Miami Foundry Corp.

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 2 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miami Foundry Corporation and International
Molders and Allied Workers Union, Local
Union No. 45, AFL-CIO
Robert Tormey and International Molders and
Allied Workers Union, Local Union No. 45,
AFL-CIO
Ravenna Industries, Inc. and International Molders
and Allied Workers Union, Local Union No. 45,
AFL-CIO
A. C. Williams Company and International Molders
and Allied Workers Union, Local Union No. 45,
AFL-CIO. Cases 9-CA-12745-1, 9-CA-
12745-2, 9-CA-12745-3, and 9-CA-12745-4
September 9, 1980
DECISION AND ORDER
On March 20, 1980, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondents A. C.
Williams Company, Ravenna Industries, Inc., and
Miami Foundry Corporation filed exceptions and a
supporting brief; the General Counsel filed limited
exceptions and a supporting brief; Respondent
Robert Tormey filed an answering brief to the
General Counsel's limited exceptions; and the
Charging Party filed a memorandum in opposition
to Respondents' exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs,
memorandum, and motions,' and has decided to
affirm the rulings, findings 2, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein. 3
The General Counsel filed a motion to strike Respondent Tormey's
brief in opposition in its entirety, contending it contains matters which
are outside the record and, therefore, not in conformity with the Board's
Rules and Regulations, Series 8, as amended, Sec. 102.46(c). The General
Counsel further moved that the Board take appropriate disciplinary
action against Respondent Tormey's counsel for alleged unprofessional
and unseemly remarks which the General Counsel construes as a personal
attack on the Regional Attorney for Region 9 and counsel for the Gener-
al Counsel. Those motions are hereby denied. In the alternative, the Gen-
eral Counsel moved that the Board strike the remarks complained of
from Respondent Tormey's brief. Since those remarks contain material
outside the record, and are not relevant to the exceptions taken by the
General Counsel, we shall grant the General Counsel's alternative
motion. [As clarified by the Board's Order Denying Motion, issued
March 24, 1981.]
2 Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
I We find the breadth of the Administrative Law Judge's recommend-
ed Order which requires Respondents to cease and desist from "in any
other manner" interfering with, restraining, or coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act to be inap-
propriate. We have considered this case in light of the standards set forth
in Hickmot Foods, Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is inappropriate inasmuch as it has not been
shown that Respondents have a proclivity to violate the Act or have en-
252 NLRB No. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respond-
ents, Miami Foundry Corporation, Miamisburg,
Ohio; Ravenna Industries, Inc., Ravenna, Ohio; and
A. C. Williams Company, Miamisburg, Ohio, their
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(b):
"(b) Offer the bargaining unit employees of
Miami Foundry Corporation, who were terminated
on February 28, 1978, immediate and full reinstate-
ment to their former jobs or, if those positions no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges enjoyed, and make them whole in
the manner set forth in the section entitled 'The
Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
gaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights Ac-
cordingly, we shall modify the recommended Order so as to use the
narrow injunctive language, "in any like or related manner."
We have modified the Administrative Law Judge's recommended
Order to include the full reinstatement language traditionally provided by
the Board. We also modify the proposed notice to conform with the pro-
visions of the recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to recognize and bar-
gain with International Molders and Allied
Workers Union, Local Union No. 45, AFL-
CIO, as the exclusive collective-bargaining
agent of the employees of Miami Foundry
Corporation with respect to rates of pay,
2
MIAMI FOUNDRY CORPORATION
wages, hours of employment, and other terms
and conditions of employment. The appropri-
ate unit is:
All production and maintenance employees
employed by Miami Foundry Corporation in
its plant in Miamisburg, Ohio, excluding the
superintendent, foremen, sub-foremen,
clerks, and guards.
WE WILL NOT refuse to honor the provi-
sions of the July 26, 1977, collective-bargain-
ing agreement between Miami Foundry Cor-
poration and the above-named Union.
WE WILL NOT unilaterally terminate em-
ployees in the bargaining unit described above,
or otherwise unilaterally change the wages,
hours, and working conditions of said employ-
ees, without notification to or consultation or
discussion with their Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL recognize and, upon request, bar-
gain in good faith with the above-named
Union as the exclusive collective-bargaining
agent for our employees in the above-specified
unit in accordance with the provisions of the
July 26, 1977, collective-bargaining agreement
between said Union and Miami Foundry Cor-
poration.
WE WILL offer the bargaining unit employ-
ees of Miami Foundry Corporation, who were
terminated on February 28, 1978, immediate
and full reinstatement to their former jobs or,
if such positions no longer exist, to substantial-
ly equivalent positions, without prejudice to
their seniority or other rights and privileges
previously enjoyed, and WE WILL make them
whole for any loss of pay they may have suf-
fered as a result of their unlawful termination,
plus interest.
MIAMI FOUNDRY CORPORATION; RA-
VENNA INDUSTRIES, INC.; AND A. C.
WILLIAMS COMPANY
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge:
This consolidated proceeding was heard before me in
Dayton, Ohio, on February 12-14, 1979, based on
charges filed July 12, 1978,' by the International Mold-
ers and Allied Workers Union, Local Union No. 45,
' All dates are 1978, unless otherwise specified.
AFL-CIO.2 The consolidated complaint, issued August
25, alleges violations of Section 8(a)(l), (3), and (5) of
the Act in that on or about February 28 Respondents,
Miami Foundry Corporation, Robert Tormey, Ravenna
Industries, Inc., and A. C. Williams Company, unilateral-
ly terminated all of Miami Foundry Corporation's em-
ployees, and ceased honoring the terms and provisions of
Miami Foundry Corporation's collective-bargaining
agreement with the Union. Moreover, the complaint
seeks to hold Robert Tormey, the former owner and
president of Miami Foundry Corporation, personally
liable for the unfair labor practices alleged. Respondents'
answers deny the allegations of unfair labor practices al-
leged in the complaint.
Upon the entire record in the case, including my con-
sideration of the briefs and observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Miami Foundry Corporations is an Ohio corporation,
and at all times material herein engaged in the operation
of a foundry in Miamisburg, Ohio. During the 12-month
period preceding the issuance of the complaint in this
matter, a representative period, Miami purchased and re-
ceived goods valued in excess of $50,000, which were
shipped to its Miamisburg, Ohio, facility directly from
points outside the State of Ohio.
Ravenna Industries, Inc.4 is an Ohio corporation en-
gaged in the operation of a foundry at its facility in Ra-
venna, Ohio. During the past 12 months, a representative
period, Ravenna purchased and received goods valued in
excess of $50,000 at its Ravenna, Ohio, facility directly
from points outside the State of Ohio.
A. C. Williams Company,s is an Ohio corporation
whose operating division is Ravenna, and which owns 59
percent of the outstanding and issued shares of Miami.
During the 12-month period prior to the issuance of the
complaint in this matter, a representative period, A. C.
Williams purchased and received goods valued in excess
of $50,000, which were shipped to its facilities in Miamis-
burg, and Ravenna, Ohio, directly from points outside
the State of Ohio.
Robert Tormey, 6 president of Miami and sole corpo-
rate stock owner thereof until on or about March 9, and
together with A. C. Williams, holder of the corporate
class A common stock of Miami, is, for reasons set forth
fully below, an agent of Respondents in the operation of
its foundry at Miamisburg, Ohio.
Respondents Miami, Ravenna, and A. C. Williams are,
and, at all times material herein, have been, for reasons
set forth fully below, corporations operated as a single
integrated enterprise with common ownership, manage-
ment, supervision, facilities, and centralized control of
2 Hereafter sometimes referred to as the Union or the Charging Party.
3 Hereafter referred to as Miami.
4 Hereafter referred to as Ravenna.
b Hereafter referred to as A. C Williams.
6 Hereafter referred to as Tormey.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor relations, and as such constitute a single or joint
employer of Miami's employees.
At all times material herein, Respondents are, and
have been, for reasons detailed fully below, an employer
or an agent of an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce as defined in
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
International Molders and Allied Workers Union,
Local Union No. 45, AFL-CIO, the Union and Charg-
ing Party herein, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
1. Did Miami continue to operate as a corporation
after February 28, and are Ravenna and A. C. Williams
alter egos of Miami, or successors to Miami, for the pur-
poses of this proceeding?
2. Under the circumstances presented, did Miami have
a continuing obligation to honor its collective-bargaining
agreement with the Union?
3. Did Respondents unlawfully terminate and refuse to
reinstate Miami employees represented by the Union?
4. If unfair labor practices were committed by Miami,
is Robert Tormey personally liable for those which oc-
curred while he occupied the position of president?
5. Does Robert Tormey's filing of a Chapter XI peti-
tion for an arrangement in bankruptcy have any effect on
this proceeding?
B. The Facts
The employees of Miami Foundry Corporation have
been represented for about 30 years by Local No. 45.
The current collective-bargaining agreement runs from
July 26, 1977, to July 17, 1980. Robert Tormey pur-
chased Miami, a long-established Miamisburg, Ohio,
foundry, in the mid seventies; and became its president
and only shareholder. At the outset of contract negotia-
tions in May or June 1977, Tormey told the Union's rep-
resentatives that because of the poor financial condition
of the Company any demand for wage increases by the
Union would force him to close the plant. The result of
these discussions, in the context of the Company's poor
financial condition, was a June 30, 1977, agreement for
an extension of the existing contract. Ultimately, the cur-
rent collective-bargaining agreement was executed in
September or October 1977, retroactively, following res-
olution of the main issue concerning increased contribu-
tions to the Union's pension fund by substituting an
equivalent wage increase for the proposed employer con-
tributions.
The existence of a prospective purchaser for the
foundry operation was first revealed to the Union by
Tormey at a January grievance meeting attended by
Tormey, General Foundry Manager Cliff Sorenson, In-
ternational Vice President Oren Williams, Chief Commit-
teeman Foster Vaughn, and Assistant Committeeman
Curtis Brooks. Tormey named A. C. Williams Company
as the interested party. He stated that prospects for the
sale "looked real good," and that the piecework provi-
sion of the labor agreement was the only problem area
which A. C. Williams had raised. However, at another
grievance meeting between the same parties in February,
Tormey stated that the deal was off and Miami would
close in March since Tormey could not meet the Compa-
ny's obligations to the Ohio Workmen's Compensation
Fund. Thereafter, on or about February 20, Tormey and
Foster Vaughn again discussed the Company's financial
condition. In response to Vaughn's expression of employ-
ee concerns with respect to their pensions, vacations, and
holiday pay, Tormey answered that Vaughn should not
worry about it because "I'd pay that out of my pocket if
I had to but we've still got a little over a week and I
might even get a buyer yet or I might get a partner."
The discussion ended with Tormey agreeing to meet
with Vaughn before the end of the week, since Vaughn
was to leave on vacation February 24. On or about that
date, Union Steward Curtis Brooks learned from Tormey
that the plant was closing on February 28, at which time
the employees would be laid off. Tormey stated that
there were still people looking at the business and that if
he succeeded in obtaining the money he would start up
again in I or 2 months, and the employees could come
back. On February 28 all employees received termination
notices from Tormey.7
According to credited testimony by Curtis Brooks,
Brooks was among a group of employees summoned to
the plant on or about March 3 or 4, and introduced by
Tormey to an unidentified person who announced that
henceforth their company would operate the plant. The
speaker further stated that starting wages would be $4.25
per hour, and that molding would be on piecework. He
said that insurance would be provided, but that there
would be no union and no pension plan. On March 7
Brooks returned to the plant and reminded Foreman
James Ayers that hiring was supposed to be in accord-
ance with the contract. Ayers responded that there was
no union, but offered Brooks employment the following
day, which was accepted. Employees Brooks, Riley, and
Johnson spent the day lining the furnace, for which
Brooks was paid $100 in the form of a check signed by
Tormey. During the course of the day Brooks met
Ronald Cole, the industrial relations director for A. C.
Williams Company who was present on behalf of Raven-
na Industries, A. C. Williams' manufacturing division.
Cole, who had been assigned by A. C. Williams' presi-
dent, Robert McCoy, to review personnel matters at
Miami prior to the acquisition of control, had decided to
retain Supervisors Ayers and Carrol and to offer six
Miami workers employment. Brooks asked Cole if the
Company intended to recognize the Union, and Cole re-
plied that Ravenna did not have a union, was not hiring
a union, and since they paid their men well without a
union they did not need one. Cole said they were hiring
through the Ohio Bureau of Employment Services. Also
on that same day, Cole told Foster Vaughn that Ravenna
did not want a contract or a union, but might hire some
I Tormey neither testified nor attended the hearing.
4
MIAMI FOUNDRY CORPORATION
of Miami's employees. 8 As he was leaving Cole's office,
Vaughn encountered Robert Tormey, arriving. In re-
sponse to Vaughn's question concerning the vacation and
holiday pay, Tormey answered that he would pay the
men for their vacations when he sold the last batch of
castings at the end of March.
Miami transferred 59 percent of its outstanding stock
to A. C. Williams, with an option to purchase the re-
maining 41 percent, on or about March 9. Since March 9
Tormey has not been an officer or director of Miami,
and has not voted any shares of stock. In accordance
with the manufacturing contract between Miami and Ra-
venna Industries, Respondents reopened the Miami plant
on March 10. On March 16 the Union's district repre-
sentative, Lloyd Nolan, Foster Vaughn, and Curtis
Brooks, asked Ravenna Industries' General Plant Man-
ager Robert Middlestead ". . . if he was going to assume
our labor agreement." Middlestead refused to recognize
the Union. On March 28, without knowing of the details
of the arrangement between Miami and Williams, Nolan
wrote to Robert Tormey seeking severance pay for the
unit employees and bargaining about their termination.
On that date Foster Vaughn also filed a grievance for
the employees' vacation and holiday pay. These matters
resulted in a meeting between Nolan, Vaughn, Brooks,
and Attorney Charles Iden, counsel for Miami, Revenna,
and A. C. Williams, on May 19 in Columbus, Ohio. At
that time Nolan demanded that Miami recognize and bar-
gain with the Union as the representative of the employ-
ees, which Iden rejected while offering only to pay them
for their vacations. 9
After the meeting with Iden, no further contract be-
tween Miami and the Union occurred. The foundry con-
tinued to operate under Miami's name, pursuant to its
contract with Ravenna, until Miami filed a petition for
reorganization pursuant to Chapter XI of the Bankruptcy
Act, on January 12, 1979, which was pending at the time
of the hearing. At the outset of the hearing, Respond-
ents' motion to stay the hearing of this matter pending
final disposition of the Chapter XI proceeding was
denied on the ground of the Board's exclusive jurisdic-
tion to hear and decide unfair labor practice cases under
the Act. Since the close of the hearing in this matter, no
motions to supplement the record, by means of further
documentation relating to the current status of the chap-
ter XI action, have been received by the undersigned. In
his brief, counsel for the corporate Respondents has re-
newed his motion.
C. Discussion and Concluding Findings
Respondents contend that the facts concerning the
transaction between Miami and A. C. Williams does not
establish that Respondent operates as a single integrated
enterprise or alter egos within the scope of established
Board precedent. Rather, Respondents urge that the evi-
dence shows A. C. Williams to be a successor to Miami,
' To the extent that Cole's testimony differs from the mutually cor-
roborative testimony of Brooks and Vaughn, Brooks and Vaughn are
credited.
9 Iden was an evasive witness. I find his testimony, that the Union's
representatives made no such demand, but merely lounged on the motel
bed with their faces in their hands, is not credible.
and as such has complied with the law relating to the ob-
ligation of a successor to its predecessor's employees,
and their collective-bargaining agent. The General Coun-
sel contends, however, that the transaction between
Miami and A. C. Williams was simply a stock transfer,
not a sale, and since Miami continued to operate as a
single integrated enterprise with A. C. Williams and Ra-
venna, its alter egos, Respondents have violated Section
8(a)(5) and (1) of the Act by unilaterally terminating col-
lective-bargaining agreement and the employees. In the
alternative, the General Counsel also urges that in the
event it is found that A. C. Williams became Miami's
successor, Respondents failed to fulfill their obligations
under the Act to the employees and the Union with re-
spect to notice and bargaining concerning the effects of
the transaction on the bargaining unit employees. In my
view, it is unnecessary to decide this latter issue, since, in
agreement with the General Counsel's primary conten-
tion, I find that A. C. Williams' acquisition of Miami
stock resulted in a single integrated enterprise.
It is well settled that a change in stock ownership does
not relieve a company which continues to exist from its
obligations under the Act. The Board has also long held
that an accurate assessment of whether or not a series of
business organizations constitutes a single integrated en-
terprise is dependent on an evaluation of four indicators:
interrelation of operations, common management,
common ownership or financial control, and centralized
control of labor relations. The Board has further expli-
cated that common control of labor relations policies is a
critical factor, and that common ownership is not deter-
minative where common control is not shown. Western
Union Corporation Teleprocessing Industries, Inc.; Western
Union Data Services Company, Inc.; Western Union Realty
Corporation; Gift America, Inc.; The Western Union Tele-
graph Company, 224 NLRB 274, 276 (1976); Soule Glass
and Glazing Co., et al, 246 NLRB No. 135 (1979). The
record shows that on behalf of A. C. Williams, Ravenna
leased Miami's premises, vehicles, equipment, and tools,
and that thereafter, pursuant to their manufacturing
agreement, all of Miami's manufacturing needs were to
be met by Ravenna until Miami was in financial condi-
tion to resume operations. All three Respondent Corpo-
rations have a great degree of common management, of-
ficers, and directors. Centralized control of labor rela-
tions is revealed in detail by the testimony of Industrial
Relations Director Ronald Cole concerning his activities
at the Miami plant on behalf of A. C. Williams' presi-
dent, Robert E. McCoy. Finally, the record also contains
considerable evidence presented by both sides with re-
spect to the interrelation of operations. Ravenna, the
manufacturing division of A. C. Williams, operates the
Miami Foundry on the same premises where Miami has
always operated. Miami's telephone listing has been
maintained and is still utilized. Miami signs still appear
on the plant. Although Ravenna has some customers
who were not formerly serviced by Miami, other cus-
tomers are the same, and there is no evidence that under
the present arrangement Ravenna and Miami are compet-
itors. Moreover, foundry employees work at jobs which
are, for all practical purposes, the same as those occupied
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the terminated Miami employees prior to February
28; producing castings from molds made by the use of
patterns, in substantially the same system of production,
utilizing essentially the same materials, equipment, job
classifications, and methods. In sum, the record consid-
ered as a whole shows that Miami continues to operate
as an iron foundry through Ravenna, with management,
finances, ownership, and labor relation policies resting in
the hands of A. C. Williams. Respondents' explanation
that it was necessary for Miami Foundry Corporation to
remain in existence and for Tormey to transfer only 59
percent of his stock to A. C. Williams, in order that A.
C. Williams might reap the benefits of a tax loss under
the Internal Revenue Code, conceding a critical point in
the instant case, does not excuse Respondents' legal re-
sponsibilities under the National Labor Relations Act
and case law interpreting that statute. The fact that Re-
spondents, after due consideration of the legal conse-
quences, made a choice in favor of their financial inter-
ests cannot now be utilized as a defense to violations of
the Act. I find that Respondents are a single integrated
enterprise which at all times material herein had and
have a continuing obligation to honor the existing collec-
tive-bargaining agreement with the Union herein, and by
abrogating that agreement, refusing to recognize, and
meet with the Union with respect to bargaining unit em-
ployees' wages, rates of pay, hours, and working condi-
tions, and by unilaterally abolishing the jobs of unit em-
ployees and terminating their employment on February
28, without notification or bargaining, Respondents have
violated Section 8(a)(l) and (5) of the Act.
However, I further find that Respondents did not vio-
late Section 8(a)(3) of the Act as alleged in the complaint
since, as the General Counsel concedes, there is no evi-
dence in the record that Miami, through Tormey or
anyone else, was motivated at any time by antiunion con-
siderations to engage in the course of conduct described
above. To the contrary, Miami's past labor relations his-
tory had been one of amicability and cooperation, and al-
though it appears that during the final stages of Tor-
mey's negotiations with A. C. Williams, he misled the
Union concerning the end result, the evidence in the
record clearly shows that all Respondents were motivat-
ed by legitimate financial considerations, rather than a
desire to construct a scenario specifically for the purpose
of ridding themselves of prounion employees and their
bargaining representative. The validity of this conclusion
is not affected, in my view, by the statements of Ron
Cole and other management officials following the com-
pletion of the transaction to the effect that they did not
have, want, or need a union. Thus, it is clear that al-
though Respondents may have been happy that one of
the results of the consummation of the March 9 transac-
tion was the elimination of the Union, it is plain from the
record as a whole that this was not an objective of the
transaction. For one example, it seems highly unlikely
that the union committeemen would have been offered
jobs after the February 28 layoff, had Respondents been
motivated by antiunion animus.
At the hearing in this matter counsel for Robert
Tormey moved for dismissal of those allegations in the
complaint naming Tormey as an individual respondent.
While denying that Tormey engaged in any conduct vio-
lative of the Act, counsel for Tormey argued, basically,
that Tormey's conduct associated with the substantive al-
legations of the complaint was performed as an agent or
supervisor of Miami Foundry Corporation, which must
bear the responsibility for Tormey's actions. Counsel for
Tormey moved, immediately prior to the conclusion of
the hearing, that Tormey be dismissed from the com-
plaint as an individual respondent. This motion was
denied by me with leave to renew the motion in coun-
sel's brief. He has done so. Finding merit in the motion,
it is granted. As found and discussed more fully above,
none of Respondents named in the complaint formulated,
pursued, or concluded the transactions described herein
for a discriminatory purpose. The record shows that
their motives were purely economic. Having found that
Miami, A. C. Williams, and Ravenna, are a single inte-
grated enterprise for the purposes of this proceeding, an
adequate means of remedying the violations found exists
without the necessity of sweeping aside the protection
that the law otherwise affords to directors, officers, man-
agement, and stockholders, of a corporation. Further-
more, the evidence clearly demonstrates that Tormey has
not served or acted in any capacity connected with
Miami Foundry since March 9, 1978, the date on which
the corporate transaction occurred that created the rela-
tionship between Miami, Ravenna, and A. C. Williams.
Therefore, Tormey is not individually an "alter ego" of
the resulting enterprise. Nor is there any evidence that
Tormey sought to hide behind the corporate veil, or any
explanation given by the General Counsel as to why the
purposes of the Act may not be effectuated by a remedy
directed toward Respondents themselves, where, as here,
they are found to be a single integrated enterprise. In
fact, when the undersigned questioned counsel for the
General Counsel concerning why Tormey was named as
an individual respondent rather than as a supervisor or
agent, he conceded "Well, your honor, I must admit I've
had a difficult time reconciling that, the entire notion of
Mr. Tormey being an individual respondent, in my own
mind .... " Although counsel for the General Counsel
continued to ably present the General Counsel's official
position with respect to this issue in as favorable a light
as is possible under the circumstances presented, I find
his initial reservations to have a more logical relationship
to the facts than his subsequent argument which centers
around Tormey's oral assurances to the union committee-
men that he would personally pay for pensions, vaca-
tions, and holidays, if necessary. However, the issue here
is not whether Tormey is personally liable as an individ-
ual or guarantor under ordinary principles of contract
law, a matter which conceivably might be determined by
a civil suit in another forum; but whether there are suffi-
cient reasons for making Robert Tormey individually re-
sponsible under the Act as a respondent for unfair labor
practices, which may adequately be remedied within the
corporate structure. I find that there are not, and conse-
quently Tormey's motion to be dismissed, as an individu-
al respondent, is granted.
As noted earlier, at the outset of the hearing in this
matter, counsel for Respondents moved to stay the pro-
MIAMI FOUNDRY CORPORATION
ceedings pending final disposition of a petition for an ar-
rangement under Chapter XI of the Bankruptcy Act,
which was filed by Miami on January 12, 1979, and re-
mained pending at the time of the hearing. The motion
was denied by the undersigned on the ground of the
Board's exclusive jurisdiction to hear and decide unfair
labor practice cases under the Act. In his brief counsel
for Respondents has renewed his motion. Since the close
of the hearing in this matter, no motions to supplement
the record by means of further official documentation re-
lating to the current status of the Chapter XI action have
been received. Research by Respondents' Counsel has
failed to reveal any Board cases which would support his
position. On the other hand ample authority exists in sup-
port of the proposition that the Board not only has juris-
diction and authority to entertain an unfair labor practice
case in these circumstances, but also may process the
case to its final disposition. Likewise, it has been held
that a debtor-in-possession is obligated to bargain in good
faith with the representative of his employees. See M &
M Transporation Co. Inc., Employer and Debtor-in-Posses-
sion, a Subsidiary of Qualpeco Services, Inc., 239 NLRB 73
(1978), and cases cited therein. Respondents' renewed
motion is denied.
CONCLUSIONS OF LAW
1. Robert Tormey is not an individual respondent in
this proceeding, and as such is not individually responsi-
ble for any of the violations of the Act committed by
Respondent Corporations or their agents.
2. Miami Foundry Corporation; Ravenna Industries,
Inc.; and A. C. Williams Company, Respondent, are a
single integrated enterprise engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
3. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. By terminating the collective-bargaining agreement
between Miami Foundry Corporation and the Union, ef-
fective July 26, 1977, to July 17, 1980; by refusing to rec-
ognize, meet, and bargain with the Union as the exclu-
sive representative of Miami Foundry Corporation's bar-
gaining unit employees with respect to wages, rates of
pay, hours of employment, and other terms and condi-
tions of employment; and by unilaterally terminating bar-
gaining unit employees of Miami Foundry Corporation
on or about February 28, 1978, and thereafter failing and
refusing to reinstate said employees to their former or
substantially equivalent positions of employment; Re-
spondents have violated Section 8(a)(1) and (5) of the
Act. The appropriate collective-bargaining unit is:
All production and maintenance employees em-
ployed by Miami Foundry Corporation in its plant
in Miamisburg, Ohio, excluding the superintendent,
foremen, sub-foremen, clerks, and guards.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Act has not been violated in any respects other
than those specifically found.
THE REMEDY
Having found that Respondents have engaged in and
are engaging in certain unfair labor practices, I find it
necessary to order that Respondents cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Having found that Re-
spondents have refused to bargain collectively in good
faith with the Union as the exclusive representative of
the employees in the appropriate unit described herein, in
certain respects specifically listed in the section of this
Decision entitled "Conclusions of Law," I shall order
Respondents to recognize and, upon request, bargain
with the Union as the exclusive representative of the em-
ployees in the appropriate unit in accordance with all of
the terms and provisions of the July 26, 1977, collective-
bargaining agreement between Miami Foundry Corpora-
tion and the Union.
Having found that Miami Foundry Corporation unilat-
erally terminated its bargaining unit employees on or
about February 28, 1978, without notification to, or con-
sultation or discussion with, the Union in violation of
Section 8(a)(1) and (5) of the Act, I find it necessary to
order that Respondents offer those employees immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a result of
their unlawful termination, by paying them backpay
computed on a quarterly basis with interest as prescribed
in F. W Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977),t ° from
February 28, 1978, until the date a proper offer of rein-
statement is made.
Because of the scope of the unfair labor practices
herein, and because the character of those unfair labor
practices have had the effect of destroying the collec-
tive-bargaining relationship between Miami and the
Union, thereby denying the right of union representation
to employees, conduct which strikes at the very heart of
the Act, I find a broad cease-and-desist order is neces-
sary. In addition, Respondents will be ordered to post an
appropriate notice encompassing all violations commit-
ted.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER l
The The Respondents, Miami Foundry Corporation,
Miamisburg, Ohio; Ravenna Industries, Inc., Ravenna,
Ohio; and A. C. Williams Company, Miamisburg, Ohio,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
'0 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
" 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 recommened 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.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to recognize, meet, and bargain with In-
ternational Molders and Allied Workers Union, Local
Union No. 45, AFL-CIO, as the exclusive collective-bar-
gaining representative of the employees of Miami Found-
ry Corporation in the appropriate unit with respect to
wages, rates of pay, hours of employment and other
terms and conditions of employment, and by refusing to
honor the terms and provisions of the July 26, 1977, col-
lective-bargaining agreement between Miami Foundry
Corporation and the Union.
(b) Unilaterally changing the wages, rates of pay,
hours of employment and other terms and conditions of
employment of bargaining unit employees of Miami
Foundry Corporation, and unilaterally terminating their
employment on February 28, 1978, without notification
to, consultation, or discussion with the Union.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, except to the extent that such
rights may be affected by an agreement requiring such
membership in a labor organization as authorized by Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Recognize and, upon request, bargain with Interna-
tional Molders and Allied Workers Union, Local Union
No. 45, AFL-CIO, as the exclusive collective-bargaining
agent of the employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment as
embodied in the provisions of the July 26, 1977, collec-
tive-bargaining agreement between Miami Foundry Cor-
poration and the Union.
(b) Offer the bargaining unit employees of Miami
Foundry Corporation who were terminated on February
28, 1978, immediate and full reinstatement to their
former or substantially equivalent positions, without prej-
udice to their seniority or other rights and privileges,
and make them whole in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(d) Post at Respondents' Miamisburg, Ohio, facility
copies of the attached notice marked "Appendix."' 2
Copies of such notice, on forms provided by the Region-
al Director for Region 9, shall, after being duly signed
by a representative of Respondents, be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondents to insure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
The complaint is dismissed in all respects other than
those specifically found herein.
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
8