Century Printing Co.

National Labor Relations Board - Board Decisions

May 30, 1979

242 N.L.R.B. 659 (N.L.R.B. 1979)

CENTURY PRINTING COMPANY
Lewis Canter d/b/a Century Printing Company; and/
or Stanford G. Davis, as Receiver-Trustee for Lewis
Canter d/b/a Century Printing Company; and/or
John Wilson d/b/a Century Printing Company;
and/or Century Printing, Inc. and Graphic Arts In-
ternational Union, Local 24-L, AFL-CIO-CLC.
Case 6-CA-9869
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that the complaint allega-
tions not specifically found herein be, and they
hereby are, dismissed.
APPENDIX
May 30, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On June 16, 1978, Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached Decision in
this proceeding. Thereafter, the General Counsel, the
Charging Party, Respondent Stanford G. Davis, as
Receiver-Trustee for Lewis Canter d/b/a Century
Printing Company, and Respondent John Wilson d/
b/a Century Printing Company, and/or Century
Printing, Inc., filed exceptions with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondents, Lewis Canter d/b/a
Century Printing Company; and/or Stanford G. Da-
vis, as Receiver-Trustee for Lewis Canter d/b/a Cen-
tury Printing Company; and/or John Wilson d/b/a
Century Printing Company; and/or Century Print-
ing, Inc., Pittsburgh, Pennsylvania, their officers,
agents, successors, and assigns, shall take the action
i The General Counsel and the Charging Party have expected to certain
credibuiaty findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing his
findings.
Inasmuch as we agree with the Administrative Law Judge's finding that
Respondent Corporation is an alter ego to Respondent Company we deem it
unnecessary to pass on his further finding that the corporation is also the
successor of the Company.
NOTICE To EMPLOYEES
POSTED BY ORDER OF HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides were given the op-
portunity to participate, it has been found that we
have violated the National Labor Relations Act, as
amended, in certain respects. To correct and remedy
these violations, we have been directed to take certain
action and to post this notice.
WE WILL NOT refuse to recognize and bargain
with Graphic Arts International Union, Local
24-L, AFL-CIO CLC, as the exclusive bargain-
ing representative of the employees in the follow-
ing unit found appropriate for purposes of col-
lective bargaining:
All lithographic employees, including all
pressmen, feeders, stripper platemen, and
cameramen employed by Lewis Canter d/b/a
Century Printing Company: and/or Stanford
G. Davis, as Receiver-Trustee for Lewis Can-
ter d/b/a Century Printing Company; and/or
John Wilson d/b/a Century Printing Com-
pany; and/or Century Printing, Inc., at our fa-
cility in Pittsburgh, Pennsylvania, excluding
all office clerical employees, professional em-
ployees, guards, and supervisors as defined in
the Act, and all other employees.
WE WILL NOT make changes in the terms and
conditions of employment of the employees in
the above-described unit without first consulting
and bargaining with the above-named Union
concerning such changes.
WE WILL NOT deal individually with unit em-
ployees concerning their terms and conditions of
employment in disregard of their Union.
WE WILL NOT sell or otherwise transfer the as-
sets of our business without first bargaining with
the above-named Union about the effects of such
action.
WE WILL NOT lay off and replace unit employ-
ees without first bargaining with the above-
named Union with respect to such action.
WE WILL NOT discourage membership in the
above-named Union, or any other labor organi-
242 NLRB No. 108
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation, by layoffs or by otherwise discriminating
against employees because of their union mem-
bership or activities.
WE WILL NOT refuse to recall laid off employ-
ees and hire other employees in order to get rid
of the above-named Union.
WE WII.. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed under Section 7 of the
Act.
WE WILL recognize and, upon request, bargain
in good faith with the aforesaid Union as the
exclusive representative of our employees in the
above-described bargaining unit and embody in
a written, signed agreement any understanding
reached.
WE WILL offer Donald Vasbinder, Herman
Baumgarten, Cleon Richardson, and Charles
Diederich immediate and full reinstatement to
their former jobs or, if their jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, terminating, if nec-
essary, employees later assigned to replace them.
and WE WILI. make them and Frank Lugar
whole, with interest, for any loss of earnings or
other benefits they may have suffered as a result
of their discriminatory layoffs.
WE WILL make whole the above-named indi-
viduals for any medical and hospital expenses
incurred and for other moneys which would have
been payable under the sickness, accident, and
disability funds in the period from December 20,
1976, to February 23, 1977, and WE WILL make
such payments to the pension and educational
and training funds as would have been made in
that period had we not disregarded the collec-
tive-bargaining agreement.
LEWIS CANTER D/B/A CENTURY PRINTING
COMPANY
STANFORD G. DAVIS, AS RECEIVER-TRUSTEE
FOR LEWIS CANTER D/B/A CENTURY PRINT-
ING COMPANY
JOHN WILSON D/B/A CENTURY PRINTING
COMPANY
CENTURY PRINTING, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
This case was heard in Pittsburgh, Pennsylvania, on Sep-
tember 6 and 8, 1977, pursuant to charges filed by Graphics
Arts International Union, Local 24-L, AFL-CIO-CLC,
herein the Union,' and a complaint issued on July 25, 1977.
The complaint alleges that Lewis Canter, d/b/a Century
Printing Company, herein Respondent Company; and/or
its asserted alter egos or successors, Stanford G. Davis, as
the Receiver-Trustee in bankruptcy of Respondent Com-
pany; John Wilson. d/b/a Century Printing Company;
and/or Century Printing, Inc., herein Respondent Corpora-
tion, violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. Respondents in answer-
ing the complaint denied the commission of unfair labor
practices.
ISSU ES
I. Whether Respondents are alter egos and/or whether
other Respondents are successors to Respondent Company.
2. Whether Respondent Company violated Section
8(a)(3) of the Act by laying off employees Cleon Richard-
son, Donald Vasbinder, Herman Baumgarten, Charles Die-
derich, and Frank Lugar from their employment at Re-
spondent Company, and thereafter refusing to recall or
rehire them because of their membership in the Union
while the plant was under the consecutive administrations
of the Receiver-Trustee and Respondent Corporation, and
whether Respondents, having subsequently recalled Lugar,
later constructively terminated him because of his contin-
ued membership in the Union.
3. Whether Respondents violated Section 8(a)(5) of the
Act by refusing to bargain with the Union as the recognized
representative of its employees in an appropriate unit em-
bodied in the existing collective-bargaining agreement be-
tween Respondent Company and the Union2 and by at-
tempting to escape from this bargaining relationship by
ultimately transferring the employees and operation to Re-
spondent Corporation, a nonunion company.
4. Whether Respondents also violated Section 8(a)(5) of
the Act by the failure and refusal of Respondent Corpora-
tion to apply the terms of the above collective-bargaining
agreement to its unit employees both before and after repu-
diation of the contract by the Receiver-Trustee in bank-
ruptcy.
All parties were given full opportunity to participate,
produce relevant evidence, examine and cross-examine wit-
nesses, and file briefs. Briefs, which have been carefully
considered, were filed by the General Counsel, the Union,
and Respondents.
Upon the entire record of the case' and from my observa-
tion of the witnesses and their demeanor, I now make the
following:
'The original and first amended charges were filed on January 14 and
June 28, 1977, respectively.
The appropriate unit as actually employed by Respondent Company
was:
All lithographic employees, including all pressmen, feeders, stripper
platemen and cameramen employed by the Respondent Company at its
Pittsburgh, Pennsylvania, facility, excluding office clerical employees,
professional employees, guards and supervisors, as defined in the Act,
and all other employees.
3 The General Counsel's unopposed post-hearing motion to correct page
33, line 16 of the transcnpt to read, "I have not consulted," is hereby
granted.
660
CENTURY PRINTING COMPANY
FINDINGS OF FA(TI
1. TilE BtSINFSS OF RSPONI)IN S
Lewis Canter. d/b/a Century Printing Company, a sole
proprietorship with its only place of business in Pittsburgh.
Pennsylvania, was engaged in the nonretail printing busi-
ness until on or about January 7, 1977, when voluntary
bankruptcy proceedings were instituted by Respondent
Company in the United States District Court for the West-
ern District of Pennsylvania.
On or about January 10, 1977. Stanford G. Davis. Esq..
herein the Receiver-Trustee, was appointed Receiver of Re-
spondent Company's estate by the district court and, at the
first meeting of creditors on or about February 23, 1977.
was named trustee, with continuing authority to operate
Respondent Company's business.
On about February 18, 1977, John Wilson, an individual.
submitted an offer to purchase the assets of Respondent
Company, which offer was approved by the court on March
16, 1977.
On about April 1, 1977, Wilson and Ruth Canter, wife of
Lewis Canter, incorporated Respondent Corporation in the
Commonwealth of Pennsylvania. which thereafter has op-
erated the business enterprise.
During the 12-month period preceding the issuance of
the complaint and notice of hearing herein Respondent
Company performed services valued in excess of $50,000
for persons who were themselves engaged in interstate com-
merce.
During the 12-month period preceding the issuance of
the complaint herein. Respondent Company and Respon-
dent Corporation shipped goods and materials valued in
excess of $50,000 from their Pittsburgh. Pennsylvania. facil-
ity to points directly outside the Commonwealth of Penn-
sylvania. During the same 12-month period. Respondents,
Company and Corporation, received goods and materials
valued in excess of $50,000 from points directly outside the
Commonwealth of Pennsylvania for use at their Pittsburgh.
Pennsylvania, facility.
The complaint alleges, Respondents admit, and I find
that Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOI.VED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
tll. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The alleged status of the Respondents as alter egos and
successors to the Respondent Company
Before the start of 1977, Respondent Company, engaged
since 1949 as an unincorporated commercial printer, was
solely owned and operated by Lewis Canter. In mid-De-
cember 1976, and for some years prior thereto. Respondent
Company was located in a building on Brushton Avenue in
Pittsburgh's "inner city." This building was owned by Can-
ter and his wife. Ruth. as tenants by the entirety. Ruth
Canter was also a salaried employee of the C'ompany who
operated the typesetting computers. However. she was not
an owner and exercised no managerial role.
Respondent Company was party to a collective-bargain-
ing agreement with the Union for its lithographic employ-
ees. who, in mid-December 1976. numbered five. The cur-
rent contract with the Union. effective May . 1975, to
April 30. 1978. provided for union security and dues check-
off, and set forth a minimum weekl' wage scale for the
various work classifications covered therein. The contract
also specified the number of unit employees required to
man the various presses and provided for contributions by
the employer on behalf of employees, to various funds in-
cluding the Lithographic Union Pittshurgh Employers
Sickness and Accident Fund: Local 24-L Graphic Arts In-
ternational Union and Union Employers Disability and
Supplemental Pension Plan: and Local 24-L, Graphic Arts
International Union and Union Employers Educational
and Training Fund.4 Respondent Company, in the first half
of December 1976. also employed approximately 10 em-
ployees who worked outside the bargaining unit in various
capacities including Esther W. Gottesman, the bookkeeper
who also did purchasing, and others who were engaged in
production-related work. such as typesetting. bindery.
pasteup, and camera preparation.
Equipment owned by Respondent Company in early De-
cember 1976 included one 2-color and two single color
presses, one platemaker and camera, four folders, two com-
puters, one headline computer, and a machine used to set
headlines.
It is undisputed that until mid-December 1976. Respon-
dent Company recognized and bargained with the Union
and, generally. applied the terms of the collective-bargain-
ing agreement to its unit employees. Respondent Company,
however, for some time, had been experiencing financial
difficulties and, on July 28. 1975., a stipulated judgment was
entered in the above district court' against Respondent
Company on behalf of the Union and the three above-
named funds on the ground that Respondent Company had
been delinquent in its remittance of vacation pay and union
dues to the Union and was substantially in arrears in its
contributions to the respective funds. The parties concur-
rently agreed. however. that execution in enforcement of
these judgments would not be made as long as Respondent
Company followed a prescribed payment schedule.
However, Respondent Company was not able to meet its
payment obligations as specified in the stipulation. Accord-
ingly, on December 8. 1976, averment of default was filed
by the Union and the three funds, and a first writ of execu-
tion was issued, which resulted only in the attachment on
about December 14. 1976, of Respondent's Company bank
account. Canter, however, remained in possession of and
continued to operate the business.
'This indusirywide collective-bargaining agreement was actually between
the Union and tInion Employers Printing Industry Association of Western
PennsyIvania. Inc. the Employer bargaining representative. On June 20.
1975. Lewis Canter and Theodore I Meers. president of the Union, signed
a memorandum b which Respondent Company became hound bN the in-
dustrywide contract and subscribed to certain other terms and conditions of
employ ment
' Cisil Action 75 364
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 5, 1977, the same plantiffs issued a second
writ of execution, as a result of which the marshal, on Janu-
ary 7, padlocked Respondent Company's building, prevent-
ing continuation of the business.
On January 10, Canter filed a voluntary petition in bank-
ruptcy and, on that date, the court named Stanford G. Da-
vis as receiver of Respondent Company's estate.' Respon-
dent Company reopened for business under Davis. as
receiver, on January 12, 1977, with the same personnel, ex-
cept that four of the five union employees, all of whom had
been laid off on or before December 18, 1976, were not
recalled to work.7 Under the receivership, Lewis and Ruth
Canter resumed their former roles with the Company, with
Lewis Canter managing all aspects of the business for the
receiver. The business continued as before, serving the same
customers and using the same equipment and essentially
the same suppliers. This arrangement remained unchanged
after the appointment as Davis as trustee in bankruptcy on
February 23 and continued until March 16, 1977, when the
court approved the purchase of the estate by John W. Wil-
son, a partner in a local public relations firm. Approxi-
mately 2 years before, Wilson's firm had offered to pur-
chase Respondent Company from Canter, but had backed
off for financial reasons and, as Wilson testified, because of
the existing union contract.
During the Christmas holiday period of 1976, while Wil-
son was patronizing Respondent's Company. Canter told
Wilson that he knew there was going to be a sale of the
business and that if Wilson ever wanted to purchase it, this
would be the time. Canter promised Wilson any assistance
that he might require and told Wilson of Respondent Com-
pany's financial situation including its attached bank ac-
count. Wilson soon expressed an interest. Thereafter. Wil-
son and Canter met several times during which the sale of
the business and Wilson's role as a prospective purchaser
were discussed.
Canter testified that during these discussions, he told Wil-
son that he felt that the latter could acquire the assets, in-
ventory, and accounts receivable of the business for $9,500.
When Wilson declared that he only had $4,500 at that time,
Canter told him that his wife, Ruth Canter, had some
money and suggested that they ask her to advance the addi-
tional $5,000. Accordingly, Canter and Wilson did confer
with Ruth Canter, who agreed to put up $5,000 of her own
funds, which sum she gave Wilson on March 12.9
No written agreement was prepared to define the terms
under which Ruth Canter delivered the $5,000 to Wilson. If
it was a loan, no interest rate or repayment schedule was
established. Canter testified that it was understood that his
I As noted, on February 23, 1977, Davis also became the trustee of the
estate.
7 The circumstances affecting the five union employees, who have been
alleged herein as discriminatees, will be considered below in a separate dis-
cussion.
s Wilson, whose race is material, unlike the Canters, is black. Wilson, who
has a college degree in the graphic arts, had worked in that field for several
years before coming a member of a public relations firm. Through his firm,
Wilson had been a customer of Respondent Company.
'Although the Canters initially testified that the $5,000 was a loan, on
closer examination, Ruth Canter later averred that the sum represented an
investment rather than a loan, and that it had been decided at the time that
a new corporation would be formed to operate the business and that she
would be an owner.
wite was to be a part of the business and that he would help
Wilson to manage it while training Wilson to independently
operate the plant. Wilson's bid to purchase the estate of
Respondent Company for the price oft'$9,500 was approved
by the court on March 16,i' at which time Wilson took
possession of the still unincorporated business.
During the period of about 2 months. from January 7 to
March 16, when Davis was receiver and later trustee, Can-
ter, as noted, continued to run the business as before, using
his former employees, except that only one laid off unit
employee, Frank Lugar, was recalled to operate the single
press then being operated." Other nonunion employees
were retrained and assigned to perfbrm jobs previously
filled by unit employees.
On April 1, 1977, the Commonwealth of Pennsylvania
approved the charter of Century Printing, Inc., Respondent
Corporation, formed to run the business of Respondent
Company. Of the 1,000 original shares of stock issued that
date, Ruth Canter received 900 shares and Wilson was is-
sued 100 shares. The Canters testified that they had made
an original attempt to keep control of the Company and
Ruth Canter specifically related that she had advanced the
$5.000 in an effort to salvage the business for which she and
her husband had worked so long and hard, and to protect
their investment.
Nevertheless, the Canters and Wilson very soon decided
that in order to attract more business, it would be necessary
for Respondent Corporation to become minority-owned. In
this way, the new corporation would be in a position to
attract customers, who, in seeking Federal governmental
contracts, would have to establish that they did a percent-
age of their business with minority-owned firms. To do this,
it was necessary that there be minority ownership of at least
50 percent plus one share of the corporate stock. Accord-
ingly, on April 4, 1977, Ruth Canter conveyed 401 of her
shares to Wilson without payment by Wilson of any addi-
tional consideration therefor. Again, except for a notation
on the stock certificate transferring the shares to Wilson of
an obligation by him to pay a sum on money in return, 2 no
additional funds were exchanged, no written agreement was
executed, and no oral understanding was reached as to a
payment schedule or for a rate of interest. However, Re-
spondent Corporation thereafter publicly represented itself
as a minority-owned business and, thus, was able to obtain
major concerns as customers, in addition to those previ-
ously served by Respondent Company.'
'° Over the objections of a creditor bank. the court approved a private sale
to Wilson.
" Lugar. who had been employed by Respondent Company as a pressman
assigned to the 2-color press, had been with the Company since 1953 and
was the most senior unit employee. Under circumstances which will be dis-
cussed below. Lugar's employment at the plant ended on March 18, 1977.
2 The face of the stock certificate giving Wilson the 401 shares bore the
following typewritten notation:
These shares cannot be transferred except upon payment to Ruth L.
Canter of the sum of $51.000 and proof of same given to the transferee.
3 The parties stipulated at the hearing that Respondent Corporation has
performed work for 86 customers, 51 of whom were former customers of
Respondent Company. Nine of the 10 largest customers of the prior Com-
pany are now customers of the Corporation. Two of the largest customers of
Respondent Company are presently the two largest customers of Respondent
Corporation. Eight of the 10 largest customers of the Corporation were for-
merly customers of the Company.
662
CENTURY PRINTING COMPANY
Although Ruth Canter owns 49 percent of Respondent
Corporation stock, she has remained inactive in the man-
agement of the business, continuing her former job of oper-
ating the typesetting computers. In so doing, since the for-
mation of Respondent Corporation, she has received a
weekly pay raise of $25 above what she earlier had received
from Respondent Company. Lewis Canter, while on Re-
spondent's Corporation's payroll, was compensated at the
same rate as his earlier weekly draw from Respondent
Company.
Lewis Canter and Wilson, in their testimony, agreed that
after March 16, when Wilson's purchase bid was approved,
Canter, in consultation with Wilson. made most of the ma-
jor decisions affecting the operation of the business, based
upon his principal experience. Accordingly, Canter testified
that after Wilson's takeover, he initially served as manager
and salesman and principally decided upon the employee
assignments, rates of pay, and how the work previously per-
formed by the unit personnel would thereafter be done.'
After January 12, when the building was reopened, Canter
brought in technicians from the camera manufacturers to
train George Kanidis. a nonunit employee, for I month in
the use of their product, enabling him to replace the former
unit cameraman, Herman Baumgarten. Donald Vasbinder,
a former unit employee who had stripped (assembled) nega-
tives prior to their reproduction on metallic printing plates,
was replaced, in part, by Canter and also by Greg Metecko,
who, before mid-December, had worked outside of the unit.
By the end of January 1977, Metecko, with the help of
Canter's training, was able to do Vasbinder's job indepen-
dently. Union member Frank Lugar continued to run the
30-inch press that had been the job of unit pressman Cleon
Richardson during the period when the Receiver-Trustee
was in charge, but Lugar left Respondent Company's em-
ploy about 2 days after the approval of Wilson's purchase
bid. Lugar was replaced by Tom Greene, a nonunit bindery
employee. Greene's bindery work was thereafter distributed
among other bindery employees. During the 2 months of
the Receiver-Trusteeship, Canter hired a press helper and a
driver. The press helper was terminated in June 1977 by
Canter in consultation with Wilson, and the driver volun-
tary left Respondent Corporation's employ in July to take
another job. In May 1977, as a result of newspaper adver-
tisements, pressman Michael Warnock was also hired by
Canter. Later in 1977, a third pressman, William Powell,
was hired by Wilson. In this manner, the work of the plant
was continued.
Canter made all the basic decisions at the plant prior to
January 7, while the business was under his sole proprietor-
ship, and, continued to do so while the Receiver-Trustee
was in charge, subject to Davis' approval. From March 16.
until about June 1, Canter still had the major voice and, in
practice, was more in charge of the business than was Wil-
son, ..hile the latter gradually gained in experience and
control. From the start, Wilson was involved in the finan-
cial matters, and had custody of personnel matters, such as
the establishment of vacation and holiday policies, the
granting of time off, and disciplinary matters, while Canter
was principally engaged in the general operation of the
14 After the plant resumed operations on about January 12, all nonbar-
gaining unit employees ultimately were recalled, but, except for Lugar, the
union personnel were not
plant. the training and assignment of employees. deciding
how the presses were to run. Both Canter and Wilson
worked in the plant 7 days a week while Canter sought to
impart his knowledge of the business. After June 1, the two
men continued to work long hours together, but Wilson was
basically in charge of the entire business. On August 15.
Canter left Respondent Corporation for a job with an out-
side concern, and, since, returns to Respondent Corpora-
tion's premises on 2 or 3 afternoons a week, as needed.
Although Canter had not been compensated by Respon-
dent Corporation since mid-August, on occasion when he is
in the plant, during Wilson's absence. Canter will answer
questions from the production crew and attempt to resolve
any difficulties.
Bookkeeper Gottesman has continued to purchase sup-
plies under Wilson, as she had before January 7.
Apart from the foregoing services and assistance to Wil-
son in acquiring and managing the business. Canter on
June 29, 1977. raised the sum of $500 which he loaned
without interest to Respondent Corporation to enable it to
meet its payroll. This sum was repaid to Canter about 2
months later. Canter also financially assisted Respondent
Corporation by not cashing his last paychecks, issued be-
tween July I and August 15. pursuant to an understanding
with Wilson that the checks would not be cashed unless
there were sufficient funds. These checks were still unre-
deemed at the time of the hearing.
Respondent Corporation continued to do business at the
premises previously occupied by Respondent Company.
which, as noted. are owned b the Canters, for which the
Corporation paid the same rent as the sole proprietorship.
Respondent Corporation uses the same telephone number
and printing equipment as did the Company, except that
Wilson also has added another 30-inch press and a multilith
press. Two principal suppliers have been changed.
Wilson testified that although the plant has been run in
essentially the same way as before since he has been in
charge. producing the same basic products, there has been a
swing over to minority customers. While. at the time of the
hearing, Respondent Corporation employed only two mi-
nority members, it is Wilson's intent, noting the plant's in-
ner city location. to gradually make it a source for minority
employment.
2. The alleged discriminatory discharges
Canter testified that on Friday, December 17, 1976, a
payday. he called a meeting of his five union employees.
Baumgarten. Lugar, Richardson, Diederich, and Vasbin-
der. and announced that while he had work for them and
they could work, he had no way to pay them as the Union
had attached Respondent Company's bank account.' He
asked if they would speak to the Union about releasing the
account so that the Company could operate. None of the
employees replied to this request.',
IS The hank account in the name of Respondent Company. as noted, had
been attached about 2 days earlier under the first levy ordered by the Union
and the funds.
"' Canter, in his tt,timony, explained that the approximately 10 nonunion
employees had not been called to this meeting as the smaller number of
union employees constituted two-thirds of this payroll costs and as the
nonbargaining unit employees were paid from a separate unfrozen bank
account jointl\ owned by the Canters.
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canter related that the unit employees did not appear for
work on the next business day, Monday. December 20. and
did not thereafter respond to his request that they intercede
with the Union with respect to the bank account." Canter
related that he did not recall any of the unit employees to
work after December 20, except for Lugar, because he was
waiting to hear from them as to their success in getting the
Union to release the bank account.
Richardson, Vasbinder, Baumgarten, and Lugar directly
contradicted Canter's account, denying that any such meet-
ing had taken place. Richardson testified that although De-
cember 17 was his last day on the job, Canter had told him
privately 1 or 2 days before that there were no funds left to
pay him as they had been tied up and that Friday. Decem-
ber 17, would be his last day of work, s
Donald Vasbinder, who had been employed as a stripper
and platemaker, ' 9 related that he did not work for Respon-
dent Company at all on December 17, as he had taken that
day off. Accordingly, his last day of work was on December
16, on which date he was paid. However, in the late after-
noon of December 18, he received a call at his home from
Lewis Canter who told him not to come in as there was no
work and his attorney had told him to finish what work
there was and to close the plant. Canter said nothing to
Vasbinder about when he might come back to work and did
not ask him to attempt to have the Union release the Com-
pany's bank account. When Vasbinder asked if he should
file for unemployment compensation, Canter replied that he
should.
Vasbinder testified that the check he had received from
Canter on December 16 was no good and that 2 weeks
later, he returned to the plant to ask Canter to redeem it.
After Canter paid Vasbinder the amount due, he declared
that he still did not know why the Union would not release
the bank account. Vasbinder replied that he had no juris-
diction over this. Again, no reference was made as to wher
Vasbinder, who with the others originally believed the lay-
offs to be temporary, would return.
Herman Baumgarten, a cameraman,2 0 also testified that
his last day of work had been December 17. On the next
day, a Saturday, he received a telephone call from Canter
who said that he hated to tell Baumgarten this, but that he
had no work for him. Baumgarten could not remember his
response. With the others who testified, he denied Canter's
account that there had been a meeting of unit employees on
December 17.
"1 As matters developed, the Union, at Canter's request, released sufficient
funds from the attached bank account to meet the payroll for the unit for
that week, and, on its own initiative, also released moneys which would have
enabled the Company to meet the Christmas payroll for the following week
as well.
' Richardson, who started with Respondent Company in April 1964, and
whose -F sic assignment had been to operate the single-color, 30-inch press.
also had had experience with Respondent Company's 2-color press, an(t,
consequently, was paid at the higher rate afforded to 2-color press operators.
In February 1977, after his layoff, he telephoned the plant in response to a
newspaper advertisement for a pressman that had been placed by Respon-
dent Company. However, he did not call back when the employee of his
acquaintance who answered the telephone told him that Canter was not in at
the time.
19 Vasbinder had been with Respondent Company since March 1967.
20 Baumgarten had begun to work for Respondent Company in March
1967.
Frank Lugar testified that he did not report to work on
December 20 because on the preceding Friday, December
17, at 3:30 p.m., Canter had approached him at his work
station by the 2-color press and had told him that he had no
work. that the Union had frozen his bank account, and that
he was going to have a hard time paying his men. Canter
continued that as Lugar had vacation time coming and they
were approaching the holidays. I.ugar should take off until
the first of the year." Canter, in turn, expressed surprise
that his unit employees did not show up for work on De-
cember 20 and Respondents, in their brief, referred to this
nonappearance as a work stoppage. Canter asserted that
none of the unit men had been laid off and there was work
in the plant for all to do, except that the funds to pay these
men had been attached and it was necessary to have these
moneys released before he could meet the unit payroll.
Canter related that he had badly needed the services of a
pressman at the time and by Tuesday., December 21, he
called Lugar, based on the latter's seniority, to help com-
plete the work in the plant. Lugar replied that he had to get
permission from the Union before he could return, but,
having received same, Lugar returned to the plant on about
December 22.2
However, none of the fringe benefits called for in the
collective-bargaining agreement, including contributions by
Respondent Company to the various funds referred to
above, were afforded Lugar at any time after his return.
Lugar was recalled to work again after the plant resumed
operations under the receiver on about January 12. As
noted, after returning to the plant following the layoffs, Lu-
gar no longer operated the 2-color press, but instead,
worked the single-color, 30-inch press previously run by
Richardson.
In late February 1977. the Union began to picket the
plant on an intermittent basis. Lugar testified that on Fri-
day. March 18, he arrived at the plant, but was stopped
outside by Charles Diederich, a picket who had been em-
ployed by Respondent Company until December 17 as a
helper on the press. Diederich told Lugar that the bank-
ruptcy had gone through, that as Canter was no longer as-
sociated with the Company, there was no reason for him to
go to work."
Lewis Canter, from a plant window, observed the conver-
sation between Diederich and Lugar and saw Lugar leave
without coming to work. Canter, however, did not hear
what was being said. Canter testified that that afternoon he
called Lugar and asked why he did not come to work. Lu-
gar had replied that he was tired of the harassment that he
had been getting from the union men and that he could not
'' Although Lugar was described as a shop foreman in a listing of unit
personnel received in evidence. the parties did not contend or seek to estab-
lish at the hearing that he was a supervisor within the meaning of the Act.
Accordingly. I make no such finding.
22 The other union employees herein testified that at no time did the Union
inform them that they could not go back to work for Respondent Company.
23 Although Lugar initially testified that Diederich also had informed him
that the benefits whi.n had been in effect had become null and void and that
he did not go back to work primarily because he would not be getting his
benefits, Lugar subsequently denied that Diederich had said anything about
the benefits and that he did not then cross the picket line because he was
"scared to death" of the men on the picket line.
664
CENTURY PRINTING COMPANY
take it any more. It was too much for him and he was going
to go on unemployment.
Respondent Company's nonunion employees remained
comparatively unaffected. They continued to work until the
business was padlocked on January 7. and, after operations
resumed under the Receiver-Trustee, they' all were recalled
to their jobs. Certain nonunit employees, as indicated, such
as Greene. Metecko, and Kanidis, were trained and as-
signed to replace the laid off former union employees. How-
ever, although they thereafter performed work covered by
the collective-bargaining agreement, they were not paid at
the levels specified in that contract, the equipment manning
requirements of the contract were not followed, and no con-
tributions were made to the health and welfare, pension,
and other funds in their behalf. Canter explained that these
employees were afforded less compensation because they
were trainees.?5
The principal factual conflict in this area is between the
testimony of Canter that at a meeting on December 17, the
union men were invited to continue working, but were told
that unless they could intercede with the Union to obtain
the release of Respondent Company's bank account, he
would not thereafter be able to pay them, and the statement
of the unit employees that they had been involuntarily and
separately laid off.
To the extent that the testimony of these witnesses con-
flicts with that of Canter, Canter is not credited as he was
an evasive witness who did not answer questions directly,
and his testimony as to the events surrounding the layoffs
appears improbable?
Canter's expressed surprise at the unwillingness of his
unit men to work without pay is not convincing. Canter had
options as to which of his employees he would retain and
pay from the joint bank account used to pay only the non-
union personnel, and, faced with a need to operate under
reduced circumstances, he could have kept some unit and
nonunit personnel on the job so that most of the required
skills would have been available. Instead, by his account, he
told only the union employees that their future compensa-
tion, in effect, was hostage to their ability to have the bank
account released. The nonunion employees, whose services
were no less basic, were left undisturbed and, with minimal
interruption, were still employed at the time of the hearing.
It is not clear that the attachment of the bank account, in
any event, would have required the layoff of the union men,
per se, as the Union, after attaching the account, twice re-
leased sufficient sums to enable the payroll to be met, the
second time acting on its own initiative.
It, therefore, is concluded, contrary to Canter, that the
five union employees were involuntarily laid off by Canter.
1 Lar's son. Burt. who, since September 1976. had been employed con-
tinuously by Respondent Company as a trainee pressman, did work on
March 18, but, on his own initiative, did not thereafter come to work. Burt
Lugar had worked part-time and was not a union employee.
21 The collective-bargaining agreement provided for apprenticeship by
mutual consent.
26 Had the employees tried to have the bank account released, as allegedly
requested by Canter, they would not necessarily have been acting in their
own interest as the account had been attached to collect employer contribu-
tions due on their behalf to their pension, health and welfare, and other
funds, which constituted a significant part of their compensation.
3. The disaffirmance of the collective-bargaining
agreement and the conclusion of the bankruptcy
proceeding
On February 23. 1977 Stanford G. Davis wrote the fol-
lowing letter to Floyd Lamm, assistant to the president of
the Union:
The undersigned was appointed receiver in the
above-captioned matter by order of the Bankruptcy
Court on January 10, 1977.
You are hereby advised that any employment con-
tract between Graphic Arts International Union, Local
24 L. AFL-CIO-CLC, and Lewis Canter td/b/a
Century Printing Company which may have existed
prior to the JanuarD 10, 1977. filing of bankruptcy is
hereby disaffirmed. The effecti',e date of this disaffir-
mation shall be January 10. 1977.
The union attorneys, by letter, dated March 3, 1977, re-
plied as follows, noting that Davis' earlier letter had been
referred for reply:
At the first meeting of creditors on February 23.
1977, the bankrupt testified that operations of his busi-
ness were continuing and would continue until the
conclusion of the sale of the equipment. He further
testified that lithographic work was being performed
by a pressman as well as by himself.
Under the circumstances, where the bankrupt is con-
tinuing to operate, and seeks to transfer the business as
a going operation to the purchaser. we believe that the
terms of the collecttive-bargaining agreement continue
to be effective against the receiver, the trustee and the
purchaser.
Although duly afforded the opportunity, the record hav-
ing been left open for such purpose, the parties could not
produce evidence that the bankruptcy court thereafter had
ruled on the receiver's retroactive repudiation of the collec-
tive-bargaining agreement, or even that the Union, despite
its protest, had specifically called this matter to the court's
attention." Accordingly, it is found that the contract was
rejected expressly only by action of the Receiver-Trustee
and that the bankruptcy court has not separately ruled on
such disaffirmance or whether this could be done retroac-
tively.
On June 28, 1977, the Union's president sent the follow-
ing identical letters to Canter, d/b/a Respondent Com-
pany, and to Respondent Corporation:
As you know, Graphic Arts International Union.
Local 24-L. has asserted in Court that you are bound
by the terms of its Agreement with Lewis Canter, That
assertion has been disputed in the Bankruptcy Court.
Independently of that position, you are obligated to
bargain with this Union over hours, wages and condi-
tions of employment of your bargaining unit employ-
ees.
Please call me to arrange to meet.
: Although the Union on about March 25, 1977. filed objections to Can-
ter's discharge from his debts with the bankruptcy court on the ground that
he had been using the bankruptcy proceeding as a means of perpetrating a
fraud upon the Union and the plantiff funds, the court. on August 30. 1977,
dismissed the objections to Canter's discharge in bankruptcy and granted
him relief from his debts.
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No reply was made to these letters by either recipient.
Canter related that he did not reply to the letter sent to him
because by the time it was received the business was Wil-
son's responsibility. Wilson related it was his ultimate pur-
pose to use the inner city facility as a place for minority
employment and that as, in his view, the Union discrimi-
nated in its membership policies against minority workers,
he did not feel morally, socially, or legally bound to recog-
nize the Union. No evidence was adduced to support Wil-
son's statement concerning the Union's alleged policies in
this regard.
B. Discussion and Concluding Findings
1. The status of the Respondents as alter egos
The General Counsel and the Union, contrary to Re-
spondents, contend that Respondent Corporation and its
immediate predecessors, Wilson and the Receiver-Trustee,
are alter egos of Respondent Company, or, at minimum.
that they are Respondent Company's successors. These par-
ties also assert that there was a continuing obligation on the
part of Wilson, the Receiver-Trustee and, now, Respondent
Corporation to recognize and bargain with the Union on
behalf of the unit employees.
Under the facts herein, it would appear that Respondents
are alter egos. Before January 7, Respondent Company was
entirely owned and operated by Lewis Canter. Canter re-
mained the active management official in the period from
January 12 to March 16, 1977, while Davis was in charge as
the Receiver-Trustee, acting as Davis' agent.
In their testimony, the Canters admit that in anticipation
of and during the bankruptcy proceeding, they undertook
to protect their long-term investment in the business by at-
tempting to retain control, and Lewis Canter was instru-
mental in creating the arrangement whereby Wilson, under
the terms of a private sale, objected to by a creditor bank,
became the successful purchaser of Respondent Company.
In so doing, Canter used his inside information of the Com-
pany's status, value, and his forthcoming voluntary bank-
ruptcy petition to again interest Wilson in the purchase of
the business, telling him that the business could be obtained
on terms far more favorable than in the past, 8 what it
would cost, and, forthwith, persuaded Ruth Canter to pro-
vide most of the relevant amount. Canter, in short, used
Wilson to help him engineer a court-approved resale of the
business to Canter's own immediate family.29
Lewis Canter continued to have the principal voice in the
operation of the business from the time the court approved
the sale on March 16, until June 1977, making the assign-
ments and, in consultation with Wilson, establishing the
wage and work schedules. Canter continued thereafter to
work with Wilson 7 days a week until about 3 weeks before
12 The record reveals that 2 years before, when Wilson first became inter-
ested in the business, the purchase price was much higher and the Union's
status as bargaining representative was unchallenged.
29 No evidence was adduced at the hearing that the bankruptcy court,
when it approved the private sale of the business to Wilson, knew of Ruth
Canter's equity in the purchase price or of the agreement to thereafter give
her principal ownership while her husband continued to manage the busi-
ness.
the hearing in this matter, when he left to take another job.
However, even after August 15, Canter continued to return
to Respondent Corporation's plant during free afternoons
to render gratuitous assistance.
On the record herein, contrary to Respondents, I find
that the $5,000 advanced by Ruth Canter for the purchase
was not a loan, but, as she testified, was an investment. No
agreement, written or oral, had been reached with respect
to a repayment schedule, and, in return therefore, she re-
ceived the stock shares described.
Respondents emphasize in their brief that within 3 days
after the corporation was formed, Wilson became the ma-
jority stockholder with the conveyance to him of 401 shares
of Ruth Canter's stock, and that, thereafter, principal own-
ership no longer lay with either of the Canters. This, how-
ever, is not consistent with the facts. In order to obtain the
benefits which the Canters and Wilson believed could be
available to minority-owned business, these shares, repre-
senting majority ownership, were then delivered to Wilson.
However, contrary to the notation on the relevant stock
certificate that these shares could not be transferred except
upon payment to Ruth Canter of $51,000, Wilson, 6 months
after receiving them, still had not paid anything in return.
Again, there was no written or oral understanding govern-
ing payment for these shares, and no interest rate on the
credit extended was established. As the language on the
stock certificate marking the conveyance, on its face, pre-
cludes transfer without payment of the sum shown, it is
clear that the parties did not intend that title to the shares
should irrevocably pass to Wilson until such time as he
might pay the stated purchase price, and that, meanwhile,
Ruth Canter could reclaim title to and possession of the 401
shares at her option.
Even after Wilson undertook the active management of
Respondent Corporation in June, Lewis Canter continued
to render financial assistance to the enterprise. In late June,
and, during his last month and a half with the corporation,
to the time of the hearing, Canter did not cash his pay-
checks as the corporation was short of funds.
Noting, too, that Wilson and Respondent Corporation
continued to operate the premises and had Respondent
Company, using, except for the union personnel in issue,
substantially the same employees and equipment, produced
the same products for principally the same customers, paid
rent to the same landlords, the Canters, and even used the
same telephone number, I find that Wilson and Respondent
Corporation and Respondent Company both are alter egos
of Respondent Company.3o
Noting also that the Receiver-Trustee had taken over the
operation of Respondent Companys' business, which
through Canter, he continued to run almost exactly as be-
" See Marquis Printing Corporation and Mutual Lithograph Company, 213
NLRB 394 (1974); Ramos Iron Works Inc., and Rasol Engineering, 234
NLRB 896 (1978); P.A. Hayes, Inc., and P.H. Mechanical Corp., 226 NLRB
230, 236 (1976). Also see Crawford Door Sales Company, Inc., and Cordes
Door Company, Inc., 226 NLRB 1144 (1976), where the Board noted that it
generally has found alter egos status "where the . . . enterprises have 'sub-
stantially identical' management, business purposes, operation, equipment,
customers and supervision, as well as ownership."
666
CENTURY PRINTING COMPANY
fore, I find that the Receiver-Trustee also was an alter ego
of Respondent Company."'
As the employing industry has remained the same, the
form of the transfer is not controlling. 2 Accordingly, I find
that Davis, as the Receiver-Trustee; Wilson, as purchaser;
and Respondent Corporation are alter egos and successors
of Respondent Company and that the intervening role of
the Receiver-Trustee in the management of the business did
not serve to interrupt the contractual privity between the
parties so as to affect the alter ego status of Wilson and
Respondent Corporation.
2. The alleged unlawful layoff of the unit employees
The General Counsel and the Union contend that the
five unit employees were discriminatorily laid off and, ex-
cept for Lugar, were not recalled to work because of their
union membership and, as their employment was governed
by the more costly terms of the collective-bargaining agree-
ment, which Respondents did not care to meet. The Gen-
eral Counsel argues that Lugar, too, was a victim of multi-
ple discrimination in that, in December, he initially was
laid off unlawfully with others; upon recall, was not af-
forded working conditions and benefits consistent with the
terms of the union contract; and, further, that Lugar was
constructively discharged on March 18, when after speak-
ing to a picketing former unit member, he did not return to
work.
From the credited evidence, it has been found above that
in the period from about December 16 through 18, Respon-
dent Company laid off all five unit employees against their
wishes and that their nonappearance for work on and after
December 20, contrary to Respondents' contention in their
brief, did not result from a work stoppage. This conclusion
is underscored by the Union's willingness. when requested,
to give Lugar permission to go to work for Respondent
Company while the others were still on layoff. The Union's
decision to picket the plant in late February 1977 consti-
tuted nothing more than a belated protest of Respondents'
discriminatory layoff and replacement of the union employ-
ees, and was not a manifestation of the work stoppage.
Upon the record herein, noting that only the union em-
ployees were laid off and, except for Lugar, were not re-
called, while the nonunion employees continued to work
without appreciable interruption to the time of the hearing,
the replacement of the unit employees with previously em-
ployed and newly hired nonunion employees none of whom
worked under the terms of the collective-bargaining agree-
ment, in the context of Canter's testimony as to the high
cost of meeting the contract's terms and of Wilson with
respect to his own disinclination to deal with the Union, I
find that these employees were discriminatorily laid off and
"i See Cagle's Inc., 218 NLRB 603. 604 (1975): Airport Limousine Service
Inc., etc., 231 NLRB 932, 934, fn. 2. Also see Marion Simcox, Trustee of
Wagner Shipyard and Marina, Inc., and Stateside Service. Inc., d/b/a State-
side Shipyard and Marina, Inc., 178 NLRB 516, 518 (1969), where the Board
noted that it was not foreclosed from exercising junsdiction over trustees in
bankruptcy or receivers and that the trustee in that matter was bound to
honor the predecessor's bargaining obligation.
12 See Marquis Printing Corporation, supra at 401. where it was found that
the successor was alter ego to the predecessor although the successor had
purchased the assets from an intervening assignee for the benefit of creditors.
denied recall because of their union membership and be-
cause the cost of operating under the collective-bargaining
agreement conflicted with Respondents' poor financial posi-
tion.
The Board made the following finding in Barwise Sheet-
metal Co., nc-1.1
The record clearly demonstrates that Respondents'
motive in closing Respondent American's operations
and creating Barwise was to rid themselves of the
union and escape from being bound by . . . the obliga-
tions inherent in the collective-bargaining relationship
with the Union.... Respondents may also have had
some economic justification for their action, but that is
no defense for outright discrimination prohibited by
Section 8(a)(3).... The warning was clear; Respon-
dent would no longer offer union work. This conduct
clearly establishes discrimination based on antiunion
considerations in violation of Section 8(a)(3).
The General Counsel, contrary to Respondents, contends
that Lugar was constructively discharged when he left Re-
spondents' employ on March 18. after his recall by Canter.
In support of this assertion, the General Counsel argues
that Lugar left his job only after being informed by a pick-
eting former fellow employee that with the bankruptcy, the
benefits under the collective-bargaining agreement were no
longer applicable, and that Lugar, in his testimony, had
given this loss of benefits as the reason why he did not again
report to work. Respondents. of course, take the position
that Lugar would not be entitled to backpaN after March
18, in any event, as he quit at that time against the stated
wishes of his employer.
Lugar's testimony on this point is contradictory. Initially.
Lugar did testify that the reason he did not go to work after
speaking with Diederich, the picket, on the day in question
was that Diederich had then told him that he would there-
after be working without his contractual benefits and that
he did not wish to work under those circumstances. How-
ever, on cross-examination. Lugar testified that Diederich
had not mentioned the matter of continuing benefits during
their brief encounter and that he had not gone to work
because he was "scared to death" of the men on the picket
line.'
From the evidence, noting the testimony of Canter and
Wilson that they had not been applying the terms and con-
ditions of the contract to employees working in unit jobs
since the union employees were laid off in December. it is
concluded that Lugar had to know, from the time he re-
ported back to work after his recall and during the 2
months he remained on the job thereafter, that he was not
working under the terms of the union contract, that he was
not receiving'all of his former benefits, and that his fellow
union employees, instead of being recalled, were being re-
placed by nonunion personnel. In addition, his Union had
been picketing the plant since about February 23. There-
fore, it does not appear that when he spoke with Diederich
on March 18, Lugar would have been particularly surprised
to learn that he was not receiving the employment benefits
" 199 NLRB 372 373.
34 On cross-examination. Lugar testified that Diederich had merely told
him that the bankruptcy had gone through. Canter was no longer associated
with the Company, and that there was no reason for him to go to work.
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formerly available to him so as to galvanize him into leav-
ing his job. 1, therefore, credit Lugar's second account of his
March 18 talk with Diederich that the continuation of
benefits had not been mentioned and that his immediate
reasons for not entering the plant had been his fear of the
men on the picket line?5
Contrary to the General Counsel, I do not find that
Lugar's departure from Respondent's employ on March 18
resulted from a constructive discharge. While Respondents'
conduct, found unlawful herein, may have created the con-
ditions which brought about the picket line, Respondents
cannot be held responsible for Lugar's belated decision to
observe it. As it is found that Lugar did not finally leave
Respondents' employ because the terms of the contract
were not being applied, because his fellow union employees
were being replaced, or even because his Union had been
picketing intermittently for several weeks, but because he
felt threatened by the pickets, and as there is no evidence
that Lugar thereafter joined the picketing, I find that
Lugar's departure from Respondents' employ on March 18
does not constitute a constructive discharge.
C. The Alleged Unlasful Refusals To Bargain
1. The appropriate unit; majority status
As it has been found above that at all times material
herein Respondents were alter egos, and as the parties
agreed upon the basic unit description at the hearing, it
hereby is concluded that the following unit is appropriate
for purposes of collective-bargaining within the meaning of
Section 8(b) of the Act.
All lithographic production employees, including
pressmen, feeders, stripper platemen and cameramen
employed by the Respondents, or either of them, at
their Pittsburgh, Pennsylvania, facility, excluding all
office clerical employees, professional employees,
guards and supervisors, as defined in the Act, and all
other employees? 6
It further has been found that Respondents and the
Union established a bargaining relationship and, through
Respondent Company, have been parties to the collective-
bargaining agreement between the Union and the Union
Employers' Printing Industry Association of Western Penn-
sylvania, Inc., by virtue of a supplemental memorandum
incorporating that agreement, signed by Lewis Canter on
June 20, 1975, to remain in effect until April 30, 1978.
In Eastern Washington Distributing Company, Inc.," the
Board noted:
The existence of a prior contract, lawful on its face, is
sufficient to raise a dual presumption of majority, first
5 There is no evidence that any of the pickets had menaced Lugar by
anything more than their presence.
36 While the unit description found herein differs somewhat from the re-
spective unit descriptions set forth in the collective-bargaining agreement
and that alleged in the complaint, it draws upon the language of each and
accurately describes the job classifications employed by Respondents in the
unit.
37216 NLRB 1149, 1153. Also see Walter E. Heyman d/b/a Stanwood
Thriftmarl, 216 NLRB 852 (1975); Harold W. Hinson d/bl/a Hen House
Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970).
that the Union had majority status when the contract
was executed and second that the majority continued
at least through the life of the contract. Following the
expiration of the contract, the presumption continues,
and the burden of rebutting it rests, of course, on the
party who would do so.
To rebut the foregoing presumption, then, Respondents
must demonstrate either that the Union did not enjoy ma-
jority support at the time of the refusal to bargain or that
there was reasonable doubt based upon objective consider-
ations for believing that the Union had lost its majority
status when bargaining was refused." However, the asser-
tion of doubt must be raised in a context free of unfair labor
practices. In the instant case, it has been concluded that the
Union enjoyed actual support from all of the employees in
the bargaining unit as of mid-December, 1976, and any
diminution of this support can be traced directly to Respon-
dents' unlawful layoff and replacement of all the union em-
ployees.
It, therefore, is found that Respondents, at no time mate-
rial herein, had a good faith doubt as to the Union's major-
ity status.
2. The alleged 8(a)(5) violations
Inherent in the General Counsel's position that Respon-
dents, as alter egos, violated Section 8(a)(5) of the Act by
withdrawing recognition from and by thereafter refusing to
bargain with the Union, although duly requested, is the
proposition that Respondent Company did not meet their
bargaining obligation by failing and refusing to notify and
bargain with the Union with respect to the layoff of the unit
employees: by unilaterally changing the terms and condi-
tions of employment of Lugar and other employees as-
signed to perform unit work after the plant resumed opera-
tion in January 1977; by bargaining individually with
Lugar, after his recall, with respect to the terms of his em-
ployment; and by failing to notify and bargain with the
Union about the effect of the sale of the business to Wilson
and Ruth Canter and, as intended by these purchasers, ulti-
mately, to Respondent Corporation.
In the Bell Company, Inc., etc.,3 9 Administrative Law
Judge Maloney, in his Board-approved decision noted that:
It is well settled that, when an organized company
goes out of business, it has an obligation to notify the
bargaining agent of its employees concerning its inten-
tion and to bargain with the union regarding the effects
upon employees of its decision. The facts of this case
indicate fully that Bell did not notify the Union that it
was going out of business until after the event took
place and that it did not afford the Union an opportu-
nity to bargain with it concerning the effects of its de-
cision on . . . employees who were laid off. Without
more, such considerations would warrant the conclu-
sion that Bell violated Section 8(a)(5) of the Act be-
cause of this neglect of its duty to bargain.... 1 have
concluded that Bell did not in fact go out of business
3' Ibid Also see Impressions, Inc., 221 NLRB 389 (1975).
59 225 NLRB 474, 482.
668
CENTURY PRINTING COMPANY
but merely caused to be transferred its assets. its credit.
its work in progress, and some of its employees to
Endurall, who has continued essentially the same op-
eration as its unionized . . predecessor.
* . . * *
... As found above, Endurall was and is an alter ego of
Bell and, as such, is obligated to remedy all unfair la-
bor practices committed by Bell and honor the con-
tract which was in effect at the time of transition of
enterprise from a corporation to private proprietor-
ship. Endurall's failure to do so is more than a simple
breach of contract. It amounts to a repudiation of a
collective-bargaining relationship. and as such, consti-
tutes a violation of Section 8(a)( I) and (5) of the Act.
... See C & S Industries, Inc.. 158 NLRB 454 (1966).
In the instant case, although the expiration date of the
most recent collective-bargaining agreement had not yet
been reached when Respondent Corporation took posses-
sion, as will be discussed, the contracts' continued efficacy
was affected by its earlier disaffirmance by the Receiver-
Trustee. However. the responsibility of Respondents to con-
tinue to recognize and bargain with the Union in the pre-
sent case survived the contract and is not less than that
specified in the Bell Company, Inc., supra. Respondents'
failure to do so is violative of Section 8a)(5) and (I) of the
Act.
As the record also reveals that Respondents withdrew
recognition from the Union: unilaterally changed the terms
and conditions of employment of Lugar after his recall; and
discontinued contributions to the sickness and accident
fund, the disability and supplemental pension plan, and the
educational and training fund for Lugar and the four other
discriminatees; bargained individually with Lugar after his
recall concerning the terms of his employment; and failed
and refused to notify and bargain with the Union concern-
ing the layoff of the unit personnel and the effects of the
sale of the business to Wilson. it is concluded by each of the
foregoing that Respondents, further violated Section 8(a)(5)
and (1) of the Act.0
3. The applicability of the collective-bargaining
agreement after disaffirmance by the Receiver-Trustee
The General Counsel and the Union both contend, under
different theories. that Respondents further violated Section
8(a)(5) of the Act by refusing to apply the collective-bar-
gaining agreement after its formal repudiation by the Re-
ceiver-Trustee.
The General Counsel. in accepting the reasoning of the
U.S. District Court in Carpenters Local Union No. 2746,
United Brotherhood of Carpenters and Joiners of America,
AFL C10 v. Turne' Wood Prodi,cts, Inc.41 concedes that
the Receiver-Trustee was within his authority in rejecting
the contract and that such disaffirmance may have been
proper until March 16. during the period of the bankruptcy.
However, the General Counsel argues that, under the cir-
4o Laramee's Transit, Inc.. 224 NLRB 56. 65 ( 1976). P A.4 Hlaes. Inc., e a.,
226 NLRB 230, 236. The scope of these violations and their duration will be
included below in the discussion of the remed)
41 289 F.Supp. 143 I'. D Ark. 1968).
cumstances of this case. Wilson and Respondent Corpora-
tion, as alter egos, should be held responsible for assuming
the contract to avoid utilization of bankruptcy proceedings
to perpetrate a fraud that could enable Canter and Wilson
to rid themselves of an undesirable collective-bargaining re-
lationship and union contract, while enabling them to oper-
ate their business through a "dummy" entity after Canter's
discharge from debt.
The Union simply contends that under the bankruptcy
law, the Receiver-Trustee. by himself. did not have the
power to validly disaffirm the contract, and as the bank-
ruptcy court did not specifically approve his action, it is
invalid.
It now is established that a bankruptcy court itself may
disaffirm a collective-bargaining agreement, authorize a re-
ceiver-trustee or debtor-in-possession to reject such an
agreement at the time of appointment, or. absent prior au-
thorization, subsequently ratify' such action. 2 The facts in
this case differ somewhat from cited cases. as here, there is
no showing that the court, itself, had ever specifically ap-
proved the Receiver-Trustee's rejection of the contract ei-
ther by including such authority in the initial delegation of
authority to Davis. or by express subsequent ratification. It
also is clear that the Union and its coplaintiff funds in the
bankruptcy proceeding also did not call the matter to the
court's attention or otherwise appeal the Receiver-Trustee's
action, although their attorney, upon receiving notice,
wrote a letter of protest to the Receiver-Trustee.
It is concluded fron the record herein that the Receiver-
Trustee lawfully disaffirmed the collectire-hargaining
agreement as of February 23. 1977. the date of his letter of
repudiation to the Union. and that from that time. Respon-
dents were not obliged to apply the terms of the collective-
bargaining agreement to unit employees.1 The Receiver-
Trustee's work was approved by the court when. over the
Union's objection, it discharged Canter from his debts. Da-
vis. as an officer of the court. was vested with its authority
in administering the estate and his actions, unless set aside
by the court or otherwise in conflict with law. are presump-
tively valid. Accordingly., when the court discharged the
bankrupt. it impliedly approved the Receiver-Trustee's con-
duct. Although the Union argues that the repudiation of
the contract is invalid because not specifically ruled on by
the court, it was the Union's failure to appeal the contract
rejection to the court, where it already was a part, which
served to prevent such consideration.
The General Counsel's argument that the contract, al-
though validly disavowed during the bankruptcy period,
should, by operation of law, become revived and binding
upon Wilson and Respondent Corporation after March 16
sale, is not tenable. Contrary to the General Counsel,
though mindful of the different procedures under the Bank-
ruptcy Act as indicated in his brief, it would still appear
that the right of the bankruptcy court, through its agents. to
disaffirm the union contract of a bankrupt business exists
whether it is contemplated that the business be continued
42 Shopmens I.o,'al lr'non .¥o 455. International .4xssocialon of Bridge.
Structural and Ornamental Iron H'orkers. .4 FL CIO . K'ein Steel Products.
Inc.. 519 F.2d 698 (2d Cir. 1975;: Jersey Juniors, Inc.. 230 NLRB 329 (1977):
Airport limousine Serice, Inc. e 231 NLRB 932 1977).
4 Durand etc. v. .L.R B.. 296 F Supp. 1049 IW.D Ark. 1969).
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or liquidated within a comparatively short period of time
thereafter.4"
Not less to the point. however, is that having found here
that the contract was lawfully rejected by the Receiver-
Trustee as of February 23. and that his action in so doing
had been impliedly approved by the court. I cannot now
reconstitute and make binding the collective-bargaining
agreement upon Respondents. Jurisdiction over that matter
remains with the court.
However, I do not find that the Receiver-Trustee could
validly disaffirm the collective-hargaining agreement, as he
did, retroactively. to January 10. but that he could do so
only as of the date in which he took such action February
23. As was noted by Administrative Law Judge Pannier in
his Board-approved decision in Jerseyt Juniors, Inc(.,4 "col-
lective bargaining agreements remain in effect until such
time as rejected by a bankruptcy court."
Accordingly, noting also that the Receiver-Trustee is re-
sponsible for violations of the Act occurring during his ad-
ministration and that it is not appropriate to enable him to
reduce his liability for such conduct by backdating his dis-
affirmance. it is concluded that the collective-bargaining
agreement and the obligations arising thereunder remained
in effect until February 23, 1977. 'The duty to recognize and
bargain with the Union, of course, continued thereafter.Y
IV. i111t 1111( I )I t NIAR I Ai OR RA( 11(15 t UPON
( ()NMI R( F
The activities of Respondents set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with their operations described in section 1.
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
CON( lt.tSIONS (OF L.AW
1. The Respondents. Canter: the Receiver-Trustee. Wil-
son; and the Respondent Corporation, are employers en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Graphic Arts International Union. local 24 L. AFI,.
CIO-CLC. is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times material herein, all lithographic employ-
ees, including all pressmen, feeders, stripper platemen, and
cameramen employed by Respondents. or either of them, at
Respondents' facility in Pittsburgh. Pennsylvania, exclud-
ing all office clerical employees, professional employees.
guard-, and supervisors, as defined in the Act. and all other
employees, constitute a unit appropriate for the purpose of
4 ('rpenter.s Local 'nion No 2746, et al . T'urne , Iod Produ-cts, Irn,
supra; ShopmenS .local Unon No 455 v h Kevin Steel Pr,,du lis, Inc . 1u4/ra:
Airport Limousine Service, In-.. supra.
45 230 NI.RB 329.
4 Since. as noted, no evidence was offered to support Respondent's de-
fense that no bargaining order should issue as the Union discriminated
against minorities in its membership policies no consideration will be given
to this point. See hlurce'l lanu/aluring ('orp., 231 NLIRB 623 1977)
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein, the Union has been the
exclusive collective-bargaining representative of the em-
ployees in the aforesaid unit within the meaning of Section
9(a) of the Act.
5. By refusing to continue to recognize and bargain with
the Union with respect to the terms and conditions of em-
ployment of the employees in the above-described unit: by
unilaterally changing such terms and conditions, including
those relating to pay and contributions to the sickness and
accident fund, the disability and supplemental pension plan
and the educational and training fund: by bargaining in-
dividually with employees with respect to the terms of their
employment; and by failing and refusing to notify and bar-
gain with the Union with respect to the layoff of the unit
employees and the effect of the sale of the business. Re-
spondents, jointly and severally, have violated Section
8(a)(5) and (I) of the Act.
6. B laying off Donald Vasbinder ('leon Richardson,
Herman Baumgarten. Charles Diederich, and Frank Lugar.
in December 1976, because of their membership in and sup-
port for the Union, Respondents thereby have discouraged
membership in a labor organization and, jointly and sever-
ally. have engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (I) of the Act.
7. The Respondent Receiver-Trustee did not engage in
unfair labor practices within the meaning of Section 8(a)(5)
and (I) of the Act by disavowing the collectie-bargaining
agreement as of February 23, 1977.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Except for the foregoing. Respondents have com-
mitted no unfair labor practices.
TmI Rn D>)
Having found that Respondents have engaged in certain
unfair labor practices, I will recommend that they be or-
dered to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
As Respondents unlawfully laid off Donald Vasbinder,
Herman Baumgarten. ('leon Richardson, and C'harles Die-
derich on the dates indicated above in December 1976. I
shall recommend that Respondents be ordered to offer each
of them full and immediate reinstatement, without preju-
dice to their seniority or other rights and privileges. and to
reimburse them for any loss of pay and other employee
benefits they may have suffered ' As I.ugar also was unlaw-
ftully laid off in [December, but subsequently was recalled by
Respondents and continued to work in the plant until his
resignation on March 18. 1977, it will be recommended that
lIugar be reimbursed for any loss of pay and other em-
ployee benefits he may have suffered from December 20,
1976. until he resigned his employment on March 18, 1977.
Ilowever, Ilugar's backpay claims will be reduced by the
" I he backpal periods lir Vasbiider Baumrngarten. )iederich. and Rich-
ardsoin will begin December 20. 1976, the first working day after their lay-
ofis. and continue until compliance with the ternms of this Order is achieved.
Itowever. their respective claims will he olled during the period from Janu-
ar, 7 to 12. 1977. shen the plant was not in operation as padlocked
670
CENTURY PRINTING COMPANY
amount of his earnings and other job-related benefits, if'
any, afforded to him by Respondents during his period of
employment with Respondent Company from December
22. 1976, to March 18, 1977. less any earnings which might
have been accrued during the period when the building was
padlocked. Backpay for the foregoing individuals and inter-
est thereon shall be computed in the manner described in
F. 145 Woolworth CompanY,.4 and Florida Steel Corpora-
lion."9
I also will recommend that Respondents. upon request.
be required to recognize and bargain with the Union con-
cerning wage rates, pay. and all other terms and conditions
of employment to employees in the bargaining unit found
appropriate herein. '0
In determining the remedial obligations of the Receiver-
Trustee, it is noted that Davis was not in control of the
business during all of the events found unlawful herein. The
five discriminatees had been unlawfully laid off before Da-
vis' appointment by the court and Davis, as the Receiver-
Trustee, had no voice in the management of the business
after the sale to Wilson was approved. He could not realis-
tically be held accountable for events which preceded or
followed the date of his official connection with the busi-
ness January 10 to March 16, 1977. Nonetheless, during
the interval. Canter ran the plant as the Receiver-Trustee's
agent and could act only subject to his approval. Under
agency principles, Canter's knowledge of matters relating to
the business was imputable to Davis.
Accordingly. I find that the Receiver-Trustee, from Janu-
ary 10, is chargeable with knowledge that the five union
employees comprising the entire unit previously had been
discriminatorily laid off and, except for Lugar, were being
unlawfully replaced during his administration. Also, while
Davis was in charge. the collective-bargaining agreement
remained in disregard and the ahove-ftound unilateral
changes in the employment conditions of unit employees
were perpetuated. As it is established that receivers and
trustees in bankruptcy are liable for unfair labor practices,
I recommend that Davis be held jointly and seseralls with
the other Respondents for remedying those losses which
accrued during the time of his tenure. The other Respon-
dents, however, as parties principally responsible and as
"90 NLRB 289 (1950)
" 231 NilRB 651 (19771 See. generalls. I ts Plumbingn & Ilintg (Co. 138
NLRB 716 (1962j
·, See lJarmniei' TeansLi, In, supra at 66 Although Respondents' ulnlat-
eral discontinuation of contributions t the above lunds, Iound .olatl'e
herein, also parallels conduct underlying the 1975 consent judgment against
Respondent Co(mpan, on behalf of these funds. liahilit3 under the ct com-
mences only from I)ecember 20. 1976, when Respondent (ompan began its
pattern of unlalful conduct. until ehruary 23. 1977. when the contract was
repudiated he earlier clalis, of course. arose tinder the contract aind are
not based upon unlafhli unilateral changes or other conduct derogating the
duts to hbargain The violations affecting the fund shoiuld be remedied bh
requiri,,g Respondents. jointis and se eralls. to make such contrilbitols to
the pension plan on behalf It Baumgarten. I Ugar. Richardson. )iederich.
and Vasbinder from December 20 until Februars 23, and to make the dis-
criminatees whole tor ans medical and hospital expenses incurred and i,ther
monies due in that period as wouild hale hbeen pa.iable hlad the relevant
sickness. accident and dsabilitN. and pension plans nder the ollective-
bargaining agreement remained in effect t nder it. bargaining oblihhgatin.
Respondents hould lso mlake whole the educaltional and training und fIor
contributions due or the tie union emplosees during Ihat periodl
4irport L.tnlew ie Scre Je In ,ii ri. 4.S5 A e'll , .. Prdil t.
In , upri
alter egos are also jointly and severally accountable for rem-
edying all of the unfair labor practices found herein from
December 20, including the continuing backpay obligation
noted above.
Wilson. in addition to his responsibility for the acts of the
corporation, is personally liable under the circumstances
herein. jointly and severally for the entire remed\ as he
initially purchased and operated the business as a sole pro-
prietorship, did not form Respondent Corporation until lat-
er, and with Canter. was an active participant in events
found unlawful herein.
Finall., Canter's prior discharge in bankruptcy does not
preclude the finding that he, too. is a party responsible for
remedying the unfair labor practices herein.'t
As the unfair labor practices committed by Respondents
are of a character striking at the root of employees' rights
safeguarded bhy the Act, it will be recommended that Re-
spondents cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
l!pon the foregoing findings of fact and conclusions of
law, and upon the entire record. and pursuant to Section
10(c) of the Act, I hereb b issue the following recommended:
ORDER"
The Respondents Lewis Canter, d/b/a Centur. Printing
Company: Stanford C. Davis, as the Receiver-rustee for
Lewis Canter. d/b/a Centur Printing Company: John
Wilson, db:/a Century Printing Company: and (centur5
Printing, Inc., jointly and severally,. and their officers.
agents. successors, and assigns. shall:
1. Cease and desist rolil:
(a) Refusing to recognize and bargain with (iraphic Arts
International Ulnion, I.ocal 24-1.. AI C(I C1.C. s the
exclusive collective-bargaining representative of the em-
ployees in the unit described belo, . concerning rtes of
pay, wages. hours of'clllploNnlent a llt other terms nd con-
ditions of employ ment:
All lithographic emiplo.eces, including all pressmen.
feeders, stripper platemen and cameramen employ ed
by the Respondents or either of therr, at their facility
in Pittsburgh. Penns l\ antia excluding all office clerical
emptployee, prolfssional employees. guards and super-
visors, as defined in the Act. and all other emploees.
(b) Ulnilaterall changing the terms aind conditions of
employment in the above-described unit without first bar-
gaining with the abhoe-named LUnion concerning such con-
templated changes.
(c) Dealing individually with ts unit emploees concern-
ing their terms of emplomenl in derogation of their bar-
gaining representalice.
(d) Selling or otheruise transferring the assets of their
business without first bargaining Lwith the nion about the
effects f such action.
" I th Pu/, bg and ltlog (stntr,, lorn 4-o ittoi. 142 NI RB 379
( 196)hl.
" In the eent n excepl i re il ed a. pro- .dlc b Sec 1(12 46 t ieh
Rules nd Regulhions ot Ithe Natlo.nal I.ahor Reltllons Boiard. Ihe iidings.
conclusions. and recommenided ()rder herein hall. .Ls pros iled In Sec 102 48
olf the Rules and Regultiuns. hbe .h,ptcd hb the Board nid beile Its
findings. conclusi.ns .ind Order. andal .i tbeclion, thereto hall he deemed
waied lar all purposes
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Laying off and replacing unit employees without first
bargaining with the Union with respect to such action.
(f) Discouraging membership in the Union, or in any
other labor organization, by discriminatorily laying off its
union employees or by discriminating in any other manner
with respect to their hire or tenure of employment or any
other terms of conditions of employment.
(g) Refusing to recall laid off employees and hiring other
employees in order to get rid of the above-named Union.
(h) In any other manner interfering with, restraining, or
coercing the employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with Graphic
Arts International Union, Local 24-L, AFL-CIO-CLC, as
the exclusive representative of the employees in the afore-
said appropriate bargaining unit, with respect to rates of
pay, wages, hours, and other terms and conditions of em-
ployment, and embody in a written, signed agreement any
understanding reached.
(b) Offer to Donald Vasbinder, Herman Baumgarten,
Cleon Richardson, and Charles Diederich immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
discharging, if necessary, the present employees of Respon-
dent Corporation, and make them and Frank Lugar whole
for any loss of earnings and other benefits they may have
suffered in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Make whole the above-named discriminatees for any
medical and hospital expenses incurred and for other mon-
eys which would have been payable under the sickness, ac-
cident, and disability funds in the period from December
20, 1976, to February 23, 1977, and make such payments to
the pension and educational and training funds as would
been made in that period had Respondents not abrogated
the collective-bargaining agreement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at their printing facility in Pittsburgh, Pennsyl-
vania, copies of the attached notice marked "Appendix."4
Copies of the said notice, on forms to be provided by the
Regional Director for Region 6, shall, after being duly
signed by Respondents' representatives, be posted by Re-
spondents immediately upon receipt thereof, and be main-
tained by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondents to insure that such notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 6, in writing,
within 20 days of the date of this Order what steps Respon-
dents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
4 In the event that 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
National 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."
672