American Press, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1986

280 N.L.R.B. 937 (N.L.R.B. 1986)

AMERICAN PRESS
American Press , Inc. and Calvin L. Casteel , and De-
troit Toledo Local No. 289 , Graphic Communi-
cations International Union . Cases 7-CA-23186
and 7-CA-23201
24 June 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 18 April 1985 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions, a supporting brief,
and an answering brief. The General Counsel and
Charging Party Local 289 filed answering briefs,
and Local 289 joined in the General Counsel's
cross-exceptions and supporting 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,' and
conclusions2 only to the extent consistent with this
Decision and Order.
1. We agree with the judge's conclusion that the
Respondent, American Press, Inc. (American
Press), is a successor employer to Rite-Way Press,
Inc. (Rite-Way). The judge found, with record sup-
port, that the Respondent is substantially in the
i The Respondent has excepted to some of the judge 's credibility find-
ings 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
In the section of his decision entitled "Acquisition of Rite-Way by Stu-
dios," par 5 , the judge states that the 12 August 1983 "Asset Purchase
Agreement" between Rite -Way, as seller , and American , as purchaser, in-
cluded "all leases, purchase orders, customer orders, sales and other con-
tracts , all trademarks, trade names, etc, and all customer lists and other
data relating to 'the purchased assets, business and operations of the
Seller Although the body of the Asset Purchase Agreement provides
that the transaction include such items, we note that these items are spe-
cifically excluded by the Agreement 's exhibits
The conversation between Denaro and Casteel referred to in the
judge's decision in par . 2 of sec . II,C,2,c, entitled "Not Hired by Amen-
can Press," occurred on 24 October, not 13 October, 1983. The last sen-
tence of par 7 of sec III,B of the judge's decision , entitled "Successor-
ship," should be corrected to read "and under the circumstances Young
acted reasonably in believing that Reich's thoughts accurately reflected
those of American "
In sec l1,D of his decision , entitled "Bargaining Demands on Ameri-
can Press ," the judge incorrectly stated that the production work of
American is performed by 10 employees , including an employee named
Nashotka The Respondent has never employed an employee named Na-
shotka The Respondent 's initial production work force complement con-
sisted of eight employees , including two former Rite-Way employees and
union members, Rye and Drury, and employee Hamilton , who was a
union member hired from the outside
2 The Respondent has requested oral argument This request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties
937
same printing business as was Rite-Way; that the
Respondent services a substantial number of Rite-
Way's former customers;3 that with the exception
of some cosmetic changes and small additions of
equipment, the Respondent uses the same plant, the
same machinery , the same equipment , and the same
methods of production as was used by Rite-Way;
that the same printing services are offered and the
same printing product is manufactured by the Re-
spondent as was offered and manufactured by Rite-
Way; and that, within the bargaining unit, the same
jobs exist under the same working conditions at
American Press as they existed at Rite-Way.
In concluding that the Respondent is a successor
employer to Rite-Way, the judge specifically
found, and we agree, that but for unlawful consid-
erations, the continuity of the predecessor's em-
ployee complement would have been maintained.
The Respondent' s initial production work force
complement consisted of eight employees, two of
whom were former Rite-Way employees and union
members, Ed Rye and Ray Drury. As discussed
infra, the Respondent discriminatorily refused to
hire seven former Rite-Way employees in violation
of Section 8(a)(3) and (1) of the Act. Thus, we find
that but for the Respondent's unlawful conduct, the
majority of the work force would have been com-
posed of employees of the predecessor employer. It
is well established that where the other requisite
elements for finding successorship are present, a
new owner's failure to hire its predecessor's em-
ployees will not defeat a claim of successorship if
such failure is shown to have been motivated by
the former employees' union affiliation.4 Accord-
2 In sec II,E of his decision , entitled "Business Operations of Amen-
can Press After Agreement With Rite-Way," the judge misstated that the
sales revenues attributable to former Rite-Way customers during the Re-
spondent 's first year of operation represented $1,521,800 This figure rep-
resents the overall total sales by the Respondent in its first year of oper-
ation , October 1983 through September 1984, not the amount of sales
made to former Rite-Way customers during that same period. In its brief
the Respondent concedes that during the first year of operation, 63 per-
cent of its billings came from its corporate parent, American Center Stu-
dios, Inc, and 37 percent of its billings came from sales to former Rite-
Way customers and new customers The Respondent contends that
during its first year of operation, its total billings to former Rite-Way cus-
tomers totaled less than $568 ,900 and that it was able to secure only ap-
proximately 65 percent of Rite-Way's billing level to its former custom-
ers The Respondent also has excepted to the judge 's "number of ac-
counts billed" analysis, where the judge concluded that during its first
year of operation American Press billed an average of 25.6 customers per
month, of which an average 20 7, or 81 percent, were former Rite-Way
accounts The Respondent contends this analysis is misleading because
many of its customers are billed through American Center Studios
Whether the customer continuity issue is viewed in connection with the
Respondent's arguments or the judge's findings, it is clear there is a sub-
stantial continuity of customers, which we note is only one factor in eval-
uating successorship See Mondovi Foods Corp, 235 NLRB 1080 (1978)
4 CJB Industries, 250 NLRB 1433 (1980), Love's Barbeque Restaurant
No 62, 245 NLRB 78 (1979), enfd in relevant part 640 F 2d 1094 (9th
Cir 1981)
280 NLRB No. 109
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, we adopt the judge's conclusion that the Re-
spondent, as a successor employer, violated Section
8(a)(5) and (1) of the Act by refusing to bargain
with Local 289.
2. The General Counsel has excepted to the
judge's failure to find that the Respondent also vio-
lated Section 8(a)(5) and (1) of the Act by unilater-
ally establishing terms and conditions of employ-
ment which differed from those to which Rite-Way
was contractually bound. We find merit to the
General Counsel's exception.
We recognize that under NLRB v. Burns Security
Services, 406 U.S. 272 (1972), a successor employer
is ordinarily free to set initial hiring terms without
preliminary bargaining with the incumbent union.
Where, however, "it is perfectly clear that the new
employer plans to retain all of the employees in the
unit," the successor must consult the union before
altering the terms and conditions of employment.5
Here, any uncertainty about what the Respondent
would have done absent its unlawful purpose must
be resolved against the Respondent, because it
cannot be permitted to benefit from its unlawful
conduct. When a successor employer has discrimi-
nated in hiring, it can be inferred that substantially
all the former employees would have been retained
absent the unlawful discrimination.6 We find, infra,
that the Respondent unlawfully discriminated
against the predecessor's former employees by re-
fusing to hire them because of their union affili-
ation. Accordingly, we find that absent its unlawful
purpose, the Respondent would have retained sub-
stantially all these employees and therefore the Re-
spondent was not entitled to set initial terms of em-
ployment without first consulting the Union.
The record indicates that the Respondent paid
employees Rye and Drury different wages from
those they received from Rite-Way. Moreover,
American Press has not made payments into the
Union's fringe benefit funds. Accordingly, we con-
clude that the Respondent unilaterally changed
terms and conditions of employment in violation of
Section 8(a)(5) and (1) of the Act.
3. We also agree with the judge's finding that the
Respondent violated Section 8(a)(3) and (1) of the
Act by its discriminatory refusal to hire employees
Calvin Casteel, Charlotte Casteel, Stella Roulette,
Robert Bolda, John Mohan, Gale Willard, and
Norman Wilson. We disagree, however, for the
reasons discussed below, with the judge's conclu-
sion that the Respondent violated Section 8(a)(3)
with respect to employee Roger Young.
The judge's finding that the Respondent discri-
minatorily refused to hire former Rite-Way em-
Burns, supra at 294-295
Love's Barbeque, supra at 82
ployees was based on credited statements by the
Respondent's representatives as well as the Re-
spondent's methods and pattern of hiring. The
judge credited former Rite-Way President and
Business Manager Harrison Parker's testimony that
during a meeting of Rite-Way and American
Center Studios representatives to discuss the possi-
ble purchase of Rite-Way, American Center Stu-
dios Representatives Hunter and Decker said, in re
sponse to Rite-Way Co-Owner Denaro's inquiry
wheather the fate of Rite-Way employees, that
they did not want the Union involved and did not
want to be a union company. Further discussions
were held with Hunter, Decker, and Rite-Way rep-
resentatives culminating in an arrangement where-
by Rite-Way was sold to Hunter and Decker, who
formed a new corporation, the Respondent, Ameri-
can Press, Inc., with former Rite-Way owners
Denaro and Augustyn each purchasing 9-1/2 per-
cent of the outstanding stock of the corporation.
American Press agreed to lease Rite-Way's build-
ing owned by a co-partnership of Rouls, Bek,
Denaro, and Augustyn, the original four Rite-Way
owners.
Prior to the execution of the purchase docu-
ments, American Press placed two "blind" classi-
fied ads beginning 30 July 1983,7 one for a press-
man, the other for a camera and stripping person.
Identical ads were placed in another newspaper for
3 days appearing 5, 6, and 7 August.
Although the parties had reached tentative
agreement in July, and American Press had begun
efforts to hire employees, neither Rite-Way nor
American Center Studios communicated any notice
of the purchase to the Union or the employees at
this time.
During the period from January to August,
Denaro had been meeting with the Union to nego-
tiate a new collective-bargaining agreement. On 5
August, Union Representative and Vice President
Gerry Deneau received an anonymous phone call
from a woman who said that Rite-Way was going
to be taken over by American Press, closed down
for a few weeks, and reopened to get rid of em-
ployees and the union contract. In a 12 August col-
lective-bargaining meeting in response to Deneau's
inquiry about whether the substance of the anony-
mous phone call was true, Denaro assured Deneau
that it was not true and that he had turned down
two purchase offers because such offers did not in-
clude the Rite-Way employees. Denaro admitted in
his testimony that he denied the existence of a
transaction in progress with American Press even
though he had accepted the American Press offer
v All dates are to 1983 unless otherwise indicated
AMERICAN PRESS
at this time . The Asset Purchase Agreement be-
tween Rite-Way and American Press and Denaro's
and Augustyn 's employment contracts with Ameri-
can Press were executed on 12 August.
On 30 August Rite-Way's attorney told the
Union that Rite-Way was closing its operation. The
Union, Denaro, and Rite-Way's attorneys met on 2
September to discuss the closing . The judge found
that at the meeting Rite-Way Attorney Boyer told
Deneau and Union Steward Wilson that the plant
was closing and would not operate anymore. The
judge further found that Boyer told the union rep-
resentative that Rite-Way was trying to sell its
equipment , but the only piece on which it had a
deal was the Heidelberg Press . Deneau told
Denaro that he heard that the plant was going to
be reopened and that Denaro had a job with the
new owners . Denaro told Deneau this was not
true . At this meeting Deneau asked Boyer for in-
formation and copies of the purchase agreements
relating to the sale of machinery ; however, Deneau
did not receive the Asset Purchase Agreement
until January 1984 . The judge credited Denaro's
testimony that Deneau was told at the 2 September
meeting that the purchaser of the Heidelberg Press
was "American Press, Inc." or "American Center
Studios" and that Hunter was the individual to
contact.
The record demonstrates that notice by Rite-
Way and hirings by American Press differed sig-
nificantly for nonbargaining unit office and sales
personnel and bargaining unit production employ-
ees. Secretary and bookkeeper Belinda Young-
Werner and estimator Sherwood Kogelshatz, the
only two Rite-Way office employees, were inter-
viewed and offered employment by American
Press prior to Rite -Way's closing . Kogelshatz filled
out his application on the day he began working at
American Press. Young-Werner was not asked to
fill out an employment application until after she
had started to work for American Press.
All Rite-Way sales personnel were contacted by
American Press in late August to discuss employ-
ment opportunities. Such contacts occurred before
the Union had been notified of Rite-Way's closing
or the transaction with American Press. Although
American Press was interviewing and offering em-
ployment to all nonunit employees , unit employees
were not similarly apprised of American Press' ex-
istence as a purchaser of Rite-Way or the opportu-
nity for employment. All sales personnel associated
as employees or brokers with Rite-Way were hired
by American Press , including Pat Byrne and
Chuck Reich . Both Byrne and Reich submitted
their employment applications on the day they
were hired . Thus, all nonunit employees were con-
939
tacted by American Press and received job offers
before Rite-Way closed.
Denaro formally notified unit employees that
Rite-Way was closing about 1 week before the 12
September closing . When questions were asked
about whether the Company had been sold,
Denaro responded , "I have no further comments
that I can give you or information about this than
we are closing the business ." Employee Willard
asked Denaro what Denaro and Augustyn were
going to do . Denaro responded that he and Augus-
tyn did not know what they were going to do, that
they did not have jobs, and that they were going
to take care of the closing first.
Ed Rye and Ray Drury , highly skilled pressmen
who worked as a team operating the Heidelberg
Press, were the only unit employees hired by the
Respondent . Denaro approached Rye and Drury
about employment before Rite-Way closed. The
judge found , and we agree , that their hiring was
prompted by their particular skill and expertise on
the most important and valuable piece of equip-
ment at the printing shop.
In early October , Roger Young , a layout stripper
at Rite-Way , was contacted by fellow former em-
ployee Reich , who was then employed as a sales-
man by American Press. Reich told Young that
Denaro and Johnson, the Respondent 's general
manager , could not call him directly , but wanted
Young to phone about a job. Young, who had ob-
tained employment elsewhere, asked Reich why
they did not call fellow former employee John
Mohan , who was then unemployed . The judge
credited Young's testimony that Reich told Young
that he did not think Denaro and Johnson would
hire Mohan or former employee Bolda "because
they were too pro-union." Young did telephone
Johnson and was asked to come for an interview.
When Young responded he could not come be-
cause he was working , Johnson said that he al-
ready knew of Young's qualifications and offered
him a job at a specified salary. Young rejected the
offer.
Contrary to the judge, we do not find that the
Respondent discriminatorily refused to hire Young.
Young was offered a job by the Respondent at a
higher salary rate than his previous Rite-Way
salary. The record indicates that Young rejected
the Respondent 's offer because his current place of
employment was closer to his home and did not re-
quire payment of city income tax as would be re-
quired in employment with the Respondent. Under
these circumstances , we conclude that the evidence
does not support a finding that the Respondent dis-
criminated against Young . Accordingly , we reverse
the judge's finding in this regard.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seven other Rite-Way bargaining unit members
were not hired by American Press . Calvin Casteel,
his wife, Charlotte, and his mother, Stella Rou-
lette,8 constituted the Rite-Way bookbindery de-
partment. Denaro testified that prior to 12 August
he told Calvin and Charlotte Casteel about the pos-
sibility of a buyer of Rite-Way. Denaro further tes-
tified that when Charlotte Casteel asked if there
was a possibility of a job with the new company,
he responded, "I'm sure they would be looking for
a [sic] bindery personnel, yes."
Calvin Casteel testified, as credited by the judge,
that on 6 September, Denaro again spoke privately
to the Casteels, telling them that the shop would
close in a week, but that Casteel would be better
off after it was all over and should not look for a
new job. Several days before Rite-Way closed,
Calvin Casteel again spoke privately with Denaro,
at which time Denaro affirmed that the shop
would reopen under the name American Press and
that the three Rite-Way owners hoped each to
have a 15-percent interest in the new company. On
15 September, his last day of employment, Casteel
asked Denaro on behalf of himself and his family,
"[W]hat are we going to do?" According to Cas-
teel's credited testimony, Denaro told Calvin that it
was not necessary to look for a job, that they
should take a vacation and call him when they re-
turned, and that things would be better after every-
thing was straightened out. Casteel telephoned
Denaro as instructed by Denaro when he, his wife,
and mother returned from vacation. Denaro told
Casteel that Johnson was taking care of everything
and that he should call him. Casteel called Johnson
and asked if he needed bindery help, and Johnson
responded that he had to "use his own people." He
suggested that Casteel fill out an application, but
then reconsidered and said that he knew Casteel's
qualifications and that if something came up he
would "get in touch."
Casteel accepted employment as a binder at an-
other print shop. On 24 October, Denaro picked up
work that had been subcontracted to Casteel's new
employer and, in a conversation with Casteel, said
that he could not understand why Johnson had not
contacted Casteel. The judge credited Casteel's tes-
timony that Denaro told him, "I keep mentioning
your name; [t]he only thing I could figure is that
he figures you and Charlotte might want the union
back." On 25 October, Johnson came to Casteel's
new employer. Casteel asked Johnson again about
how he was set for help. According to Casteel's
8 The Respondent excepted to the inclusion of Roulette as an alleged
named discnminatee because she is not a member of the Union We find
no merit to this exception The Respondent does not contend nor does
the evidence establish that Roulette was not a bargaining unit member.
credited testimony, Johnson replied that they did
not currently need help and added, "I don't want
any problems with the union; I have had enough of
Local 289 to last me the rest of my life."
Pressman Bob Bolda, like the Casteels, was given
assurances about a job by Denaro prior to the Rite-
Way closing. According to Bolda' s unrefuted testi-
mony, approximately 1 week prior to the 12 Sep-
tember plant closing announcement , Denaro told
Bolda that Rite-Way was having problems, but "if
anything happens, you won't have to worry about
working, you'll always have a job."
In early December 1983 Bolda talked to former
coemployee Ed Rye, who was working at Ameri-
can Press. Rye told Bolda that if he was interested
in employment, he should call Belinda Young-
Werner to make sure Johnson would be there so he
could get an application from Johnson. Bolda
called Young-Werner asking if American Press was
hiring. Young-Werner replied yes and said that he
should come down to get an application. The next
day Bolda stopped at American Press and asked
for an employment application. Johnson told Bolda
that he would have to make an appointment to get
an application. When Bolda asked if Johnson
would give him an application while he was there,
Johnson told Bolda that he was too busy and did
not have time for it right then. Johnson testified on
cross-examination that he was interested in hiring
Bolda for the night shift in December, that he
knew that Bolda was qualified to do the job, and
that he needed no further information to evaluate
him as an employee. Johnson did not assist Bolda
in obtaining an application or offer him a job when
Bolda was at the plant, but rather asked Bolda to
make an appointment and come back at another
time to fill out an application.9
Employee John Mohan testified he first heard of
the shop closing when Denaro informed him and
Willard approximately 1 week before the closing.
Mohan testified that Willard asked Denaro whether
or not they had sold the Company to someone else
and Denaro responded, "I have no further com-
ments that I can give you or information about
this, other than we are closing the business." On 14
9 Johnson testified he required applications from all the people who
came to be interviewed, however, the record indicates that production
employee Young did not fill out an application prior to the Respondent's
job offer Nonunit employees Young-Werner, Kogelshatz, Denaro, Rouls,
and Augustyn did not fill out job applications until they began working
or had already signed employment contracts Moreover, the incomplete-
ness or absence of applications in American Press' personnel files suggests
that the Respondent 's alleged practice of requiring an application was
merely a formality
Several weeks after Bolda went to American Press, Johnson authorized
Denaro to contact Bolda about his interest in seeking employment with
the Respondent Denaro spoke with Bolda 's wife Bolda did not follow
up on Denaro's telephone calls because he was employed at the time
AMERICAN PRESS
September, Mohan returned to Rite-Way to pick
up his last paycheck. In response to Denaro's in-
quiry as to whether he had found another job,
Mohan said he had not found another job, although
he had had an unpromising interview. According
to Mohan's unrefuted testimony, Denaro told
Mohan that if he heard of any employment oppor-
tunities for Mohan he would let him know.
In his job search Mohan checked the want ads
and sent a copy of his resume to the box number of
a blind ad inserted by American Press in mid-Sep-
tember 1983. During a conversation with Rye, one
of the two former Rite-Way employees hired by
American Press, Mohan asked whether he and em-
ployee Bolda should seek employment at American
Press. The record contains uncontroverted testimo-
ny by Mohan that Rye told Mohan that Rye had
specifically asked Denaro whether Mohan or Bolda
would be considered for jobs and Denaro said,
"[T]hey did not want [to] hire too many people
from the old plant because it [sic] did not want to
have trouble with the Union." Mohan testified he
did not contact the Respondent about employment
based on his conversation with Rye and his discov-
ery through Rye that the blind ad which he had
answered was the Respondent's ad. Mohan further
testified that he decided not to contact the Re-
spondent concerning employment because Denaro
had not contacted him despite the fact that Denaro
knew Mohan was unemployed, was aware that
Mohan was capable of doing the job for which
they were soliciting help, and had assured Mohan
that he would notify him of any positions that he
knew that were open.
Employee Gale Willard was employed by Rite-
Way as a cameraman and platemaker. One and a
half months after the Respondent opened, Denaro
called Willard and asked him to show another em-
ployee how to operate the Roll-fed Chemco
camera that Willard had operated as a Rite-Way
employee. Willard spent 3-1/2 hours instructing the
cameraman and was paid $50 by Johnson. The
judge credited Willard's testimony that he was
never advised to fill out an employment application
with the Respondent. At the time Rite-Way closed
Willard had 7 months until he would be eligible,
under the Union's pension plan, to retire at age 60.
Willard told Denaro that if the shop were sold, he
would wait the 7 months and then retire. Accord-
ing to Willard's uncontroverted testimony, Denaro
told him occasionally over a 2-year period, and
most recently about 2 months before Rite-Way was
sold, that he would get Willard a job if the Compa-
ny were sold. Willard further testified that when
Denaro informed him of the closing, Denaro as-
sured Willard that he would take care of Willard.
941
Although the judge did not specifically discuss
employee Norman Wilson, we agree with his con-
clusion that the Respondent discriminatorily re-
fused to hire Wilson. Wilson was present in his ca-
pacity as union steward at the 2 September meeting
between union and Rite-Way representatives, at
which Rite-Way's closing was discussed. The judge
found the Union was informed at that meeting that
"American Center Studios" or "American Press,
Inc." was a prospective purchaser of the Heidel-
berg Press. Implicit in the judge's finding is the
conclusion that the Union was not made aware the
purchase involved substantially all of Rite-Way's
assets. The judge specifically found that Denaro
denied that there were "new owners" and that the
plant would be reopened. Based on the judge's
findings concerning notice to the Union, and con-
trary to Respondent's assertions, Wilson's role as
union steward did not provide him with all the per-
tinent information necessary to contact the Re-
spondent about potential employment. In fact, it
appears that Wilson was privy to less information
concerning the purchase transaction and subse-
quent employment opportunities than some of his
coworkers. The Respondent also contends that
Wilson contemplated retirement upon Rite-Way's
closing and communicated this to Denaro, who, in
turn, relayed this information to Hunter. Denaro,
however, testified that Wilson had never given him
formal notice that he was retiring.
In concluding that the Respondent unlawfully
discriminated against Rite-Way's former employ-
ees, the judge relied primarily on Hunter's state-
ment to Parker and Denaro and on Johnson's state-
ment to employee Casteel as evidence that Ameri-
can Press intended to operate as a nonunion shop
despite the previous union representation of Rite-
Way employees. The judge also relied in part on
Denaro's statement to Casteel that the reason why
Casteel and his family were not hired by American
Press was their union affiliation. We agree that
these statements establish unlawful motivation for
the Respondent's refusal to hire Rite-Way employ-
ees.' 0
10 The judge also relied on Reich's statement to Young that he did not
think Mohan or Bolda would be hired because they were too prounion
The Respondent argues, inter alai, that neither Reich 's statement to
Young or Denaro 's statement to Casteel can be attributed to American
Press since neither Reich nor Denaro were agents of American Press In
light of the other evidence supporting a finding of unlawful motivation,
we find it unnecessary to pass on the judge 's discussion with respect to
Reich's statement to Young In agreement with the judge and contrary to
the Respondent , we find that Denaro's statement to Casteel was property
attributable to American Press. The judge correctly found Denaro to be
the Respondent 's agent by virtue of his ownership interest and the Re-
spondent's use of him in connection with hiring The record indicates the
Respondent used Denaro to relay information about hiring to Rite-Way
employees According to Hunter , he asked Denaro on at least two occa-
Continued
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other record evidence concerning the methods
and pattern of the Respondent's hiring further sup-
ports a finding of unlawful motivation. Credited
employee testimony establishes that pertinent infor-
mation concerning the purchase of Rite-Way and
employment opportunities with American Press
was concealed from the unit employees. American
Press placed blind ads in July and August 1983 at a
time when Rite-Way was engaged in contract ne-
gotiations with the Union and when Rite-Way em-
ployees had no idea they would be in need of em-
ployment. The interviews were conducted away
from the Rite-Way shop. This hiring procedure,
coupled with the above statements by Hunter,
Johnson, and Denaro demonstrating union animus,
warrants the inference that the hiring procedure
was designed to conceal from Rite-Way employees
that American Press was hiring.I I
The different treatment the Respondent accorded
Rite-Way unit and nonunit employees is further
evidence of a discriminatory motive. As discussed
above, American Press contacted and made job
offers to all nonunit employees before Rite-Way
closed.
The Respondent's assertion that former Rite-
Way employees were not hired because they did
not seek employment is false and unpersuasive.
Casteel asked about employment on behalf of him-
self and his family. Mohan responded to one of
American Press' blind ads, and Bolda attempted to
apply in person. The Board has held that, where an
employer has attempted to conceal from employees
the fact it is accepting applications, failure to apply
is not a defense to an 8(a)(3) finding; moreover,
those who discover the employer is hiring would
be justified in assuming the futility of applying.12
Accordingly, for the reasons stated above, we
find that the Respondent violated section 8(a)(3)
and (1) of the Act by discriminatorily refusing to
hire employees Calvin Casteel, Charlotte Casteel,
Stella Roulette, Robert Bolda, John Mohan, Gale
Willard, and Norman Wilson.
sions to talk to Rite-Way employees to tell them to turn in applications
When Johnson needed a Rite-Way employee to show an American Press
employee how to run a camera, Johnson authorized Denaro to contact
the employee and make the necessary arrangements Johnson authorized
Denaro to contact Bolda about employment American Press asked for
and received evaluations of Rite-Way employees from Denaro and fol-
lowed his recommendations in the case of employees Rye and Drury.
11 See Love 's Barbeque Restaurant No 62, 245 NLRB 78 (1979), enfd
in relevant part 640 F 2d 1094 (9th Cir 1981).
'$ Love's Barbeque, supra at 81 fn . 10. Employee Willard's testimony
reveals such a perception of futility. According to Willard 's unrefuted
testimony , when Denaro informed him of Rite -Way's closing, Denaro as-
sured Willard that Denaro would take care of Willard On cross-examina-
tion, when Willard was asked if he had contacted Denaro to come
through on his alleged promise to take care of him in terms of a job, Wil-
lard replied , "When I was there [American Press] for three and a half
hours, I knew him so well , I figured he would give me a job But he
didn't say nothing about it, so "
4. The General Counsel has excepted to the
judge's failure to find that the Respondent violated
Section 8(a)(1) by Denaro's statement to Casteel on
24 October that Denaro did not understand why
Johnson had not contacted Casteel "except that he
figures you and Charlotte might want the union
back." The General Counsel further has excepted
to the judge's failure to find the Respondent violat-
ed Section 8(a)(1) of the Act when, following Cas-
teel's inquiry about employment, Johnson told Cas-
teel on 25 October that Johnson did not want any
problems with the Union because he had had
enough of Local 289 to last the rest of his life. We
find merit to the General Counsel's exceptions and
find that Denaro's and Johnson's statements to Cas-
teel violated Section 8(a)(1) of the Act. The John-
son-Casteel conversation ratified and repeated the
substance of the message that Casteel received
from Denaro the previous day, namely, that the
new employer would not hire Casteel and his
family because of their union affiliation. We agree
with the judge's findings that Denaro and John-
son 13 are agents of the Respondent and, as such,
that their statements may be imputed to the em-
ployer. Accordingly, by engaging in this conduct,
the Respondent violated Section 8(a)(1) of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act, we shall order that
the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. The Respondent shall be re-
quired to offer employees Calvin Casteel, Charlotte
Casteel, Stella Roulette, Robert Bolda, John
Mohan, Gale Willard, and Norman Wilson employ-
ment in their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, discharging, if neces-
sary, employees hired from sources other than the
Rite-Way Press, Inc., Detroit, Michigan printing
plant to make room for them, and make them
whole for any loss of earnings that they may have
suffered due to the discrimination against them
from 10 October 1983 until proper offer of rein-
statement, less net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977).
is The Respondent does not except to the judge 's finding that Johnson
is an agent of the Respondent
AMERICAN PRESS
Further, we shall order that the Respondent be
required to recognize and bargain with Detroit-
Toledo Local No. 289, Graphic Communications
International Union in the appropriate collective-
bargaining unit and, if agreement is reached, to
reduce the agreement to a written contract. In ad-
dition, we shall order the Respondent to cancel, on
request by the Union, changes in rates of pay and
benefits unilaterally effectuated and to make the
employees whole by remitting all wages and bene-
fits 14 that would have been paid absent such
changes from 10 October 1983 until the Respond-
ent negotiates in good faith with the Union to
agreement or to impasse.15 The Order contains a
broad cease-and-desist provision as we find that the
Respondent's conduct demonstrates a general disre-
gard for the employees' fundamental statutory
rights. 16
AMENDED CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed at American Press,
Inc., as successor to Rite-Way Press, Inc., engaged
in performing work, processes, or operations asso-
ciated with lithography, wet or dry offset printing,
photo engraving, intaglio, gravure, or any techno-
logical or other change, evolution of, or substitu-
tion for any of the above-named work, processes,
or operations, bindery employees, shipping and
maintenance employees, cold-type employees (in-
cluding proofreaders, keyliners, keyboard opera-
tors, and photon employees), excluding all sales
employees, professional employees, office clerical
employees, superintendents, guards, and supervisors
as defined by the Act constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein the Union has
been the exclusive representative of all the employ-
ees in the above unit for the purposes of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. Respondent American Press, Inc. is a succes-
sor employer to Rite-Way Press, Inc., and by dis-
avowing its bargaining obligation to the Union and
departing from preexisting rates of pay and benefits
14 See Kraft Plumbing, 252 NLRB 891 (1980), Merryweather Optical
Co, 240 NLRB 1213, 1216 fn 7 (1979)
is The remittance of wages and benefits is to be made consistent with
the make-whole remedy set forth above with respect to the discrimma-
tees save that, when appropriate , the amount due shall be paid as pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970)
16 Hickmott Foods, 242 NLRB 1357 (1979)
943
without prior notification to and bargaining with
the Union, the Respondent violated Section 8(a)(5)
and (1) of the Act.
6. By telling employees that they would not be
hired because of their union affiliation, the Re-
spondent has violated Section 8(a)(1) of the Act.
7. By failing to hire the employees named in
paragraph 2(a) of the Order because of their union
affiliation, the Respondent in each instance engaged
in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act by interfering with the
exercise of their rights guaranteed in Section 7 of
the Act and by discriminating in regard to their
hire or tenure of employment, thereby discourag-
ing membership in a labor organization.
8. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent, American Press, Inc., Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collective-
ly with Detroit-Toledo Local No. 289, Graphic
Communications International Union as the exclu-
sive collective-bargaining representative of its em-
ployees in the following appropriate unit:
All employees engaged in performing work,
processes, or operations associated with lithog-
raphy, wet or dry offset printing, photo en-
graving, intaglio, gravure, or any technologi-
cal or other change, evolution of, or substitu-
tion for any of the above-named work, proc-
esses , or operations, bindery employees, ship-
ping and maintenance employees, cold-type
employees (including proofreaders, keyliners,
keyboard operators, and photon employees)
employed by American Press, Inc. as succes-
sor to Rite-Way Press, Inc., but excluding all
sales employees, professional employees, office
clerical employees, superintendents, guards,
and supervisors as defined by the Act.
(b) Making changes unilaterally in the rates of
pay and benefits of the employees in the above unit
without notice to and bargaining with the above
Union.
(c) Telling applicants that they will not be hired
because of their union affiliation.
(d) Refusing to hire or otherwise discriminating
against employees in their hire or tenure of em-
ployment because they are members of, or gave
support to, Detroit-Toledo Local No. 289, Graphic
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communications International Union or any other
labor organization.
(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer immediate and full employment to
Calvin Casteel, Charlotte Casteel, Stella Roulette,
Robert Bolda, John Mohan, Gale Willard, and
Norman Wilson, without prejudice to their seniori-
ty or any other rights or privileges previously en-
joyed, discharging if necessary employees hired
from sources other than the Rite-Way Press, Inc.,
Detroit, Michigan printing plant to make room for
them.
(b) Make whole Calvin Casteel, Charlotte Cas-
teel, Stella Roulette, Robert Bolda, John Mohan,
Gale Willard, and Norman Wilson for any loss of
pay they may have suffered as a result of the dis-
crimination against them in the manner described
in the section of this decision entitled "The
Amended Remedy."
(c) Recognize and, on request, bargain collec-
tively with Detroit-Toledo Local No. 289, Graphic
Communications International Union as the exclu-
sive collective-bargaining representative of the em-
ployees described in paragraph 1(a) above, and, if
an agreement is reached, embody that agreement in
an executed written contract.
(d) On request of the above union, restore the
status quo ante which existed prior to the imple-
mentation of the unilateral changes made by the
Respondent with regard to the rates of pay, wages,
and other terms and conditions of employment in
the unit described above, and make the employees
whole by remitting all wages and benefits that
would have been paid absent such changes, plus in-
terest, from 10 October 1983 until it negotiates in
good faith with the Union to agreement or to im-
passe, in the manner set forth in the section of this
decision entitled "The Amended Remedy."
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its office and place of business in De-
troit, Michigan, copies of the attached notice
marked "Appendix." 17 Copies of the notice, on
17 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
forms provided by the Regional Director for
Region 7, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize Detroit-
Toledo Local No. 289, Graphic Communications
International Union as the exclusive collective-bar-
gaining representative of our employees in the fol-
lowing appropriate unit:
All employees engaged in performing work,
processes, or operations associated with lithog-
raphy, wet or dry offset printing, photo en-
graving , intaglio, gravure, or any technologi-
cal or other change, evolution of, or substitu-
tion for any of the above-named work, proc-
esses , or operations, bindery employees, ship-
ping and maintenance employees, cold-type
employees (including proofreaders, keyliners,
keyboard operators, and photon employees),
but excluding all sales employees, professional
employees, office clerical employees, superin-
AMERICAN PRESS
tendents, guards, and supervisors as defined by
the Act.
WE WILL NOT make unilateral changes in the
rates of pay and benefits of the employees in the
above unit without notice to and bargaining with
the above Union.
WE WILL NOT tell applicants that they will not
be hired because of their union affiliation.
WE WILL NOT refuse to hire or otherwise dis-
criminate against employees to avoid bargaining
with a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer immediate and full employment
to Calvin Casteel, Charlotte Casteel, Stella Rou-
lette, Robert Bolda, John Mohan, Gale Willard,
and Norman Wilson, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, discharging if necessary employees hired
from sources other than the Rite-Way Press, Inc.,
Detroit, Michigan printing plant to make room for
them, and WE WILL make them whole for any loss
of earnings they may have suffered by reason of
our unlawful failure to hire them, with interest.
WE WILL, on request, bargain with the above
Union as the exclusive representative of all the em-
ployees in the above unit concerning their terms
and conditions of employment, and, if an under-
standing is reached, embody it in a signed contract
if asked to do so.
WE WILL, on request of the above Union, cancel
any changes from the rates of pay and benefits that
existed immediately before our takeover of the
Rite-Way, Press, Inc., Detroit, Michigan printing
plant and make the employees in the above unit
whole by remitting all wages and benefits that
would have been paid absent such changes, plus in-
terest, from 10 October 1983 until we negotiate in
good faith with the Union to agreement or to im-
passe.
AMERICAN PRESS, INC.
Amy Bachelder, Esq., for the General Counsel.
John P. Caponigro, Esq. and Michael Mills, Esq. (Frasco,
Hackett and Durisin), of Bloomfield Hills, Michigan,
for Respondent.
Roger J. McClow, Esq. (Klimist, McNight & Sale), of
Southfield , Michigan, for Charging Party Union.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
issues in this case are whether the Respondent, as a suc-
cessor employer, engaged in the unfair labor practices of
945
discriminatorily refusing to hire former employees of the
succeeded employer, and refusing to bargain collectively
with the Union Charging Party, in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
The charges herein were filed 5 and 8 March 1984,
complaint issued 30 April 1984 and was amended and
consolidated on 15 June 1984, and the hearing was held
before me at Detroit, Michigan, on various days between
4 September and 25 October 1985.
On consideration of the entire record, including the
briefs filed on behalf of Respondent, Charging Party
Union, and the General Counsel, and having observed
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. BACKGROUND AND JURISDICTION
In 1975, American Motors Corporation (AMC), not a
party to this proceeding, caused the formation of Ameri-
can Center Studios, Inc. (Studios), not a party to this
proceeding, as a wholly owned subsidiary performing
graphic arts services, including typesetting, layout,
design , and photography for AMC and for other custom-
ers. AMC also maintained another wholly owned subsid-
iary, Graphic Center, Inc. (Graphic), not a party to this
proceeding, which functioned as the printing arm of Stu-
dios in providing a total and unified service under
common management and control. In 1982, AMC decid-
ed to divest itself of various nonautomotive facilities, in-
cluding Studios. In December of that year, Robert
Hunter and Donald Decker, an officer and sales manager
of Studios respectively, purchased Studios from AMC.
Although Hunter and Decker attempted to pursuade
AMC to sell them Graphic as well, AMC would not do
so. Studios continued its operations, servicing new and
existing customers, except for AMC, and having a major-
ity of its printing work performed by Graphics even
though the two companies no longer shared common
ownership, management, and control.
Rite-Way Press, Inc. (Rite-Way), not a party herein,
was a commercial printer in Detroit, Michigan, which
had been in existence since 1964 but which was experi-
encing severe financial difficulties. Rite-way was owned
in equal shares by Bill Denaro, Norbert Augustyn, and
Fred Rouls. Rite-way's production employees had been
represented by Detroit Toledo Local No. 289, Graphic
Communications International Union (the Union) and its
predecessor since some time in the 1970s. Rite-way and
the Union had been parties to successive collective bar-
gaining agreements , the most recent of which ran from 1
June 1980 to 1 May 1983.1
In March or April, Studios considered establishing its
own printing capabilities. After a series of actions herein-
after discussed, it acquired Rite-Way, or its assets, on 15
September and, on 10 October there was formed a new
corporate entity, American Press, Inc. (American), the
Respondent herein. Studios owns 81 percent of Ameri-
can, and the balance is owned equally by Denaro and
I All dates will be in 1983 unless otherwise noted
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Augustyn, each of whom hold employment contracts
from American as later discussed.
American admits to gross annual revenue in excess of
$250,000 and to providing directly to customers located
outside the State of Michigan services valued in excess
of $50,000. It is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act, and represented all Rite-
Way's production employees.2
II. ACTIONS OF THE PARTIES
A. Acquisition of Rite- Way by Studios
During the summer and fall of 1982, before AMC sold
Studios to Hunter and Decker, there were several con-
tacts between Hunter and Decker, on the one hand, and,
on the other, Denaro and Harrison Parker, then Rite-
Way's business manager . On one occasion Hunter and
Decker toured the Rite-Way plant and then had lunch
with Denaro and Parker and, on another occasion,
Denaro and Parker toured Studios' facilities after which
the four had dinner. Rite-Way was already involved in
economic difficulties and, in addition to the possible con-
sideration of finding new sources of business for their
print shop were interested, in Parker's words, in "look-
ing for some financial relief and the fact that perhaps we
could get somebody to either get involved in the compa-
ny or perhaps to buy it." Parker testified that during
dinner the four discussed, among other things, a possible
purchase of Rite-Way "or some ramification of financial
changing our operation around." Denaro asked what
would happen to the Rite-Way employees in such event,
and Decker, and possibly Hunter, responded in substance
that they did not want to get involved with a union.
Rite-Way had no similar mutual tours, and had no dis-
cussion regarding sale to any other entity until March,
1983.
Hunter denied Parker's testimony, stating that the in-
tercompany contacts were strictly attempts by Rite-Way
to add a new printing customer. Together with Denaro,
Hunter denied any statement that Studios was interested
in a print shop but did not want to get involved with a
union.
Denaro testified that in March 1983 he contacted
Hunter to ask if he was interested in buying "the print
shop" because "word was around town" that Studios
was "looking to buy a shop." About 3 weeks later
Hunter called back to arrange a meeting to inspect Rite-
Way's equipment about a month thereafter. At the meet-
ing were Hunter , Decker, Denaro, and Rouls. At the
next contact, in May or June, Studios presented a hand-
written proposal, which Denaro later discussed with
2 I e , all employees engaged in performing work , processes or oper-
ations associated with lithography , wet or dry offset printing , photo en-
graving, itagho, gravure or any technological or other change, evolution
of or substitution of the above-named work , processes , or operations,
bindery employees , shipping and maintenance employees , cold type em-
ployees (including proofreaders, keyliners , keyboard operators, and
photon employees) employed by Rite-Way Press, Inc, but excluding all
sales employees, professional employees, office clerical employees, super-
intendants , guards and supervisors as defined by the Act
Rouls and Augustyn. This handwritten proposal was not
available and is not part of the record, but it was gener-
ally an offer to take the physical assets of Rite-Way in
return for $25,000 plus assumption of Rite-Way's out-
standing debt balance of $138,000 on its purchase 2 years
before of a Heidelberg press for $188,000. About 2 weeks
later this offer was typed and given to Denaro to show
Rite-Way's accountant. This document also was unavail-
able and not in the record. A "purchase agreement" was
then prepared and signed, and on September 15 a "clos-
ing" was held.
The purchase agreement between Rite-Way, as seller,
and American, as purchaser, dated 12 August, was enti-
tled Asset Purchase Agreement, provided that on a
future closing date Rite-Way "will sell to Purchaser and
Purchaser will purchase from seller, all of the business
and assets (excluding the assets in Exhibit A . . . ) of
Seller . . . . The purchased assets shall consist of all
assets (other than the Excluded Assets), properties,
rights, purchases, claims and licenses owned by seller
and used in its business." The physical assets specifically
excluded consisted of three cabinets, a saw, a Model 8
Linotype with 7500 pounds of lead, a hand feed, a Kluge
12 by 18, and a check protector.
The assets specifically included consisted of all other
assets on Rite-Way's May 31 balance sheet plus any ordi-
narily kept or acquired in the course of business; all
leases, purchase orders, customer orders, sales, and other
contracts; all trademarks, trade names, etc; and all cus-
tomer lists and other data relating to "the purchased
assets, business and operations of the Seller." The 45
specified physical assets to be purchased included the
Heidelberg press, which was the major item of machin-
ery, and other printer's machinery such as presses, cut-
ters, stitchers, folders, feeders, gluers, binders, etc., plus
office equpment such as cabinets, desks chairs, tables,
safe, typewriters, etc. As an exhibit, Rite-Way provided
the names and annual compensation "of salaried employ-
ees," the same information "of union employees," and
lists of "The Customers, Distributors and Dealers of Sell-
ers. II
Contemporaneously with the closing an employment
agreement was entered into between American, Denaro,
and Augustyn. Denaro and Augustyn were hired for a
36-month period, each to serve full time "as salesman
and bindery/press operator" for American. Compensa-
tion to the employees was to be twofold: first, a direct
salary of "not less than" $600 per week, and second, for
a period of 4 years, i.e., extending 12 months after the
term of employment, a commission of 3 percent of sales
to previous Rite-Way customers, up to but not less than
a total commission of $75,000. Denaro and Augustyn, in
turn, agreed not to compete during the term of employ-
ment, and to jointly purchase 19 percent of American's
stock for $12,500.
Also contemporaneously, by a "consultant agreement"
dated 15 September in consideration of their entering
into the above-employment agreement, Denaro and Au-
gustyn agreed to equally divide the commissions re-
ceived under the employment agreement with Frederick
B. Rouls, who had been, with them, an equal owner of
AMERICAN PRESS
Rite-Way. Rouls was to "consult with and assist"
Denaro and Augustyn in producing the sales on which
the commissions were to be paid. American was not a
party to this agreement.
An additional agreement prior to the execution of doc-
uments and closing related to the lease of the premises at
which Rite-Way was conducting its business . The build-
ing was owned by "BARD," a co-partnership consisting
of Denaro, Augustyn, Rouls, and one Bek, who had been
one of the original coowners of Rite-Way but had previ-
ously been bought out by the remaining three. Rite-Way
had no written lease , and was paying a monthly rental of
$1250. American left all assets in place, though it did do
some alterations and, also with no written lease, is
paying a monthly rental of $1325 to BARD.
B. Rite-Ways Notice to the Union
The current bargaining agreement between Rite-Way
and the Union was to expire 31 May 1983, and Denaro
began negotiating with union representatives in January.
There were seven or eight negotiating sessions between
then and 12 August. Gerald Deneau, vice president of
the Local Union was at that meeting, as he had been at
the earlier meetings , and particularly wanted to speak
with Denaro having received an anonymous phone call
on 5 August from a woman who stated that Rite-Way
was going to be taken over by American, closed for sev-
eral weeks, and then reopened to get rid of the Union
and the bargaining agreement. Denaro, however, denied
the "rumor" and stated that in fact Right Way had re-
jected two offers because the prospective purchaser
"wouldn't take the employees or the Union contract."
On 30 August, Rite-Way's counsel, Boyer, phoned
Deneau and told him Rite-Way was closing and that
Boyer wished to meet with the Union regarding vacation
pay due, and to make arrangements for an orderly termi-
nation . Deneau asked Boyer to bring to that meeting, to
be held 2 September, information on sale of any equip-
ment and accounts receivable. At the meeting Boyer told
Deneau that the plant was closing and would not there-
after operate and that the owners of the building were
looking for another tenant. When Deneau told Denaro
he had heard that there were "new owners" of Rite-Way
and that Denaro had already been employed by them for
when they reopened the plant, Danero denied all and
claimed to be looking for a job elsewhere. Deneau de-
manded information and copies of agreements regarding
the claimed sale of machinery, to which he felt entitled
in conformance with the bargaining agreement and court
decisions involving ERISA pension accounts, but did not
receive the Asset Purchase Agreement until January
1984. Deneau was told at that meeting however, that the
purchaser of the Heidelberg press was "American Press,
Inc.," or "American Center Studios," and that Hunter
was the individual he could contact. In mid-September,
after Rite-Way had closed, one of their former employ-
ees phoned Deneau to ask whether he, like Denaro,
could go to work for the "new employer."
C. Rite- Way's Notice to Employees and Hirings by
American Press
947
1. Nonbargaining unit employees
Belinda Young-Werner was Rite-Way's bookkeeper
and secretary. About August she became aware of nego-
tiations with Hunter and approached Denaro, expressing
concern about having to look for another job. Denaro
told her not to worry, and he spoke with Hunter recom-
mending her. Shortly thereafter, when Denaro told other
employees that Rite-Way would be closing, he told
Young-Werner that if she was interested in employment
at the new company, she should make an appointment
with Hunter and Decker. She did so and arranged an
interview on 2 September. At the interview she was of-
fered a job, substantially similar to that which she held
for Rite-Way, commencing immediately upon Rite-Way's
closing. She began work for American Press on 19 Sep-
tember, but was not required to fill out an employment
application until after having started to work.
Sherwood Kogelshatz was Rite-Way's estimator, and
Denaro also spoke to Hunter on his behalf. Kogelschatz
was interviewed by Hunter, Decker, and Bernie Johnson,
general manager of American, about the same time as
Young-Werner, and which was 2 September, and a few
days later was offerred a job with American after Rite-
Way closed. Kogelschatz' application for employment is
dated 14 September.
During the last 2 weeks of August, and early Septem-
ber, Hunter or Decker, or both, interviewed and hired
salespeople who had been associated, as employees or
brokers, with Rite-Way, including Pat Byrne, employed
26 September, and Chuck Reich, employed 12 Septem-
ber. Both Byrne and Reich submitted their applications
for employment on the same day they were hired.
2. Bargaining unit employees
a. General
About March, when Parker was leaving the employ-
ment of Rite-Way, there was a disucssion in which an
unnamed employee reported having heard that there was
an attempt to sell Rite-Way as a business. Danero's re-
sponse was that they had held a meeting with Aronson
Printing but decided not to sell because the proposed
purchaser "had not offered positions for any of the em-
ployees. They only wanted the accounts receivable."
About September 5, 1 week in advance, Denaro orally
notified Rite-Way's employees of the imminent plant
closing. When asked whether Rite-way had been sold,
Danero only stated, "I have no further comments that I
can give you or information about this other than we are
closing the business." When asked whether he and Au-
gustyn were going to retire, Denaro responded, "We
don't know at this point. We don't have jobs ourselves.
We're just going to take care of the closing of the plant
right now."
b. Hired by American Press
Ed Rye and Ray Drury worked for Rite-Way as a
team operating the Heidelberg press, Rite-Way's most
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
important piece of physical equipment. After Denaro had
announced that Rite-Way was going to close, he told
Rye that-other shops-Dearborn Litho and Aronson-
were looking for pressmen to hire, and he also told Rye
that American would probably be looking for a pressman
and helper. After several requests, after Rite-Way had
closed, Denaro gave Rye Johnson's number, and also
told Rye to call his work-partner, Drury. Rye phoned
Johnson and arranged an interview at Studios, about
September 20 or 22. Rye filled out an application for em-
ployment and was interviewed and hired. Denaro had
also spoken directly with Drury, suggesting he phone
Johnson because the new people would need press oper-
ators. Johnson told him to come in on 21 September, fill
out an employment application, and be interviewed, all
which he did, and he was then hired.
Roger Young was a layout stripper at Rite-Way, and
after it closed obtained employment elsewhere, starting
12 September. In early October he was phoned by fellow
former employee Reich, who was then a salesman for
American Press and who told him that Denaro and
Johnson could not call him directly, but wanted Young
to phone about a job. Young asked why they did not call
another fellow former employee, John Mohan, who was
then unemployed, and Reich told him that he did not
think Denaro and Johnson would hire Mohan, or Bolda,
"because they were too pro-union." Young did phone
Johnson, who asked him to come for an interview. When
Young responded that he could not because he was
working, Johnson said that he already knew of Young's
qualifications and offered him a job at a stated salary.
Because the salary was not sufficient for him, even
though more than he had received from Rite-Way,
Young rejected the job offer.
c. Not hired by American Press
Seven of the bargaining unit members were not hired
by American Press. The following concerns the notice to
them and other matters affecting their employment.
Calvin and Charlotte Casteel and Stella Roulette
Casteel, his wife, Charlotte, and his mother, Stella
Roulette, were all bookbinders employed by Rite-Way.
Casteel testified as follows: On 6 September, Denaro
spoke privately to him and his wife , telling them that the
shop would close in a week but that Casteel should not
look for a new job because he would be better off after-
wards. Several days before Rite-Way closed, Casteel
again spoke privately with Denaro, at which time
Denaro affirmed that the shop would reopen under the
name American Press , and that the three Rite-Way
owners hoped each to have a 15-percent interest in the
new entity. On his last day of work, 15 September, Cas-
teel asked Denaro what he should do and was told to
take a vacation and phone when he got back. This Cas-
teel did, phoning Denaro on 29 September. Denaro then
told him to phone Johnson, whom Casteel had known
previously. Johnson told him that because he had been
required to "use his own people" there were presently
no openings, but to "make an appointment , come by, fill
out an application." Johnson then amended this, saying
that he knew Casteel's qualifications and that if some-
thing came up he would "get in touch." Casteel gained
employment shortly thereafter at another print shop,
again as a binder. On 13 October Denaro delivered a job
to Casteel's new employer and, in conversation with
Casteel, said he did not understand why Johnson had not
contacted him, "except that he figures you and Charlotte
might want the union back." On 25 October Johnson
came to Casteel's new employer to pick up a job, and
when asked by Casteel about employment replied that
they did not currently need help, and further said:
I don't want any problems with the union. I have
had enough of Local 289 to last me the rest of my
life.
Denaro denied the conversations ascribed to him.
Johnson also denied the comment regarding not wanting
"problems with the union," alleging specifically that he
did not know or refer to the Union as "Local 289," but
rather as the "L.P.I.U.," which was the union of the li-
thographers and photoengravers at the shop where he
worked until 1977, and that, though he was in Detroit
for several years prior to the events herein, kept himself
informed about the printing business, and taught at the
union-sponsored trade school, he was unaware of the
merger in 1973 of that union into the Graphic Arts Inter-
national Union, of which Local 289 is a part.
Robert Bolda
Bolda was a pressman employed by Rite-Way. He
heard Denaro's general statement about the plant closing
12 September. Several weeks prior to that announce-
ment, Denaro had told Bolda that there were no prob-
lems and that Bolda would "always have a job." After
the shop closed, Bolda was told by his former coem-
ployee, Ed Rye, that if he wanted to work at American,
he would have to phone first, see that Johnson would be
there, , and get an employment application from him.
Bolda started a temporary job at another shop, but on his
next-to-last day there phoned American. He did not
make an appointment or go there that day, but did go at
the end of his work the next day, shortly after 4'p.m. He
saw and spoke to Denaro, who said he was not in charge
and that Bolda would have to see Johnson. Johnson was
there, but when Bolda asked about a job he told him he
would first have to get an application and submit it, and
that Johnson was busy and did not have time for it right
then.
John Mohan
Mohan was employed by Rite-Way as a foreman in
the preparations department. He also first heard of the
shop closing about a week in advance. On 14 September,
when picking up his last check, Mohan was told by
Denaro that he, Denaro, and Augustyn, did not have
jobs. Mohan did not find employment until 13 October.
Among other efforts, Mohan checked the want ads in
the Detroit News and sent a resume to a box number of
a blind ad inserted by American, which will be later dis-
cussed. Mohan eventually discovered that American
AMERICAN PRESS'
Press was operating at the former Rite-Way location and
that he would have to submit an application to be con-
sidered for employment, but because he also discovered
that the, blind advertisement which he had answered was
that of American, he did not bother to do so.
Gale Willard
Willard was employed by Rite-Way as a cameraman
and platemaker. One and a half months- after American
opened, Denaro called Willard and asked him to show
another employee how to work an old camera. Willard
did so, and Johnson paid him $50 for his time. He was
never advised about filing an application for employ-
ment. At the time Rite-Way was closing, Willard had 7
months before he could, at age 60, retire under the union
pension plan. Willard told Denaro that if the shop were
sold he would just wait the 7 months and then retire.
Several months prior to closing, Denaro had sent Wil-
lard to Studios to use their camera while Rite-Way's was
broken, and at that time mentioned it as the entity which
was going to purchase the Rite-Way business.3 Denaro
denies making this statement.
d. Solicitation of non-Rite- Way personnel
During late July and early August , and on 18 Septem-
ber, in contemplation of some contract with Rite-Way,
American placed blind help-wanted ads in the Detroit
News and in the Detroit Free Press , seeking applicants
for a second-shift operation . It was American 's custom to
make these advertisements "blind" to screen out unquali-
fied applicants . Johnson and Hunter testified that these
ads were placed to compile a listing of qualified possible
employees , as opposed to advertisements placed in De-
cember, giving Johnson 's telephone number , which were
placed to fill immediate openings . As Hunter testified,
"[G]ood help is hard to find . This is a tough town and
most good quality press men and binders and what have
you are already employed."
D. Bargaining Demands on American Press
The Union was engaged in collective bargaining with
Denaro during the entire period that Rite-Way and
American were negotiating their agreement, that Denaro
and Augustyn were negotiating their employment with
and investment in American, that Denaro, Augustyn, and
Rouls were arranging division of future commissions
from American and, presumably, American was negotiat-
ing with Denaro, Augustyne, Rouls, and Bek as owners
of the premises. After Denaro advised of the "sale" of
the assets the Union continued its negotiations, now on
the issues of closing the operation. The Union sought in-
formation about assets, including a copy of the alleged
sales agreement which was refused until finally provided
on 4 January 1984, in settlement of the Union's charge to
the Board on that point. By telegram of 23 February
1984, the Union requested American to engage in negoti-
ations on reinstatement of terminated Rite-Way employ-
3 This sentence refers to testimony by Willard, not part of his direct
examination , and was given only after he had reviewed his affidavit to a
Board representation.
949
ees and resolving other differences. A response from
Hunter was received on 9 March 1983, taking the posi-
tion that there was no bargaining obligation-because the
Union did not represent a majority of employees. Ameri-
can has always held the position that it is, a mere pur-
chaser of some of the assets of, and is not a successor
employer of Rite-Way. The production work^of Ameri-
can is performed by 10 employees, 2 of whom are
former Rite-Way employees and union members, and '2
other employees, Nashotka and Hamilton, also are union
members. Of the other four employees, one transferred
from Studios, and three were new hirees from nonunion
shops.
Rite-Way maintains its corporate viability, though it
engages in no business operations.'
E. Business Operations of American Press After
Agreement With Rite- Way
As a print shop, American's business comes from two
sources from its corporate parent, Studios, and from
former customers of Rite-Way. For its first year of oper-
ation, October 1983 through September 1984, 63' percent
of the billings came from Studios, and 37 percent from
former Rite-Way customers. That 37 percent represents
$1,521,800 in sales to former Rite-Way customers, while
an additional $300,000 in prior Rite-Way billings was
lost. In other words, approximately 83 percent of Rite-
Way's business was continued by American and 17 per-
cent lost. In terms of the number, of accounts billed; for
the same first year American billed an average of 25.6
customers per month, of which an average 20.7, or 81
percent, were former Rite-Way accounts.
American made physical improvements in 'operations.
The premises were painted, carpeted, provided with an
entrance hallway, a conference room, interior and exteri-
or security, and a darkroom. The phone system was
changed, furniture and operating equipment added, work
flow improved, and certain business procedures changed.
American uses the same suppliers previously used by
Rite-Way, those suppliers being generally "generic" to
the local printing trade.
Ill. DISCUSSION
A. Credibility Issues
1. Regarding Denaro
The initial issue posed by the testimony is whether, de-
spite denials, Denaro made certain statements to Rite-
Way employees-to Costeel that after closing the Rite-
Way plant would reopen as American and,that he fig-
ured American did not employ Casteel and his wife be-
cause they would want the Union back; to Willard that
American was purchasing the Rite-Way business; and to
Willard, Bolda, Mohan and Casteel, his failure to advise
that if they wanted to be considered by American for
employment when the shop reopened they should obtain
and submit an application.
There is no doubt that Denaro lied to these and other
employees on several occasions, regarding associated
topics-that Rite-Way was closing and the shop would
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not reopen , and that he and Augustyn would have no
jobs or employment after the closing . Though it may be
that Denaro took action both before and after his initial
contacts with American to protect Rite-Way's employ-
ees, there is no question but that his testimony and be-
havior was evasive and explicitly showed prior false
statements . I can but find that his denials at the hearing
must be discredited , and that Denaro did in fact know
before the closing and indicate to some employees that
American was going to purchase Rite-Way and operate
it as a nonunion shop , while at the same time not advis-
ing them that they should file an application seeking re-
employment.
2. Regarding Johnson
The credibility issue here is whether Johnson made a
statement to Casteel fraught with union animus , to wit,
that he wanted no problems with the Union , having had
enough of such problems to last him the rest of his life.
To buttress his bare denial , Johnson incorporates an ar-
gument which I find specious. Given his close associa-
tion with the industry involved , I cannot accept his testi-
mony that he was unaware the union he had known as
the L .P.I.U. had merged in 1973 , 10 years prior to the
statement, with the Graphic Arts International Union of
which Local 289 was the Toledo and Detroit representa-
tive . I credit Casteel 's testimony and find that Johnson
did in fact make the comment in question, and that
American intended to operate its business as a nonunion
shop.
3. Regarding Hunter
It is alleged that at dinner after meetings with Denaro
and Rite-Way's then general manager, Parker , Hunter,
and/or Decker stated in regard to rehiring Rite-Way em-
ployees that they did not want to get involved with a
union . Hunter denied that such statement had been made.
The allegation was made by Parker , who is no longer as-
sociated with any party to this proceeding and to whom
no specific bias can be shown . Though cross -examination
did reveal that Parker was uncertain regarding details of
this dinner conversation held over 2 years prior to the
hearing , he remained firm in his recollection of the state-
ment regarding the Union . Though Denaro was recalled
as a witness he did not dispute that such a statement was
made . Decker , the only other person present at the
dinner, was not recalled to rebut the testimony. I find
that credence must be given to the testimony of Parker,
the only unbiased witness , and that the representatives of
American expressed an intention to operate their print
shop after the purchase from Rite-Way as a nonunion
shop.
B. Successorship
The central issue in this proceeding of course is
whether American is a successor employer to Rite-Way.
The Board has succinctly stated the ramifications of
successorship as follows:'
• Mondavi Foods Corp, 235 NLRB 1080, 1082 (1978)
When all or part of a business is sold , certain
legal obligations of the seller devolve on the pur-
chaser . When there is substantial continuity in the
identity of the employing enterprise , one such obli-
gation will be that of the employer to recognize and
bargain with a union which represents the former
owner's employees. However , if in the course of the
transfer there have been substantial and material
changes in the employing enterprise , the new em-
ployer will not be found to have succeeded to the
bargaining obligation of the former employer.
In cases involving the successorship issue, the
Board 's key consideration is "whether it may be
reasonably assumed that, as a result of transitional
changes , the employees' desire concerning unioniza-
tion [have] likely changed." The Board considers a
variety of factors in determining whether the new
employer has succeeded to the former employer's
bargaining obligation . Certainly a prime factor is
whether the purchaser has hired a sufficient number
of former employees of the seller to constitute a ma-
jority of the employee complement of the appropri-
ate unit.
Before getting to that "prime factor" of employment of a
sufficient number of former empoyees, however, let us
enumerate and consider that other "variety of factors."
Although not all the circumstances need be present to
show successorship,5 the Board has enumerated them as:
[W]hether (1) there has been a substantial continuity
of the same business operations ; (2) the new em-
ployer uses the same plant ; (3) the same or substan-
tially the same work force is employed; (4) the same
jobs exist under the same working conditions; (5)
the same supervisors are employed ; (6) the same
machinery, equipment , and methods of production
are used ; and (7) the same product is manufactured
or the same services offered.6
In the case at hand there can be no question but that
American, as Studios' printer and as printer of over 80
percent of Rite-Way 's volume on former customers, is
substantially in the same printing business as Rite-Way
was; that with the exception of some cosmetic changes
and small additions of equipment , American uses the
same plant , the same machinery , the same equipment,
and the same methods of production as Rite-Way previ-
ously used ; that the same printing services are offered
and the same printing product is manufactured by Amer-
ican as was offerred and manufactured by Rite-Way; and
that , within the bargaining unit , the same jobs exist under
the same working conditions at American as existed at
Rite-Way.
The only substantive difference between the operations
of American and of Rite-Way is in the identity of the su-
pervisors employed . It is clear that Johnson is the sole
supervisor for American , while Denaro and/or Augustyn
was supervisory personnel at Rite-Way.
6 Georgetown Stainless Mfg Corp, 198 NLRB 234 (1972).
6 Border Steel Rolling Mills, 204 NLRB 814, 815 (1973).
AMERICAN PRESS
Finally, and most important, we must confront what
has been referred to as the "threshhold" criterion of con-
tinuity of work force. "Notwithstanding its continued re-
ferance to a `totality of circumstances' in determining
successorship, it has been apparent, at least since Burns
(NLRB v. Burns Security Services, 406 U.S. 272 (1972))
that the threshhold criterion in determining successorship
is the continuity of the work force; in no Board decision
since Burns has a successorship been found absent a find-
ing of majority." (Citations omitted.)? Until the actual
time that the new employee complement contains a ma-
jority of the predecessor's employees, the new employer
is not, as a successor, bound to bargain with the Union.8
Until such time, so long as he does not discriminate on
grounds of union membership, it is equally clear that the
new employer is free to offer employment to whomever
and on whatever terms he choses. NLRB v. Burns Securi-
ty Services, supra; Howard Johnson Co. v. Detroit Joint
Board, Hotel & Restaurant Employees, 417 U.S. 249
(1974).
In exercising this freedom of selection the employer
may not engage in the discriminatory exclusion of hold-
over employees based on a desire to avoid having to rec-
ognize a union or because of the union membership or
activities of individuals.9 Where the Union would have
held majority status were it not for the discriminatory re-
fusal to hire, the successor is generally subject to a bar-
gaining order.' °
It is obvious from the statements of Hunter to Parker
and Denaro, and of Johnson to Casteel, that American
Press intended to commence its operations, and to con-
tinue them, as a nonunion shop despite the previous
union representation of employees in the print shop it
was succeeding. This, together with the other affirmative
criteria of successorship, would be sufficient to declare
American as a successor employer. There are, however,
additional factors.
Denaro stated that he thought the reason why Casteel
and the members of his family were not hired by Ameri-
can Press was their union affiliation, and Reich stated to
Young that he did not think Mohan or Bolda would be
hired because they were too prounion. Respondent
argues that neither statement can be attributed to Ameri-
can because both were mere matters of opinion only, ut-
tered by persons beyond the scope of their employment
° Morns (Section of Labor and Employment Law, American Bar As-
sociation), The Developing Labor Law, (The Bureau of National Affairs,
Inc, Washington, D C ), vol I, p 726
8 An exception, when the new employer planned to retain all holdover
employees, is not applicable here
8 Howard Johnson Co v Detroit Joint Board, supra at 262, NLRB v
Burns Security Services, supra at 280 fn 9, NLRB v Kimbell Foods, 496
F2d 117 (1974), enfg 201 NLRB 933 (1973), Sousa & Sons, 210 NLRB
982 (1974), Hudson River Aggregates, 246 NLRB 192 (1979), Love's Barbe-
que Restaurant No 62, 245 NLRB 78 (1979), Houston Distribution Serv-
ices, 227 NLRB 960 (1977), enfd 573 F 2d 260 (1978), cert denied 439
U S. 1047 (1978), Potter's Drug Enterprises, 233 NLRB 15 (1977), enfd
mein 584 F 2d 980 (9th Cir 1978), Mason City Dressed Beef 231 NLRB
735 (1977), enfd in part sub nom Packing House & Industrial Services v
NLRB, 590 F 2d 688 (8th Cir 1978), Crawford Containers, 234 NLRB 851
(1978), Nevis Industries, 246 NLRB 1053 (1979)
10 Hudson River Aggregates, supra, Love's Barbeque, supra, Houston Dis-
tribution Services, supra; Kimbell Foods, 201 NLRB 933 (1973), enfd 496
F 2d 117 (5th Cir 1974), Potter's Drug Enterprises, supra , Greengate Mall,
209 NLRB 37 (1974)
951
and authority by American and hence beyond the bind-
ing effect of the law of agency or respondent superior.
The Board, however, holds that strict rules of respondent
superior are not applicable to determine whether an em-
ployer can be charged with the actions of an agent, and
it need not be shown that the actions were authorized or
ratified. Pepsi-Cola Bottling Co., 242 NLRB 265, 269
(1979). The test rather is whether, under all the circum-
stances , employees could reasonably believe the person
whose status is at issue reflects company policy and is
speaking and acting on behalf of management . Aircraft
Plating Co., 213 NLRB 664 (1974); Montgomery Ward &
Co., 228 NLRB 750 (1977). A former owner, particular-
ly, has been found to be an agent of the new owner
when he served in some official capacity for the new
owner. Joe & Dodie's Tavern, 254 NLRB 401, 411 (1981);
Garrett Flexible Products, 270 NLRB 1147 (1984). Denaro
was a former owner and present part-owner, and was re-
quested by American Press to contact former Rite-Way
employees, and it was quite natural for a former employ-
ee to accept him as an agent of American Press. Even
Reich, though he was not a former or present owner,
identified himself as having been asked by Johnson to
call regarding employment and, under the circumstances
Casteel acted reasonably in believing that Reich's
thoughts accurately reflected those of American. See
Quality Drywall Co., 254 NLRB 617, 620 (1981); Ameri-
can Lumber Sales, 229 NLRB 414, 420 (1977).
Thus, American has met virtually all the criteria of a
successor employer: it has, or but for its antiunion policy
would have, employed a majority of Rite-Way's union
workers; it uses substantially the same plant, equipment,
and procedures, from the same sources, to produce the
same goods or services, for consumption by a substantial
number of Rite-Way's former customers. In the totality
of the circumstances, I find that American is a successor
employer to Rite-Way.
C. Discrimination in Failing to Employ
This topic has been sufficiently covered above. It has
been proven that American negotiated for the purchase
of Rite-Way with the intention of operating as a non-
union shop, contrary to the desires of a majority of unit
workers then employed; that it made known its policy to
the seller, Rite-Way, and, after the sale, to the former
employees. While rehiring all of the nonunionized em-
ployees, American hired only those two production em-
ployees whom it could not otherwise replace and hired
other employees without permitting Rite-Way former
employees a reasonable opportunity to be considered.
D. Failure to Bargain
As discussed, supra , American is a successor employer,
and is thereby bound to bargain with the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) and Section 8(d)
of the Act, by interfering with the exercise of rights
guaranteed in Section 7 of the Act, by discriminating in
regard to the hiring and conditions of employment,
thereby discouraging membership in a labor organization,
and by refusing to bargain collectively with the repre-
sentative of its employees.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
and Section 8(d) of the Act, I recommend that Respond-
ent cease and desist therefrom , and take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent will be required to recognize and bargain
with Detroit-Toledo Local No. 289, Graphic Communi-
cations International Union in its appropriate collective-
bargaining unit and, if agreement is reached, to reduce
the agreement to a written contract. Respondent will be
required to reinstate employees Calvin Casteel, Charlotte
Casteel, S. Roulette, R. Bolda, J. Mohan, G. Willard, N.
Wilson, and R. Young, and make them whole for any
losses they may have suffered as a result of the discrimi-
nation against them from October 10, 1982 to date, less
net interim earnings during that period. Backpay shall be
computed in accordance with F W. Woolworth Co., 90
NLRB 289 (1950), with interest as proscribed in Florida
Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication.]