Loren Service, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1974

208 N.L.R.B. 763 (N.L.R.B. 1974)

LOREN SERVICE , INC. 763
Loren Service, Inc., Draber Press, Inc., Bernard
Dramen and Harold Berman and District 65,
Distributive Workers of America and Local 875,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Party to the Contract . Case 2-CA-12870
January 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 22, 1973, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondents and the Gener-
al Counsel each filed exceptions and a supporting
brief, and the Charging Party filed cross-exceptions
and a supporting brief.
Pursuant to the -provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act; as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondents Loren Service, Inc.,
and Draber Press, Inc., New York, New York, their
officers , agents, successors , and assigns , and Respon-
dents Bernard Dramen and Harold Berman, Individ-
uals, shall take the action set forth in the said
recommended Order.
1 We hereby correct the following inadvertent error in the Administra-
tive Law Judge 's Decision. In his recommended Order and in Appendix B,
change the name "Bertram Dramen" to "Bernard Dramen."
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor
Relations Act, as amended, (herein the Act) was heard in
New York City on June 5, 6, and 7, 1973. The original
charge was filed on January 30, 1973 (amended February
6, 1973) by District 65, Distributive Workers of America
(herein District 65) and the complaint and notice of
hearing was duly issued on April 12, 1973, by the General
Counsel of the National Labor Relations Board, through
the Regional Director for Region 2. The issues litigated
were whether the Respondents violated Section 8(axl), (2),
(3), and (5) of the Act by engaging in the acts and conduct
more fully described herein.
At the hearing, all parties appeared and participated with
the exception of Kcal 875, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein Local 875) who is a party to the
proceeding by virtue of its contractual relationship with
Respondent , Draber Press , Inc. Indeed, the original
proceeding contains a charge and complaint filed against
Local 875, but this charge and complaint was orally
dismissed at the commencement of the hearing upon
motion of the .General Counsel without objections by any
other party. At the close of the hearing, counsel for the
General Counsel and counsel for the Respondent partici-
pated in . oral argument on the record. Subsequent to the
hearing, counsel for the Respondent filed a written
memorandum which has been duly considered.
Upon the entire record in this case, including my
observation of the demeanor of the witnesses while
testifying ' and the arguments of counsel, I make the
following:
FINDINGS OF FACT
1. COMMERCE
At all times material, at least until December 1972,
Loren Service, Inc. (herein Respondent Loren), a New
York corporation, was engaged in the business of repro-
duction, sale, and distribution of offset printing and related
products located at 684 Broadway, City and State of New
York. The parties stipulated that during an annual period,
Respondent Loren performed services in excess of $50,000
for employers who, in turn , are engaged in interstate
commerce by virtue of performing at least $50,000
annually outside the State of New York.
Draber Press, Inc. (herein Respondent Draber), a New
York corporation is also engaged in the manufacture, sale,
and distribution of printing products , located at 627
Greenwich Street, City and State of New York, Respon-
dent Draber has been in business only since on or about
November 1972. However, the parties stipulated that on a
monthly basis since that time, Respondent Draber has
purchased paper from outside the State of New York in a
volume of approximately $10,000 per month . On an annual
basis, such out of state purchases would , of course, exceed
$50,000 annually.
On the basis of all of the foregoing, I find that
Respondent Loren and Respondent Draber, and each of
them, are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the Respondents stipulated, and I
find that District 65 and Local 875, and each of them, are
1 Cf. Bishop and Malco,, Inc., d/b/a Walker's, 159 NLRB 1159, 1161.
208 NLRB No. 115
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Recognition of District 65 by Respondent
Loren, and Subsequent Events
For a number of years prior to the events giving rise to
the issues in this case, Respondent Loren was engaged in
the printing business at 684 Broadway , New York City
(herein the Broadway plant). Although doing business in
the corporate form , Respondent Loren was at all times
owned and controlled solely by its two stockholders and
officers, Harold Berman and Bernard Draman. Each
owned 50 percent of the stock ; Dramen was president and
Berman was vice president (the only officers) of the
corporation, and this decision respecting the designation of
officers was made years ago through the device of flipping
a coin . Indeed, the two men referred to themselves as
business partners rather than corporate officers . Moreover,
the record reflects that the two men had been friends for
many years, - and that they had married two women who
were sisters.
In August 1972, Respondent Loren employed approxi-
mately 20 production and maintenance employees. After
an apparent , whirlwind-type organizational campaign
among the employees , District 65 demanded from Respon-
dent Loren recognition as the employees ' collective-bar-
gaining representative . After satisfying itself of the merit of
District 65's claim that it represented the majority of the
employees, Loren granted such recognition and bargaining
negotiations commenced shortly thereafter?
Collective-bargaining negotiations commenced between
the parties on September 13 .3 Representing the District 65
was its organizer Ralph Pileggi , along with a committee of
the print shop . Present for Respondent Loren were its two
officers , Dramen and Berman , along with their attorney
Hugh Husband , Esq. The first session was short , the union
presenting its form contract which contained its demands
relative to the wages, hours , and working conditions of the
employees in the shop . At the second meeting, which took
place on September 15, the Company supplied the Union
with a seniority list of its employees , which included their
weekly salaries . At the third meeting between the parties,
which was held on September 23, the negotiators went
through the Union 's proposed contract and reached
agreement on certain noneconomic clauses of the con-
traCt.4
At the fourth meeting between the parties , which took
place on September 27, further discussion was had and
additional agreements reached on noneconomic clauses of
the proposed contract . However, at about this time,
2 Prior to these events, there had been no history of collective bargaining
among any of the employees of Respondent Loren.
The complaint alleges, the answer admits , and I find that:
All production and maintenance employees, including shipping and
receiving department employees and messengers , of Respondent Loren,
employed at its Broadway plant , exclusive of office clerical employees,
guards, and all supervisors as defined in Section 2( 11) of the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3 All dates from September through December refer to the calendar year
Respondents Berman and Dramen were having discussions
between themselves which were to have a significant
bearing on future events.
Thus, according to their testimony , the conclusion was
reached that it was highly improbable that the corporation
could reach a settlement with District 65 as respects, the
latter's economic demands and still maintain the payment
of two executives ' salaries . It was also pointed out that
Dramen was not physically well, having underg9ne a heart
attack about a year previously, and his wife had been
urging him to retire . Under the circumstances , the two men
reached an agreement whereby Dramen offered to sell his
half interest in the corporation to Berman for the sum of
$6,527.22 payable on or before November 28 .5
On October 7, Berman and Dramen executed a further
agreement in which , in substance, the customers of
Respondent Loren were divided between the two men and
each was restricted from soliciting the business.of the other
while , at the same time , declaring the freedom of each to
enter into any business he so desired . (See Resp. Exh. 3)
Accordingly, as of September 30, Dramen was no longer
officially connected with Respondent Loren although the
original agreement between the two men provided as
follows:
3. In consideration of Dramen 's waiving his right
to monies for the good will of the Corporation , Berman
and the Corporation agree to continue paying Dramen
a drawing equal to that of Berman for the.balance of
the calendar year ending December 31, 1972, in
consideration for which Dramen agrees to act as a
consultant to the Corporation , rendering such services
as he in his sole discretion deems advisable. It is
specifically agreed by and between the parties hereto
that upon the signing of this agreement , Dramen shall
be under no restriction whatsoever with respect to his
future activity.
Negotiations continued between Respondent Loren and
District 65, the next meeting taking place on October 11.
At that meeting the parties reached agreement on many
significant clauses of the proposed contract . Thus agree-
ment was reached on a cost of living clause which provided
a 2 percent credit with no ceiling; hours to be reduced from
40 to 37-1/2 over the period of the contract; and vacations
to be on a sliding scale based . upon years of employment.
In addition , the record reflects that the Company offered
proposals on sick days, holidays, and payments to the
Union's health and welfare fund commencing 9 months
from the effective date of the contract, to be increased 33
months from the effective date; severance pay; a jury duty
clause; bereavement pay; and a "basic crew" provision .6
The next and final meeting between the parties took
1972; thereafter , dates refer to the calendar year 1973.
It was understood between the parties that an agreement as to any
particular clause or clauses of the proposed contract was not binding unless
and until the parties reached agreement on the whole contract.
S The agreement also provided that it final payment was not made by
that date. Berman would give Dramen a chattel mortgage covering some of
the equipment of the corporation (See Resp. Exh. 1). Such chattel mortgage
was, in fact, executed (Resp. Exh. 2).
s "Basic crew" refers to the number of employees immunized from
layoff.
LOREN SERVICE, INC 765
place on October 27 and was held at the offices of the New
York State Board of Mediation . Pileggi testified that the
meeting was held with the mediator because we were
"faced with a possible strike ...... Pileggi acknowledged
that at this point in the negotiations there was generally no
disagreement between the parties as to the other clauses of
the contract-that the "meeting at the State Mediation
Board was because of wages ." The parties failed to reach
agreement on that issue ;7 apd thus there was no agreement
on the contract . A strike ensued which commenced
November 21, in which, initially eight employees struck
and commenced picketing in front of the building.
The strike was quite successful in interrupting and
impairing Respondent Loren's ability to complete its
orders . Berman testified that he attempted to contract out
much of the work but was unsuccessful due to fact that (1)
other firms were reluctant to work on struck materials, and
(2) there' were only a limited number of printing firms
which performed the "total package " of services that Loren
performed for its-customers.
B. The Establishment of Draber Press, Inc., and
Subsequent Events
Meanwhile , Dramen had established a small printing
operation in a loft located at 627 Greenwich Street, New
York, which is approximately a mile or two from the
Broadway location of Respondent Loren. It appears that
Dramen initially established the business in October,
operating as an individual proprietorship known as BD
Press . It further appears that the operation was quite
minimal in the beginning , and that Dramen received a
concession on the rent for performing a part of his
landlord's printing business. In November, the operation
was incorporated in the State of New York and became
known as Draber Press, Inc.8 The record reflects that on
November 27 and 28, Dramen hired four former employ-
ees of Respondent Loren who had discovered that he had
opened a printing establishment and had applied for work.
Dramen also testified, without contradiction , that two of
the said employees would not work without union
representation and had recommended to him Local 875.
He agreed with them , and signed an agreement with Local
875 which was a 3-year contract effective October 30.8
Berman testified that he had learned in December of
Dramen's printing operation, and, being-unable to have his
own orders completed , as aforesaid, agreed to subcontract
at least some of the work to Dramen . Since Respondent
Draber could not handle the work with the small amount
of equipment it had, Respondent Loren, in December,
leased and moved two printing presses and an Itek camera
to Draber at the Greenwich Street location.
In latter December ,. Berman came to the conclusion that
he could no longer operate Respondent Loren in the
manner in which it had been operated previously. That is
to say, Berman determined that Respondent Loren could
no longer be operated as a production facility and that he
The foregoing findings , based upon the testimony of Pileggi , was in its
essential respects , concurred in by Harold Berman.
' The record reflects that the parties were apart in a substantial sum on
this issue : The Union was asking $25 per man per week and, according to
Pileggi , would have settled for $20; the Company was offering $4, $5, and
would become a printing broker. At about this time he
reached an agreement with Dramen that Respondent
Loren would lease all of its equipment to Respondent
Draber, and that Berman would commence working for
Draber as its general manager at a salary of $300 per week,
plus a commission for sales in excess of $200,000
annually .10 Accordingly, since Loran's lease on the
Broadway premises terminated on January 31, Respondent
Loren, its machinery and its -president, moved . to the
Greenwich location of Respondent Draber in early
January.
No offipial notification of the foregoing action was given
to District 65. Pileggi testified that after he was "pretty well
convinced" through. picket line conversations with Berman
that the Company was going to close down, he placed
several telephone calls to Attorney Husband and told the
latter that "if the Company is going out of business, let's sit
down and resolve this thing." Husband replied, according
to Pileggi's uncontradicted testimony, "Well, they are
going to close down...There is no money there . Right now
I'm just doing them a favor to even talk to you (because he
was worried about his fee)."
C. The Conduct of Operations at 627 Greenwich
Street
Thus, since January, Respondent Loren (through its
President Berman) has been carrying on business as a
printing broker at the location of Respondent Draber at
627 Greenwich Street . Of course, it was to the interest of
both Berman and Dramen to not only acquire new
customers for Draber but to retain the old customers of
Loren . It appears that Berman is primarily the salesman or
contact man for customers, and the question was posed as
to how he allocates business for the two concerns. He
responded as follows:
A. People who do not object to dealing with a
broker I'll continue as Loren Service . People who do
object to it, I will bill as Draber Press.
s * :
Q. What proportion of Loren customers that
Draber is still doing work for are still being billed by
Loren?
A. Actually, under Loren Service, there is practi-
cally no billing being done . It is all thrown into the pot
as per my agreement with Mr. Dramen . There is some
odds and ends that are still hanging around loose, and
people that don't want to change with anybody, that
will be billed by Loren Service . In turn , Draber, who
does the actual work , bills Loren Service.
Berman further testified that approximately three-fourths
of the work done by Draber is work that was previously
done by Loren.
In addition, the record reflects that for some years past,
$6 over the contract term.
" The name of the corporation is. according to the testimony of Dramen,
a combination of the first syllables of his name , Bertram Dramen.
9 See G.C. Exh. 22.
10 See Resp. Exh. 4.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Loren was a successful bidder on contracts for Very truly yours,
the United States Government and the government of the
City of New York, and performed printing services for Ralph Pileggi
these governmental units . The forms submitted by the City Organizer
of New York to prospective bidders require financial
statements . In filling out such forms in January to be
submitted to the City of New York, the following language
was used by Berman in responding to the request for the
financial statement of Draber Press, Inc. (on behalf of
whom a submission was made):
Above (referring to financial statement) same as Loren
Service, Inc. 684 Broadway N.Y.C. Firm name only is
changed. Financial structure is the same already on file.
Harold Berman 11
In addition to the foregoing, counsel for the General
Counsel presented several witnesses who were representa-
tives of firms who had previously done business with
Respondent Loren at the Broadway location.. Such
witnesses testified , in essence, and without contradiction,
that during the first part of 1973, in telephone conversa-
tions with Berman, the latter stated that he was in business
under a different name LDraber Press), at a different
locality, with a new telephone number, and asked the
customers to make a note of it.
Pileggi learned of the existence of Draber Press in
January, and visited the premises. There, he saw Berman,
Havanel (former foreman at Respondent Loren), and
several other employees . Berman advised Pileggi that he
was "just working up here," and that he could not divulge
any more information on advise of counsel. However, he
did advise Pileggi that she was "protected with another
union," without stating the name of the union. Pileggi
stated that Berman would hear from him again, since it
was his position that his union had a contract covering the
Company.12
On March 23, Pileggi dispatched a letter addressed to
"Draber Press-Loren Service" at the Greenwich Street
address, as follows:
We hereby notify the Company that the following
employees of your Firm are ready and willing to work
upon recall:
Antonio Collazo Verley Swalvy
Hiawatha Patterson Luis Ruiz
Nelson Ponce Rubin Mendez
Jorge Baez
Due to the companies 'relocating from 684 Broad-
way, New York City to 627 Greenwich Street, New
York, none of the abovementioned employees to date
have been offered employment to their former posi-
tions by your Company.
We expect the Company to correct this immediately
by recalling all the abovementioned employees imme-
diately.
On April 2, Attorney Husband, on behalf of Respondent
Loren, responded, in essence, that his client did not
consider the letter of March 23 to constitute a valid
application for reinstatement-that such could only be
made "by a personal application from each of the
employees concerned ." " Further, Husband advised Pileggi
that since Loren had discontinued its printing operations
and was acting as a printing broker, it had no need for
production employees . However, he also advised that
should Loren decide to engage in printing or other
production work in the future it would be happy to
consider the application for reemployment from any of the
individuals named.
On April 3, Husband wrote to Pileggi on behalf. of
Respondent Draber Press in which he advised that neither
Draber Press nor its owner , Bernard Dramen, had any
financial connection with Respondent Loren , nor did
Respondent Loren or Harold Dramen have any financial
interest in Draber Press . Therefore, Respondent Draber
had no responsibilities toward any of the employees
formerly.employed by Respondent Loren. Further, Hus-
band reiterated the position that he did not think the letter
of March 23 constituted a valid application for work on
behalf of the employees named.
Analysis and Concluding Findings
Contentions of the Parties
It is the theory of the General Counsel in this case that
Respondents Berman and Dramen , upon learning of
District 65's demands at the commencement of the
negotiations in September , immediately contrived and
embarked upon a scheme to rid themselves of that union.
Realizing that they could not accomplish their objective by
simply and openly' moving to another location in New
York City, they determined to allow Dramen to divorce
himself from the business of Respondent Loren and
establish a separate business elsewhere ; to have Respon-
dent Loren engage in "surface bargaining" with District 65
until such time as the latter was forced to call a strike; and
then have Berman along with the machinery and equip-
ment of Respondent Loren join Dramen for the purpose of
carrying on the original business at another location under
a different corporate organization and name . To ensure
that District 65 would be frozen out of the situation, the
new business would sign a contract with another labor
organization which, incidentally, contained a wage provi-
sion substantially similar to that which Respondent Loren
was offering District 65.
Respondents contend that there is no substantial
evidence of such a scheme ; that all Respondents acted in
good faith; that Respondent Loren bargained in good faith
to impasse with District 65 following which the latter called
a strike which resulted - in a cessation of production
" See G.C. Exh. 19.
iz Apparently, he meant an agreement of recognition as collective-
bargaining representative.
LOREN SERVICE , INC. 767
operations of Respondent Loren ; that Respondent Loren
attempted to have its production subcontracted elsewhere,
but without success; that finally Berman reached an
agreement with Dramen, who had subsequently estab-
lished a printing business about a mile and a half away, to
perform production operations at that location; that the
agreement reached between Dramen was legal and proper
and does not constitute a continuation of the business of
Respondent Loren; and that, finally, the recognition by
Respondent Draber of Local 875 was proper and lawful in
all respects.
After a consideration of all of the evidence in the record
considered as a whole , in the light of the above conten-
tions, I have reached the following conclusionary findings:
1. There is , of course , some evidence in the record upon
which one might reasonably draw the inference that
Berman and Dramen planned the scheme to rid themselves
of District 65 by milking Respondent Loren of its
production facilities and transferring them to Respondent
Draber in the manner set forth above . Suspicions are
aroused particularly in retrospect by the fact that following
the transfer of Respondent Loren from the Broadway to
the Greenwich Street address , the former partners held
themselves out to the public and their former customers as
being the same enterprise that formerly was engaged in the
printing business at the old location, whatever changes in
internal corporate structure were effected . However, the
burden of proof on this issue (as on all issues) is, of course,
upon the General Counsel , and I am not persuaded that
there is substantial evidence in this record to sustain his
theory. In the first place, there is not the proverbial scintilla
of evidence of union animus. Secondly, there is no
evidence to detract from the proposition that the sale of
Dramen 's interest in Respondent Loren was other than
legitimate. He was in poor health , the demands of District
65 were quite extensive and substantial in their economic
terms, thereby making it reasonable for the two men to
conclude that the firm could not exist paying two executive
salaries if the demands were acceded to; the documents
executed by Berman and Dramen which reflect the
conditions , of sale appear reasonable and legitimate on
their face , and there is no evidence that the conditions were
not complied with. Finally , the bargaining negotiations
themselves appear regular and at arm 's length. The
Employer certainly made substantial concessions in a
seeming effort to reach an agreement with District 65.
Unless it could be said that the Respondents knew in
advance that District 65 would never sign a contract
irrespective of such concessions unless its wage demands
were substantially met, it would be extremely difficult to
base a finding that the negotiations were sterile and that
the Employer was engaged merely in "surface bargaining."
That Respondents did not contrive in . advance to rid
themselves of District 65 in the manner set forth above is
further confirmed in my view , by the conduct of Berman
following the strike by District 65 on November 2l . Thus,
if the scheme was in existence at that time , as argued .by the
General Counsel , 'one might suppose that Berman would
have seized upon the strike as an excuse to immediately
close down the -.Broadway -operation and move to the
Greenwich Street 4ocation which was by then in existence.
However this was not ; done. until a month- later after
Berman had exhausted efforts to have the work done
elsewhere. It was -thus almost a month - later before he
subcontracted any of the work to Respondent Draber.
In view of all the foregoing , I - find and conclude- that
there is a lack of substantial evidence . in the record to
sustain the allegation in the complaint that the negotiations
between the Respondents and District 65 were in bad faith
and that the former had no intention of reaching
agreement with District 65. I further find that the parties
negotiated to an impasse, that the sole issue separating the
parties prior to the strike was wages , and therefore that the
strike which commenced on November 21 was not caused
by any unfair labor practices of the Respondents but rather
was an economic strike . Accordingly, I shall recommend
that the complaint , to that extent, be dismissed.
2. As previously set forth, the evidence discloses that
near the end of December, Berman concluded, as a result
of the effect of the strike upon his production , to close
down the operation on Broadway and move, it to
Greenwich Street , in the manner set forth above . Having
reached such a determination , it is clear that the -law
required him to notify and bargain with District 65 at least
as to the effects upon the employees of such decision if not
with respect to the decision itself.13
As previously set forth , the evidence discloses that during
a conversation on the picket line with Pileggi, Berman did
advise that he was contemplating closing down the
business (without disclosing any intention of moving .it to
another location , or making an arrangement with Dramen
in the manner set forth above) to which Pileggi responded
that he was willing to settle the matter of the Company's
going out of business in return for payments to the
employees of some severance pay . However the amount
was never agreed to.
I do not consider such notice (together with the
telephone conversations between Pileggi and Husband)
adequate to fulfill Respondent Loren's obligation to
bargain with District 65 concerning the effects upon the
employees of the decision to remove the business from one
location to another. I therefore find and conclude that
from on or about December 19 Respondent Loren failed
and refused to bargain with District 65 as the exclusive
representative of its employees in an appropriate unit, in
violation of Section 8(aX5) and (1) of the Act.14
r3 The law is less than crystal clear as to an employer's duty to bargain
with respect to a decision to remove his plant for economic reasons [compare
General Motors Corporation; GMC Truk & Coach Division, 191.NLRB 951
(particularly the text and cases cited in fn. 7 ), with Heirose Bindery, Inc., and
Graphic Arts Finishing, Inc., 204 NLRB No. 88 .1 However, I need not reach
the issue in this-case since any remedy would be largely moot and academic
in view of the apparent merger of the two corporate Respondents. Cf.
McGregor Printing Corporation 163 NLRB 938.
14 See McGregor Printing Corporation, 163 NLRB 938; See also Jack
Lewis and Joe Levilan d/bla California Footwear Company, 114 NLRB 765,
where the Board held (at 767):
We can we no real difference between the case of an employer who
decides to move his plant to run away from his union rather than for
economic reasons , and an employer, who, as here , moved his plant for
economic reasons but decides to utilize the move as-an opportunity to
get rid of the union, resorting to deceit and subterfuges including the
(Continued)
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The complaint alleges that since on or about
December , "Respondents Draber , Dramen and Berman
have continued the operations of.Respondent Loren, as
after egos, at 627 Greenwich Street , City and State of New
York." I have found that after Respondent Loren
discontinued production operations at the Broadway
address in late December , Berman agreed with Dramen to
come over to Respondent Draber as General Manager and
lease the machinery and equipment of Respondent Loren
to Respondent Draber. Although there is some evidence in
the record that thereafter there was some effort made at
maintaining the separation of the two corporate Respon-
dents 15 the greater weight of the evidence tends to show
that, as set forth above, the Respondent held themselves
out to former customers as the "old firm" doing business
under a different name and at a different adflress.
Moreover , the facts abundantly establish that after the
move, the nature and function of the employing enterprise
remained the same . Thus, similar products were produced
on the same machinery and equipment as formerly utilized
by Respondent Loren ; as previously noted, the customers
served by Respondent 'Draber are substantially similar to
those of Respondent Loren ; '6 and, finally, the basic
employment relationship between management and em-
ployees remained the same.17
Accordingly , based on all of the foregoing, I find
Respondent Draber to be the same "employing enterprise"
as Respondent Loren , and its alter ego. Therefore, under
ordinary circumstances, it would be obligated to recognize
and bargain with District 65 as the exclusive representative
of its employees , in an appropriate unit . See Morgan
Products, Inc., Successor and Alter Ego to Hargrett's
Machine Products, Inc., 172 NLRB 95, and cases cited
therein . However, I have previously found that prior to the
decision of Respondent Loren to move-indeed , prior to
the strike-Respondent Draber had recognized another
labor organization as the exclusive collective-bargaining
representative of its employees . There is no substantial
evidence in the record to show that such recognition was
unwarranted at the time. As previously pointed out,
Dramen testified, without contradiction , that the two
production employees who were then working for him
requested representation by Local 875, and he granted it.
Of course , it is to be remembered that "Section 8(#2) and
(1) and 8(b)(IXA) of the Act collectively require that a
representative number of employees be hired and that a
majority shall have designated the Union as their bargain-
setting up of a false front in an effort to conceal the fact that he
remains the employer while he pretends to the union and his employees
that he has ceased production and has nothing to do with employment
at the new location.
15 See, e.g., Resp. Exh. 5A and 5B which are invoices -of Respondent
Draber billed to Respondent Loren for certain items of printing, dated in
January.
16 Berman testified that approximately three fourths of the work done by
Draber was for customers who had previously been serviced by Respondent
Loren.
It Of the approximate 15 employees of Respondent Draber, 7 were
former employees of Respondent Loren (See G.C. F.xh. 21). Under these
circumstances, the mere change of ownership is not so unusual a
circumstance as to effect the representative status of the Union which
represented the employees at Respondent Loren . See N.L.R.D. v. Alamo
White . Truck Service, Inc. 273 F .2d 238, 239 (CA. 5, 1959); N.LRB. v.
ing representative prior to the execution of a valid
exclusive bargaining contract ." 18 In view of the circum-
stances existing at the time , i.e., prior to the agreement by
which Respondent - Loren moved to Respondent Draber, it
can not be said that Dramen anticipated that the employee
complement of Respondent Draber would be so increased
as to make the two man unit an unrepresentative one.
Accordingly, I find no basis upon which to upset the
collective-bargaining relationship which exists between
Respondent Draber and Local 875.
4. There remains for consideration the issue of whether
the Respondents discriminated against the striking employ-
ees who, on March 23 , made offers to return to work, as
aforesaid.
It is, of course, settled law that in order to obtain
reinstatement following a strike, the strikers must make an
unconditional application therefor within a reasonable
time following the end of the strike. It is equally well
settled that a labor organization which has represented
them in collective bargaining ordinarily retains the
authority to make such application upon their behalf.19 In
the circumstances of this case , I am satisfied that the letter
written by Pileggi on March 23, above quoted , on behalf of
seven striking employees, was timely and clearly indicated
that the employees were ready and willing to return to their
jobs without attaching conditions.20
As set forth , above, the Respondents, through their
attorney, replied to the Union 's letter of March 23 by
stating, in effect, that Respondent Loren had no obligation
to reinstate the employees because it no longer hired
production workers and that Respondent Draber had no
obligation because it was a totally different company.21
However, for reasons previously set forth , I have found
Respondent Draber to be the alter ego of Respondent
Loren, at least since they merged their equipment,
locations , and executive personnel on and after January 1.
I have further found that the failure and refusal of
Respondent Loren to notify and bargain with District 65
concerning the effects of the planned removal of the
production facilities constitutes a violation of Section
8(aX5).
It would seem to follow from all of the foregoing that
Respondent Draber as well as Respondent Loren should
be held responsible for remedying this unfair labor practice
since they have been found to be alter egos , i.e., that
Respondent Draber is a "disguised continuance" of
Respondent Loren. See Southport Petroleum Company v.
N.LR.B., 315 U.S. 1110 (1942).
Armato, Alberti and Wire & Skeet Metal SpecialtyCa, 199 F.2d 800 (C.A. 7).
It is recognized that in Mama a Board certification was involved ; however
it would not appear that this difference would amount to a legal distinction
where, as here, Respondent Loren raised no question concerning represent-
ation of the employees by District 65.
18 See Local 150. International tlmon of Operating Engineers, AFL-CIO
[R J. Smith Construction Co., Inc.J v. N.LR . B., 480 F.2d 1186 (C.A.D.C.,
1973).
19 J. H. Rw/er-Rex Manufacturing Company, 158 NLRB 1414, 1439.
20 Cf. N.L.R.B. v . Valley .Die Cast Corp.; 303 F.2d 64 (C.A. 6; 1962).
21 The letters also appeared to raise the question of whether or not the
Union could make an effective offer on behalf of the named employees,
stating that that evidence could only be provided by a"personal application
from each of the employees concerned ." However, as above noted, the
Board has answered that contention contrary to Respondents' position. J.
H. Rutter-Rex Manufacturing Company, supra
LOREN SERVICE, INC.
Under these circumstances, I find and conclude that the
rights of the strikers (whose strike commenced as an
economic strike) became analogous to those of unfair labor
practice strikers from on or about January 1. Accordingly,
I find and conclude that on and after January 1, the
Respondents forfeited the right permanently to replace the
strikers and that the latter were entitled to be reinstated
upon their- unconditional offer to return to work even if it
were necessary for the Respondents to discharge replace-
ments for the strikers hired on and after January 1.22 Their
refusal and failure to do so constituted a violation of
Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
As it has been found that the Respondents have engaged
in unfair labor practices, it will be recommended that they
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent Draber is an alter ego of
Respondent Loren sinceon or about January 1, 1973, they
are, for remedial purposes of the Act, a single "employer"
within the meaning of Section 2(2) since that date. Also, as
above-noted, both Dramen and Berman are named
Respondents in this proceeding. The former, as president
of Respondent Draber, and the latter, as president of
Respondent Loren, acted as agents of their respective
corporations at the time the unfair labor practices were
found to have been committed. Both individuals are,
therefore, an "employer" for the remedial purposes of the
ACt.23
I have found that Respondent Loren violated Section
8(aX5) and (1) by its failure to notify and bargain about the
effects of the decision to close the Broadway plant.
Accordingly, I will recommend that Respondent Loren be
required to bargain with District' 65 with respect to the
effects on the employees in the appropriate unit of the
decision to close the Broadway operation, and'reduce to
writing any agreement reached as a result of such
bargaining.24
Having found that the Respondents refused to reinstate
striking employees upon application, and that such striking
employees had become unfair labor practice strikers by
virtue of the unfair labor practices which the Respondents
had engaged in subsequent to the commencement of the
strike, I shall recommend that each such striking employee
(named above) shall be offered immediate and full
reinstatement to his former or substantially equivalent
n See De Soto Hardwood Flooring Company, % NLRB 382,401.
23 See Herman Brothers Pet Srpply, Inc., 138 NLRB 1087, 1096;
Marriello Fabrics, Inc., 149 NLRB 333, 346.
769
position without prejudice to his seniority or other rights
and privileges, if necessary, by discharging other employ-
ees hired on or after January 1, 1973, who were not
employees of the Respondents on that day. It will also be
recommended that the Respondents make whole such
striking employees for any loss they may have suffered as a
result of the discrimination against him by payment to
each of them of a sVm of money equal to the amount which
he would have normally earned as wages from March 28,
1973,25 to the date of the Respondents' offer of reinstate-
ment . Any, backpay due shall be determined in accordance
with the formulae prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and shall include
interest at 6 percent per annum , as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent Loren and Respondent Draber, and
each of them, are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. District 65 and Local No. 875, and each of them, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees, includ-
ing shipping and receiving department ,employees and
messengers, of Respondent Loren, employed-at its Broad-
way plant, exclusive of office clerical employees, guards,
and all supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of, collective
bargaining within the meaning of Section 9(b) of the Act.
4. District 65 was on or about August 22, 1972, and, at
all times until on or about December 31, 1972, has been, the
exclusive representative of the employees in the above-
described unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally closing its operation at 684 Broad-
way, City and State of New York, without prior notice to,
consultation with, or bargaining with, District 65 as the
exclusive representative of the employees in the above-
described unit , concerning the effects thereof, Respondent
Loren "has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) of the Act.
6. By failing to reinstate certain strikers following their
unconditional application to return to work, Respondent
Draber and Respondent Loren violated Section 8(aX3) of
the Act.
7. By the conduct described in paragraphs 5 and 6
above, which thereby interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondents Loren and Draber have
engaged and are engaging in unfair labor practices within
the meaning of Section 8(aX1) of the Act.
8. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
24 Cf. McGregor Printing Corporation, 163 NLRB 938.
sa The date is 5 days subsequent to Much 23 when the employees made
the offer to return to work.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER26
A. Respondent, Loren Service, Inc., its officers , agents,
successors, and assigns, and Harold Berman, an individual,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
District 65, Distributive Workers of America, as exclusive
bargaining representative of all its employees in the unit
described above, by failing or refusing to bargain with the
above-named labor organization with regard to the effects
of its decision to discontinue operations at the Broadway
plant upon the employees in the appropriate unit.
(b) Failing and refusing to reinstate or rehire any striking
employee in order to discourage membership in any labor
organization.
(c) In any like of related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act. .
(a) Together with Respondent Draber Press, Inc., offer
each of the employees named below immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position , without
prejudice to seniority or other rights and privileges
previously enjoyed , and make each whole for any loss of
pay he may have suffered as a result of the discrimination
against him in the manner provided in the section of this
Decision entitled "The Remedy."
Antonio Collazo Verley Swaley
Hiawatha Patterson Luis Ruiz
Nelson Ponce Rubin Mendez
Jorge Baez
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and , reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Offer to and, upon request , bargain collectively with
District 65 , Distributive Workers of America, as the
exclusive representative of all employees in the appropriate
unit concerning the effects upon the employees in said unit
of its discontinuing the Broadway operation. If an
understanding should be reached, embody such under-
standing in a signed agreement.
(d) Promptly upon receipt from the Regional Director
for Region 2 of copies of the attached notice marked
"Appendix A," 27 cause such copies to be signed by a
representative of Respondent Loren and be posted at its
Greenwich Street, New York, location for 60 consecutive
26 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Loren to
insure that said notices are not altered , defaced, or covered
by any other material.
In addition, mail copies of said notice to District 65,
Distributive Workers of America , and to all employees in
the appropriate unit w, to were employed by Respondent
Loren at its Broadway location immediately prior to the
strike of November 21, 1972.
(e) Notify the aforesaid Regional Director , in writing,
within 20 days from the receipt of this Order, what steps
have been taken to comply herewith.
B. Respondent, Draber Press, Inc., its officers , agents,
successors, and assigns, and Bertram Dramen, an individu-
al, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate or rehire any striking
employee . of Loren Service , Inc., in order to discourage
membership in any labor organization.
(b) In any like or related manner interfering, restraining,
or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Together with Respondent Loren Service, Inc., offer
each of the employees named below immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to seniority or other rights and privileges
previously enjoyed , and make each whole for any loss of
pay he may have suffered as a result of the discrimination
against him in the manner provided in the section of this
Decision entitled "Me Remedy."
Antonio Collazo Verley Swaley
Hiawatha Patterson Luis Ruiz
Nelson Ponce Rubin Mendez
Jorge Baez
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its Greenwich Street , New York, location
copies of the attached notice marked "Appendix B." 28
Copies of said notice, on forms provided by the Regional
Director for Region 2 , after being duly signed by
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
27 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
2s See In. 27.
LOREN SERVICE, INC
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the receipt of this Order, what steps it
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in good
faith with District 65, Distributive Workers of America,
as the exclusive bargaining representative of all
employees in the appropriate unit by failing or refusing
to bargain with the above-named labor organization
with regard to the effects of the discontinuance of the
Broadway operation upon the employees in the
appropriate unit . The appropriate unit is:
All production and maintenance employees,
including shipping and receiving department
employees and messengers employed by Loren
Service, Inc., at its Broadway plant, exclusive of
office clerical employees, guards, and all supervi-
sors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce the employees in the appropri-
ate unit in the exercise of their right to self-organiza-
tion, to form, join, or assist unions, to bargain
collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from such activities, except to the extent
that such rights may be affected by an agreement
requiring union membership as a condition of employ-
ment, as authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended by the Labor
Management Reporting and Disclosure Act of 1969.
WE WILL OFFER to, and, upon request, bargain
collectively with District 65, Distributive Workers of
America, as exclusive representative of all employees in
the appropriate unit as to the effects of the closing of
the Broadway operation, and shall reduce to writing
any agreement reached as a result of such bargaining.
WE WILL OFFER, together with Draber Press, Inc., to
the employees named below immediate and full
reinstatement to their former or substantially equiva-
lent positions without prejudice to any seniority or
other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a
result of the discrimination against them.
Antonio Collazo Verley Swalvy
Hiawatha Patterson Luis Ruiz
Nelson Ponce Rubin Mendez
Jorge Baez
LOREN SERVICE, INC.
(Employer)
Dated By
771
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any question concerning this notice or compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building, 26 Federal Plaza, New York, New
York 10007, Telephone 212-264-0306.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer, together with Loren Service, Inc., the
employees named below immediate and full reinstate-
ment to their former or substantially equivalent
positions without prejudice to any seniority or other
rights and services previously enjoyed, and make them
whole for any loss of pay suffered as the result of the
discrimination against them.
Antonio Collazo Verley Swalvy
Hiawatha Patterson Luis Ruiz
Nelson Ponce Rubin Mendez
Jorge Baez
DRABER PRESS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defanced by
anyone.
This notice must remained posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building, 26 Federal Plaza, New York, New
York 10007, 212-264-0306.