Rotary Business Systems, Inc.,

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Landhill . Press, Inc., and-Rotary Business Systems, Inc., its alter ego and successor and Local 51, International Printing and Graphic Communica- tions Union, AFL-CIO. Cases 29-CA-9392 and 29-CA-10490 9 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On' 3 January 1985 Administrative Law Judge Thomas T. Trunkes issued the attached decision. Respondent Rotary Business Systems, Inc., , the General Counsel, and the Charging Party filed ex- ceptions and supporting briefs. The General Coun- sel and Respondent Rotary also filed reply briefs. 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,1 and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Landhill Press, Inc. and its alter ego Rotary Business Sys- tems, Inc., East Farmingdale, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. Amy B. Kaminshine, Esq., for the General Counsel. David Lew, Esq. (Bart Lew, & Monat), of New York, New York, for Respondent Rotary Business Systems, Inc. Jerome Lovitts, of Syosset, New York, for Respondent Landhill Press, Inc. Joshua Bienstock, Esq. (Quinn & Lilly, P.C.), of Garden City, New York, for the Charging Party. i The Respondent, Rotary Business Systems, Inc., has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Because we agree with and adopt the judge's conclusion that Rotary Business Systems, Inc. is the alter ego of Landhill Press, Inc., we find it unnecessary to pass on the judge's alternative finding that Rotary is the successor to Landhill. In adopting the judge's conclusion that the Respondents violated Sec. 8(a)(5) and (1) of the Act by Rotary denying the Union's president access to its premises in March 1983, we note that Respondent Rotary excepts to this finding based solely on its contention that it is not the alter ego of or successor to Landhill. DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge. The above proceeding was held in New York,, New York, oil March 5, April 25, 26, and 27, May 7 and 8, and June 12, 1984, predicated on a complaint and notice of hearing issued on February 3, 1982, in Case 29-CA-9392, and a second complaint and notice of hearing issued on July 15, 1983, in Case 29-CA-10490. By Order dated August 11, 1983, the two complaints were consolidated for hear- ing. The complaint in Case 29-CA-9392 alleges, inter alia, that since 1954 Respondent Landhill Press, Inc. (Landhill) has been a party to successive collective-bar- gaining agreements with Local 51, International Printing and Graphic Communications Union, AFL-CIO (the Charging Party, Local 51, or the Union) covering a unit of pressman; that in August 1981 Respondent Rotary Business Systems,,_ Inc. (Rotary) succeeded to the busi- ness of Landhill as an alter ego and/or successor; that in August 1981 Landhill and Rotary (collectively Respond- ents) withdrew recognition from the Union and ceased making contributions to the Union's funds on behalf of the pressmen in violation of Section 8(a)(5) and (1) of the Act. A hearing in Case 29-CA-9392 opened on January 24, 1983, before Administrative Law Judge Howard Edelman. At that time, a settlement agreement appeared to have been agreed on between the parties. The complaint in Case 29-CA-10490 alleges, inter alia, that on January 24, 1983, Rotary executed a collective- bargaining agreement with the Union, covering a unit of pressmen; that about March 11, 1983, the Union request- ed Rotary to furnish it with names and addresses of the unit employees and to provide, the union representative entry to Rotary's pressroom; that since January 24, 1983, Rotary has failed and refused to honor and abide by the aforesaid collective-bargaining agreement, has failed to make contribution payments to the Union's - funds on behalf of the unit employees, has refused to furnish the Union with the information requested, and has refused to allow the union representatives access to the pressroom, all in violation of Section 8(a)(5) and (1) of the Act. Re- spondents filed answers to the two complaints, denying the commission of any unfair labor practices. All parties were presented and participated at the hearing, and were afforded full, opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and argue -orally. Respondent Rotary and the General Counsel filed briefs. Neither the Charging Party nor Landhill filed briefs. The principal issues raised in this proceeding are the following: (1) Whether Rotary is the alter ego of Landhill. (2) Whether Rotary is the successor of Landhill. (3) Whether Rotary and/or Landhill, violated Section 8(a)(5) and (1) of the Act by committing any of the unfair labor practices as alleged in the complaints. On the entire record in this case, including my obser- vation of the demeanor of all witnessess, my evaluation of the transcript and exhibits, and due consideration of all briefs filed by the parties, I make the following 282 NLRB No. 58 LANDHILL PRESS 379 FINDINGS OF FACT I. JURISDICTION Respondent Landhill, a New York corporation, with offices and a place of business located in Westbury, New York, was at all times material engaged in the wholesale printing, sale, and distribution of printed business forms and related products. During the year ending August 12, 1981, it purchased paper, ink, and other goods and mate- rials in excess of $50,000 annually directly and indirectly from States located outside the State of New York. The complaints allege, Landhill admits, and I find that it has been at all times material an employer engaged in com- mierce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Rotary, a New York corporation with of- fices and a place of business located in East Farmingdale, New York, is, and has been at all times material engaged in the wholesale printing, sale, and distribution of printed business forms and related products. Since commencing operations about August 12, 1981, Respondent Rotary, in the course and conduct of its business operations, pur- chased paper, ink, and other goods and materials in excess of $50,000 annually directly and indirectly from States outside the State of New York. The complaints allege, Rotary admits, and I find that it is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaints allege, Respondents admit, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Background" In 1954 Respondent Landhill entered into an agree- ment with the Union in which Landhill agreed to comply with the terms of the then-existing and future agreements between the Union and Printers' League Sec- tion of the New York Employing Printers' Association2 (the Association). Thereafter, the Union and the Associa- tion executed successive collective-bargaining agree- ments which covered a unit of printing pressmen, the most recent agreement effective from March 4, 1983, to March 3, 1985. Although it was never a member of the Association, Landhill abided by all the terms and condi- tions of the collective-bargaining agreements agreed on between the Union and the Association from 1954 until August 1981. 1 From this point until the subparagraph entitled "Discussion and Analysis," a concise summary of facts will be presented . A detailed ac- count of the facts, including disputed facts, will be more fully developed under the subsection entitled "Discussion and Analysis." 2 The present name of the Association is Printing League Section, Printing Industries of Metropolitan New York, Inc. B. Operations of Landhill Until August 19813 Landhill was engaged in the wholesale printing business at a facility located in West- bury, Nassau County, New York. A New York corpora- tion, it was family owned and operated. Jerome Lovitts was president; his wife, Phyllis, was vice president; his daughter Lori Scharf was secretary; and another daugh- ter Bonnie was treasurer.4 Each of the officers had spe- cific responsibilities and duties. Lovitts was in charge of the day-to-day operations of the plant; Phyllis ' was an outside sales representative; Lori functioned as the office manager; while Bonnie worked in the production area. As of August 12, excluding the 4 officers, Landhill employed 15 employees, as follows: i office employee; 1 composition-room employee; 5 pressmen, namely, Ike Fisher, George Capizzi, John Capizzi, Eugene Loperena, and Carl Moseley; and 8 bindery room employees. The five named pressmen were represented by the Charging Party. In addition to Respondent Landhill, the Lovitts family owned and controlled two other enterprises, Forms-R-Us (Forms) and Lovitts Enterprises. Forms commenced op- erations in early 1981 as a printing broker. All the print- ing business solicited by it was printed by Landhill. The four corporate officers of Forms were Lovitts,, Phyllis, Lori, and Bonnie, the -same principals of Respondent Landhill. Forms discontinued its operations at the end of 1981. Lovitts Enterprises, established in 1967; is an ongo- ing business, operated by Lovitts and Phyllis. Although a printing broker like Forms, only approximately 50 per- cent of the business solicited by it was printed by Land- hill, the remainder being performed' by other printing companies. C. Landhill Ceases Its Relationship with the Union In March, the Union mailed a standard agreement to Landhill to reconfirm Landhill's recognition of the in- dustrywide contract in effect between the Union and the Association. In May, not having' received the returned' signed agreement from Landhill, Union President Julius Seide visited Landhill and asked Lovitts for an explana- tion. Lovitts replied that he was not signing the contract, because Landhill was going out of business, and that he would send a 60-day written notice to the Union as re- quired by the agreement. By letter dated June 2, Land- hill notified the Union of its planned closure. Shortly thereafter, Seide again visited Landhill. Lovitts informed Seide that Landhill was closing sometime in August, and that all moneys owed to the Union! would be paid by Landhill up to the date of closure. About August 12, Landhill ceased deducting dues on behalf of its pressmen, discontinued payments to the Union's various funds, and ceased recognizing the Union as the bargaining repre- sentative of its pressmen. 2 Unless otherwise indicated all dates refer to 1981. 4 Lovitts apparently inherited the business from his father who was a partner at the time Landhill recognized the Union in 1954. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Transfer of the Businessfrom Landhill to Rotary From the testimony of various witnesses of both Re- spondent, undisputed by the General Counsel or the Charging Party because of their lack of knowledge of the matter involved, the following was adduced at the hearing: Sometime in 1981 Landhill , finding itself in financial difficulty, sought advice from its attorney, Abraham Broido, an individual who had represented the Lovitts family in legal matters for approximately 50 years. Among the creditors of Landhill was Attorney Broido. In satisfaction for the debt owed him, Broido volun- teered to take over Landhill and assume some of its debts. This agreement was never executed in writing. Thereafter, about August 12, the date that Landhill closed its operations in Westbury, Lovitts informed the printing pressmen 'that Landhill could no longer operate with the Union. Broido was taking over the business and all the pressmen were offered employment with him. Broido confirmed the offer of employment for the press- men. All the pressmen, but one, accepted the job offer. The same job offers were extended to other employees of Landhill, many of whom accepted the offer. E. The Operations of Respondent Rotary, On June 1 Broido filed for incorporation under the name of Anchor Printing Corp. On July 1, however, the name of his enterprise was changed to Rotary. On August 19, Rotary executed a lease for premises located in East Farmingdale, Suffolk County, New York. Short- ly thereafter, Landhill's equipment was moved from Westbury, Nassau County, to East Farmingdale, Suffolk County, a distance of approximately 15 miles. In addition to the employees of Landhill who contin- ued employment at Rotary, all the principal officers of Landhill continued to work at Rotary. Production had been suspended to accommodate the move of the plant equipment from Westbury to East Farmingdale. On as- semblying the equipment, Rotary commenced produc- tion. F. Relationship Between the Union and Rotary In late August, Seide discovered that the Landhill em- ployees were working for Rotary in East Farmingdale. In early September he visited Rotary. Ike Fisher in- formed Seide that he was not allowed in the plant as it was not a union plant. Fisher escorted him to the office where Seide met Lori. He inquired for Lovitts, but was informed by Lori that he was out. He then asked to speak to the owner of. Rotary. When Lori stated that the owner would call, Seide left. Failing to hear from anyone from Rotary or Landhill, Seide, by letter dated, October 20, requested that Lovitts meet to discuss the ef- fects on employees of the sale of Landhill. By letter also dated October 20, he requested that Rotary, as successor to Landhill, meet for the same purpose. He received no response to either of the two letters. Thereupon, he at- tempted to contact Respondents by telephone. Failure to contact anyone prompted the Union to file the underly- ing charges in Case 29-CA-9392 with the Board. On January 24, 1983, at the commencement of the hearing, Administrative Law Judge Howard Edelman was in- formed that the parties had reached an out-of-Board set- tlement that was placed on the record. At the same time, the Union and Rotary appeared to have executed a col- lective-bargaining agreement. G. Refusal of Rotary to Abide by the Agreement Following the execution of the agreement , as noted above, Seide unsuccessfully attempted to contact Rotary by telephone. In March 1983 he paid a visit to Rotary and met with Broido. He informed Broido that he was there to speak to the unit employees and requested that he be allowed to speak to the day-shift pressmen. Broido refused this request, but permitted Seide to speak to the pressmen one by one in his office. Seide thereafter spoke to the pressmen, handing each one a copy of the agree- ment and application forms for union membership. After being denied a request to speak to night-shift employees, later, Seide left applications with Broido who agreed to have them distributed to the night-shift pressmen. Seide also asked Broido for information respecting the inden- tity of all pressmen and wages and benefits received by them. Not hearing further from Rotary, Seide again attempt- ed to contact Broido by telephone without success. In addition, Seide did not receive the information requested of Rotary, nor were the forms that were to be distribut- ed to the night-shift pressmen ever returned to him. In April 1983 Seide again visited the Rotary plant, but was refused permission to speak to any of the supervisors of Rotary or the pressmen in the plant. Subsequently, by letter dated April 8, 1983, the Union's attorney advised Rotary that it was in violation of the agreement signed by it, and requested a meeting between the parties. No response was forthcoming. By letter dated June 3, 1983, the Union's attorney advised Rotary that it was delin- quent in payments to the Union's trust funds. No reply to that letter was received. Seide attempted to contact Rotary several more times, but was never able to effect contact with Rotary. Thereafter, on May 23, 1983, the Union filed its charge in Case 29-CA-10490. H. Discussion and Analysis 1. Positions of the parties The General Counsel and the Charging Party assert that the record establishes that Rotary is no more than a disguised continuance of Landhill and, hence, an alter ego of Landhill. As Landhill's alter ego, Rotary is obli- gated to honor the collective-bargaining agreement to which Landhill has been bound and to remedy all the unfair labor practices. In the alternative, the General Counsel asserts that should it be decided that Rotary is not the alter ego of Landhill, Rotary is the successor of Landhill, and, as such, is obligated to recognize and bar- gain with the Union. Rotary not only unlawfully refused to do this, but further refused to abide by the 1983-1985 contract it executed with the Union in January 1983. Thus, as a result of Respondent's conduct, for the past 3 years the pressmen employed by Respondents have been LANDHILL PRESS 381 unlawfully denied their right to be -represented by, he Union. Respondents, on the other hand, contend that from the facts elicited at the hearing there is no basis for finding Rotary to be either an alter ego or a successor of Land- hill. Accordingly, neither Landhill nor Rotary has violat- ed the Act in any manner, and the complaints should be dismissed in their entirety. For reason detailed below, I find merit in the General Counsel's position that Rotary is the alter ego of Land- "hill, and further find that until higher, authority deems otherwise, I find Rotary to be a successor of Landhill. Having drawn this conclusion, I find that Respondents Landhill and Rotary are in violation of Section 8(a)(5) and (1) of the Act. 2. Credibility of witnesses Before a'finding can be made whether any of the al- leged violations occurred as contended by the General Counsel, credibility resolutions regarding the testimony of various witnesses presented at the hearing by both the General Counsel and Respondents must be determined. In addition to considering the demeanor of the witnesses, the Board has stated in Northridge Knitting Mills, 223 NLRB 230, 235 (1976): It is abundantly clear that the ultimate choice be- tween conflicting testimony also rests on the weight of the evidence, established or admitted facts, inher- ent probabilities, reasonable inferences drawn from the record, and, in sum, all of the other variant fac- tors which the trier of facts must consider in resolv- ing credibility. [Northridge Knitting Mills, 223 NLRB 230, 235 (1976).] In cases such as the instant case, when there is no "smoking gun," the General Counsel must rely on infer- ences to be drawn from various facts. Most of the factual information of the instant case was presented through testimony of Respondents' witnesses in an effort to evi- dence a lack of a relationship between Landhill and Rotary from which one may conclude that Rotary is the alter ego or successor of L.andhill. The principal wit- nesses for Respondents were Broido and Lovitts. After observing these witnesses, both of whom testified rather extensively, and after reviewing the transcript of the tes- timony, I am unconvinced that either of them related facts as they really occurred. Both concealed facts that were relevant and important to the instant case, and cou- pling their testimony with other facts presented at the hearing, I am constrained to conclude that the testimony related by both of them cannot be credited. a. Abraham Broido Broido, a practicing attorney for more than 50 years, incredulously testified that in January 1983, when the hearing in Case 29-CA-9392 opened before Judge Edel- man, he signed a document that recognized the Union as the bargaining agent of Rotary's employees without reading the document as he was legally blind and was unable to, read. Although I have no reason to dispute his testimony that he is legally blind, inasmuch as a letter was received in evidence from a physician that lent cre- dence to the claim, from other evidence obtained at the hearing, I cannot credit Broido's account. First, from my own observation, and as the General Counsel pointed out several times during the hearing, Broido was able to read documents placed before him while he was on the wit- ness stand. Secondly, his attorney at the January 1983 hearing credibly testified that he read the document to Broido who acknowledged that he understood it and ini- tialed changes and signed the document. This document was received into evidence. Lastly, as I indicated at the hearing, I cannot believe that an attorney with 50 years' experience would sign a document and initial changes without, having either read it or having it read to him. Accordingly, I find that this attempt by Broido to reject a document signed by him unworthy of a man in his po- sition. I consider this attempt to deceive the Board as the cornerstone on which I make other credibility findings unfavorable to Broido. b. Jerome Lovitts Lovitts did not impress me at all with his testimony. He appeared to be lost in the proceeding, unaware of what was going on. At crucial times, when asked to re- spond to certain questions by the General Counsel, he apparently_ was unable to set forth answers that would be helpful to the resolution of the case. For example, when asked by the General Counsel if his salary was the same at Rotary, where he is allegedly employed as a consult- ant, as it was ' at Laridhill and Forms, two entities of which he was the principal, he answered that he could not remember. Throughout the hearing, I was left with the impression that Lovitts, in his desire not to state facts unfavorable to him, did not ^ respond to questions in a forthright manner. Accordingly, I have concluded when the testimony of Lovitts conflicted with facts brought forth by the General Counsel the issues will be resolved against Respondents. 3. Relationship between the Union and Landhill The undisputed evidence established that on October 4, 1954, Landhill entered into a contractual relationship with the Union, whereby it agreed to be bound by exist- ing and succeeding agreements executed between the Union and the Association. In Ted Hicks & Associates, 232 NLRB 712, 713-714 (1977), the'Board held that by signing a memorandum agreement, as in the instant case, an employer is bound by the collective-bargaining agree- ment between the union and the association, notwith- standing that the employer failed to sign any agreements subsequent to the original memorandum agreement. Landhill does not deny that it was bound by the asso- ciation contract with the Union. In fact, in early 1981, it supplied the Union with official notice that it was .closing its plant, as required by the agreement. At no time had Landbill ever informed the Union that it was refuting the agreement between the Union and the Association. It is further noted that Landhill abided by the terms and con- ditions of the association agreement throughout the years from 1954 to 1981 , furnishing, payments to the various funds of the Union during that period. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has held that an employer's continuous ad- herence to the terms and conditions of a collective-bar- gaining agreement constitutes an acceptance of that agreement, notwithstanding that the employer never exe- cuted a formal adoption of the agreement. See Marquis Elevator Co., 217 NLRB 461, 465-466 (1975). Further, at no time prior to August 12, 1981, did Respondents pro- vide the Union with a notice that they did not consider themselves bound by the agreement. Respondents are es- topped from making a claim to the contrary at this time. See American Sign & Neon Co., 176 NLRB 1049, 1051- 1052 (1969). On the facts presented in the instant case, I find that Landhill was bound to the terms of the collec- tive-bargaining agreement between the Union and the Association. See Johnson Electric Co., 196 NLRB 637, 643-644 (1972), enfd. 472 F.2d 161 (6th Cir. 1973). 4. The alter ego contention In Advance Electric, 268 NLRB 1001, 1002 (1984), the Board held as follows: In analyzing the foregoing facts, the [administra- tive law] judge set forth the proper standard uti- lized by the Board and the courts to determine whether two facially independent employers consti- tute alter egos for purposes of the Act, to wit: The legal principles to be applied in determin- ing whether two factually separate employees [sic] are in fact alter egos are well settled. Al- though each case must turn on its own facts, we generally have found alter ego status where the two enterprises have "substantially identical" management, business purpose, operation, equip- ment, customers, and supervision, as well as own- ership. Denzil S. Alkire, 259 NLRB 1323, 1324 (1982). Accord: NLRB v. Campbell-Harris Electric, 719 F.2d 292 (8th Cir. 1983). Other factors that must be considered in determining whether an alter ego status is present in a given case include , "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." (Fugazy Continental Corp., 265 NLRB 1301 (1982).) In the finding that an alter ego status existed between Advance Electric and Beacon Electric, the Board ana- lyzed each of, the factors as listed above. I will do like- wise. a. Substantially identical management It is undisputed that Landhill was a family corpora- tion. At Landhill, Lovitts, president of the corporation, was the chief executive officer, in complete control of the operation; his wife, Phyllis, vice president, worked as a sales person; his daughter Lori, secretary of the corpo- ration, supervised the office clerical staff; and his daugh- ter Bonnie worked in the production area. On the estab- lishment of Rotary, the wife and two daughters of Lo- vitts were hired by Rotary to perform essentially the same services as they had previously performed at Land- hill. Although Respondents' witnesses unanimously testi- fied that Broido was the sole owner of Rotary and had complete control of the management of Rotary, and that no one in the Lovitts family had any interest in Rotary, I reject this testimony. As indicated earlier, I found that neither Broido nor Lovitts testified in a credible manner. Further, Lori, in support of them, did not impress me either. After careful study of the evidence, I have come to the conclusion that Rotary has "substantially identical management" as Landhill. I base my conclusion on the following: 1. At no time did Lovitts indicate to Seide that he was engaged in any business dealing with Broido. He simply stated that Landhill was closing its operations. 2. Although Respondents' principal witnesses testified that the transfer and sale from Lovitts to Broido took place, they testified that the transaction was made over a handshake, and that no written evidence of such transfer or sale had ever been recorded. Once upon a time, per- haps in Camelot, Shangrila, or Oz, such business transac- tions may have taken place with a handshake. However, in the last quarter of the 20th century in modern industri- al America, business normally is not conducted in this manner. 3. Lovitts conceded that although officially Landhill had been closed in early August he continued to take orders from customers, informing them that the orders would be processed by Rotary. Again, in the modern business world, it appears more logical that on closing of a business, management would inform its customers to seek other suppliers prior to the closing, and clearly management would not accept orders after it has closed. 4. The evidence revealed that after Landhill ceased production Lovitts continued to order supplies for Land- hill. 5. Respondents contend that Lovitts was listed as president of Rotary for the purpose of signing a lease for the new premises of Rotary in East Farmingdale. Re- spondents explained this away by asserting that the ma- chinery and equipment had been leased from Landhill by Rotary and that the landlord of the premises desired that Lovitts sign the lease to secure the equipment as collater- al. Other than this hearsay testimony of Respondents' witnesses, no evidence was adduced at' the hearing that such a requirement was necessary for the lease to be signed. If such had been the case, there would be no ne- cessity for Lovitts to sign the lease as president of Rotary inasmuch as the equipment and machinery was owned by Landhill. 6. The evidence established that Landhill and Rotary were covered by the same insurance policy number with the same insurance company. Under this policy with Landhill, the president and vice president were insured for $25,000 and the secretary and treasurer were insured for $75,000. The individuals so covered were Lovitts and his wife, Phyllis, for $25,000, and Lori and Bonnie for $75,000. The policy further provided that all other em- ployees be insured at a maximum of $10,000. These num- bers remained the same when the insurance company was informed of a name and address change from Land- LANDHILL PRESS hill to Rotary. Although an official" of the insurance company testified that a change in corporate or employ- ee status required a notification in writing to the insur- ance company, no such notification had been accorded it by Landhill. Thus, according to the insurance company's records, Lovitts was still president and entitled to $25,000 coverage. 7. Lori conceded that in her capacity as office manag- er of Rotary she submitted insurance premiums to the in- surance company identifying herself as secretary. Al- though Respondent Rotary insists that she was employed as a secretary of Rotary with no official title, I reject this argument on the basis that secretaries who submit docu- ments for officials of companies do not include their titles. Therefore, the usage of the word "secretary" after her name signifies that Lori was and is an officer of Rotary. 8. It,is inconceivable that a new operation , as Rotary claims to be, would simply adopt an insurance policy of a company in which it insists it has no connection, rather than make a application for new insurance coverage, list- ing Broido as the sole owner to be so insured. Respond- ents offered no explanation why the Lovitts family, having no managerial interest in Rotary, should continue to be covered by an insurance company with premiums being paid by Rotary. 9. Although Lovitts testified that he did not recall his salary at Rotary, as compared to his salary at Landhill, the records of both companies revealed that the officers of Landhill, i.e., the entire Lovitts family, received' the same salaries at Rotary that they had previously received at Landhdl. The records further revealed that employees, such as Fisher and George Capizzi, received pay raises in 1982. None of the Lovitts family received any salary increase, which further tends to convince me that none of them were mere employees of Rotary but rather indi- viduals who had, a proprietary interest in the business. It should benoted that the same payroll records of Rotary established that Broido was not listed on the records until January 1982, approximately 5 months after Rotary commenced its operations, 10. The undisputed record established that Broido had never had any experience in the printing industry. He spent his entire career as an attorney. He has been Lo- vitts family attorney for three generations , over a period 50 years, of and obviously has engendered some form of trust between the Lovitts family and himself. To sum up, from the evidence presented , as listed above, I am convinced that Broido was used as a "front" for the Lovitts family,, and that the true managers of Rotary are Lovitts and members of his family. b. Business purpose There can be no dispute but that Landhill and Rotary had the same business purpose. Both are engaged in the wholesale printing, sale, and distribution of printed busi- ness forms and related products, operating in the same geographical area of Long Island, New York, a suburban area of New York City. 383 c. Operations The record reveals that there are some similarities and some differences between the operations of Landhill and Rotary. With respect to differences, each enterprise had different insurance companies for liability purposes and different banks, as well as different trucking services. Whereas Landhill had no cleaning service, Rotary does. Most important, they operated at different locations. Nevertheless, each plant is located in the same geo- graphical area, the New York metropolitan area, in gen- eral, and Long Island, in particular. The Westbury plant is located , approximately 15 miles from the, East Farming- dale plant. As for similarities, the record reveals that Lovitts, through his brokerage firm, Lovitts Enterprises, ' contin- ued to do business with Rotary after Landhill closed. Lovitts continued to accept order for Landhill, and Rotary completed the unfinished business subsequent to the closing of Landhill. However, a study of the person- nel of Landhill and Rotary reveals a great similarity. As indicated earlier, the entire office staff, consisting of the Lovitts family and Linda Jahn, transferred en masse to the Rotary payroll. The first new employee, discounting Broido, was hired on October 13 when Jill Weill was hired. She remained at Rotary for exactly 1 month. The next employee, Gale Schwartz, was hired in April 1982. The record revealed that the composition department had one employee who also transferred to Rotary from Landhill. The first new employee in the composition room was Stanley Lynch, hired October 22, 1981, and terminated August 30, 1982. The next composition room employee was ' not hired, until June 21, 1982, but was ter- minated within 11 days. The evidence reveals that in the bindery department, at the time Landhill closed, there were eight employee. Three of them left on August 12, 1981, while the "other five transferred to Rotary. One of the five left Rotary on October 1, 1981. Rotary hired four new bindery employees, between August, 19 and September 1. Thus, by September 1, there were five bindery employees formerly employed at Landhill and four new bindery employees. The record reveals that on October 1, one of the Landhill bindery employees was terminated, and on October 2, one of the, new Rotary bindery employees was terminated. Two new employees were hired in October, and one of them left in Decem- ber. Throughout 1982, 1983, and 1984, many bindery, em- ployees were hired and terminated, as the record indi- cates. It is the pressroom employees that are of paramount concern in this case. The evidence revealed that in August 1981 there were five pressroom employees in- cluded in the appropriate unit represented by the Union. In addition, another employee, Leon Rosenberg, had been terminated on July 22. Of the five Landhill press- room employees, four employees, including Isaac Fisher, George Capizzi, John Capizzi, and Carl Moseley, trans- ferred to Rotary's payroll. The fifth pressroom employ- ee, according to undisputed testimony of John Capizzi, refused to transfer to Rotary on being informed by both Broido and Lovitts that Rotary would be a nonunion shop and that the employees would have to leave the 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. The record further, shows that two new employ- ees were hired by Rotary in August 1981. The next em- ployee to be hired in the pressroom was Nat Simmons, hired on August 16, 1982, 1 year after Rotary com- menced its operation. The record further, revealed that on the transfer to Rotary, Fisher, who had been a work- ing foreman covered by the collective-bargaining agree- ment with the Union, was promoted to plant superin- tendent with full authority to hire new employees in the plant. The record further disclosed that George Capizzi then replaced Fisher as a working foreman. It is noted that at some later date George Capizzi was assigned greater responsibilities to warrant a conclusion that he is a supervisor under Section 2(11) of the Act. However, in August 1981, he was not a supervisor under the Act, but a working foreman with all the rights and privileges of employees covered by the Act. Although Respondents argue to the contrary, I find that Rotary hired a vast majority of Landhill's employ- ees in each of the four listed categories. This included the entire office staff, the entire composition staff, five of eight bindery employees, and all but one pressroom em- ployee.5 Even assuming, arguendo, that Fisher is no longer covered by the collective-bargaining agreement as a result of his promotion at Rotary to plant superintend- ent, there still remained three employees in the press- room formerly employed by Landhill, with two employ- ees hired in August to replace Fisher and Loperena. Respondents argue that both Fisher and George Ca- pizzi became supervisors on the advent of Rotary, and thus should be executed from the unit. Respondents reason that as two new pressmen were hired the comple- ment of pressmen would be four nonsupervisory press- men in the unit, which would negate the conclusion that a majority of the pressmen at Rotary were former press- men of Landhill. I reject this argument, having found George Capizzi was not a supervisor at the time of his transfer to Rotary. Accordingly, I find that a majority of Landhill's pressroom employees did transfer to Rotary at its inception. d. Equipment The parties stipulated that a list of equipment of Land- hill, consisting of several pages and marked as the Gen- eral Counsel Exhibit 8, was transferred over to Rotary. Thereafter, the General Counsel asked Lovitts the fol- lowing: Q. Is General Counsel's Exhibit 8 all the equip- ment you had at Landhill? A. This one? Q. Did ' that contain a list of all the equipment that you had at Landhill other than paper products? A. Yes. 5 John Capizzi testified that the one employee had been- offered em- ployment, but was not hired when he refused to abandon the Union, as requested by Lovitts and Broido. There, is nothing in the record to reveal why the Regional Director did not allege a construction discharge and a violation of Sec. 8(a)(3) and (1) of the Act with respect to Gene Loper- ena, the individual in question . As there is no allegations, the General Counsel does not urge that a violation be found, and as the issue was not fully litigated, I will make no findings with respect to this matter. Q. So, all your equipment, then went over to Rotary, correct? A. Right. Subsequently, under examination by Respondents, Lo- vitts stated that most of the machinery and equipment of Landhill were transferred to Rotary, and the rest, enu- merating several specific items, were sold or retained by Lovitts himself. John Capizzi, a witness for the General Counsel, testi- fied without dispute that a truck used at Landhill was again used by Rotary., However, he did concede that Rotary did have a new truck in addition to the older one, and there were additional new machines at Rotary that had not been at Landhill. e. Customers The parties offered several stipulations with respect to customers as follows. In 1981, Landhill had 131 customers. Of this number, 109 were also customers of Rotary. Of the 22 customers of Landhill who did not become customers of Rotary, 3 were not in business prior to August 1, 1981; 7 had only one order with Landhill; and 2 of those,were transferred to Anchor Business Forms, a broker that did business with Landhill and with Rotary, such transfer occurring prior to August 1981. Of 131 customers of Landhill, 51 of those were sent bills for orders after August 1, about August 17; and of the 51, 23 were sent bills for orders of Landhill received after August 24. The record further shows the following dates, Rotary customers, and number who had been former Landhill customers as follows: Date Rotary Formerly Landhill Customers Customers September 1981 .......................... 70 58 October ....................................... 16 13 November ................................... 19 9 December.................................... 8 6 January 1982 ............................... 7 5 February...................................... 10 3 March .......................................... 11 3 April ............................................ 12 1 May ............................................. 3 0 June ............................................. 20 3 July .............................................. 14 0 August ......................................... 14 2 September ................................... 9 2 October ....................................... 10 0 November ................................... 9 0 December.................................... 12 0 The parties further stipulated that by December 1982 Rotary had 244 customers. The parties further stipulated that of the 109 Landhill customers that ultimately became Rotary customers 15 were last Landhill custom- ers sometime prior to July 1981. LANDHILL PRESS Lori testified that she employed" the same system in making entries on the customer cards for Rotary as he had done at Landhilt Respondents contend that in the printing brokerage business clientele often utilize numerous manufacturers of forms at the same time, depending on the cost of each job they are brokering. In addition, Respondents assert that the criteria with respect to customers is not a true criterion in this industry, inasmuch as had Landhill stayed in business and Rotary opened a new business the brokers would undoubtedly have been customers of both, and many other form printing establishments as well. Therefore, Respondents submit that the numbers regarding customers are insufficient under the circum- stances. I do not agree with Respondents' contentions. It may' be, as Lovitts testified, that one cannot turn over customers from one establishment to another. Neverthe- less,, I find it highly significant that a vast majority of Landhill's customers did rotate to Rotary after Landhill closed. It should be noted that Lovitts, in taking orders from customers, did inform the customers in August 1981 that the work would be performed by Rotary, and, in fact, orders taken by Landhill or by Lovitts' other brokerage businesses were performed by Rotary after Landhill closed. f, Supervision The office staff of both Landhill and Rotary is super- vised by Lori. She testified that her official position was office manager and secretary of both corporations. The evidence adduced at the hearing revealed that at Land- hill Lovitts was in charge of the overall supervision, while Ike Fisher was in charge of the pressmen as a working foreman. However, testimony revealed that at Rotary Fisher is the plant superintendent and at some later date George Capizzi became the pressroom fore- men. Respondents assert that Lovitts has no supervisory authority at Rotary, but only retains an office and acts as a consultant, but Broido, with no connection at all with Landhill, is the overall supervisor of Rotary. According to Respondents, Broido has full authority to hire and dis- charge all employees,; although the supervisors, including George Capizzi, effectively recommend hiring of em- ployees. However, it' is noted earlier that Lovitts signed the lease for the premises as president for Rotary, and the insurance company that insures the lives of nonunion employees lists him as president of Landhill and Rotary. From the evidence presented, I have concluded that the supervisory staff at Rotary is substantially the same as the supervisory staff at Landhill. Although Respondents argue that Broido is the overall supervisor of Rotary, the evidence established that Broido has had no prior experi- ence in the, printing business, and no evidence was ad- duced that he had any experience in personnel work. Al- though no direct evidence was presented to refute re- spondents' witnesses that Broido was in overall charge of Rotary, I reject this contention of Respondents, and find that Lovitts continues to supervise the overall operations of Rotary, dispite the fact that his alleged, title is, that of consultant, and he allegedly has no interest in Rotary. 385 g. Ownership The undisputed evidence reveals that Lovitts owned 100 percent of Landhill. Respondents claim that Broido is the sole shareholder and director of Rotary and that Lovitts is not involved in the ownership. I am unable to accept Respondents' contention for the following rea- sons. 1. There is no documentary evidence in the record to prove that Broido is the sole owner of Rotary and that Lovitts or members of his family have no financial inter- est in Rotary. Respondents assert that inasmuch as Broido and Lovitts had been good friends for many years the deal that transferred Landhill to Rotary was consummated by a handshake. Nevertheless, the record disclosed that on August 3, 1981, Lovitts and Broido ex- ecuted a lease for the rental of equipment from Landhill to Rotary. (R. Exh. 5.) No explanation was proffered by Respondent to explain if Broido and Lovitts were such great friends who were able to transfer Landhill to Rotary by a handshake, why it was necessary that the transfer of equipment from Landhill to Rotary necessitat- ed a signed lease. In addition, although it was alleged that Lovitts owed Broido money in excess of $100,000 for services rendered as an attorney, there is no docu- mentary evidence of this debt, nor is there any documen- tary evidence relieving Lovitts of the debt to Broido. Further, Lovitts has no record of the amount of moneys owing to Broido. Nobody was able to testify about the amounts of money Lovitts owed Broido prior to his turning over the business of Landhill to Broido., 2. Evidence was adduced that Lovitts signed a lease of the premises in East Farmingdale as president of Re- spondent. Broido testified that there were minutes of the corporate meeting evidencing Lovitts being made presi- dent for 1 day. At the hearing, this judge stated that unless the minutes were produced, he would draw the conclusion that no such minutes were taken. No minutes were ever produced by Respondents. 3. The insurance data revealed that the same policy number applied to both Landhill and Rotary, and that Lori, as secretary, notified the insurance company of a change of name and address from 'Landhill in ' Westbury to Rotary in East Farmingdale. However, no notification was given to the insurance company of the change of the beneficiaries of the contract. Thus, the name of Lovitts as president and his wife Phyllis as vice president, as well as his two children as secretary and treasurer, re- mained on the insurance policy that was adopted by Rotary. Thus, as an agent of the insurance company tes- tified that, had Jerry Lovitts or any of the Lovitts family died under insurance coverage the insurance company was obliged to pay the moneys under which they were insured. It is noted that at a later date Broido was listed as' executive president of Rotary. Although the agent of the company testified that the company should have dis- covered that two presidents were listed for Rotary, and could not explain why it was not' discovered; I cannot fault the insurance company for this error. On the other hand, I can fault Rotary, be it Lovitts or Broido, for not making it perfectly, clear, if such was not the situation, that Lovitts and his family members were no longer offi- 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cers of Rotary, but that Broido was the sole person to be insured. This, of course, did not occur because, as I find, the Lovitts family was still the owner of the business, whether'it be called Landhill or Rotary. 4. The undisputed evidence further revealed that Lo- vitts informed the customers of Landhill at the time he was taking orders after Landhill allegedly closed that they would be using, Rotary, which was the same entity as Landhill. 5. It is undisputed further that the company known as Forms-R-Us was borrowed from Landhill by Rotary until such time as Rotary received an" identification number. When asked for an explanation of how this oc- curred, Broido testified as follows: Well, when we signed the lease, I applied for the ID number, it didn't come in, in time and the checking company gave us to understand that they couldn't issue the checks, the payroll checks with- out an ID number. We had an old corporation which was dormant, as far as I was concerned, as we used their number. [Emphasis added.] Broido identified the old corporation that was dormant as Forms-R-Us, one of Lovitts' corporations. Based on the above testimony by Broido , it is obvious to me that Broido considered Forms-R-Us intertwined with Rotary and Landhill, and had no qualms with in- dentifying that corporation as one that "we" had. Ac- cording to the' testimony of Respondents' witnesses, at no time did Rotary have any connection with Forms-R- Us other than borrowing an ID number for a brief time. Broido's testimony, however, can be interpreted as indi- cating that there was a nexus among the three corpora- tions, namely, Landhill, Forms-R-Us, and Rotary. I so make that connection. h. Purpose of activation of rotary press In analyzing all the facts of the instant case, I am con- strained to conclude that the purpose of activating Rotary by Lovitts was to avoid any dealings with the Union. I base this conclusion on the following: 1. Landhill claims it was deep in debt, was unable to carry on it business, and was about to go bankrupt. Nev- ertheless, Broido, without any experience or background in the printing business, "agreed" to start up a new busi- ness. The record indicates that within 3 years, Rotary built up a bankrupt business into an apparently prosper- ous profit-making concern, with many more employees and customers., Whether this highly successful turnabout could have been accomplished with a union agreement is highly speculative. However, inasmuch as the Employer was not obliged to pay fringe benefits into various union funds, it was either able to lower its prices, generate more profit, or do both. 2. At the time that Landhill became Rotary in August 1981, both Broido and Fisher informed the pressroom employees that they were operating a nonunion shop and asked the employees to resign from the Union. One em- ployee refused to do so and resigned. The other employ- ees signed a document creating a nonunion shop. 3. Seide testified, without contradiction, that on his visit to Rotary in East Farmingdale, he ,was informed by Lori, allegedly only a secretary with a nonofficial status in Rotary, that a union was not needed at Rotary as it would put them out of business. From the evidence as detailed above, I find that the true purpose for which Rotary was formed was, to evade Landhill's responsibility under the Act to honor its col- lective-bargaining agreement with the Union. Such a mo- tivation supports an alter ego finding. J. M. Tanaka Con- struction v. NLRB, 675 F.2d 1029 (9th Cir. 1982). Although it can be argued that inasmuch,as all the fac- tors utilized by the Board and the courts to determine whether two employers constitute alter egos for the pur- poses of the Act may not be present in the clearest form, the Board has held that all the indicia need not be present. See Blake Construction Co., 245 NLRB 630, 634 (1979), enf. granted in part and denied in part on other grounds 663 F.2d 272 (D.C. Cir. 1981). In analyzing all the factors listed above, on balance, I find and conclude that Rotary is, and was at all time since August 1981, the alter ego of Landhill and, thus, is and was obligated to bargain with the Union as the representative of the press- room employees and is and was bound by the collective- bargaining agreement entered into between the, Associa- tion and the Union inasmuch as Landhill had agreed as early as 1954 to the terms and conditions of the agree- ment negotiated between the Union and the Association. By failing to so bargain with the Union and, by with- drawing recognition from it, in addition to repudiating the collective-bargaining agreement to which Landhill was bound, Rotary violated Section 8(a)(5) and ,(1) of the Act. 5. The successorship issue It is the contention of the General Counsel that should it be found that an alter ego situation does not exist alter- natively it should be found that Rotary is a successor of Landhill, and, as such, is bound to recognize the Union as the collective-bargaining representative of the press- room employees. Respondents, on the other hand, deny that Rotary, a new enterprise lacking much of the crite- ria that would signify a successors violated the Act by its refusal to recognize the Union as the agent of its employ- ees. The Board has offered guidelines for determining whether a bargaining obligation attends the sale or trans- fer of a business. These factors are: (1) Whether there has been a substantial continuity of the same business operations. (2) Whether the successor uses the same plant as that of the predecessor. (3) Whether it has the same or substantially the same work force. (4) Whether the same jobs exist under the same work- ing conditions. (5) Whether it employs the same supervisors. (6) Whether it uses the same machinery, equipment, and methods of productions. (7) Whether it manufactures the same product or offers the same services. See Band Age, Inc., 2,17 NLRB LANDHILL PRESS 387 449, 452-453 (1975); J-P Mfg., - -194, NLRB '965; 968 (1972). All the criteria for finding a successor have been thor- oughly analyzed in the section on' alter ego. The sole cri- terion that I find lacking is item 2, that is, the successor, Rotary, did not utilize the same plant as its predecessor, Landhill. Accordingly, on the possibility that either the Board or courts are not in agreement with my analysis that Landhill and Rotary are alter egos, based on my analysis of the evidence as discussed in the alter ego sec- tion, I am in accord with the. General Counsel's alternate theory that at the very least Rotary is a successor to Landhill, and thus is obligated to recognize and bargain with the Union. 6. Rotary's refusal to honor the collective- bargaining agreement executed on January 24, 1983, and its refusal to make contributions to the Union's funds on behalf of the unit employees The evidence established that at the opening of a hear- ing before Judge Edelman on January 24, 1983, it ap- peared that the Charging Party and Respondents entered into an out-of-Board settlement whereby Respondents acknowledged that they were alter egos and Rotary was a successor of Landhill. At the same time, the parties ex- ecuted an agreement whereby Rotary recognized the Union as having jurisdiction over "Offset presses and re- lated lithographic work such as camera, stripping and plate making." Subsequently, Rotary refused to abide by the terms of the agreement that prompted the Union to file a second charge, resulting in the issuance of the complaint in Case 29-CA-10490. The General Counsel contends that the agreement was entered into by Rotary freely and that Rotary's only de- fense that Broido signed the agreement without being aware of the contents of the document as he was legally blind has no merit. I have fully discussed this matter ear- lier in this decision and have discredited Respondents' contention. However, Respondents offered a second de- fense, namely, that the unit in the agreement (G.' C. Exh. 20) contained a unit that included employees other than the pressman represented by the Union. The General Counsel argues that the testimony of Re- spondents' attorney, Licata, and the Union's president, Seide, makes it abundantly clear that the only individuals sought by the Union were the pressroom employees, and not any other fringe employees. The General Counsel further argues that Respondents did not dispute the testi- mony of Licata or Seide. Again, based on the assumption that the Board or courts do not agree with my conclusion that an alter ego status exists between Landhfill and Rotary, and having found that in the alternative Rotary is a successor to Landhill, a question remains whether' Rotary was bound by the agreement, executed by the parties on January 24, 1983. I find merit in Respondents' argument that the unit encompassed in the agreement far exceeds the unit repre- sented by the Union. Despite the General Counsel's ar- gument that both Licata and Seide testified orally that they meant the, unit encompasses only pressroom em- ployees, Licata was unable to explain why, despite the ^faot'that crossouts and additions were initialed by the parties in the agreement, this was not done with respect to the unit. It is common knowledge in contract law that written contracts cannot be altered by oral testimony. Thus, al- though Respondents did not refute the testimony of Licata and Seide, I cannot accept their testimony that the agreement only included pressroom employees, and not other employees performing related lithographic work. Therefore, I find that the agreement entered be- tween the parties on January 24, 1983, to be valueless and that Respondents were under no obligation to abide by the terms and conditions of this agreement. Accord- ingly, I recommend that this portion of the complaint be dismissed. 7. Respondents' refusal to furnish the Union with names and addresses of unit employees, and to permit union representatives access to Respondents' premises The undisputed evidence established that in March 1983 Union President Seide visited Rotary's premises. He was denied permission by Broido to speak to the press- men in the plant, although he was permitted to see them one by one in Broido's office. Seide requested from Broido names and addresses of each pressman, and infor- mation regarding wages and benefits received by them. Not having received the information requested, Seide again attempted to speak to the pressmen in the plant in April, but was not permitted to do so by Rotary. There- after, his attorney wrote Rotary to inform it that it was in violation of the agreement and requested Broido to contact Seide. No response was made. A further letter, dated June 23, 1983, by the Union's attorney advised Broido that Rotary was in arrears in payment to the Union's trust funds. Again, Rotary did not respond, nor has it made any contact with the Union to date. Regardless of whether Rotary is the alter ego of, or successor to, Landhill, I find merit in the General Coun- sel's contention that the Union is entitled to the informa- tion sought by it from Rotary. It is well established under the Act that an employer may be required to furnish its employees' bargaining rep- resentative, on request, with sufficient data' on wage rates, job classifications, and other allied matters to permit the representative: (1),To bargain understanding; (2) to police the administration of the current contract; and (3) to prepare for coming negotations. See Aluminum Ore Co., 39 NLRB 1286 (1942), enfd. 131 F.2d 485 (7th Cir. 1942); NLRB v. Item Co., 220 F.2d 956 (5th Cir. 1955); General Controls Co., 88 NLRB 1341 (1950). Later Board and court decisions have required em- ployers under the Act to-furnish unions with names and addresses of all employees in the unit that the union rep- resents. See Standard Oil Co v. NLRB, 399 F.2d 639 (9th Cir. 1968). Prudential Insurance Co. v. NLRB, 412 F.2d 77 (2d Cir. 1969), cert. denied 396 U.S. 928 (1969); United Air Craft Corp. v. NLRB, 424 F.2d 1198 (2d Cir. 1970.) 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further well established that an employer is obliged to permit the bargaining representatives of its employees reasonable access to its facility, whether by contract or past practice. See Campo Slacks, Inc., 250 NLRB 420, 429 (1980), and R. C. Cobb Inc., 231 NLRB 99, 104 (1977). Accordingly, I find that Respondents, by their failure to supply the desired information to the Union, and by their failure to permit access of union representatives to their plant, violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondents Landhill Press, Inc. and Rotary Busi- ness Systems, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 51, International Printing and Graphic Com- munications Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Rotary Business Systems, Inc. is, for the purpose of this proceeding, the alter ego of Respondent Landhill Press, Inc. 4. All pressroom employees, including printing press- men employed by Landhill Press, Inc. and by its alter ego Rotary Business Systems, Inc., exclusive of all other employees, office clerical employees, guards and all su- pervisors as defined in Section 2(11) of the Act consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material the Union has been the exclu- sive collective-bargaining representative of the employ- ees in the appropriate unit described above in paragraph 4 within the meaning of Section 9(a) of the Act. 6. Since about October 4, 1954, and at all times materi- al the Union and the Printing League Section, Printing Industries of Metropolitan New York, Inc., have been parties to successive collective-bargaining agreements, the most recent of which is effective by its terms for the period March 4, 1983, to March 4, 1985. 7. About October 4, 1954, Respondent Landhill and the Union executed an agreement whereby Landhill adopted the existing association agreement and agreed to adhere to the terms of succeeding association agree- ments. 8. By failing and refusing to recognize and bargain with the Union as the exclusive representative of its em- ployees in the appropriate unit, and by failing to adhere to the terms and conditions of the association agreement with respect to such employees, Respondents have vio- lated Section 8(a)(5) and (1) of the Act. 9. By failing and refusing to furnish the Union infor- mation requested by it on March 11, 1983, and thereaf- ter, and by refusing to allow the union representatives to enter its pressroom since March 11, 1983, Respondents have violated Section 8(a)(5) and (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondents engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. Having found that Respondent Rotary is the alter ego of Respondent Landhill and has continued to operate its business, but has failed and refused to recognize the Union as the collective-bargaining representative of its employees or to apply the terms of the association agree- ment between the Union and Respondent Landhill, I shall order Respondent Rotary to recognize the Union as the representative of its pressroom employees and to honor and apply the terms of the association agreement, and any subsequent agreement,6 to its employees. In ad- dition, I shall order Respondents to make whole their employees by making the contractually established pay- ments to the various trust funds established by the collec- tive-bargaining agreement,7 and by reimbursing employ- ees for any expenses ensuing from Respondents' unlawful failure to make such required payments, as provided in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). See also Ad- vance Electric, id. at 1005. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Landhill Press, Inc. and its alter ego Rotary Business Systems, Inc., East Farmingdale, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Local 51, International Printing and Graphic' Communications Union, AFL-CIO as the exclusive representative for pur- poses of collective bargaining of the employees in the following appropriate unit: All pressroom employees, including printing press- men employed by Respondents, exclusive of all 6 The record established that Landhill never termmatd its 1954 agree- ment with the Union, and that the agreement remains in full force and effect. Accordingly, Respondent Rotary is bound to the terms of any sub- sequent collective-bargaining agreement between the Association and the Union until such time as Respondent Rotary gives proper and timely written notice to terminate their agreement to the Union , and then to the expiration of that agreement. Advance Electric, 268 NLRB 1001, 1005 fn. 13 (1984). 4 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a "make-whole" remedy. I therefore leave to further proceedings the question of how much interest Respond- ents must pay into the benefit fund in order to satisfy the Board's "make- whole" remedy. These additional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the docu- ments governing the fund at issue and, where there are no governing pro- visions, to evidence of any loss directly attributable to the unlawful action that might include a loss of return on investment of the portion of funds, withheld additional adminstrative cost, etc., but not collateral losses. See Advance Electric, supra at 1005 fn. 14, Merrywea'ther Optical Co, 240 NLRB 1213, 1216 fn 7 (1979). Other payments to the Union, if any, shall bear interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716, (1962). , a 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. LANDHILL PRESS other employees, office clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act. (b) Refusing to honor and implement the collective- bargaining agreement in effect between Landhill Press, [nc. and the Union. (c) Refusing to furnish the Union with names and ad- dresses of all their employees in the appropriate unit and information regarding wages and benefits received by them. (d) Refusing to allow representatives and agents of the Union to enter their pressroom pursuant to the terms of the collective-bargaining agreement. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their' rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Comply with the terms and conditions of the col- lective-bargaining agreements between the Association and the Union to which Respondents are bound, retroac- tively to August 12, 1981, including making the appro- priate trust funds, the employees, and the Union whole in the manner described in the remedy section of this de- cision. (b) On request, recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit described above inparagraph 1(a) con- cerning terms and conditions of employment. (c) Furnish the Union with names and addresses of employees in the appropriate unit presently employed by Respondents and information regarding wages and bene- fits received by them. (d) Provide representatives and agents of the Union entry to their pressroom pursuant to the terms of the col- lective-bargaining agreement. (e) 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. (f) Post at its offices in East Farmingdale, New York, copies of the attached notice marked, "Appendix."g Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by Respond- ents' authorized representative, shall be posted by Re- spondents 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 Respondents to ensure that the notices are not altered, defaced, or covered by any other materials. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondents have taken to comply. 9 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 389 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and bargain with Local 51, International Printing and Graphic Communi- cations Union, AFL-CIO as the exclusive representative for purposes of collective bargaining of our employees in the following appropriate unit: All, pressroom employees, including printing press- man employed by us, exclusive of all other employ- ees, office clerical employees, guards, and all super- visors as defined in Section 2(11) of the National Labor Relations Act. WE WILL NOT refuse to honor and implement the col- lective-bargaining agreement in effect between Landhill Press, Inc. and the Union. WE WILL NOT refuse to furnish the Union with names and addresses of all our employees in the appropriate unit and information regarding wages and benefits re- ceived by them. WE WILL NOT refuse to allow representatives and agents of the Union to enter our pressroom pursuant to the terms of the collective-bargaining agreement: WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. WE WILL acknowledge that we are bound by the exist- ing collective-bargaining agreement in effect between Landhill Press, Inc. and the Union, retroactive to August 12, 1981. WE WILL honor, implement, and apply this collective- bargaining agreement. WE WILL make whole the Union for any and all bene- fits funds and other payments due and owing pursuant to this collective-bargaining agreement. WE WILL make whole unit employees for any losses they may have suffered by reason of our failure to honor and implement the collective-bargaining agreement with the Union, with interest. WE WILL, on request, recognize and bargain with the Union as the exclusive representative of our employees 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the appropriate unit concerning terms and conditions WE WILL provide representatives and agents of the of employment. Union entry to our pressroom pursuant to the terms of WE WILL furnish the Union with names and addresses our collective-bargaining agreement. of employees in the appropriate unit presently employed LANDRILL PRESS, INC. AND ITS ALTER by us and information regarding wages and benefits re- EGO, ROTARY BUSINESS SYSTEMS, INC. ceived by them.