earlier obligations so that reorganization has a chance of success. To the extent that financial obligations arose prior to the bankruptcy petition, the Union and/or the employees stand as creditors before the bankruptcy court. The'General Counsel and the Union argue further that even if Hiysota is free of liability by virtue of the bank- ruptcy petition, Sales must be held responsible as Hiyso- ta's alter ego and as a single employer with it and be- cause Sales "was actually operating Respondent Hiysota during the time period." These contentions, too, are of no avail. Sales' and Hiysota were, I have found, a single employer but not alter egos. As a single employer, Sales is obligated to remedy Hiysota's unfair labor practices. See, for example, Truck & Dock Services, 272 NLRB 592 (1984). However, there was no contention made, or evi- dence adduced, to establish that a single bargaining unit of Hiysota and Sales employees was the appropriate unit such that Sales would have remained bound to the col- lective-bargaining agreement after it had been lawfully set aside by Hiysota. In the absence of a finding either 8 Moreover, at least with respect to the September 27 grievance, it ap- pears that Respondent met whatever obligation to bargain it had. At the Union's insistence, Wilson gave Respondent's answer It was up to the Union to process the grievance further and the Union took further action 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they were alter egos or that there was a single over- all unit, Hiysota's liabilities under the contract did not become Sales'. Moreover, there was no evidence, beyond Sales meeting of several Hiysota payrolls while Hiysota's funds were attached, and Sales payment of some other bills, that Sales was operating Hiysota . Hiysota continued in operation only until mid-November. It then shut down and has never resumed operations. D. Withholding of Health and Benefit Fund Payments The NBCWA required that the employer provide health benefits for its employees and contribute to vari- ous trust funds for health and retirement benefits. The complaint alleges that Respondent has failed to make the required payments since about April 14, 1982. Jamison admitted that Hiysota ceased to make royalty payments to the health and retirement funds as of January 1982. This failure, it appears, was the subject of a grievance filed by Bouch on June 2. That grievance specifically al- leged Hiysota's delinquencies and its failure to provide written notices of payments.9 The grievance was settled on the basis that Hiysota would provide the neccessary notices and the Local would leave collection to the funds' legal departments. However, payments were never resumed. Jamison also admitted that Hiysota ceased to make vacation and health benefit payments as of Decem- ber 1982. The law is clear that an employer's repudiation of con- tract terms requiring payments into benefit funds violates Section 8(a)(5). Buck Brown Contracting Co., 272 NLRB 951 (1984). Inability to make those payments, here claimed but not proven by Respondent, is no defense. Campo Slacks, 266 NLRB 492, 496 (1983). Accordingly, to the extent that Hiysota failed or refused to make these required payments after the settlement of the June 2 grievance10 and prior to the September 8 institution of the Chapter 11 bankruptcy proceedings, I find that it violated Section 8(a)(5) of the Act. The Court's decision in Bildisco, supra, bars any finding of an 8(a)(5) violation against the debtor-in-possession for failing to comply with the terms of its collective-bargaining agreement after the filing of a petition in bankruptcy even when, as here, the failure commenced prior to the bankruptcy pe- tition. Edward Cooper Painting, 273 NLRB 1870 (1985). Member Hunter dissenting. E. Alleged Refusal to Bargain and Direct Dealings with Unit Employees The General Counsel alleges that from about October 1, 1982, through January 19, 1983, Respondent failed and refused to bargain with the Union as representative of the unit employees. Jamison contends that he was, at all 9 This grievance, R Exh 2, was marked as received , a notation that is consistent with my own recollection The transcript fails to indicate that it was received and is corrected accordingly to In Alpha Beta Co, 273 NLRB 1546 (1985), the Board held that it would defer to settlements arising from the parties' contractual grievance/arbitration procedures . In light of this conclusion, I find it un- necessary to consider whether it would be appropriate to order Hiysota to remedy this violation by making those payments it failed to make prior to April 14, 1982, the 10(b) cutoff date Compare Campo Slacks, supra at 501 and Buck Brown Contracting, supra, slip op at 8, fn 5 times, willing to bargain but that it was the Union that was not willing to do so. The complaint further alleges that Respondent unlawfully engaged in direct negotia- tions with unit employees in violation of its obligation to bargain solely with the Union. As previously noted, Hiysota filed its petition for pro- tection under Chapter 11 of the Bankruptcy Code on September 8, 1982. Within 10 days thereafter, it also filed a complaint to reject the executory contract. Jamison contacted Bouch, Local 1023's president, sometime after the bankruptcy petition was filed, and asked if the Local could bargain with him, stating that he wanted to go through the proper steps to meet. Bouch told Jamison that the Local (which does not have authority to bargain on its own behalf) would have to go through the proper chain of authority to its board member. The record con- tains no indication that this request was pursued at higher levels by either Bouch or Jamison. Although the record contains no evidence with re- spect to any additional requests for bargaining prior to January 19, either to or from the International, the Union was aware of, and participated in, the bankruptcy proceedings. The Union filed a motion to dismiss the complaint to reject the collective-bargaining agreement on November 17. About January 19, after rejection of the contract was approved, Jamison again asked Bouch to meet. Bouch told Jamison that the Union would meet with him any- time, anywhere; he also told Jamison that the Local was meeting with the International Union president and would have no way of knowing when it would be ready to negotiate. In a January 21 letter to Gormish, District 2's president, DIP specifically requested to meet with the Union to negotiate a new collective-bargaining agree- ment. Jamison suggested several dates in the following week. Gormish replied immediately, stating, "At this time the Union is assessing its position in relation to the Bankruptcy Court's decision to permit rejection of the collective-bargaining agreement." He rejected Jamison's suggested dates and promised to contact Jamison "in the near future" to set dates for negotiations. On January 29, union counsel wrote Respondent, asking that it submit its proposed changes to the NBCWA, but asserting the Union's position that Sales and Hiysota were a single em- ployer or alter ego and thus still bound by that agree- ment. The Union declined to bargain at that time and in- sisted on adherence to the NBCWA. On January 31, counsel for DIP repeated the request to bargain. On February 11, DIP provided union counsel with proposals for a new labor agreement and asked to meet at any time in the week following February 13. The letter also responded to a request for financial informa- tion with respect to both Hiysota and Sales. DIP refused to provide information with respect to the latter, disput- ing the Union's contention of alter ego or single-employ- er status, and stated that the financial position of DIP was a matter of record before the bankruptcy court. I t 11 The General Counsel does not contend that there has been any un- lawful refusal to furnish information HIYSOTA FUEL CO. Union counsel responded on February 18, reasserting de- mands for information concerning both Hiysota and Sales and stating that a meeting prior to receipt of such information would be of no value. On February 26, Jamison wrote union counsel, stating: In view of [the Union's] failure to meet with [DIP] Hiysota Fuel Co., Inc. will begin to offer employ- ment to employees on the same terms and condi- tions as set forth in the company's proposals which were forwarded to you on February 11, 1983. In reply on February 28, the Union's counsel, once again, reasserted the Union's position concerning the al- leged single-employer or alter ego relationship and Re- spondent's continuing obligation to comply with the 1981 contract. It also asserted the Union's position that the ac- tions threatened in Respondent's February 26 letter would violate the National Labor Relations Act and con- stitute "an improper attempt to subvert and undermine the representation of the United Mine Workers." It went on, however, to recite an apparent understanding where- by Respondent would show the Union the books and records of both Hiysota Fuel and Sales and asked that a time and place for such a meeting be established. Finally, it offered an interim agreement whereby Hiysota Fuel employees would return to work under the terms and conditions of the 1981 NBCWA. About March 1, Bouch attended a meeting with repre- sentatives of DIP wherein DIP's request for a negotiat- ing meeting was repeated. About March 1, Jamison began to call employees to the office, by seniority in groups of four or five, to dis- cuss returning to work. Jamison told those employees who came in that he had a contract to produce coal, which required that the mine get into production in the very near future-112 He showed them the list of proposed contract changes, including reduced wages and health benefits, under which the employees could come back to work. None of the employees accepted his offer. At a union meeting on March 2, it was decided that no more employees would respond to Jamison's requests to come in. On March 3, Frank Barta and Roger Bouch told Wilson of the March 2 meeting; Wilson immediately ar- ranged for them to meet with Jamison. They went to Sales' office where Jamison told them that the Union did not care for them, that it would not sit down and bargain with him. Barta told Jamison that the Union would bar- gain if he would show his books. On March 4, Jamison wrote each of the employees, of- fering employment upon the reduced terms and condi- tions of employment, which he had earlier proposed orally to some of them. It does not appear that any of the employees accepted Jamison's offer by the March 8 deadline. Subsequent to the March 4 letter, Jamison showed the Union some records of both companies. The Union, it appears, was not entirely satisfied with what was shown and, although there was considerable correspondence be- 12 It is undisputed that Sales obtained a long-term agreement to sell coal from its Ralphton mine, contingent on production commencing about March 15 771 tween the parties thereafter, there were no further nego- tiations. In late December 1983, the Union moved to convert the Chapter 11 proceedings to proceedings under Chapter 7 of the Bankruptcy Code. Mark A. Gregg was appointed as the trustee in bankruptcy on March 2, 1984. The Court in Bildisco made clear a debtor-in-posses- sion's continuing obligation to recognize and bargain with the employees' collective-bargaining representative over the terms of a new collective-bargaining agreement both before and after formal approval of contract rejec- tion by the bankruptcy court. It is this duty that the General Counsel contends was breached by Respondent between October 1 and January 19. However, the record establishes that Respondent sought to bargain with the Union over terms of a new agreement both before and after the bankruptcy court approved its rejection of the contract and that the Union did not request bargaining during this period. It was not Respondent's fault that the Union failed to follow up on his bargaining request. Therefore, the General Counsel's contention that Re- spondent violated Section 8(a)(5) by refusing to bargain with the Union during this period must be dismissed, and I shall so recommend. Moreover, although an employer's attempts to deal di- rectly with his employees concerning their terms and conditions of employment while a union remained their exclusive bargaining representative must normally be found violative of Section 8(a)(5),13 under the circum- stances of this case I shall recommend that the General Counsel's allegations of direct dealing be dismissed. Bil- disco holds that a debtor-in-possession may unilaterally reject the terms of its collective-bargaining agreement without violating the Act; implicit in this right is the uni- lateral substitution of at least the initial modified terms and conditions of employment. Karsh's Bakery, 273 NLRB 1131 (1984). That is what Respondent was seek- ing to do. Moreover, Respondent was seeking to bargain and had proposed to the Union the same terms that it subsequently offered the employees. The Union, howev- er, based on a colorable but nonetheless erroneous belief that Sales was the alter ego of Hiysota, believed that Re- spondent should continue to be bound by the terms of the rejected agreement and was refusing to negotiate until that belief could be either disproved or substantiat- ed. In essence, the Union had, by this conduct, waived its right to object to the unilateral imposition of new terms and conditions of employment. Finally, Respond- ent was presented with severe time constraints with re- spect to resuming operations. Sales had a long-term con- tract for the sale of coal from the Ralphton mine. That contract required that production commence by mid- March. Production by Hiysota could not commence without some terms and conditions of employment being in place and Respondent was not obligated to agree that those terms would be the same as it had lawfully reject- ed. Given all these circumstances, I can find no unlawful direct dealing in Respondent's meeting with the employ- ees or in its letter to them setting forth the terms and 13 Krohck, Wholesales Meats, 270 NLRB 941 (1984) 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions under which they could return to work. I shall therefore recommend dismissal of this allegation. CONCLUSIONS OF LAW 1. Hiysota Fuel Co., Inc. and J.R. Sales, Inc. constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hiysota Fuel Co., Inc. and J.R. Sales, Inc. are not alter egos of one another. 3. Hiysota Fuel Co., Inc., Debtor-in-Possession, is "the same entity" as Hiysota Fuel Co., Inc. 4. Mark Gregg, Trustee in Bankruptcy, is a successor in bankruptcy to Hiysota Fuel Co., Inc., debtor-in-pos- session. 5. All production and maintenance employees em- ployed by Hiysota Fuel Co., Inc., at its Ralphton, Penn- sylvania mine facility; excluding office clerical employees and guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. Since about 1979, and at all material time, the Union has been the duly designated collective-bargaining repre- sentative of Hiysota Fuel Co., Inc.'s employees in the above-described unit. 7. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to make health and benefit fund contributions required by its collective-bargaining agreement with the Union between about June 2 until September 8, 1982. 8. Respondent has not violated the Act in any other manner alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent violated the Act by failing to make contractually agreed-upon payments to union trust funds, I shall order that Respondent pay the withheld contributions to those trust funds as had been required by its collective-bargaining agreement with the Union, with any interest applicable to such payments to be computed in accordance with the Board's decision in Merryweather Optical Co., 240 NLRB 1213 (1979). I shall also recommend Respondent be ordered to make its em- ployees whole for any losses directly attributable to its withholding of the contributions required under the par- ties' trust fund agreement , as set forth in Kraft Plumbing, 252 NLRB 891 fn. 2, (1980), enfd. 661 F.2d 940 (9th Cir. 1981). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondent, Hiysota Fuel Co., Inc., and J.R. Sales, Inc., Ralphton, Pennsylvania, its officers, agents, successors, and assigns, 1-5 shall 1. Cease and desist from (a) Failing and refusing to make contributions to trust funds on behalf of its employees as required by its collec- tive-bargaining agreement with the Union. (b) In any like or related manner interfering wit! re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Pay the contractually agreed-upon trust funds in the amounts of the contributions which Respondent failed to make on behalf of Respondent's unit employees, and reimburse employees for any losses directly attribut- able to the withholding of such contributions under the parties' trust fund agreements, in the manner set forth in the remedy section of this decision. (b) 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. (c) Post at its Ralphton, Pennsylvania place of business and mail to all the employees who had been on its pay- roll as of November 20, 1982, copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized repre- sentative, 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 14 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 15 This Order runs against receivers, debtors-in-possessions, and trust- ees in bankruptcy functioning pursuant to the Bankruptcy Code See Edward Cooper Painting, 273 NLRB 1870, 1880, and cases cited therein 16 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 "