A J R Coating Division Corp.

148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A J R Coating Division Corp , a Subsidiary of A J Ross Logistics, Inc , and A J Ross Logistics, Inc and Local 365, International Union of United Automobile, Aerospace and Agricultural Implement Workers of America Case 4-CA- 16369 December 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 10, 1988, Administrative Law Judge Frank H Itkin issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs' and has decided to affirm the judge's rulings, findings, 2 ' The General Counsel filed a motion to strike the Respondents excep bons and the evidence submitted along with the Respondents exceptions Although the Respondents exceptions do not strictly comply with Sec 102 46(b)(l) of the Board s Rules and Regulations we accept them as they are not so deficient as to warrant striking The evidence submitted along with the Respondents exceptions-a transcript from a 10(j) pro ceeding involving the same parties-was not presented at the hearing and therefore is outside the record Accordingly we grant the General Counsels motion in part by striking the untimely submitted evidence and disregarding it in our deliberations Natural Heating Systems 252 NLRB 1082 In 1 (1980) The Respondent filed a motion for a rehearing claiming that the judge precluded the Respondent from having the opportunity to fully cross ex amine witnesses through the use of the transcript of the 10(j) proceedings involving the same parties A review of the record however shows that the transcript of the 10(j) proceeding was not available at the commence ment of the hearing and that the Respondent s counsel admittedly did not ask the judge for a stay in the proceedings until the transcript became available As the Respondents counsel was fully aware of the impending receipt of the transcript and did not seek a stay we find that the judge acted within his discretion The Respondent further asserts that a rehearing should be granted be cause according to an affidavit submitted by the Respondents president Thomas Petrizzo Gerald Dankulich the Union s business agent in a meeting with Petrizzo contradicted testimony which he gave during the hearing in this case Electrical Workers IUE Local 745 (McGraw Edison) 268 NLRB 308 (1983) relied on by the Respondent is distinguishable In Electrical Workers the Board remanded the case to the administrative law judge to consider a witness affidavit filed after the judge issued his deci sion in which the witness admitted to perjuring himself during the hear ing Here we have no admission to perjury by any witness but rather an assertion by the Respondent that one of the General Counsel s witnesses later contradicted his testimony Such an assertion does not warrant a re hearing The Respondents request for oral argument is denied as the record exceptions and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, A J R Coat- ing Division Corp, a Subsidiary of A J Ross Lo- gistics, Inc, and A J Ross Logistics, Inc, Bath, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order Joseph C Kelley Esq for the General Counsel Thomas FX Foley Esq for the Employer Vicki Erenstein Esq, for the Union DECISION STATEMENT OF THE CASE FRANK H ITKIN, Administrative Law Judge The Union filed an unfair labor practice charge in this case on February 6 and an amended charge on May 27, 1987 A complaint issued on May 29 and was amended on June 16 1987 i The General Counsel alleged that Re spondent A J R Coating Division Corp a Subsidiary of A J Ross Logistics (AJR) is engaged in the coating of steel and reinforcement bars or rebars at its Bath, Penn sylvania facility that Respondent A J Ross Logistics Inc (Ross) is engaged in the fabrication, storage sale and distribution of structural steel components including the fabrication and sale of rebars at its Keasbey New Jersey facility and that Respondents AJR and Ross are a single integrated business enterprise and a single employ er within the meaning of the National Labor Relations Act The General Counsel further alleged that about Jan uary 14 1987 Respondent Ross purchased the land, building, equipment, and inventory of M C P Facilities Inc (MCP) in Bath Pennsylvania that since about Janu ary 22 1987 Respondents AJR and Ross have been en gaged in the same business as MCP at the same facility, using substantially the same equipment selling substan tially the same services to the same customers and but for the discriminatory and unlawful conduct described below would have employed as a majority of its em ployees individuals who were previously MCP employ ees and that Respondents AJR and Ross are therefore a successor employer to MCP 2 The General Counsel next alleged that Respondents AJR and Ross commencing during late 1986 and early 1987 told an employee at the Bath facility that employ ees there would have to play by Respondents rule and there would be no union representation solicited an em ployee to form a committee to represent the Bath facility ' The complaint was further amended at the hearing 2 The General Counsel averred that MCP previously had recognized the Charging Party Union as the exclusive bargaining agent of an appro prate unit of its Bath Pennsylvania production and maintenance employ ees and the Union and MCP were parties to collective bargaining con tracts the most recent contract effective from April 1 1985 to March 31 1988 292 NLRB No 31 A J R COATING CORP employees threatened to terminate any employee who sought to be represented by a union at the Bath facility, told job applicants at the Bath facility that Respondents were going to be nonunion because it would be too costly to have a union told a job applicant at the Bath facility that nonunion employees would have to be hired there before any former employee of MCP could be hired, solicited Bath facility employees to sign a state ment stating that they did not want a union and threat ened that employees who did not sign such a statement might lose their jobs, unilaterally changed wages hours, and other terms and conditions of employment of the unit employees engaged in a discriminatory hiring policy or practice by refusing to employ at the Bath facility a majority of former MCP employees in order to avoid recognizing the Union, and refused to hire at the Bath facility former MCP employees Donald Donello David Marsilio, and Michael Ahn because of their union or pro tected concerted activities and in order to avoid recog nizing the Union In addition as the General Counsel further alleged, the Union had requested Respondents AJR and Ross to recognize it as bargaining agent of an appropriate unit of the Bath facility production and maintenance employees on January 14 and 29, 1987, and Respondents thereafter refused The General Counsel alleged that Respondents AJR and Ross by virtue of the above conduct, have inter fered with, restrained, and coerced employees in the ex ercise of their protected Section 7 rights in violation of Section 8(a)(1) of the Act, have discriminated in regard to hire or tenure or terms and conditions of employment of employees thereby discouraging membership in the Union in violation of Section 8(a)(3) and (1) of the Act and have failed and refused to bargain in good faith with the Union as the successor employer to MCP, in viola tion of Section 8(a)(5) and (1) of the Act Respondents, in their answer deny violating the Act as alleged 3 Hearings were held on the issues raised in Bethlehem Pennsylvania, on July 21 22 27, and 28 1987 On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs of counsel, I make the following FINDINGS OF FACT MCP had been engaged for a number of years in the coating of reinforcement bars and related activities at its plant in Bath Pennsylvania MCP had a collective bar gaining agreement with the Union that covered its pro duction and maintenance employees MCP experienced financial difficulties in 1986 and efforts were then made to sell its Bath facility to Ross and AJR The sale how ever, fell through Ross and AJR instead purchased the Bath real and personal property at a foreclosure sale or auction conducted by the Horizon Bank Ross and AJR thereafter resumed operations at this facility The princi pal issue raised is whether Ross and AJR thereby became a successor employer The Jurisdictional and 9 The General Counsel obtained a temporary injunction in these pro ceedings from the United States District Court for the Eastern District of Pennsylvania on July 17 1987 pursuant to Sec 10(1) of the Act See G C Exhs 10 and 12 and R Exh 7 149 commerce allegations pertaining to Ross and AJR and the labor organization allegations pertaining to the Union are admitted The relevant testimony and documentary evidence pertaining to this sequence of events are sum marized below Dennis Snell was associated with MCP from 1974 until December 24, 1986, as the Bath facility plant manager and as vice president of its operations He identified MCP s main customers (cf Tr 180-181 and G C Exh 4) and vendors or suppliers (cf Tr 181-182 and G C Exh 5) He explained that MCP was primarily in coating ap plication applying protective coatings to all types of steel structures including marine work coating rein forcement rods and the fabrication of steel, and some storing of steel There were employees who were, inter alia painting applicators general laborers crane opera tors, forklift operators, leadmen who were not supervi sors sandblasters and welders The foremen were the management people in the plant, that is, Larry Rappa and Tom McKeever Snell explained that Rappa and McKeever were MCP s only supervisors 4 Snell also identified General Counsels Exhibit 7 as the current collective bargaining agreement between MCP and the Union, effective from April 1, 1985, until March 31 1988 The bargaining unit included all production and maintenance employees of the Company at its Bath plant, Bath, Pennsylvania, excluding office clerical em ployees draftsmen engineers technical and professional employees, the plant manager his assistants supervisors and watchmen The contract contained a union security and dues checkoff clause (See G C Exh 7 pp 2-3 ) The various job classfications of the unit employees, in cluding group leaders, are listed therein (See G C Exh 7, pp 3-5) Further, Snell explained that the total number of MCP unit employees fluctuated because we are a seasonal business -the prime time ran from April through October The low period showed some 41 MCP employees the prime time showed 65 to 70 employees 5 Snell was next shown (G C Exh 8) a photograph of the MCP Bath facility taken in 1981, depicting three different operations including our storage area for bringing in customers steel, sorting it out and sending it to the site and some was for processing - some was for processing and some was strictly for storing and sort ing In short as Snell testified Q So that there was some sequencing [of steel] done as you just described? A Yes Just about all the steel that ever went out of our place had to go out in a certain order and necessarily not the order it came in Q And, that you would describe as sequencing? A To me it would be sequencing yes Q That would be shipping out materials in a cer tarn order at the request of the- 4 Rappa and McKeever as discussed here later became supervisors of Respondents AJR and Ross 5 Later Snell was shown R Exh 1 containing some 48 or 49 names Some 46 were working at MCP in December 1986 Two were on layoff status They are all production and maintenance employees However there could be others possibly two or three at the most 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A Of the customer- Q -customer A That s right Q So there s nothing new about that at MCP? A No Snell next recalled that MCP ran into extreme finan cial difficulties around July of last year 1986, and it became critical The Horizon Bank had given MCP a deadline until September 21 to either pay off a loan which was about $1 5 million or they were threatening to pull the loan Joseph McDade, president of MCP and Herbert Schmidt owner or chairman of MCP started to look around to see if they could possibly sell the Company before the ultimate happened and the Bank pulled the loan, that is foreclosed the collateral, which consisted of the MCP land, building, and equipment at Bath McDade and Snell started negotiations with Thomas Petrizzo, president and owner of Respondent Ross Ross, at the time was a customer of MCP and owed MCP quite a bit of money in accounts receivable, and he [Petrizzo] started paying the bills for [MCP] and we [MCP] started ordering supplies on his [Ross ] pur chase orders , we could not order anything unless it was cleared with his people Snell explained we did not have the freedom to manage the way we wanted commencing about October 1986 Respondent Ross also put in Ronnie Ferrer, vice president of Respondents and Thomas Coyne, vice president of Respondent Ross from about October until [the] closing Thus, the pro spective purchaser Ross or AJR, came into the plant before consummation of any transaction and was observ ing and participating in the operations as well as finan cially supporting purchases and even repairs to the struc ture Further Ferrer, exercised control over which work would be performed and given priority Ferrer saw to it that work to be done for Ross would get priority over other customers work Then, on December 24 1986 MCP operations stopped and on January 14 1987 the Bath assets were sold at an auction to Respondents Snell next recalled the following conversations with Ross vice president, Coyne and Respondents vice president Ferrer on January 16 1987 2 days after the auction I was asked by Mr Coyne if I would recommend approximately seven to eight people who were the most experienced to come back and work for them And I said yes, I would And I said why only seven or eight people? And he [Coyne] said well, that s what our attorneys told us If we hire any more than that, we re in jeopardy of getting the Union back and we don t want the Union Snell then provided Coyne with the names of William Kerbacher, James Dornbach Joseph Boyko Jerry Ma honey, Bruce Kemmerer, Michael Ahn and Reginald Lewis According to Snell [When] I suggested [a] Mr Ahn, Mr Ferrer object ed right away because he felt [Ahn] was too close to Mr Donello who was the shop steward As a matter of fact Mr Ferrer wanted a fellow named Pearn instead None of these persons had any supervisory authority at MCP a couple of them were what we call group lead ers they would get their orders from the foreman in the morning and carry out the task of perhaps loading out a truckload of steel or putting certain items on the line for production the group leaders did not have the right to hire and fire or to discipline and they spent 100 percent of the time doing actual physical produc tion work Snell noted that those gentlemen were rep resented by the Union when they worked for MCP and were included in the bargaining unit 6 Snell further testified that he had attended two meet ings in the MCP cafeteria during late 1986 before the auction Thomas Petrizzo, president of Respondents, spoke at the first meeting during October addressing the plant personnel Present were some 40 to 45 employees Snell recalled Mr Petrizzo came down basically to introduce him self because word had filtered down that he was trying to negotiate to buy the Company The first meeting basically was just an introduction of him self and his business at Keasbey New Jersey, and what his plans were for the Bath facility, which in cluded keeping the existing operation and adding a truck fleet He said he had about 25 tractor trailers and warehousing he said he was bringing stuff like air conditioners in from the midwest and needed a place to store them The second such meeting was during November Ac cording to Snell, Petrizzo then informed the assembled MCP personnel We re] having some problems I can t go into ev erything right now but I just want to reassure you fellows you're all going to have jobs v An employee then asked Petrizzo are you going to keep the Union? Petrizzo responded Well I think once you get to know me you won t want a Union but he says for right now everything is going to stay as is General Counsel s Exhibit 2 shows Respondent AJR s employees at the Bath facility and their dates of hire from January 22 through March 23, 1987, as follows W Kerbacher 1/22/87 R Hill 1/26/87 R Lewis 1/22/87 R Jacoby 1/26/87 J Dornbach 1/22/87 D Boyko 1/28/87 J Boyko 1/22/87 K Brennan 1/28/87 R Pearn 1/22/87 J Halada 1/29/87 B Kemmerer 1/22/87 G Wambold 2/2/87 R Breitfeller 1/22/87 M Ruth 2/6/87 J Atwood 1/26/87 M Klobusicky 3/9/87 M Rehrig 1/26/87 H Burke 3/9/87 6 See also the testimony of Gerald Dankulich business agent for the Union Again some 40 to 45 MCP employees were present at this meeting A J R COATING CORP S Roberts 1/26/87 S Christman 3/9/87 R Hill 1/26/87 D Dathe 3/23/87 General Counsels Exhibit 3 another list, is a schedule of employees who worked for AJR at Bath from January 21 through April 25 1987, and purportedly represents the total labor paid for at Bath Pennsylvania, facile ty There are some 28 names on this list Snell reviewed this list and identified the following persons as former MCP employees J Atwood J Boyko R Breitfeller J Dornbach B Kemmerer W Kerbacher R Lewis R Pearn Snell also noted that L Rappa was part of MCP man agement with the right to hire or fire, B Fischel, T McKeever, and A Vargo were MCP office people, E Gleason was vice president of sales for MCP until 1985 and later worked in sales, and R Price was in sales He explained that the office personnel were management and the salesmen were also not in the unit 8 On cross examination, Snell acknowledged that he is now employed by a competitor of Respondent Ross that after 1981 MCP did not handle a so called sequencing project of that size that during the 1986 negotiations be tween MCP and Ross the lack of suitable ingress and egress by trucks was an issue and that 90 to 95 percent of MCP s work was coating Ross, in the past supplied about 15 to 20 percent of MCP s coating work Snell noted, however, that by December 1986 Ross was sup plying 50 percent of MCP's business Snell was asked when he had discovered that Petrizzo was investigating him with respect to an incident of theft of property from the premises Snell explained that the first indication of any so called theft accusation was during the injunction trial in this proceeding some 2 weeks before this hearing when counsel for Respondents mentioned it during his examination (see Tr 232-234) Snell also acknowledged that MCP had in the past about six trailers for the hauling of steel but they did not go on the road with the equipment owned by MCP Counsel for the General Counsel acknowledged that he is not alleging that Respondents transportation people or truckdrivers are a part of the unit (Tr 235) Snell further explained that MCP also did several welding jobs and some of this work was in conjunction with coating and about 15 percent was not in conjunction with coating Joseph McDade was president chief operating officer, and later chief executive officer of MCP McDade testi feed that in the spring of 1986, when MCP was having financial problems the primary owner of MCP Herbert Schmidt, took over operations McDade really worked as kind of a glorified salesman to help sell the Com 8 I note that not only does G C Exh 3 contain some seven names ad ditional to those on G C Exh 2 (including the nonumt personnel de scribed above) but this list also contains some variances in beginning dates 151 pany and keep it together The major customers of MCP at the time were Respondent Ross Bethlehem Rebar Industries, Brocker Manufacturing Lancaster Steel and CFS or Fetnman The major suppliers were 3M Corporation, Coppers Company Porter Paints, Beth lehem Hardware and some Lehigh Valley propane gas suppliers McDade recalled that it became very apparent during 1986 that we had to sell the Company or raise addition al capital we were unable to raise additional capital, so selling the Company became the only viable alterna tive Respondent Ross, one of MCP s major customers made an offer during October 1986 to buy the stock of the Corporation Respondent Ross then owed MCP about $80 000 and kept MCP afloat during the last quarter by paying the accounts receivable and funding just the absolute necessities During this period, Respondent Ross used their own purchase orders to order goods like from 3M because our credit was no good so we just used Ross purchase orders and some of these bills were paid with [Ross] funding their accounts receivable to us, and us paying 3M, and I be lieve others were paid directly McDade as he further testified met with Thomas Pe trizzo, president of Respondents, probably two or three times a week from October 1986, when Ross made its offer to purchase the Corporations stock, until Decem ber 24, 1986, when MCP ceased operations at Bath Pe trizzo and McDade then discussed the Union and the wages we had been negotiating with the Union for give backs for quite some time Petrizzo saw the contract be tween MCP and the Union, and Petrizzo addressed as sembled MCP employees in the plant cafeteria McDade recalled that Petrizzo essentially said [to the assembled employees] that the was going to expand the business, not only the coating end of it, but put in some additional truck ing type business It was well known that he was in the trucking business and that he was going to use the facility because we had some extra space for what he told employees amounted to the staging area He said that he would work with them [and] there were several questions regarding past wages and benefits and he said he wasn t responsible for these There was an assumption from what he [Petrizzo] was saying that the MCP employees would be hired he didn t specifically say we will maintain your jobs he did indicate that the Company was going to expand' and the inference was that not only the people that were there attending the meeting [their] jobs would be secure, but others there would be additional hires McDade next recalled his conversation with Petrizzo on December 24 1986 the last day of MCP s operations Petrizzo had brought to MCP a $20,000 check for the payroll, this amount was insufficient and paychecks could not be issued Petrizzo then apprised McDade that 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent Ross was in effect backing out of its deal with MCP to purchase the corporate stock instead, Re spondent Ross had made an offer to Horizon Bank of $1 5 million for the assets of MCP to be purchased at an auction Horizon Bank was a secured creditor of MCP, or its parent corporation Magnetic Head, Inc, and was going to foreclose or liquidate MCP s assets in order to satisfy the outstanding secured indebtedness McDade and Petrizzo then discussed the possibility of somebody outbidding Ross at such an auction or sale, Petrizzo don t think that there were going to be any bidding at an auction like that According to McDade I asked him [Petrizzo] what he was going to do about the Union because we all agreed that Union wages were too high for the competitive market place we were in I said what are you planning on doing when you reopen, assuming that you win the bid at the auction And he said, well I in going to hire some of the people back And I said you re alize that if you hire too many back that you are going to have to negotiate with the Union if you take over this facility you re going to have to deal with the Union if you hire too many of their people back And, he made the comment to the effect that he didn t need me to tell him he was getting very good legal advice on the matter McDade further recalled that, shortly after Petrizzo had made his offer in October 1986 he McDade had supplied the Ross accountants and attorneys with all the information, all the contracts all the accounts payable, [and] the accounts receivable they had full disclosure This information included the existence of four so called golden parachute contracts with McDade and three other persons Petrizzo, while the Ross offer was pend ing between October and December 1986 had directed McDade to call on our existing customers explain what was going on that the offer had been made, indeed, he [Petnzzo] even came out with something in his own bulletin, his in house bulletin that said A J Ross buys MCP Petrizzo during this period, also had spoken to MCP customers and had worked out a major deal 9 Joseph Boyko was employed by MCP at the Bath fa cility for about 15 years until it ceased operations in De cember 1986 His last job duties there as rail crane opera tor required him to load and unload steel and feed the line with steel to be coated and painted He had also per formed for MCP the job duties of forklift operator over head crane operator, paint mixer, loader operator and shop machine operator He noted that the machines that he had operated for MCP pertained to cleaning the steel Boyko applied for a job with Respondent Ross or AJR on January 21 1987 He recalled some 14 other MCP 9 On cross-examination McDade acknowledged that MCP when in operation did not deliver steel to building sites in New York City we didn t do any delivering of steel our customers either picked it up them selves or had common carriers into the plant and pick them up In 1984 1985 and 1986 virtually all of MCP s business was coating- there may have been five percent of other things we did that wasn t technically coating such as for example storing some steel in our yard McDade started at MCP s Bath facility in 1984 He had heard that in the 80s they did some sequencing of steel employees who also had applied He was hired by Thomas Coyne, vice president of Respondent Ross, on January 22, 1987 Present at the same time were Ronnie Ferrer vice president of Respondents, Larry Rappa, su pervisor of Respondent AJR and former MCP supervi sor and former MCP employees William Kerbacher, James Dornbach, Reginald Lewis, Bruce Kemmerer Bob Breitfeller and Robert Pearn The named employees were hired simultaneously in a group Coyne told the group he would pay us $10 an hour we would be hired as working supervisors there would be no job classifications we would have a health plan it will be strictly a non Union shop be cause Union cost money Boyko recalled We started working the same day we were hired As noted above the initial unfair labor practice charge in this case was filed on February 6, 1987 In late March as Boyko further testified, Supervisor Rappa instructed employee Robert Pearn that he was supposed to go to the office to sign a paper Rappa then told Boyko that when Bob comes back [Boyko] should go Pearn re turned to his work station Boyko asked what the paper was about Pearn responded something about not having a Union Boyko, when asked by Rappa if he had signed stated to Rappa I in not going to go in I don t feel it s right Later Vice President Ferrer asked Boyko at work are you having trouble with this paper Boyko responded I don t feel it's right I don t like being stuck in the middle I feel like I am being stuck in the middle and having to go against both sides and the Union was still fighting for the guys jobs and their money Ferrer then warned Boyko if he [Ferrer] would call anybody else up and tell them that I [Boyko] am t with them [Respondents] no longer that any one of them would take my job Boyko further testified that it was not until the end of April when they were told more specifically what [their] authority was as working supervisors At the time, Ferrer told the working supervisor -Boyko Dornbach Pearn, Kerbacher Lewis, Breitfeller Kem merer and Atwood-that the men are supposed to come and ask us questions or either come to us for work if they didn t have anything to do we had the right they had to listen to us if they don t listen we had the right to send them up the road or fire them Boyko explained that 99 percent of his time was spent on production work, the remaining 1 percent was spent on cleaning up Supervisor Rappa assigns the job Rappa tells the men where to go' -that is he tells the acting supervisor Boyko explained that comparing MCP s operation at Bath with the Respondents oper A J R COATING CORP ation there, the two operations are basically the same There is no difference in his job performance He works at basically the same location with bascially the same equipment turning out the same product, still loading and unloading trucks that come to the facility bringing steel either for coating or for not coating , structural steel that s not to be coated is now brought to the facili ty, under MCP they also accepted steel that was not to be coated, such steel was stored for customers and later shipped out Boyko noted that Respondents brought more forklifts but the equipment is basically the same Boyko, however explained that now, unlike before with MCP, he no longer has a pension plan his health insurance plan provides less coverage, his rate of pay is less than it would have been under the union con tract, he has less vacation benefits his overtime benefits have been changed, his holiday benefits have been changed, his washup time benefit has been eliminated, and his lunch money benefit has been eliminated Boyko acknowledged that he has been working with new employees at the Ross and AJR Bath facility and he has been working shorthanded however, it s the same work and a couple of times I ve had new people with me as my helpers and I had to tell them what to do, like hooking up steel or unloading steel, how to load a truck [or] where to place the bundles On cross exami nation, Boyko also acknowledged that MCP, unlike Ross or AJR, did not have a 30 ton forklift The MCP fork lifts were smaller Ross or AJR added five forklifts one of which could handle 30 tons Further, the entire 17 acre facility is now filled with steel However he re called the MCP property filled with steel back in 1981 According to Boyko, this large quantity of steel which now fills practically all the acreage, started coming in about April 1987, months ago Boyko explained that, nevertheless, he still spends 99 percent of his time on production and 1 percent on cleaning up, there are no other duties other than the production and clean up duties - It s just that we re busier now, so now I am into more production than I was earlier Further Boyko also runs steel out to the acreage for deposit on the ground -all the time However his function now is basically the crane operator for the coating oper ations' On redirect, Boyko insisted that he, as a working supervisor never discharged hired, disciplined, or ad dusted grievances The assignment of work is done by Mr Rappa each day in the lunchroom He makes the assignments to everybody Keith Berlew was employed by MCP at the Bath facil ity for over 11 years until his employment ended there on December 24, 1986 His work duties at Bath included locomotive operator, crane operator fabricating paint ing, running forklifts and related equipment, and yard jockey He explained that his painting duties included the coating of steel and his crane operating assignments in volved the loading and unloading of tractor trailers and railcars Steel products would be shipped to the facility, unloaded, stored in the yard, coated, stored leader, and shipped out to the customer The product included steel reinforcement rods or rebars to be used in the construc tion of bridges, tunnels highways, and buildings The re loading process would be tnggered when the customer 153 would call up and say he needed certain sections The rebars, the witness explained had tags on and they had release numbers on and the foreman used to give us the paper and we would have to go out and put certain releases on certain trucks [or railcars] to ship out Further, some of the customers steel products, as the witness explained were brought there just for storage This loading and unloading process went on during Ber lew s entire period of employment at MCP Berlew next testified that about January 24, 1987, after MCP went out of business, he filed a written job applica tion with Respondents He was not hired Earlier, about October 1986, he had attended one or more meetings at the Bath facility, while still employed by MCP where Thomas Petrizzo, president of Respondents, addressed the assembled employees Berlew recalled Petrizzo stat ing to the employees he was going to make sure that we all had jobs, that we weren t going to lose our jobs, that he was going to take it over [the Bath facility] and we d all be keeping our jobs working together Berlew recalled that he also had a number of telephone conversations with Respondents Supervisor Rappa In one such conversation Rappa discussed with Berlew why former MCP people aren t being hired , he [Rappa] said that the wages would be cheaper and that way it would keep the Union out - hiring non Union people would be a lot cheaper and that way it will keep the Union out also 'to James Dornbach was employed by MCP at Bath for some 16 years as a group leader He described his duties there as involving yard work, unloading trucks, loading trucks crane operators running forklifts jockeying trucks around the yard, and putting the steel on the line One hundred percent of his time was spent on such pro duction work He had no authority to hire, fire, disci pline lay off or promote employees He and all group leaders were in the Union s bargaining unit He applied for a job at Ross or AJR on January 21 1987 He named some 28 other MCP employees who also had applied for jobs He was hired and started on January 22 1 i Dornbach next recalled that Supervisor Rappa in structed him and coworkers Boyko and Pearn to go into the office to sign some papers during late March 1987 Employee Pearn went in first and later explained to Dornbach, You have to put in your own words that you liked it here and you didn t want the Union in Dornbach refused to go in Rappa later asked Dorn 10 On cross examination Berlew explained that with respect to the various job functions and duties performed at MCP s Bath facility I worked there for 11 1/2 years Every year was different Some years we were really busy the next year was a little bit slower He also added welding to the job functions that he had performed there He was at the time of MCP s demise performing crane operators duties Further he recalled some truckdriving duties being performed there in the past i i His testimony concerning the hiring process essentially corroborates the above testimony of Boyko 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bach why he did not go in Dornbach explained be cause of the guys that are out of work I don t want to jeopardize their chances of getting back ' Later, Vice President Ferrer asked Dornbach `what the problem was Dornbach again explained his refusal to go into the office and sign the paper Ferrer warned any of those guys would take [Dornbach s] place if they had the chance " Dornbach agreed, but persisted in his refusal Later Supervisor Rappa told Dornbach to get in touch with former MCP employee and Shop Steward Donald Donello, 'to see what he had to say about signing the paper Ultimately, Donello advised Dornbach, don't do nothing until he gets ahold of Vicki, the Union s lawyer Later that day, the Unions lawyer telephoned the Bath plant and questioned Dornbach and another employee about this incident Dornbach, like Boyko, recalled that in April 1987, Su pervisor Rappa spoke to the working supervisors he wanted us to be stricter, we could fire or send anybody up the road that wasn t doing their job This was the first time Dornbach had been told of such authority Nei ther Dornbach nor any of the other working supervisors, to his knowledge, has exercised such authority at the plant He still spends 100 percent of his time on the pro duction line, Rappa still makes assignments the oper ations of MCP and now AJR or Ross are just about the same , they still unload rebars and steel, not all the steel is for coating, some is for storage his work is no differ ent now than it was when he worked for MCP there are new employees there who did not work for MCP and are doing the work that former MCP employees did , the new employees use the same coating equipment at the same facility and the same machinery and the present work force is about 30 to 35 persons, whereas previously with MCP the work force was like 60 work ing " Dornbach noted that, in the past with MCP steel was coated or stored and later shipped out in order office personnel would mark the loads off and Dornbach would load the steel on the trailers Further Dornbach noted that now, unlike under the MCP contract he has no pension plan he has less insurance coverage he re ceives less wages than he would receive under the union contract, he receives less overtime pay less holiday ben efits, and no lunch money benefits, and he has no lunch break Further Dornbach noted that he is now working with approximately 20 new employees who were not employed at MCP and they are doing the same work as performed at MCP On cross examination Dornbach recalled asking Vice President Ferrer, with respect to that statement that he had refused to sign whether he was fired Dornbach tes tified I said, well, what's going to happen could I get fired over this? He [Ferrer] said he has a boss too- he said he wouldn t fire me he personally said he wouldn t fire me, but he has a boss too He didn t know what he [the boss] would do Dornbach also explained that the lunchbreak at the plant has been eliminated so that they can work through lunch and go home early- the men made that up themselves and Ferrer agreed Starting time was also changed in this same manner Richard Miller, employed as a painter by MCP from 1979 until December 24 1986 applied for work with Re spondent Ross or AJR on January 21, 1987 Some 25 other MCP employees also applied Miller recalled speaking on the telephone with Supervisor Rappa about June 1987 Miller telephoned Rappa about his corrected W-2 form Miller asked "about going back to work,' Rappa replied My name [Miller] was on the list to go back but he don't think we would be called back because of the trouble the Union was giving them and that they had to hire so many non Union workers before they call any more Union workers back Rappa also asked Miller if he would come back for $7 an hour, less than his MCP rate Miller said no, however, he would return for a $9 rate Miller in fact returned to the plant on June 26, 1987 There, he performed painting duties, they just put you wherever you are needed ig noring classifications and seniority Robert Pearn was employed by MCP for some 12 years as a group leader at Bath His work involved paint powder coat[ing] steel ' One hundred percent of his time was spent doing production work He applied for work with Respondent Ross or AJR on January 21, 1987 He observed some 13 other MCP employees who also had applied He was hired with Dornbach Boyko Kemmerer Atwood Lewis, and Breitfeller He too was told that he would be a working supervisor and it was a nonunion shop He is presently doing the same thing for Ross or AJR that he had performed for MCP He still spends 100 percent of his time on production His bene fits however have been changed and reduced Pearn recalled how Supervisor Rappa instructed him to go into the office in March 1987 There, he was given a typewritten sheet and instructed to copy that or write something on [his] own He recalled Basically it said we're satisfied the way it is and we re happy without a union He copied the provided statement and signed it He explained that he had copied the language on this statement from the piece of paper that he was shown in the office General Counsels Exhibit 9 is the statement thus written out and signed by Pearn It states I Robert Pearn have been employed by AJR Coat ings since 1/22/87 in a supervisory capacity We are pleased with our present position and do not wish to have a presentation [sic] of any organized union whatsoever Kerbacher Dornbach, Boyko, Kemmerer, Breitfeller Lewis and Atwood were also asked to sign such a state ment Pearn next recalled how Vice President Ferrer later told him and the other persons hired as working su pervisors about their authority to assign employees work A J R COATING CORP and to discipline them He explained that, we never really knew that 12 Donald Donello worked for MCP at Bath from 1Q76 until December 24, 1986 His duties included laborer, painter, applicator, crane operator, forklift operator, sandblaster, shop machine operator, liquid painter utility job runner, janitor, and utilityman-he did basically every job but two ' He rose in the Unions ranks at MCP from union secretary to chairman, or chief shop steward Coworker David Marsilio was also a shop stew and there There were some 45 to 50 employees in the production and maintenance bargaining unit when MCP went out of business 13 Donello next testified that on December 24, when the Bath plant shut down, he telephoned Respondents press dent, Petrizzo, to find out what was going on' Petrizzo then apprised Donello, "that we shouldn t worry all the guys still have their jobs " Petrizzo explained to Donello that the contemplated sale with MCP fell through and an auction, scheduled to take place some weeks later, was one of the ways he [Petrizzo] had to purchase it don't worry about it everybody had their jobs, but this was the way he had to get it' Don ello, as he further testified, again telephoned Petrizzo a second time shortly thereafter Again, Petrizzo said, 'don't worry, the guys still have their jobs " However, as Donello testified, But, he [Petrizzo] said, the Union is definitely out from now on we're going to have to play by his rules' Later, during the last few days of December 1986, Pe trizzo telephoned Donello for MCP Supervisor Tom McKeever's telephone number Petrizzo explained that he would like both Donello and McKeever to come to his office on Friday, January 2 Donello and McKeever drove together to Petrizzo s office on January 2 There, Petrizzo spoke to McKeever about taking the truck dis patcher s position at Bath McKeever was concerned whether Petrizzo would in fact buy the Bath plant at the auction Petrizzo assured McKeever that it is a 99 per cent chance he s going" to get the plant at the auction- ' he's in with the Bank Petrizzo then stated to Donello The Union is definitely out he [Petrizzo] wasn't even going to keep all the former MCP employees we re going to keep some of the MCP employ ees but you re [Donello] to be one of the em ployees we re going to keep 12 On cross examination Pearn was asked about the 17 acres of the fa cility now occupied by steel and when was the last time [he remem bered] that existed when MCP operated it7 Pearn explained Many years I really couldn t say [over five] It could have been I know when I first started there which was 12 years ago there was a lot of steel in the yard but over the last few years of MCP there was a lot of rebar in the yard Rebar which is for powder coating He also recalled a trucking operation there some 5 or 10 years ago There are now larger forklifts He generally agreed that steel warehous mg and coating are a separate operation He explained I don t really know too much about them referring to warehousing 13 Donello noted that Rappa was a supervisor for MCP and not in cluded in the bargaining unit Further Donello also identified Tom McKeever as a dispatcher foreman supervisor And referring to G C Exh 3 he generally explained that the foremen or supervisors secretar ies and sales personnel were not included in the bargaining unit 155 Petrizzo assured Donello don't worry about it, I [Pe trizzo] wouldn t call you up to my office if I wouldn t be keeping you Petrizzo added he didn t like the Union, but You [Donello] can still represent the men just like you did when you were in the Union You could have it here in the Keasbey plant We can form a committee [and Donello] could be head of the committee Any time they had a prob lem or anything, we could go in there and discuss it with him [Petrizzo] We can represent the men on a committee, we don't have to have a Union Petrizzo warned he [Petrizzo] knows there s nothing that could stop anybody from trying to form a Union he can t stop that but if they try to form a Union we'll just let them go, if anybody tries to form a Union Petnzzo asked Donello, I [Petrizzo] guess you [Don ello] really like the Union pretty much " Donello ac knowledged to Petrizzo his union support Then, Pe tnzzo asked, ' if the Union president's job was ever of fered to you at your local would you take it Donello said yes The auction of the MCP property was held on Janu ary 14 1987 Donello, Marsilio, and Union Business Agent Gerald Dankulich attended the auction 14 At the time they congratulated Petrizzo on being the successful bidder Petrizzo then asked Donello if he wanted a secu rity guard job there Donello said yes Petrizzo respond ed, Let me get back to you Petrizzo, however did not get back to Donello 15 Shortly thereafter, Donello was informed that Respondents had advertised in the local newspaper for job applicants Donello, together with some 25 other MCP employees went down to the plant and filled out job applications Counsel for Respondents asserted that Donello was not hired by Respondents Ross and AJR because he had improperly taken certain documents or property from the MCP facility after MCP went out of business (Tr 437-438) Donello explained that some time between Christmas and New Years Day he had removed from the plant inter alia an old auction list He testified I went into my locker [at the plant] We went to see the security guard Me and Dave Marsilio went to see the security guard and we told him we had to get stuff out of our locker So he [the guard] followed us in Dave went to his locker and I went to the other In my locker were a stack of papers I took the papers out of my locker [and] rolled them up I put the papers in my pocket I was going to walk towards the office 14 See also the testimony of Union Business Agent Gerald Dankulich is Donello noted that previously Petrizzo had asked if Donello had the MCP employees telephone numbers Petnzzo wanted to start five or six employees in a week and in the meantime Donello could take a security guard job there 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He [the guard] asked what these papers were and I told him they were my papers He wanted to look and I showed him He said I can t take them out The papers included a seniority list, the union contract and an old auction list The guard directed Donello to the bank representative on the premises The bank repre sentative agreed that Donello could take the contract and seniority list, the bank kept the auction paper Don ello further recalled having received permission to remove a bread rack and microwave oven This property belonged to Donello or the Union 16 On cross examination Donello explained that he had called Petrizzo between Christmas and New Year s Day because people were getting rumors that they [Re spondents] weren t going to kept the Union guys and Donello after talking to Petrizzo related to his former MCP coemployees that Petrizzo said he was going to keep the guys' - he wanted the Union out and that was it Donello also explained that the microwave oven had in fact been removed from the plant when it shut down on December 24- all the Union guys were there and they said you better take the microwave before some body steals this-they unbolted it Later, when Donello went back to the plant for his papers and clothes the se curity guard was present- he followed me all over David Marsilio was employed by MCP until Decem ber 24 1986 He was a relief man able to perform all the jobs on the production line fie was also shop stew and for the Union Marsilio recalled the operations at MCP as including, inter alga rebar coating, storing steel sequencing, sandblasting coal tar coating wire mesh coating and doing beams and fabrication pieces On Jan uary 21 1987 he applied in writing for employment with Respondent Ross There were some 25 or 30 other MCP employees who also had applied at the time 17 An auction of the MCP assets was held on January 14 1987 and the assets of MCP were then sold Marsiho Donello and other MCP union employees attended Union Business Agent Gerald Dankulich was also present Marsilio observed Respondents president Pe trizzo present Business Agent Dankulich briefly spoke to Petrizzo asking Why hasn t he [Petrizzo] been in touch with us we could work this labor deal out and Petrizzo said he would get in touch with us Pe trizzo was aware at the time that Marsilio was the union shop steward Marsilio recalled After the auction was over I congratulated him [Petrizzo] on acquiring the Company He said the Bank was pulling all security guards and he would need security guards He said it would be five days to a week before he could get all the paperwork and have the plant op 16 Donello acknowledged that he also had taken his old work clothes and shoes with him 17 See C P Exh 2 containing job applications of former MCP em ployees There are some 60 job applications and some 50 of the applica tions are from former MCP employees Marsilio identified a number of former MCP employees named in C P Exh 2 whom he had observed present making applications for employment with AJR and Ross erating and would [we] be interested in being secu rity guards Me and Donello responded yes He said, do you have the names and phone numbers of the other employees do you think the bargain mg unit would be interested in being security guards until we got things operating? We said sure He said he d talk to us in an hour Later Vice President Ferrer took names and telephone numbers of former MCP employees-Ferrer apprised the employees that Petrizzo would be in touch with us Petrizzo never contacted the employees about those jobs 18 Michael Ahn was formerly employed by MCP for over 13 years until December 24, 1986 He worked as a laborer painter, and crane operator He recalled storing at MCP s premises structural steel, which was not paint ed or coated He was represented by the Union He was head shop steward for one term He knows and was closely associated with Donald Donello, the Union s head shop steward He applied for work with Respond ents on January 21 1987 He was not hired He went back to the MCP premises once at the auction and once to make application for a job and one other time to get a low earnings slip for unemployment compensation purposes Counsel for Respondents denied that Respondents Ross and AJR are a single employer as alleged Ronnie Ferrer, however testified in this proceeding that he is vice president of both Respondents Ross and AJR it s all the same company Thomas Coyne is also vice presi dent at Ross in [Keasbey] New Jersey and at the [AJR] Bath facility , both he, Ferrer, and Coyne did the hiring of employees for the Bath plant he Ferrer is now in charge of the Bath operation and paychecks for Bath employees and their personnel records are pre pared or kept at Ross Keasbey facility Ferrer at one point in his testimony claimed that some 15 to 20 former MCP employees had applied for jobs at Bath in 1987 In his prehearing affidavit he had claimed that only some 10 former MCP employees had applied for such jobs Later he acknowledged in his tes timony that some 30 or 40 former MCP employees in fact had applied for work at Bath Ferrer initially identi fled General Counsels Exhibit 2 as a list of the some 21 persons employed by Respondents at Bath from January 22 to March 23 1987 As discussed below the only former MCP production and maintenance employees on that list are the first eight persons who were assertedly hired as supervisors or working supervisors Ferrer claimed that employment and performance with MCP [were] a factor [which he] took into account when [he] hired these people However in his prehear 18 On cross examination counsel for Respondents asserted (Tr 129) that Marsilio also had been found on the [MCP ] property attempting to secrete records of the Company off the property after the plant had closed Marsllio explained on cross examination (Tr 129-133) and on re direct examination (Tr 136) how he and Donello had entered the Bath premises to inter alia retrieve personal property and to speak with the persons conducting the auction Donello was only allowed to take some of the papers that he had in his possession On rebuttal Marsilio ex plained that it was Donello who had an old auction list (Tr 840 842) A J R COATING CORP ing affidavit he had asserted that prior employment with MCP was not a factor except for some of the positions he intended to continue in the coating oper ation Further Ferrer identified Respondents Exhibit 4 as the list of AJR s employees at Bath from January 22 through July 22 1987 He insisted that the first eight in dividuals hired, as shown on Respondents Exhibit 4, are supervisors Elsewhere, he acknowledged that Gen eral Counsels Exhibit 2, also provided by Ferrer, does not list Kerbacher (one of the first eight) as a supervisor, Ferrer claimed that I did that in a rush and Kerbacher is not maintenance as shown on General Counsels Ex hibit 2, but is instead supervisor of maintenance Ferrer next claimed that, inter alia, Snell s testimony summanzed above concerning a sequencing job at Bath in 1981, was not true and, further, that Snell s and other witnesses descriptions of sequencing work performed at Bath before AJR or Ross took over are also incorrect Ferrer described sequencing, now performed by Ross or AJR, as involving large quantities of fabricated steel for such constructions as a highnse building, the steel is sent to the Bath facility for separation and storage, so when they [the customers] call from the job for particular pieces or sections or floors of this stored steel, that s the only pieces they re going to get Ferrer (referring to R Exh 4) noted that about five or six employees are desig nated there as warehouse personnel, their main function is warehousing which is in effect the so called sequenc ing work and no former MCP employees were hired for this sequencing or warehousing work Ferrer insisted that no former MCP employees would fit into this se quencing category Elsewhere in his testimony, Ferrer acknowledged how AJR or Ross has changed job assign ments of its various employees Ferrer also acknowl edged that sequencing a lot of that involves loading and unloading and involves a lot of storage of steel the forklift is the only equipment involved in this se quencing operation Ferrer, at one point in his testimony acknowledged that Snell had recommended that he hire Kerbacher Kemmerer Lewis, Dornbach, Boyko Pearn and Ahn shortly after the January 1987 takeover of operations at Bath (See G C Exh 2) He also acknowledged that while at the Bath facility as far as I knew [Snell] was going to be the plant manager McDade whose testi mony is discussed above was also under consideration for or had been offered employment at Bath Elsewhere Ferrer asserted that Snell was under investigation for being involved in taking material that didn t belong to him and Ferrer assertedly learned of that back all through the time I was at MCP from October through December 1986 Ferrer however, never confronted Snell or discussed these rumors with him Further, Ferrer also claimed that McDade s name was also mentioned in connection with the allegation of [stolen] MCP proper ty despite the fact that McDade was apparently consid ered for or offered a job there by Ross or AJR In addi tion Ferrer was asked again when he first heard rumors that Snell had been committing some kind of impropri ety Ferrer responded, "back in November However Ferrer, in his prehearing affidavit, claimed that Snell had recommended six former MCP employees for hire and 157 we hired them and Then we learned of Snell s in volvement in theft of building products from MCP Ferrer in his affidavit also had claimed that Snell was confronted and gave no adequate explanation Ferrer in his testimony, insisted that when Respond ents hired the so called working supervisors about Janu ary 21 he had instructed them that they were supposed to act as supervisors Elsewhere, Ferrer recalled that in March he had called a meeting of these persons because the men were not doing what they were supposed to be doing as supervisors Further Ferrer next recalled that he caused a form statement to be prepared for copying by these so called supervisors 19 Ferrer claimed that the supervisors asked me if I would prepare something to that effect And, Ferrer asserted, as for the two supervi sors who refused to sign such statements (Dornbach and Boyko), he assured them that they would not be fired- I put them at peace Ferrer next testified with respect to AJR s or Ross failure to hire Donello, Marsilio, and Ahn Ferrer was asked about the auction sale in January and the testimo ny of Donello and Marsilio with respect to being offered security jobs there by Petrizzo Ferrer did not believe he was present Elsewhere, Ferrer acknowledged telling Donello and Marsilio that day that Petrizzo was busy and there was no sense for them to wait any longer Ferrer elsewhere in his testimony claimed that Donello and Marsilio were not hired because we got a report from the security that they were involved in taking something out of the plant when the plant was closed (Cf R Exh 5 )20 However Ferrer acknowledged that he had first received this report 5 or 6 weeks ago Ferrer insisted that Marsilio was not hired for the same reason Later, Ferrer claimed that he had been informed of the above misconduct earlier but I just kept it to myself In addition, Ferrer admitted stating that Donello had not been hired because he in fact could not do the type of work we needed Further Ferrer denied Snell s testimony to the effect that he would not hire Ahn because Ahn was too close to Donello Ferrer insisted that he had said to Snell that the position was already filled Elsewhere Ferrer ac knowledged stating in his preheanng affidavit that We decided not to hire Ahn because of his limited qualifica tions and Mr Snell s alleged conduct However, Ferrer could not say that Ahn was or was not involved in the allegation of thievery Further Ferrer denied or at tempted to contradict various other testimony detailed above He claimed, inter alia that Petrizzo didn t care one way or the other whether the employees were rep resented by the Union And Ferrer although insisting that welders hired by the Employer be certified ac knowledged that he did not attempt to find out whether any of MCP s welders were certified Thomas Petrizzo testified that he is president and chairman of the board for both Respondent AJR and Re spondent Ross Ross was a customer of MCP before 19 See R Exh 6 where six persons (Atwood Lewis Pearn Ker bacher Bnetfeller and Kemmerer) signed statements stating in effect that they want union representation 20 This report R Exh 5 is discussed below 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD MCP ceased operations on December 24, 1986, AJR Coating Division was specifically created by [him] to purchase the [MCP] facilities at Bath AJR had ac quired the lands, buildings , machinery and equipment of MCP s [Bath] facilities at an auction held on January 14 1987 ', AJR then leased the facilities to Ross Ross controls the coating operation at Bath , Ross uses that facility to meet the needs of Logistics by the end of January or the beginning of February 1987, the Bath fa cilities started operation, and certain managerial person nel from MCP were retained by Petrizzo for his oper ation at Bath, including Rich Harris and Larry Rappa Petrizzo personally bid for the property at the January 14 auction and thereafter assigned [his] interest to that corporation, AJR Petrizzo initially was apposed of the availability of this MCP property by Horizon Bank about September 1986 He attempted to make a stock purchase He sent out Ron Ferrer and Tom Coyne just to oversee the oper ation and to see what the problems were He or Ross then owed MCP moneys and these funds were used to keep MCP working 21 Initially, it was presented to Petrizzo that he could take over the Company [MCP] for approximately $2 million However he later discov ered, inter alia additional obligations including golden parachute contracts , additional indebtedness pending litigation, and ingress and egress problems In December, he notified the Bank I was going to leave the deal ' The Bank foreclosed on its mortgage and Petrizzo acquired the same property on January 14 1987, at the auction sale for about $ 1 9 million Petrizzo testified that Ross business at Keasbey New Jersey, relates to warehousing fabrication, fabrication of rebars, sequencing chalking and we also sell steel There is also a trucking operation there He asserted I was going to put our facilities that we have in Keasbey and join them out there in Bath Pennsylvania that is what we planned on bringing out to Bath He noted that we have seven trucks out there now in Bath He did this within the past month or so, month and a half ago He claimed We plan to probably have 20 trucks rolling out there if this operation continues He envi sioned [that] the operation [at Bath] would be sequenc ing trucking, warehousing, welding and coating prob ably 20 percent across the board for all operations He asserted that sequencing, trucking, and welding oper ations were previously not performed at Bath However as he testified I had never been at the plant and they did a little welding He also acknowledged that there is a lot of loading and unloading of steel done in con nection with sequencing and the engineers of the cus tourers and the designers of the customers dictate what items [of steel] are to be numbered and when they are to be delivered under sequencing In short there is a lot of work for loaders and unloaders and laborers in connection with that work in the future He added Perhaps we may put up another building and do the 21 Petrizzo acknowledged that during the last 3 months of MCP s op eratlons when Ferrer was at Bath he also had Ross equipment there including pay loaders forklifts things that we thought helped MCP do better welding in Bath , in connection with other contemplated operations however, that s all speculative at this point 22 In addition, although Petrizzo did not acquire MCP s customer list at the auction , there was no difficulty in finding out who Bath s customers were , it was rather easy after we hired Ed Gleason , Gleason had worked there previously for 18 years , we hired him and he went out and solicited the customers , AJR was there fore dealing with essentially the same customers as MCP dealt with before or some of them Petrizzo added if we perform the way we are now, I think we 11 have them all '- that s why we hired Gleason Else where Petrizzo acknowledged that he had stated that he, or AJR, was able to keep most of MCP s custom ers' Petrizzo further acknowledged that, although he initially had in mind buying out the assets from MCP, his purchase through auction did not in any material way change the type of use for which [he] intended to put this operation Petrizzo next testified that he did not invite Donello to his office for a meeting He wanted McKeever there and Donello came with McKeever Petrizzo admittedly met with both Donello and McKeever during early January 1987 He could not remember everything we dis cussed Petrizzo next recalled speaking to the MCP em ployees at the Bath plant on two occasions before the auction He told them on one occasion that their jobs would be there as long as the business was there and they would continue working He told them later that our deal fell through Petrizzo asserted that at the auc tion he asked both Donello and Marsilio if they wanted to take over the guard service and they said no He denied, inter alia various coercive , unlawful or related statements and conduct as alleged and testified to by General Counsels witnesses Elsewhere Petrizzo asserted that he wouldn t hire [Donello] because he came in there and tried to steal papers and whatever from the office, and he took other things out of there him and Marsilio they took a microwave oven and some other things He added that hand tools were missing Petrizzo never asked Donello who in fact owned the microwave He is also unaware who if anyone took tools I didn t ask anyone He could not remember telling counsel for the General Counsel during an investigative interview that he did not hire Donello because [he] didn t think [he] needed a janitor Later he admitted I could have said that He then added I really didn t know who you [counsel for the General Counsel] are Then he asserted I didn t ask Dennis Snell either what I found out about him or McDade I didn t ask anyone He admittedly knew that Donello was MCP s union shop steward about January 2, 1987 23 22 Petrizzo was asked how long does it takes to train people to do sequencing He generally responded that it takes some weeks and they have to like it - if you misplace some steel you have to find it 23 Marcel Joven general manager and vice president of Steel Struc tures Erection Inc explained sequencing and his use of the Ross Keas bey facility Joven asserted I was told [by Ferrer] he was trying to do a [sequencing] project in Bath about 2 weeks ago Joven never visited the Bath facilities A J R COATING CORP Thomas Reardon is a vice president of Respondent Ross He identified General Counsels Exhibit 3 as the list of employees who worked at Ross Bath facility from January 21 through April 25, 1987, with related data Larry Rappa, shown on the list is a supervisor for AJR Edward Gleason shown on the list was a former sales man of MCP Barbara Fischel and Anne Vargo, shown on the list were former MCP clericals Thomas Mc Keever also shown, was a supervisor of MCP Reardon also identified General Counsels Exhibit 4 as a list of those customers which A J Ross had sold [to] since they had taken over the Bath facility Reardon also identified General Counsel's Exhibit 5 as a list of Ross' vendors or suppliers at the Bath operation Reardon further testified that payroll records, accounts payable, and accounts receivable for the Bath facility are kept at the Keasbey facility The Keasbey facility has had about 50 over the road truckdrivers, who are repre sented by the Teamsters Union The drivers from Keas bey visit Bath from time to time, however, we have es tablished a transportation division in the Bath facility where there are 6 or 8 of the same type of drivers ' The majority of Keasbey s employees are unrepresented See A J Ross Logistics, 283 NLRB 410 (1987) 24 Thomas McKeever, formerly the shipping and traffic manager and foreman at MCP and now the dispatcher and traffic manager there for AJR, recalled attending a meeting with Petrizzo and Donello during late 1986 or early 1987 McKeever vaguely recalled, inter alia that Petrizzo told us both about some of the problems that had risen McKeever was asked did Mr Petrizzo say anything about not having a Union in Bath McKeever responded No Is that all you want9 I mean, no the answer is no On cross examination, McKeever ac knowledged that unions were in fact discussed and Pe trizzo did mention that there was a committee that ex isted McKeever could not recall any discussion about forming a committee or Petrizzo promising Donello that he could serve on the committee if one was formed He denied, inter alia that Petrizzo said that he did not want a Union at the Bath facility McKeever could not recall any specifics John Plinio is a vice president of Horizon Bank He described Horizons financial dealings with MCP or its parent corporation Magnetic Head and the latter s finan cial problems which arose in 1986 The Bank tried to locate new capital or a buyer of the MCP or Magnetic Head Stock Among the prospective purchasers was A J Ross or Thomas Petrizzo A J Ross was one of the most active in trying to put a deal together that is, a stock purchase A stock purchase agreement was in fact drawn up in either August or September 1986 The agreement between Ross and MCP or Magnetic Head ul timately broke down Plinio recalled inter alia problems such as golden parachute contracts growing accounts payable and other liabilities and a problem with ingress or egress at the facility On December 24, 1986 Petrizzo 24 The Board found in A J Ross Logistics supra that the employer had violated Sec 8(a)(1) and (3) of the Act at its Keasbey plant by threatening its employees with the closing of the plant if they seek union representation and by discnminatonly discharging employees 159 announced that the deal was dead When Petrizzo told Plinio on December 24 that the deal was dead, it was assumed on my [Plinio s] part that he [Petrizzo] would still be interested if he was able to secure the Company in a different fashion because he wanted that facility Consequently Plinio and his bank negotiated with [Pe trizzo] that if [Petrizzo] was to purchase the property Horizon Bank would possibly be willing to finance this acquisition Ultimately, we had negotiated with Ross where their minimum bid [at the auction] was $1 5 million and that bid was reduced to writing Other bid ders later attended the auction Petrizzo raised his bid at the auction to $1 6 million One other party bid against Petrizzo Petrizzo prevailed at about $1 9 million Plinio next recalled that Wells Fargo had been re tamed to secure the Bath facility pending the auction Security guard Dale Oswald had called [Plinio] and said a former employee was trying to take records from the premises He then instructed the guard that unless it s personal possessions they weren t authorized to remove anything from the premises Plinio at one point in his testimony, did not recall the individual or individ uals involved However he did meet Donello and Marsi lio They were trying to ascertain exactly what was transpiring and submitted to me a resume for the Union [showing] a trained group of people available, and [they] would appreciate if the facility is sold that this resume be passed along to any interested parties which we did Plinio, added they, Donello and Marsilio, also had re quested some employee records and Plinio couldn t let any records leave the premises Plinio also had a vague recollection that some persons had an old auction list from the Hackensack facility Such a list was sort of a public record -it was not confidential and no critical or necessary documents were called to his attention Plinio never saw Respondents Exhibit 5 the Wells Fargo report concerning this incident This report is dis cussed below Dale Oswald is a security guard with Wells Fargo Oswald recalled an incident at the MCP property before the auction assertedly involving Donello and Marsilio Donello and Marsilio according to Oswald came to get their property out of their lockers he escorted them, they wanted to take some Company issued stuff and I wouldn t allow them , they came outside, and he later noticed Marsilio coming out of the building with out escort Marsilio explained to Oswald that he had in his jacket papers that I forgot Oswald took Marsilio to the office The bank representative present refused to allow Marsilio to take the papers They were apparently appraisal papers Oswald then referred in his testimony to his undated serious incident report (R Exh 5) Oswald assertedly had filled out such a report on this in cident he does not have the original report and does not know where it is he was instructed to fill out a new report some 6 or 7 months later, he was not exactly sure of the names and apparently corrected or crossed out a name on the report Elsewhere, Oswald recalled that he 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had scratched out the name DeMeho on Respondent s Exhibit 5 and wrote in Marsilio He claimed that he knew that DeMilio was a mistaken name Because I was in Court and met the guy I caught the guy stealing papers Elsewhere he claimed that he became aware of his mistake because I was talking with my boss Re spondent s Exhibit 5 was prepared about 3 weeks before the injunction trial in the Federal district court 25 Thomas Coyne, Ross vice president of marketing tes tified that in 1984 MCP did mostly just coating - they coated piling and they coated rebars Coyne claimed I never saw any sequencing operations at all Later, in 1986, Coyne was sent by Petrizzo to the MCP facilities to observe operations He denied inter alia directing or supervising operations He claimed that subsequently after the auction, he asked MCP official Snell to recom mend some employees that he felt could be supervisor Snell provided seven or eight names He denied telling Snell that he could hire only a certain number of MCP employees He claimed that the initial seven or eight persons hired were told they were supervisors and their position being supervisors they would be non Union employees I would assume He acknowledged that at the time there was really nothing to supervise These seven or eight persons signed timesheets Coyne denied telling employees that he could not hire a cer tarn number of MCP employees because then you would have a Union Coyne further asserted that se quencing, as he understands it started maybe a month, a month and a half ago at Bath However, he had left the Bath facility late February early March 1987 and it wasn t going on then On cross examination, Coyne ad mitted characterizing the initial seven or eight hires at Bath as working supervisors and they principally did maintenance and repair work Coyne added we had a lot of maintenance work to do I couldn t make them su pervisors because we had no other employees Coyne also agreed that sequencing is basically storing material until it s needed and then sending out parts in a certain order Coyne testified Q Isn t that service [sequencing] given by every body that makes parts for construction, makes parts and provides [them] in a certain sequence? A Sure Larry Rappa is now a production supervisor for AJR at Bath He previously was a supervisor for MCP Rappa claimed that the initial seven or eight persons hired for AJR at Bath previously referred to as working supervi sors, were in fact supervisors and he observed them inter alia, discipline employees He added, Well more or less, it wasn t these seven or eight hires consisting in part of former MCP group leaders, exercised more con trol over operations for AJR than they had for MCP Rappa denied, inter alia telling former MCP employee Berlew that AJR was only going to hire nonunion per sonnel because Rappa claimed his telephone call with Berlew was in December 1986 or early January 1987 25 Oswald also claimed that after his testimony in court he was fol lowed and threatened by an unidentified person before AJR took over Rappa generally denied similar or related statements attributed to him Rappa claimed that he and Ferrer later met with the so called working su pervisors or initial hires to assure them that they were going to still have their jobs even though the Union came back or prevailed He claimed that this meeting took place because the working supervisors or new hires had been, in effect, threatened with loss of their jobs at union meetings, and I tried to assure them Ferrer caused a written statement to be prepared and a number of the working supervisors signed it (See R Exh 6 ) These individuals were assertedly not forced to sign no one was coerced or threatened I said, hey, its no big deal you either go in and you sign it or you don t sign it, nothing is going to happen The signed state ments as noted recite that the individuals are in effect pleased with their supervisory position and do not want union representation These persons, Rappa added, were also instructed that they were to act as supervisors- a few of them weren t really acting in that manner Rappa further recalled that he and Ferrer would review the customers demands or orders during the evening and basically plan everything out On the next morning, Rappa would then talk to the supervisors and let them know I would assign them According to Rappa, these supervisors would direct their men Rappa claimed that no sequencing was performed there within the past 5 years-the only structural steel they [MCP] had there was to be processed to be coated and that was it On cross examination Rappa acknowledged that so called working supervisors or new hires spend the great part of the time doing physical production work Reginald Lewis now works for AJR He previously worked for MCP He claimed that Coyne and Ferrer had told him that he was hired as a supervisor- to su pervise the men to train the new people, to get the work done He had been a group leader at MCP He com pared MCP and AJR as follows Now, I have to get the work done Before I showed guys what to do but I couldn t tell them what speed to do it I in responsible for the quality of work now, how long it takes I can recommend moving guys around to increase production He makes these recommendations to Ferrer or Rappa He also claimed that he has the right to discipline He was hired in January 1987 with Breitfeller Pearn, Dorn bach Kerbacher Boyko, Kemmerer and Atwood Only Lewis Pearn and Dornbach were former group leaders He never heard of sequencing before AJR took over at Bath-now they do it all full time He also claimed that the other persons hired with him in January super vise and control operations However he recalled Ferrer later getting on some of [these] supervisors because they weren t supervising He next claimed that some of these supervisors voluntarily proposed and signed Re spondents Exhibit 6 Lewis felt that [AJR] wanted him to do it sign the statement, so I did it On cross ex amination Lewis acknowledged that he was hired in January 1987 and told he was a working supervisor Management did not tell him at the time that he had the A J R COATING CORP right to hire and fire people or tell him specifically what [his] authority was as a supervisor Edward Gleason is now vice president of sales for AJR at Bath He was previously vice president of mar keting and sales at MCP until November 1985 when he was terminated by McDade and Snell He later attempt ed to purchase this business in 1986 without success He claimed that MCP did not conduct sequencing as he un derstands the term There was welding performed there in the past incidental to the coating operation The only storage was incidental to coating He explained sequenc ing at AJR as involving the receipt of steel for storage, it is put in order and ultimately delivered to the jobsite for the erector to take by hours Such steel was re ceived at Bath starting in late May 1987, after operations resumed there Gleason was asked if there were any problems that were brought to his attention about equipment or loss of equipment He cited an incident of a trailer that was as sertedly sold to a trucker by Snell or someone else in 1985 He claimed that the trailer was worth more than the price ultimately received despite the fact that it was not road worthy ' At the time he questioned the trans action and perhaps other transactions and was terminated by MCP shortly thereafter He claimed that McDade and Snell were the persons he questioned about the trail er incident He was first interviewed by Petrizzo in late February 1987 He met Coyne and Ferrer at the time He was later hired by AJR He also claimed that MCP and AJR have similar suppliers and customers because everybody that s involved in the coating business buys from those major suppliers and there are also a limited number of customers Gleason was asked if he believed that Snell engaged in any misconduct in connection with the trailer' He ex plained that he never got a chance to investigate it and was terminated shortly thereafter He claimed that he had reported this to the Ross and AJR people and this is the reason why Mr Snell is not associated presently with AJR He also considered McDade involved in the trailer incident to Petnzzo and only mentioned it to Ferrer recently He had no conversation with anybody at AJR about this incident until March 1987 He felt that the trailer was really worth more than $500 and not the $150 received It was as noted not road worthy and 8 years old 26 I credit the testimony of Snell McDade Boyko Berlew Dornbach Miller Pearn Donello Marsilio Ahn and Dankulich as detailed supra Their testimony is in substantial part mutually corroborative it is substan tiated in significant part by admissions of Respondents witnesses and it withstood the test of extensive cross ex animation In addition, relying also on demeanor, the above witnesses impressed me as forthright and candid And, on this full record I am persuaded that the testimo ny of the above witnesses, as recited supra, reflects a 26 Marsilio on rebuttal attempted to explain that Snell had filed a report that the trailer described above was stolen the police and the person involved later came to the plant with the trailer and the person involved explained that he bought this trailer from one Thomas Marker It appears that much of this explanation is hearsay and although I note it here I attach no substantive weight to the testimony 161 complete reliable and trustworthy account of the perti nent sequence of events On the other hand Petrizzo, Ferrer Reardon, McKe ever Coyne, Rappa Lewis Gleason and Jovin did not impress me as reliable or trustworthy witnesses Their testimony was at times as demonstrated above vague, incomplete, unclear, evasive and contradictory Thus, for example I find incredible here the contradictory as sertions to the effect that Donello and Marsilio were not hired by Respondents because they had engaged in mis conduct These and related assertions as discussed below are both incredible and plainly pretextual I find equally incredible the assertions to the effect that McDade and Snell also had engaged in some sort of mis conduct when they were MCP officials The record does not support these and related assertions I regard Glea son in this respect to be a biased and unreliable witness He admittedly considered McDade and Snell responsible for his 1985 termination I also find incredible the as sertions that the first eight persons hired by Respondents were supervisors The credible evidence of record, dis cussed below, makes it clear here that these persons were simply given this title or label as part and parcel of Respondents discriminatory and unlawful scheme to avoid hiring MCP employees and avoid bargaining with the Union 27 In sum insofar as the testimony of Pe trizzo, Ferrer, Reardon, McKeever, Coyne, Rappa, Lewis, Gleason, Jovin Plinio and Oswald conflicts with the testimony of Snell McDade, Boyko, Berlew Dorn bach, Miller, Pearn, Donello Marsilio Ahn and Danku lich, I find the testimony of the latter witnesses to be more trustworthy and reliable 28 Discussion A Ross and AJR are a Single Employer It is now settled law that the National Labor Relations Board, in determining the relevant employer under the National Labor Relations Act, considers several nomi nally separate entities to be a single employer where they comprise an integrated enterprise ' The controlling cri teria are interrelation of operations common man agement centralized control of labor relations and common ownership See Radio Union Local 1264 v Broadcast Service, 380 US 255 (1965) The essentially undisputed and credited evidence of record in the instant case more than adequately shows that Respondents Ross and AJR are an integrated enterprise and single employ er under the foregoing criteria Thus Thomas Petrizzo is president and board chair man of both Ross and AJR Ross was a principal cus 27 I find Plinio s testimony concerning the bank s role in this scenario to be generally reliable However his recollection of the alleged incident involving Donello and Marsilio was at best vague and unclear In any event Plinio acknowledged that he never saw the so called Wells Fargo report involving Donello and Marsilio (R Exh 5) and further the old auction list which apparently is the subject of this incident was not a critical or necessary document to the band or MCP or Respondents As for Oswald s recollection of this incident as demonstrated above his tes timony was vague unclear and contradictory 28 The General Counsel s motion to correct the record which is unop posed is granted 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tomer of MCP before MCP ceased operations at Bath Pennsylvania, on December 24, 1986 As Petrizzo ac knowledged, AJR was specifically created by [him] to purchase the [MCP] facilities at Bath, AJR then leased the facilities to Ross, Ross controls the coating oper ation" at the former MCP facilities, Ross uses [the former MCP] facilities to meet [its] needs , and Petrizzo, at the January 14, 1987 auction sale of the MCP proper ty, personally bid for the property and thereafter as signed [his] interest to ' his newly created AJR Ronnie Ferrer is vice president of both Ross and AJR As Ferrer acknowledged, ' it s all the same company Thomas Covne is also vice president at Ross in New Jersey and at the [Bath] facilities both Ferrer and Coyne did the hiring of employees for the newly ac quired facilities, Ferrer is in charge of the newly ac quired facilities, paychecks for the Bath employees are prepared at Ross plant in Keasbey, New Jersey and personnel records for the Bath employees are also kept at the Keasbey plant Further, Thomas Coyne, vice president of marketing for Ross, acknowledged how he and Ferrer were sent by Petrizzo to the MCP facilities before the January 1987 auction sale and how he thereaf ter participated in the hiring of the first seven or eight employees there Moreover, as the credited evidence of record shows, Petrizzo Ferrer and Coyne fully partici pated in the unfair labor practices discussed below Under the circumstances, I find Ross and AJR to be an integrated business enterprise with common owner ship common management interrelation of operations and centalized control of labor relations Ross and AJR therefore are a single employer B The Employer Opposes Union Representation at the Bath Facilities and Resorts to Proscribed Interference Restraint and Coercion in Violation of Section 8(a)(1) of the Act Section 7 of the Act guarantees employees the right to self organization to form, join or assist labor organs zations to bargain collectively through representatives of their own choosing and to engage in other concerted ac tivities for the purpose of collective bargaining or other mutual aid or protection as well as the right to refrain from any or all such activities Section 8(a)(1) makes it an unfair labor practice to interfere with restrain or coerce employees in the exercise of their Section 7 rights The credited evidence of record as recited supra, makes it clear that the Employer opposed union repre sentation at its facilities and engaged in a course of con duct at Bath that plainly tended to impinge on employee Section 7 rights The Board, in A J Ross Logistics 283 NLRB 410 (1987) found that the Employer at its Keasbey New Jersey facilities violated Section 8(a)(1) and (3) of the Act by threatening its employees with the closing of its Keasbey plant if they sought union representation and by discriminatorily discharging two employees because of their union activities Thomas Petrizzo, president and board chairman of both Ross at Keasbey and AJR at Bath, and Ronnie Ferrer vice president of both entities and described as Petrizzo s chief assistant, fully partici pated in these unfair labor practices Thus, Ferrer threat ened the employees and the unlawful discharges came immediately on the heels of the union activity they were effectuated in an unprecedented manner by Petrizzo himself As demonstrated below, the Em ployer engaged in similar conduct at the Bath, Pennsyl vania facilities MCP and the Union had been parties to collective bar gaining agreements for many years covering the produc tion and maintenance employees at the Bath facilities The most recent contract was effective from April 1, 1985, until March 31, 1988 Donald Donello was the Union s chief shop steward or chairman at the plant Donello had worked in the plant for some 10 years in basically every job Donello and his coworkers were aware that Petrizzo had made an offer to purchase the MCP business Petrizzo had spoken to the assembled MCP employees about this pending transaction Howev er, on December 24, 1986, the sale fell through and Pe trizzo thereafter acquired the property on January 14, 1987 at an auction sale Donello credibly testified that, when he first heard that the MCP plant had ceased oper ations on December 24, he telephoned Petrizzo to find out what was going on Petrizzo then assured Donello that the employees Shouldn t worry all the guys still have their jobs and the auction to be held on Janu ary 14 was one of the ways [Petrizzo] had to purchase the facilities However, as Donello further credibly re called, the people were getting rumors that [Respond ents] weren t going to keep the Union guys and, conse quently Donello again called Petrizzo pending the auc tion for more assurances Again Petrizzo said to Donello, don t worry, the guys still have their jobs but, Petrizzo added the Union is definitely out from now on [the employees] were going to have to play by his rules Shortly thereafter on January 2, Donello met with Pe trizzo Petrizzo then made clear to Donello, The Union is definitely out [Petrizzo] wasn t even going to keep all the former MCP employees [Donello was] to be one of the employees we re going to keep Pe trizzo informed Donello that he didn t like Unions Donello can still represent the men just like [Donello] did when [he was] in the Union Donello can form a committee any time they have a problem [they] can discuss it with Petrizzo we can represent the men on a committee we don t have to have a Union Pe trizzo pointedly warned Donello that if they try to form a Union we 11 [Respondents] Just let them go Pe trizzo at the same time, questioned Donello whether the employee really like[s] the Union and would he in fact take the union presidents job if ordered Donello ac knowledged to Petrizzo his union support Donello was not hired by the Employer following the auction even though the Employer had advertised in the local newspaper for job applications Likewise David Marsilio, a relief man with MCP able to perform all the jobs on the production line and also a union shop stew and was not hired Further according to the credible testimony of MCP Plant Manager and Officer Dennis Snell Ross vice president Thomas Coyne refused, in like vein, to hire former MCP employee Michael Ahn because Ahn was too close to Chief Union Steward A J R COATING CORP Donello Indeed, as discussed below, the Employer in stead embarked on a discriminatory hiring scheme to not hire former MCP employees in an attempt to avoid bar gaining with the Union MCP Plant Manager and Officer Snell credibly re called that Ross Vice President Coyne had requested Snell, shortly after the auction sale, to recommend seven or eight former MCP employees to work for AJR Snell asked, "Why only seven or eight people, and Coyne re vealed `that s what our attorney told us if we hire any more than that we re in jeopardy of getting the Union back and we don t want the Union MCP Presi dent Joseph McDade also credibly recalled how he and Petrizzo discussed this subject matter, that is, if the Em ployer hired too many MCP employees it would have to negotiate with' the Union Petrizzo abruptly ended this discussion by stating the he was getting very good legal advice on the matter The Employer thereupon hired eight former MCP unit employees 29 Former MCP employee Joseph Boyko cre dibly recalled how Vice President Coyne told this group that they were working supervisors and that it would be strictly a nonunion shop because the Union cost money Boyko, however, explained that there was no difference in his job performance and he still spends 99 percent of his time on production work and 1 percent on cleaning up Former MCP employees James Dornbach and Robert Pearn credibly testified to the same effect And, Vice President Coyne acknowledged that at the time there was really nothing to supervise However after unfair labor practice charges were filed in this case, management prepared a statement for these eight employees to copy and sign, stating that they are supervisory, they are pleased with [their] present position, and they do not wish to have any union rep resentation (See R Exh 6) Employee Boyko credibly recalled that Supervisor Larry Rappa instructed him that he was supposed to go to the office to sign a paper Boyko, informed of the contents of this paper refused He explained I don t feel its right I don t like being stuck in the middle the Union was still fighting for the guys jobs and their money Vice President Ferrer informed of this warned Boyko that if he Ferrer would call up anybody else and tell them that [Boyko] am t with [Respondents] no longer that any one of them would take [his] job Dornbach also refused to sign such a paper Ferrer then warned Dornbach that any one of those guys would take [Dornbach s] place Dornbach later asked Ferrer, could I get fired over this Ferrer said that he personally would not fire Dorn bach but he has a boss too and he did not know what the boss would do (See also the credible testimony of em ployee Pearn ) Former MCP employee Keith Berlew credibly testi feed that Petrizzo, before the auction, had told the assem bled MCP employees that he was going to make sure that we all had jobs we weren t going to lose our jobs he was going to take over and we d all be keeping our jobs working together Berlew had worked 29 Kerbacher Lewis Dornbach Boyko Pearn Kemmerer Breitfeller and Atwood See G C Exhs 2 and 3 and R Exhs I and 4 163 over 11 years for MCP in a variety of job assignments He filed a job application with the Employer after the auction He was not hired He telephoned Supervisor Rappa and the two discussed why former MCP people aren't being hired Rappa explained to the employees that hiring nonunion people would be cheaper and would keep the Union out also Former MCP employee Richard Miller similarly recalled how Supervisor Rappa told him that they had to hire so many nonunion work ers before they call any more union workers back Respondent Employers conduct summarized above, clearly tended to impinge on employee Section 7 rights, in violation of Section 8(a)(1) of the Act In sum, Re spondent Employer had admonished former MCP em ployees and job applicants that they would have to play by its rules and there would be no union representation there solicited employees to form a committee instead of the Union to represent the employees, threatened to ter minate any employee who sought to be represented by the Union, instructed job applicants that the plant was going to be nonunion because it would be too costly to have a Union, informed job applicants that nonunion em ployees would have to be hired there before any former MCP employees could be hired, and solicited employees to sign statements stating that they did not want a union and threatened that employees who did not sign such statements might lose their jobs Such threatening and coercive conduct runs afoul of the protections afforded by the Act The Employer argues inter alia that the first eight persons hired in January 1987 were supervisors and con sequently, are beyond the protection of the Act This as sertion is contrary to the controlling principles of law and as demonstrated, the credible evidence of record A supervisor is defined in Section 2(11) of the Act as any individual having authority in the interest of the employer, to hire transfer suspend lay off, recall promote, discharge assign reward, or disci pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment Actual existence of true supervisory power is to be dis tinguished from abstract theoretical or rule book au thority It is well settled that a rank and file employee cannot be transformed into a supervisor merely by in vesting him or her with a title and theoretical power to perform one or more of the enumerated functions NLRB v Southern Bleachery & Print Works 257 F 2d 235 239 (4th Cir 1958) cert denied 359 U S 911 (1959) What is relevant is the actual authority possessed and not the conclusory assertions of witnesses And while the enumerated powers listed in Section 2(11) of the Act are to be read in the disjunctive Section 2( 11) also states the requirement of independence of judgment in the con junctive with what goes before Poultry Enterprises v NLRB, 216 F 2d 798 802 (5th Cir 1954) Thus the indi vidual must consistently display true independent judg 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment in performing one of the functions in Section 2(11) of the Act The exercise of some supervisory tasks in a merely routine, clerical, perfunctory or sporadic manner does not elevate a rank and file employee into the super visory ranks NLRB v Security Guard Service, 384 F 2d 143, 146-149 (5th Cir 1967) Nor will the existence of in dependent judgment alone suffice, for the decisive ques tion is whether [the individual involved has] been found to possess authority to use [his or her] independent judg ment with respect to the exercise [by him or her] of some one or more of the specific authorities listed in Sec tion 2(11) of the Act See NLRB v Brown & Sharpe Mfg Co, 169 F2d 331 334 (1st Cir 1948) In short some kinship to management, some empathetic relation ship between employer and employee, must exist before the latter becomes a supervisor for the former NLRB v Security Guard Service 384 F 2d at 149 In the instant case Boyko, Dornbach, and Pearn credi bly testified that the so called working supervisors were hired in a group, they were not told what their authority was they spend virtually 100 percent of their time doing production work and cleaning up, they have never hired promoted discharged, laid off, or disciplined employees or adjusted the grievances of employees Ferrer and Rappa are in fact responsible for the assignment of work, and, as Vice President Coyne admitted, there was really nothing to supervise and Coyne couldn t make them supervisors because we had no other employees Fur ther, Supervisor Rappa acknowledged that he and Vice President Ferrer would review the customers demands or orders and basically plan everything out Rappa then would assign this work to his so called working su pervisors Significantly if these 8 working supervisors were in fact supervisors as alleged, as of March 23 1987, the Employer would have had Ferrer, Rappa and 8 ad ditional supervisors directing some 13 remaining employ ees The Employers schedule of employees as of April 25 1987 (G C Exh 3), similarly shows Rappa and the 8 so called working supervisors and about 14 production and maintenance employees These are to say the least, unusually high supervisor to employee ratios In sum I reject Respondent Employers assertion that the working supervisors are supervisors under Section 2(11) of the Act They do not have the authority to hire transfer suspend lay off, recall, promote discharge assign reward or discipline other employees or to re sponsibly direct them or to adjust their grievances, or to effectively recommend such action, moreover, the exer cise of any such authority by them is at best of a merely routine or clerical nature and requires no independent judgment The title of supervisor is without more insuf ficient The credible testimony of Boyko Dornbach, and Pearn shows that these so called working supervisors were really group leaders serving as mere conduits for management and not supervisors, and there was no kin ship to management or emphathetic relationship be tween an employer and employee NLRB v Security Guard Service, supra Management labeled these hires su pervisors as part of its attempt to avoid bargaining with the Union The Employer has therefore violated Section 8(a)(1) of the Act as alleged C The Employer Resorts to Proscribed Discrimination in Violation of Section 8(a)(3) and (1) of the Act Section 8(a)(3) of the Act forbids discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization An employer who refuses to hire a predecessors employees as part of a discriminatory scheme or plan to avoid bargaining with a union clearly runs afoul of this provision See Shortway Suburban Lines, 286 NLRB 323 (1987) The credible evi dence of record in the instant case establishes that Re spondent Employer engaged in such a discriminatory hiring policy or practice by refusing to employ at the Bath facilities former MCP production and maintenance employees in order to avoid recognizing and bargaining with the Union The Union had represented MCP s production and maintenance employees at Bath for a number of years The most recent collective bargaining agreement, run ning from April 1 1985, to March 31, 1988, contained union security and dues checkoff provisions Respondent Employer, as demonstrated above, was strongly opposed to the union representation of its employees President Petrizzo was also well aware of the consequences of hiring too many of MCP s former production and main tenance employees The Employer, under such circum stances, would have to negotiate with the Union As Petrizzo explained to former MCP official McDade, he was getting very good legal advice on the matter And, Vice President Coyne therefore asked MCP official Snell to recommend only seven or eight former MCP employ ees during the resumption of operations because that s what our attorneys told us if we hire any more than that we re in jeopardy of getting the Union back and we don t want the Union In like vein, Supervisor Rappa told former MCP employees who applied for work with Respondent Employer hiring non Union people would be a lot cheaper and keep the Union out also the Em ployer had to hire so many non Union workers before they call any more Union workers back However Respondent Employer wanted to resume operations at Bath as soon as possible following the Jan uary 14 auction sale Consequently the Employer hired eight former MCP unit employees And in an attempt to avoid bargaining with the Union the Employer labeled these eight employees as supervisors As demonstrated above these eight employees had no one to supervise and in fact continued to perform their same production and maintenance duties Managements attempts to label these eight employees as supervisors and to have them sign written statements to that effect were plainly part of this discriminatory scheme The credited evidence of record further demonstrates that MCP employed at Bath some 50 production and maintenance employees prior to cessation of its oper ations These employees as detailed above, possessed a variety of the skills necessary for Respondent Employer to fulfill its production and maintenance requirements at Bath And about 50 former MCP employees responding to the Employers newspaper advertisement for job ap A J R COATING CORP plications promptly filed such applications Of the 21 persons listed on General Counsels Exhibit 2 (covering personnel at the plant from January 22 through March 23 1987) and of the 28 persons listed on General Coun sel s Exhibit 3 (covering personnel from January 21 through April 25, 1987), none of the listed production and maintenance employees were former MCP employ ees Respondents Exhibit 4, which is a later list of per sonnel at Bath from January 22 through July 22, 1987, shows some 25 or 26 production and maintenance em ployees and, as the General Counsel notes in his brief (p 56), only about 4 of them, hired in late June are former MCP employees I find and conclude on this record that Respondent Employer engaged in a discriminatory hiring scheme to avoid hiring MCP s production and maintenance employ ees and thus avoid recognizing and bargaining with the Union, in violation of Section 8(a)(3) and (1) of the Act Donello Marsilio, and Ahn were not hired by Re spondent Employer as part of this discriminatory scheme The General Counsel argues that they were also unlawfully discriminated against on an individual basis (Br 58) I agree Donello and Marsilio were the chief union representatives at Bath President Petrizzo was aware of their role in the Union early in this sequence Donello as spokesman for the MCP production and maintenance employees, repeatedly telephoned Petrizzo concerning the pending sale On January 2 before the sale Donello met with Petrizzo Petrizzo then made clear to Donello that the Union is definitely out , he wasn t even going to keep all the former MCP employ ees Donello, however was to be one of the employ ees we re going to keep ' Petrizzo then warned Donello that if the employees try to form a Union we 11 dust let them go Petrizzo suggested to Donello the forma tion instead of a committee and then pointedly ques tioned Donello about his union loyalties Donello how ever acknowledged to Petrizzo his strong union support Later, at the auction sale Donello and Marsilio were ob served by Petrizzo in the presence of Union Representa tive Dankulich Donello and Marsilio thereafter applied for work at Bath and despite their years of experience and variety of production and maintenance skills, they were not hired As for Ahn he too had been a union shop steward And when Snell recommended Ahn to Coyne and Ferrer Ferrer objected right away because [he] felt Ahn was too close to Mr Donello Ahn like Donello and Marsiho had worked for MCP for some 13 years and possessed a variety of production and mainte nance skills His application was rejected despite Plant Manager Snell s recommendation Counsel for Respondent Employer argues (Br 54) that there was no scheme perpetuated in order to avoid bargaining with the Union and Respondents had the prerogative to refuse employment to Messers Donello and Marsilio based on their attempted theft of appraisal papers and [b]ecause Ahn, McDade and Snell were also implicated in thefts they were not hired either The credited evidence of record is to the contrary The Employers discriminatory hiring scheme is clear Don ello and Marsilio did not engage in any attempted theft of appraisal papers Donello alone attempted to take 165 from his locker, with permission an old auction list There was nothing confidential or critical in this list Indeed, Petrizzo at one point in his testimony , claimed that he later offered Donello and Marsiho jobs and they refused Further the credible evidence of record also does not show that McDade Snell or Ahn engaged in any misconduct I find these assertions to be incredible, contradictory, unsubstantiated , and plainly pretextual The weaknesses of these assertions only serve to further bolster the strong direct and corroborative evidence of unlawful purpose I therefore reject these assertions and find instead that the Employer violated Section 8(a)(3) and (1) as alleged Moreover on this record, the Em ployer has failed to demonstrate under Wright Line, 251 NLRB 1083 1089 (1980), enfd 662 F 2d 899 (1st Cir 1981) that it would not have hired MCP s production and maintenance employees for nondiscriminatory or lawful reasons D The Employer is a Successor and Refuses to Recognize and Bargain with the Union in Violation of Section 8(a)(5) and (1) of the Act In NLRB v Jeffries Lithograph Co 752 F 2d 459 463 (9th Cir 1984) the court restated the controlling legal principles in determining whether an employer has become a successor under the National Labor Relations Act and is therefore obligated to bargain with the prede censor s union representative The court explained A successor employer is a firm which having hired most of its employees from a predecessor em ployer s workforce, conducts essentially the same business that the predecessor did When a properly recognized or Board certified union has represented the predecessors employees the law presumes that a majority of the successors employ ees support the same union This presumption places the successor employer under a duty to bar gain with the union The reason for the presumption is that a mere change in ownership without an essential change in working conditions is not likely to change employ ees attitudes toward union representation [Accordingly ] the new owner of a business is a suc censor employer if (1) the employer conducts es sentially the same business as the former employer and (2) a majority of the new employers work force are former employees or would have been former employees absent a refusal to hire because of anti union animus [Citations omitted ] The court in restating these controlling legal principles, noted that a change in the scope of a business by a new employer does not, in itself, affect a successorship deter mination the Board must weigh a number of factors and Each factor merely helps the ALJ and the Board determine whether the business is substantially the same Throughout the inquiry the touchstone re 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mains whether there was an essential change in the business that would have affected employee atti tudes toward representation [Citations omitted ] These factors include whether there has been a substan tial continuity of the same business operations the new employer uses the same plant the same or substantially the same work force is employed the same jobs exist under the same working conditions' the same supervi sors are employed , the same machinery equipment and methods of production are used and the same product is manufactured or the same service [is] of fered And, the court observed Successorship law does not focus on whether the new employer has become a bigger and better buss ness Instead the law focuses on whether business operations, as they impinge on union membership, remain essentially the same after the transfer Standing alone, the magnitude of change is irrele vant Unless the changes affect employees attitudes toward representation, they do not undermine the presumption that the old union should bargain with the new employer [Citations omitted ] In Fall River Dyeing Corp v NLRB, 482 US 27 (1987), the United States Supreme Court restated these principles of successorship, explaining that In conducting the analysis the Board keeps in mind the question whether those employees who have been retained will understandably view their job situations as unaltered This emphasis on the employees perspective furthers the Act s policy of industrial peace [Citations omitted ] And in American Press 280 NLRB 937 (1986), the Board further observed It is well established that where the other requisite elements for finding successorship are present a new owners failure to hire its predecessors em ployees will not defeat a claim of successorship if such failure is shown to have been motivated by the former employees union affiliation The credited evidence of record shows that MCP had been engaged for a number of years at its Bath plant in applying protective coatings to steel structures It also performed fabrication and welding work and stored steel for its customers Its work force included, inter alia, paint applicators laborers, crane operators forklift oper ators sand blasters and welders The total employee complement ranged from 40 to 70 persons At the time of its cessation of operations on December 24, 1986, it had a complement of about 50 employees Rappa and McKeever were supervisors The production and mainte nance personnel were represented by the Union the cur rent 1985-1988 collective bargaining contract contained union security and dues checkoff provisions MCP Plant Manager and Officer Snell President McDade, and employees Boyko Berlew, Dornbach Donello Marsilio, and Ahn credibly related the variety of duties performed by the former MCP production and maintenance employees as including both the processing and storing and sorting of steel As Snell explained, there was sequencing of steel performed there just about all of the steel that ever went out had to go out in a certain order and necessarily not the order it came in , the steel would be shipped out in a certain order at the request of the customer , that would be sequencing and there s nothing new about that at MCP In 1986 MCP and its parent corporation Magnetic Head experienced financial difficulties The Horizon Bank was threatening to foreclose on its real and person al property mortgages at Bath Respondent Employer s president Petrizzo made an offer in October to purchase the MCP or Magnetic Head stock and thus acquire own ership of the Bath facility Respondent was a primary customer of MCP Respondent, pending consummation of this transaction, sent in its Vice Presidents Coyne and Ferrer to observe and participate in the operations at Bath and to financially support purchases and repairs at the facility As Snell credibly recalled, Ferrer exercised control over which work would be performed and given priority Ferrer saw to it that Respondents work would get priority over other customers work And as McDade credibly recalled Petrizzo also directed him to call on our existing customers and explain what was going on Petrizzo announced that Ross buys MCP , and Petrizzo also spoke to MCP customers and worked out a major deal However, in late December 1986 Petrizzo decided not to buy the MCP for Magnetic Head stock, instead he negotiated with Horizon Bank to purchase the Bath real and personal property at an auction sale scheduled for January 14, 1987 Thus, as Petrizzo acknowledged, he is president and board chairman of both Ross and AJR Ross was a customer of MCP prior to December 24 1986 AJR was specifically created by [him] to purchase the [MCP] facilities at Bath Petrizzo personally bid for the MCP real and personal property at the January 14 1987 auction and thereafter assigned his interest to AJR then leased the facilities to Ross by the end of January or the beginning of February 1987, the Bath fa cilities started operation and certain managerial personnel from MCP were retained by Petrizzo for [his] operation at Bath including Rich Harris and Larry Rappa Petrizzo as he further acknowledged had thus acquired the Bath facilities for about the same price, $1 95 million which he contemplated when he made his earlier offer to purchase the MCP stock Petrizzo also acknowledged that, although he initially had in mind buying out the assets from MCP or Magnetic Head, his purchase through auction `did not in any material way change the type of use for which he intended to put his operation He was even able to keep most of MCP s customers' by hiring Edward Gleason, former MCP vice president of marketing and sales, Petrizzo anticipat ed acquiring all of MCP s customers, that s why we hired Gleason Petrizzo also hired Rappa and McKe ever former MCP supervisors and Barbara Fischel and Anne Vargo, former MCP clericals During this entire scenario Petrizzo assured the former MCP production and maintenance employees that A J R COATING CORP 167 they would all have jobs at the Bath facility MCP em ployee Berlew credibly recalled that Petrizzo told the as sembled MCP work force that he was going to make sure that we all had jobs we weren t going to lose our jobs he was going to take it [the Bath facility] over and wed all be keeping our jobs working togeth er MCP Plant Manager and Officer Snell credibly re called Petrizzo stating to the MCP employees I just want to reassure you fellows you re all going to have jobs and for right now everything is going to stay as is MCP employee Donello credibly recalled that Pe trizzo repeatedly assured him as chief union steward and chairman that all the guys have their jobs And, even after Petrizzo determined to acquire the Bath facility by auction instead of by stock sale, Petrizzo again assured Donello that everybody had their jobs, but this [the auction] was the way he had to get it Petrizzo even ac knowledged telling former MCP employees that their jobs would be there as long as the business was there and they would continue working Respondent Employer, however as demonstrated above, embarked instead on a discriminatory hiring scheme to avoid hiring MCP s production and mainte nance employees in an attempt to avoid recognizing and bargaining with the Union The Employer-anxious to resume operations at Bath as quickly as possible-initial ly hired eight former MCP production and maintenance employees commencing on January 22, 1987 As part of the scheme the Employer labeled these employees su pervisors and coercively attempted to get them to ac knowledge that they were supervisors who did not want union representation It was not until many months later after the complaint had issued in this proceeding, when MCP first hired about four former MCP employees as production and maintenance workers As noted, the former MCP unit employees had the variety of job skills necessary to perform the production and maintenance work at Bath and some 50 former MCP employees had promptly applied for available jobs The Union had re quested recognition and bargaining on January 14 and again on January 29 1987 The Employer did not hire the former MCP production and maintenance employees and refused to recognize or bargain with the Union Respondent Employer argues (Br 46-50 56) that its operations are substantially different from MCP s the Employer performs inter alia sequencing at Bath which requires much more sophisticated planning the addi tion of sequencing welding warehousing and trucking and the change in the use of the coating operation qualify as substantial and fundamental changes and this operation is substantially more involved than the mere loading and unloading of steel The credible evi dence of record is to the contrary Former MCP em ployee Boyko, and now a so called working supervisor for Respondent Employer, credibly explained that, com paring MCP s operation with Respondents operation there the two operations are basically the same there is no difference in his job performance he works at basi cally the same location with basically the same equip ment turning out the same product still loading and unloading trucks that come to the facility bringing steel either for coating or for not coating its the same work Former MCP employee Dornbach now a so called working supervisor for Respondent, also credibly explained that he still spends 100 percent of his time on the production line Supervisor Rappa still makes assign ments, the operations are just about the same they still unload steel for coating and for storage, and there are new employees doing the work that former MCP em ployees did See also the credible testimony of working Supervisor Pearn And Respondent Employers vice president Ferrer ac knowledged that sequencing involves loading and un loading of steel and the forklift is the basic or only equipment involved in the sequencing operation Presi dent Petrizzo also acknowledged that there is a lot of loading and unloading' of steel done in connection with sequencing and apparently the customers dictate what items [of steel] are to be numbered and when they are to be delivered In short, this sequencing is a lot of work for loaders and unloaders and laborers Vice President Coyne in like vein admitted that sequencing is basical ly storing material until it s needed and then sending out parts in a certain order and that service is provided by ` everybody that makes parts for construction makes parts and provides [them] in a certain sequence It is true, as above witnesses explained there is now more steel at the site for storage and additional and larger forklifts have been purchased The property has been improved Nevertheless the operators at Bath remain basically unchanged with respect to supervision, equipment and workplace, and product or services pro duced However Respondent Employer has substantially changed the wages, hours and other terms and condi tions of employment of the unit production and mainte nance personnel and refuses to recognize or bargain with their union representative In sum, Respondent Employer obtained on January 14, 1987, MCP s machinery and equipment and real property at Bath it hired MCP s former sales executive Gleason Supervisors Rappa and McKeever managerial employee Rich Harris and office clericals Fischel and Vargo, it obtained most if not all of MCP s customers and uses ba sically the same suppliers it resumed operations at the plant within a month of MCP s cessation of operations, it engages in essentially the same operation, and it appar ently drew no real distinction between its acquisition of MCP s business by auction sale instead of by a stock sale In short, here the Employer conducts essentially the same business as the former employer and as demon strated above a majority of its production and mainte nance employees would have been former MCP employ ees absent its discriminatory refusal to hire them in an attmept to avoid bargaining with the Union As for the Employers asserted changes made in the Bath oper ations I find that these changes are not substantial, they are at best improvements or changes in the scope of the new business and, as restated in Jeffries Lithograph Successorship law does not focus on whether the new employer has become a bigger and better busi ness Instead, the law focuses on whether the busi ness operations, as they impinge on union member ship remain essentially the same after the transfer' 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find here that the business operations in this respect remain essentially unchanged The storage of more steel the acquisition of more and larger forklifts, and the relat ed changes cited by Respondent are not dispositive of this issue Further the Employers addition of a limited trucking operation is of no real significance here The General Counsel and the Union acknowledge that the Union only seeks to continue representing the unit pro duction and maintenance employees Therefore, Respondent Employer is a successor, the Union repeatedly demanded recognition for the appro prate production and maintenance unit the Union s de mands clearly constitute on this record continuing de mands and there was at all times pertinent a sufficient representational complement of unit personnel (see Fall River supra), and the Employer in refusing recognition and bargaining , violated Section 8(a)(5) and (1) of the Act 30 Further, I find that Respondent Employer also violat ed Section 8(a)(5) and (1) of the Act by unilaterally changing wages, hours and other terms and conditions of employment of the production and maintenance unit employees The credible evidence of record, recited above shows that Petrizzo repeatedly assured the unit employees that they all would retain their jobs As Snell credibly recalled Petrizzo explained to the unit person nel that you re all going to have jobs and for right now everything is going to stay as is The Supreme Court, in NLRB v Burns Security Services, 406 U S 272 294-295 (1972) explained Although a successor employer is ordinarily free to set the initial terms on which it will hire employees of a predecessor there will be instances in which it is perfectly clear that the new employer plans to retain all the employees in the unit and in which it will be appropriate to have him initially consult with the employees bargaining representative before he fixes terms 2 The Union is a labor organization as alleged 3 Respondent violated Section 8(a)(1) of the Act by telling an employee at the Bath facility that employees there would have to play by Respondents rules and there would be no union representation , soliciting an em ployee to form a committee to represent the Bath facility employees threatening to terminate any employee who sought to be represented by a union at the Bath facility telling job applicants at the Bath facility that Respondent was going to be nonunion because it would be too costly to have a union telling a job applicant at the Bath facili ty that nonunion employees would have to be hired there before any former employee of MCP could be hired soliciting Bath facility employees to sign a state ment stating that they did not want a union and threaten ing that employees who did not sign such a statement might lose their jobs 4 Respondent violated Section 8(a)(3) and (1) of the Act by engaging in a discriminatory hiring policy or practice by refusing to employ at the Bath facility former MCP employees in order to avoid recognizing the Union and by discriminatorily refusing to hire em ployees Donello Marsilio, and Ahn because of their union or protected concerted activities and in order to avoid recognizing the Union 5 Respondent violated Section 8(a)(5) and (1) of the Act by refusing on request to recognize and bargain with the Union as the exclusive bargaining agent of its em ployees in the following appropriate unit and by unilater ally changing unit employees wages hours and other terms and conditions of employment The appropriate unit is All production and maintenance employees em ployed at Respondents Bath Pennsylvania facility excluding office clerical employees draftsmen engi neers technical and professional employees the plant manager, his assistants supervisors and watch men This case in my view is such an instance Petrizzo having repeatedly told the unit personnel that they all had jobs and the operation would continue was there fore obligated to bargain with their Union before chang ing their wages insurance and retirement benefits and other terms and conditions of employment Moreover Respondent Employer, having discriminatorily refused to hire its predecessors employees has forfeited its right to set these initial terms of employment See Shortway Sur burban Lines supra Respondent Employer has violated Section 8(a)(5) and (1) of the Act as alleged CONCLUSIONS OF LAW 1 Respondent Ross and Respondent AJR are employ ers engaged in commerce and constitute a single employ er as alleged 30 The Union argues alternatively in its postheanng memorandum (p 2) Local 365 demanded recognition of the Employer at a time when the absolute majority of its employees were former MCP employees It is unneccessary for me to reach this alternative issue in view of my recom mended disposition of this case 6 The unfair labor practices found above affect com merce as alleged REMEDY It having been found that Respondent Employer dis crim ►natorily refused employment to the former produc tion and maintenance employees of MCP at Bath Re spondent will therefore be directed to offer to the em ployees3 t immediate and full reinstatement to their former jobs or if those jobs no longer exist to substan tially equivalent positions, without prejudice to their se niority or other rights and privileges enjoyed discharg ing if necessary employees transferred or hired from other sources to make room for them and make them whole for any loss of earnings that they may have suf fered due to the discrimination practiced against them, as prescribed in F W Woolworth Co 90 NLRB 289 (1950) with interest to be computed in the manner prescribed in 31 The names of these employees can best be ascertained in compliance proceedings Discriminatees Donello Marsilio and Ahn are included in this group as found supra A J R COATING CORP New Horizons for the Retarded 32 See Shortway Surburban Lines 286 NLRB 323 (1987) Further, insofar as there may not be sufficient jobs available for all said discnmm atees Respondent Employer will establish a preferential hiring list for such discnminatees and offer them employ ment exclusively from such list as vacancies or job open ings occur It having been found that Respondent Employer failed and refused to bargain with the Union as the representa tive of the Bath facility production and maintenance em ployees, Respondent will therefore be ordered to, on re quest, bargain with the Union concerning any terms and conditions of employment on which the Employer would have been required to bargain had the Union s lawful status been acknowledged on or after January 14, 1987, the date Respondent took over the Bath facility operation In addition Respondent will be directed to cancel on request of the Union , changes in rates of pay and benefits or other terms and conditions of employ ment unilaterally effectuated and make the employees whole by remitting all wages and benefits that would have been paid absent Respondents unlawful conduct, from January 14 1987, until Respondent negotiates in good faith with the Union to agreement or to impasse As the Board noted in Shortway Suburban supra, foot note 38 remission of wages is to be applied consistently with the make whole remedy set forth above with re spect to the discrminatees Further Respondent Employer will be directed to cease and desist from engaging in the conduct found un lawful here or from in any other manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights I recommend this broad cease and desist order because Respondents conduct is suffi ciently egregious and widespread to demonstrate a gen eral disregard of employees statutory rights And Re spondent will also post the attached notice at the Bath facilities and mail copies of the notice to former MCP employees 33 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed34 ORDER The Respondent A J R Coating Division Corp a Subsidiary of A J Ross Logistics, Inc and A J Ross Logistics Inc, Bath, Pennsylvania its officers agents, successors, and assigns, shall 82 In accordance with the Boards decision in New Horizons For the Re tarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the efective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 83 The General Counsel also seeks a visitatonal provision in the remedy I reject this request The above remedial provisions in my view are sufficient here 3* 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 169 1 Cease and desist from (a) Telling employees at its Bath Pennsylvania facility that employees there would have to play by Respond ents rules and there would be no union representation soliciting employees to form a committee to represent the employees threatening to terminate any employee who sought to be represented by a union telling job ap plicants that Respondent was going to be nonunion be cause it would be too costly to have a union telling job applicants that nonunion employees would have to be hired before any former employees of their predecessor M C P Facilities Inc (MCP), could be hired soliciting employees to sign statements stating that they did not want union representation and threatening that employ ees who did not sign such statements might lose their jobs (b) Engaging in a discriminatory hiring policy or prac tice by refusing to employ at its Bath facility former MCP employees in order to avoid recognizing and bar gaining with Local 365, International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (the Union) (c) Discouraging membership in the Union by discri minatorily refusing to hire employees at its Bath facility because of its union and protected concerted activities and in order to avoid recognizing and bargaining with the Union (d) Failing and refusing, on request, to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its employees in the follow mg appropriate unit, including by making changes in the rates of pay and benefits of the employees in the unit without notice to or consultation with the Union All production and maintenance employees em ployed at Respondents Bath Pennsylvania facility excluding office clerical employees, draftsmen engi neers technical and professional employees the plant manager, his assistants supervisors and watchmen (e) In any other manner interfering with restraining or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to the production and maintenance employ ees formerly employed by MCP at the Bath facility full and immediate reinstatement to their former positions or if those positions no longer exists, to substantially equiva lent positions without prejudice to seniority or other rights that they formerly enjoyed discharging if neces sary other employees who have been transferred or hired in their places Insofar as there may not be sufficient jobs available for these employees, Respondent will establish a preferential hiring list as provided in the remedy sec tion (b) Make whole the production and maintenance em ployees formerly employed by MCP (including Donello, Marsilio and Ahn) for any loss of earnings they may have suffered due to the discrimination practiced against them in the manner described in the remedy section 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) On request bargain with the Union as the exclusive representative of the employees in the above appropriate unit concerning terms and conditions of employment and if an understanding is reached embody the under standing in a signed agreement (d) On request of the Union cancel any changes from the rates of pay and benefits or other terms and condi tions of employment that existed immediately before its takeover of the Bath operations and make the unit em ployees whole by remitting all wages and benefits that would have been paid absent such changes from January 14 1987 until Respondents negotiate in good faith with the Union to agreement or to impasse, as provided in the remedy section (e) Preserve and, on request make available to the Board or its agents for examination and copying all pay roll records social security payment records, timecards personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (f) Post at its Bath Pennsylvania facility copies of the attached notice marked Appendix 35 Copies of the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material Respondents will also mail copies of said notice to all former MCP production and mainte nance employees (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 91 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT tell our employees at our Bath, Penn sylvania facility that employees there would have to play by our rules and there would be no union representation solicit employees to form a committee to represent the employees threaten to terminate any employees who sought to be represented by a Union tell job applicants that we are going to be nonunion because it would be too costly to have a union tell job applicants that non union employees would have to be hired before any former employees of our predecesor M C P Facilities Inc (MCP) could be hired solicit employees to sign statements stating that they do not want union represen tation, and threaten that employees who do not sign such statements might lose their jobs WE WILL NOT engage in a discriminatory hiring policy or practice by refusing to employ at our Bath facility former MCP employees in order to avoid recognizing and bargaining with Local 365 International Union of United Automobile, Aerospace and Agricultural Imple ment Workers of America (the Union) WE WILL NOT discourage membership in the Union by discriminatorily refusing to hire employees at our Bath facility because of their union and protected concerted activities and in order to avoid recognizing and bargain ing with the Union WE WILL NOT fail and refuse, on request, to recognize and bargain in good faith with the Union as the exclusive bargaining representative of our employees in the follow rng appropriate unit including by making changes in the rates of pay and benefits of the employees in the unit without notice to or consultation with the Union All production and maintenance employees em ployed at Respondents bath Pennsylvania facility excluding office clerical employees draftsmen engi neers technical and professional employees, the plant manager, his assistants, supervisors and watchmen WE WILL NOT in any other manner interfere with, re strain or coerce you in the exercise of the rights guaran teed you by Section 7 of the Act WE WILL offer to the production and maintenance em ployees formerly employed by MCP at the Bath facility full and immediate reinstatement to their former positions or, if those positions no longer exist to substantially equivalent positions, without prejudice to seniority or other rights that they formerly enjoyed discharging if necessary other employees who have been transferred or hired in their places Insofar as there may not be suffi cient jobs available for these employees WE WILL estab lash a preferential hiring list as provided in the Board s Decision and Order WE WILL make whole the production and maintenance employees formerly employed by MCP (including Don ello Marsilio, and Ahn) for any loss of earnings they may have suffered due to our discrimination practiced against them together with interest in the manner de scribed in the Board s Decision and Order WE WILL on request, bargaining good faith with the Union as the exclusive representative of the employees in the above appropriate unit concerning terms and condi tions of employment and, if an understanding is reached embody the understanding in a signed agreement A J R COATING CORP 171 WE WILL, on request of the Union, cancel any changes the Union to agreement or to impasse , as provided in the from the rates of pay and benefits or other terms and Board's Decision and Order conditions of employment that existed immediately before our takeover of the Bath operations and make the A J R COATING DIVISION CORP, A SUB unit employees whole by remitting all wages and benefits SIDIARY OF A J Ross LOGISTICS INC that would have been paid absent such changes from AND A J Ross LOGISTICS, INC January 14, 1987, until we negotiate in good faith with