Edward Cooper Painting, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 12, 1985273 N.L.R.B. 1870 (N.L.R.B. 1985) Copy Citation 1870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edward Cooper Painting, Inc. and Cooper and Cooper Painting, an Alter Ego and Internation- al Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL- CIO. Case 9-CA-17245 12 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 December 1982 Administrative Law Judge James M. Fitzpatrick issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order as modified. As stated in the judge's decision, on 4 December 1981 Respondent Edward Cooper Painting, Inc. (Respondent Corporation) petitioned the United States District Court for the Eastern District of Kentucky for relief as a voluntary debtor in bank- ruptcy under Chapter 11, Title 11, of the United States Code. According to the undisputed represen- tations of the Respondent in its brief in support of exceptions, the debtor-in-possession requested per- mission to reject under 11 U.S.C. § 365(d)(1) the collective-bargaining agreement entered into be- tween the Union 2 and Respondent Corporation (as a member of the PDCA 3) effective 1 April 1980 through 31 March 1982. 4 The Supreme Court re- cently held in NLRB v. Bildisco & Bildisco 5 that from the filing of a petition in bankruptcy until formal acceptance the collective-bargaining agree- ment is not an enforceable contract within the meaning of Section 8(d) of the National Labor Re- lations Act and that a debtor-in-possession does not commit an unfair labor practice when it unilaterally rejects or modifies a collective-bargaining agree- ment before formal rejection is approved by the bankruptcy court. 6 The judge's recommended ' In the absence of exceptions, we accept the determination of the judge that following the expiration of the collective-bargaining agreement on 31 March 1982 the Respondent was obligated to bargain in the single- employer unit alleged and found appropriate 2 International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL-CIO 3 The PDCA (Blue Grass Chapter of the Painting and Decorating Contractors of America) is an association of employers engaged in group collective bargaining of which Respondent Corporation was a member at all times matenal to the issues in this case 4 The record does not establish whether the bankruptcy court has granted Respondent Corporation permission to reject the contract 5 104 S Ct 1188 (1984) 6 We are mindful that the Bankruptcy Amendments and Federal Judgeship Act of 1984 Congress enacted 10 July 1984 modifies Bt/disco Order would require that Respondent Corporation abide by the terms of the then-existing collective- bargaining agreement from the date of its unlawful abrogation of the contract (1 August 1981) until the expiration of the agreement (31 March 1982). Consistent with the Supreme Court's opinion in Bildisco, we modify that recommended Order to re- quire that Respondent Corporation enforce the terms and conditions of the applicable contract only until 4 December 1981, the date on which Re- spondent Corporation filed its petition for bank- ruptcy. In all other respects, the recommended Order 7 of the judge is adopted.8 Our dissenting colleague states that, because the violation found here preceded the date of the filing of the Chapter 11 bankruptcy proceedings, the Board should adopt the judge's remedy and pro- vide for backpay under the terms of the collective- bargaining agreement even into the period of the bankruptcy proceedings. From a practical stand- point, this has no bearing on the actual backpay sums owing by Respondent Corporation because it had ceased operations prior to filing for bankrupt- cy. However, although we agree with our col- league's observation that Bildisco stated nothing which questioned or disputed the Board's authority to adjudicate prepetition unfair labor practices, our remedy for the prepetition unfair labor practices we find here, limited so as not to affect Respondent Corporation's obligations under the bargaining agreement during the bankruptcy proceedings, ac- cords proper consideration to the effect of Bildisco on this case. Our colleague expressly notes that the Court in Bildisco emphasized giving primacy to the policy underlying Chapter 11 bankruptcy proceed- ings to permit the successful rehabilitation of debt- ors, but nevertheless would impose on the debtor- in-possession the terms of the collective-bargaining agreement in this case, a result clearly inconsistent with this policy. 3 The contractual backpay remedy and governs a debtor-in-possession's rejection of a collective-bargaining agreement The statute does not apply, however, to cases such as the In- stant one in which the bankruptcy petition was filed prior to its enact- ment Pub L 98-353, § 541, 98 Stat 333, 390-391 (1984) 7 In adopting the judge's recommended remedy as revised to reflect our decision herein, we shall also revise the remedy to Include that pay- ments be made to the employees' vacation fund 8 The record reveals that on 17 May 1982 Edward Cooper as an indi- vidual filed a petition for relief as a voluntary debtor in bankruptcy under Chapter 7, Title 11, of the United States Code There is no evidence that Respondent Partnership, Cooper and Cooper Painting, has been brought within the jurisdiction of either of the bankruptcy proceedings referred to in this Decision and Order Thus, we adopt the recommended Order of the judge as it applies to Respondent Partnership 9 Our dissenting colleague would impose the terms of a bargaining agreement on a respondent in bankruptcy who repudiated the agreement just prior to filing for bankruptcy, but would not impose such terms on a respondent who repudiated the agreement just after filing Our colleague has not adequately explained how the successful rehabilitation of debtors is accorded paramount weight in the former setting as well as the latter 273 NLRB No. 224 EDWARD COOPER PAINTING 1871 we here award fully restores the status quo prior to the filing of the bankruptcy petition. The validity of the contract's repudiation during the term of the bankruptcy and the issue of whether any additional sums are owed employees under the repudiated agreement are matters for the bankruptcy court to decide under bankruptcy law, and the Board's remedy here does not foreclose their consideration in that forum. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Edward Cooper Painting, Inc. and Cooper and Cooper Painting, an alter ego, Lexing- ton, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Give effect to the terms of the collective- bargaining agreement entered into between the Re- spondent and the Union in 1978 for the period 1 April 1978 through 31 March 1980 and as amended 1 April 1980 except that Respondent Corporation's liability under this provision shall terminate as of 4 December 1981, the date on which the Corporation filed its petition for bankruptcy." 2. Substitute the following for paragraph 2(c). "(c) Reimburse all employees in the bargaining unit, the funds established under the bargaining agreement (excluding the industry advancement fund), and the Union for any losses they may have suffered as a result of the Respondent's abrogation of the collective-bargaining agreement from and after 1 August 1981, with interest, in the manner prescribed in the section of this decision entitled 'The Remedy,' except that Respondent Corpora- tion's liability under this provision shall terminate as of 4 December 1981, the date on which the Cor- poration filed its petition for bankruptcy." 3. Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, dissenting in part. Contrary to my colleagues, I find no basis in the Supreme Court's opinion in NLRB v. Bildisco & Bildisco l for terminating the Board's remedies as of the date of the filing of a bankruptcy petition where, as here, the adjudicated violations occurred prior to the filing of the petition. 2 My colleagues ' 104 S Ct 1188 (1984) 2 I would adopt the judge's recommended Order with minor modifica- tions I agree with the revision of the judge's remedy specified at fn 7 of the majority's decision to provide for payments to the employees' vaca- tion fund I further would revise par 2(b) of the judge's recommended Order to clarify that the collective-bargaining agreement by which the are proceeding on a false premise if they believe that the Board must give priority to the Federal bankruptcy statutes regardless of when the unfair labor practice occurred, i.e., even if it was before the filing of the bankruptcy petition. Thus, while Bildisco establishes some limitation on the Board's jurisdiction to adjudicate unfair labor practices which occur after the date of the bankruptcy pen- tion, 3 it does not establish such a limit on the Board's authority to adjudicate or remedy prepeti- tion unfair labor practices. In fact, the Supreme Court was conspicuously silent about the Board's authority to remedy prepetition unfair labor prac- tices once a bankruptcy petition is filed. I am con- vinced this is so because the Board's remedy does not constitute an independent adjudication of an unfair labor practice. In Bildisco, the Court held, inter alia, that a debtor-in-possession in a Chapter 11 bankruptcy proceeding does not violate Section 8(a)(5) and (1) and Section 8(d) by unilaterally rejecting or modi- fying a collective-bargaining agreement between the filing of the bankruptcy petition and formal re- jection by the bankruptcy court. Giving primacy to the policy underlying Chapter 11 to permit suc- cessful rehabilitation of debtors, the Court conclud- ed that "from the filing of a petition in bankruptcy until formal acceptance, the collective-bargaining agreement is not an enforceable contract within the meaning of NLRA [Section] 8(d)." 4 Once a peti- tion in bankruptcy is filed, it is the bankruptcy court which has the exclusive authority to deter- mine whether rejection of the collective-bargaining agreement should be permitted. 5 Moreover, rejec- tion relates back to the date immediately preceding the filing of the petition, which means that "suit may not be brought against the debtor-in-posses- sion under the collective-bargaining agreement; re- covery may be had only through administration of the claim in bankruptcy." Respondents are to abide is the agreement which was effective 1 April 1980 through 31 March 1982 In addition, I find it unnecessary to pass on the judge's discussion regarding multiemployer bargaining units because a single-employer unit was found appropriate here Finally, with regard to the violations found against Respondent Partnership, I concur with my colleagues' adoption of the judge's make-whole remedy for the reasons stated herein 3 Because the violations found in this case occurred prior to the filing of the petition in bankruptcy, I find it unnecessary to reach the issue of the extent, if any, of the Board's jurisdiction to adjudicate postpetition allegations involving other types of conduct or other sections of the Act 4 104 S Ct at 1199 5 The Court stated in this regard that, although the bankruptcy court must be persuaded before acting on a request to modify or reject a col- lective-bargaining agreement that "reasonable efforts to negotiate a vol- untary modification have been made and are not likely to produce a prompt and satisfactory solution," the bankruptcy court does not have to determine whether the parties have bargained to impasse or committed any unfair labor practices since the filing of the petition 104 S Ct at 1196-97 6 104 S Ct at 1198-99 1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I therefore agree with my colleagues that under Bildisco the critical date for determining whether a violation of the Act has occurred is the date the bankruptcy petition is filed. I note, however, that the Court in Bildisco stated nothing which ques- tioned or disputed the Board's authority to adjudi- cate and/or remedy prepetition unfair labor prac- tices. Thus, it is undisputed that the Board has the exclusive authority to determine whether alleged unfair labor practices have occurred prior to the filing of the bankruptcy petition. If the Board is to adjudicate prepetition unfair labor practices—and if such an adjudication is to have any meaning—it follows that the Board should also be able to remedy them, with the understanding that the Board's remedy may be reviewed by the bankrupt- cy court as a creditor's claim.7 Further, the Supreme Court's opinion in Bildisco left undisturbed the Board's authority under Sec- tion 10(c) of the Act to require a person who has been found to have engaged in unfair labor prac- tices to cease and desist therefrom and "to take such affirmative action including reinstatement of employees with or without back pay, as will effec- tuate the policies of this Act." As the Supreme Court held in Nathanson v. NLRB, 8 the fixing of monetary remedies is an administrative function confided solely to the Board. 9 Moreover, the au- thority to modify or set aside a remedial order rests exclusively with the Board and the appropriate re- viewing Federal courts." The Board will, of course, take changed circumstances into consider- ation in subsequent compliance or contempt pro- ceedings," but it is the bankruptcy court which will examine the allowability of monetary claims resulting from Board orders and determine their relative priority to other creditors' claims.' 2 Accordingly, where, as here, the violations have occurred prior to the filing of the bankruptcy peti- tion, there is no reason—logical, statutory, or pre- cedential—for the Board to cut off its normal re- medial provisions as of the date of the petition. To the contrary, by cutting off the remedy as of the date of the bankruptcy petition, my colleagues are necessarily foreclosing the bankruptcy court from adjudicating the bankruptcy and determining the 7 My colleagues do not dispute that the Board traditionally has Im- posed full remedies for prepention unfair labor practices with no qualifi- cations Imposed because of subsequently filed bankruptcy proceedings 8 344 US 25 (1952) 9 344 U S at 29 '° See Sec I0(e) of the Act " Ahrens Aircraft v NLRB, 703 F 2d 23 (1st Or 1983), enfg 259 NLRB 839 (1981) See also Southport Petroleum Co v NLRB, 315 U S 100, 106 (1942) 1 2 In this regard, I note that the Regional Director filed with the bank- ruptcy court a proof of multiple claims for bankruptcy amounts due to 1 June 1982 allowability and priority of the Board's monetary claims, and, most importantly here, whether to allow the voiding or modifying of the contract. Such usurpation of the bankruptcy court's author- ity is inconsistent with the Court's attempt in Bil- disco to accommodate the competing policies of the NLRA and the Bankruptcy Code. I further submit that such action by the Board goes further than the Court's holding. The majority, responding to my position, states that I have "not adequately explained how the suc- cessful rehabilitation of debtors is accorded para- mount weight" if I would impose the terms of a collective-bargaining agreement on a respondent in bankruptcy who repudiated such contract before the filing of the bankruptcy petition, when I would not impose such a remedy on a respondent who re- pudiated the contract after the filing of the petition. First of all, the critical difference in the question, as posed by the majority, is that in the one case the respondent has committed an unfair labor practice and in the other case it has not; i.e., if a respondent has repudiated the contract prior to the filing of the bankruptcy petition, it has committed a classic violation of Section 8(a)(5) and (1) which must be remedied accordingly. However, under Bildisco, if a respondent repudiates the contract after the filing of the petition, it does not commit an unfair labor practice. The Supreme Court so held without dis- turbing the Board's prepetition jurisdiction, thus making it clear that the policies underlying Chapter 11 should be accorded primacy over the NLRA only after the filing of the bankruptcy petition. My colleagues misunderstand Bildisco when they inter- pret it otherwise. I further submit, contrary to the majority, that the traditional make-whole remedy which I favor for prepetition unfair labor practices does not in fact impose the terms of the collective-bargaining agreement on the debtor-in-possession. As I have indicated above, if a respondent is involved in Chapter 11 proceedings, then the Board's remedy becomes a creditor's claim like any other, i.e., it is a monetary claim which may or may not be al- lowed by the bankruptcy court. Finally, the majority insists that by cutting off the remedy as of the date of the bankruptcy peti- tion they do not, as I suggest, foreclose consider- ation by the bankruptcy court of issues relating to the appropriateness of rejection of the contract or to the determination of sums owed under the re- jected contract. I remain convinced, however, that by cutting off the remedy as of the filing of the pe- tition, the majority is effectively determining that the contract is properly rejected as of that date, i.e., before the bankruptcy court has had a chance EDWARD COOPER PAINTING 1873 to make that determination itself as it has the exclu- sive authority to do.13 Accordingly, in the instant case, because all of the violations found preceded the filing of the bankruptcy petition by Respondent Corporation on 4 December 1981, I dissent from the majority's fail- ure to order a traditional make-whole remedy. 13 I find it interesting that my colleagues have not accounted for the possibility that the bankruptcy court may dismiss the bankruptcy petition Would they then allow the charging party to petition the Board for an extension of the remedy? That would seem consistent, however unpalata- ble, with their view 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. WE WILL NOT terminate employees because they belong to a union or desire to work under union conditions. WE WILL NOT withdraw recognition from Inter- national Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL- CIO as the duly designated representative of our employees in a unit appropriate for collective bar- gaining. WE WILL NOT abrogate our collective-bargaining agreement with International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL-CIO, 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 Walter Young Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. WE WILL give effect to the terms of our most recent contract with the Union, except that the li- ability of Edward Cooper Painting, Inc. under that agreement shall terminate as of 4 December 1981, the date on which the Corporation filed its petition for bankruptcy. WE WILL make whole all employees in the bar- gaining unit and the Union for lost dues and for any losses of wages or health benefit coverage as the result of our abrogating the terms of the agree- ment, with interest. WE WILL make whole our employees by paying to the various fringe benefit funds, except the in- dustry advancement fund, the contributions which should have been made pursuant to the provisions of the above contract. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All employees engaged in painting employed by Edward Cooper Painting, Inc. or Cooper and Cooper Painting at and out of its Lexing- ton, Kentucky facility, but excluding all office clerical employees, guards, professional em- ployees and supervisors as defined in the Act. EDWARD COOPER PAINTING, INC. AND COOPER AND COOPER PAINTING, AN ALTER EGO DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge. In this case a union painting contractor in financial distress attempts to escape collective-bargaining obligations by terminating the union contract, hiring nonunion em- ployeees, changing from a corporate enterprise to a part- nership, and seeking voluntary bankruptcy for the Cor- poration and himself personally For the reasons set out below, I find that the Corporation and the Partnership committed unfair labor practices in not dealing with the Union and in terminating the employment of a union member. This proceeding originated with unfair labor practice charges filed August 7, 1981, 1 (and amended August 11) by International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL-CIO (the Union), against Edward Cooper Painting, Inc. (Respondent Corporation). A complaint based on the charges issued September 14 (and was amended July 13, 1982), alleging that the Corporation and its alter ego, a partnership named Cooper and Cooper Painting 2 (Re- spondent Partnership, and with the Corporation collec- tively referred to as Respondent), had committed unfair labor practices forbidden by Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). The prin- ' All dates herein are in 1981 unless otherwise indicated 2 The name appears as amended at the hearing 1874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipal issues are (a) whether in late July Respondent con- structively discharged David Young Jr. in violation of Section 8(a)(3), (b) whether as of August 1 Respondent unlawfully reneged on a collective-bargaining agreement with the Union, (c) whether about the same time Re- spondent unlawfully withdrew from group bargaining with the Union, (d) whether subsequent to August 1 Re- spondent remained bound to the terms of the existing collective-bargaining agreement with the Union, (e) whether the next successive collective-bargaining agree- ment between the group and the Union, effective April 1, 1982, is binding on Respondent, and (f) whether Re- spondent's precarious financial condition justified aban- donment of the collective-bargaining agreement, group bargaining, and recognition of the Union. The case was heard at Lexington, Kentucky, on July 13 and 14, 1982. At the opening of the hearing Respondent sought a stay of these proceedings, contending the Board lacks ju- risdiction because Respondent, as a debtor-in-possession under the bankruptcy laws, is a different entity from the prebankruptcy company, not party to any collective-bar- gaining agreements not affirmatively assumed, and in any case, subject to the jurisdiction of the bankruptcy court rather than the Board. Respondent reiterated its conten- tions in its posthearing brief. Having reserved ruling on the motion, I now conclude that the Board has primary jurisdiction over questions of unfair labor practices, in- cluding questions involving parties before the bankruptcy courts, and that findings respecting unfair labor practice issues should not be deferred because a respondent in a Board proceeding is also a petitioner in the bankruptcy courts. Nathanson, Trustee v. NLRB, 344 U.S. 25, 29 (1952). Based on the entire record, including my observation of the witnesses and consideration of the briefs of the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Blue Grass Chapter of the Painting and Decorat- ing Contractors of America (PDCA) is an organization of painting contractors engaged in group collective bar- gaining with the Union which represents their employ- ees. Member employers of PDCA annually perform serv- ices valued in excess of $50,000 in States other than the State in which they are located. Respondent Corporation, a Kentucky corporation, has maintained a place of business near Lexington, Ken- tucky, and has been engaged in the Lexington area as a painting contractor, particularly in commercial and in- dustrial painting. Since its inception in late 1981 Re- spondent Partnership has similarly been engaged in busi- ness. At times material to the issues in this case, Re- spondent Corporation has been a member of PDCA. It is undisputed that Respondent Corporation and Respondent Partnership are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union and Respondent The Union is a labor organization within the meaning of Section 2(5) of the Act. Prior to the hearing, as de- tailed hereinafter, it has represented employees of Re- spondent Corporation. One issue presented here is whether such representation continues and includes em- ployees of Respondent Partnership The General Counsel alleges, Respondent admits, and I find that the following describes a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees engaged in painting employed by Re- spondent at and out of its Lexington, Kentucky fa- cility, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. A considerable number of years ago Edward Cooper as an individual began working as a journeyman painter employed at various times by B. L. Raden and Son, Inc. and Norvell and Blakeman, two of the three current members of PDCA He was a member of the Union and at times served on the union negotiating committee in collective bargaining with PDCA. Around 1971, the exact time not being apparent in the record, he went into business for himself and at some point formed Respond- ent Corporation of which he is sole stockholder, presi- dent, and secretary and treasurer. The Corporation em- ployed a small crew of painters, the number varying from a low of one to a high of seven and included his son William David Cooper who, by the time of the events involved here, functioned as working foreman of the crew. In this capacity the son held no corporate stock, had no access to corporate records, made no busi- ness decisions, and, like the other workmen, received an hourly wage, although at a higher rate All decisions for the Corporation were made by Edward Cooper. It is not clear precisely when Respondent began busi- ness nor when the Corporation was formed. The evi- dence indicates, and I find, that from the time Respond- ent entered into business until August 1, 1981, it operated as a union enterprise In the early 1970s Edward Cooper individually signed a collective-bargaining agreement with the Union as an independent contractor (not through PDCA) and continued to be an independent sig- natory to subsequent union contracts until he joined PDCA around 1978. These agreements were his adop- tion of agreements negotiated between PDCA and the Union. The earliest Cooper agreement received into evi- dence, which covered the period April 1, 1975, through March 31, 1976, was the PDCA/union contract of that time signed individually by Edward Cooper. Cooper, ap- parently as an individual, joined PDCA in 1978 and as a member of that association participated in negotiations with the Union of the contract for the period April 1, 1978, through March 31, 1980. In the back of that con- tract "Edward Cooper" is listed as one of the contract- ing members of PDCA. He also participated in negotiat- ing the next agreement covering the period April 1, EDWARD COOPER PAINTING 1875 1980, through March 31, 1982. He did not participate in the negotiations which resulted in the current PDCA/union agreement covering the period April 3, 1982, through March 31, 1983. B. The IBM Subcontracting Policy International Business Machines (IBM) is one of the important customers of industrial painting contractors in the Lexington vicinity. Since 1971 or 1972 Respondent has relied heavily on maintenance contracts let by IBM. Historically, IBM's business policy respecting mainte- nance painting work had been to contract only with union contractors which included members of PDCA. In the latter part of May 1981 IBM announced a change in policy in that in the future it would invite bids for main- tenance painting from both union and nonunion contrac- tors. The effect of this change w as immediate and trau- matic for union contractors. Nonunion contractors un- derbid them and they no longer obtained the amount of work they had previously. The impact of the change on Respondent was even greater. As the smallest unionized industrial painting contractor in the area, Respondent ex- perienced difficulty competing with the larger union contractors and frequently was in arrears in its financial obligations to the Union and the various recipient funds provided for in the collective-bargaining agreement Re- spondent Corporation borrowed heavily in order to meet these obligations and Edward Cooper mortgaged his home to obtain funds for that purpose. With the change in IBM policy, Respondent's business fell off drastically. As Edward Cooper testified, he was going broke. C. Respondent's Efforts to Survive When Respondent's drop in business reached the point in July when it was employing only one painter part time, Edward Cooper decided to change from a union to a nonunion operation As he testified without contradic- tion, Respondent had difficulty competing with the larger contractors; the depressed state of the economy made it increasingly difficult to obtain contracts justify- ing a union wage scale, the Corporation's credit was ex- hausted, he had mortgaged his residence in order to meet the payroll and payments called for under the collective- bargaining agreement and, at times, was unable to draw pay for his own work. Interest rates on outstanding loans were so high that Respondent could pay only interest and could make no payments on principal. He testified he ultimately lost his home. By the first week of July his working crew was down to three painters which, I infer, included his son who was a working foreman, and they were working only irregularly. The last rank-and-file em- ployee was Walter Young Jr., recording secretary of the Union, son of Union Business Representative Douglas Young, and an employee of Respondent since 1977 Young testified that work had dlropped off in July, and that on July 23 and 24, his last days of work, he worked only 1-1/2 to 2 hours each day On July 24 Edward Cooper took decisive action by writing the following letter to the Union Business Representative Painters Local #768 Mr. Doug Young 348 Peach Tree Road Lexington, Ky. Doug, Please be advised as of August 1, 1981 we wish to have our name removed as signatory to our agreement. This is to terminate our agreement Through the years our relationship has been very harmonious. I deeply regret that circumstances have caused me to make this grave decision. Sincerely, Ed Cooper The Union did not immediately learn of this letter be- cause Young was away and did not return until the end of the month. The practice in the trade had been for employers to call employees when they were needed for work on a job and for employees who were not called to call their employer to inquire if work was available. In the days following his last days of work, Walter Young Jr., having received no calls from the Coopers, called David Cooper on July 29 to ask for work at IBM. David told him he did not think he would have any work for quite a while. Young then asked if he was telling him he should find something else and David Cooper answered, "Yes." Later the same day Edward Cooper telephoned Walter Young at home, telling him he did not think he would be doing any more union work and was sorry about it, that if he had work at a later date, maybe Young could come back to work or do subcontracting or something. Young replied that, due to his position in the Union, as well as his father's, he did not think it was possible under any conditions. Cooper stated that he still had some union work but he did not know how he was going to do it or anything right then. According to him, he did honor these unspecified contracts which were entered into while the Company was operating under union condi- tions and did complete them under union conditions by paying employees union scale and making appropriate contributions to the union funds. According to him, some of this work under "union conditions" continued after August 1, but by about November 1 Respondent was no longer operating under union conditions on any work. Edward Cooper testified credibly and I find that through the last part of July Respondent had no work to perform. However, in early August Respondent obtained a time and materials contract from IBM. After the telephone conversation between Edward Cooper and Walter Young Jr. at the end of July, Young did not again work for Respondent, nor did he seek to. The Coopers did not in so many words discharge Young They simply did not have any work to offer him at the time and Edward Cooper indicated he would give him employment in the future if he had work. But he made it clear that Respondent no longer would operate as a unionized enterprise. With that condition, both un- derstood that Young would not accept further employ- ment with Respondent. As found hereinafter, Respond- ent continued to be legally bound to the collective-bar- 1876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement. Respondent's indicated refusal to continue to employ Young under those assured condi- tions when work became available constituted a dis- charge in violation of Section 8(a)(3) and (1) of the Act. Marquis Elevator Co, 217 NLRB 461 (1975). As already noted, union officials first read Cooper's July 24 letter about July 30. A few days thereafter, I infer during the week of August 3, Cooper was seen working at IBM with employees who were not union members. Upon learning this, Business Representative Walter Young sent word to Edward Cooper to meet him at a service station near IBM When they met, Young ex- plained that the notification Cooper had sent to the Union was not the proper procedure. He did not indicate what was the proper procedure in the circumstances. Cooper then described to Young his financial problems, to which Young responded that he was going about it in the wrong way. Cooper said that he could not help it, that he was low on finances, he had to make a change and he felt the notice he had given was okay. Young ad- vised him that he was creating problems for both sides, that the Union would have to protest and would file unfair labor practice charges with the NLRB He asked Cooper to abide by the collective-bargaining agreement but Cooper said he could no longer do so The meeting ended without the problem being resolved On August 7 the Union filed the charges which gave rise to this pro- ceeding and on the following Monday, August 10, began picketing in front of the IBM plant to protest Respond- ent's unfair labor practices of terminating union employ- ees, employing nonunion employees, and lowering wages below the scale set in the collective-bargaining agree- ment. In effect, Cooper also withdrew Respondent from PDCA when he sent his July 24 letter to the Union. Al- though he did not specifically advise PDCA that Re- spondent was withdrawing from the association, PDCA Secretary Carl Radden received a copy of the July 24 letter to the Union. Around that same time Respondent ceased being a member by not paying dues, there being no prescribed protocol for terminating membership. The July 24 letter to the Union was a forthright rejec- tion of Respondent's collective-bargaining obligations. Respondent thereby reneged on the balance of the con- tract which by its own terms ran through March 31, 1982, and "from year to year thereafter unless either party shall serve written notice of their desire to alter, modify or terminate the Agreement by giving such writ- ten notice to the other party not less than sixty (60) cal- endar days prior to any expiration date of the Agree- ment." 3 Respondent's letter was more than 60 days prior to the expiration date. I find that the July 24 letter was within the prescribed notice period for terminating the then existing contract. However, it did not and, absent the consent of the other contracting party, could not op- erate to foreshorten the agreed-upon duration of that agreement. The July 24 letter was soon followed by Re- 3 The PDCA/union contract which followed thereafter, negotiated to go into effect April 1, 1982, limited this notice period to 15 days, that is, not less than 60 nor more than 75 days prior to the expiration date of the contract spondent's nonunion operations in early August in bla- tant violation of the contract. In their conversation at that time Business Representative Young urged Cooper to honor the contract, noting he had not used the proper procedure, that he was going about it the wrong way, and was creating problems for both sides. Cooper said he had no alternative because of his financial dilemma. But the availability of special negotiations in view of the cir- cumstances was not suggested by either, although Young, who initiated the meeting, hinted at alternatives, and the option of negotiation must have been apparent to both. Apparently the only course which Cooper consid- ered was the nonunion operation already launched, asser- tedly for financial reasons. The only alternative specifi- cally voiced by Young, even considering Respondent's financial plight, was adherence to existing contract terms. In sum, after Respondent took the initiative in prematurely terminating the agreement, the Union pre- sented Cooper with the opportunity, but did not press for, negotiations, an opportunity which Respondent let pass. As the party interested in change, it was Respond- ent's responsibility to seek a solution compatible with its bargaining obligations. Cooper failed to do so He was not entitled to presume that an effort to bargain about Respondent's financial dilemma would have been futile. So far as this record shows, he never specifically asked the Union for relief. I find that Respondent, by its July 24 letter to the Union terminating the bargaining relationship as of August 1, followed by its unilateral imposition of non- union working conditions and its failures to abide by the terms of the collective-bargaining agreement then in effect, failed to bargain collectively with the Union as re- quired by Section 8(d) of the Act and thereby committed unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. Marquis Elevator Co., supra. By this conduct Respondent categorically refused to further recognize or bargain with the Union whether through group bargaining or as an individual employer. Cf. Spun-Jee Corp., 171 NLRB 557 (1968); US. Lingerie Corp, 170 NLRB 750 (1968). The General Counsel views Respondent's conduct as an untimely effort to withdraw from group bargaining, but that approach seems myopic Cooper turned his back on any kind of bargaining. The abandonment of group bargaining is, therefore, immaterial to the finding of a violation of Sec- tion 8(a)(5). However, it does bear on the question of the continuing agency of PDCA to bind Respondent to the successor agreement. The General Counsel contends such agency continues and Respondent is now bound to the present group contract with the Union in the negoti- ation of which Respondent did not participate. Even though I find Respondent's obligation to bargain with the Union on request continues, I disagree that it is now bound to the terms of the current PDCA/union agree- ment. The July 24 letter, although it failed to terminate the existing agreement on August 1 as Cooper intended, did serve to trigger termination on March 31, 1982, the anni- versary date, pursuant to article X, section 1, of that agreement, and for that purpose was timely notice of EDWARD COOPER PAINTING 1877 intent to terminate. Withdrawal from group bargaining was a necessary consequence of the letter In Retail Asso- ciates, Inc., 120 NLRB 388, 393-395 (1958), the Board, in announcing its standards for such withdrawal, noted that the right to withdraw is not unfettered and is limited by reasonable controls as to the time and manner of with- drawal. The intention to withdraw must be unequivocal, and exercised at an appropriate time In the present matter Respondent's letter of July 24, a copy of which was provided to PDCA, together with Respondent's op- eration of a nonunion enterprise and its de facto resigna- tion from PDCA by nonpayment of dues, unequivocally expressed an intention to permanently abandon bargain- ing through PDCA Further, the timing of this abandon- ment satisfies the Board standard in view of the lack of any PDCA or contract requirements limiting advance withdrawal, the apparent willingness of Carl Radden, secretary and principal official of PDCA, to allow Re- spondent to drop out, and the absence of any pending negotiations at the time of withdrawal. Retail Associates also requires good faith of the withdrawing party, which Respondent cannot claim, Cooper having no intention of bargaining with the Union on any basis. Thus, the ques- tion of whether Respondent now remains bound by group bargaining, after termination of the prior union contract pursuant to the terms thereof and Respondent's withdrawal from group bargaining, seems to turn on the significance of Respondent's lack of a good-faith intent to continue bargaining as a single employer In Retail Associates the Board underscored the impor- tance of stability in bargaining units. The Board has also long considered single employer units as well as multi- employer units to be appropriate for bargaining. In the present matter the bargaining unit alleged and admitted to be appropriate is a single-employer unit. 4 The descrip- tion of that unit is part of the frame within which this case has been litigated. I find the alleged unit is appropri- ate. Additional circumstances for consideration are Re- spondent's history of financial difficulties, Respondent's current status before the bankruptcy court noted herein- after, and whether, as a matter of labor relations policy, these matters are better addressed in group or in single- employer bargaining. Considering the above factors and, in particular, the time lapse between Respondent's with- drawal and the deadline designated in the contract for modification or termination, I conclude that, with the ex- piration of that agreement, Respondent ceased to be con- tractually bound and, therefore, is not now bound by the new agreement negotiated between PDCA and the Union for the period April 1, 1982, through March 31, 1983 I conclude that Respondent's duty to bargain sub- sequent to August 1, 1981, can be met by either multi- or single-employer bargaining In this connection, it may be noted that PDCA has considered Respondent to be out 4 This uncontroverted portion of the complaint reads as follows The following employees of Respondent constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees engaged in painting employed by Respondent at and out of its Lexington, Kentucky facility, but excluding all office clerical employees, guards, professional employees and su- pervisors as defined in the Act of its bargaining group, apparently since August 1981. For its part, the Union has not specifically made a point of Respondent's abandonment of PDCA representation. Union charges which initiated these proceedings in August 1981 are aimed at cancellation of the contract rather than escape from group bargaining. Similarly, par- ticipation in this litigation has been in the context of the bargaining duties asserted in the complaint which, as noted above, are in terms of a single-employer unit con- sisting of Respondent's employees. By way of posthear- ing brief the General Counsel has shifted theory to in- clude withdrawal from PDCA in the claimed violation and to seek a remedial order requiring Respondent to abide by the successor PDCA/union agreement effective April 1, 1982, which agreement differs from its predeces- sor. With matters in this posture, and considering that both the multi- and single-employer unit are appropriate, and that Respondent's withdrawal from PDCA occurred many months prior to negotiation of the successor con- tract and necessarily had less adverse impact on the sta- bility of the multibargaining unit than if it had been at- tempted during negotiations and for that reason had been untimely, 5 I conclude that Respondent is obligated to bargain in the single-employer unit alleged and found ap- propriate herein even though it did not in good faith contemplate such bargaining when it withdrew recogni- tion as of August 1, 1981 I am further constrained to so hold because it seems to me that Respondent's lack of good faith from August 1, 1981, until now has little bear- ing on the question of whether single- or multiemployer bargaining is the preferable tool for protecting Respond- ent's employees, given the particular economic circum- stances presented here. See J D. Candler Roofing Co., 158 NLRB 341 (1981). D Formation of the Partnership As already noted, Edward Cooper is the sole stock- holder and officer of Respondent Corporation and per- sonally has made all business decisions for that entity. It is a one-man corporation. After August 1, as noted above, Respondent resumed working at IBM, apparently in the same business format as before. Although some of Edward Cooper's testimony suggests he was operating as an individual, it is clear the Corporation was not dis- solved. The name remained the same. Edward Cooper continued as before, using his son as a foreman and em- ploying several painters to perform the work. He indicat- ed that on occasion he himself worked with his hands, as did his son, but I infer that the occasions on which Edward Cooper did so were infrequent, and he contin- ued as the head of the enterprise. Formation of Respondent Partnership did not come about suddenly. The Coopers, father and son, talked 5 As noted in Retail Associates, supra at 395, "the timing of an attempt- ed withdrawal from a multiemployer bargaining unit, as Board cases show, is an important lever of control in the sound discretion of the Board to ensure stability of such bargaining relationships We would ac- cordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon ade- quate written notice given prior to the date set by the contract for modi- fication, or to the agreed-upon date to begin the multlemployer negotia- tions' 1878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about a partnership about the time of the July 24 letter to the Union but they formed the partnership much later David Cooper placed the actual formation in November 1981. Edward Cooper did not testify as to the time the Partnership was formed other than to say it was subse- quent to his notice to the Union. On the other hand, he testified that the Corporation took on no new business after August 1 and only concerned itself with completing preexisting contracts. Yet it is apparent that immediately after August 1 Respondent was engaged in performing newly acquired work at IBM, hired nonunion painters to perform the work, and used David Cooper as foreman to supervise them. In these circumstances, I do not credit Edward Cooper's testimony that the Corporation per- formed no new work after August 1 I find it continued in business with both old and new work until formation of the partnership in November. He testified he decided on a partnership with his son at a time when he had no business but felt he might get some, and that he started a new operation in order to make a living, both of them then working with their hands. The only time at which the evidence in the record indicates Respondent was without business was the end of July. In early August new business developed and there is no specific evidence indicating a total lack of business after that. The one aspect in which Respondent's operation dif- fered subsequent to its July 24 letter was its substitution of nonunion employees for union employees. The same type of painting work continued to be performed. Work at IBM continued. The same office and telephone were continued. The same office secretary was employed. David Cooper continued as foreman and Edward Cooper continued as head of the operation Change in managerial structure of the enterprise oc- curred only when the Partnership was formed in No- vember. Prior thereto David Cooper had no participa- tion in business decisions, had no access to the books and records, and was paid an hourly wage. Since formation of the Partnership he participates in partnership deci- sions, hires employees, writes checks on partnership bank accounts, buys materials with both check and cash, shares in profits on a basis of 60 percent to his father and 40 percent to himself, has access to the books and records, and supervises work on the jobs, working with tools himself when that is necessary He also signs the payroll, assists in estimating jobs, and is privy to all ex- penditures He now draws a salary rather than an hourly wage as previously. The Partnership continues the business previously car- ried on by Respondent Corporation, including work at IBM. Neither the Corporation nor the Partnership is a member of PDCA. Edward Cooper testified that the op- eration of the enterprise continued in this same manner at the time of the hearing herein On November 10 he informed Harry Sammons, the contracting administrator at IBM, of the formation of Respondent Partnership. He confirmed this the same day in a letter to Sammons on Respondent Corporation's letterhead which read as fol- lows: Mr Sammons: In reference to our phone conversation on 11-10- 81, we submit the following information. Beginning 11-17-81 we have formed a new com- pany under the name Cooper & Cooper Painting which will be operated as a partnership. The princi- pal stockholders will be Edward Cooper as Presi- dent and William Cooper (my son) as secretary. All new business beginning that date should be directed to Cooper & Cooper Painting. Edward Cooper Painting Inc. will terminate as of 11-17-81. We now have one contract PS81-6358 and PS81-6599 which will be completed by and billed by Edward Cooper Painting Inc. Any future orders that may be forth coming should be directed to Cooper & Cooper Painting Inc. Sincerely, Edward Cooper President The complaint alleges that Respondent Partnership was established as a subordinate instrument and a dis- guised continuation of Respondent Corporation and, fur- ther, that the Corporation and Partnership are alter egos and a single employer. 6 I agree. I base this on the con- tinuing role of Edward Cooper as the major managerial figure in both, the continuing operation of the same busi- ness from the same location, performing the same sort of work for the same class of customers and for one specific customer in particular, IBM David Cooper as a partner continues to perform all of the functions he performed under the Corporation with the addition of the greater managerial functions noted above. The one office em- ployee remains the same and it is at least inferrable that the working painters remain substantially the same. In this latter connection, it should be noted that, although Respondent Corporation ceased employing union paint- ers at the end of July and a complete changeover to non- union painters occurred in early August, there is no evi- dence respecting turnover in the staff from that point forward. In the circumstances the probabilities are, and I find, that Respondent continued to use substantially the same group of employees after formation of the Partner- ship. Being a continuation of the same enterprise, the Partnership is, for labor relations purposes, legally obli- gated to the same extent as the Corporation, including the proscriptions of Section 8(a)(1), (3), and (5) of the Act. Century Printing Co.; 242 NLRB 659, 666-667 (1967). E. The Bankruptcy Proceeding On December 4 Respondent Corporation, over the sig- nature of Edward Cooper as president, petitioned the United States District Court for the Eastern District of Kentucky for relief as a voluntary debtor in bankruptcy under Chapter 11, Title 11 of the United States Code. That matter is now pending. On May 28, 1982, the 6 The General also asserts that the Partnership is a successor to the Corporation but it is unnecessary to treat that question because it is sub- sumed in the alter ego finding EDWARD COOPER PAINTING 1879 Board's Regional Director for Region 9 filed with the court a proof of multiple claims totaling $120,296 for wages, salaries, or commissions covering claims of back- pay due employees to June 1, 1982. On June 11, 1982, the Corporation as debtor-in-possession filed with the court its objection to the Board's proof of claim On May 17, 1982, Edward Cooper (under the name Henry Edward Cooper) as an individual filed a petition in the same court for relief as a voluntary debtor in bankruptcy under Chapter 7, Title 11 of the United States Code. That proceeding is also pending. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section II, above, occurring in connection with the oper- ations described in section I, above, have a close and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1. PDCA (Blue Grass Chapter of Painting and Deco- rating Contractors of America) is an association of em- ployers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act which, on behalf of those employers, bargains collectively with various labor organizations, including the Union herein. 2 Respondent Corporation (Edward Cooper Painting, Inc.) and Respondent Partnership (Cooper and Cooper Painting) are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3 Respondent Corporation and Respondent Partner- ship (collectively referred to herein as Respondent) are alter egos and a single employer within the meaning of the Act. 4. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 5. In terminating the employment after August 1, 1981, of Walter Young Jr, and in failing to employ him there- after when work became available, Respondent discrimi- nated against him because of his union affiliation, dis- couraged membership in the Union, and engaged in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 6. All Respondent's employees engaged in painting at and out of its Lexington, Kentucky facility, but exclud- ing all office clerical employees, guards, professional em- ployees and supervisors as defined in the Act, constitute a unit appropriate for collectm e bargaining within the meaning of Section 9(b) of the Act. 7 At all material times the Union, by virtue of Section 9(a) of the Act, has been the exclusive collective-bargain- ing representative of employees in the unit described above 8. On July 24, 1981, Respondent withdrew recognition of the Union as the exclusive collective-bargaining repre- sentative of the employees in 1he unit described above and since then has failed and refused to so recognize and bargain with the Union or to adhere to the terms of the collective-bargaining agreement with the Union then in effect. Respondent thereby failed and refused, and is fail- ing and refusing, to bargain collectively in good faith with the Union and has been, and is, engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 9 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(3), (5), and (1) of the Act, I recommend that it be ordered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. I recommend that Respondent be ordered to offer Walter Young Jr. immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges, and that he be made whole for any loss of earnings incurred as a result of being terminated as of August 1, 1981, with backpay to be computed as prescribed in E W. Woolworth Co, 90 NLRB 289 (1950), and with interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977). I further recommend that Respondent be required to preserve and make available to Board agents, on request, all pertinent records and data necessary in analyzing and determining whatever backpay or other amounts may be due, and further, that Respondent be required to expunge from its records or files any reference to the termination of David Young Jr. Inasmuch as Respondent withdrew recognition from the Union as of August 1, 1981, and abrogated the then existing collective-bargaining agreement, I shall order that it cease its refusal to recogmze the Union, that it abide by that agreement, and that it take certain affirma- tive action to recognize and bargain with the Union and honor that contract. I shall order Respondent to recog- nize the Union as the collective-bargaining representative of the employees in the bargainng unit described above, to rescind or revoke its unilateral abandonment of the terms and conditions of employment provided for in that agreement and to enforce the terms and conditions there- of retroactively to August 1, 1981, until March 31, 1982, the date on which that agreement by its terms expired as a result of the notice of termination by Respondent to the Union on July 24, 1981. I shall also order Respond- ent, on request, to bargain in good faith with the Union as the collective-bargaining representative of its employ- ees Respondent will be ordered to make whole the em- ployees in the appropriate unit found above for any loss of wages or other benefits they may have suffered as a result of Respondent's abrogation of the agreement in effect at that time, with interest as provided for in Flori- da Steel Corp., supra 7 Respondent will also be ordered to make those pay- ments which should have been made to the Union's health and welfare trust fund, and the education fund. Any interest applicable to such fund payments shall be 7 See generally Isis Plumbing Co. supra 1880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid in accordance with the criteria set forth in Merryweather Optical Co., 240 NLRB 1213 (1979); and see Fox Painting Co., 263 NLRB 437 (1982). I shall also order Respondent to reimburse the Union with interest for loss of dues which the Union would have received pursuant to the dues-checkoff provisions of the collec- tive-bargaining agreement which Respondent attempted to abrogate as of August 1, 1981. Fox Painting Co., supra. In addition, Respondent will reimburse any unit employ- ee for premiums which an employee may have paid to a third-party insurance company for medical coverage and for any medical bills any employee paid directly to a health care provider that said collective-bargaining agreement policy would have covered. Fox Painting Co., supra; Angelus Block Co., 250 NLRB 868 (1980). Re- spondent's acts in this matter indicate a proclivity to engage in unfair labor practices and, accordingly, the broad injunctive relief is appropriate. See Hickmott Foods, 242 NLRB 1357 (1979). The recommended Order will run against "Respond- ent, its agents, successors, and assigns," the normal wording of Board orders. The order is designed to in- clude within its reach receivers, trustees, and debtors in possession functioning pursuant to the bankruptcy laws of the United States. See Section 2(1) and (2) of the Act. See also Imperial Hospital, 257 NLRB 581 (1981); Nathan Yorke, 259 NLRB 819 (1981). Even though such a func- tionary is a distinct person for bankruptcy purposes, it is subject to the Act as an employer or the successor of an employer. Application of the Act does not automatically cease upon the filing of a petition in bankruptcy by an employer. Board orders are binding on successors in charge of an enterprise for reasons other than evasion of the Act because under Section 10(c) of the Act, the Board is charged with effectuating the policies of the Act. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 176, 177 (1973). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 8 ORDER The Respondent, Edward Cooper Painting, Inc. and Cooper and Cooper Painting and alter ego, Lexington, Kentucky, its agents, successors, and assigns, shall 1. Cease and desist from (a) Abrogating the terms of the collective-bargaining agreement to which Respondent was a party. (b) Withdrawing recognition from the duly designated collective-bargaining representative of the majority of Respondent's employees in a unit appropriate for collec- tive bargaining. (c) Terminating employees because they belong to a union or desire to work under union conditions. 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with Interna- tional Brotherhood of Painters and Allied Trades of the United States and Canada, Local 768, AFL-CIO, as the duly designated collective-bargaining representative of its employees in the following unit appropriate for purposes of collective bargaining: All employees engaged in painting employed by Re- spondent at and out of its Lexington, Kentucky fa- cility, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. (b) Abide by the terms of the collective-bargaining agreement entered into between Respondent and the Union in 1978 for the period April 1, 1978, through March 31, 1980, and as amended on April 1, 1980. (c) Reimburse all employees in the bargaining unit, the funds established under the bargaining agreement (ex- cluding the industry advancement fund) and the Union for any losses they may have suffered as a result of Re- spondent's abrogation of the collective-bargaining agree- ment from and after August 1, 1981, with interest, in the manner prescribed in the section of this decision entitled "The Remedy." (d) Offer to Walter Young Jr. immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges previously enjoyed, .and make him whole for any loss of earnings or benefits he may have suffered by reason of Respondent's discrimination against him as set forth in the section of this decision entitled "The Remedy." (e) Expunge from its files any reference to the termina- tion of Walter Young Jr., and notify him in writing that this has been done and that evidence of this unlawful separation will not be used as a basis for future personnel actions against him. (0 Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Lexington, Kentucky facility copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." EDWARD COOPER PAINTING 1881 tive days in conspicuous places including all places (h) Notify the Regional Director in writing within 20 where notices to employees are customarily posted. Rea- days from the date' of this Order what steps the Re- sonable steps shall be taken by the Respondent to ensure spondent has taken to comply. that the notices are not altered, defaced, or covered by any other material. / *U.S. GOVERNMENT PRINTING OFFICE: 1986_L161-629:20003 Copy with citationCopy as parenthetical citation