273 N.L.R.B. 1131 (N.L.R.B. 1984)

Karsh'S Bakery

National Labor Relations Board - Board DecisionsDec 14, 1984

273 N.L.R.B. 1131 (N.L.R.B. 1984)

KARSH'S BAKERY 1131 John Kirkpatrick and Cheryl Kirkpatrick, a partner- ship d/b/a Karsh's Bakery and Bakery, Confec- tionary and Tobacco Workers International Union of America, Local No. 85. Case 32-CA- 4120 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 30 December 1982 Administrative Law Judge Gordon J. Myatt issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed an an- swering brief. The General Consel and the Charg- ing Party also filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' to the extent consistent with this De- cision and Order, and to adopt the recommended Order as modified. The judge found that the Respondent violated Section 8(a)(5) of the Act by withdrawing recogni- tion from the Union and failing to bargain with it concerning modification of a collective-bargaining agreement, and by repudiating that agreement, after the Respondent filed a petition in bankruptcy. He further found that the Respondent violated Sec- tion 8(a)(3) by constructively discharging five em- ployees who refused to work under the terms thus set by the Respondent. We have considered the judge's decision in light of the Supreme Court's subsequent decision in NLRB v. Bildisco & Bildisco, above, and will modify it accordingly. Briefly, we agree that the Respondent violated Section 8(a)(5) by withdraw- ing recognition, and that the five employees were unlawfully discharged when they refused to work without representation. Under Bildisco, however, the Respondent's other conduct did not violate the 1 The Respondent has excepted to the judge's conclusion that its com- merce operations meet the Board's $500,000 standard for retail oper- ations; it argues that only its revenues as debtor-in-possession may be considered. We agree with the judge that we may consider the Respond- ent's revenues before the bankruptcy petition was filed. We note that the Supreme Court has rejected the theory that a bankrupt employer is a "new entity." NLRB v. Bildisco & Bildisco, 104 S.Ct. 1188, 1197 (1984). We also agree that actual revenues in the preceding year are relevant de- spite a later reduction. This principle was affirmed in Retail/Wholesale Union Distnct 76 (Morgan Shoe), 129 NLRB 1339 (1961), on which the Respondent relies. In that case, unlike here, the respondent's actual reve- nues in the preceding 12-month period did not meet our discretionary ju- risdictional standards. Act, and there is no independent make-whole remedy for the 8(a)(5) violation. In Bildisco, the Court held that 8(d) procedures do not apply to an employer's rejection of a collec- tive-bargaining contract in bankruptcy, and that such unilateral rejection does not violate Section 8(a)(5) of the Act. 104 S.Ct. at 1199-1200. 2 It fol- lows that the Respondent's unilateral rejection of its collective-bargaining agreement and its conse- quent modification of certain terms and conditions of employment were not unfair labor practices. The Respondent may not have acted lawfully but, that is solely a question for the bankruptcy court, not the Board, to decide.3 At the same time, the Court in Bildisco reaf- firmed an employer's general obligation to recog- nize and bargain with the statutory bargaining agent of its employees. This duty is independent of the rejection or renegotiation of a contract within the framework of a bankruptcy petition. 104 S.Ct. at 1200-1201. We agree with the judge that the Re- spondent here withdrew recognition from the Union and thereby violated Section 8(a)(5) of the Act.4 We further find that the Respondent offered con- tinued employment to the five named employees on the condition that they forgo union representa- tion. Such an offer constitutes a constructive dis- charge and violates Section 8(a)(3) of the Act. Ad- vance Electric, 268 NLRB 1001 (1984). The judge found that the employees declined the Respond- ent's offer because it was conditioned on nonrepre- sentation and on the abrogated contract. Because the contract abrogation was not an unfair labor practice, neither was it an unlawful condition of the Respondent's offer of employment, and we will modify the judge's conclusions of law and recom- mended Order to delete any such finding. We still fmd, however, that the offer was expressly condi- tioned on a waiver of union representation, and this was unlawful. The judge credited each employee's testimony that John Kirkpatrick told her that the Respondent would operate "non-union." No exception was taken to this finding and the record supports it. We find inconclusive the record testimony as to what 2 This ruling is unaffected by bankruptcy reform legislation since en- acted by Congress. 3 The Charging Party contends that the Bankruptcy Appeals Panel of the Ninth Circuit has, in fact, reversed the bankruptcy judge's decison to approve this contract rejection. FOr the reasons already stated, this evi- dence is now irrelevant and we do not need to consider it. 4 While the remedy for this violation includes an order that the Re- spondent bargain with the Union concerning terms and conditions of em- ployment, it does not include any make-whole relief for unilaterally changed contractual conditions, as in Ogle Protection Service, 183 NLRB 682 (1970). To do so would of course undermine the rule that rejection of the contract in bankruptcy did not violate the Act. 273 NLRB No. 139 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the five employees "meant" by "non-union." The employees were likely describing what they be- lieved were the characteristics of a "non-union" operation, the phrase they testified that John Kirk- patrick used. 5 We will therefore attribute to that phrase its plain meaning There can be no doubt what the Respondent in- tended by its statements, as it then unlawfully with- drew recognition from the Union. We find this meaning was clearly conveyed to the employees even though they were not told that recognition had been withdrawn, or that they had to waive union representation. While it is true that the record does not allow a precise determination of the employees' motivation in declining the Re- spondent's offer of employment, the Respondent created this uncertainty by telling the employees it was going to operate "non-union." We will there- fore resolve the ambiguity against the Respondent. The judge's recommended Order required that the five employees be offered reinstatement with backpay through 5 March 1982, the date the Re- spondent offered to recognize and bargain with the Union. We find, however, that backpay was not tolled on that date because, while the Respondent offered to recognize the Union, it did not commu- nicate that offer to the employees. There is no record evidence that that offer was communicated. The only pertinent testimony is that of two employees who told Kirkpatrick in March that they could not work in a nonunion shop; there is no indication that Kirkpatrick corrected their misperception of his offer. The judge's recommended remedy also provided that backpay be at the contractual rates set before the bankruptcy petition was filed. For the reasons already discussed, we hold instead that backpay and other monetary relief must be determined in accordance with whatever contractual arrange- ments are approved by the bankruptcy court. We will therefore leave the determination of the back- pay formula to the compliance proceeding. CONCLUSIONS OF LAW 1. By refusing on 4 December 1981 to recognize and bargain with the Union, as the exclusive repre- sentative of the employees in the unit set forth below, concerning rates of pay, wages, hours, and 5 See, e g, the following testimony of employee Janet Higbee Q Would you state why you decided not to continue working for Karsh's Bakery after December 57 A Because he went non-union, pnmanly JUDGE MYATT What does non-union mean when you say non- union? THE WITNESS It means that you work 12 hours a day, you get paid for eight at the minimum, no insurance, no nothing That's what It means, sir I know other terms and conditions of employment, the Re- spondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. The unit appropriate for purposes of collective bargain- ing is: All full-time and regular part-time journeymen and apprentice bakers, doughnut fryers/icers/- glazers, miscellaneous employees, and sales persons, including forepersons, excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 2. By conditioning continued employment of the unit employees on 4 December 1981 on their for- going representation by their exclusive collective- bargaining representative, the Respondent con- structively discharged those employees and violat- ed Section 8(a)(3) and (1) of the Act. The unit em- ployees are: Janet Higbee Pamela Hale Susan Sadoian Dollie Phillips Diane Jones ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, John Kirkpatrick and Cheryl Kirkpat- rick, a partnership d/b/a Karsh's Bakery, Fresno, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) Discharging employees by conditioning their continued employment on their forgoing rep- resentation by their exclusive collective-bargaining representative." 2. Delete paragraph 1(c) and reletter the subse- quent paragraph. 3. Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, concurring and dissenting. I agree with my colleagues that, under NLRB v. Bildisco & Bildisco, 1 the Respondent did not violate Section 8(a)(5) and (1) of the Act by rejecting its collective-bargaining agreement with the Union on the filing of its petition in bankruptcy on 4 Decem- ber 1981. I also agree with my colleagues that, not- withstanding the lawful rejection of the collective- bargaining agreement, the Respondent violated ' 104 S Ct 1188 (1984) KARSH'S BAKERY 1133 Section 8(a)(5) and (1) by withdrawing recognition from the Union. 2 However, contrary to my col- leagues, I would find that the Respondent did not violate Section 8(a)(3) and (1) by constructively discharging five employees who refused the Re- spondent's offer of continued employment after 4 December 1981. According to the majority, the judge found that the five employees declined the Respondent's offer of continued employment because it was condi- tioned on a waiver of union representation as well as on the abrogation of the collective-bargaining agreement, whereby they were constructively dis- charged. In reversing the judge regarding the re- jection of the contract, the majority recognizes that it has eliminated one of the two grounds for the judge's finding of constructive discharge, i.e., be- cause it was not unlawful for the Respondent to reject the contract, it was not unlawful to offer continued employment on new terms. The majority continues to find the Respondent's offer unlawful, however, on the ground that it was expressly con- ditioned on a waiver of union representation, as in Advance Electric, 268 NLRB 1001 (1984). I have several problems with the majority's ap- proach. For one, I do not read the judge's decision as finding, or supporting a finding, that the Re- spondent expressly conditioned continued employ- ment on a waiver of union representation. For an- other, I believe that the record conclusively estab- lishes only that the employees terminated their em- ployment because they did not want to work under the new terms, not that they were constructively discharged because they did not want to work without union representation. As set forth by the judge, the five employees tes- tified that they were informed by the Respondent's owner or manager that the Respondent had filed for reorganization; that it was going nonunion (em- ployees Higbee and Phillips) or that it would oper- ate as a nonunion shop (employees Sadoian, Hale, and Jones); and that their wages would be cut and 2 This finding is supported by credited evidence that on 5 December 1981 the Respondent's owner Kirkpatrick told the Union's assistant busi- ness representative Ghan that he did not think he should even be talking to Ghan, and that Kirkpatrick thereafter did not return Ghan's telephone calls. I further agree that a bargaining order is the appropriate remedy for this violation. I also agree that the Respondent met the Board's jurisdictional stand- ards for retail operations. As indicated in fn. 1 of the majority's decision, the Respondent's actual revenues in the entire 12-month period beginning 1 July 1981 are relevant despite a reduction in its business beginning De- cember 1981. Moreover, in Retail/Wholesale Union Distrtct 76 (Morgan Shoe), 129 NLRB 1339 (1961), the respondent's actual revenues in the preceding 12-month period did not meet the Board's discretionary juris- dictional standards and any projected revenues would have had to ac- count for the closing of one store in addition to the opening of two stores. Here, however, the evidence of actual revenues involved the 15- day period that would complete the year, and the projection made by the judge was in line with the Respondent's reduced operations. their contract benefits eliminated. In response to the Respondent's offer to work under these terms, Higbee "declined to work under the new condi- tions"; Sadoian "could not accept the new terms because she could not work in a nonunion shop"; Jones "declined to accept the Respondent's offer to work under these new terms"; Hale "refused to continue working for the Respondent"; and Phillips "could not work in a non-union shop." The judge noted Higbee's testimony that she would have con- tinued to work for the Respondent if the wages had been high enough to cover individual health insurance and contributions to the union pension fund. He also noted Higbee's testimony, which was similar to Sadoian's, that having to work for lower wages and no contract benefits meant that the Re- spondent was going nonunion, even though the Re- spondent never specifically stated that she could no longer be represented by the Union.3 In his "Concluding Findings," the judge stated that the Respondent "made it quite clear to these employees that the business was going to be oper- ated henceforth as a non-union establishment." The judge further found that each employee who was offered continued employment on the new terms "declined to do so because they refused to work under 'nonunion' conditions and for the lower pay without any benefits." From this the judge inferred that the employees wanted to continue to be repre- sented by the Union as well as to continue to be employed under the terms of the contract. The judge then concluded that "by refusing to work in a non-union shop for less wages and without any of the benefits provided in the collective-bargaining agreement, the five employees were constructively discharged." In my view, the judge made no specific finding that the Respondent made the waiver of union rep- resentation an express condition of continued em- ployment. I also do not believe that the employees' reasons for declining continued employment have been determined with sufficient precision. In this regard, I note that at the time the judge issued his decision the Respondent's offer of new terms was unlawful under pre-Bildisco law. Thus, it was not necessary at that time to dissect the employees' rea- sons as closely as we must do now. Additionally, although the majority finds the employees' testimo- ny as to what they "meant" by "non-union" incon- clusive and therefore "attribute[s] to that phrase its plain meaning,"4 I believe that such testimony af- firmatively supports a finding that the employees 3 Although not mentioned by the judge, there is similar testimony on the record by the other employees involved herein. 4 See fn. 5 of the majority's decision. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD focused only on the loss of wages and benefits,5 particularly in the absence of evidence that the five employees knew of the Respondent's withdrawal of recognition from the Union at the time they made their individual decisions to decline the Respond- ent's offer. I also submit, contrary to the majority, that the meaning of the term "nonunion" is not so plain in the post-Bildisco context of bankruptcy cases because the Supreme Court's decision has raised issues concerning post petition bargaining obligations which have yet to be resolved by the Board. The context of the Respondent's bankruptcy also serves to distinguish this case from Advance Elec- tric, relied on by the majority. In that case the Board found that the respondent violated Section 8(a)(3) and (1) by "conditioning the employment of its electricians on their working without union rep- resentation and for wages below those specified in the collective-bargaining agreement applicable to them, and that those electricians, having chosen to forgo their employment rather than accept those unlawful conditions, were thereby constructively and unlaw- fully discharged." (Emphasis added.) 6 Thus, in Ad- vance Electric, the employer's unlawful unilateral changes were a key factor in the Board's decision. For all of the foregoing reasons, I would find that the preponderance of the evidence fails to es- tablish that the Respondent's offer of continued employment was unlawful or that the employees terminated their employment in consequence of any such unlawful offer. Accordingly, I would dis- miss the 8(a)(3) allegation of the complaint. 5 My colleagues concede that the record does not allow a precise de- termination of the employees' motivation in declining the Respondent's offer of continued employment My reading of the employees' testimony persuades me, however, to resolve any ambiguity created by the Re- spondent's offer against the General Counsel, who had the burden of proving the unlawful condition of employment 6 268 NLRB 1001, 1004 (1984) 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 refuse to recognize and negotiate with Bakery, Confectionary and Tobacco Workers International Union of America, Local No. 85 as the exclusive collective-bargaining representative of our employees in the following appropriate unit: All full-time and regular part-time journeymen and apprentice bakers, doughnut fryers/icers/- glazers, miscellaneous employees, and sales persons, including forepersons, excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. WE WILL NOT discharge employees by condi- tioning their continued employment on their forgo- ing representation by their exclusive collective-bar- gaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL recognize and, on request, bargain with the above-named Union, as the exclusive col- lective-bargaining representative of our employees in the unit described above, with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL offer Janet Higbee, Susan Sadoian, Diane Jones, Pamela Hale, and Dollie Phillips im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, discharging, if necessary, any employees hired after 4 December 1981, and WE WILL make them whole for any loss of earnings they may have suffered as a result of our discrimination against them, with interest. JOHN KIRKPATRICK AND CHERYL KIRKPATRICK, A PARTNERSHIP D/B/A KARSH'S BAKERY DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On a charge filed by Bakery, Confectionary and Tobacco Workers International Union of America, Local No. 85 (the Union), against John Kirkpatrick and Cheryl Kirk- patrick, a partneship d/b/a Karsh's Bakery (the Re- spondent), the Regional Director for Region 32 issued a complaint and notice of hearing on January 12, 1982. The complaint alleged, inter alia, that the Respondent, through its agents and/or supervisors, on various dates commencing December 4, 1981, 1 informed employees that their continued employment depended on their ac- cepting reduced wages and forgoing representation by the Union. Further, that by such conduct, Respondent caused the termination of several of its employees. 2 Fi- 1 Unless otherwise indicated, all dates refer to the year 1981 2 The complaint alleged that because of Respondent's conduct, six named employees terminated their employment with the Respondent At Continued KARSH'S BAKERY 1135 nally, it is alleged that on December 5 the Respondent instituted wage reductions and eliminated employee fringe benefits provided for in the collective-bargaining agreement in effect between it and the Union without first affording the Union an opportunity to negotiate and bargain on these matters. In addition, on the same date, the Respondent withdrew recognition of the Union as the exclusive representative of its employees in a unit ap- propriate for purposes of collective bargaining. The com- plaint alleged that by the above conduct the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act). The Respondent filed an answer in which it admitted certain allegations of the complaint, denied others, and specifically denied the commission of any unfair labor practices. A hearing was held in this matter on June 22, 1982, in Fresno, California. All parties were represented by coun- sel and afforded full opportunity to examine and cross- examine witnesses and to present relevant and material evidence on the issues involved here. All parties submit- ted written briefs in support of their positions and they have been duly considered. On the entire record in this case, including my obser- vation of the demeanor of the witnesses while testifying, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges that since about June 25, 1981, the Respondent, as a California partnership, had been en- gaged in the baking and retail sale of bakery products. Further, since that date the Respondent has averaged monthly gross revenues from the operation of its business in excess of $60,000 and, when such revenues are pro- jected on an annual basis, they exceed $500,000. The Re- spondent denies these allegations and asserts that due to unique circumstances (more fully set forth below) it does not meet the Board's jurisdictional standards. Thus, the Respondent affirmatively pleads that the complaint should be dismissed because the gross dollar volume does not satisfy the Board's discretionary standards for retail enterprises. For this reason, the matter of jurisdic- tion becomes a threshold issue which must be decided at this point. The undisputed facts disclose that John and Cheryl Kirkpatrick, as general partners, began negotiations for the purchase of Karsh's Bakery at some undisclosed time in April 1981. At the time the purchase negotiations were taking place, the employees of then owner Rose Karsh were represented by the Union and covered by a collective-bargaining agreement which, among other things, required the employer to make periodic payments into health and pension funds and to grant vacation pay to the employees. Karsh was delinquent in her contribu- tions to the Funds and had not paid vacation benefits to the employees. As a result, the Union and the Funds in- the hearing, the name of one of these employees, Claude Williams, was deleted from this allegation of the complaint. stituted an action in the Federal district court to collect the amount in arrears. Sometime in May, the Kirkpatricks entered into an agreement with Karsh to purchase the business. On July 1, the partnership took over the operational control of the business. However, escrow for the purchase was to close at a subsequent date. 3 Under this arrangement, the Kirkpatricks (primarily through John Kirkpatrick) as- sumed control of the day-to-day operation of the enter- prise. John Kirkpatrick testified that he was "to run the bakery as best as [he] saw fit and that [he] could hire and fire employees." Rita Karsh, daughter of Rose, continued to come to the establishment each day to be available as an adviser or consultant to the Kirkpatricks if needed.4 On July 9, after what appears to be tripartite negotia- tions, the Kirkpatricics entered into an agreement with Rose Karsh and the Union whereby the partnership, as purchasers of the business, agreed to the following: (1) to assume and pay Karsh's delinquent obligations to the Funds and the Union; (2) recognize the Union as the col- lective-bargaining representative of the employees; and (3) abide by the terms of the existing collective-bargain- ing agreement. (See G.C. Exh. 3.) Kirkpatrick's assump- tion of the indebtedness was to be effective as of July 1, or on the date he assumed control of the business. When the Kirkpatricks took over operational control of the bakery, there were four retail outlets located in shopping malls or in existing retail establishments. These outlets were known as: (1) the main store and production center located in Fulton Mall; (2) Gottschalk's Fashion Fair Store; (3) Gottschalk's Manchester Store; and (4) the Hanoian Store. In early August, the Kirkpatricks ex- panded the retail operation to include three additional outlets. They were the Foodland Herndon Store, Gotts- chalk's Downtown Store, and the Boy's Market Store. On July 25, the Kirkpatricks and the Union entered into a collective-bargaining agreement covering a unit of the employees in various bakery and sales classifications. (See G.C. Exh. 4.) In addition, the unrefuted testimony indicates that sometime in July or August, Kirkpatrick held a meeting with all of the employees and assured them that "things would be just as usual" under his own- ership and operation of the business. Further, the unre- futed testimony indicates that, between the date the Kirkpatricks assumed control of the operation of the bakery and the actual close of escrow, John Kirkpatrick met on several occasions with Union Representative Randy Ghan to resolve employee grievances. On December 4, the Kirkpatricks, as general partners doing business as Karsh's Bakery, filed a petition in bank- ruptcy under Chapter 11 of the Bankruptcy Code. The partnership was immediately appointed by the Bankrupt- cy Court as debtors-in-possession and continued to oper- ate the business from that day forward during the pend- ency of the bankruptcy proceedings. As debtors-in-pos- 3 Escrow for the purchase of the bakery did not close until October 15, 1981. 4 According to the undisputed testimony of John Kirkpatrick, this same arrangement applied to Rose Karsh; however, she never came to the bakery during the transition period because of an injury to her leg or hip. 1136 DECISIONS OF NATIONAL LABOR RELATiONS BOARD session, the partnership permanently closed the retail out- lets located in the three Gottschalk's stores on December 4. The parties stipulated to the monthly volume of busi- ness grossed by the bakery for the period July 1, 1981, to June 15, 1982. These amounts are as follows: July 1981 $44,175.55 August 1981 53,778.59 September 1981 51,886.17 October 1981 61,901.38 November 1981 54,658.96 December 1981 31,750.43 January 1982 31,333.32 February 1982 34,295.24 March 1982 34,691.79 April 1982 33,668 77 May 1982 30,498.00 June 1-15, 1982 19,614 00 Total Gross $496,252.20 [See G.C. Exh. 2.] It was further stipulated at the hearing that for the period July 1, 1981, to November 30, 1981, the bakery purchased and received goods and services which origi- nated outside the State of California valued in excess of $5,000.5 Based on the above facts, the Respondent contends that only the gross revenue earned by the general part- nership as debtors-in-possession can be considered in de- termining whether the gross volume of business satisfies the Board's standards for retail enterprises. In support of this argument the Respondent cites the decision of the United States Court of Appeals for the Second Circuit in Iron Workers Local 455 v. Kevin Steel Products, 519 F.2d 698 (1975), and a subsequent decision by the Ninth Cir- cuit in Local Joint Executive Board v. Hotel Circle, 613 F.2d 210 (1980). In Kevin Steel the Court was confronted with the con- flict between Section 313(1) of the then Bankruptcy Act permitting rejection of executory contracts and Section 8(d) of the National Labor Relations Act prohibiting a "party" from terminating or modifying a collective-bar- gaining agreement without adhering to the requirements of that section. There, the Court reasoned that a debtor- in-possession is a "new entity" from the pre-bankrupt employer and thus can be permitted to reject the existing collective-bargaining agreement as "burdensome executo- ry contract" without regard to the requirements of Sec- tion 8(d) of the National Labor Relations Act. The Ninth Circuit in Hotel Circle adopted this reasoning stating it was analogous to the situation of a successor employer who was found not to be bound by the collective-bar- gaining agreement of its predecessor in the Burns Inter- national Security Services decision of the United States Supreme Court.6 5 There is no evidence in the record reflecting the gross volume of business earned by the bakery dunng the ownership of Rose Karsh 6 NLRB v Burns Security Services, 406 US 272 (1972) Intriguing as the Respondent's argument may be, I find that it cannot prevail. In each of the cases relied on by the Respondent the courts were confronted with the narrow concern of resolving the conflict between provi- sions of the Bankruptcy Act and the National Labor Re- lations Act. Thus, the courts adopted the "new entity" concept solely for the limited purpose of resolving the conflict between these two sections of the statutes and not for all purposes as the Respondent would urge. Indeed, the Second Circuit in a subsequent decision on the same issue stated that the new entity created was a "new juridicial entity" and that it was "for the narrow purpose of resolving otherwise conflicting provisions of the labor and bankruptcy laws" Teamsters Local 807 v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976). Similarly, the Ninth Circuit in Hotel Circle stated, "We are convinced that the analogy to successorship [made by the court in Kevin Steel and Bohack] cases in this limited area is valua- ble." (Emphasis supplied.) 613 F.2d at 214. Therefore, the argument that the prebankrupt partner- ship and the partnership as debtor-in-possession are not the same entity is not supported by careful reading of the very cases relied on by the Respondent. There is no con- flict here between the National Labor Relations Act and the Bankruptcy Code in determining the gross dollar volume of business of the pre-bankrupt debtor and the debtor-in-possession for purposes of ascertaining whether the Board's jurisdictional standards are met. Indeed, the Board has consistently held that a trustee in bankruptcy or a debtor-in-possession is the alter ego of the bankrupt- cy employer. Jersey Juniors, 230 NLRB 329 (1977); State- side Shipyard and Marina, 178 NLRB 516 (1969). There- fore, I find the gross revenue experience of the Respond- ent, both as the pre-bankrupt debtor and as the debtor-in- possession is to be considered in ascertaining whether the Board's jurisdictional standards are met, since for this purpose of the Act they are a continuing entity. The next question to be resolved on the issue of juris- diction is at what point did the Respondent become the successor employer? The Respondent argues that since escrow did not close until October 15, it did not legally become owner of the business until that date I find that this argument is also without merit. The uncontroverted testimony discloses that the Re- spondent assumed operational control of the bakery on July 1. Kirkpatrick could hire and fire employees and ran the business as he "saw fit." There was no change whatsoever in the employing enterprise and in August, Kirkpatrick increased the number of retail outlets from four to seven. In July, the Respondent not only assumed its predecessor's obligations to the Union for the vaca- tion pay due employees and to the benefit funds for the delinquent contributions, but also executed, in its own name, a collective-bargaining agreement with the Union. It is apparent that as of July 1, the Respondent had taken over all entrepreneurial control of the business enterprise with the attendant risk of loss and opportunity to gain a profit. Therefore, it is evident that during escrow the Re- spondent operated the bakery for its own financial bene- fit and not for the financial benefit of its predecessor. Eagt Beldon Corp., 239 NLRB 776 (1978). Accordingly, I KARSH'S BAKERY 1137 find the Respondent became the successor employer on July 1, when the Kirkpatricks assumed control of the bakery, rather than on October 15, when escrow for the purchase finally closed. Under established Board law, two independent juris- dictional tests apply to the situations involving successor employers. The Board treats the successor as it had com- menced operation of a new business and determines whether it meets the jurisdictional standard by making a forward projection based on its actual revenue experi- ence. Where the evidence indicates that the business will continue in essentially the same manner as before the change of ownership, the Board has also used the 12- month experience of the predecessor to project what revenues the successor employer will total during its first 12 months of control. Galaxy Theatre, 210 NLRB 695 (1974). Nor is the application of these tests mutually ex- clusive. Northgate Cinema, 233 NLRB 586 (1977). In the instant case, there is no evidence in the record of the 12-month experience of the predecessor. Conse- quently, it is only the actual experience of the Respond- ent and its alter ego, the debtor-in-possession, that can be considered and projected forward over a 12-month period. The stipulation shows that for 11-1/2 months the busi- ness enterprise grossed $496,252.20. Even under the re- duced operation by the debtor-in-possession the business enterprise averaged $36,339.57 a month for the first 6 months (until the end of May 1982). Thus, it is reasona- ble to project that the full month's 1 evenue for the month of June 1982 would more than double the half- month total ($19,614) set forth in the stipulation. As this would clearly place the gross revenues above the $500,000 discretionary standard for retail enterprises, I find that the Respondent meets I he jurisdictional require- ments of the Board. Accordingly, the Respondent's motion to dismiss for lack of jurisdiction is denied and I fmd that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Bakery, Confectionary and Tobacco Workers Interna- tional Union of America, Local No. 85 is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As noted, the Respondent executed a collective-bar- gaining agreement with the Union on July 25 and filed a petition under Chapter 11 of the bankruptcy code on De- cember 4. Although there are some differences between the testimony of Kirkpatrick and that of the witnesses for the General Counsel, there is no significant dispute over the events which followed the filing of the petition in the bankruptcy court. Janet Higbee had been employed at the bakery since 1963 as a salesclerk. She was a member of the Union and on December 4 was earning $5.06 an hour working in the main store in Fulton Mall. At the end of her shift on December 4, Higbee spoke to Carl Swatsky, Respond- ent's manager of operations, and asked for her work schedule for the following day. 7 Swatsky told the em- ployee to go home and that she would be contacted later by Kirkpatrick. When she failed to hear from Kirkpat- rick during the course of the evening, Higbee telephoned the store and spoke directly with him. According to Higbee, Kirkpatrick stated he was reorganizing the busi- ness and had filed a petition in bankruptcy under Chap- ter 11. Higbee testified that Kirkpatrick told her he was going nonunion and that her wages would be reduced to $4 an hour with no other benefits. 8 Kirkpatrick then asked the employee to work at the Hanoian outlet under these new terms. Higbee initially agreed to accept Re- spondent's terms because she was hesitant to become un- employed just before Christmas. After giving the matter additional thought, Higbee decided to call the home of one of the employees who worked at the Hanoian store. This employee told Higbee that she was not going to accept Respondent's offer to work for lower wages with no benefits or a union contract. Higbee then decided she would not work on these terms either. The following morning, Higbee called Swatsky and declined to return to work under the new conditions offered by Respond- ent On cross-examination, Higbee stated she would have continued to work for the Respondent if the wages of- fered had been high enough to enable her to purchase her own health insurance and to make payments into the union pension fund. Higbee also testified on cross-exami- nation that working for less than contract wages without any of the contract benefits and without a contract Itself meant to her that the Respondent was going nonunion. She stated this was true even though Kirkpatrick never specifically told her that, if she returned, she could no longer be represented by the Union. Employee Susan Sadoian had been employed at the bakery as a sales clerk since 1955 She too was a member of the Union and worked at the Hanoian store outlet. On December 4 her hourly rate of pay was $5.05. Sadoian testified she was called at home by Swatsky on the evening of December 4. Swatsky told the employ- ee that the Respondent had filed for reorganization under Chapter 11 of the Bankruptcy Code and that the business would operate as a nonunion shop. Swatsky also told the employee that there would be no union contract or benefits given to the employees and that the wages would be reduced to $4 an hour. Sadoian asked for time to think about these new terms. She subsequently called Swatsky back and told him that she could not accept the new terms because she could not work in a nonunion shop.9 Diane Jones worked at the bakery since 1978 as a salesclerk. She was a member of the Union and was earning $5.02 an hour on December 4. Jones testified 7 Although Swatsky figured prominently in conversations with several of the employees, he was not called as a witness in this proceeding 8 Kirkpatrick testified that he told Higbee he was "rejecting" the union contract He denied making the statement that the Respondent was going nonunion and testified there was no discussion about the Union continu- ing to represent the employees 9 As with the testimony of Higbee, Sadolan stated that working for lower wages without any benefits or a collective-bargaming agreement meant, as far as she was concerned, that the Respondent was going non- union 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that on December 4 Swatsky telephoned her at home and informed her that the Respondent would no longer be a union shop and that the wages would be reduced to $4 an hour without any other benefits. Jones declined to accept the Respondent's offer to work under these new terms. Pamela Hale was a salesclerk at the Hanoian store outlet. She was a union member and was receiving $5.06 an hour on December 4. Hale testified that on December 6 Kirkpatrick called her home and informed her that the Respondent was reorganizing under Chapter 11 of the Bankruptcy Code. According to Hale, Kirkpatrick said the Respondent would not honor the collective-bargain- ing agreement with the Union and that the wages of the employees would be cut. He told Hale the Respondent was going to be a nonunion shop. Hale then refused to continue working for the Respondent. Dolhe Phillips was also a salesclerk for the Respond- ent. Like the other employees Phillips was a member of the Union and was earning $5.06 an hour at the time of the filing of the petition in bankruptcy. She testified that on December 4, Cheryl Kirkpatrick told her the Re- spondent was closing all of the Gottschalk outlets and since the following day was Phillips' day off, the em- ployee should go home and wait for management to con- tact her. The following day John Kirkpatrick called Phillips. According to Phillips, Kirkpatrick stated the bakery was going nonunion and her wages would be re- duced to $4 50 an hour with no other benefits. He stated the Respondent was rejecting the collective-bargaining agreement with the Union." Phillips testified she asked Kirkpatrick for time to consider this new development. Kirkpatrick called Phillips a short while thereafter and asked her to come to work that Saturday. Phillips at this point refused, telling Kirkpatrick that she could not work in a nonunion shop. Randy Ghan, assistant business representative of the Union servicing the contract at the bakery, testified that he went to the main office of the bakery on December 5 and spoke with Kirkpatrick. He stated Kirkpatrick in- formed him that a petition had been filed under Chapter 11 of the Bankruptcy Code and the Respondent was re- jecting the Union's contract along with its Gottschalk's contract. Ghan told Kirkpatrick that he could not do that and asked where they were to go from there. Kirk- patrick replied that he did not know and that he did not think he should even be talking to the union representa- tive. At this point, according to Ghan, Kirkpatrick walked away. Following this conversation, Ghan stated he made several attempts to contact Kirkpatrick by tele- phone but was unable to get his calls returned. Kirkpatrick acknowledged that he spoke with Ghan on December 5 at the bakery. According to Kirkpatrick, Ghan was questioning him about rejecting the collective- bargaining agreement. Kirkpatrick stated he told Ghan he had authority to reject all executory contracts under Chapter 11 of the Bankruptcy Code. The union repre- 10 Kirkpatrick testified that he offered Phillips a position as head of the Foodland Herndon outlet at $4 50 an hour Kirkpatrick said he told the employee that the Respondent was rejecting the union contract At this point, according to Kirkpatrick, Phillips stated she would not work for those wages and refused his offer sentative then informed Kirkpatrick that he would be hearing from him. Kirkpatrick stated that he was later in- formed that Ghan had called him several times but denied receiving any such messages when the calls were allegedly made by Ghan. Apparently at the time of the filing of the petition in bankruptcy, or shortly thereafter, the Respondent filed a motion with the bankruptcy court for approval to reject a number of executory contracts including the collective- bargaining agreement. A hearing was held on the motion on December 22 and the following day the bankruptcy court issued an order approving the rejecting of the agreement by the debtor-in-possession.11 On March 5, 1982, the Respondent, apparently on advice of different counsel, contacted the employees who had refused to work for the lower wages and new terms offered by the Respondent in December. Kirkpat- rick offered each of these employees a position with the bakery on the identical terms he initially offered after filing the petition in bankruptcy. Each of the employees refused to accept the offer for substantially the same reason; i.e., they would not work for the lower wages without any benefits and without a union contract. Kirkpatrick also contacted the union representative on that same date. Ghan testified that Kirkpatrick offered to bargain on any issues that the Union wished to discuss. A meeting was set for some time in May but was can- celed because of a scheduling conflict of the Union's at- torney. Since that time, there has been no effort by the Union to reschedule another meeting with the Respond- ent. Concluding Findings The General Counsel argues that the filing of the Chapter 11 petition and the appointment of the Respond- ent as debtor-in-possession did not relieve the debtor from its obligations under the collective-bargaining agreement. Thus, when the debtor-in-possession unilater- ally abrogated the provisions of the agreement prior to receiving authorization from the bankruptcy court to reject that executory contract, it did so without comply- ing with the requirements of Section 8(d) and thereby violated Section 8(a)(5) of the Act. In addition, the Gen- eral Counsel contends that, even after the bankruptcy court's approval of the rejection of the agreement, the debtor-in-possession remained under an obligation to rec- ognize and bargain with the Union, since the employing enterprise continued to operate in the same manner albeit on a reduced scale, with substantially the same employ- ees. In support of these arguments, the General Counsel cites, among other cases, Burgmeyer Bros., 254 NLRB 1027 (1981); Jersey Juniors, 230 NLRB 329 (1977); Iron " The Union takes the position in the instant proceeding that the order of the bankruptcy court is not entitled to be honored by the Board The Union in effect argues that the Court applied an improper standard in determining that the collective-bargaining agreement was burdensome to the debtor's estate and its rejection was necessary to achieve a stabs- factory reorganization I do not consider a proceeding before the Board to be a proper forum to review an order issued by the bankruptcy court Therefore, the Union's argument in this regard is rejected KARSH'S BAKERY 1139 Workers Local 455 v. Kevin Steel Products, 519 F.2d 698 (2d Cir. 1975). Finally, the General Counsel* argues that the five em- ployees who refused to work under the new terms and conditions offered by the debtor-in-possession were con- structively discharged in violation of Section 8(a)(1) and (3) of the Act. The General Counsel reasons that by uni- laterally reducing wages and eliminating benefits re- quired by the collective-bargaining agreement, as well as the asserted repudiation of the Union as the bargaining representative of the employees, the debtor-in-possession made the terms and conditions of employment so intoler- able that the five employees were, forced to quit their jobs. The Respondent's basic argument is much the same as that advanced in support of the jurisdictional issue.- The Respondent contends that the debtor-in-possession is a new entity and, as such, is free to reject the existing col- lective-bargaining agreement much like a successor em- ployer in the circumstances found by the Supreme Court in NLRB v. Burns Security Services, 406 U.S. 272 (1972). To sustain this position, the Respondent relies heavily on Kevin Steel, supra, and also on Local Joint Executive Board v. Hotel Circle, 613 F.2d 210 (9th Cir. 1980). The Respondent also contends that in exercising its right to reject the collective-bargaining agreement, it did not re- pudiate the Union's status as the bargaining representa- tive of the employees and hence did not deny the em- ployees their statutory right of. representation. In this regard, the Respondent asserts that the five employees quit their jobs because they declined to work for the re- duced wages and without any benefits, rather than be- cause they understood the Union would no longer be al- lowed to represent them. • Addressing first the issue of the unilateral changes in the terms of the collective-bargaining agreement, I find that the Respondent has indeed acted in violation of the National Labor Relations Act. The Board has long held that the filing of a petition in bankruptcy and the subse- quent appointment of a receiver, a trustee, or a debtor-in- possession does not invalidate the effectiveness of an ex- isting collective-bargaining agreement; nor does it relieve the receiver, trustee, or debtor-in-possession of the obli- gation to recognize and' bargain with the current collec- tive-bargaining representative of the employees of the fi- nancially troubled enterprise. Burgmeyer Bros., supra; Oxford Structures, 245 NLRB 1180 (1979); Jersey 'Juniors, supra. This principle has likewise received approval in the courts. See Teamsters Local 807 v. Bohack Corp., 541 F.2d 312 (2d Cir. 1976), and Iron Workers Local 455 v. Kevin Steel Products, supra. The Hotel Circle case heavily . relied on by the Re- spondent does not necessarily, in my judgment, warrant a contrary conclusion. There, the Ninth Circuit recog- nized a receiver (or debtor-in-possession) has a "general duty to bargain and otherwise . comhly with the [Act]," but held that a receiver's duty under 8(d) "is limited by his lack of authority to affirm an executory labor 'agree- 'ment without the permission of the bankruptcy court." Local Joint Executive Board v. Hotel Circle, supra; 613 F.2d at 215. The court in Hotel Circle was concerned with a receiver who had participated in negotiations for a new collective-bargaining agreement and then con- formed to the terms of the agreement negotiated without prior approval of the bankruptcy court. It was not a situ- ation where compliance with the terms of an existing collective-bargaining agreement was involved. Indeed, in Hotel Circle' the court referred to the Bohack case, supra, to note that the "new entity" concept for a receiver or debtor-in-possession is narrowly limited and "cannot be taken literally since one not a party technically cannot affirm or reject an agreement." In a more recent case (in- volving a lease of the debtor rather than a collective-bar- gaining agreement),agr ement), the Ninth Circuit explained the meaning of Hotel ,Circle. See In re Huntington Ltd., 654 F.2d 578 (9th Cir. 1081). There, the court stated what it intended by its holding in Hotel Circle. The court said in footnote 14 at 587,: • Hotel Circle should be read, however, for the prop- osition that a receiver's assumption of an executory contract, be it express or implied by conformance to the terms of the contract, is subject to the review of the Bankruptcy Court. See 4A Collier on Bankrupt- . cy 170.43 [5]; p. 530 (14th ed. 1978). The receiver's • assumption or the contract may be affirmed or denied by the court depending upon the court's judgment ofwhether such assumption is in the best interest of the. debtor's estate. •Turning to the, facts in the instant case, ft is evident that on December 4, while the debtor-in-possession had applied for approval to reject the collective-bargaining agreement, a hearing was not held on the matter until December 22, and the bankruptcy court' did not grant Approval until December 23. Since under the Board law the mere filing , of a petition in bankruptcy does not inval- idate the effectiveness of an existing collective-bargaining agreement, the debtor-in-possession in this case was not free to repudiate , the terms of the existing agreement until such action was authorized by the bankruptcy court. Indeed, even under Hotel Circle such action would have to require prior approval of the bankruptcy court. Thus, when the debtor here breached the terms of the collective-bargaining agreement by unilaterally reducing wages and eliminating benefits on December 4, it did so without authorization by the bankruptcy court and with- out complying with the requirements of Section 8(d) of the National Labor Relations Act. This action was taken •in derogation of the exclusive collective-bargaining status of the Union and violated Section 8(a)(5) of the Act. •While the court decisions hold that after authorization is granted by the bankruptcy court to reject a collective- bargaining agreement the debtor-in-possession is free to do so, neither the Board cases nor the court decisions hold that the debtor-in-possession was relieved of its ob- ligation' to recognize and bargain with the Union as the 'exclusive representative of the unit employees. I.S.G. Ex- trusion Tooling, 262 NLRB 114 (1982); Burgmeyer Bros., gupra; Oxford Structures, supra; Jersey Juniors, surpa; Local Joint Executive Board v. Hotel Circle, supra; Team- sters Local 807 v. Bohack Corp., supra; Iron Workers Local 455 v. Kevin Steel Products, supra. 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the Respondent here contends that it did not tell the employees the Union could no longer represent them, I find the facts belie this claim. Each of the em- ployees who testified stated they were either told by Kirkpatrick or Swatsky that the Respondent was going "non-union" and was rejecting the collective-bargaining agreement. As noted, Swatsky was not called as a wit- ness and I do not credit Kirkpatrick's denial that he told the employees the business was going to operate "non- union." It is apparent from the manner in which Kirkpat- rick carefully couched his words when testifying that he was seeking to portray his actions in a lawful mold rather than to give an accurate recital of the statements which were made to the employees. Indeed, on Decem- ber 5, when Ghan came to the bakery and spoke to Kirk- patrick, Ghan was told not only that the Respondent was rejecting the collective-bargaining agreement, but also that Kirkpatrick felt he should not even be talking to the union representative. In my judgment, this serves to indi- cate that Kirkpatrick considered the Union to have no further status as bargaining representative of the unit em- ployees Thus, I find the debtor-in-possession not only unlaw- fully rejected the collective-bargaining agreement on De- cember 4, but also unlawfully refused to recognize and bargain with the Union as the exclusive representative of the employees. Nor does the fact that on March 5, 1982, the debtor-in-possession made an offer to bargain with the Union on any issues between them cure the viola- tions which had already taken place. Accordingly, I find that by rejecting the collective-bargaining agreement and unilaterally reducing wages and eliminating contract ben- efits on December 4, 1981, the debtor-in-possession vio- lated Section 8(a)(5) of the Act. I further find that by re- fusing to recognize the Union as the exclusive represent- ative of the employees and bargaining with it as such, the debtor-in-possession committed an additional viola- tion of Section 8(a)(5) and in so doing unlawfully de- prived the unit employees of their statutory right to be represented by a union of their own choosing in viola- tion of Section 8(a)(1) of the Act. Turning to the circumstances surrounding the refusal of the five employees to continue to work for the Re- spondent after December 4, I find that each of these em- ployees was in fact constructively discharged by the Re- spondent and its debtor-in-possession. As previously noted, Kirkpatrick made it quite clear to these employees that the business was going to be operated henceforth as a nonunion establishment. Not only were the wages of the employees to be reduced if they continued to work in the bakery, but all of the benefits provided in the con- tract were to be eliminated. Each of the five employees who were offered continued employment on these terms declined to do so because they refused to work under "non-union" conditions and for lower pay without any benefits. The obvious inference to be drawn from their refusal to work on these terms is that the employees wanted to continue to be represented by their union and employed under terms and conditions negotiated by their bargaining representative. Therefore, I find that by refus- ing to work in a nonunion shop for less wages and with- out any of the benefits provided in the collective-bar- gaining agreement, the five employees were construc- tively discharged by the Respondent on December 4 in violation of Section 8(a)(3) and (1) of the Act. Western Pacific Roofing Corp., 244 NLRB 501 (1979), enfd. sub nom. in pertinent part Seattle Auto Glass v. NLRB, 669 F.2d 1332 (9th Cir. 1982). CONCLUSIONS OF LAW 1. Respondent John Kirkpatrick and Cheryl Kirkpat- rick, a partnership d/b/a Karsh's Bakery, and its debtor- in-possession is an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery, Confectionary and Tobacco Workers Inter- national Union of America, Local No. 85 is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By refusing on December 4, 1981, to recognize and bargain with the Union, as the exclusive representative of the employees in the unit set forth below, concerning rates of pay, wages, hours, and other terms and condi- tions of employment, the Respondent violated Section 8(a)(5) of the Act. The unit appropriate for purposes of collective bargaining is: All full-time and regular part-time journeyman and apprentice bakers, doughnut fryers/icers/glazers, miscellaneous employees, and sales persons, includ- ing forepersons, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 4. By unilaterally repudiating the collective-bargaining agreement in effect between it and the Union on Decem- ber 4, 1981, without first securing approval of the bank- ruptcy court, and on the same date unilaterally changing the terms and conditions of employment of the unit em- ployees without first notifying and bargaining with the Union, the Respondent violated Section 8(a)(5) of the Act. 5. By conditioning continued employment of the unit employees on December 4, 1981, on lower wages with- out any of the benefits provided for in the collective-bar- gaining agreement, the Respondent made the terms and conditions of employment so intolerable that it construc- tively discharged the following employees in violation of Section 8(a)(3) and (1) of the Act: Janet Higbee Susan Sadoian Diane Jones Pamela Hale Dollie Phillips 6. By denying the unit employees representation by their exclusive collective-bargaining representative on December 4, 1981, and thereafter, the Respondent has interfered with the rights guaranteed its employees by statute and violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. KARSH'S BAKERY 1141 THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, it shall be recommended that the Respondent be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since the record facts that the bankruptcy court ap- proved the rejection of the collective-bargaining agree- ment on December 23, 1981, and since case law holds that even court-approved rejection of an existing collec- tive-bargaining agreement does not relieve a debtor-in- possession of the obligation to recognize and bargain with the representative of the unit employees, the vindi- cation of the public policy of the statute must be tailored to the particular facts of the instant case. That the con- duct of the Respondent and its debtor-in-possession on December 4, 1981, was unlawful, cannot be gainsaid. However, on March 5, 1982, the Respondent and its debtor-in-possession notified the Union of its willingness to recognize and bargain with the Union on the matters at issues between them. Therefore, at this point, the Re- spondent was willing to comply with the requirements of the Act with respect to the collective-bargaining repre- sentative For this reason, the Respondent shall be or- dered to cease and desist from refusing to recognize and bargain with the Union (which was accomplished on March 5, 1982) and affirmatively ordered to bargain, on request, with the Union regarding wages, rates of pay, hours, and other terms and conditions of employment of the unit employees. In addition, the Respondent shall be ordered to reinstate the five constructively discharged employees to their former or substantially equivalent po- sitions without loss of seniority or other rights and privi- leges, discharging, if necessary, any employee hired sub- sequent to December 4, 1982. The Respondent and its debtor-in-possession shall be required to make the rein- stated employees whole for any loss of earnings they may have suffered, at the rate set forth in the collective- bargaining agreement, from the date of their unlawful discharge until March 5, 1982, the date of the offer to recognize and bargain with the Union. Backpay shall be computed in the manner set forth in F. W Woolworth Co., 90 NLRB 289 (1950), and interest thereon shall be computed in the manner provided in Florida Steel Corp., 231 NLRB 651 (1977) 12 In addition, the Respondent and its debtor-in-possession shall make the required pen- sion and health fund contributions for the constructively discharged employees from the date of their discharges to March 5, 1982, with interest thereon, if any, to be de- termined at the compliance stage of this pi oceeding. See Mertyweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 12 See generally Isis Plumbing Co. 138 NLRB 716 (1962) 13 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. ORDER The Respondent, John Kirkpatrick and Cheryl Kirk- patrick, a Partnership d/b/a Karsh's Bakery, Fresno, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Bakery, Confectionary and Tobacco Workers International Union of America, Local No. 85 as the exclusive collec- tive-bargaining representative of its employees in the fol- lowing appropriate unit: All full-time and regular part-time journeyman and apprentice bakers, doughnut fryers/icers/glazers, miscellaneous employees, and sales persons, includ- ing forepersons, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act (b) Denying employees in the above-described unit representation by their exclusive collective-bargaining representative. (c) Unlawfully reducing wages, eliminating contract benefits, and denying union representation to the unit employees in order to make terms and conditions of em- ployment so intolerable that employees quit their jobs. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representa- tive of the employees in the above-described unit. (b) Offer to Janet Higbee, Susan Sadoian, Diane Jones, Pamela Hale, and Dollie Phillips immediate and full rein- statement to their former jobs or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, discharging, if necessary, any employees hired subse- quent to December 4, 1982. In addition, make the above- named employees whole for for any loss of earnings or benefits they may have suffered in the manner set forth in the section of this decision entitled "The Remedy." (c) 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. (d) Post at its main facility and all outlets located in Fresno, California, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- 14 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" 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceipt and maintained for 60 consecutive days in conspic- (e) Notify the Regional Director in writing within 20 uous places including all places where notices to employ- days from the date of this Order what steps the Re- ees are customarily posted. Reasonable steps shall be spondent has taken to comply. taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.