Metal Carbides Corp.

METAL CARBIDES CORP Metal Carbides Corporation and United Steelwork ers of America, AFL-CIO Case 8-CA-20134 November 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 8, 1988 Administrative Law Judge Robert G Romano issued the attached decision The General Counsel filed exceptions and a sup porting brief 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 brief and has decided to affirm the judge s rulings, findings 1 and conclusions2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed ' We correct the following incorrect dates in the judge s decision Sec II B 3 par 4 should state that negotiations continued through November 1986 not 1987 Sec II B 7 e par 5 should give the date of G C Exh 4 as June 3 1987 not 1988 Par 12 of the Analysis conclusions and find rags section should refer to the agreement of August 24 1987 not 1988 s We agree with the judge that the General Counsel has failed to show the relevance of the sales agreement and other requested information and therefore the complaint should be dismissed In doing so we rely on the finding that via the February 1987 agreement with Metal Carbides Inc (a wholly owned subsidiary of the company that purchased the assets of the Respondent) the Umon clearly and unequivocally relinquished its right to seek automatic recognition based on successorship or any other theory or rule of law Hence the information is not relevant for that pur pose Nor is the information relevant to the Union to support any potential future claims against the Respondent on the theory that it survived as a disguised continuance in the form of Metal Carbides Inc The Union is precluded from attempting to prove such a relationship because if the Re spondent and Metal Carbides Inc are in fact alter egos the Union s Feb- ruary 1987 agreement with Metal Carbides Inc would in effect be an agreement with the Respondent In that agreement the Union stipulated inter alia, that Metal Carbides Inc is a distinct and separate entity from Metal Carbides Corporation that there is no continuity of ownership or control between Metal Carbides Corporation and Metal Carbides Inc and that Metal Carbides Inc s operations constitute an entirely new and independent enterprise Thus the Union cannot use the requested sales information against the Respondent to prove an alter ego relationship with Metal Carbides Inc We note that the Union proffers no evidence of fraud in the execution of the February 1987 agreement nor newly dis covered evidence of common ownership In addition since the Union by the August 1987 agreement settled all grievances outstanding under its contract with the Respondent and there is no contention before us that the Respondent has failed to satisfy its of fects bargaining obligations the information is no longer relevant for grievances or effects bargaining purposes Paul C Lund Esq for the General Counsel Robert Hendrickson Esq of Youngstown Ohio for the Respondent 939 Connie Le Vier of Youngstown Ohio for the Charging Party DECISION STATEMENT OF THE CASE ROBERT G ROMANO Administrative Law Judge I heard this case in Youngstown Ohio on October 30 1987 United Steelworkers of America AFL-CIO (Steel workers) filed the instant charge against Metal Carbides Corporation (M C Corp or Respondent Employer) on May 28 1987 Complaint issued on July 10 1987 The complaint alleges a violation of Section 8(a)(5) and (1) in that Respondent Employer is alleged to have refused since January 13 1987 to supply Steelworkers certain requested information that is asserted to be necessary and relevant to Steelworkers performance of its function as exclusive collective bargaining representative of a unit of Respondent Employers production and maintenance em ployees to wit has failed to supply Steelworkers with a copy of any and all sales agreements showing terms and conditions of the recent Metal Carbides sale as well as any other agreements which would show any interest which Metal Carbides Corpora tion Standard Slag Company or Standard Slag Holding Company presently holds in Metal Car bides Inc By answer filed on October 14 1987 Respondent Em ployer denied the commission of any unfair labor prac tice Respondent M C Corp there has also stated that it declined the Steelworkers prior request for information on the ground that the requested sale agreement is confidential privileged not relevant to the subject matter at issue and not reasonably calculated to lead to the discovery of relevant information In its brief Re spondent Employer relatedly urges that Steelworkers has sought to pry into such confidential matters as price and terms of payment which M C Corp asserts are not le gitimate concerns of the Union Respondent Employer M C Corp additionally de fends that Steelworkers signed an agreement with Metal Carbides Inc (M C Inc) on February 5 1987 which specifically addressed the separate identity of Respond ent Employer M C Corp and M C Inc Respondent Employer thus asserts that Steelworkers stipulated and agreed with M C Inc that neither Respondent Employ er M C Corp nor its affiliated companies holds any in terest in M C Inc Respondent Employer M C Corp argues that Steelworkers effectively waived any claim that Respondent M C Corp has an interest in M C Inc and thereby rendered any Steelworkers inquiry of M C Corp moot At hearing and again in brief Respondent Employer M C Corp has additionally defended that by virtue of a certain (grievances) agreement reached between Steel workers and Respondent Employer on August 24 1987 Steelworkers has further waived any prior request made of M C Corp for information On the entire record including my observation of the demeanor of the witnesses and after due consideration of 291 NLRB No 132 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the briefs filed by the General Counsel and Respondent on or about December 4 1987 I make the following FINDINGS OF FACT I JURISDICTION The Metal Carbides Corporation is an Ohio corpora tion which at all times material had an office and place of business in Youngstown Ohio where it was engaged in the manufacture of Tungsten carbide metallurgy prod ucts During calendar 1986 Respondent Employer shipped goods and materials valued in excess of $50 000 directly to points located outside the State of Ohio I thus find that at all times material Respondent Employer M C Corp is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act I further find that the Steelworkers and its affiliated Local 2879 are each respectively a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background 1 Preliminary observations on the state of the evidence Following receipt of the testimony of the witnesses of fered by the General Counsel including that elicited from them on cross examination Respondent M C Corp elected not to offer any testimonial evidence of its own Rather Respondent Employer has elected to rely principally on the documentary evidence that it pro duced namely (a) the terms of the agreement resolving all disputes between them that Steelworkers and Re spondent M C Corp finally reached on August 24 1987 (R Exh 1) and (b) the agreement submitted with Respondents answer (G C Exh 1(e) attachment A) that Steelworkers has acknowledged of record that it had reached with M C Inc earlier on February 5 1987 and which contains definitive stipulations then entered by Steelworkers on the separate identity of M C Inc and M C Corp infra Essentially it is the General Counsels related contention that misrepresentations may have been made to Steelworkers in the making of that agreement as evidenced by facts that later came to light Respondent in turn denies all assertion of fraud or deceit and asserts the evidence of record will not support any such claim The General Counsel has alternatively claimed that M C Corp has no standing to advance a reliance on the M C Inc Steelworkers agreement nor is the Board bound by such a private agreement Viewed in the light of the above case presentment and develop ment of the evidence much of the General Counsels of fered testimonial evidence is uncontested The parties es sentially differ in their evaluation of the evidence such as has been presented a Credibility observations There is nonetheless an appreciable measure of maters al record confusion and/or inconsistency that is generat ed from certain of the testimonial evidence offered The same arises most notably from certain testimony of At lette Gatewood Gatewood a Steelworkers staff repre sentative was involved in negotiations with M C Corp that encompassed early negotiations in May 1986 and regular negotiations that commenced in September 1986 and continued thereafter through a strike until eventual plant closure in January 1987 all without reaching a new agreement Gatewood was thereafter involved for sever al additional months in negotiations covering a preclo sure grievance filed with M C Corp on certain pension calculations but more materially engaged in negotiations relating to resolution of postclosure grievances filed for severance pay vacation and other benefits claimed as due employees under terms of the last expired contract Although Gatewood did not initially lead other negotia tions with a Swiss company that eventually bought M C Corp s plant he was present and involved in such negotiations from early December 1986 and directly and principally involved in February 1987 Perhaps understandably there is some variance and/or unsureness in Gatewood s accounts of the above meet ings and negotiations overall However regarding the critically material elements of the meetings and/or nego tiations held in December 1986 and thereafter Gatewood has testified at best in such a disjointed ad mittedly confused and in part inconsistent manner to have seriously reduced his reliability Resultingly in such areas I have relied heavily on other witness ac counts of these meetings and negotiations when it is available 2 The Union and its collective bargaining history with M C Corp a The material Steelworkers representatives in 1986 In 1986 indeed in all times material Joseph Coyle is the district director of Steelworkers District 27 Coyle also serves on the Steelworkers executive board In 1986 Joseph Clark is a district subdirector under Coyle and Clark continued as such until Clark retired some time in 1987 Arlette Gatewood has been a field staff representa tive of Steelworkers for 10 years In 1986 and in part of 1987 Gatewood was under the immediate supervision of Clark b Steelworkers collective bargaining history with M C Corp Steelworkers has had a collective bargaining history with M C Corp for approximately 43 years In 1986 Gatewood had the assignment to service M C Corp He had previously handled grievances that were brought under the existing contract and he carried the assigned responsibility to negotiate a new contract with M C Corp The most recent contract between Steelworkers and M C Corp is one in which the terms are found in two documents viz a memorandum of agreement dated No vember 1 1979 (G C Exh 2 base agreement) and an additional memorandum of agreement dated November 7 1983 (G C Exh 2 amended agreement) The amended agreement established the duration of the last contract from November 7 1983 to October 31 1986 The con METAL CARBIDES CORP 941 tract covered wages hours and working conditions of production and maintenance employees then employed by M C Corp at its plant located at 6001 Southern Boulevard Youngstown Ohio (Southern Boulevard plant) The base agreement part of the above contract perti nently contains a 30 day union security clause (art IV 1) grievance procedures with provision for binding arbi tration (art VIII) severance pay provisions (art XX) and a pension program (art XXVI) Notably the sever ance pay provisions are several but essentially provide for a payment of severance pay allowance to employees on a permanent M C Corp plant closure with the de cision on plant closure explicitly to be determined solely by the Employer There are certain severance pay re strictions Included is a certain limitation applicable if the plant is later to be reopened and M C Corp s employ ees are absorbed by a successor plant operator though severance pay remains payable for interim layoff' period Acceptance of severance pay allowance is declared as terminating employment and continuous service with M C Corp for all purposes The amended agreement part of the last contract has the appearance of having been at the time entered clear ly a concessionary agreement in that it contains provi lions for an across the board wage reduction certain eliminations of (base agreement) provisions for additional vacation and vacation bonuses certain COLA limita tions a lower starting (seemingly tiered) wage rate and a substantial reduction in S & A benefits period cover age (See agreement on local issues G C Exh 3) Con trary to assertion of the General Counsel and in agree ment with Respondent as urged at hearing I find the contract does not contain a successor clause c Union negotiation procedures in general and Local 2879 s representatives In general union negotiations for a contract are con ducted in the name of Steelworkers including when con ducted on behalf of a local union On assignment a Steelworkers staff representative as in the case of Gatewood along with designated members of a local union s negotiating team conducts the negotiations with the Employer Normally the staff representative has an thority with an assignment to negotiate enter and sign an agreement with the employer The variance in the record is whether the agreement reached is always a ten tative agreement subject to higher authority namely by the district director Coyle and higher Steelworkers an thorities in Pittsburgh as Gatewood at least initially as serted Although there is warrant of record including other Gatewood testimony to conclude that is not always the case more notably Respondent Employer es sentially conceded its recognition that an agreement ne gotiated and signed would technically be a tentative one until there is approval by Steelworkers at higher a level though here understood by Respondent Employer to be Coyle Steelworkers Local 2879 is the local union involved here Frank Strahin is president and Paul Shilling is vice president of Local 2879 Nadine Estes John Rossi and apparently Dave Fox served on Local 2879 s five member negotiating committee Estes also served on the Unions grievance committee Additionally Thomas Ward an apparently presently retired employee of M C Corp was a member of Local 2879 and employed by M C Corp in material times most pertinently in Sep tember 1986 z d Additional material representatives of Steelworkers in 1987 In very early April 1987 Coyle assigned Connie Le Vier a field staff representative to essentially conduct an organizing campaign among employees of M C Inc infra Le Vier however became involved in certain mat ters (charges) relating to M C Corp Coyle also later assigned Robert Vasquez subdirector (subdistrict 6) of distract 27 to replace the retiring Clark in handling of Steelworkers grievances filed with M C Corp and then scheduled an arbitration hearing for September 1987 Although the exact time of Clarks retirement and Vasquez assignment is left indefinite of record it would appear both had occurred by approximately mid 1987 as Vasquez has related that his assignment with Clark retir ing was recent and it is clear of record that Vasquez handled at least the final negotiations on the grievances that led to the parties agreement on August 24 1987 3 The status of M C Corp a M C Corp and its affiliated companies business locations Weight of credible evidence of record indicates that the Standard Slag Company (Standard Slag) is the parent of M C Corp rather than M C Corp being a wholly owned subsidiary of the Standard Slag Holding Compa ny (Holding Co) as is alleged in the complaint and denied by Respondent Employer in its answer filed In any event the record is clear that Standard Slag and Holding Co are companies affiliated with M C Corp in some manner In 1986 and through January 16 1987 M C Corp operated its Southern Boulevard plant in Youngstown Ohio where it also has its business offices Standard Slag maintains its business offices elsewhere in the Stambaugh (or Standard Slag) Building located in downtown Youngstown Ohio Standard Slag apparently also oper ates a production and maintenance plant at some other undisclosed location but which in any event is not in volved in this proceeding b Ownership officers management and other nonunit employees notably employed 1 By M C Corp R T Beeghly is chairman of the board of directors of M C Corp Beeghly is also at all times material the acting president of M C Corp Jim Kaplan was the treasure of M C Corp The record does not reveal who vice president of M C Corp was (or is) Frank L Petrony had been the previous president of M C Corp Petrony had been so for some appreciable period of time at least since 1979 before he resigned re 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cently in 1986 Petrony signed the last two collective bargaining agreements as the president of M C Corp It is unclear exactly when Petrony left M C Corp s employ I find however that Petrony had departed M C Corp at least some time prior to the commence ment of regular negotiations by the parties in September 1986 Thus while there may be suggestion in certain testa mony of Gatewood that Petrony left as early as before April 1986 when M C Corp had first requested Steel workers to conduct early negotiations for a new con tract testimony of other witnesses but most notably Strahin and Thomas Ward (e g on the arrival of Bill Zarbaugh as related inter ' alia to Petrony departure) more persuades that Petrony s (and a John Contrell s) departure was more likely later Be that as it may their evidence does collectively persuade and I find that Pe trony (and Contrell) had departed before the commence ment of regular negotiations in September 1986 by which time and on which account Bill Zarbaugh had been summoned by Beeghly and then became personally involved in M C Corp s affairs including negotiations Thus I credit Strahin s testimony that when Zarbaugh came to the plant Zarbaugh told Strahin that he was there to watch over Mr Beeghly s interests because Frank Petrony and John Contrell had left Zarbaugh ex plained further to Strahin that Beeghly had called him up from Florida and Zarbaugh came because he owed Beeghly a favor from quite a bit back explaining that Zarbaugh was where he was today viz running Cold Metal Products another company because of Beeghly Ward employed at the time testified relatedly that Zar baugh occupied Petrony s office and specifically that in September 1986 Zarbaugh came out and said to the em ployees that they were going to have to change that they were losing money Gatewood has testified also that he heard Zarbaugh was a director of M C Corp that Zarbaugh maintained an office in the M C Corp plant and in the Standard Slag Building and that Zarbaugh attended many of the M C Corp negotiation meetings However Gatewood later acknowledged that he did not know Zarbaugh was a director of M C Corp for a fact that he had never seen that in writing that he had spoken to Zarbaugh two to three times and Zarbaugh had never said that he was a director of M C Corp Ward thought Zarbaugh had taken over from Petrony because Ward observed Zar baugh use Petrony s office Estes confirmed that Zar baugh was supposed to be a negotiator for M C Corp Estes also testified that she heard Zarbaugh was an offs cer or a director of M C Corp and that to her knowl edge he had an office in the Standard Slag Building However Estes then testified that she had no proof that Zarbaugh was an officer or director of M C Corp Indeed neither Gatewood nor Estes has identified the source of their information of Zarbaugh being either di rector or officer of M C Corp They clearly have not shown pertinently that the information was in any way attributable to M C Corp Additionally Estes clarified that she was only told that Zarbaugh still had an office in the Standard Slag Building (e g after the sale of M C Corp assets to Hartmetall AG) but acknowl edged that she did not know that Seemingly the only related evidence of record comes from Ward and it is of very limited base Ward testified to an occasion on April 17 1987 when he was on the Union s picket line at the Standard Slag Building The Union was picketing there because M C Corp still had not paid certain pension and insurance benefits Ward after having a conversation with Zarbaugh observed Zarbaugh go into the Standard Slag Building from that incident he has asserted Zar baugh had to still have an office there The above evidence does not warrant inference let alone support finding that Zarbaugh was either an offs cer or a director of M C Corp particularly when his presence and activity at the plant is otherwise directly shown Neither does it establish that he maintained an office in the Standard Slag Building after M C Corp sold its assets to Hartmetall AG infra There is however no question that Zarbaugh maintained an office in the M C Inc plant thereafter discussed further infra Presently I do conclude and find that Zarbaugh par ticipated in some negotiations for M C Corp along with Hendrickson but with purpose to assist Beeghly in preserving Beeghly s business interests on Beeghly s re quest and in return for a past favor Although there may be some suggestion of record in Gatewood s testimony that would support Zarbaugh also participated along with Hendrickson in the 1987 M C Corp negotiations with the Union regarding postclosure grievances in light of explicit Gatewood subsequent clarification that he could not say that was so and because there is no other evidence of record that he did I do not find Zarbaugh did so (on this record) Otherwise and accordingly I find that Zarbaugh prior to M C Corp s sale of assets to Hartmetall AG was an agent of M C Corp (essen tially) for the purpose of watching over Beeghly s busi ness interests but also authorized to participate in M C Corp s negotiations with Steelworkers for a new con tract whether technically employed by M C Corp (for pay) for such purposes or not In passing I also find that Zarbaugh was subsequently employed by M C Inc as a consultant because I credit Estes uncontradicted testimony that he directly told her so I further find Zarbaugh was part of M C Inc s management inasmuch as I credit as well Estes testimo ny (uncontradicted and unobjected to) that two M C Inc salaried employees reported to her that Zarbaugh gave them their walking papers (fired them) M C Corp employed Andy Moletsky as a foreman and it did so until the last few days before M C Corp sold its plant I find infra that M C Corp sold its plant to Hartmetall AG a Swiss company on January 15 1987 1 presently find further that M C Corp employed Moletsky as its plant manager at least as of January 13 1987 The record however is not clear as to the posi tions occupied by certain other individuals referenced as members of M C Corp s management Thus the position occupied by John Contrell who left M C Corp employ at or about the same time as Pe trony does not definitively appear of record Similarly Local 2879 s president Strahin relates only that a John Cerelli (Contrell) who used to be employed participated METAL CARBIDES CORP in negotiations for M C Corp prior to Zarbaugh and Moletsky (likely in the early May negotiations) Howev er Strahin does not reflect Cerelli s management position held with M C Corp at the time Neither does the record reveal the M C Corp management position oc cupied by a Kreiger whom Gatewood (alone) has re counted was reported to him as being part of the same management (thus earlier employed in management by M C Corp and later by M C Inc ) along with Kaplan and Moletsky infra Beeghly maintained an office in M C Corp s South ern Boulevard plant as he also did in the Standard Slag Building downtown In passing I find that Beeghly who had a key to the Southern Boulevard plant occu pied that office even after M C Corp plant sale indeed essentially daily in 1987 until June 17 This finding is based on credited testimony of Estes M C Corp by Beeghly letter of January 16 1987 notified Steelworkers that day that M C Corp was ter minating all M C Corp s management and production and maintenance employees as of close of business that same day While thus employed by M C Corp Caro lyn (or Karen) Toth was Beeghly s personal secretary and similarly M C Corp employed Jim Ray as a sales man until January 16 1987 2 Standard Slag Weight of evidence offered of record on the point of ownership of Standard Slag is that Beeghly is at least one of the principal owners if not the owner of Standard Slag It is clear that Robert T Hendrickson is vice press dent secretary and counsel for Standard Slag Hendrick son has his offices including a large conference room in the Stambaugh Building downtown Strahin has testified at least as he has later clarified and Hendrickson related ly as much as conceded that Hendrickson who conduct ed M C Corp s negotiations next told Steelworkers representatives openly at time of negotiations that Stand and Slag had loaned substantial sums of money to M C Corp in recent years and that Hendrickson in conduct mg M C Corp s negotiations for a new contract with Steelworkers was there to watch over the money Stand and Slag had loaned to M C Corp in recent years 3 M C Corp s negotiators Hendrickson represented M C Corp in all the mate nal negotiations conducted with Steelworkers This in cludes both early and regular negotiations conducted for a new agreement prior to M C Corp sale of its plant to Hartmetall AG on January 15 1987 and as well later negotiations conducted to resolve essentially the postclosure grievances In general Hendrickson has had one or more clear members of management regularly in attendance with him most notably Kaplan and/or Moletsky and Beegh ly Representative Zarbaugh I find off and on since September 1986 in M C Corp s contract negotiations I further find that Beeghly essentially did not personally participate in the contract negotiation meetings with the Steelworkers B The Evidence Bearing on Union Requests for Sale Information 1 The early negotiations between M C Corp and Steelworkers 943 Only Staff Representative Gatewood appears to have testified about the parties May 1986 negotiations for a new contract Gatewood recalled that it was sometime in April 1986 that the Employer had first contacted Gatewood and requested that the parties hold early ne gotiations for a new contract Gatewood relates the par ties met initially in the first part of May 1986 and he re calls that there were three to four early negotiation meetings held in all According to Gatewood Hendrickson submitted an other concession package concerning which Gatewood has summarized essentially that M C Corp wanted fur ther wage reductions and M C Corp also wanted to do away with a number of contract items in regard to pen sions severance and insurance Gatewood recalled that at the time M C Corp submitted the concessionary proposal Hendrickson said the current package (contract) was still much too costly Hendrickson admitted to Gatewood from the outset that M C Corp was actively seeking buyers In this regard Gatewood has testified materially that the only time he made a request in writing for sale informa tion was in one of the initial meetings held in May 1986 Gatewood testified that it was in the form of being a part of the Union s proposal and the first question the Union then asked was Is the plant sold if so to whom and will the buyer recognize the Steelworkers or did they buy the labor agreement According to Gatewood M C Corp told the Union at that time that several par ties were interested but that M C Corp presently had no firm buyer The Employer also told Gatewood can didly that they wanted the requested concessions from the Union to make a sale to a prospective buyer more attractive According to Gatewood the Union counterproposed in the early meetings that the sacrifices should be borne by all including management and salaried employees Gatewood relates that the Employer replied they were not there to reach an agreement on management and sal arced employees According to Gatewood the Union re sisted and no agreement was reached in the early negoti ations 2 Regular negotiations As noted the existing contract was due to expire by its terms on October 31 1986 The parties timely re opened the contract for purposes of arriving at a new agreement The regular negotiations commenced in Sep tember 1986 Gatewood broadly summarizes that these meetings were many but no agreement was reached Prior to the expiration of the contract Steelworkers of fered to work under the terms of the expiring M C Corp agreement while the parties would continue to ne gotiate According to Gatewood M C Corp rejected that union offer and the contract expired by its terms on Fndav October 31 1986 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 The Steelworkers strike and subsequent discharge of Local 2879 s officers Gatewood testified that when the Employer locked out its employees he instructed the unit employees to report on Monday November 2 1986 to Ohio Bureau of Employment Services (OBES) to say they were locked out and to apply for unemployment Gatewood also asserts that OBES subsequently upheld the lockout However Gatewood otherwise relates that OBES held the employees were entitled to unemployment benefits because the employees had offered to work under the ex pired contract terms and M C Corp had rejected the offer The Employer has contrarily asserted there was a work stoppage On a later occasion Gatewood essentially acknowledged that Steelworkers had instructed the em ployees that they do not work without a contract and that since M C Corp would not agree to extend the terms of the contract while they negotiated Gatewood had instructed the employees to go declare for unem ployment and say they were locked out On the record before me I conclude and find that on the expiration of the agreement and with Employers re fusal to extend the terms of the contract while the parties continued to negotiate for a new agreement Steelwork ers instructed the unit employees to and the unit em ployees did thereafter cease working for M C Corp and engage in an economic strike to enforce their de mands for a new contract and/or that the terms of the expired agreement be extended while the parties contra ued to negotiate towards a new agreement The econom is strike would last through plant shutdown on January 16 1987 Thereafter Steelworkers conducted informational picketing at the Southern Boulevard plant but only through February 6 1987 by which time an agreement between Steelworkers and M C Inc had been reached for the hire of the former M C Corp s employees The agreement signed on February 5 1987 is discussed fur ther infra Because of claims advanced and unmet and grievances filed after M C Corp had terminated its em ployees M C Corp was not meeting its obligations e g on severance pay vacations and certain pension benefits Steelworkers conducted picketing at the down town Standard Slag Building and it did so for some time thereafter though shown of record only clearly through April 17 1987 It is very significant to an understanding of what hap pened in the various interim material negotiations and/or meetings that after the strike began M C Corp had oc casion to discharge President Strahin and Vice President Shilling It is unclear of record whether M C Corp had charged Strahin and/or Shilling with a personal engage ment in misconduct or with responsibility for the mis conduct of other employees who were engaged in the strike What is clear in any event is that the above union officers discharges were asserted as related in some manner to some employee misconduct that oc curred after the strike began The Union thereafter grieved the discharges of Strahin and Shilling The Steel workers and M C Corp continued to conduct negotia tions through November 1987 for a new agreement but no agreement was reached 4 Steelworkers meetings with representatives of Hartmetall AG a December 10 1986 (first meeting) Gatewood testified that it was in early December 1986 that Clark notified Gatewood that Attorney Hen dnckson had called Clark and wanted to have a meeting with Clark and Gatewood The purpose of the meeting was specifically stated to be for Steelworkers to meet some people from Switzerland who were going to buy the M C Corp plant Hartmetall AG Industriezone CH 6285 Hitzkirch LV Switzerland (Hartmetall AG) is the Swiss company in volved The record does not reveal what specific pose tions they held with the Swiss company but reflects only that Beckham Canal and Lang were Hartmetall AG s representatives in the material events to be de scribed Materially Tim Jacob is Hartmetall AG s and M C Inc s attorney but he is first shown involved in the 1987 events The parties have stipulated that at least for purposes of this proceeding the first negotiation meeting of Steel workers with the Swiss company s representatives oc curred on December 10 1986 Clark and Gatewood at tended for Steelworkers No members of the Local Union s negotiating committee attended this first meeting with Swiss representatives The meeting was held in the big conference room at Hendrickson s offices in the Standard Slag Building Gatewood s initial recollections appeared to place and Employers recital in brief appears to affirm that Beeghly Hendrickson Kaplan and Moletsky along with the above named three representatives of the Swiss compa ny were all present at this first meeting However while Gatewood initially related of record that Beeghly was present at the meeting on further specific inquiry Gatewood acknowledged that maybe Beeghly had only introduced the three Swiss gentlemen as representing Hartmetall AG a Swiss company and that Beeghly then left Gatewood in any event has otherwise essentially of firmed that Beeghly did not participate in the meeting that followed and that the Swiss gentlemen made the presentment to the Union On cross examination Gatewood initially testified sig nificantly and clearly that Hendrickson had stated in this very first meeting and that he did so in subsequent meet ings with the Swiss company representatives in attend ance that he did not represent the Swiss and/or was not their counsel Indeed Gatewood early testified specifi cally that he never questioned the fact that Hendrickson had always maintained that Hendrickson was not acting as a counsel for the Swiss and that he was representing Beeghly For this reason I view any and all later asser tion that Gatewood was confused regarding Hendrickson was actually representing as simply unreliable Gatewood otherwise confirmed that Hendrickson told the Union that Hendrickson was acting as an interpreter and/or intermediate that he was there to get and/or to render assistance to the Swiss company in getting an agreement with Steelworkers since a condition or aim of the Swiss company was that the Swiss have a contract METAL CARBIDES CORP in place On another occasion Gatewood reaffirmed that the Swiss representatives initially desired an agreement be in place as a condition of their purchase of M C Corp s assets Gatewood otherwise recounts that the conversation at this first meeting was a candid one The Swiss company representatives first showed the Union their Hartmetall AG s product line and their plant in Switzerland corn plete with pictures and brochures and they made a point of emphasizing their own plant s cleanliness The Swiss representatives then told the Union that they were inter ested in buying M C Corp s plant if they could get a favorable contract The Swiss representatives explained they wanted to invest a large sum of money in new equipment and they then proposed that there be a 5 year agreement in place as they wanted a 5 year assurance of labor peace- and no break in continuity of operations Gatewood recounts the parties then agreed to meet again the next morning Gatewood testified that Clark and Hendrickson spoke further by phone and a proposal was later drawn up The proposal was discussed further the next day b December 11 1986 (second meeting) Clark and Gatewood met again the next morning with the same three Swiss representatives Present again were Hendrickson Kaplan and Moletsky Gatewood thought Zarbaugh was also present at this meeting In light of credited prior statements made inter alia by Zarbaugh to Strahin out on the picket line infra it is deemed likely that Zarbaugh did attend this second meeting with the Swiss representatives I thus credit Gatewood s recollec tion to that effect At this meeting there were also two members Estes and Rossi of the local union s negotiat ing committee present (Only Estes however has testa feed in this proceeding ) Gatewood relates that an agreement was reached at this meeting but that it was only a tentative agreement The written proposal thus agreed to is not in evidence Nonetheless Gatewood s testimony makes clear that Hartmetall AG was the named party to the agreement and that there was provision for only Clark to sign on behalf of Steelworkers Gatewood confirms that many times they may sign an agreement but he asserts it is still a tentative agreement which as earlier noted the Em ployer appears to have conceded was its recognized un derstanding at the time This finding does not mean that Gatewood has testified of record in a consistent manner otherwise e g on Coyle s authority on Clark s authority and indeed on his own authority e g in executing the agreement of February 5 1987 with M C Inc infra Gatewood s recollection is that they did not sign the agreement on December 11 1986 because they had re ceived an instruction from Coyle the prior night over the phone not to sign the agreement until Coyle had an op portunity to look it over at a staff meeting already sched uled to be held in Akron Ohio on December 11 1986 According to Gatewood s recollection as instructed they did not sign the agreement and when Coyle reviewed the agreement later that day Coyle rejected it On cross examination Gatewood otherwise acknowl edged that it was his own impression that an agreement in principle had been reached subject only to a technical 945 approval and that Subdirector Clark had publicly stated he was going to sign off until Clark had received the call from Director Coyle In that regard Staff Representative Le Vier has confirmed unequivocably that a staff repre sentative does have authority to sign an agreement Le Vier however did not know anything about the Coyle call and direction that Clark not sign the negotiated agreement The basis for the Coyle call and direction that Clark not sign the agreement has explanation in the record resting on more plausible consideration than a call incongruously received the prior night It rests on reasonable inference from factors of the Strahin and Shil ling discharges the Swiss refusal to allow Strahin to attend the meeting of December 11 1986 Strahin s review of the agreement negotiated Strahm contact of Coyle and Coyle s then delivery of an instruction to Clark not to sign the agreement Thus Strahin has testified that he was told by the Company (M C Corp) that he was not to come to the meeting with the Swiss representatives on December 11 1986 that the Swiss did not want him there and that Zarbaugh Kaplan and Moletsky had made it very clear out on the picket line that President Strahin was not to come because if he did show up the Swiss would not discuss it Strahm related further that the Swiss did let come two persons Estes and Rossi on the local union s negotiating committee Estes confirmed that she attended the meeting with the Swiss gentlemen on December 11 1986 but not the one held the day before Estes recollection is that Clark and Gatewood called Estes and Rossi to sit in on negoti ations with the Swiss people who were interested in buying the plant and negotiating a contract Estes also confirmed her own understanding that the Swiss initially were not going to buy the plant until they had a con tract Estes has also confirmed Gatewood in part in tes tifying that a contract was tentatively agreed to at this meeting However Estes then indicates they brought the agreement to the attention of Local Union President Strahin who had then contacted Coyle According to Estes it was then that Coyle contacted Clark and Gatewood and instructed them not to sign the agree ment though as noted Clark had previously publicly said he would sign the negotiated agreement The Swiss left returning to Switzerland thinking they had an agreement When in conflict with Gatewood s account Estes version is the more supported in the record is the more plausible and I credit it 6 M C Corp s negotiation meeting with the Steelworkers on December 30 1986 On December 30 1986 Gatewood and Local 2879 s negotiating committee met with Hendrickson Kaplan Moletsky and Zarbaugh The Swiss representatives were not present Gatewood recounts the Company had pre pared another proposal essentially the same as that of December 11 with minor changes Initially Gatewood seemed to assert that on this occasion inconsistently with other testimony on cross examination he did not know who Hendrickson represented whether it was M C Corp or Hartmetall AG However thereafter he 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD acknowledged that he had not asked Hendrickson who he represented and that he took it for granted that Hen drickson represented Beeghly (M C Corp) as Hen drickson had represented M C Corp since May 1986 On the basis of a new proposal presented by M C Corp M C Corp s negotiators present but not the Swiss I have no doubt this meeting was one between M C Corp and Steelworkers Gatewood testified that in this meeting they came very close to reaching an agreement Gatewood states that they were close on all items and significantly that the last issue was on reinstatement of Local 2879 s dis charged President Strahin and Vice President Shilling The Union proposed a reinstatement of both with full seniority and no reprisal M C Corp offered to rein state Vice President Shilling if the Union would drop the grievance on President Strahin Gatewood relates the Union rejected that proposal and that ended the meeting Estes confirmed the Company (M C Corp) said the Swiss were still interested in buying the place They had to have an agreement They thought they had an agree ment on December 11 1986 and did not but they were still interested Estes also testified that the Union held a meeting with the employees and they decided that if ev erybody could not go back with seniority including the president and vice president of the local union they would not sign this agreement There was no contract agreement reached with M C Corp at this meeting 7 The meetings and/or negotiations and agreements in 1987 a Hartmetall AG s meeting with Coyle The next meeting of record is a Swiss meeting with Steelworkers on January 13 1987 at 3 p in at Coyle s offices in Canton Ohio Gatewood s recollections about this meeting in a number of respects are again at best un reliable Gatewood recalls that present for the Steel workers were District Director Coyle Gatewood Local 2879 President Strahin Vice President Shilling negotiat ing committee members Estes and Rossi and Dave Fox Fox is identified by Gatewood only as a union member but Fox apparently was also a member of the local unions negotiating committee as Estes testified the whole negotiating committee was present Gatewood re called that Hendrickson was there and Gatewood hesi tantly recalled that there were three or four representa tives of the Swiss company present naming Canal and Lang and he thought Beckman In contrast Estes more definitively recalled Canal and Lang were there for the Swiss and that Kaplan and Moletsky (at this time still employed by M C Corp) were also present I credit Estes recollections about who was present Gatewood asserted that he did not know who had called this meeting acknowledging at first only that he did not However Gatewood later related that he was certain someone from the Swiss company or M C Corp asked for the meeting and that he probably set up the meeting Finally Gatewood has conceded at least that he imagined that Director Coyle was there at the re quest of the Swiss According to Gatewood s recollec tion no one asked Hendrickson why he was present at this meeting though Gatewood affirmed that Hendrick son never said he represented the Swiss Estes has testi feed that in this meeting Strahin asked Hendrickson what he was doing there and that Hendrickson replied that he was there as an interpreter an observer to see how things are going (Strahin who testified as to this meet ing has not denied the latter ) I have no doubt that the Swiss company requested this meeting Gatewood recalled that it was at this meeting that the Swiss directly registered their disappointment to the Union over thinking that they had an earlier agreement on December 11 1986 returning to Switzerland and finding out later that Director Coyle had scrapped the agreement Gatewood relates generally that the Steel workers and the Swiss company did not reach an agree ment in this meeting Estes and Strahin s testimony is again more definitive Strahin recalled that Hartmetall AG s initially stated position was that they were not sure they were going to buy the place without an agreement Strahin recounts that the Union wanted all the people to go back to the place as their seniority existed with the other company (M C Corp) Estes testified that the Swiss wanted to pick and choose who they were going to hire and they did not want the local union s president back Strahin corroborates Estes that the Swiss wanted to pick and choose who they wanted to hire there Strahin also con firms that they did not want Strahin at all Indeed Stra hin testified that a Swiss representative whom Strahin thought was Lang said no way he wanted Strahin there because Lang felt that Strahin was like a president of a country and that any kind of disturbance anything em ployees did on the picket line Strahin should stand re sponsible for According to Strahin Lang said that the things that happened should not have and Lang held Strahin strictly responsible for it Estes testified the Swiss company took a 15 minute recess When they returned the Swiss said they were going to buy it and that the paperwork would be done in a couple of days Strahin had confirming recollection that the Swiss company caucused outside the room Stra hin s recollection is that he understood that when they returned Hartmetall AG said it was going to buy the Company but that it was not sure it would distribute car bide there Estes more plausibly recalled that the Union inquired if the Swiss company planned to hire any of the former employees According to Estes the Swiss compa ny representatives then replied they did not know and that they said [W]e do not know if we are going to use the plant as a warehouse or sales office According to Estes that was it However Estes revealingly testified again the Swiss just definitely did not want to hire the local union s presiden b M C Corp s sale of assets to Hartmetall AG without a contract in place On January 15 1987 M C Corp formally sold all of its assets to Hartmetall AG The formal sale agreement the production of the terms of which lies at the core of the instant dispute understandably is not in evidence However I find on weight of evidence that M C Corp METAL CARBIDES CORP 947 sold its assets on this occasion to Hartmetall AG On completion of the sale M C Corp promptly closed down its plant Beeghly effectively notified Steelwork ers and Gatewood by a letter dated January 16 1987 ap parently delivered to Gatewood on the picket line that day that M C Corp had terminated its management office clericals and production and maintenance employ ees effective the end of that day Gatewood confirmed that he had received the letter from M C Corp s acting president Beeghly and that the letter dated January 16 1987 advised Steelworkers that M C Corp would terminate the services of its em ployees at the end of that workday Gatewood further acknowledged that M C Corp had terminated its em ployees because M C Corp had sold its plant to Hart metal! AG According to Gatewood there was no written or formal request for information made by him after the sale though Gatewood has testified (disjointedly and generally) that they continued to question ties between the companies because of observed continued presence of certain man agement As noted the Union continued informational picketing at the Southern Boulevard plant only until February 6 1987 Observance of the same management going in the plant across the picket line would have taken place in that period January 17 through February 6 1987 In the interim there were two meetings with M C Inc s attorney Gatewood recounts that it was in early February 1987 that he contacted Timothy Jacob attorney for Hartme tall AG ana M C Inc and asked Jacob for a consent recognition Gatewood s recollection was that Jacob told Gatewood that they did not know at the time whether they were going to use the plant as an operating facility to produce product or would turn it into a storage ware house and sales office Gatewood s further erroneous recollection is that it was a week or two later that the Union heard the Swiss company had started to advertise for employees and/or that the Swiss company had hired some employees Gatewood otherwise recounts that he and Steelworkers Attorney Daniel Thomas then called a meeting of M C Corp s former employees and told the employees what Gatewood and Thomas thought the em ployees should consider doing at that point and the em ployees decided they would start to go back to work Apart from misrecollected timing readily apparent from other clear events of record there are other omissions if not discrepancies in Gatewood s account of these events Estes testified that she did not know about any adver tisements in the paper However Estes testified with es sential corroboration from Strahin that at this time there were cars going in and out crossing the picket line get ting applications and that the people in the cars showed them the applications Estes also testified that Moletsky called some former M C Corp employees and had of fered to hand deliver an application to them Strahin es sentially confirmed that fellow employees who received applications brought it to their attention Indeed Estes testified that Moletsky told her to come back Strahin testified that it was very obvious to him that Strahin was the problem in the Steelworkers not getting a contract Strahin relates that he called Coyle and asked him to set up a meeting and that Strahin said he would resign as long as the people essentially have a job there with their seniority rights Coyle asked Strahin if he was sure and Strahin replied he was According to Strahin Coyle set it up with Gatewood and Steelworkers Attor ney Daniel Thomas Strahin asserts that on February 4 1987 he met with Tim Jacob attorney for Hartmetall AG and M C Inc in downtown Youngstown In contrast Gatewood has testified that the first time he met Attorney Jacob for mally was on February 5 1987 Essentially negotiations leading to agreement of Steel workers and M C Inc (G C Exh 1(e) Exh A) ensued There were however some related conversa tions with Hendrickson necessitated Apparently one grievance of an undisclosed nature but likely related to Strahin discharge was to be dropped They also negoti ated a couple of stipulations regarding pensions sever ance and unemployment on which grievances had been filed with M C Corp (E g it was agreed that if the other M C Corp employees were entitled to certain benefits under the expired contract Strahin would be too) Still other agreements on wages hours and work ing conditions were reached with M C Inc (G C Exh 1(e) Exh A) Strahin agreed to resign It was agreed that the parties would not publicize what Strahin did Gatewood did not testify at all about this meeting of February 4 1987 Steelworkers Attorney Thomas did not testify I find it highly unlikely that Strahin would have negotiated the matter alone with Jacob especially when certain of his testimony indicates he did not b Steelworkers meeting with Hartmetall AG and/or M C Inc on February 5 1987 the agreement as signed on February 5 1987 Gatewood recounts that he and Attorney Thomas next arranged a meeting with Swiss Company Attorney Jacob Steelworkers held the meeting with Hartmetall AG and M C Inc Attorney Jacob but signed the agreement with M C Inc I find infra a wholly owned subsidiary of Hartmetall AG I credit Strahin s testimony that present at this meeting for Steelworkers were Gatewood Attorney Thomas and Strahin Moreover I credit Strahin s recollection that M C Inc s prepared proposal did not include a provision for M C Inc s em ployment on the basis of M C Corp s seniority until amendments were drafted that day In short those senior ity agreements were at least perfected in the agreement made that day Present for M C Inc were only Attor ney Jacob and apparently his secretary at least to wit ness signature Hendrickson was not present nor was any representative of M C Corp In that regard Gatewood has testified that he could not say that Hendrickson and Zarbaugh participated in a Steelworkers meeting with M C Inc nor could he say Hendrickson had sat in on a meeting with the Swiss company after M C Inc was established I find that the record does not establish that Hendrickson ever did At this February 5 1987 meeting Steelworkers reached and entered a formal Agreement with M C Inc This agreement sets forth a joint party stipulation of 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fact recitals on the ownership of the respective material corporations and their relationships The subject of whether M C Corp and M C Inc were separate companies was brought up by Steelworkers in this meet mg By way of explanation for Gatewood s asserted con cern it will be recalled that Steelworkers had continued an informational picket line presence at the Southern Boulevard plant after M C Corp terminated its em ployees on January 16 1987 Although Gatewood s testa mony is anything but precise in this area he does appear to have testified to personal and/or earlier reports from the picket line of observances of the same management crossing the line and being present at the plant after the sale Gatewood has testified we could see the same people there naming initially only Kaplan Moletsky and Kreiger as all the same management Gatewood re lates on another occasion that he also similarly saw Carolyn Toth working there and at some point had been told that Toth was M C Inc s agent for legal service Gatewood testified that Attorney Jacob assured them that M C Inc and M C Corp were separate and specifically that neither Standard Slag nor M C Corp had anything to do with Hartmetall AG or M C Inc In any event in the February 5 1987 Agreement Steelworkers and M C Inc specifically stipulated and agreed severally that (a) M C Inc is a wholly owned subsidiary of Hartmetall AG (b) Steelworkers through its Local 2879 is the representative of certain employees of M C Corp (c) that M C Corp is affiliated with Standard Slag and that M C Corp terminated all its management clerical and production employees on Jan uary 16 1987 (d) Hartmetall AG purchased M C Corp s assets and intended to use part of them to engage in business through M C Inc and materially that Hart metall AG and M C Inc are distinct and separate enti ties from Standard Slag Holding Co and M C Corp and that there has been and is no continuity of owner ship or control between M C Corp and M C Inc (e) M C Inc s operations constitute an entirely new and in dependent enterprise and (f) neither Hartmetall AG nor M C Inc is a successor to M C Corp or Standard Slag or any other affiliated company It is Gatewood s essential assertion nonetheless that he had no way of knowing that M C Corp and M C Inc were two separate and distinct entities and that he accepted what Attorney Jacob said Gatewood otherwise affirmed that he had assigned legal counsel (Coyle) present to assist him and that counsel also signed the above agreement including its stipulations for Steel workers Strahin has also testified that they only had the Company s word presumably M C Inc that M C Inc was a new company However the agreement re cites the stipulations are part of the consideration for this agreement Strahin otherwise testified that Jacob appeared at the picket line on February 6 1987 The occasion was that Jacob came out to apologize to Strahm about the media discovering what Strahin had done Jacob assured Stra hin that he did not know how the media had found out Materially Jacob then spoke to employees on the picket line for about an hour assuring employees severally that M C Inc was a new company M C Inc would be investing their money there would be big changes in management they would not put up with a country club and the employees would not see happen what used to happen Strahin relatedly testified that the Union had earlier advised Attorney Jacob of company documents purport edly showing the old company (M C Corp) had $3 million overspending According to Strahin Jacob said things would not happen that way in the new company and those people would not be there Strahin asserts gen erally them people were there later However Strahm never identified who he referred to regarding the refer enced interoffice communications nor were the latter introduced and Strahin also never identified what people were there later What is clear however is that Strahm and Steelworkers were aware of all those very matters at the time of Steelworkers entry into the February 5 1987 agreement Estes adds only that as of February 9 1987 Kaplan and Moletsky were there with changed titles like vice president of operations and controller and plant manager and head of operations respectively Gatewood s understanding of this Agreement other wise was that the Union promised that M C Corp s employees would go back to work under the terms and conditions of the tentative agreement reached on Decem her 11 1986 The agreement of February 5 1987 how ever explicitly provides that M C Inc will offer em ployment to the former employees of M C Corp in such number and at such time as the operations of M C Inc require and in that regard M C Inc agreed to es tablish M C Corp s last economic offer of December 30 1986 as essentially the initial terms and conditions for the employment of employees For its part M C Inc further agreed to hire and/or employ the former M C Corp employees in an order that would essentially preserve their M C Corp hiring (seniority) date While the 10 new employees (then pro spectively) hired were to remain hired M C Inc also agreed (apparently) that at the time of startup of oper ations the new hires would be employed with lower se monty in the lower jobs (Startup was imminent because Estes began employment on February 9 1987 ) For its part Steelworkers relatedly agreed that on M C Inc s employment of all the former M C Corp employees Steelworkers would not seek automatic recognition on successorship or any other theory of law except Steelwork ers be selected as exclusive bargaining representative in an appropriate unit Steelworkers also agreed that they would not affirmatively engage in organizational activities with regard to M C Inc s employees According to Gatewood in reaching the latter agree ments Attorney Jacob told the Union that he (M C Inc) was not opposed to a union but preferred that the employees be allowed to have their own choice of what International would represent them Gatewood has testa feed that the understanding was We would not on the [M C Corp] people s return [sic] start an organizing campaign Gatewood testified that Steelworkers acqui esced in the request of M C Inc but with notice given METAL CARBIDES CORP 949 to Jacob that if M C Inc employees decided they wanted Steelworkers to organize them Steelworkers would do so C Effects and/or Grievance Negotiations Continued with M C Corp Gatewood testified that Steelworkers had ongoing ne gotiations with M C Corp Gatewood conducted the negotiations with Hendrickson According to Gatewood the basic dispute between Steelworkers and M C Corp was over whether M C Corp owed its former employ ees severance pay and vacations and whether certain re tirees had insurance Related grievances were filed There was also an outstanding issue on pension calcula Lions that Steelworkers had already earlier grieved In any event Gatewood relates that for the next 3 or more months the parties continued to negotiate on these dis puted matters Actually negotiation continued until the matters were finally resolved on August 24 1987 fol lowing a recent entry of Staff Representative Vasquez into the negotiations infra Gatewood s testimony would indicate his involvement with negotiations was at least through May or June 1987 1 Steelworkers attempt to organize M C Inc s employees related charges brought against M C Inc Staff Representative Connie Le Vier testified that in the early part of April 1987 Coyle assigned Le Vier to organize the employees of M C Inc at their request Le Vier candidly acknowledged that at the time of assign ment she was aware an independent union was already being organized Indeed Le Vier testified that was one of the things Steelworkers people were worried about and had called the Steelworkers to request recognition According to Le Vier they felt that M C Inc was helping form the independent union Le Vier had earlier in March 1987 first become aware of the February 5 1987 Steelworkers agreement with M C Inc from Peter Cassidy another retired staff representative who in some manner was then involved with it On her assignment Le Vier spoke to Coyle about it (the provision on Steelworkers not affirmatively organizing) According to Le Vier Coyle told Le Vier that Gatewood had said that was in the agreement so M C Inc could begin operations without any interfer ence and that the company had indicated that some time in the future they would recognize Steelworkers as bargaining unit representative of those employees Steelworkers had represented under M C Corp In that regard Estes has testified that of 70 employees presently employed in a production and maintenance unit at M C Inc 63 are former M C Corp employees including 5 M C Corp retirees still working there at M C Inc Le Vier relates that she was also aware that Gatewood had earlier requested recognition indeed Le Vier has testified that there were several such requests made both orally and formally in writing Le Vier further testified that a final request for recognition of Steelworkers was made in early April around April 4 1987 shortly after her arrival and just prior to M C Inc s apparent recog ration of the independent union on she believed April 7 1987 The record reveals that the Steelworkers has filed unfair labor practice charges against M C Inc related to a voluntary recognition that M C Inc granted the independent union These charges were on appeal to the General Counsel at the time of the hearing In no sense are the matters of such charges a litigated part of this proceeding involving only M C Corp The circum stances are here reflected only for additional bearing on Steelworkers subsequently renewed request for sale in formation 2 Earlier Steelworkers charges filed by Gatewood against M C Corp Gatewood testified generally that in many of the ne gotiation meetings held with M C Corp after the sale to M C Inc the Union continued to question and wonder whether M C Corp was still a part of M C Inc Gatewood s recollections in this area are again anything but clear and precise Gatewood asserts they continued to see the same people there Kaplan Moletsky and Toth Gatewood would have seen the same people there before entering the February 5 1987 agreement Howev er Gatewood has also referenced that Beeghly continued to maintain an office in M C Inc s plant He also as serts that Zarbaugh has maintained an office there and seemingly asserted Zarbaugh also had one at the Stam baugh (Standard Slag) Building However as noted the latter contention on this record appears based solely on Zarbaugh being observed entering the Standard Slag Building on one occasion on April 17 1987 when the picket line was maintained there Gatewood otherwise testified generally that some of the former M C Corp employees who were called back have subsequently told Gatewood either by phone or at union meetings that the same people are there and doing business the same way and how do they expect to turn the plant around as no changes have been made However specifically and Respondent Employer urges significantly in brief as to the Union s actual intent in seeking information Gatewood testified that during the negotiation meetings on the post sale grievances the Union orally asked Hendrickson about the terms and conditions of the M C Corp sale both who the owners were and how much it was sold for There is thus evidence of record that supports Respondent Employers conten tion that Steelworkers sought to discover the sale price during negotiation of their grievances According to Gatewood Hendrickson told the Union only that there was no relationship between M C Corp and M C Inc On cross examination Gatewood acknowledged that on April 14 1987 Gatewood had filed an initial charge against M C Corp on M C Corp s refusal to furnish the above requested information on the sale Gatewood subsequently withdrew this charge Although initially as serting the withdrawal of the charge was his prerogative Gatewood later testified that he was instructed to with draw the initial charge A second instant charge was later filed on May 28 1987 by Le Vier Gatewood testi feed that he did not know why Le Vier had filed this second charge against M C Corp 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Le Vier testified that she requested the withdrawal of Gatewood s earlier charge Le Vier asserts that when she was assigned she found everything was verbal and she did so inter alia to make sure Steelworkers had its re quest in writing and to make it clear what Steelworkers was requesting Le Vier otherwise confirmed that a lot of employees working for M C Inc had called and regis tered a concern that there was actually a connection be tween M C Corp and M C Inc and that the employ ees said everything was the same According to Le Vier she made a related request of Steelworkers Attorney Bill Payne As a result of her re quest Payne sent a letter (G C Exh 4) on June 3 1988 thus after the prior Gatewood charge was withdrawn after the instant charge was filed and while the griev ances against M C Corp were pending to both Hen drickson and Jacobs which provided as follows Confirming an earlier request the United Steel workers of America AFL-CIO requests a copy of any and all sales agreements showing terms and conditions of the recent Metal Carbides sale as well as any other agreement which would show any in terest which Metal Carbides Corporation Standard Slag Company or Standard Slag Holding Company presently holds in Metal Carbides Inc Hendrickson (M C Corp) replied by letter dated June 15 1987 (G C Exh 5) In response to your letter of June 3 and in lieu of the sales agreement which you had requested please find attached the Affidavit of R T Beeghly Chairman and Acting President of Metal Carbides Corporation I hope that this suffices for your pur poses The enclosed Beeghly affidavit (of even date) provided in pertinent part that all of the physical assets of Metal Carbides Corporation were sold to Hartmetall AG on or about January 15 1987 and that Metal Carbides Corporation Standard Slag Holding Company and The Standard Slag Company or any of them have no ownership interest in Metal Carbides Inc The record does not reflect what if any reply was forthcoming from M C Inc On June 23 1987 Le Vier notified Hendrickson that the Beeghly affidavit given in lieu of Metal Carbides Sales Agreements did not satisfy Steelworkers requests Le Vier wrote Steelworkers again requests your cooperation in providing a copy of any and all sales agreements showing terms and conditions of the Metal Carbides sale as well as any other agreements which would show any inter est which Metal Carbides Corporation Standard Slag Company or Standard [sic] Holding Company presently holds in Metal Carbides Inc Complaint in the instant matter issued on July 10 1987 As noted Steelworkers Subdistrict Director Vasquez and Beeghly have subsequently resolved all the outstanding grievances between Steelworkers and M C Corp on August 24 1987 That agreement (R Exh 1) covers the particulars resolving most notably postclosure issues of severance pay as well as certain vacation insurance and pension matters In that regard Respondent relies in de fense of the matter here brought the preamble of that agreement which provides In consideration of the promises made each to the other the parties hereto United Steelworkers of America AFL-CIO and Metal Carbides Corpora tion in full and complete settlement of all disputes between them and intending to be bound hereby agree as follows Vasquez has testified that he was assigned to sit in on the negotiations with M C Corp to try to resolve the grievances that dealt with whether the employees of M C Corp were entitled to severance pay vacation pay insurance benefits and pension benefits after M C Corp ceased to operate Vasquez testified that the infor mation case was never discussed with him and the charge on request for data was never mentioned to him Otherwise Vasquez testimony about his attendance at prior negotiation meetings is confusing At one point he appears to have affirmed that he was not present at all the negotiations but at the negotiations that resulted in the agreement On a later occasion he appears to have contrarily asserted both that he did not know when the negotiations began and did not know of any meetings he was not present Be that as it may I am persuaded and I find that Vasquez was not present at all the negotiations conducted on the grievances e g as previously conduct ed by Gatewood and the committee Respondent con tends in brief that Steelworkers have engaged in incon sistent action In that regard Gatewood has significantly testified that if M C Inc is not a different company from M C Corp [W]e [Steelworkers] would not have claimed they [M C Corp ] owed all this Analysis Conclusions and Findings The General Counsel correctly observes at the outset that the duty to bargain imposed by Section 8(a)(5) of the Act may be violated by an employers refusal to fur nish to the employees designated bargaining agent re quested information that is relevant to a union s negotia tion or administration of a collective bargaining agree ment or which is of probable use to a union in carrying out its statutory duties and responsibilities Detroit Edison Co v NLRB 440 U S 301 303 (1979) NLRB v Acme Industrial Co 385 US 432 435-436 (1967) NLRB v Truitt Mfg Co 351 U S 149 152 (1956) and Postal Serv ice 280 NLRB 685 (1986) A proper exercise of union re sponsibilities clearly encompasses the need of union access to and use of information bearing on the evalua tion and processing of grievances Clin-hfield Coal Co 275 NLRB 1384 (1985) Safeway Stores 236 NLRB 1126 (1978) enfd 622 F 2d 425 (9th Cir 1980) and TRW Inc 202 NLRB 729 (1973) Respondent had initially defended in answer that the Union s request for the sale agreement between M C METAL CARBIDES CORP Corp and Hartmetall AG was nonetheless properly de dined because essentially the sale agreement contains fi nancial terms of sale that are confidential privileged not relevant to the subject matter at issue and not reason ably calculated to lead to the discovery of relevant infor mation The General Counsel counters that information concerning terms and conditions of employment of em ployees within the bargaining unit is presumptively rele vant and no specific showing of relevancy is there re quired though he also acknowledges that in certain areas of inquiry a more restrictive standard (i e a required somewhat more precise showing of relevance) is to be applied Ohio Power Co 216 NLRB 987 991 (1975) enfd 531 F 2d 1381 (6th Cir 1976) The General Counsel otherwise argues effectively for a broad discovery type approach on the Union s data re quests in the instant alleged Employer closure situation and in that regard argues persuasively that when the Union has represented the involved unit of employees for over 40 years the Union is surely entitled to informs tion that would show whether an alleged sale between M C Corp and Hartmetall AG was an arms length transaction or has resulted in merely a disguised employ er continuance The Board and the courts have regularly employed a liberal discovery type standard for determining the scope of what constitutes relevant information NLRB v Acme Industrial Co supra 385 U S at 437 Bohemia Inc 272 NLRB 1128 1129 (1984) Indeed that broad discovery type standard is specifically used by the Board when a request is made for information that relates either to mat ters directly affecting bargaining unit employees or to matters that might otherwise normally be viewed outside the bargaining unit whether the information specifically requested is in the former instance presumed to be rele vant or in the latter is in the specific case reasonably shown to be relevant Hawkins Construction Co 285 NLRB 1313 (1987) On the requirement of the somewhat more precise show of relevancy the General Counsel has correctly observed that issues reasonably raised and bearing on di version of unit work or preservation of contract work have been determined to be well within a union s statuto ry responsibility The union is thus permitted to request data when it has shown it is relevant by virtue of reason ably raised questions it has of unit work diversion and/or preservation of work probes or contract coverages See Associated General Contractors of California 242 NLRB 891 (1979) enfd as modified 633 F 2d 766 (9th Cir 1980) cert denied 452 U S 915 (1981) on whether open shop members of an employers association are bound to a union agreement reached with the associa tion Doubarn Sheet Metal 243 NLRB 821 823 (1979) involving a single employer issue or contract issues raised relating to subcontracting and/or industry protec tion clauses and Leonard B Herbert et al 259 NLRB 881 885 (1981) enfd 696 F 2d 1120 (5th Or 1983) on an issue of contract application to recently formed double breasted nonunion operations More pertinently the General Counsel would appear to correctly rely on Westwood Import Co 251 NLRB 1213 1227 (1980) enfd 681 F 2d 664 (9th Cir 1982) an instance of relevant data 951 request on a sale of business when it was to find out whether the new owner was a new and distinct business entity and if so whether it was a successor employer obligated to recognize and bargain with the Union However the administrative law judge there found that the respondents were not obligated to furnish the union with all the information concerning the sale but only the information that shed light on the question of whether the new employer was a different employer from its predecessor and if so whether it was a successor em ployer for purposes of collective bargaining The Board has reaffirmed that a request is relevant when a union has shown a reasonable basis to raise a question of either single employer or alter ego status Cf Corson & Grunion Co 278 NLRB 329 (1986) In all these case situations only a showing of probable relevance of the requested information to the question of an employers relationship with another company need be shown The union need not have first evidenced any contract violation or an actual circumvention nor have even demonstrated it has nonhearsay or accurate base in the perceived cause or urged grounds for its inquiry However it must show in the given circumstances that reasonable grounds or tenable basis exists for a probable relevance of the requested data Cf Elevator Sale & Serv ice 278 NLRB 627 633 (1986) W L Molding Co 272 NLRB 1239 1240 (1984) and Boyers Construction Co 267 NLRB 227 229 (1983) Here the central question raised by the Union is an as serted deg eloped and present concern about the nature of the relationship between M C Corp and M C Inc The case presented is based on questions now sought to be raised in a background of various considerations of ownership control management business and employ ment of essentially the same employee complement I thus have no quarrel with the appositeness of the above principles as above marshaled and enumerated by the General Counsel in the main at least insofar as they ini tially carry in addressment of the issues underlying reso lution of the case Nor would it appear that Respondent Employer has serious quarrel at least presently inasmuch as its brief es sentially concedes as much in recitement that the Union which had been the collective bargaining agent for M C Corp s employees is entitled to know if there is any ownership connection between M C Corp and its affiliated companies Standard Slag and Holding Co on the one hand and Hartmetall AG and its subsidiary M C Inc on the other Respondents two principal de Tenses are clearly based on other contention Thus as essentially urged in answer and at hearing and as last expressed in brief it is Respondent Employer s first of two basic contentions that The Union however knows and has known for some time that there is no such ownership connec tion The Union in its agreement with Metal Car bides Inc of February 5 1987 stipulated clearly and abundantly that there is no ownership connec tion between the respective Metal Carbides entities Mr Gatewood who signed the stipulations for the Steelworkers was represented by counsel who w t 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nessed Mr Gatewood s signature There is no alle gation that any fraud or deceipt was exercised in getting the Union to concur in the stipulated facts of that February 5 1987 agreement There is no grounds for the Union to impeach its own stipula tions Edison Co v NLRB 460 U S 693 (1983) Timken Roller Bearing Co 138 NLRB 15 16 (1962) The waiver must be explicit Conneco Inc v NLRB 740 F 2d 811 (10th Cir 1984) As noted by the Board in Clinchfield Coal Co supra 275 NLRB at 1384 the waiver must be also intended and expressed The General Counsels counterarguments to Respond ent Employer s reliance on the February 5 1987 agree ment are essentially threefold (1) That agreement is be tween Steelworkers and M C Inc and Respondent M C Corp is not in a position to advance that agree ment s terms as a defense (2) The instant complaint con troversy is one between the Board and M C Corp and such a private party agreement does not preclude the Board from addressing and giving effect to the public policy here involved with urged reliance on Utility Workers v Edison Co 309 U S 261 269 (1940) and see also NLRB v General Motors 116 F 2d 306 (7th Cir 1940) and Superior Export Packing Co 284 NLRB 1164 (1987) (3) In entering the February 5 1987 agreement the Union relied on representations that were made to it that the two employers M C Inc and M C Corp were separate but subsequent events have now cast seri ous doubt on those representations and consequently the Union should not now be precluded from discovering whether the representations made to it in February 1987 are true Respondents second principal defense rests on the terms of its own agreement that it reached with Steel workers on August 24 1987 In that regard it observes not only that all outstanding grievances have been now resolved between M C Corp and Steelworkers but Re spondent Employer relies on the agreements explicit re cital of the agreement as made being a full and com plete settlement of all items in dispute between the par ties The General Counsel counters with urgings that Vas quez testimony is uncontradicted that this agreement which Vasquez negotiated was only intended to resolve those issues that were going to arbitration that the agreement itself makes no reference to the Union s prior request for the sale agreement information and that the agreement entered was never intended to resolve nor was the matter of the Union s prior request for informa tion even discussed during these negotiations Respond ent Employer then cross argues This conduct is not consistent with a party which had doubt about the conti nutty of ownership between the respective Metal Car bides entities There appears merit in the General Coun sel s latter urgings and the response of Respondent Em ployer that the Union has in regard to the August 24 1987 agreement engaged in inconsistent action in the end has only surface allure Thus the diapositive authorities on Respondent Em ployer s second defense resting on its August 24 1987 grievance resolution with Steelworkers appear to be clear and they are in my view counterpersuasive of Re spondent Employers urged positions There is no ques tion that a union may contractually relinquish a statutory bargaining right The relinquishment however must be expressed in clear and unmistakeable terms Metropolitan In Proctor & Gamble Mfg Co v NLRB 603 F 2d 1310 1318 (8th Cir 1979) the court stated that [for there to be a waiver of a right to information the language used must be clear and unmistakeable Likewise there must be a conscious relinquishment by the Union clearly intended and expressed to give up the right The requirement of a clearly intended and expressed waiver is to be distinguished from a party s realization that the right it in that manner waives is one protected by the Act The latter is not a requirement Gem City Ready Mix Co 270 NLRB 1260 (1984) The testimony of Vasquez that the agreement he en tered resolved the outstanding contract grievances that were then set for arbitration and indeed that the Union s earlier request for information was not a matter even mentioned in the meetings and negotiations that he conducted that led to the agreement is uncontradicted The agreement and the record relating to this agreement as a whole simply does not support a finding of union explicit waiver of its statutory right to request informa tion on the sale agreement to the extent shown relevant in bearing on the question of who the owners were In that regard Respondent Employer s earlier substitute proffer of its own conclusion in the form of Beeghly s affidavit supplied on June 15 1987 is simply not suffi cient Cf Walter N Yoder & Sons 754 F 2d 531 (4th Cir 1985) and Barnyard Engineering Co 282 NLRB 617 (1987) Moreover Respondent Employer was well aware at time of agreement entry that Steelworkers had reject ed its earlier affidavit proffer as an insufficient response by virtue of Le Vier s reply letter of June 23 1987 Moreover if a satisfactory resolution of the Union s renewed request for the information was also Employer s intent in entering the August 24 1987 agreement resolv ing the grievances on perceived view of simultaneously ensuring union consistency in approach in resolving all contract and statutory disputes with M C Corp Re spondent Employer could readily have had the terms of the agreement it entered with Steelworkers explicitly and definitively record at that time their mutual accord as in clusive of a waiver of any related statutory right to in formation that had earlier been requested if it under stood correctly that Steelworkers was also in an actual accord in resolving all disputes In my view it is thus no answer in defense of failure to earlier provide relevant information when requested for Respondent Employer to now seek to point to terms later accepted by the Union in only explicitly resolving contract grievances that were set for imminent arbitration as the basis to infer there was also waiver of other possible union claim advancement (only) on the basis of an urged inferred in consistency in union contract action This is particularly so when the relevant data requested has been long METAL CARBIDES CORP denied to the Union and the Union in effect proceeds on a Hobson choice alternative to further delay by going forward to resolve grievances as best it then can with what information it has but without waiving its statutory right to pursue eventual production of lawfully requested data Here I find the Union did not explicitly waive its statutory right to the properly requested data by entry into the August 24 1987 agreement and I will not infer it either intended to do so or has effectively surrendered a statutory right to request such information because of an inferred inconsistency in entering the agreement in the absence of a more definitive waiver of its statutory right in the agreements terms Cf Park Ohio Industries v NLRB 702 F 2d 624 (6th Cir 1983) This is so even were I to assume that which would appear most inferentially likely namely that others were present and/or readily available to Vasquez in Steel workers negotiation of the agreement with M C Corp who were with full knowledge of the background of re newed and fairly recent requests (of Gatewood Attor ney Payne and Le Vier) for the sale agreement informa tion pressed on explicit central probe of ownership or of any interest that M C Corp Standard Slag and Hold ing Co presently held in M C Inc (or Hartmetall AG) Moreover I further observe that the Board s normal practice is to order a respondent to furnish requested in formation when found relevant and to have been with held in violation of Section 8(a)(5) and (1) of the Act despite the conclusion of the grievance procedure for which the union had originally requested it Cf Blooms burg Craftsmen 276 NLRB 400 fn 2 (1985) In that respect I have no doubt that Gatewood had advanced a request orally in at least April 1987 in grievance processing/negotiation context for sales agree ment information The fact that Respondent Employer s concern that the Union was actually seeking privileged or confidential information at the time is supported in Gatewood s revealment he had asked Hendrickson essen tially for the sale price is not dispositive for other fact justifying request appears as clearly that Gatewood also stated at that time that he wanted the sale agreement in formation for assistance in determining who the owners were I am less persuaded that LeVier and Payne re quests for information were related to the grievances so much as to pursuit of claim of bargaining status A unions request of an employer for data of course must be made in good faith However presumption lies that the union acts in good faith when it requests infor mation from an employer until the contrary is shown 0 & G Industries 269 NLRB 986 987 (1984) and the good faith requirement is met if at least one reason for the requested data can be justified Hawkins Construction Co 285 NLRB 1313 (1987) Associated General Contrac tors of California 242 NLRB 891 894 (1979) enfd as modified 633 F 2d 766 (4th Cir 1980) cert denied 452 U S 915 (1981) Moreover reason is presented here in a manner that would normally require an employers re sponse of production of appropriate sales agreement in formation Cf Washington Star Co 273 NLRB 391 397 (1984) and Westwood Import supra 251 NLRB at 1227 953 There are a number of other supporting facts for this determination One fact is that the Southern Boulevard plant has continued to operate with but brief hiatus An other fact is that the former production and maintenance employees of M C Corp are presently predominantly employed there albeit under work aegis of M C Inc However M C Inc is the evidenced wholly owned subsidiary of Hartmetall AG and it is Hartmetall AG to whom M C Corp directly sold the plant Steelworkers seeks a present review of those earlier sale agreement terms for its own evaluation of who the owners are Steelworkers asked as well for any other like documents but no predicate of an existence of any such document is shown of record Steelworkers essentially now seek to determine from a view of the actual sale agreement if there is any interest held by M C Corp or Standard Slag or Holding Co in M C Inc or Hartmetall AG This is essentially the very issue raised by Gatewood in his first discussion with Jacob on February 5 1987 At that time Gatewood questioned whether M C Corp or Standard Slag still had anything to do with M C Inc Steelworkers seek the sale agreement information to assist the Union in resolution of a stated developed con cern as the established and longstanding bargaining rep resentative of M C Corp s former employees that there potentially may be such a continuation of an own ership interest and/or control of M C Corp in the conduct of M C Inc s business affairs such as would when taken together with evidenced same management and other factors warrant a continued bargaining repre sentative claim to be made by the Union against Hartme tall AG and/or M C Inc Because considered in terms only of the August 24 1987 agreement it might be the case e g were the facts of the sale terms actually of the nature that if fully known they would arguably suffice to establish a single employer or alter ego status I find Steelworkers have shown adequate point of relevance vis a vis the August 24 1987 agreement for their prior re quest Corson & Gruman Co 278 NLRB 329 (1986) See also Coastal Cargo Co 286 NLRB 200 (1987) The po tential claim is thus one not dependent on a successor ship clause in an expired agreement Respondent Em ployer has not really pursued any claim based on its es tablishment that Steelworkers (Gatewood) had with drawn a like charge earlier and appropriately so Staff Officers (Delta Steamship) 277 NLRB 1137 1149 (1985) Accordingly if Respondent Employer is to prevail in defense of its refusals to supply sale agreement informa tion it must succeed on its other urged basis namely that Steelworkers February 5 1987 agreement with M C Inc effectively excuses it from doing so That is a different matter raising different issues and in its regard it is the General Counsels position which in my view in the end does not withstand scrutiny We may begin again appropriately with the general observation that a union may contractually waive its bar gaining rights including a bargaining right it may have about an employers decision to close a plant as it would appear the Union had previously done in the expired contract here In any event when the Employer decided it would sell and close its plant and had timely notified 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union of the same and then that it had done so the Employer had no further duty to bargain with the Onion for a new contract nor to supply the Union with any re quested information bearing on a new contract American Stores Packing Co 277 NLRB 1656 1658-1659 (1986) The Employers obligations to bargain about effects of its decision to close if raised id at 1659 and to process any outstanding grievances brought under the contract re mained as may a duty to arbitrate them Nolde Bros v Bakery Workers Local 358 430 U S 243 249 (1977) and Indiana & Michigan Electric Co 284 NLRB 53 (1987) But request for sale agreement data solely aside it is not contended that Respondent Employer has failed to meet any of its above obligations The complaint alleges only that Respondent Employer has refused the Union s request for sale agreement infor matron from on and after January 13 1987 Insofar as this record reveals however actual M C Corp sale to Hartmetall AG occurred on January 15 1987 with con structive if not actual notice of sale promptly provided Union on January 16 1987 Actual request of Gatewood for information relating to separate companies first arose with M C Inc in early February 1987 The question Gatewood specifically raised with Jacob attorney for Hartmetall AG and M C Inc at best first arose on February 5 (if not by the Union on February 4) 1987 on basis of his observations and/or reports of observations of former M C Corp s employees made on the infor mational picket line from January 16 1987 up till then There is no room for a questioning of Steelworkers actual addressment and conscious concession waiver on the subjects covered in the February 5 1987 agreement that Steelworkers entered with M C Inc There Steel workers have explicitly and severally stipulated with M C Inc that (a) Steelworkers are the collective bar gaining representative only of certain employees of M C Corp an affiliate of Standard Slag and that M C Inc is a wholly owned subsidiary of Hartmetall AG which has purchased the assets of M C Corp and which intends to use part of those assets to engage in the business of manufacturing through M C Inc (b) that M C Corp has terminated its production activities has terminated all its management clerical and production employees and has ceased doing business on January 16 1987 (c) Steelworkers explicitly stipulated and agreed with M C Inc that Hartmetall AG and M C Inc are distinct and separate entities from M C Corp Standard Slag and Holding Co that there has been and is no con tinuity of ownership or control existing between M C Corp and M C Inc and that M C Inc s operations consti tute an entirely new and independent enterprise (d) neither M C Inc nor Hartmetall AG is a successor to M C Corp Standard Slag or Holding Co and (e) the above stipulations are explicitly agreed to be part of the consid eration for the parties entry into still further agreements which included inter alia M C Inc s agreement to hire in order of M C Corp seniority and to grant job pref erence to the former employees of M C Corp Steel workers agreed not to seek recognition based on a theory of successorship or any other basis of fact or theory or rule of law with exception and provisions made for employee designation of a collective bargaining repre sentative not otherwise material to the issues presented in this case There is no evidence presented that Steelworkers did not enter into this agreement freely and voluntarily al though it did so after a long strike of M C Corp after M C Corp had ceased operations and sold its plant after M C Corp had notified the Union of the same and significantly after M C Inc had commenced its hire of new employees Moreover Steelworkers entered the agreement with M C Inc that provided for a struc tured employ of all M C Corp s former employees save the resigned Strahin that preserved their seniority order at a time when the parent Hartmetall AG had held to a contrary position namely that Hartmetall AG desired to selectively hire its own employees In return for union concessions Hartmetall AG s subsidiary M C Inc thus contractually forewent its previous right to nondiscriminatorily hire selectively and it agreed as well to set in place as initial terms and conditions of em ployment of those former M C Corp employees the very such terms otherwise acceptable to Steelworkers on December 30 1986 There was unquestionably an ex change of valid considerations between M C Inc and Steelworkers in the entry of this agreement Gatewood has acknowledged he knew of no instance when M C Inc hired any employee contrary to the terms of this agreement Part of that same enumerated consideration namely Steelworkers concession of M C Inc separate identity and new and independent operation is diametrically op posed to Steelworkers present asserted concern and urg ings advanced about questioned ownership and interest Absent fraud on the face of the terms of the February 5 1987 agreement that question would clearly not be now open as between Steelworkers and M C Inc Gem City Ready Mix Co 270 NLRB 1260 (1984) The General Counsel (and Charging Party) face a formidable task if they are to effectively overcome the evidence of the ear her concessions (admissions) contained in that agreement In short in my view a reasonab'e base for claim of gen eral nonapplicability of the contract or for escape from its concessions e g by some evidence of misrepresenta tion if not fraud must be made The General Counsels first argument made in that effort is an assertion that M C Corp has no standing to defend on the basis of the February 5 1987 agreement The argument would appear to basically rest on the General Counsel s claim that since M C Corp is not a party signatory to the February 5 1987 agreement that Steelworkers made with M C Inc M C Corp has no standing to raise an estoppel claim based on that con tract To that extent the General Counsels argument would appear to have merit Apart from third party ben eficiary contracts not contended by Respondent as present here as a general rule strangers to a contract ac quire no rights under the contract 2 Williston Contracts § 347 at 794 (3d ed 1970) Jaeger However the Gener al Counsels argument does not appear to adequately ad dress Steelworkers concessions made in the agreement as evidence viz of evidence establishing substantial in consistency or as sometimes referred to as constituting METAL CARBIDES CORP 955 quasi admissions independent of contract estoppel base See generally 4 Wigmore Evidence § 1057-1059 at 23- 27 (Chadbourn rev 1972) Moreover though not conclu sive evidence the concessions made by Steelworkers are here by their very nature and scope very formidable evi dence of inconsistent position or as stated in manner more akin to claim of Respondent M C Corp it is abundantly clear that Steelworkers had already stipulated and agreed that M C Inc and M C Corp were entire ly distinct and separate in company identity and in in tended operation As representative of M C Corp s former employees Steelworkers could enter an agreement with M C Inc for their hire See Gem City Ready Mix Co supra See also El Torito La Fiesta Restaurants 284 NLRB 518 (1987) The General Counsels first argument that M C Corp has no standing to rely on Steelworkers conces sions made in the Steelworkers M C Inc agreement of February 5 1987 to the extent it would foreclose the same as constituting competent evidence of prior incon sistency or of quasi admissions against present asserted interest is thus concluded to be without ment The General Counsels second argument is that the agreement entered by Steelworkers and M C Inc is a pri% ate agreement The General Counsel s argument here is that a private agreement does not preclude the Board from addressing a matter of public policy properly brought before it Even though the principle as urged by the General Counsel be given as one true the short answer here is in any event deference to a private agreement is a matter for the Board s discretion Airport Parking Management v NLRB 720 F 2d 610 614-615 (9th Cir 1983) (poststrike settlement) The Board has had other occasion to hold a party to an earlier private agreement it made e g Gem City Ready Mix Co supra In my view Respondent M C Corp s standing to rely on Steelworkers prior concessions made to M C Inc on February 5 1987 as evidencing an inconsistency in present contention does not call for a different result The General Counsels second argument is also deemed not persuasive The General Counsels final argument is that the Swiss company made representations to Steelworkers that M C Inc and M C Corp were separate companies which representations Steelworkers accepted at the time in good faith but did so without proof The General Counsels related contentions appear to be that (a) Steel workers subsequently began to question whether the transaction between M C Corp and the Swiss compa ny seemingly Hartmetall AG was an arms length trans action (b) Steelworkers began to believe there was a connection between them seemingly Hartmetall AG and M C Corp and (c) Steelworkers should not now be precluded from discovering whether the representations made to Steelworkers in February 1987 (thus by M C Inc) are true The General Counsel s central point of ar gument appears to be that subsequent evidence that is now contained in this record casts serious doubt about the Swiss company s earlier representations Respondent counters (essentially) that the record does not support any claim of fraud or deceit that would vitiate the Feb ruary 5 1987 agreement between Steelworkers and M C Inc It is a familiar axiom of law that actual fraud vitiates everything However the General Counsels argument appears here more couched in terms only of an urged po tential misrepresentation In any event whether viewed as one of urged misrepresentation or fraud the position as advanced simply does not withstand scrutiny All law is or ought to be a rule of reason In certain circumstances the law will impute that an individual has been put on notice to make adequate inquiry of a poten tial interest claim or right Williston Contracts supra § 1499 A (Fraud and Misrepresentation) There it is per tinently observed The general rule is that when a person has informa tion or knowledge of certain extraneous facts which of themselves do not amount to nor tend to show actual notice but which are sufficient to put a reasonably prudent man upon an inquiry respect ing an interest claim or right and the circum stances are such that the inquiry if made and pur sued with reasonable care and diligence would lead to the discovery of the truth then such person is absolutely charged with a constructive notice of the interest claim or right [Footnote omitted ] First it is warranted to observe that the area for the claimed misrepresentation of facts supporting single em ployer or alter ego status has been considerably limited by the explicit terms of the February 5 1987 agreement Steelworkers consciously stipulated and agreed that Hartmetall AG had purchased the assets of M C Corp and that Hartmetall AG intended to use part of the assets to engage in manufacturing through its wholly owned subsidiary M C Inc Steelworkers thus suffered from no misperception as to Hartmetall AG s or M C Inc s intentions in these respects Moreover Steelworkers was aware of M C Inc s probable use of the plant and its equipment independently from the recently commenced hiring processes of M C Inc and indeed was well aware of same if not conclusively so from Steelworker s own subsequent arrangements made with M C Inc for the predominant hire of M C Corp s former employ ees in a structured order of seniority with related job preference I conclude and find from all the above that Steelworkers were at least put on notice of the likelihood of M C Inc s related subsequent activity e g of M C Inc s use of M C Corp s stock on hand e g business forms (invoices) and continuation of any uncompleted manufacturing contracts of M C Corp Moreover the fact that M C Inc has redacted M C Corp s name and inserted its own name on all invoice forms leaving the plant (although not doing so on copy to be retained in M C Inc s office) if anything more confirms M C Inc s intended public conduct of the announced new and separate business operation despite similarity of name used for trade purposes Neither is Steelworkers in any realistic sense to be viewed as having been misled about what it had at that time received of value from M C Inc nor regarding what it was consciously and voluntarily agreeing to 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forgo in return Thus Steelworkers plainly obtained from M C Inc an agreement that M C Inc would not only employ all the former employees of M C Corp (save Strahm) but that it would do so as needed in the order of their former M C Corp seniority and with re lated right to afforded job preferences Similarly Steel workers also consciously understood their own agree ment contained an explicit forbearance on their part of raising any right to contend for a continued bargaining representative status for M C Inc s new employees that would be based on a successorship claim or be advanced on the basis of any other theory of law save that re served employee designation in the agreement Clearly such forbearance is inclusive of a claim of the single em ployer status or alter ego status which are asserted to be now rightfully being questioned because of subse quent developments The real thrust of the General Counsels reliance on subsequent evidence would appear to rest fundamentally on evidence of M C Inc s subse quent employment of the same former M C Corp s management and officers But even this consideration does not withstand close scrutiny Gatewood and Steelworkers were reasonably put on notice that M C Inc had promptly employed Kaplan Moletsky and Kreiger after M C Corp terminated them Thus Gatewood had been informed by M C Corp s delivered letter of termination that all of M C Corp s management were terminated at the close of business on January 16 1987 From Gatewood s personal observations and/or from reports of employees observa tions made at the picket line at the plant that M C Corp s former members of management Kaplan Mo letsky and Kreiger were continuing to go into the plant after M C Corp s sale of the plant to Hartmetall AG Gatewood and Steelworkers were also put on notice that each of these three specific individual members of M C Corp management had been at least probably promptly employed by the new Swiss company owner M C Inc Indeed Gatewood has in effect conceded as much in testifying that the same managers referring ex plicitly to Kaplan Moletsky and Kreiger were observed going in across the picket line Since Estes has candidly and credibly related that the picket line was continued at the plant only up until February 6 1987 it follows as more than likely and I thus conclude and find that Gatewood and Steelworkers were in possession of such information before Gatewood with legal counsel in at tendance for consultation had entered the agreement with M C Inc on February 5 1987 Resultingly I fur ther conclude and find that Steelworkers entered the above agreement consciously and despite an awareness that M C Inc had employed the same managers effec tively waiving those circumstances as a consideration That former members of M C Corp s management have continued to be employed by M C Inc at the plant is thus hardly reasonable grounds for Steelworkers to subsequently claim misrepresentations were made to it about the separate identity and ownership of M C Inc and M C Corp or for Steelworkers to subsequently begin to question on that account whether there was an arm s length business transaction earlier in the sale be tween M C Corp and Hartmetall AG or to later relat edly begin to believe that there might still be a connec tion between M C Corp and either Hartmetall AG or its subsidiary M C Inc In that context Steelworkers similar observation of M C Inc s employment of Toth after Steelworkers were effectively notified of M C Corp s termination of Toth s employment as Beeghly s personal secretary even with finding that Toth has now been employed by M C Inc as corporate secretary to receive legal service does not call for a different conclu sion anymore than does M C Inc s employ of Ray a former M C Corp salesman as M C Inc s present sales manager This would appear only the more so given Steelworkers further timely awareness that the Swiss company was actively engaged in its hiring proc ess prior to the February 5 1987 agreement including direct solicitation of certain former employees of M C Corp for new employment with the Swiss company and especially so given Steelworkers final arrangement made within the agreement itself viz that the M C Inc s work force would be predominantly composed of M C Corp s former employees There remains only to consider the evidence such as has been offered as to Beeghly and Zarbaugh The record reveals that Beeghly M C Corp s chairman and acting president maintained an office in M C Inc s plant until June 17 1987 and that Beeghly has had a key to the plant apparently up until then First there is no contention made or in any event no evidence offered that M C Inc or Hartmetall AG ever employed Beegh ly There is no evidence offered that M C Inc or M C Corp engaged in any deceipt as to M C Inc s employ of any of the above individuals and indeed Gatewood conceded he had no reason to believe they are not employed by whom they say they are Second Beeghly s continued presence at the plant after the Janu ary 15 1987 sale even for the extended period (5 months) indicated is not inconsistent with an earlier M C Corp bona fide sale to Hartmetall AG particular ly with the Steelworkers concessionary agreements having interimly been made directly to M C Inc Hart metall AG s subsidiary on February 5 1987 Third the record reveals Beeghly was at the plant almost daily and Steelworkers would have been in any event on early notice of that circumstance also prior to February 5 1987 The record does not reflect that Steelworkers even made any inquiry as to Beeghly s presence at the plant let alone that M C Inc or M C Corp had in some manner misrepresented his presence there On this record I have found that Zarbaugh was Beeghly s agent for certain business purposes and that Zarbaugh had relatedly participated in certain of M C Corp s unsuccessful negotiations with Steelworkers for a new contract However on the basis of reliable and credited evidence of record (Estes) the last such meeting that Zarbaugh had attended in that capacity was on De cember 30 1986 thus clearly before the evidence sale of M C Corp s assets to Hartmetall AG on January 15 1987 1 have also found that Zarbaugh has been subse quently employed by M C Inc as a consultant though when Zarbaugh was so employed does not appear clear ly of record and I have further found on basis of credi METAL CARBIDES CORP 957 ble testimony (Estes) that Zarbaugh has subsequently functioned as an M C Inc manager in the termination of two salaried employees of M C Inc However even apart from hearsay consideration I have found wholly deficient and unpersuasive the reports of individuals that they were told Zarbaugh was a director of M C Corp Standard Slag or M C Inc Not only was there van ance no witness has identified a tenable source of a report let alone attributing a report to Zarbaugh a Swiss company or M C Corp even on hearsay basis In any event given Steelworkers awareness of the extent of M C Inc s employment of former M C Corp s managers and/or officer when Zarbaugh became employed by M C Inc or when Steelworkers became aware of it is in my view not to be dispositive of what Steelworkers was already reasonably put on notice to make inquiry in regard to potential claim interest or right relative to single employer or alter ego status or successorship To the contrary given the broad nature of the conces sions and/or quasi admissions made by Steelworkers in the February 5 1987 agreement with M C Inc which are to clear effect that M C Inc and M C Corp are entirely distinct and separate in identity ownership con trol and operation and given the awareness of Steel workers at the time of entry into such agreements that M C Inc had probably already employed most if not all of the above same (former) management of M C Corp in my view it was incumbent on the General Counsel to establish that Steelworkers should not be bur dened by the evidence of its prior admissions to wit that it was incumbent on the General Counsel to estab lish otherwise that some subsequent events or circum stances had occurred or come to light that would have occasioned Steelworkers to have then reasonably called into question the February 5 1987 agreement as one at least potentially improvidently entered into because of some undetected fraud or misrepresentation The offered evidence on M C Inc s subsequent employment and conduct of operations has simply failed to persuade me that was the case In summary finding then most if not all of the facts relevant to determination of a present claim right or in terest in bargaining right status of Steelworkers on basis of successorship single employer or alter ego status of M C Inc and M C Corp or to Steelworkers related statutory position on the possible effect thereof on post closure grievances filed with M C Corp were either already known to Steelworkers or Steelworkers were al ready put on reasonable notice to make inquiry as to their circumstances prior to entering into the contract with M C Inc which contained Steelworkers con cessions/quasi admissions As to factors normally consid ered see generally Superior Export Packing Co 284 NLRB 1169 (1987) Thus Steelworkers concessions/ admissions in the agreement of February 5 1987 on their face effectively address and constitute persuasive evidence on the very issues presently sought to be raised as relevant see and compare id at 1171 fn 10 and urged subsequent events are not sufficient to themselves overcome the evidenced concessions/quasi admissions or to raise reasonable basis for claim of fraud misrepre sentation or deceipt in the making of that agreement in regard to those issues namely of successorship single employer or alter ego status Again I do not address any issues bearing on the circumstances of M C Inc s voluntary recognition of another union under the terms of that contract which issues are not litigated and were pending on appeal to the General Counsels office at the time of instant hearing Thus in background circumstances of the February 5 1987 agreement it is my view the General Counsels of fered evidence particularly of subsequent events simply is insufficient to establish that Steelworkers have made the requisite showing under Board law of a probable rel evance for subsequently seeking to make inquiry on what actual terms and conditions the M C Corp and Hart metall AG sales agreement were let alone as to price and terms of payment and this is so whether it is to be related to evaluation or process of postclosure grievance per Gatewood s request or to subsequently questioned single employer or alter ego status (per Le Vier/Payne requests) Accordingly it will be recommended that the instant complaint allegation that Respondent M C Corp has violated Section 8(a)(1) and (5) since January 13 1987 essentially refusing to supply Steelworkers with the terms and conditions of its sales agreement with Hartme tall AG be dismissed in its entirety Although unnecessary to the decision reached above it seems nonetheless as warranted to note additionally that were I to have disregarded the evidentiary conces sions or quasi admissions that Steelworkers had clearly made in the February 5 1987 agreement on urging of the matter as one simply of Board discretion on a private party agreement I would in effect be recommending to the Board that it issue an order in due course of remedy ing (otherwise indicated) later unlawful conduct that would in effect provide Steelworkers with an avenue of belated inquiry on an agreement not timely previously made for any potential bearing on the February 5 1987 agreement entered between Steelworkers and M C Inc without M C Inc even having been joined in this pro ceeding as a party to that contract As that has not been done and as other issue(s) of M C Inc recognition of a union other than Steelworkers pursuant to other terms of that agreement is not an issue before me nor one fully litigated I decline to do so CONCLUSIONS OF LAW 1 Metal Carbides Corporation at all times material is an employer within the meaning of Section 2(2) (6) and (7) of the Act 2 United Steelworkers of America AFL-CIO and its affiliated Local Union No 2879 each are respectively a labor organization within the meaning of Section 2(5) of the Act 3 Metal Carbides Corporation has not in any manner violated Section 8(a)(5) and (1) of the Act as alleged in the complaint 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the basis of the above findings of fact and in light of the above conclusions of law I issue the following recommended' ORDER The complaint is dismissed in its entirety '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