Liberty Source W, LLC

National Labor Relations Board - Board Decisions

Jul 22, 2005

344 N.L.R.B. 1127 (N.L.R.B. 2005)

LIBERTY SOURCE W, LLC
344 NLRB No. 137
1127
Liberty Source W, LLC and/or Trafford Distribution
Center, its alter ego and Federation of Inde-
pendent Salaried Unions and International Un-
ion of Electronic, Electrical, Salaried, Machine
and Furniture Workers-Communications
Workers of America, Local 601, AFL–CIO.
Cases 6–CA–33661 and 6–CA–33729
July 22, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 24, 2004, Administrative Law Judge
Paul Bogas issued the attached decision. Respondent
Trafford Distribution Center filed exceptions and a sup-
porting brief. The General Counsel filed limited cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified,2 and to adopt the

1 There are no exceptions to the judge’s findings that Respondent
Liberty Source W, LLC violated Sec. 8(a)(5).
The judge found that Trafford Distribution Center (Trafford) is the
alter ego of Liberty Source W, LLC (Liberty Source). In support of
this finding, the judge found that Trafford and Liberty Source had
substantially identical ownership, management, supervision, business
purposes, operations, equipment and premises, and customers. In
agreeing with the judge that Trafford is an alter ego, Chairman Battista
and Member Schaumber find it unnecessary to pass on the judge’s
finding that Trafford and Liberty Source had substantially identical
business purposes and operations. See Stardyne, Inc. v. NLRB, 41 F.3d
141, 146 (3d Cir. 1994), citing Fugazy Continental Corp., 265 NLRB
1301, 1302 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984) (the Board
does not require the presence of each factor to conclude that alter ego
status should be applied).
In affirming the judge’s finding that the purpose behind the creation
of Trafford was to avoid legal obligations under the Act, we do not rely
on the adverse inference the judge drew from the failure of the Respon-
dents to call J. Wortley and B. Wortley to testify about the purposes
motivating the decision to create Trafford.
Chairman Battista adheres to his position that the General Counsel
must show, inter alia, an intent to avoid legal obligations under the Act
in order to prove alter ego status. See Crossroads Electric, Inc., 343
NLRB No. 112, slip op. at fn. 2 (2004). However, recognizing that
under extant Board law, unlawful motivation is not a necessary element
of an alter ego finding, and in the absence of a three-member Board
majority to overrule extant Board law, Chairman Battista concurs with
his colleagues in the finding of alter ego status.
2 The judge concluded, inter alia, that the Respondents violated Sec.
8(a)(5) and (1) by failing to provide terminated unit employees with
severance pay, accrued vacation pay, and compensation to which those
employees were entitled under the existing collective-bargaining
agreements. The judge also found that the record evidence did not
demonstrate, as alleged in the complaint, that the Respondents failed to
pay terminated employees’ health care benefits, security and protection
plan benefits, and commissions required by the applicable contracts,
and failed to properly remit funds to the employees’ pension funds.
recommended Order as modified and set forth in full
below.
AMENDED CONCLUSIONS OF LAW
1. Respondent Liberty Source and Respondent Traf-
ford are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Federation and the IUE are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondents Liberty Source and Trafford are alter
egos.
4. The Respondents violated Section 8(a)(5) and (1) of
the Act by: terminating bargaining unit employees and
partially closing their business without prior notice to the
Federation and the IUE and without bargaining over the
effects of the termination and the partial closure; refusing
to recognize and bargain with the Federation and the
IUE; failing to provide terminated unit employees with
severance pay, accrued vacation pay, health care bene-
fits, employee security and protection plan benefits,
commissions due, and compensation to which they were
entitled under the collective-bargaining agreements; fail-
ing to remit to the appropriate trust funds 401(k) pension
moneys deducted from unit employees’ pay; failing to
select employees for reemployment in compliance with
the collective-bargaining agreements; setting wages,
benefits, and terms and conditions of employment for the
returning unit employees that were inconsistent with the
collective-bargaining agreements; and by changing unit
employees’ wages, benefits, and terms and conditions of
employment without prior notice to the Unions and with-
out affording the Unions an opportunity to bargain.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. The Respondents have not violated the Act in any
other manner except as specifically found herein.

The General Counsel excepted to this finding. We find merit in the
General Counsel’s exception.
The benefits are set forth in and flow directly from the applicable
contracts. Once a finding of alter ego relationship has been made, it
follows that the collective-bargaining agreement of one employer is
binding upon the other entity. See Kodiak Electric Co., 336 NLRB
1038, 1042 (2001), enfd. mem. 70 Fed.Appx. 664 (4th Cir. 2003),
citing Watt Electric Co., 273 NLRB 655 (1984). Because Liberty
Source and Trafford are alter egos, the collective-bargaining agree-
ments between the Unions and Liberty Source are binding upon Traf-
ford. Moreover, Trafford’s vice president of finance, Patrick Mander-
field, testified that Trafford did not apply the terms of the applicable
contracts to its new employees. Thus, the benefits at issue are the re-
sponsibility of both Liberty Source and Trafford and the record estab-
lishes that both have failed to honor the applicable contracts and pay
the required benefits. We have modified the conclusions of law, rem-
edy, recommended Order, and notice accordingly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1128
AMENDED REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
To remedy the Respondents’ failure to bargain with
the Federation and IUE over the effects of the Respon-
dents’ decision to partially close their business and to
terminate all unit employees, we shall order the Respon-
dents to bargain with the Unions, on request, about the
effects of those decisions. Because of the Respondents’
unlawful conduct, however, the unit employees have
been denied an opportunity to bargain through their col-
lective-bargaining representatives at a time when the
Respondents might still have been in need of their ser-
vices and a measure of balanced bargaining power ex-
isted. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Unions. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
purposes of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to re-create in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondents. We shall do so by ordering the Re-
spondents to pay backpay to those terminated unit em-
ployees who were not offered reinstatement in a manner
similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified in Melody
Toyota, 325 NLRB 846 (1998).
Thus, the Respondents shall pay the terminated unit
employees backpay at the rate of their normal wages
when last in the Respondents’ employ from 5 days after
the date of this Decision and Order until occurrence of
the earliest of the following conditions: (1) the date the
Respondents bargain to agreement with the Unions on
those subjects pertaining to the effects of the partial clos-
ing of the business on their employees; (2) a bona fide
impasse in bargaining; (3) the Unions’ failure to request
bargaining within 5 business days after receipt of this
Decision and Order, or to commence negotiations within
5 business days after receipt of the Respondents’ notice
of their desire to bargain with the Unions; (4) or, the Un-
ions’ subsequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondents partially terminated
their operations, to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dents shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, that in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondents’ employ. Backpay
shall be based on earnings which the terminated unit em-
ployees would normally have received during the appli-
cable period, less any net interim earnings, and shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
To remedy the Respondents’ failure to provide unit
employees with severance pay, accrued vacation pay,
health care benefits, employee security and protection
plan benefits, commissions due, and compensation be-
cause of the Respondents’ failure to apply the terms and
conditions of the collective-bargaining agreements, the
Respondents shall be required to make the terminated
unit employees whole in the manner set forth in Ogle
Protective Service, 183 NLRB 682, 683 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, supra.
To remedy the Respondents’ failure to remit to the ap-
propriate trust funds 401(k) pension moneys deducted
from unit employees’ pay, we shall order the Respon-
dents to make all contractually-required contributions to
these funds that they have failed to make, including any
additional amounts due to the funds on behalf of the unit
employees in accordance with Merryweather Optical
Co., 240 NLRB 1213 (1979). The Respondents shall
reimburse unit employees for any expenses resulting
from their failure to make the required contributions, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle
Protection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra.3
To remedy the Respondents’ failure to select employ-
ees for reemployment in compliance with the collective-
bargaining agreements, we shall order the Respondents
to reinstate all unit employees whom the Respondents
did not select for reemployment when the Respondents
resumed the warehouse\fulfillment operation in Septem-
ber 2003, but who would have been offered reemploy-

3 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of delinquency, the Respondents
will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondents otherwise
owe the fund.
LIBERTY SOURCE W, LLC 1129
ment had the Respondents selected employees in compli-
ance with applicable collective-bargaining agreement
provisions. The Respondents shall also make all such
employees whole for any losses suffered by reason of the
Respondents’ failure to select them for reemployment in
compliance with the collective-bargaining agreements.
Backpay is to be computed in accordance with F. W.
Woolworth Co., supra, with interest as prescribed in New
Horizons for the Retarded, supra.
Finally, we shall order the Respondents to post the at-
tached notice at their facility and to mail a copy to the
Unions and to the last known addresses of any unit em-
ployees who were employed by the Respondents as of
September 3, 2003, in order to inform them of the out-
come of this proceeding.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondents, Liberty Source W, LLC and its alter ego,
Trafford Distribution Center, Trafford, Pennsylvania,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Federa-
tion of Independent Salaried Unions (the Federation) and
the International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers-Communications
Workers of America, Local 601, AFL–CIO (the IUE), as
the exclusive representatives of their employees in the
appropriate units with respect to wages, hours, working
conditions, or other terms and conditions of employment,
and refusing to honor the collective-bargaining agree-
ments applicable to employees in those units.
(b) Terminating bargaining unit employees and par-
tially closing their business without first notifying the
Federation and IUE and offering them an opportunity to
bargain over the effects of the terminations and the par-
tial closure.
(c) Failing to provide terminated unit employees with
severance pay, accrued vacation pay, health care bene-
fits, employee security and protection plan benefits,
commissions due, and compensation to which they are
entitled under the collective-bargaining agreements.
(d) Failing to remit to the appropriate trust funds
401(k) pension moneys deducted from unit employees’
pay.
(e) Failing to select employees for reemployment in
compliance with the collective-bargaining agreements.
(f) Setting wages, benefits, and terms and conditions of
employment for the returning unit employees that are
inconsistent with the collective-bargaining agreements.
(g) Changing unit employees’ wages, benefits, and
terms and conditions of employment without prior notice
to the Federation and IUE and without affording them an
opportunity to bargain.
(h) 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 necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Federation as the ex-
clusive representative of the employees in the Federation
bargaining unit concerning terms and conditions of em-
ployment.
(b) On request, bargain with the IUE as the exclusive
representative of the employees in the IUE bargaining
unit concerning terms and conditions of employment.
(c) Bargain with the Federation and the IUE over the
effects on unit employees of the September 2003 em-
ployee terminations and the partial closure of the busi-
ness.
(d) Pay backpay to the unit employees terminated in
September 2003 as a result of the partial closure of the
business, who are not offered reinstatement, in the man-
ner set forth in the amended remedy section of this deci-
sion.
(e) Reinstate all unit employees whom the Respon-
dents did not select for reemployment when the Respon-
dents resumed the warehouse\fulfillment operation in
September 2003, but who would have been offered re-
employment had the Respondents selected employees in
compliance with the applicable collective-bargaining
agreement provisions, and make all such employees
whole for any losses suffered as a result of the Respon-
dents’ failure to select them for reemployment in the
manner set forth in the amended remedy section of this
decision.
(f) Provide the unit employees terminated in Septem-
ber 2003 with the benefits to which they are entitled un-
der the collective-bargaining agreements, including sev-
erance pay, accrued vacation pay, health care benefits,
employee security and protection plan benefits, commis-
sions due, contributions to employees’ 401(k) pension
funds, and compensation for work performed from Sep-
tember 1 to 3, 2003, in the manner set forth in the
amended remedy section of this decision.
(g) Provide unit employees working for the Respon-
dents after September 3, 2003, with wages, benefits, and
terms and conditions of employment that are consistent
with the terms of the collective-bargaining agreements,
and make such employees whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dents’ failure to adhere to the collective-bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1130
agreements since September 3, 2003, in the manner set
forth in the amended remedy section of this decision.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
their facility in Trafford, Pennsylvania, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondents’ authorized
representatives, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material. The
Respondents shall also mail a copy of the notice to all
employees in the units represented by the Federation and
the IUE who were employed by the Respondents at the
Trafford, Pennsylvania facility, as of September 3, 2003.
The notice shall be mailed to the last known address of
each of these employees after being signed by the Re-
spondents’ authorized representative(s).
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 Federal labor law and has ordered us to post and
obey this notice.

4 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to recognize and bargain with the
Federation of Independent Salaried Unions (the Federa-
tion) and the International Union of Electronic, Electri-
cal, Salaried, Machine and Furniture Workers-
Communications Workers of America, Local 601, AFL–
CIO (the IUE), as the exclusive representatives of our
employees in the appropriate units with respect to wages,
hours, working conditions, or other terms and conditions
of employment.
WE WILL NOT refuse to honor the collective-bargaining
agreements applicable to you.
WE WILL NOT terminate you or partially close our
business without first notifying the Federation and IUE
and offering them an opportunity to bargain over the
effects of the terminations and the partial closure.
WE WILL NOT fail to provide terminated unit employ-
ees with severance pay, accrued vacation pay, health care
benefits, employee security and protection plan benefits,
commissions due, and compensation to which they are
entitled under the collective-bargaining agreements.
WE WILL NOT fail to remit to the appropriate trust
funds 401(k) pension moneys deducted from unit em-
ployees’ pay.
WE WILL NOT fail to select employees for reemploy-
ment in compliance with the collective-bargaining
agreements.
WE WILL NOT set wages, benefits, and terms and con-
ditions of employment for returning unit employees that
are inconsistent with the collective-bargaining agree-
ments.
WE WILL NOT change your wages, benefits, and terms
and conditions of employment without prior notice to the
Federation and the IUE and without affording them an
opportunity to bargain.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Federal labor law.
WE WILL, on request, bargain with the Federation as
the exclusive representative of the employees in the Fed-
eration unit concerning terms and conditions of employ-
ment.
LIBERTY SOURCE W, LLC 1131
WE WILL, on request, bargain with the IUE as the ex-
clusive representative of the employees in the IUE unit
concerning terms and conditions of employment
WE WILL bargain with the Federation and the IUE over
the effects on unit employees of the September 2003
employee terminations and the partial closure of our
business.
WE WILL pay limited backpay to the unit employees
terminated in September 2003 as a result of the partial
closure of our business, who are not offered reinstate-
ment.
WE WILL reinstate all unit employees whom we did not
select for reemployment when we resumed the ware-
house\fulfillment operation in September 2003, but who
would have been offered reemployment had we selected
employees in accordance with the applicable collective-
bargaining agreement provisions. In addition, WE WILL
make all such employees whole for any loss of earnings
and other benefits suffered as a result of our failure to
select them for reemployment.
WE WILL provide the unit employees terminated in
September 2003 with the benefits to which they are enti-
tled under the collective-bargaining agreements, includ-
ing severance pay, accrued vacation pay, health care
benefits, employee security and protection plan benefits,
commissions due, contributions to employees’ 401(k)
pension funds, and compensation for work performed
from September 1 to 3, 2003.
WE WILL provide unit employees working for us after
September 3, 2003, with wages, benefits, and terms and
conditions of employment that are consistent with the
terms of the collective-bargaining agreements, and make
such employees whole for any loss of earnings and other
benefits suffered as a result of our failure to adhere to the
collective-bargaining agreements.
LIBERTY SOURCE W, LLC AND/OR TRAFFORD
DISTRIBUTION CENTER
Barton Meyers, Esq., for the General Counsel.
John B. Bechtol, Esq. of (Bechtol, Lee & Eberhardt), of Pitts-
burgh, Pennsylvania, for the Respondent Trafford Distribu-
tion Center.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in Pittsburgh, Pennsylvania, on July 19 and 20, 2004. The
Federation of Independent Salaried Unions (the Federation)
filed the initial charge in Case 6–CA–33661 on September 11,
2003, and amended that charge on October 15, and December
18, 2003. The International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers-Communications
Workers of America, Local 601, AFL–CIO (the IUE) filed the
charge in Case 6–CA–33729 on October 21, 2003, and an
amended charge on December 18, 2003. On December 30,
2003, the Regional Director for Region 6 of the National Labor
Relations Board (the Board) issued the complaint. The com-
plaint alleges various 8(a)(5) and (1) violations arising out the
decision of Liberty Source W, LLC (Liberty) to suspend opera-
tions and surrender its assets to a creditor, and the subsequent
resumption of a portion of Liberty’s operations by a newly
incorporated entity designated Trafford Distribution Center
(Trafford). The complaint alleges that Liberty and Trafford are
alter egos and/or a single employer and that they violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act (the
Act) in by, inter alia, failing to bargain before ceasing opera-
tions, terminating the employment of represented individuals
without bargaining, and setting new wages and terms and con-
ditions of employment for recalled workers. Among the other
allegations are that Liberty and/or Trafford violated Section
8(a)(5) and (1) when, after terminating unit employees, they
failed to pay those employees severance benefits, back wages,
accrued vacation pay, and other moneys provided for under the
applicable collective-bargaining agreements. Trafford filed a
timely answer in which it denied that Liberty and Trafford were
either alter egos or a single employer, and also denied that Traf-
ford committed any of the violations alleged in the complaint.
No answer was filed by any person or entity purporting to rep-
resent Liberty.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Trafford, I make the following
rulings, findings of fact, and conclusions of law.
General Counsel’s Motion for Partial Default Judgment
At the start of trial, the General Counsel moved that all alle-
gations regarding Liberty be deemed admitted because Liberty
had not filed an answer to the complaint. Counsel for Trafford
(Liberty’s alleged alter ego) opposed the motion and I took the
matter under advisement. I now grant the motion to the extent
indicated below.
The record in this case shows that the complaint was served
on Liberty at its principal office and place of business on De-
cember 31, 2003, and January 6, 2004.1 The file contains re-
turn receipts showing that the complaint was received. It is
undisputed that no party purporting to represent the interests of
Liberty ever filed an answer to the complaint. The record also
shows that the complaint was received by Trafford—an entity
that is doing business at the same address where Liberty oper-
ated and whose managers had all been managers of Liberty.
The office of John B. Bechtol, Esq.—the attorney who ap-
peared in this proceeding on behalf of Trafford—also received
the complaint. Trafford answered the complaint in a timely
fashion. In its answer, Trafford explicitly denied that it was
responding on behalf of Liberty, and on that basis refused to
respond to certain allegations regarding Liberty. However,

1 Sec. 102.113(a) of the Board’s Rules and Regulations provides that
“Complaints . . . shall be served upon all parties either personally or by
registered or certified mail or by telegraph, or by leaving a copy thereof
at the principal office or place of business of the person required to be
served.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1132
Trafford’s answer was not consistent in this regard, and it ex-
plicitly denied, upon “knowledge and belief,” other allegations
relating to Liberty.
At trial, no counsel claiming to represent Liberty was present
to take a position regarding the General Counsel’s motion.
However, Attorney Bechtol was present and, while continuing
to maintain that he represented only Trafford, opposed the
General Counsel’s motion regarding Liberty, and made various
representations about the status of that entity. He stated that
Liberty had been given over “lock, stock, and barrel,” to the
company’s principal secured creditor—Independence Commu-
nity Bank (the Bank).2 Bechtol stated that Liberty had been “in
essence liquidated,” and that the Bank was the “interested
party” on behalf of Liberty. The General Counsel countered
that the Bank was simply a creditor of Liberty, which had never
operated the business or become an employer of Liberty’s em-
ployees. Counsel for the General Counsel stated that Liberty
had made the decision to surrender its assets to the Bank, and
that the Bank had not initiated the surrender. In its brief the
General Counsel accurately notes that there is no record evi-
dence that Liberty has been dissolved as a corporate entity.
Section 102.20 of the Board’s Rules and Regulations pro-
vides that the allegations in a complaint will be deemed admit-
ted if no answer is filed within 14 days from service of the
complaint, unless good cause is shown. See also OK Toilet &
Towel Supply, Inc., 339 NLRB 1100 (2003). In addition, a
complaint allegation is deemed to be admitted pursuant to Sec-
tion 102.20 if an answer is filed, but that answer does not deny
or explain the allegation, unless the answer states that the party
is without knowledge. Regarding Trafford’s argument based
on Liberty’s financial status, the Board has long held that liqui-
dation does not shield a respondent from the obligation to file a
timely answer. See Valiant Metal Products, 244 NLRB 1049
(1979). Similarly, the Board has refused to relieve respondents
of the obligation to file an answer when those respondents have
ceased operations or filed for bankruptcy. OK Toilet & Towel,
339 NLRB 1100, 1101 (2003); Miami Rivet of Puerto Rico, 307
NLRB 1390, 1391 fn. 2 (1992); Community Health Plan, 306
NLRB No. 10 (1992) (not reported in Board volumes); see also
Holt Plastering, Inc., 317 NLRB 451, 452 (1995) (Board holds
that employer was not excused from filing an answer to com-
pliance specification, even though employer notified the Board
it had “ceased operations and liquidated the plant facilities”).
Even assuming that Liberty had been liquidated, I conclude that
“good cause” has not been shown for Liberty’s failure to file an
answer to the complaint.
Based on Section 102.20 and the Board precedent cited
above, I deem the complaint allegations regarding Liberty to be
admitted, to the extent that those allegations are not denied or
explained in the answer that Trafford filed.

2 I consider this characterization suspect given the evidence, dis-
cussed below, that 5 days after Liberty’s assets were surrendered to the
Bank, Liberty\Trafford managers resumed the Company’s ware-
house\fulfillment operation without any participation by Bank officials.
The Bank never operated Liberty or continued any of its businesses,
except to make an effort to collect on some of the Company’s out-
standing accounts.
FINDINGS OF FACT
I. JURISDICTION
During the 12-month period ending August 31, 2003, Lib-
erty, a corporation with an office and facility in Trafford, Penn-
sylvania (the facility), conducted printing, web design, and
warehouse and distribution operations. In conducting those
operations during that period, Liberty received at the facility
goods valued in excess of $50,000 directly from points outside
Pennsylvania, and provided goods and services valued in ex-
cess of $50,000 to customers located outside Pennsylvania.
During the same period, Liberty purchased and received at its
facility goods valued in excess of $50,000 from other enter-
prises located within Pennsylvania, each of which enterprises
had received these goods directly from points outside Pennsyl-
vania. Liberty admits, and I find, that at all material times it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
Since commencing its operations on September 8, 2003,
Trafford, a corporation operating at the same facility in Traf-
ford, Pennsylvania, has conducted warehouse and distribution
operations. In conducting these operations, Trafford has pro-
vided services valued in excess of $50,000 to Heinz, U.S.A., an
enterprise within Pennsylvania, which is directly engaged in
interstate commerce. On a projected basis for the 12-month
period commencing on or about September 13, 2003, Trafford
will provide services valued in excess of $50,000 to Heinz,
U.S.A. Trafford admits, and I find, that at all material times
since on or about September 13, 2003, Trafford has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Trafford and Liberty admit, and I find, that the Federation
and the IUE (the Unions) are both labor organizations within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Until September 3, 2003, Liberty provided customers with
printing services, internet-related services (also referred to as
“e-source” services), and warehouse\fulfillment services,3 at its
facility in Trafford, Pennsylvania. By far, the greatest portion
of Liberty’s business was generated by the printing operation.
In the months leading up to September 3, about 80 to 90 per-
cent of Liberty’s business was generated by the printing opera-
tion, about 5 percent by the e-source operation, and about 1 to 2
percent by the warehouse\fulfillment operation.4 Of the com-
pany’s 110 employees, most—80 to 85—worked for the print-
ing operation. The printing employees included pressmen,
press operators, bindery and refinishing workers, and customer

3 Liberty’s warehouse\fulfillment business consisted essentially of:
receiving material from customers and storing that material at the Traf-
ford facility; delivering or arranging for the delivery of the material to
entities that ordered it; and invoicing those entities.
4 These percentages, which are based on the testimony, Tr. 32–35,
are only approximations, and this presumably accounts for the fact that
they do not add up to 100 percent. There was no evidence that Liberty
was engaged in any other types of business.
LIBERTY SOURCE W, LLC 1133
service estimators. Approximately six employees worked in
the warehouse\fulfillment operation as warehousemen who
received materials, picked and packed items kept in the ware-
house, and shipped products. Shortly before September 3, Lib-
erty obtained new warehouse\fulfillment business from the
Heinz Company, and it was expected that this work would tri-
ple the total volume of the Respondent’s warehouse\fulfillment
business; however, that would still leave the ware-
house\fulfillment operation with less than one-tenth the sales
volume of the printing business.
Joseph Wortley (J. Wortley) owned Liberty. Richard Car-
mody was the Company’s president, and he also served as chief
spokesperson for the Company in contract negotiations and
other dealings with the Federation and the IUE.5 Patrick Man-
derfield was Liberty’s chief financial officer, Leonard Mangan-
ello its vice president of operations, Ronald D’Andrea a man-
ager, and Nellie Mae Shenefelt its human resources manager.
Another of J. Wortley’s companies—Liberty Properties at Traf-
ford, LLC (Liberty Properties)—owned the Trafford facility
from which Liberty conducted its operations. At all material
times, the Federation has been the collective-bargaining repre-
sentative for a unit composed of salaried employees of Liberty,
and the IUE has been the collective-bargaining representative
for a unit composed of hourly and maintenance employees of
Liberty. The Federation and the IUE had collective-bargaining
agreements with Liberty, and those contracts, with the exten-
sions agreed to in writing by the parties, did not expire until
January 31, 2004.
The 2 years leading up to September 3, 2003, were not good
ones for Liberty financially, and the company was having diffi-
culty paying several of its suppliers. J. Wortley tried to refi-
nance Liberty’s loan with its principal creditor, Independence
Community Bank, in order to obtain a lower interest rate, but
those efforts failed. A series of disagreements between J.
Wortley and the Bank led to the deterioration of their relation-
ship and in July 2003 the Bank filed a legal action against Lib-
erty Properties, the J. Wortley Company that owned the facility
where Liberty was operating. J. Wortley also had a contentious
relationship with one of its vendors, and, on August 27, 2003,
that vendor obtained a Federal court judgment of $291,585.25
against Liberty.
B. Cessation of Liberty’s Operations
On Wednesday, September 3, 2003, J. Wortley, through
counsel, notified the Bank that Liberty was surrendering its
collateral.6 Under Liberty’s loan agreement with the Bank, that

5 Carmody also oversaw the operations of other companies that J.
Wortley owned.
6 That notice read as follows:
NOTICE OF SURRENDER OF COLLATERAL
TO: INDEPENDENCE COMMUNITY BANK
THE BORROWER, LIBERTY SOURCE W, LLC, hereby notifies
the secured creditor, Independence Community Bank, that it is surren-
dering its collateral covered by the liens of Independence Community
Bank located in Pittsburgh, Pennsylvania to the bank for disposition
pursuant to the provisions of the Uniform Commercial Code of Penn-
sylvania and to the provisions of the loan documents between Inde-
collateral included all of the Company’s equipment, inventory,
accounts receivable, contracts, and other personal property.
The loan agreement also provided that Liberty “remain[ed]
liable” for the performance of each contract it had entered into
with third parties” and that “[t]he Bank shall not have any obli-
gation or liability under any Contract [of Liberty] . . . nor shall
the Bank be required or obligated in any manner to perform or
fulfill any of the obligations of the Borrower under or pursuant
to any Contract.” (GC Exh. 9 at p. 13, par. 3,2(a).) On Sep-
tember 3, Carmody informed Manderfield, Manganello, and
D’Andrea about the surrender of collateral and directed them to
shutdown Liberty immediately. After the meeting, Manganello
began contacting Liberty’s employees to advise them not to
return to work the next day.
Neither J. Wortley nor Carmody, nor anybody else from Lib-
erty, gave the Federation or the IUE advance notice that J.
Wortley would be surrendering the company’s assets, ceasing
operations, and terminating employees, nor were the Unions
given an opportunity to negotiate over those actions or their
effects. George Kundrick, a longtime employee of Liberty and
a Federation representative who helped negotiate the contract,
did not find out anything about J. Wortley’s actions until 8 p.m.
on September 3, when Manganello called him and stated that J.
Wortley was having problems with the Bank and that the facil-
ity would not be open on September 4. The next day, Mangan-
ello called Kundrick again and informed him that the plant
would be closed indefinitely. Damian Testa, the Federation’s
president, did not find out that the plant would close until Kun-
drick told him. Richard (Rick) Zahorchak, president of the IUE
and an employee of Liberty, found out that the Company was
closing on September 3 at about 10 p.m., when Manganello
contacted him by phone with instructions not to report for work
until further notice. Manganello informed Zahorchak that
Carmody told him to close the operation.
After Carmody informed Manderfield that J. Wortley was
surrendering Liberty’s assets to the Bank, Manderfield con-
tacted Robert Craig, an official with the Bank, for guidance
about how to proceed. Craig responded that he was caught off-
guard by J. Wortley’s actions and had to consult with the
Bank’s attorneys before he could give Manderfield any guid-
ance. Manderfield and the Bank had discussions about the
possibility of resuming operations, perhaps by selling Liberty to
an interested buyer, but on September 8 or 9, 2003, Mander-
field was informed that the Bank would not operate the busi-
ness.7 There is no evidence that the Bank ever operated Lib-

pendence Community Bank, as Lender and Secured Creditor, and Lib-
erty Source W, LLC.
You are further notified that it is your obligation under the loan
documents and under the Uniform Commercial Code to take possession
of this collateral, protect it and maximize its value to be applied against
the debt that is the subject of the security interest.
Dated this 3 day of September, 2003.
LIBERTY SOURCE W, LLC
BY [signed]_________________
Richard Carmody, President
7 The loan agreement between Liberty and the Bank provides that, in
the event of a default, the Bank has numerous rights, including: to seize
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1134
erty, although it hired one former Liberty employee, Becky
Quinlin, to help it collect amounts that Liberty was owed by its
customers.
C. Resumption of Warehouse\Fulfillment Operation and Crea-
tion of Trafford
In the meantime, the owner and managers of Liberty consid-
ered whether it would be practical to resume some element of
the Company’s operation at the facility. On September 5,
2003,—2 days after surrendering the Company’s assets to the
Bank—J. Wortley held a telephone conference with Carmody,
Manderfield, Manganello, and D’Andrea. During that confer-
ence, J. Wortley raised the possibility that the ware-
house\fulfillment business could be a viable operation on its
own. He told Manderfield, Manganello, and D’Andrea that if
they prepared a workable business plan to continue the ware-
house\fulfillment business he, or his family, would finance it
and set up a new company. That same day, Manderfield, Man-
ganello, and D’Andrea formulated a business plan that dis-
cussed anticipated revenues, staffing needs, pay and benefits,
and rent on the location. J. Wortley’s wife, Barbara Wortley
(B. Wortley), made a financial contribution of $25,000 to the
business and also a loan of about $17,000, and was designated
the owner of the enterprise. In addition, J. Wortley established
a special financing arrangement for the business under which a
bank in New Jersey would advance money to the company on
the basis of invoices that the company issued to customers,
even though the customers had not yet paid what they owed.
The following Monday, September 8, 2003, the ware-

and sell Liberty’s assets; to “use, operate, manage and control” those
assets “in any lawful matter”; and to “maintain, repair, renovate, alter
or remove” the company’s assets. Trafford has identified no provision
of the agreement that gives the Bank the right to do any of those things
if Liberty does not default, or which gives Liberty the right to decide
for the Bank which of those options, if any, the Bank will exercise in
the event of default. Certainly, the agreement does not give Liberty the
right to impose on the Bank a duty to operate the company or assume
Liberty’s contractual obligations as an employer. To the contrary, the
loan agreement specifically states that none of its provisions make the
Bank liable for performance of Liberty’s contracts. (GC Exh. 9 at p. 13
Sec. 3,2(a).) Trafford does not claim, and the record does not show,
that the Bank had requested that Liberty surrender its assets, or notified
Liberty that the Company was in default at the time Liberty surrendered
its assets. Indeed, the evidence was that the responsible Bank official
indicated that he was caught completely off guard by J. Wortley’s
decision to surrender Liberty’s assets.
The loan document includes among the circumstances that constitute
“default events,” the entry of a judgment (or aggregate judgments)
against Liberty of more than $50,000 that is “not fully covered by in-
surance, or a warrant of attachment,” where such judgment is not dis-
charged or stayed pending appeal within a period of 60 days or 10 days
for judgments totaling over $100,000. As discussed above, the record
shows that on August 27, 2003, a judgment was entered against Liberty
in the amount of $291,585.25. However, the record does not show that
the Bank could, or did, consider that judgment to be a default event. At
the time that Liberty notified the Bank of the surrender of assets, the
10-day period following entry of the judgment had not lapsed. More-
over, the entry of such a judgment does not constitute default unless it
is not covered by insurance, has not been discharged, and has not been
stayed pending appeal—requirements that are not established by the
record before me.
house\fulfillment operation was resumed by this provisional
entity. On September 23, 2003, the resumed ware-
house\fulfillment operation was incorporated as Trafford.
The rent on the property occupied by Trafford, which was
due to J. Wortley’s company—Liberty Properties—was
$12,000 per month in 2003, and $10,500 a month in 2004. For
at least some period of time, Trafford did not actually pay the
rent to Liberty Properties, but, apparently, accrued an obliga-
tion to do so. The rent covered the entire premises of Liberty’s
operation, not just the portion dedicated to the ware-
house\fulfillment operation. Trafford has generated some reve-
nues by renting out portions of the facility that it does not re-
quire for the warehouse\fulfillment operation.
In October 2003, Trafford reached an agreement with the
Bank to buy the equipment, formerly owned by Liberty, that
was necessary to the warehouse\fulfillment operation, although
it does not appear that the sale was finalized until May 2004.8
Trafford Distribution Center Exhibit (TDC Exh. 6). Trafford’s
letter offering to purchase the equipment for $27,000, indicates
that it was not proposing to pay that amount to the Bank, but
rather to take the equipment in exchange for $27,000 the Bank
owed Trafford “for services rendered . . . by [Trafford] employ-
ees Len Manganello and Pat Manderfield and for the use of
space by [the Bank] for the period September 4, 2003, through
November 30, 2003.” (TDC Exh. 4). The record does not
clarify what services Manganello and Manderfield had rendered
to the Bank or why the Bank owed Trafford for space. Lib-
erty’s printing and internet businesses were never resumed, and
the Bank sold the rest of Liberty’s equipment to other buyers at
an auction in November 2003. The record does not show that
Liberty was ever formally dissolved as a corporate entity, or, if
so, when such action took place. Indeed, no party in this pro-
ceeding has alleged that a formal dissolution has taken place.
Likewise, there is no evidence, or allegation, that Liberty filed
for bankruptcy.
When Trafford restarted the warehouse\fulfillment operation,
all of its initial customers were customers of Liberty. During
the period from September 2003 to May 2004, the vast majority
of Trafford’s business—over 98 percent—came from custom-
ers that had been customers of Liberty prior to September 3. At
the same time, many of Liberty’s customers never became cus-
tomers of Trafford since those customers had used Liberty for
printing and e-source services, neither of which Trafford pro-
vides. In March or April 2004, Trafford began to augment its
revenues by leasing out portions of the facility to a company
called AGX International. The leasing business is one that
Liberty apparently had not been involved with, and it accounts
for less than one percent of Trafford’s business.
D. Trafford Disclaims Liberty’s Collective-Bargaining Agree-
ments and Refuses to Recognize Unions
Over the weekend of September 6 and 7, Manderfield, Man-
ganello, and D’Andrea hired employees to resume the ware-
house\fulfillment operation. The employees were contacted by

8 Apparently before the sale took place, Trafford was already using
much, or all, of that equipment. The record does not explain on what
basis Trafford was using equipment that Liberty had surrendered to the
Bank, but which Trafford had not yet purchased from the Bank.
LIBERTY SOURCE W, LLC 1135
Manganello directly, and selected without regard for the senior-
ity provisions of Liberty’s contracts with the Federation and the
IUE.9 Trafford established new wage rates, benefits levels, and
other conditions of employment for these employees without
notifying, bargaining with, or obtaining the consent of, the
Federation and the IUE. Trafford paid the employees $12 per
hour—less than they had been making with Liberty under the
contracts—and informed them that the Company had not made
a decision about whether to provide medical insurance.10
Shenefelt, who had been human resources manager with Lib-
erty, was hired to perform human resources functions for the
resumed warehouse\fulfillment operation. On Monday, Sep-
tember 8, employees who had been hired over the weekend
appeared for work and, along with the managers, they resumed
the warehouse\fulfillment operation at the same location where
Liberty had been operating. All but two of the 10 to 12 people
Trafford hired to begin work during the week of September 8
had been employed by Liberty as of September 3. Four of
Trafford’s new warehousemen had been operating printing
presses until September 3, and one had been a subcontractor
who made deliveries for Liberty. One individual who had been
the customer service representative associated with the ware-
house\fulfillment operation prior to September 3, was hired by
Trafford to continue performing customer service work. One
of the hirees had been a warehouse worker before the suspen-
sion of operations. The managers and employees of Trafford
were called-upon to perform a more varied, flexible, set of
duties than individuals working for Liberty had generally done
prior to September 3. For example, Manderfield had to per-
form accounting work himself, rather than just supervising
others who did that work. Prior to September 3, the duties of
warehouse employees included receiving stock, putting stock
away, performing inventory related tasks, picking and pulling
materials to fill orders, packing and preparing to ship orders,
and operating shipping computers. Beginning on September 8,
warehouse employees continued to perform those duties, and,
in addition, performed janitorial and maintenance work.
After receiving reports that people were again working at the
Liberty facility, Zahorchak spoke with Manganello on Septem-
ber 10. Manganello confirmed that the Company had decided
to continue the warehouse\fulfillment element of Liberty’s

9 The Federation contract states that “[i]n all cases of layoffs, senior-
ity shall first be given consideration and employees will be permitted to
displace other less senior employees but only if the employee can per-
form the duties of the job.” (GC Exh. 2 at art. VII, sec. 6.) The Fed-
eration contract also provides that when vacancies are filled during a
layoff, employees within a department, “shall be recalled by seniority
in the reverse order of layoff.” Id. at sec. 5. The IUE contract provides
that “in all cases of layoffs due to decreasing forces, accumulated
length of service will govern, and employees will be permitted to dis-
place other employees only if the employee can perform the duties of
the job.” (GC Exh. 4 at sec. XIII,(D),(1).) The IUE contract also indi-
cates that laid-off employees will fill subsequent openings based on
seniority. Id. at XIII,(B) and (F).
10 Trafford ended up providing the employees with health insurance
coverage under the same health plan that provided their insurance prior
to September 3. This coverage was continued for a period of approxi-
mately 3 months, and then Trafford obtained a different health insur-
ance plan for the employees.
business, and that there were people at the plant working to
complete those orders. Zahorchak asked Manganello about the
applicability of the IUE contract, and Manganello told him that
the question should be directed to Carmody. Testa spoke with
Carmody on September 10 and Carmody told him that there
would be no recall of Federation employees and that the com-
pany was “not going to recognize the Union.”
E. Former Employees of Liberty do not Receive Severance,
Back Wages, and Accrued Vacation Benefits Provided for Un-
der Contracts with Liberty
Under the contracts that Liberty had with the Federation and
IUE, the terminated employees were entitled to various sever-
ance benefits. Those benefits included severance pay and pay-
ments for accrued vacation days neither of which were ever
paid to the employees. Nor were the former employees paid for
the work they performed on September 1, 2, and 3—the days
that employees worked leading up to J. Wortley’s surrender of
the Liberty assets. The Bank did make contributions to the
employees’ retirement fund equal to the amount of employee
contributions that had already been deducted from paychecks,
but which had not yet been remitted to the fund.
On September 16, Carmody met with Testa, Zahorchak,
Kundrick, and other union officials at the IUE office. Carmody
told the union officials that J. Wortley was having trouble with
the bank and that the company had been involved in a number
of “financial disagreements,” including one with a vendor that
had led to a judgment against the company. Carmody stated
that J. Wortley had decided to turn the assets of the printing
business over to the Bank. He stated that partners of J.
Wortley’s would continue with the warehouse\fulfillment op-
eration, at the same location, using a new company called Traf-
ford Distribution Center. According to Carmody, J. Wortley
himself would have no part in the new company, which was to
be managed by Manderfield, Manganello, and D’Andrea.
When a union official asked why the recall provisions of the
IUE contract had not been followed with respect to staffing the
resumed warehouse\fulfillment operation, Carmody responded
that “Trafford . . . had every right to form a new business and
hire new employees without union representation.” Regarding
benefits due under the contract to employees who had formerly
worked for Liberty, Carmody stated that he could not “make
any promises” that those employees would receive severance
pay, accrued vacation pay, or back wages, but that he believed
outstanding medical claims would be paid, and that every effort
was being made to fully fund the employees’ retirement plan.
One of the union officials asked about filing a grievance and
Carmody stated, “I am not accepting a grievance,” and opined
that, “There is no company to file a grievance against.”
On October 15, 2003, Robert Wentroble, assistant to the IUE
president, sent a letter to Carmody initiating the grievance pro-
cedure and demanding that the employees represented by the
IUE receive all outstanding benefits—including wages, accrued
vacation pay, and sick day pay. Carmody responded with a
letter, dated October 24, 2003, in which he expressed a willing-
ness to meet with Wentroble, but stated that he no longer had
any affiliation with Liberty or controlled any of its assets. He
stated that Liberty was now “owned” by the Bank. In a letter to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1136
Carmody, dated November 4, 2003, Testa stated that Liberty
“and its alter ego, Trafford” had abrogated their agreement with
the Federation by, inter alia, ceasing the printing operations,
terminating employees without regard for seniority, and failing
to pay terminated employees the severance benefits provided
for under the contract. Carmody responded with a letter dated
November 6, 2003. As in his October 24 letter to Wentroble,
Carmody expressed a willingness to meet, but stated that Lib-
erty was now owned by the Bank and that he was no longer
affiliated with it and did not control any of its assets.
F. The Complaint Allegations
The complaint alleges that Liberty and Trafford are alter
egos and/or a single employer and that they violated Section
8(a)(5) and (1) of the Act by failing to bargain with the Federa-
tion or the IUE over the effects of its actions before: ceasing
operations; transferring assets to Liberty’s creditor; terminating
the employment of individuals represented by the Federation
and the IUE; and forming Trafford to continue a portion of
Liberty’s operations. The complaint further alleges that Liberty
and Trafford violated Section 8(a)(5) and (1) by: failing to bar-
gain with, or obtain the consent of, the Federation and the IUE
before refusing to pay the terminated employees severance pay,
accrued vacation pay, health care benefits, employee security
and protection plan benefits, and commissions due pursuant to
the applicable collective-bargaining agreements; failing to re-
mit moneys deducted from employees’ pay to the appropriate
401(k) trust funds pursuant to the applicable collective-
bargaining agreements; recalling Federation and IUE workers
in a manner contrary to the seniority provisions of the applica-
ble collective-bargaining agreements; refusing to recognize and
bargain with the Federation and the IUE when it resumed the
warehouse and distribution operations; and, refusing to con-
tinue or adhere to the wage rates, benefit levels and other terms
and conditions of employment set forth in the applicable collec-
tive-bargaining agreements when it recalled employees for the
resumed warehouse and distribution operation.
III. ANALYSIS AND DISCUSSION
A. Alter Ego Status
The General Counsel alleges that Trafford is an alter ego of
Liberty, and therefore, is required to comply with Liberty’s
collective-bargaining agreements and to recognize and bargain
with the Unions representing Liberty employees. It is “well
settled that an employer cannot evade its obligations under the
Act by forming what appears to be a new company but is in fact
a ‘disguised continuance’ or alter ego of the old company.”
Mar-Kay Cartage, 277 NLRB 1335, 1340 (1985), enfd. 822
F.2d 1089 (6th Cir. 1987). In order to decide if two facially
independent employers are alter egos, the Board considers
whether the two entities have substantially identical ownership,
management, supervision, business purposes, operation,
equipment and premises, and customers. See Goldin-Feldman,
Inc., 295 NLRB 359, 370–371 (1989); Ford Bros., 294 NLRB
107, 139 (1989); Advance Electric, 268 NLRB 1001, 1002
(1984), enfd. 748 F.2d 1001 (5th Cir. 1984), cert. denied 470
U.S. 1085 (1985); Fugazy Continental Corp., 265 NLRB 1301,
1302 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984); Crawford
Door Sales Co., 226 NLRB 1144 (1976). The Board also looks
to “whether the purpose behind the creation of the alleged alter
ego was legitimate or whether, instead, its purpose was to
evade responsibilities under the Act.” Fugazy, 265 NLRB at
1302. No single one among these factors is determinative of
alter ego status and not all the indicia need be present for the
Board to conclude that a finding of alter ego status is appropri-
ate. See, e.g., Standard Commercial Cartage, Inc., 330 NLRB
11, 13 (1999); MIS, Inc., 289 NLRB 491, 492 (1988); Fugazy,
265 NLRB at 1301. Based on my consideration of the evidence
in this case, as viewed through the prism of the factors articu-
lated by the Board, I conclude that Trafford is an alter ego of
Liberty.
As discussed above, Trafford is wholly owned by B.
Wortley, the wife of J. Wortley, the sole owner of Liberty. The
Board has repeatedly held that substantially identical ownership
is established where the two enterprises are owned by members
of the same family. Thus, in Industrial TurnAround Corp., 321
NLRB 181,185 (1996), enfd. in relevant part 115 F.3d 248 (4th
Cir. 1997), common ownership was found where, as here, the
alleged alter ego was owned in its entirety by the wife of the
sole owner of the original company. Indeed, the Board has
found substantial identity of ownership when members of the
same family have stock ownership in the two enterprises, even
if such ownership does not account for all the stock of both
entities, or is divided among a number of family members.
Goldin-Feldman, Inc., 295 NLRB at 372; Mar-Kay Cartage,
277 NLRB at 1341; Advance Electric, 268 NLRB at 1004; I.M.
Tanaka Construction, 249 NLRB 238, 241 fn. 29 (1980), enfd.
675 F.2d 1029 (9th Cir. 1982).
Furthermore, in this case, the surrounding circumstances
strongly suggest that the decision to designate J. Wortley’s
wife, rather than J. Wortley himself, as the owner of Trafford
did not result in a true transfer of control. As the General
Counsel points out in its brief, “there is no evidence in the re-
cord that Barbara Wortley ever played any active role whatso-
ever in the operations of [Trafford], while there is ample evi-
dence that Joseph Wortley, Jr., both oversaw the establishment
of that company and continued involvement in its operations
thereafter.” Indeed, it was J. Wortley who initiated the discus-
sions with Liberty’s managers about the possibility of continu-
ing the warehouse\fulfillment operation using a new company
and proposed that “he or his family would finance that and set
up a new company.” Then J. Wortley arranged for a bank to
provide special financing based on the Company’s unpaid ac-
counts receivable. Similarly, it was J. Wortley, not his wife,
who discussed the shape the new business would take, and the
Wortley family’s involvement, with Manderfield, Manganello,
and D’Andrea. In addition, J. Wortley’s real estate company,
which owned the premises where Trafford did business, did not
actually require the new company putatively owned by his wife
to make payments due for rent during the first months of opera-
tion. Those payments were deferred and the record does not
show that they were ever made. In determining whether com-
mon ownership exists, “the Board does not view legal owner-
ship in a vacuum, but instead looks to the totality of the circum-
stances to determine where the real control exists,” East Ten-
nessee Packing Co., 270 NLRB 520, 524 (1984). Here the
LIBERTY SOURCE W, LLC 1137
totality of circumstances confirms that the real control of Traf-
ford was with J. Wortley, not his wife. A strong showing of
common ownership of Liberty and Trafford has been made.
The record also establishes that Trafford and Liberty had
substantially identical management and supervision. Three of
Liberty’s four managers—Manderfield, Manganello, and
D’Andrea—became the management team at Trafford. Nellie
Mae Shenefelt who had responsibility for human resources
matters at Liberty, also performed those duties for Trafford.
Carmody, who had been Liberty’s president, did not become a
manager of Trafford; however the record shows that, even
while Liberty existed, Carmody had overseen multiple other
companies for J. Wortley, calling into question the extent of his
involvement in the day-to-day, hands on, management of Lib-
erty. At any rate, most of the management team that ran Lib-
erty became managers of Trafford, and every one of Trafford’s
managers had been a Liberty manager on September 3. This
constitutes a strong showing of substantial identity in manage-
ment.11
The question of whether Liberty and Trafford had substan-
tially identical business purposes and operations is a closer one.
On the one hand, the warehouse\fulfillment operation had been
a small portion of Liberty’s overall business and operation. On
the other hand, Trafford’s initial business consisted entirely of
continuing Liberty’s warehouse\fulfillment component. More-
over, Liberty’s warehouse\fulfillment operation remained com-
plete and it functioned during the transition from Liberty to
Trafford without a significant hiatus. Goldin-Feldman, Inc.
295 NLRB at 374 (alter ego status found where, inter alia, there
was no hiatus between cessation of operations by original com-
pany and commencement of operations by new company); MIS,
Inc., 289 NLRB at 491 (in determining whether enterprise is
alter ego, Board considers whether there has been a hiatus in
operations). The record shows that on September 8, Trafford
simply took over the same work, on the same orders, for all the
same customers that Liberty’s warehouse\fulfillment operation
had serviced until September 3.
The Board has found alter ego status under circumstances,
such as those at issue here, where only a portion of the original
company’s business is transferred to the new enterprise. See
Standard Commercial Cartage, Inc., 330 NLRB at 14; Eckert
Fire Protection, 332 NLRB 198, 201 (2000); Industrial Turn-
Around Corp., 321 NLRB at 187. Still I am given pause be-
cause the discrete operation within Liberty that survives in the
form of Trafford represented a small element of Liberty’s over-
all business. Neither party has identified any decisions where
the Board has considered whether under such circumstances
substantial identity of business purpose and operation exists for
purposes of the alter ego analysis. Roughly analogous prece-
dent does exist, however, in the context of successorship cases.
In those cases, the Board has found sufficient commonality of
ownership where even a small portion of the original com-
pany’s business is transferred to the new enterprise, but a ma-

11 No party has claimed that either Liberty or Trafford had supervi-
sors in addition to their management teams. Thus it appears that the
substantially identical management also constitutes substantially identi-
cal supervision.
jority of the new enterprise’s employees are from the predeces-
sor’s bargaining unit. In Bronx Health Plan, 326 NLRB 810,
812 (1998), enfd. mem. 203 F.3d 51 (D.C. Cir. 1999) for ex-
ample, successor status was found even though the new entity
was engaged in a somewhat different type of business than its
predecessor and its employees consisted of less than 6 percent
of the predecessor’s employee unit. Similarly, in Lincoln Park
Zoological Society, 322 NLRB 263, 265 (1996), enfd. 116 F.3d
216 (7th Cir. 1997), successorship status was found when the
new entity took over only one of the predecessor’s 100 loca-
tions and only about 3 percent of its complement of unit em-
ployees. The portions that Trafford assumed of Liberty’s busi-
ness and workforce were at least as substantial as those taken
over by the successors in Bronx Health and Lincoln Park.
Moreover, a clear majority of Trafford’s employees came from
the Liberty bargaining units. Given the facts and law regarding
the issue, I conclude that a showing has been made that Traf-
ford and Liberty had substantially identical business purposes
and operations.
The record also shows substantial identity of equipment and
premises. Indeed, Trafford was renting the very same premises
that Liberty had occupied until September 3. The equipment
that Trafford was using was the exact same equipment that
Liberty’s warehouse\fulfillment operation had used. Regarding
customers, the evidence shows that all of Trafford’s initial cus-
tomers were Liberty customers. During the first 8 month’s of
Trafford’s existence, the vast majority of its revenues, over 98
percent, were generated from warehouse\fulfillment customers
that had been Liberty’s warehouse\fulfillment customers until
September 3. Most of the customers for Liberty’s ware-
house\fulfillment operation continued on as customers of Traf-
ford after September 3. I conclude that the warehouse-
\fulfillment operation had substantially the same customers
before and after the transfer of that operation from Liberty to
Trafford.
The final consideration is “whether the purpose behind the
creation of the alleged alter ego was legitimate or whether,
instead, its purpose was to evade responsibilities under the
Act.” Fugazy, 265 NLRB at 1302. As with the other indicia, a
showing of improper motive is not necessary to a finding of
alter ego status. A&P Brush Mfg. Corp., 323 NLRB 303, 309
(1997); Johnstown Corp., 313 NLRB 170, 171 (1993), re-
manded 41 F.3d 141 (3d Cir. 1994), on remand 322 NLRB 818
(1997). Regarding the question of motivation, I begin by ob-
serving that I consider it implausible that J. Wortley would
sacrifice the printing and e-source operations that constituted
over 90 percent of Liberty’s business for the purpose of freeing
the warehouse\fulfillment operation from its labor law respon-
sibilities. As Respondent’s counsel suggested during trial, that
would not be the tail wagging the dog, but the “tip of the tail”
wagging the dog. However, J. Wortley’s decision to create a
new business entity, i.e., Trafford, as the vehicle for continuing
the warehouse\fulfillment business, rather than continuing to
use Liberty for that purpose could have been motivated by a
desire to avoid labor law responsibilities, even if the decision to
cease Liberty’s other operations was not. Compare Martin
Bush Iron & Metal, 329 NLRB 124 (1999) (even though cessa-
tion of original company’s operations was motivated by pur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1138
pose legitimate under the Act, alter ego status found where
manner in which new company resumed operations was moti-
vated by a desire to avoid labor law responsibilities). Liberty’s
labor law responsibilities were substantial, and included the
obligation to provide laid-off employees with the previously
bargained-for severance benefits, accrued vacation pay and
backpay, as well the responsibility to provide the retained unit
employees with the bargained-for wages, and terms and condi-
tions of employment.
There is little in the record to show that the decision to cease
operating as Liberty and continue the warehouse\fulfillment
operation in the form of a new entity, was done for legitimate
reasons. J. Wortley did not testify to state the reasons for these
actions; nor did Carmody or B. Wortley. Rather the Respon-
dent relied on double hearsay—testimony by witnesses about
what Carmody told them that he had been told by J. Wortley. I
consider that hearsay testimony an unreliable indicator of J.
Wortley’s motives and, in any case, general and unhelpful re-
garding the reasons for J. Wortley’s decision to cease operating
as Liberty. On the other hand, I believe the record does provide
some basis for believing that Trafford was created for illegiti-
mate reasons. I note, first, the transparent ploy of designating
B. Wortley, rather than J. Wortley, as the owner of Trafford.
As discussed above, control continued to rest with J. Wortley,
not his wife, after Liberty ceased to operate and Trafford was
formed. The Respondent has provided no legitimate reason for
this ruse and it is hard to explain absent a desire to avoid the
consequences that might follow from acknowledging that J.
Wortley controlled both entities. I also believe that some evi-
dence of a motive to avoid labor law obligations is provided by
Carmody’s refusal to accept or process grievances or otherwise
acknowledge his responsibilities as the president of Liberty, or
the responsibilities of Liberty to its former employees. Further
evidence of anti-union motivation is provided by the failure of
Liberty’s management to notify the Unions of the decision to
suspend Liberty’s operations and surrender its assets to the
Bank, and its failure to bargain with the Unions over the effects
of those actions on unit employees. These decisions were made
while Liberty was still operating and, as I will discuss below,
constitute violations of the Act.
I also believe that it is appropriate to draw an adverse infer-
ence from the failure of J. Wortley and B. Wortley, to testify
about the purposes motivating the decision to create a new
company to carry on the warehouse\fulfillment operation, in-
stead of continuing that operation as Liberty. The Respondent
did not claim that the Wortleys were unavailable or otherwise
explain their failure to testify. It is clear that the actions under-
taken by the Wortleys to continue the warehouse\fulfillment
operation using the new entity, Trafford, rather than through
Liberty, would be expected to result in a benefit to the em-
ployer by relieving it of very substantial obligations under the
Act and existing labor contracts. Yet the Wortleys did not tes-
tify to deny that these concerns motivated them. Since it can
reasonably be assumed that the Wortleys were favorably dis-
posed towards the companies they owned, I believe it is appro-
priate, given the failure of either one to testify about their mo-
tives, to draw an adverse inference about those motives. Inter-
national Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. mem. 861 F.2d 720 (6th Cir. 1988). To sum up, the evi-
dence shows that J. Wortley closed the warehouse\fulfillment
business he owned late on a Wednesday, and resumed that
warehouse\fulfillment business on the following Monday as a
new enterprise at the same location with the same clients, and
essentially the same managers, but without recognizing the
Unions or applying the existing collective bargaining agree-
ments. Moreover, J. Wortley did not testify to a legitimate
purpose for his actions. I conclude that a desire to avoid labor
law obligations was a motivation for those actions.12
The Respondent argues at length that a finding of alter ego
status is precluded by the Board’s decision in East Tennessee
Packing Co., supra. See Respondent’s brief at 23 ff. In that
case, a company that packaged and placed its brand name on
meat products manufactured by others was found not to be the
alter ego of a defunct company that used the same brand name
but had been engaged in slaughtering hogs, preparing fresh
pork items and manufacturing a full line of bologna and other
meat products. The circumstances relating to alter ego status in
the instant case are dissimilar to those in East Tennessee Pack-
ing in most of the respects the Board found most telling there.
For example, in East Tennessee Packing the majority of the
original company was owned by a trust that had no ownership
in the alleged alter ego and the decision explicitly distinguished
cases, such as the instant one, where “both enterprises [are]
either wholly owned by members of the same family or nearly
totally owned by the same individual.” 270 NLRB at 524. The
decision in East Tennessee Packing also noted that the owner
of the alleged alter ego was not the one who decided to discon-
tinue the operations of the original company. This contrasts
with the instant case, where J. Wortley made the decision to
discontinue Liberty’s operations and then organized, and
through his wife funded, Trafford to continue Liberty’s ware-
house\fulfillment operation. In addition, the alleged alter ego in
East Tennessee Packing: retained none of the original com-
pany’s major customers; took little of its management team
from the original company; began operating after a significant
hiatus following the original company’s closing; and rented
only a small portion of the original company’s facility. These
important facts all diverge from those demonstrated in the in-
stant case, and make clear that a different result is appropriate
with respect to Liberty and Trafford than was called for in East
Tennessee Packing.13

12 A desire to avoid labor law obligations may not have been the sole
reason for J. Wortley’s ceasing to operate as Liberty and creating Traf-
ford. Indeed, it is not unlikely that another reason was a desire to go
forward with the warehouse\fulfillment operation unencumbered by
demands from Liberty’s creditors. However, if a desire to evade labor
law obligations is even one of the employer’s reasons for forming a
disguised continuance of its old company, that reason is still sufficient
for purposes of the “motive” factor in the alter ego analysis. Martin
Bush Iron & Metal, 329 NLRB at 124; Michael’s Painting, Inc., 337
NLRB 860 (2002), enfd. 85 Fed.Appx. 614 (9th Cir. 2004).
13 Trafford also relies on the decisions in Perma Coatings, Inc., 293
NLRB 803 (1989), and P. J. Hamill Transfer Co., 277 NLRB 462
(1985). I have considered those decisions, but neither affects my con-
clusion that Liberty and Trafford are alter egos. In Perma Coatings, the
Board based its finding that two companies were not alter egos on, inter
alia, the facts that the owner of the first company did not control the
LIBERTY SOURCE W, LLC 1139
Trafford and Liberty have substantially identical ownership,
management/supervision, business purposes, operation, equip-
ment, premises and customers. The record also shows that the
decision to create Trafford was motivated by a desire to evade
Liberty’s responsibilities under the Act. I find that Trafford
and Liberty are alter egos.14
B. Alleged Violations of Section 8(a)(5) and (1) of the Act
Trafford, as an alter ego, is viewed to be essentially the same
entity as Liberty, and is bound not only to bargain with the
incumbent unions, but also to follow the terms of the existing
labor agreements between Liberty and the Unions. See How-
ard Johnson Co. v. Hotel Employees, 417 U.S. 249, 259 fn. 5
(1974); Concourse Nursing Home, 328 NLRB 692 (1999). An
alter ego enterprise violates Section 8(a)(5) and (1) by refusing
to meet this bargaining obligation, or by failing to apply the
terms of existing labor agreements to unit employees. Standard
Commercial Cartage, Inc., 330 NLRB 11, 14 (1999).
I turn first to the allegation that Liberty violated Section
8(a)(5) and (1) by failing to meet its bargaining obligations
before ceasing operations, transferring assets to a creditor, and
terminating the employment of individuals represented by the
Unions on September 3. Given that J. Wortley subsequently
used an alter ego to continue part of his Liberty operation, the
cessation and surrender of assets amount to a partial closing of
its business. The Board has held that an employer violates
Section 8(a)(5) and (1) when it lays off employees and partially
closes its facility “without prior notice to the Union and without
having afforded it an opportunity to bargain with the [em-
ployer] with respect to the layoff or the effects of the layoff and
partial closing.” American Medical Waste Systems, 321 NLRB
680, 681 (1996).15 In the instant case, the Respondents termi-

second company, and that the first company was operationally defunct
when the second company was created. This contrasts with the instant
case, where J. Wortley controlled both companies, and the record
shows that Trafford began hiring employees while Manderfield was
still trying to preserve the Liberty operation. Most of Liberty’s equip-
ment—the printing presses and so forth—were not sold until months
after Trafford began operating, and there is no evidence that Liberty
was ever dissolved as a corporate entity. Similarly, in P. J. Hamill, the
Board found that alter ego status was not appropriate because there
“were critical differences—e.g., in ownership, nature of operations, and
customers.” 277 NLRB at 462. It is not surprising that the Board
declined to find alter ego status there, but the “critical differences” that
were determinative in that case are absent here. Trafford had essen-
tially the same ownership as Liberty, and substantially the same cus-
tomers and operations as Liberty’s warehouse\fulfillment operation.
For these reasons, I reject the Trafford’s contention that the decisions in
Perma Coatings and P. J. Hamill warrant a finding that Liberty and
Trafford are not alter egos.
14 Given my finding that Trafford and Liberty are alter egos, it is not
necessary to reach the question of whether the two entities also consti-
tute a “single employer.” In its brief, the General Counsel states that
even if I find alter ego status the single employer question might “have
implications for the remedy” in this case. The General Counsel does
not, however, divulge what those implications might be, and none are
apparent to me from the record.
15 Although an employer is required to bargain concerning the ef-
fects of a partial closure on unit employees, it is not ordinarily required
to bargain over the decision to effect a partial closure. United Tech-
nated bargaining unit employees and partially closed the busi-
ness without prior notice to the Unions and without bargaining
over the terminations or the effects of the terminations and the
partial closure. The Respondents did not meet, or even attempt
to meet, their bargaining obligations before taking these actions
and have not argued that the changes were not mandatory sub-
jects of bargaining.
For the reasons discussed above, I find that the Respondents
violated Section 8(a)(5) and (1) of the Act by terminating bar-
gaining unit employees and partially closing its business with-
out prior notice to the Federation and the IUE and without bar-
gaining over the effects of the termination and the partial clo-
sure.16
After the bargaining unit employees were terminated, the
Respondents failed to honor many of their obligations to them
under the existing collective-bargaining agreements. Specifi-
cally, the Respondents declined to provide the workers with
severance pay or accrued vacation pay. The Respondent did
not even pay the terminated employees for work they had al-
ready performed on September 1, 2, and 3.17 Then, the Re-
spondents re-employed a number of bargaining unit employees,
but did so without regard to the contract provisions calling for
seniority to be a factor in selecting employees for reemploy-
ment. The Respondents failed to provide the re-employed indi-
viduals with the wages, benefits, and terms and conditions of
employment, to which bargaining unit employees were entitled
under the contracts. Before effectively repudiating the collec-
tive-bargaining agreements in this manner, the Respondents did
not give the Unions notice or an opportunity to bargain. On
September 10, Carmody told Testa that the new company
would not recognize the Unions and on September 16, during a
meeting with Testa, Zahorchak, and other union officials, Car-
mody expressed the view that the company had a right to hire
employees without union representation and without regard to
the recall provisions of the union contracts. During that meet-
ing, and afterward by letter, Carmody informed the union offi-
cials that he would not accept grievances on behalf of the Re-
spondents. Indeed, at the meeting he claimed that there was no
company to file grievances with. The Respondents violated the
Act by refusing to recognize and bargain with the incumbent
unions, and by failing to apply the terms of the existing collec-
tive-bargaining agreements to unit employees. See Howard
Johnson v. Detroit Local Joint Exec. Bd., supra, Concourse
Nursing Home, supra, Standard Commercial Cartage, supra.
The Respondents argue that even if Trafford and Liberty are
alter egos, they should not be required to honor the terms of the
collective bargaining agreements because the Unions did not

nologies Corp., 287 NLRB 198, 203 (1987), affd. 884 F.2d 1569 (2d
Cir. 1989); Central Mack Sales, 273 NLRB 1268, 1277 (1984).
16 I would still find these violations even had I concluded that Lib-
erty and Trafford were not alter egos. These actions were taken over
the period ending on September 3, when the enterprise was still operat-
ing as Liberty.
17 The record evidence does not demonstrate that, as alleged in the
complaint, the Respondents failed to pay the terminated employees
health care benefits, security and protection plan benefits, and commis-
sions required by the applicable contracts, or that the Respondent failed
to properly remit funds to the employees’ pension funds.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1140
file grievances and pursue arbitration under those agreements.
Given Carmody’s refusal to accept grievances from the Unions,
this contention is, to put it mildly, disingenuous, and I reject it.
Compare Budrovich Contracting Co., 331 NLRB 1333, 1344
(2000) (Board defers unfair labor practice proceeding pending
arbitration only when, inter alia, the employer is willing to
arbitrate.), enfd. 20 Fed.Appx. 596 (8th Cir. 2001). The Re-
spondents also argue that the case should be dismissed because
the collective-bargaining agreements with the Unions expired
as of January 31, 2004. This argument fails because the Re-
spondents committed, or began committing, all of the unfair
labor practices at issue prior to January 31, 2004. The Respon-
dents cite no authority at all for the notion that they are some-
how absolved from previously committed unfair labor practices
by the subsequent expiration of the contracts. Such a result
would be particularly at odds with the purposes of the Act un-
der the circumstances of this case, since the Respondents’ re-
fusal to bargain precluded any possibility of negotiating new
contracts or a further extension of the existing contracts.
I find that, beginning on or about September 3, the Respon-
dents violated Section 8(a)(5) and (1) of the Act by: refusing to
recognize and bargain with the incumbent unions; failing to
provide terminated workers with severance pay, accrued vaca-
tion pay, and compensation to which those employees were
entitled under the applicable collective-bargaining agreements;
failing to select the employees for reemployment in compliance
with the collective-bargaining agreements; setting wages, bene-
fits, and terms and conditions of employment for the returning
unit employees that were inconsistent with the collective-
bargaining agreements; and, changing unit employees’ wages,
benefits, and terms and conditions of employment without prior
notice to the Unions and without affording the Unions an op-
portunity to bargain.
CONCLUSIONS OF LAW
1. Respondent Liberty and Respondent Trafford are employ-
ers engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Federation and the IUE are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondents Liberty and Trafford are alter egos.
4. The Respondents violated Section 8(a)(5) and (1) of the
Act by: terminating bargaining unit employees and partially
closing its business without prior notice to the Federation and
the IUE and without bargaining over the effects of the termina-
tion and the partial closure; refusing to recognize and bargain
with the Federation and the IUE; failing to provide terminated
unit employees with severance pay, accrued vacation pay, and
compensation to which those employees were entitled under the
existing collective-bargaining agreements; failing to select the
employees for reemployment in compliance with the collective-
bargaining agreements; setting wages, benefits, and terms and
conditions of employment for the returning unit employees that
were inconsistent with the collective-bargaining agreements;
changing unit employees’ wages, benefits, and terms and con-
ditions of employment without prior notice to the Unions and
without affording the Unions an opportunity to bargain.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist from those practices and to take certain affirmative
action designed to effectuate the policies of the Act. With re-
spect to those employees who the Respondents did not re-
employ for the resumed warehouse\fulfillment operation, but
who would have been re-employed had the selection provisions
of the collective-bargaining agreements been followed, I find
that a full backpay remedy is appropriate from the dates on
which those individuals would have been re-employed. Except
for that group, the limited backpay remedy described in Trans-
marine Navigation Corp., 170 NLRB 389, 390 (1968), is ap-
propriate for the employees who the Respondents terminated as
a result of the partial closure of its business. This limited rem-
edy, rather than full backpay, is appropriate because those ter-
minations were the direct result of the partial closure and the
Respondents did not have an obligation to bargain over the
partial closure, but only over its effects.18 Pan American Grain
Co., 343 NLRB No. 47, slip op. at 1 (2004); Kathleen’s Bake-
shop, LLC, 337 NLRB 1081, 1082 (2002), enfd. 2003 WL
22221353 (2d Cir. 2003). Thus, I will recommend that the
Respondents be required to pay the terminated employees
backpay at the rate of their normal wages when last in the Re-
spondents’ employ from 5 days after the date of this Decision
and Order until the occurrence of the earlier of the following
conditions: (1) the date the Respondents bargain to agreement
with the Unions on those subjects pertaining to the effects of
the terminations and the partial closing of its business on its
employees; (2) a bona fide impasse in bargaining; (3) the fail-
ure of the Union representing the employee to request bargain-
ing within 5 days of the date of this Decision and Order, or to
commence negotiations within 5 days of the Respondents’ no-
tice of their desire to bargain with the Union; or (4) the subse-
quent failure of the Union representing the employee to bargain
in good faith; but in no event shall the sum paid to any of these
employees exceed the amount he or she would have earned as
wages from September 4, 2003, the date their terminations
became effective, to the time he or she secured equivalent em-
ployment elsewhere, or the date on which the Respondents
shall have offered to bargain, whichever occurs sooner; pro-
vided, however, that in no event shall this sum be less than
what these employees would have earned for a 2-week period
at the rate of their normal wages when last in the Respondents’
employ. See Transmarine, supra. All backpay provided by my
recommended order should be reduced by the amount of net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and increased by interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). In
addition, the Respondents must reimburse employees for any
loss of wages and benefits because of Respondent’s failure to
apply the terms and conditions of the collective-bargaining
agreement in the manner prescribed in Ogle Protective Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus
interest as computed in accordance with New Horizons for the
Retarded, supra.

18 See fn. 15, supra.
LIBERTY SOURCE W, LLC 1141
I will also recommend that an appropriate notice to employ-
ees not only be posted at the facility, but also be mailed to each
of the terminated employees who has not been re-employed.
This is necessary since the terminated employees are unlikely
to have an opportunity to view a notice posted in the Respon-
dents’ facility. See WestPac Electric, 321 NLRB 1322 (1996)
(“[i]t is well established that the Board has broad discretion in
determining the appropriate remedies to dissipate the effects of
unlawful conduct); see also Maramont Corp., 317 NLRB 1035,
1037 (1995) (the Board has broad discretion to fashion a “just
remedy”).
[Recommended Order omitted from publication.]