NYP Acquisition Corp.

National Labor Relations Board - Board Decisions

Oct 31, 2000

332 N.L.R.B. 1041 (N.L.R.B. 2000)

NYP ACQUISITION CORP. 1041
NYP Acquisition Corp. and its alter ego NYP Hold-
ings, Inc. and Newspaper Guild of New York,
Local No. 3 of The Newspaper Guild, AFL–CIO.
Case 2–CA–26935
October 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 6, 1996, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
General Counsel, the Respondents, and the Charging
Party filed exceptions, supporting briefs, and answering
briefs, the Respondents filed a brief in support of the
judge’s decision, and the Respondents and the Charging
Party filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order.
The complaint alleges that the Respondents, NYP Ac-
quisition Corp. (Acquisition) and NYP Holdings, Inc.
(Holdings) are alter egos, a single employer, and succes-
sors to The New York Post Co., Inc. (Post Co.). The
complaint also alleges that the Respondents violated Sec-
tion 8(a)(3) of the Act by terminating and refusing to
reinstate striking employees represented by the Charging
Party Newspaper Guild (the Guild). The complaint fur-
ther alleges that the Respondents violated Section 8(a)(5)
by withdrawing recognition from and refusing to bargain
with the Guild, and by unilaterally changing the terms
and conditions of employment of Guild employees.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In considering the General Counsel’s contention that Respon-
dents NYP Acquisition Corp. and NYP Holdings, Inc., together with
News America Publishing, Inc. (NAPI), constitute a “single integrated
employer,” the judge inadvertently stated that the complaint alleges
only that Respondents NYP Acquisition Corp. and NYP Holdings, Inc.
are a single employer. In fact, the complaint alleges that the Respon-
dents are alter egos as well as a single employer.
In the course of the same discussion, the judge declined to ana-
lyze the relationship between the concepts of alter ego and single em-
ployer found in Johnstown Corp., 313 NLRB 170, 172 (1993), re-
manded sub nom. Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir. 1994).
We note that after the judge issued her decision, the Board issued its
decision on remand from the court of appeals in Stardyne. The Board
held that alter ego is not a subset of the single employer concept, but
rather that alter ego and single employer are related, but separate, con-
cepts. Johnstown Corp., 322 NLRB 818 (1997). We find the single-
employer analysis inapplicable here since the instant case does not
involve two ongoing businesses coordinated by a common master.
NLRB v. Hospital San Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 1994).
The judge found that the Respondents were alter egos,
but that Acquisition was not a successor to Post Co.; that
therefore Holdings also did not have any duty to bargain
with the Guild deriving from its status as an alter ego of
Acquisition; and that Holdings had a right to hire a new
work force when it purchased the Post Co. assets and did
not have a duty to reinstate the strikers. Accordingly, the
judge found that the Respondents did not commit the
violations alleged and recommended that the complaint
be dismissed. We agree with the judge’s ultimate con-
clusion that the complaint should be dismissed. Unlike
the judge, however, we find that Acquisition and Hold-
ings are not alter egos; consequently, we find it unneces-
sary to pass on whether Acquisition was a successor to
the Post.
Facts
The relevant facts are discussed in detail in the judge's
decision. In essence, they are as follows. The New York
Post is a daily newspaper in New York City. The Guild
represents a bargaining unit of employees in the Post’s
editorial, advertising, circulation, publication, and busi-
ness departments.
In early 1993,2 the Post was at the brink of collapse. It
was losing money at an average rate of $300,000 a week.
Post Co., which owned the Post, filed for bankruptcy on
March 15.
At that point, Rupert Murdoch, the owner of a world-
wide multimedia empire, appeared on the scene.3 Mur-
doch was interested in purchasing the Post, and incorpo-
rated Acquisition on March 25 as a subsidiary of one of
his other holdings, News America Publishing, Inc.
(NAPI), to manage the paper while the possibility of pur-
chasing it was explored. Acquisition was also to supply
financing to the debtor in possession4 (Post Co.), and was
envisioned to be a possible purchaser of the Post.
Murdoch's purchase of the Post was not a foregone
conclusion, however. To begin with, there was a legal
2 Unless otherwise noted, all dates refer to 1993.
3 Murdoch’s corporate holdings are described more fully in the
judge’s decision. For simplicity's sake, we shall refer to them collec-
tively as “Murdoch,” since he exercises de facto control over all of
them.
4 Under Federal law, when a debtor files a bankruptcy petition, it be-
comes a debtor in possession by operation of law. A debtor in posses-
sion is a fiduciary that holds the estate’s assets and operates its busi-
nesses for the benefit of creditors, subject to the supervision of the
bankruptcy court. Collier Handbook for Trustees and Debtors in Pos-
session (1989), par. 20.05, cited in Cone-Heiden Corp., 305 NLRB
1045 fn. 4 (1991).
332 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
obstacle that had to be surmounted before any deal could
be consummated. NAPI owned television station
WNYW in New York City, and because the cross-
ownership rules of the Federal Communications Com-
mission (FCC) prohibited NAPI from owning both a
television station and a major newspaper in the same
market, NAPI could not purchase the Post without first
persuading the FCC to waive the cross-ownership rules.5
In addition, economies had to be achieved in the opera-
tion of the paper if a purchase was to make sense finan-
cially. Finally, any purchase agreement would have to
be approved by the bankruptcy court.
In late March, NAPI asked the bankruptcy court judge
to approve documents under which Acquisitions would
manage and finance the Post. On March 29, the bank-
ruptcy court judge approved those documents. They
included a management agreement, which allowed Ac-
quisition to manage the Post; a loan agreement under
which Acquisition would provide debtor in possession
financing; and a security agreement. The management
agreement explicitly contemplated that Acquisition could
seek the approval of the bankruptcy court to purchase the
paper’s assets. It also provided that Acquisition would
have “full business and editorial control.” The agree-
ment also provided that Acquisition had the authority to
hire and fire any employee and (subject to the relevant
provisions of the bankruptcy code, prior consultation
with Post Co., and the approval of the bankruptcy court)
to modify, terminate, or renegotiate any collective-
bargaining agreement. The agreement further stated that
Acquisition would use its best efforts to obtain a waiver
of the FCC's cross-ownership rules allowing Acquisition
to acquire the business.
Acquisition began managing the Post on March 29.
As manager, it exercised complete editorial, administra-
tive, and financial control over the paper. All employees,
including the Guild employees, continued to work under
the existing terms and conditions of employment as set
forth in their respective collective-bargaining agree-
ments. However, NAPI announced that, before it would
buy the Post, it would have to obtain significant conces-
sions from the unions representing all of the paper’s em-
ployees, including the Guild.
Soon after Acquisition assumed control of the Post,
NAPI began negotiating with the unions for new con-
tracts containing the desired concessions. Initially, pro-
gress in negotiations proved elusive, and Acquisition
shut the paper down for 2 days in July. Negotiations
soon resumed, however, and NAPI shortly reached

5 Indeed, NAPI had owned the Post from 1976 through 1988, but
sold it because of the cross-ownership rules.
agreements in principle with 10 of the unions. However,
the negotiations with the Guild never bore fruit, and no
agreement was ever reached.
NAPI was seeking concessions from the Guild in sev-
eral areas, but there were two issues that presented what
proved to be insolvable problems. First, NAPI wanted a
probationary period during which management could
evaluate all Guild employees and terminate any em-
ployee without recourse to the grievance procedure (or
any third party review) and without severance pay. Sec-
ond, NAPI did not want to be obligated to honor the sev-
erance pay obligations that had arisen under the previous
owners. Those obligations were potentially significant,
amounting to some $7 million for all Guild employees.
NAPI was adamant on achieving those aims. The Guild
was equally adamant in refusing to agree to any contract
that did not provide for third party review of any dis-
missal action or that did not continue the existing sever-
ance pay obligations. Although the parties bargained in
good faith from May through September, they never
reached agreement on those two subjects.
Meanwhile, on June 29, the FCC granted the crucial
waiver of its cross-ownership rules. And, as noted
above, NAPI reached agreements in principle with the
unions other than the Guild by midsummer. Murdoch’s
purchase of the Post now appeared to be a more plausible
outcome. However, as manager of the paper, Acquisi-
tion had to make financial reports to other parties, includ-
ing the committee that represented Post Co.’s creditors.
NAPI decided that the purchase should be made by an
entity that did not have Acquisition’s reporting responsi-
bilities and whose records were not subject to scrutiny by
third parties. Therefore, on July 12, NAPI incorporated a
new subsidiary, Holdings, to purchase the Post. The of-
ficers and directors of Holdings were almost identical to
those of Acquisition.
Holdings and Post Co. then negotiated an asset pur-
chase agreement under which Holdings would acquire
certain assets and take on certain liabilities of Post Co.
On August 6, a motion was filed in the bankruptcy court
seeking the court’s approval of the asset purchase agree-
ment. On September 14, the bankruptcy court approved
the agreement.
The Guild announced a strike deadline of September
27 at 4 p.m. On that day, before 4 p.m., the negotiators
met again, but neither side changed its position on the
critical issues of evaluations and severance pay. The
NAPI negotiators told the Guild negotiators that Hold-
ings would not go through with the purchase if the Guild
struck and the paper was not published. In a later meet-
ing which included the officers of the other Post unions,
the parties' negotiators reiterated their respective long-
NYP ACQUISITION CORP. 1043
held positions. The Guild’s chief negotiator, Barry Lip-
ton, stated that the Guild employees would never work
without third party review of dismissals during the
evaluation period. The NAPI’s negotiators stated that
Lipton’s statement amounted to a declaration of impasse.
At 4 p.m. on September 27, the Guild established a
picket line outside the Post facility, proclaiming a strike
against the Post. Although the other unions had voted
not to support the strike, members of those unions re-
fused to cross the picket line, and the paper was not pub-
lished on either September 28 or 29. Murdoch and the
Post’s publisher, Patrick Purcell, decided to close the
paper. On September 28 and 29, Lipton asked Purcell if
the parties could resume bargaining in order to end the
strike. Purcell replied each time that it was too late be-
cause Murdoch had decided to close the Post.
Later on September 29, the heads of the other unions
asked Lipton to attempt to persuade the striking Guild
members to return to work, but were unsuccessful. They
then approached Purcell and asked him if he would re-
open the paper if the unions other than the Guild went
back to work. After consulting with Murdoch, Purcell
told the other unions that if their members returned to
work, Holdings would go forward with the purchase and
exercise its right as a new employer to hire a new white-
collar work force. The unions agreed, their members
returned to work on September 30, and the Post resumed
publication. On September 30, Holdings informed the
Guild that if the purchase went through, it would be hir-
ing a new work force, for which it would establish initial
terms and conditions of employment.
On October 1, Holdings bought the assets of the Post
Co. pursuant to the terms of the asset purchase agree-
ment. Holdings signed new collective-bargaining
agreements with the unions other than the Guild, and
their members were hired without having to apply for
employment.
On October 4, the Guild made an unconditional offer
to return to work on behalf of all the striking Guild em-
ployees. Holdings replied on October 5 that it was ac-
cepting applications for employment, and suggested that
any questions concerning the Guild’s offer be directed to
the Post Co., as the employer of the Guild employees.
Holdings required Guild employees to fill out employ-
ment applications. Numerous Guild employees were
hired, but they made up less than a majority of the em-
ployees hired for positions formerly represented by the
Guild. The terms and conditions of employment under
which they were hired were different from those existing
before October 1 and from those in any of NAPI's vari-
ous offers to the Guild during negotiations, including its
final offer. Holdings has not recognized or bargained
with the Guild since October 1.
The Judge’s Decision
The judge rejected the General Counsel’s contention
that Acquisition was a successor to the Post Co. with an
obligation to recognize and bargain with the Guild be-
ginning March 29. The judge relied chiefly on Fremont
Ford Sales,6 which she read as requiring that, before a
prospective purchaser can be found to be a successor
with a bargaining obligation, there must be “a written
contract of sale . . . and a precisely defined interim man-
agement period, during which the manager exercises
effective control in its own name and which will be used
to fulfill mere formalities.” Because she found that nei-
ther of those conditions was met in the case of Acquisi-
tion, the judge found that Acquisition was not a succes-
sor to Post Co. and therefore did not have an obligation
to bargain with the Guild. She also found that, even if
Acquisition did have a bargaining obligation, it did not
violate Section 8(a)(5) by refusing to bargain on Septem-
ber 28 and 29 because the parties were at impasse and the
Guild had not indicated that it was willing to change its
negotiating position.
The judge went on to find that Holdings was a succes-
sor to Post Co. and the alter ego of Acquisition. How-
ever, she found that, as a successor, Holdings had the
right to announce that it would hire a new work force
under new terms and conditions of employment. Having
exercised that right, Holdings would not have a bargain-
ing obligation unless a majority of the employees whom
it hired in the former Guild unit were former Guild-
represented employees.7 As that condition was not met,
the judge found that Holdings did not violate Section
8(a)(5) by failing to recognize the Guild and by unilater-
ally changing terms and conditions of employment.
The judge found that Holdings did not violate Section
8(a)(3) by failing to reinstate the striking Guild employ-
ees after October 4 because those individuals had never
previously been employed by Holdings. She also found
that, although Holdings did not require any employees
other than those represented by the Guild to apply for
jobs, it did not unlawfully discriminate against the strik-
ing Guild employees by requiring them to fill out appli-
cations because, unlike the employees represented by the
other unions, the Guild employees had not agreed with
the NAPI negotiators on new terms to be applied once
the purchase was concluded.

6 289 NLRB 1290 (1988).
7 NLRB v. Burns Security Services, 406 U.S. 272 (1972); Spruce Up
Corp., 209 NLRB 194 (1974), enfd. mem. 529 F.2d 516 (4th Cir.
1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
The Parties’ Exceptions
The General Counsel and the Guild argue that the
judge erred in finding that Acquisition was not a succes-
sor to Post Co. They also contend that she erred in fail-
ing to find the violations alleged in the complaint. Re-
spondents Acquisition and Holdings argue that the judge
erred in finding them to be alter egos. The Respondents
also contend that the strike was unprotected because it
was in violation of a contractual no-strike commitment.
They further argue that the Board is bound by the bank-
ruptcy court's rulings which, the Respondents contend,
preclude a finding that Holdings is obligated to bargain
with the Guild.8
Discussion
1. The Respondents are not alter egos
Contrary to the judge and our dissenting colleague, we
find that the General Counsel has failed to establish that
Holdings and Acquisition are alter egos.
Two enterprises will be found to be alter egos where
they “have substantially identical management, business
purpose, operation, equipment, customers and supervi-
sion as well as ownership.” Advance Electric, 268
NLRB 1001, 1002 (1984), quoting Denzel S. Alkire, 259
NLRB 1323, 1324 (1982), enf. denied 716 F.2d 1014
(4th Cir. 1983). As the Board noted in each of these
cases, it is also relevant to consider whether the alleged
alter ego was created for the purpose of evading bargain-
ing responsibilities. See also Crawford Door Sales Co.,
226 NLRB 1144 (1976).
Here, we find that the evidence is insufficient to dem-
onstrate that Acquisitions and Holdings possess a com-
mon business purpose. Although Acquisition and Hold-
ings both published the newspaper, we find that they did
so with markedly different business purposes.
Acquisition’s primary role was to serve as a manager
of the operations in an attempt to preserve assets by
keeping the operation viable. Of critical importance in
this regard is the context in which Acquisition assumed
control of the Post. The paper was bankrupt and was
losing, on average, some $300,000 per week. It would
have been closed immediately had Murdoch not rescued
it. And once closed, the Post probably could never have
been saved. As the judge found, in a city like New York,
where there are several competing daily papers, one of
those papers cannot cease operations for very long and
expect to resume operations later as a viable entity. That
is because its readers and advertisers will quickly switch

8 Because we find that the Respondents did not violate the Act in
failing to reinstate all of the Guild strikers and by imposing new terms
and conditions of employment, we need not address their affirmative
defenses.
to its competitors, leaving little chance of resuscitating
the paper when it reopens.
There was also considerable uncertainty, especially
when Acquisition began managing the newspaper, but
later as well, over whether Murdoch would ever purchase
the paper.9 Part of that uncertainty arose because it was
unclear whether the unions would agree to new employ-
ment terms. In fact, NAPI had made so little progress in
negotiations with the unions by early July that it closed
the paper for 2 days. Nor was it assured in March that
the FCC would waive its cross-ownership rules to enable
Murdoch to buy the Post or that NAPI and Post Co.
could agree on the terms of an asset purchase agreement
that the bankruptcy court would approve. Thus, at the
time Acquisition took over the management of the Post,
it was unclear whether it, or any Murdoch subsidiary,
would ever own the Post.
In contrast to Acquisition’s managerial role, Holdings’
role was solely that of the purchaser. That is, after Hold-
ings was selected as the purchaser, and after it was ap-
proved by the FCC, the interim functions of Acquisition
were completed. Holdings could then run the newspaper
as a purchaser and directly own the Post’s equipment. In
sum, the difference between Acquisitions and Holdings
is the difference between (1) a company with an interim
and limited purpose, and (2) a finalized buyer with a
normal commercial purpose.
Our colleague argues that the phrase “business pur-
pose” refers simply to the kind of business in which the
companies are engaged. Thus, for her, a newspaper is a
newspaper, and that ends this facet of the inquiry. We
disagree. In our view, it is overly simplistic to say that
the two have a common purpose simply because they
both ran a newspaper or that it used the same equipment
despite differences in their ownership status. In this
regard, we note that the phrase is “business purpose”
(emphasis added). If the task were simply to compare
“businesses,” the word “purpose” would not be part of
the phrase. Secondly, there is a separate term (“opera-
tions”) which includes the nature of the business.10 This
9 It is undisputed that NAPI would not have purchased the Post un-
der the employment terms that existed in March. The NAPI negotiators
made it clear from the beginning that unless they achieved significant
concessions from the unions, including the Guild, Murdoch would not
go through with the purchase. Had Holdings not been able to imple-
ment new terms, then, it would not have purchased the Post, and the
paper would have folded, probably for good.
10 This contrasts with determining the existence of successor status,
where the Board applies the lesser standard of a “substantial continuity
of the same business operations” (emphasis added). Banknote Corp. of
America, 315 NLRB 1041, 1048 (1994); Brand Mid-Atlantic Inc., 304
NLRB 853 (1991). The Board requires a closer identity between two
entities for alter ego status because of its greater consequences: a suc-
cessor assumes only the obligation to recognize and bargain with the
NYP ACQUISITION CORP. 1045
is not to say that, in the usual case, business purpose will
not be similar to business operation. See, e.g., A&P
Brush Mfg. Co., 323 NLRB 303, 308 (1997) (“The pur-
pose of both [entities] was to manufacture paint
brushes.”). But, for the reasons discussed above, the in-
stant case is clearly not the usual case. Cf. Blazer Corp.,
236 NLRB 103, 109–110 (1978) (purchaser was not the
alter ego of receiver or debtor-in-possession because
purchaser was running “vital, vibrant, and growing
manufacturing enterprise” in contrast to receiver’s
“skeleton holding” operation).11
As indicated above, another relevant factor is whether
the entities were created for an antiunion motive. Here,
there is no allegation or evidence that Holdings and Ac-
quisition were created with an antiunion motive. Thus,
this factor also does not support finding alter ego status.12
Accordingly, for the reasons stated above, we find that
Acquisition and Holdings were not alter egos.
2. The Respondents did not violate Section 8(a)(3)
We agree with the judge’s finding that the Respon-
dents did not violate Section 8(a)(3) of the Act as al-
leged. As we stated at the beginning of this decision, the
complaint alleges that the Respondents violated Section
8(a)(3) of the Act by terminating and refusing to reinstate
striking Guild employees.13
In support of this allegation, the General Counsel con-
tends, inter alia, that Holdings violated Section 8(a)(3) by
failing to afford all of the Guild strikers their Laidlaw
right to immediate reinstatement when they offered to
return to work on October 4. We find no merit in that
contention. We have found above that Holdings was not
the alter ego of Acquisition. Thus, even assuming ar-

exclusive bargaining representative of its predecessor’s employees; an
alter ego is required to assume its predecessor’s collective-bargaining
agreement as well. See Joe Costa Trucking, 238 NLRB 1516, 1522
(1979); Blazer Corp., 236 NLRB 103, 109 (1978).
11 We note that the fact pattern here is similar in many respects to
that in Specialty Envelope Co., 321 NLRB 828, 829 (1996). In Spe-
cialty Envelope, Peters as receiver was a successor to Western Paper
Products. Later, Peters incorporated Speciality Paper Products and was
its sole owner. As here, Peters assumed the responsibility of receiver
with the intention of attempting to purchase the assets of Western him-
self. Yet, in that case, the General Counsel did not even contend that
Peters and Specialty were alter egos.
12 Member Hurtgen also notes that an alter ego is often described as
the “disguised continuance” of the other company. Southport Petro-
leum Co. v. NLRB, 315 U.S. 100, 106 (1942). In this instant case,
nothing was disguised. Full disclosure was made to all concerned
parties as well as the bankruptcy court.
13 By alleging that the Respondents terminated the striking Guild
employees, the General Counsel apparently refers to Holdings’ Sep-
tember 30 announcement to the Guild that, if it purchased the assets of
Post Co., it would be hiring a new work force.
guendo that Acquisition was a successor of Post Co.,14
Holdings as a new purchaser had the right to hire a new
work force, as well as to set new terms of employment.
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d
99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
That right would be meaningless if Holdings had an ob-
ligation to reinstate all of the strikers. We therefore find
that Holdings' failure to reinstate the strikers was not
inconsistent with Laidlaw.
The General Counsel also argues, in the alternative,
that Holdings refused to employ the majority of the
Guild strikers because of their strike activity, and thus
that its conduct violated Section 8(a)(3) by retaliating
against the strikers for engaging in protected concerted
activity. We find no merit in this argument.
To begin with, we find no evidence of discriminatory
motive on the part of Holdings.15 Holdings informed the
Guild on September 30, before Holdings purchased the
Post, that if the purchase went through, it would be hiring
a new work force and setting new terms and conditions
of employment. At that time, the Guild employees were
still on strike. The timing of Holding’s announcement is
evidence in itself that, by hiring a new work force, Hold-
ings was simply exercising its rights as a new purchaser
rather than retaliating against the strikers.
Nor do we find that Holdings' requiring strikers, but
not nonstrikers, to apply for employment “bears ‘its own
indicia of [discriminatory] intent.’”16 As of October 1,
the former Post employees, except for the strikers, were
working under terms which NAPI had negotiated with
their unions. By contrast, the Guild had stated repeatedly
that the strikers would never work under the terms pro-
posed by NAPI. In those circumstances, Holdings could
only believe that it had to employ a new work force if it
wanted to publish the Post. Thus, when Holdings an-
nounced that it would hire a new work force, it was, in
effect, announcing that it was doing the only thing it
o of
Ac
14 The judge found that Acquisition while managing the Post contin-
ued the Post’s operations with the same employee work force doing the
same jobs under the same working conditions. Nevertheless, as indi-
cated above, the judge concluded that Acquisition was not a successor
employer to the Post under Fremont Ford, supra. We have substantial
doubts as to the correctness of the judge’s finding and the judge’s
discussion of Fremont Ford in light of the Board’s more recent
decision in Specialty Envelope Co., supra, which issued shortly before
the judge’s decision. However, we find it unnecessary to resolve this
issue in view of our finding that Holdings was not the alter eg
quisitions.

15 The General Counsel does not contend that Holdings discrimi-
nated against any of the individual strikers, e.g., by hiring less qualified
applicants in preference to more qualified strikers. He contends instead
that, by requiring them, and only them, to apply for employment, Hold-
ings treated the strikers as a group differently from the other Post em-
ployees, because of their strike activity.
16 NLRB v. Great Dane Trailers, 388 U.S. 26 at 33 (1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
could do under the circumstances. Later, of course, the
Guild employees offered unconditionally to return to
work. We do not believe, however, that Holdings was
required to change its mind simply because the strikers
changed theirs. We therefore do not find that Holdings
demonstrated retaliatory intent by implementing its pre-
viously announced decision to hire a new white-collar
work force.
For all of the foregoing reasons, we find that Holdings
did not act unlawfully by failing to reinstate all of the
Guild strikers.
3. Holdings did not violate Section 8(a)(5)
The complaint also alleges that the Respondents vio-
lated Section 8(a)(5) by withdrawing recognition from
and refusing to bargain with the Guild, and by unilater-
ally changing the terms and conditions of employment of
Guild employees. Since we have found that Holdings
was not the alter ego of Acquisition, we must determine
whether Holdings had any obligation to bargain with the
Guild as a successor employer.
The Burns17 test for determining whether a successor
has an obligation to bargain with the exclusive bargain-
ing representative of its predecessor’s employees is: (1)
whether the majority of the new employer’s work force
in an appropriate unit are former employees of the prede-
cessor employer and (2) whether the new employer con-
ducts essentially the same business as its predecessor.
GFS Building Maintenance, Inc., 330 NLRB 747, 751
(2000). We have found, as discussed above, that Hold-
ings’ lawfully declined to hire a majority of the new
white-collar work force from among the former Post em-
ployees. Consequently, we agree with the judge that
Holdings did not violate Section 8(a)(5) by failing to
recognize or bargain with the Guild after October 1. We
shall therefore dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER FOX, dissenting.
On the facts of this case, it seems plain to me that
when Respondent NYP Acquisition Corp., a subsidiary
of the media empire controlled by Rupert Murdoch, as-
sumed full business and editorial control of the New
York Post in March of 1993, retained all of the Post’s
employees without change in their conditions of em-
ployment, and continued to operate the paper in the same
manner that it had been operated by The New York Post
Co., it became a legal successor to the Post Co. with an
obligation to recognize and bargain with the Newspaper

rk.
17 Supra, 406 U.S. 272 (1972).
Guild of New York as the exclusive representative of
employees in the Post’s editorial, advertising, circulation,
publication, and business departments. It seems to me
also clear, under well-established Board precedents, that
NYP Holdings, Inc., another wholly owned subsidiary of
the Murdoch empire with substantially the same owner-
ship, management, business purpose, operation, equip-
ment, supervision and customers, is an alter ego of Ac-
quisition, and that when it acquired and assumed respon-
sibility for operation of the Post in October of 1993, it
had the same legal obligations to the Guild and to em-
ployees represented by the Guild as Acquisition. I
would therefore find, contrary to the majority, that the
Respondents violated Section 8(a)(1), (3), and (5) of the
Act when, following Holding’s purchase of the Post,
Holdings withdrew recognition from the Guild, termi-
nated Guild-represented employees who were engaged in
a strike, and refused to reinstate them upon their
unconditional offer to return to wo
Background
The essential facts of the case are not in dispute. As
set forth in the judge’s decision, the New York Post, a
daily tabloid published in New York City, was owned
from 1976 through 1988 by News America Publishing,
Inc. (NAPI), one of numerous worldwide subsidiaries of
the media conglomerate News Corporation Ltd. which
are controlled by Rupert Murdoch. A Murdoch-
controlled subsidiary also owned a New York City-based
television station, WNYW (Channel 5). In 1988, be-
cause of Federal Communication Commission cross-
ownership rules, which prohibited Murdoch from owning
both a newspaper and a television station in the same
market, the Post was sold to The New York Post Co.,
Inc., owned by Peter Kalikow. The paper, which had
been operating in the red for some time, continued to
incur substantial losses and on March 15, 1993, after two
spectacularly unsuccessful attempts by others to acquire
and “save” the paper, the Post Co. filed for bankruptcy.
At that point Rupert Murdoch reappeared on the scene.
As found by the judge, Murdoch wished to reacquire
the Post and had been given reason to believe—
accurately, as it turns out—that the FCC was likely to
grant a waiver of its cross ownership rules that would
allow him to own the Post without having to divest him-
self of station WNYW. In order to effectuate his plan
on March 25, 1993, a new subsidiary of NAPI was in-
corporated by the name of NYP Acquisition Corp, with
Murdoch as chairman of the board, NAPI President and
CEO Patrick J. Purcell as president, and other NAPI
board members completing the slate of officers.
As the name reflects, a primary purpose for which Ac-
quisition was created was to be the vehicle through
NYP ACQUISITION CORP. 1047
which Murdoch would reacquire ownership of the Post.
Indeed, it was on the assumption that if there were a pur-
chase, it would be done in the name of Acquisition, that
Murdoch’s representatives sought (and in June of 1993
obtained) the hoped-for waiver of the FCC’s cross own-
ership rule.1 A second purpose for which Acquisition was
formed was to keep the Post afloat as a going concern2
while the Murdoch operation pursued the three condi-
tions on which it made clear that its reacquisition of the
Post was contingent: (1) the FCC’s granting of the
waiver of the cross-ownership rules, (2) approval by the
bankruptcy court of a purchase agreement, and (3) nego-
tiation of new collective- bargaining agreements with the
11 unions representing Post employees containing con-
cessions sufficient to achieve certain savings deemed
necessary before Acquisition would go through with the
purchase. In accordance with that second purpose, Ac-
quisition sought, and on March 293 the bankruptcy court
approved, a management agreement under which Acqui-
sition would manage the Post and provide interim financ-
ing to the Post to keep it going.
The management agreement gave Acquisition “full
business and editorial control” over the Post, including
complete control over the Post’s day-to-day labor rela-
tions. Under the agreement, Acquisition made all finan-
cial decisions with respect to the operation of the Post
and funded the Post’s losses, which were in excess of
$300,000 a week. The management agreement also pro-
vided, inter alia, that Acquisition could seek the court’s
permission to sell the paper’s assets to itself or to another
purchaser, with or without Post Co.’s permission.
Acquisition took over and began running the Post on
March 29. All employees were retained, and no changes
in existing terms and conditions of employment were
announced. On that date, NAPI also initiated negotia-
tions with the Guild and the other Post unions. NAPI
sought three significant concessions from the Guild:
freedom to subcontract unit work, relief from the accrued
severance pay obligations of the predecessor employers,
and a 6-month probationary period during which it could
terminate Guild employees without severance pay and
without the termination decision being subject to the
grievance/arbitration process or any sort of third-party
review. The Guild strongly opposed the latter two provi-

1 See FCC decision of June 29, 1993 (CP Exh. 3) granting waiver to
permit Fox Television Stations, Inc. (another Murdoch subsidiary) to
continue to own station WNYW in the event that the New York Post
was acquired by NYP Acquisition, Inc.
2 As the judge found, the Post’s potential value to Murdoch was only
as a continuing enterprise, since once the paper closed, readers and
advertisers would be expected to go elsewhere, and it would be highly
unlikely that the paper could be revived.
3 Unless otherwise stated, all dates refer to 1993.
sions, and although the parties bargained for several
months, they never reached agreement on those issues.
Despite the lack of progress in the Guild negotiations,
by mid-summer NAPI had reached agreements in princi-
ple with the 10 other unions representing Post employ-
ees. In addition, as noted above, the FCC had granted the
necessary waiver of the FCC’s cross-ownership rules.
With those conditions fulfilled, Murdoch’s representa-
tives made the decision to go ahead with the purchase of
the Post notwithstanding their inability to reach agree-
ment with the Guild. In a change from its original plan,
NAPI decided not to use Acquisition as the vehicle
through which it would acquire ownership of the Post,
since Acquisition had obligations under its management
agreement to make reports and disclose financial infor-
mation which NAPI preferred to keep confidential.
Thus, on July 12, NYP Holdings—with directors and
officers virtually identical to those of Acquisition—was
incorporated as a new subsidiary of NAPI to carry out
the purchase of the Post. Thereafter, on August 6, a mo-
tion was filed in the bankruptcy court for approval of a
proposed Asset Purchase Agreement providing for the
sale of the assets of Post Co. to Holdings. The sale was
approved by the bankruptcy court by order of September
14.
On September 27, the Guild struck the Post, and the
paper was not published for 2 days. Murdoch initially
decided to close the paper because of the strike. How-
ever, when the other 10 unions crossed the Guild’s picket
line and returned to work on September 30, he relented
and announced that Holdings would go through with the
purchase and exercise its right as a new employer to hire
a new white-collar work force. On September 30, Hold-
ings informed the Guild that, if it purchased the Post’s
assets, as a new employer it would be hiring a new work
force and would announce initial employment terms. On
October 1, Holdings purchased the paper’s assets pursu-
ant to the terms of the asset purchase agreement. It hired
all of the employees represented by the non-Guild un-
ions, under the terms negotiated with those unions.
On October 4, the Guild took down its picket line and
made an unconditional offer on behalf of the strikers to
return to work. Holdings informed the Guild that it was
hiring a new work force and that the strikers would have
to apply for employment along with other applicants. A
large number of the strikers were hired, but by no means
all of them, and those who were hired did not make up a
majority of the new white-collar work force. The new
terms and conditions of employment differed from those
in effect before October 1 and from those contained in
NAPI’s previous bargaining proposals. Holdings has not
recognized or bargained with the Guild since October 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
1. Acquisition was a successor to Post Co.
It is well settled that a change in the identity of an em-
ploying entity does not, of itself, relieve the new em-
ployer from an obligation to recognize and bargain with
the union that represented the predecessor’s employers.4
As set forth in Fall River Dyeing,5 the test developed by
the Board and sanctioned by the Court for determining
whether a successor employer inherits the bargaining
obligations of the predecessor is whether there is “sub-
stantial continuity” between the enterprises:

Under this approach, the Board examines a number of
factors: whether the business of both employers is es-
sentially the same; whether the employees of the new
company are doing the same jobs in the same working
conditions under the same supervisors; and whether the
new entity has the same production process, produces
the same products, and basically has the same body of
customers.

In addition, “[I]n conducting the analysis, the Board keeps
in mind the question whether ‘those employees who have
been retained will understandably view their job situations
as essentially unaltered.’” Id.
Applying this test to the circumstances here, it is clear
that Acquisition was a successor to the Post Co. Upon
assuming control of the Post on March 29, Acquisition
continued to publish the paper at the same location, using
the same employees doing the same jobs under the same
working conditions, using the same production process,
apparently for the same customers, as had the predeces-
sor. There can be no doubt that, from the employees’
perspective, their job situations were essentially unal-
tered.
It is true, of course, that the Post was still owned by
the Post Co. But as the Board and the courts have made
clear, the absence of a transfer of ownership is not dispo-
sitive of whether a successorship situation exists. As the
Board explained in Maintenance, Inc.6

The duty of an an employer who has taken over an
“employing industry” to honor the employees’ choice
of a bargaining agent is not one that derives from a pri-
vate contract, nor is it one that necessarily turns upon
the acquisition of assets or assumption of other obliga-
tions usually incident to a sale, lease, or other arrange-
ment between employers. It is a public obligation aris-
ing by operation of the Act. The critical question is not

4 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41
(1987); NLRB v. Burns Security Services, 406 U.S. 272 (1972); John
Wiley & Sons v. Livingston, 376 U.S. 543 (1964).
5 482 U.S. at 43.
6 148 NLRB 1299, 1301 (1964).
whether Respondent succeeded to [the predecessor
employer’s] corporate identity or physical assets, but
whether Respondent continued essentially the same op-
eration, with substantially the same employee unit
whose duly certified bargaining representative was en-
titled to statutory recognition at the time Respondent
took over. [Emphasis added.]7

In Maintenance, Inc., the Board found that a company
awarded a contract to perform custodial work at NASA’s
Marshall Space Flight Center which hired most of the
prior contractor’s employees to perform essentially the
same work they had previously performed was a succes-
sor to the prior contractor with an obligation to bargain
with the union that had represented the prior contractor’s
employees, even though the new company had not ac-
quired any assets or other interests of the prior contrac-
tor. In numerous similar cases, the Board and the courts
have found new employers to have successor obligations
to unions that represented the predecessor’s employees
notwithstanding the absence of any dealing between the
successor and the predecessor. See, e.g., Tom-a-Hawk
Transit, Inc. v. NLRB, 419 F.2d 1025 (7th Cir. 1969)
(new company incorporated to provide municipal bus
service after financial collapse of old company). Indeed,
Burns itself is just such a case.8
Not surprisingly, the Board has also had no difficulty
finding successorship where there have been dealings
between the successor and the predecessor, but there has
not been a transfer of ownership. Thus, in East Belden
Corp.,9 the Board adopted an administrative law judge’s
decision which relied on Maintenance, Inc. to find that
an employer that had signed an agreement to purchase a
restaurant owned by a unionized predecessor employer
was a successor with a bargaining obligation even though
it was only managing the restaurant during an escrow
period during which certain contingencies were to be
satisfied. Similarly, in Sorrento Hotel,10 the Board found
7 See also Saks & Co. v. NLRB, 634 F.2d 681, 687 (2d Cir. 1980)
(stating that “while a transfer of assets may be evidence of the requisite
continuity of business operations, it has not been thought to be a neces-
sary condition,” and noting that more than one authority has character-
ized it as a “make-weight”).
8 As the Supreme Court noted in Burns,
Here there was no merger or sale of assets, and there were no
dealings whatsoever between [the predecessor employer] and
Burns. On the contrary, they were competitors for the same
work, each bidding for the service contract at Lockheed. Burns
purchased nothing from [the predecessor] and became liable for
none of its financial obligations. Burns merely hired enough of
[the predecessor’s] employees to require it to bargain with the
union as commanded by Sec. 8(a)(5) and Sec. 9(a).
406 U.S. at 286.
9 239 NLRB 776 (1976), enfd. mem. 634 F.2d 635 (9th Cir. 1980).
10 266 NLRB 350 (1983).
NYP ACQUISITION CORP. 1049
that an employer that operated a hotel under an interim
management agreement pending the conclusion of nego-
tiations for a long-term lease of the premises was a suc-
cessor with a bargaining obligation. More recently, in
Specialty Envelope Co.,11 the Board found that a receiver
appointed by a state court to manage a failing company’s
day-to-day operations was an employer and a legal suc-
cessor to the company whose operations he was running.
In concluding that Acquisition was not a successor to
Post Co., the judge here relied on Fremont Ford Sales,12
which she read as establishing a rule that a prospective
purchaser cannot be found to be a successor with a bar-
gaining obligation unless there is both a written purchase
agreement and an interim period in which the prospective
purchaser exercises control and in which only “mere
formalities” are to be fulfilled. I agree with the General
Counsel that the judge erred in her reading of that case.
As noted above, in determining whether successorship
can be found, the critical inquiry is not whether there has
been a transfer of assets, or whether a transfer of assets is
being contemplated, but whether, from the standpoint of
the employees, there is substantial continuity between the
predecessor employer and the successor. In Fremont
Ford, the Board stated that the existence of written
agreements to purchase or lease and “an escrow or in-
terim management period officially established for the
prospective buyer or lessee to take control” were “salient
facts triggering successorship status” in East Belden and
Sorrento Hotel, but the Board did not say that they were
requirements in the sense that under no other circum-
stances could successorship be found. Contrary to the
judge, neither did the Board say that where, as here, there
is an interim management period officially established in
which a prospective buyer assumes effective control of
the predecessor employer’s business, successorship will
not be found unless only “mere formalities” need to be
fulfilled. The point in Fremont Ford was that in that
case there had been no interim period in which the pro-
spective purchaser managed the car dealership. Indeed,
as the Board emphasized, at the time the administrative
law judge erroneously found the prospective purchaser to
have become a successor, the prospective purchaser was
not yet in existence and the dealership was still owned
and being operated by the predecessor.
In this case, of course, Acquisition did have a court-
approved management agreement under which it was
functioning as the employer of the Post’s employees.
The management agreement gave Acquisition extensive
powers to operate the newspaper, independently of Post

11 321 NLRB 828 (1996), enf. denied on other grounds sub nom. Pe-
ters v. NLRB, 153 F.3d 289 (6th Cir. 1998).
12 289 NLRB 1290 (1988).
Co. Thus, as we have already noted, the agreement gave
Acquisition “full business and editorial control,” which it
unquestionably exercised from the time it took control
until the date of the asset sale to Holdings. Indeed, Ac-
quisition twice made the decision to close down the Post;
in both instances, apparently, the decision was made be-
cause Acquisition’s own efforts to take over the business
seemed to be foundering. Acquisition had the authority,
subject to prior consultation with Post Co. and the ap-
proval of the bankruptcy court, to modify, terminate, or
renegotiate collective-bargaining agreements. Finally,
Acquisition had the authority, with or without Post Co.’s
consent, to seek the bankruptcy court’s approval to sell
the assets of Post Co., either to itself or to another pur-
chaser.
To be sure, there was always the possibility that Ac-
quisition would only operate the Post temporarily due to
the chance that Murdoch would not, in the end, acquire
the assets of the Post. But as was stated in East Belden,
“even though an employer may only be operating a busi-
ness temporarily, it does not privilege the employer to
ignore the provisions of Section 8(a)(5) of the Act.” 239
NLRB at 792. Here, consistent with the management
agreement giving Acquisition “full business and editorial
control,” Acquisition, effective March 29, became the
Post employees’ employer. And having made the deci-
sion to retain the Post’s employees without change in
their conditions of employment, it was legally obligated
to recognize and bargain with their chosen representa-
tives.
2. Acquisition and Holdings were “perfectly clear”
Burns successors
An employer that substantially continues its predeces-
sor's business and hires employees of the predecessor as
a majority of its work force is a successor with an obliga-
tion to bargain with the union that represented those em-
ployees when they were employed by the predecessor.13
The Supreme Court in Burns held that a successor em-
ployer normally is free to set initial terms and conditions
of employment unilaterally. The Court also stated, how-
ever, that there would be times when it is “perfectly
clear” that the successor intends to hire all of the prede-
cessor’s employees. In those circumstances, the succes-
sor may not impose initial terms without first bargaining
with the union representing the employees.14 In Spruce
Up Corp.,15 the Board held that an employer should be
found to be a “perfectly clear” successor, with an obliga-
13 NLRB v. Burns Security Services, 406 U.S. at 280–281; Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. at 43.
14 Id. at 294–295.
15 209 NLRB 194 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
tion to bargain over initial employment terms, only when
it has either actively or tacitly misled employees into
thinking that they will all be retained without a change in
terms and conditions of employment, or when it has in-
vited the predecessor’s employees to accept employment
without announcing its intention to set new conditions.16
The record clearly establishes that Acquisition was a
“perfectly clear” successor to Post Co. When Acquisition
assumed the management of the Post on March 29, it
retained all of the Post’s employees without change in
their terms and conditions of employment. Acquisition
therefore had an obligation to bargain with the Guild
before changing employment terms. It could not law-
fully announce new terms and conditions of employment
without first bargaining with the Guild.
3. Holdings and Acquisition were alter egos
The Board normally will find that two nominally sepa-
rate employers are alter egos if they have substantially
identical ownership, management, business purpose, op-
eration, equipment, customers, and supervision. The
Board also considers whether the purpose of creating the
alleged alter ego was to avoid an employer’s
responsibilities under the Act.17 The latter factor,
however, is not critical to the finding of an alter ego
relationship.18 Indeed, none of the above factors, taken
alone, is the sine qua non of alter ego status; each case
must turn on its own facts.19

In this case, although there is no evidence that Hold-
ings was created for the purpose of evading Acquisition’s
responsibilities under the Act, the remaining factors
plainly establish that the two companies were alter egos.
As the judge found, Acquisition and Holdings are
wholly-owned subsidiaries of NAPI, and had substan-
tially identical management, operations, equipment, cus-
tomers, and supervision. Holdings and Acquisition also
had an identical business purpose: to publish the New
York Post. Thus, except for the lack of a purpose to
evade responsibilities under the Act, all of the factors
supporting a finding of alter ego status are present here.
In finding that the two entities are not alter egos, the
majority asserts that Holdings and Acquisition did not in
fact have a common business purpose because Acquisi-
tion’s “primary role” was to serve as manager of the
Post’s operations, while Holding’s role was “solely that
of the purchaser.” Their position ignores both well-
established principles as to what constitutes a “business
16 209 NLRB at 195.
17 See, e.g., Advance Electric, 268 NLRB 1001, 1002 (1984).
18 Goodman Piping Products v. NLRB, 741 F.2d 10, 12 (2d Cir.
1984).
19 See, e.g., Sobeck Corp., 321 NLRB 259, 266 (1996); NLRB v. All-
coast Transfer, Inc., 780 F.2d 576, 581–582 (6th Cir. 1986).
purpose” for purposes of alter ego analysis, and the ac-
tual functions performed by Acquisition and Holdings.
First, for purposes of alter ego analysis, the Board has
consistently regarded an employer’s business purpose as
being the production or provision of the products or ser-
vices which the employer is in business to produce or
provide. Thus, for example, in A&P Brush Mfg. Corp.,20
the Board found that “[t]he purpose of both [employers]
was to manufacture paint brushes.” Similarly, in Wein-
reb Management,21 the Board found that “Both entities
have the same business purposes: to provide service and
maintenance to buildings owned by the Weinreb family.”
Again, in O. Voorhees Painting Co.,22 the Board stated
that, “in finding that Voorhees and O.V. do not have a
common business purpose, we rely particularly on the
fact that O.V.’s business–i.e., remodeling–is broader than
that of Voorhees–i.e., painting.” Here, the purpose of
both entities is to publish the New York Post.
Second, even if it were conceded that operating the
Post and owning the Post are two different business pur-
poses, those purposes were not in fact separated in the
case of Acquisition and Holdings. Thus, as I have noted,
Acquisition was created not just for the purpose of oper-
ating the Post to keep it afloat while Murdoch was at-
tempting to secure the conditions necessary for him to
acquire it, but also to be the vehicle through which Mur-
doch acquired the Post. Conversely, Holdings was cre-
ated not just to be the owner of the Post, but also to oper-
ate the Post once it was acquired, and Holdings did in
fact take over operation of the Post from Acquisition in
October when the sale of the Post was completed.
My colleagues cite no authority for the novel proposi-
tion that having a business purpose to operate the New
York Post and having a business purpose to own and
operate the New York Post constitute separate business
purposes for purpose of alter ego analysis. Blazer
Corp.,23 on which they rely, avails them not at all.
There, the Board found that two bankrupt corporations
and the company that purchased their assets were not
alter egos because neither was the alter ego of the re-
ceiver in bankruptcy.24 The Board based its holding,
however, on the fact that (unlike this case) the scope and
manner of the receiver’s activities were materially differ-
ent from both those of the bankrupt corporations and
those of the purchaser. Specifically, the corporations
designed, manufactured, and sold air conditioning
equipment, while for the most part the receiver only sold
20 323 NLRB 303, 308 (1997).
21 292 NLRB 428, 431 (1989).
22 275 NLRB 779 (1985).
23 236 NLRB 103 (1978).
24 I find this dubious proposition in any event.
NYP ACQUISITION CORP. 1051
such equipment out of inventory. Thus, although the
Board implicitly found a difference in business purpose
between the corporations and the receiver, it did not rely
on any distinction between those entities’ roles as owners
and receiver/manager.25
Finally, even if it were true that Acquisition and Hold-
ings did not share a common business purpose, it would
still be proper to find them to be alter egos on the basis
of their common ownership, management, operations,
equipment, customers, and supervision. I therefore
would find, in agreement with the judge, that the Re-
spondents are alter egos.
4. Holdings stands in the shoes of Acquisition
The conclusion that necessarily follows from finding
Acquisition and Holdings to be alter egos is that Hold-
ings stands in the shoes of Acquisition with regard to
Acquisition’s bargaining obligations. As discussed
above, when Acquisition retained all of the Guild em-
ployees under unchanged terms and conditions of em-
ployment, it gave up its right as a successor to hire a new
work force and to impose terms and conditions of em-
ployment without bargaining. Holdings, then, as Acqui-
sition’s alter ego, did not have the right to act as a new
employer, hire a new work force, and set unilaterally
initial terms and conditions of employment. To the con-
trary, Holdings, by stepping into the shoes of Acquisi-
tion, was required to bargain in good faith with the Un-
ion as the employees’ bargaining representative and to
continue in effect the existing terms and conditions of
employment.26
It is beyond question that if Acquisition, rather than
Holdings, had ultimately bought the Post, Acquisition
would not have been deemed a new entity with the right
to unilaterally impose new terms and conditions of em-
ployment in October after having retained the Post’s
work force under existing terms when it took over as
manager in March. See East Belden Corp., 239 NLRB
776, 793 (1978) (successor employer, which had retained
predecessor’s work force under existing employment
terms violated Section 8(a)(5) by subsequently making
unilateral changes in those terms). And because Hold-
ings was the alter ego of Acquisition, and thus the same
employer under the Act, it also could not impose new

25 Id. at 109–110.
26 In light of the fact that NAPI had bargained in good faith to a law-
ful impasse with the Union on September 29, Acquisition, and therefore
Holdings, could have lawfully implemented the terms and conditions
contained in NAPI’s final offer. Holdings, however, unilaterally im-
posed terms that were different from those previously offered to the
Union.
terms when it actually did purchase the paper without
bargaining with the Union.27
5. The Respondent violated Section 8(a)(5) by unilater-
ally establishing new employment terms on and after
October 1
At the time Holdings assumed ownership and man-
agement of the Post, Murdoch’s representatives had been
bargaining with the Guild for months and had reached a
good faith impasse at least by September 27. Holdings
therefore would have acted lawfully had it implemented
the terms of NAPI’s final offer.28 However, Holdings
did not simply impose the terms for which NAPI had
contended in negotiations. Instead, it added a significant
new condition that had never before been suggested: that
the striking Guild employees would not be retained, as
were the employees represented by all of the other un-
ions, but would have to apply for employment as mem-
bers of a new work force. That condition was not “rea-
sonably comprehended within [NAPI’s] pre-impasse
proposals,”29 and accordingly could not lawfully be uni-
laterally implemented. I therefore find that Holdings’
imposition of this term violated Section 8(a)(5).
6. Holdings violated Section 8(a)(3) by failing to rein-
state the Guild strikers
Because Holdings was the alter ego of Acquisition, it
was legally the same employer as Acquisition. Conse-
quently, although the Guild employees went out on strike
when Acquisition was managing the Post, and uncondi-
tionally offered to return to work after Holdings had pur-
chased the paper, their actions were directed toward the
same employer for purposes of the Act. As economic
strikers who had not been permanently replaced, the
strikers were entitled to immediate reinstatement.30 I
therefore agree with the General Counsel that Holdings
violated Section 8(a)(3) by failing to reinstate all of the
strikers.31
I also agree with the General Counsel that, even if the
strikers had no right to automatic reinstatement, Holdings
nevertheless violated Section 8(a)(3) by retaliating
27 In Specialty Envelope, supra, there was no finding that the two
successors, Peters and Specialty, were alter egos. Here, by contrast,
Acquisition and Holdings were alter egos; therefore, as I have shown, if
Acquisition was a “perfectly clear” successor, so was Holdings.
28 See, e.g., Fire Fighters, 304 NLRB 401, 402 (1991).
29 Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub
nom. Televisions Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir.
1968).
30 As the General Counsel notes, the Respondent does not contend
that it hired permanent replacements for the strikers.
31 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378–380
(1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
against them for engaging in protected conduct. The
NAPI negotiators had bargained to impasse over sever-
ance pay and termination without recourse to third party
review during an initial probationary period. Holdings
could lawfully have implemented the terms contained in
its final proposal and let the Guild employees decide
whether to work under those conditions. Instead, Hold-
ings required all of the strikers to apply for employment
as new employees, even though it imposed that require-
ment on no other former Post employees. The General
Counsel contends, and I agree, that this discrimination
against the Guild employees violated Section 8(a)(3),
because it was in retaliation for their protected decision
to strike rather than agree to the terms which the Re-
spondents were demanding. I find that this discrimination
was inherently destructive of the employees’ right to
strike and to bargain collectively through the Guild.32
7. The Respondents violated Section 8(a)(5) by failing to
recognize and bargain with the Guild after October 1
After October 1, Holdings hired a white-collar work
force of which a majority were individuals who had not
formerly worked for the Post. Normally, an employer
that does not hire, as a majority of its work force, em-
ployees of its predecessor does not have an obligation to
bargain with the incumbent union.33 That principle de-
pends, however, on the employer’s not having unlaw-
fully discriminated in the hiring process. As I have
found, all of the striking Guild employees were entitled
to immediate reinstatement when the Guild, on their be-
half, made an unconditional offer to return to work.
Having unlawfully failed to reinstate all of the strikers,
Holdings cannot base its failure to recognize and bargain
with the Guild on the fact that a majority of its white-
collar work force were not former employees of Post Co.
And, as I have also shown, even if Holdings had no duty
to reinstate the strikers, it still violated Section 8(a)(3) by
discriminating against the Guild strikers in the hiring
process. Consequently, I find that, but for the unlawful
discrimination, Holdings would have hired a majority of
its work force from among the former Post Co. employ-
ees, and therefore that Holdings had an obligation as a
Burns successor to recognize and bargain with the
Guild.34 Under either theory, Holdings violated Section
8(a)(5) by failing to recognize and bargain with the Guild
after October 1.

32 NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967).
33 NLRB v. Burns Security Services, 406 U.S. at 280–281.
34 Love’s Barbeque Restaurant, 245 NLRB 78, 82 (1979), enfd. in
relevant part 640 F.2d 1094 (9th Cir. 1981).
8. The Respondents’ affirmative defenses are without
merit
The Respondents contend that certain rulings of the
bankruptcy court preclude the Board from finding that
Holdings had an obligation to bargain with the Guild.
They also contend that the Guild strike was unprotected
because it violated the Guild's collective-bargaining
agreement with Post Co. Neither of these contentions
has merit.
a. The decisions of the bankruptcy court do not preclude
the Board from finding that Holdings had a bargaining
obligation
In the course of the Post Co. bankruptcy proceedings,
the bankruptcy court made certain rulings that, according
to the Respondents, preclude the Board from finding that
Holdings was a successor to Post Co. That contention
does not withstand scrutiny.
To begin with, the Board has long held that it is not
barred from litigating an issue involving enforcement of
Federal labor law that a private party litigated unsuccess-
fully, if the Board was not a party to the earlier litiga-
tion.35 The Board was not a party to the Post Co. bank-
ruptcy proceedings. For that reason alone, the Board is
not barred by the bankruptcy court’s rulings from finding
that Holdings had a bargaining obligation.
In any event, contrary to the Respondents, the princi-
ples of collateral estoppel, or issue preclusion, do not
foreclose the Board from finding that Holdings had a
bargaining obligation. Those principles apply only to
issues that have (1) actually been determined (2) by a
court of competent jurisdiction.36 Neither of those re-
quirements has been met here.
First, the record clearly indicates that the issue of
whether Holdings would have an obligation to recognize
and bargain with the Guild was not before the bank-
ruptcy court. The actions of the court cited by the Re-
spondents belie their contention that the court either con-
sidered or decided that issue.37 Those actions were:
• The court’s order in March, before Acquisition
began managing the Post, that Acquisition would
35 Field Bridge Associates, 306 NLRB 322 (1992), enfd. sub nom.
Service Employees v. NLRB, 982 F.2d 845 (2d Cir. 1993); Precision
Industries, 320 NLRB 661, 663 (1996), enfd. 118 F.3d 585 (8th Cir.
1997), cert. denied 118 S.Ct. 1299 (1998).
36 See, e.g., Montana v. United States, 440 U.S. 147, 153 (1979); see
also Precision Industries, 320 NLRB at 663.
37 NLRB v. Donna-Lee Sportswear Co., 836 F.2d 31 (1st Cir. 1987),
and NLRB v. Heyman, 541 F.2d 796 (9th Cir. 1976), cited by the Re-
spondents, are distinguishable. In both of those cases, the precise issue
before the Board (whether a contract existed) was the same as the one
that had been previously decided by the court.
NYP ACQUISITION CORP. 1053
not be liable to the creditors, including the Guild,
for performance of the management agreement;
• The court’s September 14 ruling, as part of its ap-
proval of the asset purchase agreement, that, ex-
cept as provided in the agreement, the assets
should be sold “free and clear of any and all liens,
claims, charges, encumbrances, mortgages,
pledges, security interests and any other interest in
such Purchased Assets”;
• The court’s September 14 ruling that, except as
provided in the asset purchase agreement, Hold-
ings should not be “deemed to be or liable as a
successor–in-interest to the Debtor for any claims,
liabilities, damages or causes of action with regard
to the Purchased Assets, which arise from or relate
to the period prior to the Closing Date”; and
• The court’s approval of the asset purchase agree-
ment, which provided that Holdings was not to
have “any liabilities in connection with any em-
ployment matters, pension plans, profit-sharing
plans or other employee benefit plans or severance
payments, vacation payments or time due to em-
ployees” or any other liabilities or obligations of
Post Co. not expressly assumed by Holdings in the
agreement.
The first three of those rulings did not address the is-
sue of Holdings’ status as a successor to Post Co. They
merely insulated Acquisition from liability for perform-
ing its duties under the management agreement, and pro-
tected Holdings from liability to third parties for claims
relating to the assets purchased from Post Co.
The last provision disclaimed liability on Holdings’
part for “employment matters,” severance payments, and
the like, but did not refer to any prospective bargaining
obligation or the absence of one. Moreover, the quoted
references must be read in context of the rest of the asset
purchase agreement. The agreement provided generally
that, except for liabilities which it expressly agreed to
assume, Holdings “shall not assume any liabilities or
obligations of [Post Co.], whether existing or arising
prior to or after the Closing Date, related to or arising
from: . . .” That general provision was followed by sev-
eral examples, including those on which the Respondents
rely. Clearly, then, Holdings was seeking by those pro-
visions to avoid assuming Post Co.’s liabilities and obli-
gations arising out of, inter alia, employment matters and
related issues. There is no indication that the agreement
was meant to absolve Holdings of its own bargaining
obligation arising out of its status as purchaser of the
paper, and I do not find that the court, in approving the
asset purchase agreement, intended to do so either.
Second, even if the bankruptcy court had specifically
ruled that Holdings was not a successor with a bargain-
ing obligation, that ruling would not prevent the Board
from reaching the opposite conclusion because the bank-
ruptcy court lacked authority to decide that issue. Obvi-
ously, the bankruptcy court could appropriately rule that
Holdings would not be a successor in interest to Post Co.,
in the sense that Holdings would not be liable to Post
Co.’s creditors for that company’s debts. But successor-
ship for purposes of the Act is an issue of substantive
federal labor law over which the Board has primary and
exclusive jurisdiction.38 The bankruptcy court has no
more authority to issue such a ruling than it would to
adjudicate the unfair labor practice case itself.39 I there-
fore would not find that the bankruptcy court’s rulings
prevented the Board from finding that Holdings had a
bargaining obligation.
b. The strike did not violate the terms of the collective-
bargaining agreement
The Respondents’ argument that the Guild strike vio-
lated the collective-bargaining agreement is also wide of
the mark.40 The Respondents are correct, of course, that
a strike in violation of a contractual no-strike provision is
not protected by Section 7.41 However, the right to strike
is normally protected by the Act, and the Board and the
courts will not find that a statutory right has been waived
unless the waiver is “clear and unmistakable.” In par-
ticular, the Supreme Court has held that “we will not
infer from a general contractual provision that the parties
intended to waive a statutorily protected right unless the
undertaking is 'explicitly stated.’”42 In interpreting con-
tract language, the words employed by the parties must
be given their “ordinary and reasonable meaning.”43
When the record does not contain extrinsic evidence of
the parties' intent, the Board must attempt to determine
that intent in light of the ordinary meaning of crucial

38 In re Goodman, 873 F.2d 598, 602–603 (2d Cir. 1989).
39 Contrary to the Respondents, whether Holdings had a bargaining
obligation is not a “collateral issue” of Federal labor law that the bank-
ruptcy court could determine in order to decide some other issue over
which it had jurisdiction. Id. at 603. The only issue is whether Hold-
ings could, with the court’s approval, contract its way out of its obliga-
tions under the Act as a condition to taking over the Post. The bank-
ruptcy court has no more authority to approve such a provision than it
would to excuse Holdings from its responsibilities under any other
Federal statute.
40 The Respondents and the Guild disagree as to whether the Guild’s
contract with Post Co. was still in effect at the time of the strike. I need
not and do not address that issue, because I find that the strike did not
violate the contract.
41 See, e.g., Arlan’s Department Store, 133 NLRB 802, 805 (1961).
42 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
43 Silver State Disposal Service, 326 NLRB 84 (1998), quoting
Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 459 (3d Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
terms in the contract as applied to the facts.44 Finally,
although an agreement to submit disputes to final, bind-
ing arbitration may imply an agreement not to strike over
such disputes, a no-strike provision will not be implied
beyond the class of disputes that the parties have agreed
to resolve through compulsory terminal arbitration.45
In support of its claim that this strike was in violation
of the collective-bargaining agreement, the Respondents
cite the following provisions:
In article XX (“Miscellaneous”):

Section 7–No Speedups or Slowdowns
There shall be no speedups or slowdowns during the
life of this Agreement.

In article XXII (pertaining to duration and renewal of the
contract):46

Section 2—Renewal
Negotiations for renewal, modification or extension of
this Agreement may be instituted by either party not
earlier than 75 days prior to its expiration. In the event
such negotiations have not resulted in the renewal,
modification or extension of this Agreement prior to its
expiration, status quo conditions shall continue thereaf-
ter until either party gives the other written notice ter-
minating such conditions.

Although neither of those provisions mentions strikes,
the Respondents argue that each in fact prohibits strikes.
Their arguments for this position are entirely unpersua-
sive.
With respect to article XX’s prohibition of slowdowns,
the Respondents argue that a strike is just the ultimate
slowdown, and that the provision therefore prohibits
strikes as well. That argument, however, is contrary to
the ordinary meanings of “strike” and “slowdown.” A
strike is not simply an aggravated form of a slowdown:
as a general proposition, a strike is protected activity; a
slowdown is not.47 The Guild's agreement to prohibit
slowdowns, which are unprotected, thus cannot be
deemed a “clear and unmistakable” waiver of its pro-
tected right to strike.
The Respondents fare no better with their argument
that the “evergreen clause” in article XXII prohibited the
Guild from striking without first notifying Acquisition
that it was terminating “status quo conditions.” The “ev-

44 Mining Specialists, 314 NLRB 268, 269 (1994).
45 Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 105–106
(1962).
46 This provision is also referred to as the “evergreen clause.”
47 See, e.g., Phelps Dodge Copper Products Corp., 101 NLRB 360,
368 (1952).
ergreen clause” fails to mention not only strikes but any
sort of work stoppage at all. It merely states that, in the
absence of a renewed, modified, or extended agreement,
“status quo conditions” shall continue until either party
notifies the other in writing that it is terminating those
conditions. The ordinary language of that provision does
not suggest that the Guild may not use economic pres-
sure to achieve better terms in collective bargaining. The
Guild's agreement to the general provision that “status
quo conditions” shall be maintained—a provision that
does not even refer to strikes—therefore cannot reasona-
bly be found to constitute a “clear and unmistakable”
waiver of the right to strike.
Finally, if the parties had wanted to prohibit strikes in
either article XX or article XXII, it would have been a
simple matter for them to do so explicitly. That they did
not is further evidence that they did not intend to include
such a prohibition in either portion of the contract.48 For
all the foregoing reasons, then, I find no merit in the Re-
spondents’ affirmative defenses, and I would find that
they violated Section 8(a)(1), (3), and (5) as alleged in
the complaint.

Kevin M. Smith, Esq. and Yvonne Brown, Esq., for the General
Counsel.
Betty Southard Murphy, Esq., Elliot S. Azoff, Esq., and Thomas
F. Cooke, II, Esq. (Baker & Hostetler), of Washington,
D.C., and Cleveland, Ohio, for the Respondent.
Irwin Bluestein, Esq. and Hanan B. Kolko, Esq. (Vladeck,
Waldman, Elias & Engelhard, P.C.), of New York, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in New York, New York, on 14 days be-
tween October 16 and December 14, 1995. The Amended
Complaint alleges that Respondent NYP Holdings, Inc. (Hold-
ings), and Respondent NYP Acquisition Corp. (Acquisition),
both subsidiaries of News America Publishing Incorporated,
(NAPI), are alter egos, a single employer and a successor to
The New York Post Co., Inc., and that, in violation of Section
8(a) (1), (3), and (5) of the Act, they terminated employees for
engaging in a strike, refusing to reinstate them upon an uncon-
ditional offer to return to work, and that they withdrew recogni-
tion from the Union and made unilateral changes in wages,
hours and conditions of employment without prior notice to the
Union and without bargaining to impasse with the Union. Re-
spondent Holdings and Respondent Acquisition deny the mate-
rial allegations of the Complaint and deny that they engaged in
any violations of the Act.
Upon the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
48 See Silver State Disposal Service, supra.
NYP ACQUISITION CORP. 1055
by the General Counsel, the Respondent and the Charging Party
on March 29, 1996, I make the following1
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated as follows:
On March 29, 1993, NYP Acquisition Corp. entered into a
management agreement, post-petition loan agreement and post-
petition security agreement with The New York Post Co., Inc.
These agreements were approved by interim order of the Bank-
ruptcy Court in re The New York Post Co., Inc., United Bank-
ruptcy Court, Southern District of New York, Case Number 93
R 41306 (BRL) on March 29th, 1993 and by final order of the
court on March 30, 1993.
Between March 20, 1993 and October 1, 1993, Respondent,
NYP Acquisition Corp. received monies from The New York
Post Co., Inc. accounts in excess of $200,000 which were ap-
plied by NYP Acquisition Corp. as partial repayment of loans it
was making to The New York Post Co., Inc. all in accordance
with the post-petition loan agreement and the post-petition
security agreement between The New York Post Co., Inc. and
NYP Acquisition Corp.
Between March 29, 1993 and October 1, 1993, The New
York Post Co., Inc. derived revenues in excess of $200,000,
held membership in and subscribed to various interstate news
services, published various nationally syndicated features and
advertised various nationally sold products.
Since on or after October 1, 1993, Respondent, NYP Hold-
ings, Inc. annually, in conducting its business operation de-
scribed in Paragraph 2 (a) of the Complaint, derives gross reve-
nues in excess of $200,000, holds membership in and sub-
scribes to various interstate news services, publishes various
nationally syndicated features and advertises various nationally
sold products.
The parties agree, and I find, that Newspaper Guild of New
York, Local No 3 of the Newspaper Guild, AFL–CIO, (the
Guild), is a labor organization within the meaning of Section
2(5) of the Act.
Respondent argues that jurisdiction cannot be asserted over
Acquisition because the charge was served only on Holdings
but not on Acquisition. Respondent also contends that Acquisi-
tion does not meet the criteria for the assertion of jurisidiction

1 The Joint Motion of the Parties to Correct the Transcript of Hear-
ing received on May 24, 1996, is hereby granted and is attached as an
appendix. [Omitted from publication.] In addition, the following cor-
rections to the transcript are made: at page 84, line 3 should read “will
not contest the parties were at impasse”; at line 7 the phrase is “its final
proposal”; at page 180, lines 3 and 9, in all cases the word “perspec-
tive” should read ”prospective”; on page 378, line 9, the correct month
is “August”; on page 601, line 7, the correct date is June 6, 1985; on
page 664, lines 15-16 should read, “after the number was reached
through legerdemain or whatever they call it”; at page 699, line 2
should read “a 1993 letter from Mr. Murdoch”; at page 902, lines 3 and
11, “discreet” should be spelled “discrete”; at page 914, line 2 should
begin “Also not taken”; at page 969, line 8, the words “just issuable”
should be replaced by “justiciable”; at page 1052, line 16 and thereaf-
ter, the author’s name is Ken Auletta; on page 1115, the record should
show that Mr. Azoff was speaking and not Mr. Bluestein; at page 1239,
line 6, the fifth word is “breached”.
over newspaper enterprises. As discussed below, I find that
Holdings is an alter ego of Acquisition. Therefore, service on
Holdings was adequate service on Acquisition. Il Progresso
Italo Americano Publishing Co., 299 NLRB 270 (1990). Re-
spondent asserts that Acquisition did not receive revenues, was
not engaged in interstate commerce, did not subscribe to inter-
state news services, did not publish nationally syndicated
fatures and did not advertise nationally sold products. As set
forth in detail below, Acquisition managed and funded the Post
for The New York Post Co., Inc., a Debtor in Possession.2 It is
clear that Post Co. met the jurisdictional standards established
by the Board, but Post Co. had ceased managing the paper and
funding its operations. Aquisition received revenues from the
operation of the Post and applied these revenues to the paper’s
expenses, and Acquisition funded the paper’s losses with sums
received from NAPI, the guarantor of Acquisition’s manage-
ment agreement with Post Co. The fact that Acquisition was
not in a position to make a profit does not show that Acquisi-
tion was not receiving revenue. Further, Acquisition managers
notified all the vendors doing business with the Post that NAPI
guaranteed the financial obligations incurred by the paper dur-
ing the management period. Thus, Acquisition was responsible
for payments to the interstate news services and syndicated
features used by the paper and it received the advertising reve-
nue from the nationally sold products featured in the Post. I
find that Acquisition is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE FACTS
The transcript of the hearing and the documents admitted
into evidence in this proceeding are replete with detailed and
fascinating information about the newspaper business, labor
relations, politics, two different bankruptcy proceedings and a
number of memorable New York characters. In addition, the
briefs submitted by the parties recite the facts in great detail. I
have not been tempted to set forth at length all the facts con-
tained in the record. My task is to decide the case in as short a
decision as is compatible with the obligation to provide a basis
for the findings of fact and law. I have therefore omitted to
describe many of the events which are not necessary to the
decision.
A. Background
The New York Post, a daily tabloid published in New York
City and often identified as the oldest newspaper published in
the United States since its founding by Alexander Hamilton,
had a collective bargaining relationship with the Guild of about
55 years’ duration. The Guild represented employees in the
editorial, advertising, circulation, publication and business de-
partments. From 1976 through 1988, the Post was owned by
News America Publishing, Inc., or NAPI, a company controlled
by its chairman, K. Rupert Murdoch. Murdoch is the chairman
of the News Corporation Ltd., a South Australia company with
numerous worldwide subsidiaries, and through a chain of sub-
sidiaries, News Corporation is the ultimate corporate parent of
2 If Acquisition had been a straightforward debtor in possession,
there would have been no doubt of the Board’s jurisdiction. Karsh’s
Bakery, 273 NLRB 1131, 1136 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
NAPI. Murdoch exercises de facto control of News Corpora-
tion and all of its businesses. NAPI owns a New York City
based television station, WNYW (Channel 5). In 1988, the
FCC cross ownership rules which forbade NAPI from owning
both a major newspaper and a television station in the same
market resulted in the sale of the Post to Peter Kalikow, a per-
son then identified as a New York real estate millionaire. The
Post had been losing money for some time and, as a condition
of its sale to Kalikow, NAPI was required to negotiate agree-
ments with the eleven unions representing Post employees to
achieve a certain level of savings. After NAPI negotiated these
agreements, which for the Guild involved the loss of about 48
unit jobs, Kalikow bought the Post.
The New York real estate market declined and the Post kept
losing money. In 1991, Kalikow filed for personal bankruptcy
under Chapter 11. The Post, which was owned by Kalikow’s
company, The New York Post Co., Inc., was not in bankruptcy
and it continued to operate with the aid of further concessions
agreed to by the various unions. Kalikow funded the operating
losses of the Post until January 1993, when he threatened to
close the paper. At that point, two potential saviors of the Post
appeared in quick succession, Steven Hoffenberg, the head of
Tower Financial, and Abraham Hirschfeld, a parking lot mag-
nate. Suffice it to say that legal, financial and temperamental
problems prevented either of these two men from operating and
saving the Post. Hoffenberg took over management of the Post
while he arranged to buy it and, when his attempt failed,
Hirschfeld tried to run the Post beginning in mid-February,
1993. In a few weeks, conditions at the Post descended into
chaos as employees at all levels of responsibility were fired and
those employees who remained became mutinous.3 The New
York Post Co., Inc. filed for bankruptcy on March 15, 1993.
Throughout this period, efforts were made by civic leaders to
keep the paper alive.
B. NAPI Decides to Pursue the Post
Employees of the various Murdoch companies who had pre-
viously been associated with the Post began talking about the
possibility of reacquiring the paper. Patrick J. Purcell, the
president and CEO of NAPI, and a former publisher of the
Post, testified that the decision to pursue the Post was made in
early 1993 by him, Murdoch, and David DeVoe, the chief fi-
nancial officer of the News Corporation Ltd. It was decided
that NAPI “wanted a voice in the media capital of the world”.
Inquiries made by individuals connected with NAPI resulted in
a belief that the FCC would probably grant NAPI a waiver of
the cross ownership rules that would permit it to own both the
Post and station WNYW.4 On March 25, 1993, NYP Acquisi-
tion Corp. was incorporated as a subsidiary of NAPI to manage

3 For the past few years, employees of the Post had endured pay cuts
and had lived under the fear of not receiving regular pay checks and of
wondering whether payments had been made to fund their benefit and
retirement accounts.
4 NAPI would not sell TV station WNYW because it was a valuable
money-making property while even in the best circumstances the Post
was hardly expected to improve past the break even point.
the Post pending an eventual purchase of the paper.5 Acquisi-
tion was to provide debtor in possession financing and to ex-
plore the feasibility of purchasing the Post. Several of Respon-
dent’s witnesses testified that another purpose of Acquisition
was to acquire the Post.
Upon the filing of a petition in bankruptcy, the debtor filing
the petition becomes the debtor in possession by operation of
law. In the case of the Post, the debtor in possession was The
New York Post Co., Inc., whose stock was owned by Kalikow.
Kalikow had been in personal bankruptcy for some time and
was no longer financing the paper’s losses. The right to man-
age the Post had been held by Hirschfeld pursuant to a man-
agement agreement, but Hirschfeld had not exercised proper
management and he had not funded the paper’s losses.
The Post, which was now under supervision of the Bank-
ruptcy Court, was losing about $15 million per year. The pa-
per’s physical plant was old and outmoded and had little worth.
A newspaper has value only as a continuing enterprise: once it
closes, readers and advertisers go elsewhere and there is not
much chance of reviving such a paper.6 The New York City
newspaper market is highly competitive and hardly supports the
existing publications. Thus, in order to preserve the Post, an
immediate source of capital and the immediate introduction of
effective management was necessary.
After The New York Post Co., Inc., filed for bankruptcy, a
Committee of Unsecured Creditors was appointed by the
United States Trustee. The Newspaper Guild of New York was
one of the 11 members of this committee at its inception. Irwin
Bluestein, Esq., Counsel to the Guild, represented the Guild in
the bankruptcy proceedings.
On March 26, 1993, Arthur M. Siskind, Esq., the Executive
Vice President of NAPI and of Acquisition, and the General
Counsel of News Corporation Ltd., wrote to Bankruptcy Judge
Francis G. Conrad to confirm proposals made in an earlier tele-
phone conference. Siskind told the Judge:

a wholly-owned subsidiary of News America is prepared to
. . . assume full financial and management responsibility for
running the New York Post for an initial interim period of
sixty days. During that period, we will provide loans to fund
any operating deficit needed to continue publication of the
paper in its ordinary course. Because of our prior experience
with the paper, we are comfortable in providing this financial
undertaking without a dollar limitation. . . .
During the initial sixty day period we will use our best efforts
to secure a required waiver from the Federal Communications
Commission to allow the simultaneous ownership of the New
York Post and the Channel 5 (WNYW) television station.. . . .
Additionally, during this period we will undertake in good
faith to make an offer for the New York Post’s assets. . . .

On March 28, 1993, Stuart Hirshfield, Esq., wrote to Judge
Conrad stating that he represented both NAPI and Acquisition.
5 Acquisition was incorporated with Murdoch as chairman of the
board and Purcell as president; other NAPI board members completed
the slate of officers of Acquisition.
6 The exception to this rule is the shutdown of all newspapers in a
market which deprives readers and advertisers of the ability to shift to
any other local newspaper.
NYP ACQUISITION CORP. 1057
Hirshfield enclosed copies of the documents necessary for Ac-
quisition to take over management of the Post which were be-
ing submitted for Judge Conrad’s approval. Included was an
agreement whereby Hirschfeld relinquished his authority to
manage the Post.7 The “Recitals” in this agreement state that
Acquisition wished to acquire the Post. Submitted to Judge
Conrad, and sent to all the parties in the bankruptcy proceeding
with the formal documents, was a press release which an-
nounced that Hirschfeld and Murdoch “have signed an agree-
ment which it is hoped will lead to the transfer of The New York
Post to a subsidiary of News Corporation.” The press release
went on to say that “eventual ownership of the paper by News
Corporation will be dependent both on the granting of a perma-
nent waiver from the Federal Communications Commission
and the outcome of negotiations between unions representing
the newspaper’s employees, as well as its creditors.”
At the subsequent hearings before Judge Conrad, the Credi-
tors’ Committee was represented by Howard Seife, Esq.
On March 29, the Bankruptcy Court approved three docu-
ments necessary to keep the Post functioning until a purchase
could be effectuated; these were a management agreement to
permit Acquisition to manage the newspaper, a loan agreement
whereby Acquisition was to provide debtor in possession fi-
nancing and a security agreement which gave Acquisition cer-
tain priority liens.8 The management agreement was guaran-
teed by NAPI. The three documents approved by the Bank-
ruptcy Court insured that Acquisition would provide the funds
and management necessary to preserve the paper. The man-
agement agreement provided that Acquisition “may” seek
Bankruptcy Court approval to purchase assets of The New
York Post Co., Inc. The management agreement would expire
on June 1 but it could be extended for 30 days by Acquisition if
the FCC had not yet granted the waiver. In fact, on June 1,
Acquisition extended the management agreement for another
30 days.
It is not necessary to describe the financing arrangements in
the bankruptcy proceeding at any length. All the witnesses
agree that the Post was losing about $300,000 per week and
that Acquisition was providing this sum in addition to various
sums it provided at the inception of the proceedings. If,
against all expectations, the paper had become profitable during
the time it was managed by Acquisition, the profit would not
have belonged to Acquisition but would have become part of
the debtor’s estate.
The management agreement approved by the Bankruptcy
Court provided that Acquisition had the right to hire and fire
employees, but this right was

subject, in the case of any modification, termination, cancella-
tion, amendment or renegotiation of employee benefit plans
or collective bargaining agreements, to prior consultation with
the Debtor, and subject to Sec. 1113 of the Bankruptcy Code
and, where necessary, to Bankruptcy Court approval.. . . .

7 Everything about Hirschfeld was unusual, including the name of
his company, The New New York Post Corporation.
8 The final order approving the documents was issued on March 30,
1993.
Hirshfield testified that Acquisition did not seek to terminate
the collective bargaining agreement with the Guild or any of
the other unions at the Post because Acquisition was not deal-
ing with existing agreements; instead, it was seeking new con-
tracts with the unions.
It was possible, Hirshfield testified, for another purchaser to
buy the Post. The ultimate agreement to purchase the paper
would have to be negotiated with the Creditors Committee and
the Debtor prior to being approved by the Bankruptcy Court.
Another entity could outbid NAPI by offering a better bargain.
In fact, after March 29 a possible purchaser was on the horizon
for a while and it received financial information from the
Creditors Committee, but this competitor to NAPI did not ulti-
mately make an offer to buy the paper.
On March 29, 1993, Murdoch enjoyed a triumphant return to
the Post news room, telling the assembled staff, “It’s good to be
home.” Murdoch sent an interoffice memorandum to the em-
ployees of the paper thanking them for keeping the Post alive
and expressing the hope that NAPI would be able to continue
publishing the paper.
When Acquisition began to manage the Post on March 29,
1993, the paper’s employees, including all those in the unit
represented by the Guild, continued to work without any
change in the terms and conditions established by their respec-
tive collective bargaining agreements. The Post continued to
be published from the same facility and in the same circulation
area. The masthead of the paper identified Murdoch as Editor
in Chief. Purcell resumed the position of publisher.9 Ken
Chandler, who was then employed by a News Corporation
affiliate which produced a television show, was named editor.
Robert Peter Faris, who had been editorial manager of the Post
when it was sold to Kalikow and had continued to work at the
paper, was appointed general manager responsible for the day
to day operation of the Post.10 There is no dispute that from the
moment Acquisition gained the legal right to manage the Post it
exercised control over the editorial, administrative and financial
decisions that kept the paper running. Employees were in-
structed to fax the most important pages of the paper to Mur-
doch every day. Numerous people were hired to exercise man-
agement control on behalf of Acquisition, changes were made
in the content of the paper and in its appearance, and vendors
were informed that NAPI was responsible for all liabilities
incurred from March 29. There is no evidence that Acquisition
made any purchases involving substantial capital investment in
the Post.
9 Purcell has worked in various capacities for many News Corpora-
tion companies. Murdoch appointed him publisher of the Post in Janu-
ary, 1987, a position he held until the sale to Kalikow in 1988. In 1990,
Murdoch named him vice president of newspapers for NAPI and in
January, 1993, he became president and CEO of NAPI. Purcell left the
Post in February, 1994; he is now the publisher, president and owner of
The Boston Herald.
10 Faris first began to work for the Post in 1980. In 1993, he became
an executive vice-president of Acquisition and then of Holdings. In
February or March, 1994, Faris left the Post to become a supervising
producer at REPACA, which he identified as a producer of TV shows
for the Fox Televisions Stations, Inc., a part of the News America fam-
ily.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
C. Bargaining With the Unions
In order for a subsidiary of NAPI to purchase the Post, a
waiver of the cross ownership rules had to be obtained from the
FCC, the Bankruptcy Court had to approve the purchase and
NAPI had to be willing to go through with the purchase. It had
been made clear in the early bankruptcy proceedings that NAPI
would seek to negotiate changes with the unions. As will be
described below, NAPI announced that before it bought the
paper it would require concessions from the various unions
representing Post employees in order to achieve certain sav-
ings. NAPI wanted new collective bargaining agreements with
each of the eleven unions before it would go through with any
purchase.
To prepare for a possible purchase of the paper, Purcell ob-
tained reports from department heads at the Post showing
changes in operations that would result in savings of about $8
or $9 million. In discussions Purcell held with Faris and the
department heads, it was decided that the various unions would
be asked to agree to $6.2 million in cost cutting as part of the
new collective bargaining agreements to be negotiated before
the purchase was made. Purcell assigned the individuals who
were to conduct the negotiations: William A. O’Neill, an ex-
ecutive vice president responsible for human resources world-
wide in the News Corporation,11 Faris, the general manager of
the Post, and two members of Baker & Hostetler, Charles T.
Price, Esq. and Victor Strimbu, Esq. Faris had participated in
the negotiation of all of the collective bargaining agreements
involving the Guild since 1981.
Barry Lipton, the president of the Newspaper Guild of New
York, Local 3, testified that after March 29, he attended two
private meetings with O’Neill, Strimbu and Price.12 The first
private meeting took place at the end of March or the beginning
of April and the second took place before April 6. At each of
these meetings, O’Neill said that in order to take over the paper,
Murdoch had to have a waiver from the FCC, had to be ap-
proved by the Bankruptcy Court and had to have contracts in
place with all of the unions. If Murdoch were not successful,
the paper would perish. O’Neill said that negotiations would be
difficult and, with respect to the Guild unit, he mentioned three
areas where change was necessary: severance pay, a 6-month
evaluation period for unit employees and a subcontracting pro-
vision. If these issues were not resolved, Murdoch would not
purchase the Post.
On April 6, 1993, O’Neill addressed a meeting attended by
officials of the unions representing Post employees.13 He told
the unions that there were three hurdles to the ultimate purchase
of the Post and that one hurdle was change and sacrifice needed
to keep the paper alive. O’Neill said that he did not intend to
renew the existing collective bargaining agreements but that he

11 O’Neill is an executive vice president of Acquisition, NAPI and
the News Corporation Ltd. He is employed by the News Corporation
and is paid by NAPI.
12 Lipton has been president of the Union since 1985; before that he
was secretary-treasurer.
13 In his testimony concerning the prospective purchase, O’Neill
used interchangeably the terms “we”, “News Corporation”, “NAPI”
and “Acquisition.”
wanted new contracts. O’Neill stressed that the negotiations
that were about to take place with the Post unions would not be
normal negotiations. The NAPI negotiators were not repre-
senting an employer and they could walk away at any time.
The NAPI negotiators would determine whether new contracts
could be arrived at that would enable the prospective purchaser
to buy the assets and operate the Post. If the negotiations
failed, the purchase would not go through. A precondition to
the purchase was agreement with all the unions. The themes
sounded by O’Neill on April 6 were regularly repeated
throughout the negotiations that ensued, and the NAPI negotia-
tors often told the Guild that they did not represent the em-
ployer, they represented a prospective purchaser and they could
walk away at any time.
Faris testified that in the negotiations for a new contract with
the Guild he was bargaining on behalf of a prospective new
owner. The management negotiators did not yet know what
form the new owner would take; it might be Acquisition or
NAPI or a new company. The proposed contract given to the
Guild on May 27, 1993, defined the “Publisher” as New York
Post Acquisition Co., although this is not the correct name of
Acquisition. Whatever the term used in negotiations, whether it
was “News Corp.”, or “NAPI”, or “Acquisition”, or “Mur-
doch”, or “the new owner”, the record is clear that the Guild
negotiators knew that the management negotiators were bar-
gaining on behalf of a prospective purchaser of the Post. It was
clear that NAPI was eager to buy the paper and that it was
funding losses to the tune of $300,000 per week, but it was also
clear that unless significant labor concessions were reached and
were embodied in a new collective bargaining agreement, then
NAPI would not go through with the purchase. Lipton testified
that the “new owner” wanted a completely rewritten contract.
Although the Union would have been happy to have the old
agreement remain in effect, Lipton knew that the prospective
purchaser wanted a new collective bargaining agreement. Lip-
ton testified that he never negotiated with Acquisition to mod-
ify the agreement that covered Guild employees during the
Acquisition management period.
The first formal bargaining session with the Guild took place
on May 27, 1993. The proposed new contract presented to the
Guild at this meeting differed in many respects from the old
contract. For four months thereafter, Lipton and his negotiating
committee met with Faris, Price, Strimbu, and occasionally
O’Neill, in an attempt to reach agreement. As will be seen
below, the issues mentioned by O’Neill to Lipton during their
private meetings ultimately proved decisive in the negotiations
by preventing the parties from reaching agreement on a new
contract.
The NAPI negotiators wanted to gain the right to subcontract
Guild work. The Union was willing to discuss subcontracting
and it sought job security protections for those unit members
who might be affected by the changes. This subject was not as
difficult as the other two major proposals advanced by the
management negotiators.
The NAPI negotiators initially asked for a 6-month proba-
tionary period during which all unit employees would be evalu-
ated by management and during which those employees found
unsuitable could be discharged without recourse to grievance
NYP ACQUISITION CORP. 1059
procedures and without dismissal pay. The management nego-
tiators told the Guild that the editorial and advertising depart-
ments were critical to the paper because they were the only
revenue-generating departments. For the paper to be success-
ful, more revenue had to be produced and the prospective pur-
chaser needed employees with the skills to make the paper
viable. Price and Strimbu told the Union that if the sale went
through and the Post grew, the Guild would profit in that its
unit would expand.14 The prospective purchaser wanted to be
able to choose people who would reflect its editorial views and
it wanted to build an aggressive advertising staff. The Guild
replied with a proposal for a three month trial period with arbi-
tration of dismissals, a severance pay component and a pro-
posal that anyone terminated would be replaced. In the course
of the negotiations, NAPI agreed to shorten the evaluation pe-
riod, but it was resolute in resisting all Union proposals for
some sort of third party review. The most it would offer in the
way of review was a proposal that dismissals during the trial
period could be appealed to the publisher. The Guild was
equally resolute in disagreeing with what it called a “free fire
zone”, and Lipton told the NAPI negotiators that his members
would not work under a system whereby they could be dis-
charged without the right of appeal to a third party. As the
negotiations proceeded, various proposals were exchanged on
this subject but none of these proved to be the basis for an
agreement.
The new contract proposed by NAPI did not contain sever-
ance provisions similar to those in the traditional Guild con-
tracts of the past. NAPI was offering compensation of one
week’s pay for each year of service to any employee who was
dismissed or discharged, with a cap of eight weeks’ pay based
on service accumulated under the new employer. The old con-
tracts had provided for a generous accumulation of severance
pay which was viewed by long service employees as a major
part of their financial security in retirement: employees who
were dismissed or discharged could receive up to 50 weeks
severance pay, and those employees who had reached age 50
with 20 years of employment, could resign and receive full
severance pay. Some employees were entitled to almost one
year’s pay under the old contract. Although employees had
claims pending in the Kalikow and New York Post Co. bank-
ruptcy cases for their accumulated severance pay, they could
not realistically expect to collect more than a tiny fraction of
what they claimed. Thus, the Guild was insistent that a new
owner of the Post carry forward the accumulated severance pay
entitlement of the unit employees. The accumulated severance
entitlement was calculated as a sum in excess of $7 million, an
obligation the prospective purchaser was not willing to assume
in view of the goal to achieve $6.2 million savings in the new
contracts with all eleven unions.
Negotiations continued, but extensive discussions of the pro-
posals made by each side did not lead to an agreement. The
Union would not agree to any contract that did not carry for-

14 The proposal for dismissals during a probationary period was not
meant to shrink the Guild unit; rather, the NAPI negotiators told the
Union that the new owner intended to replace those dismissed with new
employees.
ward the severance obligation and that did not provide for third
party review of dismissals from the Guild unit. The NAPI
negotiators would not agree to any contract that imposed sever-
ance obligations accumulated under a previous employer and
that imposed a review of dismissals during the initial evaluation
to be conducted by the new employer.
On June 11, the Guild was authorized by unit members to
conduct a strike, although no strike deadline was set.
On June 29, the FCC granted the waiver of the cross-
ownership rules so that both the Post and station WNYW could
be owned by News Corporation Ltd.
On June 30, the Bankruptcy Court issued an Order extending
the management agreement between the Post and Acquisition
for 60 days. The Order stated that:

News America believes that ... The Post will not be economi-
cally viable unless its labor costs are significantly reduced

The Order went on to recite that the 60 day extension was
sought for various purposes: for the purpose of negotiating
with the various labor unions so that the operation of the paper
becomes “in the determination of News America, economically
viable”; for the purpose of negotiating with the parties in the
bankruptcy case for a purchase of the assets of the Post “if
such labor negotiations are concluded on terms acceptable to
News America”; for the purpose of tendering an offer to ac-
quire the assets; and for the purpose of seeking approval of the
court if the offer was accepted. The Order extended the man-
agement and financing agreements until August 30, 1993, but it
gave Acquisition the right to terminate the management agree-
ment if any of the purposes recited above were not met. Acqui-
sition was obliged to give notice of three days if it wished to
terminate the management agreement.15
On June 30, Purcell set a deadline of July 9, 1993, for reach-
ing agreement on new contracts with all eleven Post unions.
NAPI wanted the new contracts by that date so that it would
know whether it could go forward with a purchase of the pa-
per’s assets. On July 6, when it seemed that the deadline
would not be met, Siskind gave notice to the parties in the Post
bankruptcy on behalf of NAPI and Acquisition that the man-
agement agreement would terminate on the afternoon of July 9.
Siskind’s letter reserved “the right to cancel this notice in the
event that collective bargaining agreements acceptable to News
America and Acquisition are reached with the unions on or
before” the afternoon of July 9. On July 9, Purcell decided that
there was insufficient progress in negotiations with the unions
and he made the decision to close the Post. The NAPI negotiat-
ing team dispersed, and the Post was not published for two
days. However, following the intervention of Governor Cuomo
of New York, the negotiations resumed and agreements in prin-
ciple were reached with ten unions but not with the Guild.
These agreements gave NAPI the $6.2 million savings it had
sought.16 On July 12, by stipulation of the parties in the bank-
ruptcy case, the management agreement was reinstated be-
15 The Bankruptcy Court Order recited the fact that the FCC waiver
had been granted.
16 Under these ten agreements, a number of employees would lose
their jobs upon the effective date of the contracts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
cause, as stated in the Order of the Bankruptcy Court, “In the
judgment of News America, sufficient progress has now been
made in negotiations with certain labor unions to permit rein-
statement of the Management Agreement.” The Post began to
publish once more, but there was still no agreement with the
Guild.
Once the FCC waiver had been secured and agreement in
principle had been arrived at with most of the Post unions, the
purchase of the paper seemed possible to the NAPI representa-
tives. As the manager of the paper in the bankruptcy case,
Acquisition was under a duty to make certain financial reports
to the other parties. NAPI decided that the purchase should be
carried out by a new company with independent records that
would not be accessible to the Creditors Committee and the
Debtor, and with independent relationships with vendors, em-
ployees and the unions. On July 12, 1993, NYP Holdings, Inc.,
was incorporated as a subsidiary of NAPI to carry out the even-
tual purchase of the Post. The slate of board members and
officers of Holdings when it was incorporated was practically
identical to the board members and officers of Acquisition;
Murdoch was listed as chairman of the board.17
Throughout July, August and September, the Guild and
NAPI negotiators tried to resolve the issues standing in the way
of a collective bargaining agreement. After July 9, there were
approximately 15 bargaining sessions during which the parties
discussed severance, subcontracting and the evaluation or pro-
bationary period. Various concepts and proposals were ex-
changed, but no agreement was reached. The Union would not
depart from its demand that dismissals during the evaluation
period should be subject to some sort of third party review and
the prospective owner insisted that it should have the unfettered
right to staff the paper with employees possessing the skills it
believed were necessary. Both sides discussed the fairness of
the evaluation and dismissal process, and the NAPI negotiators
presented an evaluation proposal that did not include outside
review. The Union asked how many unit members would be
dismissed during the evaluation period, but the NAPI negotia-
tors said they would not know that until the purchase of the
Post’s assets had been accomplished. The Guild representa-
tives stated throughout the negotiations that Guild members
would not work under the probationary concept demanded by
the prospective purchaser. The Union wanted the prospective
purchaser to fund the employees’ severance rights. Although
the NAPI negotiators eventually offered a pot of $1.5 million
for those dismissed during the probationary period in lieu of
assuming the $7 million accumulated severance obligation of
all the unit employees, this offer was not acceptable to the Un-
ion.
At the negotiation session held on September 7, the Guild
announced that if the major items in contention were not re-
solved that week, its members would strike.18 However, nego-
tiations continued and no strike took place. On September 15,
the NAPI negotiators gave the Union a proposal on the subcon-

17 Acquisition was eliminated in March, 1994, after Holdings bought
the paper.
18 At this time, the NAPI negotiators were working on the final lan-
guage of the written agreements with the ten other unions.
tracting issue, but this was not acceptable to the Guild and it
was rejected. There was a further discussion of the evaluation
and severance issues, but no agreement was reached. Aside
from some private meetings which were not successful in
breaking the deadlock between the parties, no collective bar-
gaining negotiations were conducted between September 15
and September 27. On that last day, the negotiators did not
change their positions and they did not reach agreement.
D. Approval of Asset Purchase
While the negotiations with the Guild were proceeding, a
motion was filed in the Post Co. bankruptcy case on August 6,
1993, seeking approval of the Asset Purchase Agreement be-
tween Post Co. and Holdings. The Guild filed an objection to
the proposed sale. In his September 8 affidavit supporting the
Guild’s objection to the sale, Lipton stated that the sale price
was insufficient to pay the claims of unit members. Lipton
averred:

These claims . . . include . . . approximately 6.9 million dollars
for severance pay to Guild-represented employees whose em-
ployment with the Debtor will be terminated by the Debtor
upon the closing of the Asset Purchase Agreement and who,
whether or not they become employees of NYP Holdings will
be entitled to severance when terminated by the Debtor at the
closing of the transaction.

The purchase price, calculated at about $23 million, included
cash and the assumption of certain liabilities, plus an amount
equal to the advances made by Acquisition, plus liabilities to be
assumed and paid in connection with certain assumed execu-
tory contracts and leases.19 At the closing, Holdings was to pay
The New York Post Co., Inc., about $2.7 million and Holdings
was to pay Acquisition over $10 million in repayment of loans
made by Acquisition to Post Co. pursuant to the loan agreement
of March 29, 1993. The motion requesting approval of the
asset purchase agreement informed the Bankruptcy Court that
as part of Holdings’ acquisition of the assets:

News America has negotiated and reached new agreements in
principle with ten of the eleven labor unions which represent
the Newspaper’s employees. . . . These agreements in princi-
ple are not scheduled to take effect until after the Closing Date
and are between News America and the Unions. The Post is
not a party to these agreements in principle, and the Unions
would not be bound to these agreements if a third party ac-
quired the Post.

While approval of the asset purchase agreement was pend-
ing, the Bankruptcy Court issued an order extending Acquisi-
tion’s management agreement and the financing agreements
until October 1.
The Bankruptcy Court held a hearing on September 14, to
consider approval of the asset purchase agreement between
Holdings and The New York Post Co., Inc. At the hearing,
Hirshfield informed the Judge that Holdings had negotiated
new collective-bargaining agreements with all but one of the
unions. These agreements were subject to ratification by the
19 The liabilities specifically assumed did not include the severance
pay liability under the old contract covering the paper’s employees.
NYP ACQUISITION CORP. 1061
respective memberships of the units involved, and they would
become effective upon closing of the asset purchase. He stated,
“There is no present agreement with the Newspaper Guild nor
is NYP Holdings or the Post assuming anything with respect to
their contract.” Hirshfield said that although the asset purchase
agreement required new union contracts to be in force as a con-
dition of closing the purchase of assets, Holdings would never-
theless close the deal even if it had not arrived at an agreement
with the Guild. Further, he stated that Faris, if called to testify,
would state that failure to reach agreement with the Guild
would not affect the sale; “[W]e would close without that.”20
The asset purchase agreement provided that Holdings could
terminate the purchase agreement if it had not entered into col-
lective-bargaining agreements with such of the unions as it
selected, on terms and conditions acceptable to it in its sole
discretion.
The Bankruptcy Court issued an Order dated September 14,
approving the sale of assets of The New York Post Co., Inc., to
NYP Holdings, Inc., free and clear of all liens, claims and en-
cumbrances. The Order included a provision that:

Except as provided in the asset purchase agreement, from and
after the closing date, NYP [Holdings] shall not be deemed to
be or liable as a successor in interest to the debtor for any
claims, liabilities, damages or causes of action with regard to
the purchased assets which arise from or relate to the period
prior to the closing date.

Although it had filed an objection, the Guild did not appeal the
Bankruptcy Court’s Order approving the sale.21
Both Lipton and O’Neill were present at the Bankruptcy
Court hearing when the asset purchase agreement was approved
on September 14. Lipton testified that he spoke to O’Neill
briefly and asked him what the position would be if no agree-
ment with the Guild had been reached by the time the sale
closed. According to Lipton, O’Neill replied that they would
either continue to recognize the collective-bargaining agree-
ment or they would post conditions. According to Lipton,
O’Neill went on to say that the proposed probationary period
would not be harmful; it would only affect a small number of
employees. O’Neill denied Lipton’s version of their conversa-
tion in the Bankruptcy Court. He recalled that Lipton apolo-
gized for some harsh words the Union negotiators had used at a
recent meeting and that Lipton said, “This is going to be terri-
ble, we must have a contract.” O’Neill testified that he replied
that NAPI wanted no more than the publisher had at the com-
petitor Daily News. Lipton responded that he knew what
O’Neill wanted and that he would get there in his own way.
O’Neill denied telling Lipton that if there were no new contract
when the sale closed they would continue to work under the
same terms or post conditions.

20 Respondent offered no testimony to explain why, on September
14, the NAPI position was that a closing could take place if the other
unions ratified their contracts even if no agreement was reached with
the Guild. From the outset of negotiations with the eleven unions,
NAPI negotiators had maintained that agreement with all of the unions
was a precondition to a purchase of the paper.
21 The actual closing took place on October 1, 1993.
Lipton stated that at one of the last bargaining sessions in
September, either Faris or Price said that they had not decided
what would happen if no agreement were reached; they might
go for it under the existing terms or they would post conditions
if impasse occurred. Price, who attended all of the September
bargaining sessions, testified that neither he nor Faris ever said
that if no contract were reached they would go for it under the
existing terms or post conditions if an impasse occurred. Price
denied that there was ever any discussion of what might be
done if no agreement were reached with the Guild. Faris was
not asked whether the NAPI bargainers made any reference to
what would happen if no agreement were reached with the
Guild.
E. The Strike and Its Aftermath
The Guild announced a strike deadline of 4pm for September
27, 1993.22
On September 24, Faris issued an interoffice memorandum
to Post employees in the Guild unit informing them of their
rights to strike or not to strike, and to resign and cross the
picket line in case of a strike. The memorandum expressed the
hope that employees would continue to report to work during
any strike. At the same time, Faris addressed a memorandum
to all the other Post employees, telling them that they were
expected to work during any strike by the Guild.
Before 4 p.m., on September 27, the Guild negotiators met
with Price and Faris to talk about the issues, but neither side
would change its position. During the discussions, Faris asked
Lipton whom the Guild was striking and Lipton responded that
the Guild was striking the Post. Price testified that he told
Guild negotiators that Holdings would not purchase the Post if
they struck and the paper was not published.
After they left the meeting with the Guild, Price and Faris
went into Purcell’s office where they were joined by O’Neill
and Strimbu and officers of the Allied Printing Trades Council,
the umbrella organization of newspaper unions. Price and Faris
reported that no agreement had been reached and that the Guild
was prepared to strike at 4pm. The officers of the Allied ex-
pressed their concern and stated that they wanted the asset pur-
chase to be completed by Holdings in order to preserve jobs for
their unit members. After briefly leaving Purcell’s office to
speak to the Guild committee, the Allied officers returned with
Lipton and other Guild negotiators. The major issues were
discussed again and the NAPI negotiators stated that they
would not agree to third party determination and to an assump-
tion of the severance obligation. According to Purcell, when he
reiterated his position against third party review of dismissals
during the evaluation period, Lipton replied that under no cir-
cumstances would his members work for the paper under those
conditions. Purcell thought that this statement was a declara-
tion of impasse. Strimbu recalled that Lipton told those present
at the meeting in Purcell’s office that the Guild would never
agree to the three conditions demanded by the NAPI negotia-
tors. Lipton said the membership would not approve it. Lipton
recalled this meeting in his testimony; he told Purcell that if
they could reach agreement in principle on the issue of third
22 The record is not clear when this deadline was set.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
party review, the Guild employees would work while negotia-
tions went forward. According to Lipton, Purcell responded by
turning to the other union leaders present and telling them that
the paper would be closed unless they went to work.
Lipton testified that no NAPI representative ever asserted to
him that a strike violated the law or any collective bargaining
agreement. Lipton testified that the Guild strike was not moti-
vated by breaches of the agreement between The New York
Post Co., Inc. and the Guild; rather, the strike was called to put
pressure on Holdings to agree to contract demands which the
Guild was seeking for the prospective collective bargaining
agreement.23 Lipton stated that the Guild struck because it did
not receive a “positive response” to the severance and proba-
tionary issues.
At 4 p.m. on September 27, 1993, the Guild put up its picket
line around the building where the paper was published. The
picket signs proclaimed a strike against the Post. Lipton testi-
fied that the Guild employees were striking in order to prevent
publication of the paper by convincing the other unions not to
cross the picket line. The unions who belonged to the Allied
Printing Trades Council had voted not to support the Guild’s
strike.24 However, on September 27, the members of the Allied
refused to cross the Guild picket line and the September 28
edition of the paper was not published. Purcell testified that he
decided that night to shut the paper down and he advised Mur-
doch of his decision. The next day, he and Murdoch agreed
that they had no choice but to close down.
Strimbu testified that on September 28, McDonald of the Al-
lied telephoned him and said he wanted to do something to
preserve the jobs of the paper’s employees. He told Strimbu
that the Allied employees would cross the picket line and come
to work. Strimbu told McDonald to call O’Neill and Purcell.
On September 28, Faris wrote to Lipton on behalf of Acqui-
sition stating:

The strike by the Newspaper Guild of New York ... against
The New York Post has terminated any and all terms and con-
ditions of employment of employees of the New York Post
Co., Inc. represented by the Guild provided for in any agree-
ment of any kind or nature between The New York Post Co.,
Inc. and the Guild. Since the Guild struck without formally
terminating such terms and conditions as provided for in the
expired collective bargaining agreement, the Company is con-
firming that such terms and conditions have been terminated.

Lipton replied the same day, writing:

I have your letter of September 28, 1993 purporting to
confirm the termination of the collective bargaining
agreement governing the terms and conditions of employ-
ment of the employees in the Guild’s bargaining unit at
The New York Post.

23 Lipton’s affidavit of January, 1994, in the Kalikow bankruptcy
case states that he negotiated with Holdings for a collective bargaining
agreement to take effect when the paper was sold and that the Union
struck to put pressure on Holdings to agree to Guild demands.
24 The Guild had terminated its membership in the Allied in early
1993. Lipton testified that the head of the Allied, George McDonald, is
not viewed as a friend of the Guild.
The Guild does not agree that the September 27, 1993
strike has that effect.

Faris responded to Lipton’s letter on the same day:

. . . clearly your strike altered the status quo condi-
tions and ended the Agreement between New York Post
Co., Inc. and Newspaper Guild of New York.
Lest there be any doubt as to whether the Agreement
somehow survives your strike, please be advised that NYP
Acquisition Corp., in its capacity as manager of the New
York Post, hereby gives Newspaper Guild of New York
notice of termination of the collective bargaining Agree-
ment between New York Post Co., Inc. and Newspaper
Guild of New York and all the terms and conditions atten-
dant thereto, effective immediately.

The exchange ended on September 30, 1993, with Lipton’s
letter in response to Faris, maintaining that:

The Guild does not agree that you have the right to
take the action you have purported to take, and it reserves
all of its rights.

Lipton testified that he made two telephone calls to Purcell
in which he requested that bargaining continue. On the second
evening of the strike, he asked Purcell if they could resume
bargaining and come to an agreement which would end the
strike and get the Guild members back into the building. Pur-
cell said it was too late because Murdoch had already decided
to close the Post. The next day, Lipton testified, he was on his
way to an Allied meeting when he again telephoned Purcell to
request a resumption of the negotiations, but Purcell said it was
too late, Murdoch had closed the paper. Lipton’s testimony
concerning the timing of these calls was subject to an under-
standable confusion in that he was awake and conducting busi-
ness without any rest during this period. Lipton testified that
the first call was made in the middle of the night and thus it was
probably placed late on the 28th or very early on the 29th. The
second call was made many hours later. As described below,
Lipton attended a meeting of the Allied where the other unions
tried to convince him to return Guild members to work. This
meeting would have taken place before another meeting, de-
scribed below, between the Allied and Murdoch and his nego-
tiators during the night of September 29. Purcell did not testify
about Lipton’s two requests to bargain, and Lipton’s testimony
is thus unrebutted.
The Post was not published on September 29, and on that
day Governor Cuomo intervened once more to try to save the
paper.
Lipton testified that on September 29, the leaders of the Al-
lied invited him to attend a meeting. The Allied officials told
Lipton that Purcell had already taken steps to close the paper.
The Allied officials requested that Guild members report to
work that evening, and they said that they would try to con-
vince Purcell to resume publication if the Guild agreed to re-
turn. Lipton told the Allied officials that he needed an agree-
ment in principle that there would be negotiation concerning
third party review, but that if there were no such agreement his
members would not return to work. Lipton testified that he
could not agree to the NAPI proposal for a probationary period
NYP ACQUISITION CORP. 1063
because it was a “fire at will” situation with no job security.
Lipton reiterated that he had often told the negotiators for the
new owner that he would not agree to any contract without
third party review of dismissals during the evaluation period; he
explained to the management negotiators that there was an
absolute certainty that his members would not work without
recourse to third party determination.
Purcell testified that he received a telephone call from
McDonald, the head of the Allied, saying that he would try to
convince the members of the production unions to come back
to work and asking Purcell whether he would reopen the paper
on that basis.25 Purcell agreed to ask Murdoch about this idea.
After consulting with Murdoch, Purcell informed McDonald
that if all the other unions returned to work, Holdings would go
forward with its purchase of the Post and Holdings would exer-
cise its right as a new employer to hire a new white collar work
force. Strimbu described a meeting held at night on September
29 at the News Corporation building on 6th Avenue in New
York City which he attended with Murdoch, Purcell, O’Neill
and Price and officials of the craft unions and the drivers’ un-
ion. At this meeting, the ten unions gave their pledge that if
Holdings would go forward with its plan to acquire the Post,
their members would cross the picket line. Strimbu stated that
Purcell had decided to hire a new workforce in the former
Guild areas. He would start up the publication of the paper
with exempt personnel and immediately being the hiring proc-
ess for new employees.
At 8 p.m. on September 30, the ten unions crossed the Guild
picket line and publication of the Post resumed. On October 1,
Holdings purchased the assets of The New York Post Co., Inc.,
pursuant to the asset purchase agreement approved by the
Bankruptcy Court. Also, on October 1, Holdings signed new
collective bargaining agreements with the ten unions; their
members did not have to apply for employment with Holdings.
On September 30, Faris wrote to Lipton on behalf of Hold-
ings, informing him that:

N.Y.P. Holdings, Inc. (the “Company”) is seeking to
purchase certain assets of the New York Post., Inc. If the
Company purchases such assets and if such purchase is
approved by the United States Bankruptcy court ... the
Company will not assume and will not be bound by any
agreement of any kind or nature, whether written, oral, ex-
pressed or implied between any predecessor publisher
and/or owner of the New York Post newspaper ... including
without limitation any collective bargaining agreements,
letters of interpretation, verbal understandings, past prac-
tice or arbitration awards.
If such purchase is completed . . . the Company, as a
new employer, will be hiring persons and will establish the
initial terms and conditions of employment for those per-
sons, including for those persons it may hire who were
represented by the Guild under predecessor owners of The
New York Post. . . .

On October 2, Lipton testified, he telephoned O’Neill and
told him the Guild members would probably vote to end the

25 Purcell did not testify what date he received this telephone call.
strike and would make an unconditional offer to return to work.
O’Neill said it was too late; the paper would be hiring a new
staff and it had no obligation to accept the Guild members who
were free to apply for employment with everybody else. Later
that day, Lipton spoke to Faris and informed him that the Guild
had voted to cease picketing. Faris said that the Guild members
could apply for work with everybody else.
The Guild picket line was taken down on October 4. On that
day, Lipton wrote to Faris and told him that the Guild had
ceased all strike and picketing activities at noon. Lipton’s letter
stated, “On behalf of the employees in the Guild’s bargaining
unit at The Post, the Guild hereby makes an offer to return to
work.”
Faris replied to Lipton by letter of October 5. He said:

. . . N.Y.P. Holdings, Inc., as a new employer, is in the
process of accepting applications and hiring employees to
work in a number of positions at the newspaper. N.Y.P.
Holdings, Inc. has received applications from New York
Post Co., Inc. employees as well as from other applicants
and will be processing all applications over the next few
months.
Since persons you represent are New York Post Co.,
Inc. employees, you should direct questions concerning
your offer and the status of your members to that com-
pany.

As stated in Faris’ letter, Holdings required Guild members
to fill out employment applications. The record is not clear
how many employees were in the unit represented by the Guild.
The Guild’s publications stated that there were 287 unit mem-
bers. Respondent’s brief states that there were over 200 Guild
employees. General Counsel submitted an exhibit which lists
278 employees, but General Counsel’s brief states that there
were 192 employees. Of the Guild employees of the Post on
September 27, 1993, Price estimated that 70 to 75 were em-
ployed by Holdings.26 As of the time of the instant hearing,
from 235 to 240 employees were in positions formerly repre-
sented by the Guild. There is no dispute that the terms and
conditions under which these employees were hired differ from
those in effect before October 1, 1993, and differ from those in
any contract offer made by the NAPI negotiators to the Guild
during the course of their negotiations. Respondent does not
contend that it implemented its final offer after the strike.
An October 5, 1993, Bulletin published by Local 3 and enti-
tled “Update on situation at the Post”, attacked Murdoch for
using the federal bankruptcy laws to steal the jobs of 287 Guild
employees at the Post. The document criticized the Allied for
encouraging its members to cross the picket line which resulted
in a situation where Guild members had to reapply for their
jobs. The Bulletin quotes Lipton as stating “that the . . . . situa-
tion was brought about by federal bankruptcy laws. . . . Be-
cause Murdoch’s purchase of the paper was the result of an
26 Price testified that the actual number of hires was higher because
some people were hired directly to management positions and some
were hired but then quit. As many as 90 former Post Co. Guild em-
ployees may have been hired by Holdings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
‘asset sale,’ he could ignore the Guild contract and get away
with terminating the strikers.”
On October 1, 1993, Marilyn Simon, Esq., bankruptcy coun-
sel to the debtor in The New York Post Co., Inc. bankruptcy
case, wrote to Bluestein in his capacity as counsel to the Guild.
Simon wrote that the asset purchase agreement between the
Debtor and Holdings had closed and that as a result of the clos-
ing:

. . . all of the Purchased Assets . . . have been transferred to
NYP [Holdings} and the Debtor has ceased operations as an
ongoing entity. . . . Accordingly, you are hereby notified that
the Debtor no longer requires the services of the Guild em-
ployees. . . .

On October 7, Randy M. Mastro, Esq., counsel to Peter
Kalikow, sent a letter to Bluestein by fax, informing him that
Simon’s letter was unauthorized by his client.27 Mastro’s letter
contended that Simon’s letter was inaccurate. Mastro stated
that the Guild struck the New York Post Co. before the sale and
the strike continued after the sale. The letter concluded:

. . . To the extent that any Guild members do not have
employment with the Post as of today, they have only
themselves and the Post’s new owner to blame. My client
had nothing to do with that circumstance and, indeed, even
prior to the sale, had turned over management control of
the Post to the eventual new owner.

Mastro had previously informed the Bankruptcy Court at a
June 30 hearing that his “client’s concern obviously is in seeing
that the Kalikow estate not have liabilities when the Post is
sold.”
On October 27, 1993, Lipton wrote to Faris as follows:

As you were informed on October 4, 1993, the Guild
ended its strike against the Post and, on behalf of all
Guild-represented striking employees, offered to immedi-
ately return to work. To date, the vast majority of em-
ployees formerly on strike have not been returned to work.
Please advise me as to when these employees may expect
to return to work
The Guild is still committed to negotiating and reach-
ing a collective bargaining agreement with the Post. To
that end, the Guild is willing to meet and negotiate at any
time, and for as long as needed, so that we can reach an
agreement. Please advise me as to dates on which the Post
is available to bargain.

On November 3, Faris responded by referring Lipton to his
October 5 letter and suggesting that Lipton write to The New
York Post Co., Inc. which had changed its name to Kopa, Inc.
The Guild filed its first charge herein on November 1 and it
was served on Holdings on November 12, 1993.
F. Relevant Collective-Bargaining Agreements
1. The last complete collective bargaining contract between
the Post and the Guild had a term from March 31, 1981 to
March 31, 1984, and was negotiated by a News America com-
pany.

27 Mastro did not represent The New York Post Co., Inc.
Article X—Severance Pay, provided, in substance, for up to
50 weeks severance pay for long service employees and pro-
vided that employees could collect full severance pay upon
reaching age 50 or completing 20 years’ service.
Article XIII—Job Security, provided that discharge must be
upon just and sufficient cause and that economy dismissals
must be by reverse seniority. All dismissals were subject to
ultimate decision by an arbitrator.
The grievance procedure in Article XIX provided, inter alia,

Section 5 - Renewal of Agreement
The renewal of this Agreement shall not be considered
a dispute under the provisions of this Article and shall not
be subject to Arbitration.

Section 6 - Pending Arbitration
There shall be no suspension of work over an issue
which is in dispute and is in process of arbitration.

Article XX - Miscellaneous provided, inter alia,

Section 7 - No Speedups or Slowdown
There shall be no speedups or slowdowns during the
life of this Agreement.

Article XXII provided for duration and renewal

Section 1 - Duration
This Agreement . . . shall inure to the benefit of and be
binding upon the successors and assigns of the parties, it
being understood, however, that transfer, sale or assign-
ment of the ownership or control of the paper shall not be
construed nor considered as a break in the continuity of
employment of the employees. . . .

Section 2 - Renewal

Negotiations for renewal, modification or extension of this
Agreement may be instituted by either party not earlier than 75
days prior to its expiration. In the event such negotiations have
not resulted in the renewal, modification or extension of this
Agreement prior to its expiration, status quo conditions shall
continue thereafter until either party gives the other written
notice terminating such conditions.
2. The 1981–1984 contract was extended several times with
modifications not relevant herein. A memorandum of agree-
ment dated January 7, 1988 was negotiated by News America
and signed by Purcell. It was effective from March 31, 1987
through March 30, 1988. This memorandum substituted new
language for the successors and assignees language of Article
XXII, Section 1:

The collective bargaining agreement shall be binding
upon the Publisher and its successors and assignees.
It is acknowledged that the terms “successors” and
“assignees are intended to mean any entity to which all or
substantially all the newspaper operations or related assets
of the New York Post are sold, merged or otherwise trans-
ferred regardless of the form of the transfer, provided that
the purchaser or transferee continues to produce daily
and/or Sunday newspapers for distribution within the terri-
torial jurisdiction of the union.
NYP ACQUISITION CORP. 1065
This agreement shall survive the expiration of the col-
lective bargaining agreement.

3. On March 8, 1988, a memorandum of agreement negoti-
ated by NAPI and the Guild and signed by NAPI, the Guild and
a representative of Kalikow provided the cost and staff reduc-
tions necessary for NAPI to sell the paper to Kalikow. This
memorandum provided :

1. The current collective bargaining agreement be-
tween News America and the Guild and all obligations
thereunder shall be assumed by Kalikow on the closing
date of sale by News America of the assets of the Post to
Kalikow and shall be extended to and including March 6,
1991 with only the changes and modifications hereinafter
set forth.
2. On and after the closing date, the publisher of the
Post and the employer of all Post employees shall be Kali-
kow. . . .

4. Following further modifications of the agreement, Kali-
kow and the Guild agreed to a further extension on May 4,
1992. This short memorandum provided that the current con-
tract would remain in effect until a new contract was ratified,
that any increases granted in the new contract would be retroac-
tive to March 6, 1991, and that

In the event ownership, in whole or in part, of the Post
is transferred during the term hereof, whether by sale of
stock, assets, merger, lease consolidation or any other
form of transfer of title or interest, or if the Post enters
into, or any corporate parent of (sic) affiliate causes it to
enter into, a joint operating agreement or any other kind of
combination or merger with another newspaper, then this
Memorandum of Agreement shall thereupon be null and
void.

Lipton testified that from May to September, 1993, Faris and
Price took the position that there was no collective bargaining
agreement in effect at the time. However, Lipton stated that in
mid-July, he reached an agreement with O’Neill that Acquisi-
tion would reaffirm in writing that the parties were operating
under the terms and conditions of the collective bargaining
agreement. At a July 28 bargaining session, Faris told Lipton
that he recalled this conversation but he would have to check
whether they had agreed to put it in writing. Faris later told
Lipton he had not checked the position and the agreement was
never put into writing.
O’Neill testified that at a July 9 bargaining session, Lipton
asked him what terms and conditions would prevail from that
point on. O’Neill replied that the existing terms and conditions
would continue until a new contract was negotiated. When
Lipton asked him to put that in writing, O’Neill refused saying
that it was a matter of fact and did not have to be substantiated.
He recalled that Lipton repeatedly asked that he put in writing
his statement that the terms and conditions during the Acquisi-
tion management period would be those of the old contract, but
that he saw no point to this exercise because of the evergreen
clause in the old contract.
G. Discussion and Conclusions
The General Counsel’s argument is clear. General Counsel
maintains that even though Acquisition did not own the Post, it
was nevertheless a “legal successor” to The New York Post
Co., Inc., with an obligation to recognize and bargain with the
Guild on behalf of the unit employees as of March 29, 1993.
General Counsel asserts that Acquisition refused to bargain
with the Guild on September 28 and 29. General Counsel fur-
ther asserts that Holdings is an alter ego of Acquisition with an
obligation to recognize and bargain with the Guild; when Hold-
ings refused to bargain with the Guild, withdrew recognition
after it had purchased the assets of the paper and established
new terms and conditions of employment, Holdings violated
the Act. General Counsel argues that Holdings discharged
Guild employees because they struck and that Holdings refused
to reinstate them pursuant to their unconditional offer to return
to work and that these actions constitute further violations of
the Act.
Respondent denies that Acquisition was a successor to The
New York Post Co., Inc., maintaining that it was no more than
a manager until the Bankruptcy Court approved a sale of assets
to Holdings. Respondent asserts that Holdings was the pur-
chaser and therefore the successor to Post Co., and that the
Guild unit employees of the Post were always aware that the
purchaser would not retain them without a change in terms and
conditions of employment. Respondent states that the Guild
strike was unlawful under the status quo provisions of the old
contract applicable to Post Co. employees. Respondent argues
that the policies underlying the bankruptcy laws would be sub-
verted if Acquisition were found to be a legal successor in this
case, and that the rulings of the Bankruptcy Court in approving
the sale to Holdings effectively preclude imposing any liability
on Holdings.
1. The acquisition successorship issue
General Counsel’s argument that Acquisition had an obliga-
tion to recognize and bargain with the Guild as a “legal succes-
sor” is founded on NLRB v. Burns, 406 U.S. 272 (1972). In
that case, the successor employer replaced a previous employer
providing guard service without changing either the operational
structure or the practices of the enterprise, and the successor
hired a majority of the previous employer’s employees. The
Supreme Court held that the Act required the successor to bar-
gain with the union which represented a majority of the em-
ployees and with which the previous employer had signed a
collective bargaining agreement. However, the successor was
not bound by the previous contract.
Numerous cases since Burns have defined the circumstances
when a new employer has a duty to bargain with the previously
recognized or certified representative of its employees. All of
these cases begin by analyzing the following language which
the Court used to define the duty to bargain of a successor:

Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit and in
which it will be appropriate to have him initially consult with
the employees’ bargaining representative before he fixes terms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
In other situations, however, it may not be clear until the suc-
cessor employer has hired his full complement of employees
that he has a duty to bargain with a union, since it will not be
evident until then that the bargaining representative represents a
majority of the employees in the unit. . . . [406 U.S. at 294–
295.]

There is no contention that Acquisition made significant
changes in operations, location, work force, working condi-
tions, supervision, machinery, equipment, methods of produc-
tion, product, and services at the Post sufficient to interrupt the
continuity of the employer after March 29, 1993. See, Wood-
rich Industries, Inc., 246 NLRB 43 (1979). Rather, the condi-
tions under which Acquisition managed the paper give rise to
the challenge to its status as a Burns successor with a duty to
bargain under the Act.
The General Counsel argues that when Acquisition began
managing the Post on March 29, 1993, it became a Burns suc-
cessor. General Counsel relies on a line of cases where a
Burns successorship was found even though the successor did
not yet own the business when the bargaining obligation arose.
The cases begin with East Belden Corp., 239 NLRB 776
(1978). In East Belden, a California restaurant was being sold
and the deal was placed in escrow. The buyer and seller exe-
cuted a sales agreement and an escrow agreement which gave
detailed instructions to a designated escrow holder concerning
the implementation of the terms of the sales agreement. On the
day these documents were signed, the buyer obtained a tempo-
rary license to serve liquor and all of the other business licenses
necessary to operate in the buyer’s name. The day after the
agreements were signed, the buyer took control of the business
and began to operate the restaurant, introducing itself to em-
ployees and the public as a new owner. The sales agreement
and the escrow agreement provided that the escrow holder had
possession of the buyer’s consideration during the escrow pe-
riod. Escrow would last until the buyer obtained a permanent
liquor license and certain property transactions were completed.
When these conditions were fulfilled, the escrow holder would
disburse the consideration to the seller. If the liquor license
could not be obtained, the escrow would be terminated and all
money returned to the buyer. For the duration of the escrow
period, the buyer paid rent to the seller. During the escrow, the
buyer assumed “full management and control” of the restaurant,
all books and records were in its name and it expected to make
a profit of the business: the seller exercised no control over the
restaurant. At the beginning of the escrow, the buyer retained
all of the employees who were represented by the union, and it
applied virtually the same terms and conditions of employment
as had existed under the seller. The restaurant did not change
its method of operation and it did not change its name. The
Board upheld without comment the ALJ’s ruling that on the
day the buyer took control of the restaurant it was a successor
and it was obligated to recognize and bargain with the employ-
ees’ collective bargaining representative despite the fact that it
had not yet obtained legal title to the business.
In a case much like East Belden, the Board upheld the ALJ’s
finding that a prospective long term lessee who operated a hotel
under an “interim management agreement” pending the conclu-
sion of negotiations for the lease was a successor with an obli-
gation to recognize and bargain with the hotel employees’ un-
ion. Sorrento Hotel, 266 NLRB 350 (1983). The hotel had
been operated by a lessee who had fallen on economic hard
times and eventually abandoned the premises. While the for-
mer lessee was preparing to leave, the prospective lessee and
the owner of the hotel agreed on the basic terms of their new
lease. A delay in the proceedings arose when the title report
showed many encumbrances on the property which had to be
cleared before the formal lease could be signed. The ALJ
found that after the basic terms of the lease had been worked
out, the lessee’s “prolonged continuation in that role was a
virtual certainty.” 266 NLRB 357 In anticipation of a success-
ful conclusion, the owner and the prospective lessee agreed that
the lessee would “take over the management” of the hotel for
120 days or until the earlier signing of the long term lease. The
prospective lessee made no changes in the hotel at first, except
to appoint its own manager. The interim management agree-
ment provided that the prospective lessee was operating the
hotel for the benefit of the owner and that it could not retain
any excess cash flow. Despite the language of the agreement,
the prospective lessee obtained all the tax and liquor license
documents required to operate the hotel in its own name, it
provided the initial cash required to begin operations on the day
it took over and it opened bank accounts to which it alone had
access. The hotel manager reported solely to the prospective
lessee and the owner of the hotel played no part in its manage-
ment. The ALJ concluded that the prospective lessee had be-
come a successor on the day it took over management of the
hotel.
The Board discussed East Belden and Sorrento Hotel in
Fremont Ford Sales, 289 NLRB 1290 (1988). The ALJ in
Fremont had relied on East Belden and Sorrento to rule that a
successor had a duty to bargain with the employees’ union
before an auto dealership was sold to a new corporation formed
by the part owner-manager of the previous owner. Months
before the new corporation came into existence, the prospective
buyer discussed the sale with other officers of the previous
owner and with the Ford Motor Co. which was to provide fi-
nancing for the new corporation under its dealer development
program. Before the new corporation was formed, the negotia-
tions among the previous owner, the prospective buyer and the
Ford Motor Co. culminated in the granting of an option to Ford
Motor Co. to buy the dealership. Ford was given the right to
assign the option to the new corporation to be formed by the
prospective purchaser. One month later, after Ford Motor Co.
formally approved the deal, the new corporation was formed,
whereupon it proceeded to adopt bylaws, issue stock and take
all the other steps required to do business. The ALJ found that
the duty to bargain as a successor, based on the control of the
old dealership by the prospective purchaser who was its part
owner and manager, dated either from the time the prospective
owner began negotiations with the old dealership or from the
time the options to purchase were granted to the Ford Motor
Co. The Board held that the ALJ erred in relying on East
Belden and Sorrento Hotel to conclude that a successorship
was created before the sale went through. The Board distin-
NYP ACQUISITION CORP. 1067
guished the facts in those cases from the facts in Fremont as
follows:

The salient facts in East Belden and Sorrento Hotel triggering
successorship status before the purchase was final or the lease
commenced are that there were written agreements to pur-
chase or lease and an escrow or interim management period
officially established for the prospective buyer or lessee to
take control. Here there was no written agreement to pur-
chase or lease the dealership in existence ... and no escrow or
transitional period. The execution of the buy-sell and lease
agreements by the Respondent and the transfer of the dealer-
ship property occurred almost simultaneously and there was
no interim agreement for the Respondent to operate the deal-
ership. [289 NLRB at 1294.]28

The rule announced in Fremont is clear. The Board requires
a written contract of sale or lease and a precisely defined in-
terim management period, during which the manager exercises
effective control in its own name and which will be used to
fulfill mere formalities, before a prospective lessee or a pro-
spective purchaser can be deemed a successor with a duty to
bargain.29
I am bound by the rule adopted by the Board in Fremont and
I shall proceed to apply that rule to the facts of the instant
case.30
The General Counsel argues that Acquisition became a legal
successor to The New York Post Co., Inc., on March 29, 1993.
On that day, Acquisition began managing the Post pursuant to
the management agreement approved by the Bankruptcy Court.
On that date, there was no contract for Acquisition to purchase
the assets of the Post, and Acquisition had no duty to purchase
the paper. Before March 29, 1993, Acquisition had announced
that it would not purchase the paper unless the FCC granted a
waiver and the employees, through their unions, agreed to
changed terms of employment. Even if these conditions were
met, the Bankruptcy Court might, for a variety of reasons, fail
to approve a purchase by Acquisition or its affiliate. Further, it
was possible that another company would bid for and buy the
assets of the paper with the approval of the Bankruptcy Court.
Under the terms of the management agreement, Acquisition
could not realize a profit from its management of the Post: if its

28 The Board erred in saying that there was a written agreement to
lease in Sorrento Hotel. The ALJ there had found that there was no
written lease, only basic agreement on a long term lease and a “virtual
certainty” that it would be signed. This mistake is of no moment in
discussing the Board’s reasoning, however, because the significance of
the Board’s discussion lies in the Board’s belief that there was in fact a
written lease.
29 Indeed, a clearly defined rule is desirable, as can be seen by read-
ing the cited cases. In all of these cases, the dealings among the various
parties were of such a complicated nature that, without a clearly defined
rule, neither union, employees nor the corporate entities themselves
could have any reliable idea when the duty to bargain as a successor
might validly be invoked. Significantly, even after an exhaustive and
precise analysis of the facts, the ALJ in Fremont felt obliged to give
two possible dates for the commencement of the successorship.
30 The General Counsel has not taken a position on the applicability
of Fremont Ford to the instant case and has not discussed the language
quoted above.
operation of the paper had miraculously produced a profit, that
would have gone to The New York Post Co., Inc. During the
management period, Acquisition lost no opportunity to inform
employees of the paper that it was not a permanent owner and
that its participation as a manager was only for the purpose of
determining whether new conditions could be established so
that a sale might be made to a new owner. The Bankruptcy
Court Order of June 30, 1993, extended the management
agreement so that NAPI could determine whether the labor
negotiations would be concluded on terms acceptable to NAPI
and whether, in the judgment of NAPI, the operation of the
Post would be economically viable. NAPI had not yet made an
offer to acquire the assets and the views of the Debor and of the
Creditors Committee on any such future offer had not been
established. Acquisition had the right to terminate the man-
agement agreement on three days notice and, in fact, it exer-
cised this right on July 6. The Guild was well aware that a
purpose of the management period was to permit negotiations
with the Creditors Committee and with the unions for the estab-
lishment of new conditions. The Guild knew that NAPI had
announced that if it did not reach new agreements with all the
unions it would not purchase the paper; if the Guild negotia-
tions with representatives of the potential new owner were not
successful, Guild members would not have jobs at the Post.
Further, the Guild had told NAPI negotiators that its members
would refuse to work unless they were given severance pay
guarantees and third party review of dismissals. Thus, the
Guild contemplated that there might likely be circumstances
that could result in the end of the newspaper.
Moreover, more than mere formalities remained after Hold-
ings was incorporated and the proposed agreement to purchase
the assets of The New York Post Co., Inc., was approved by the
Bankruptcy Court on September 14, 1993. The new contracts
with the unions had not been ratified and executed. No agree-
ment had been reached in the negotiations between Holdings
and the Guild, and the Guild’s position was still that its mem-
bers would refuse to work for the paper if there were no third
party review during the evaluation process and if the new
owner did not assume the severance obligations. When the
Guild deadline of September 27 passed without agreement and
the other unions honored the Guild picket line, the newspaper
was closed. The Post did not publish editions on September 28,
29 or 30. The NAPI negotiators had told the Guild that if its
strike prevented the publication of the paper, Holdings would
not purchase The New York Post Co., Inc., assets. Under the
asset purchase agreement, Holdings had the right to refuse to
close the deal if it did not achieve satisfactory contracts with all
of the unions. While the paper was closed, it could hardly be
said that a purchase was likely and that only mere formalities
remained to be completed during the management period. In
fact, on those days it was less likely than ever that Holdings
would purchase the Post. Not until the night of September 29,
when the other 10 unions agreed to cross the Guild picket line
was the possibility of a purchase revived. The actual purchase
did not take place until after it was shown on September 30 that
the employees would report to work and the paper could be
published. Thus, the asset purchase closed and new collective
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
bargaining agreements were signed with the 10 unions on Oc-
tober 1.
Under the rule announced by the Board in Fremont, I am
constrained to find that Acquisition was not a successor with a
duty to bargain on March 29, 1993, as urged by the General
Counsel.31 There was no written agreement to purchase the
assets of Post Co. and there was no obligation on the part of
Acquisition or NAPI to make such a purchase. There was no
interim management period officially established for the po-
spective buyer to take control and during which mere formali-
ties would be fulfilled.
2. The request to bargain on September 28 and 29, 1993
I credit Lipton that he telephoned Purcell twice during the
strike, on September 28 and 29, to ask that bargaining continue.
From Lipton’s description of the events, I find that both of his
calls were made before Murdoch and the NAPI negotiators met
with the other 10 unions during the night of September 29 and
decided to reopen the Post based upon the promise to cross the
Guild picket line. The General Counsel urges that Respon-
dent’s failure to resume negotiations with the Guild in response
to Lipton’s calls was an unlawful refusal to bargain.
When parties are at impasse, their duty to negotiate is sus-
pended. The duty to bargain is not revived until the occurrence
of an intervening circumstance that would be likely to affect the
existing impasse or renew the possibility of fruitful discussion.
Holiday Inn Downtown-New Haven, 300 NLRB 774, 775
(1990). It is the duty of the party requesting bargaining based
on changed circumstances to inform the opposite side of
changes in its negotiating position. Serramonte Oldsmobile
Inc. v. NLRB, 86 F.3d 22 (D.C. Cir. 1996).
The General Counsel and the Respondent agree that the
Guild and the NAPI negotiators were at impasse in their nego-
tiations. The description of the bargaining between the parties
given above shows that they were at impasse over subcontract-
ing, assumption of the severance obligation, and the Union’s
demand for third party review of dismissals during the proba-
tionary period. By September 27, the NAPI negotiators had no
new proposals for the Guild, and Lipton had stated repeatedly
that Guild members would not work without third party review
of dismissals. Nothing happened in the relations between the
parties after 4pm on September 27 to change the state of im-
passe. Indeed, on September 29, when officials of the Allied
asked Lipton to return his members to work, Lipton replied that
his members would not go back to work unless he had an
agreement in principle about third party review of probationary
dismissals. Thus, it is clear that the positions of the parties and
their willingness to make concessions had not changed during
the strike from September 27 to 29. In these circumstances,
even if I had found that Acquisition had a duty to bargain as a

31 All of my conclusions in this case flow from the rule articulated in
Fremont and they follow inexorably from the finding, which is com-
pelled by the rule of that case, that on March 29, 1993, Acquisition was
not a successor to The New York Post Co., Inc. The Respondent’s
brief argues that the General Counsel’s issuance of the instant Com-
plaint amounts to an effort to persuade the Board to change the law.
Whatever the merits of the attempted change may be, I am bound to
follow the Board law as I find it.
successor employer I would not find that Respondent unlaw-
fully refused to bargain with the Guild on September 28 and 29
when Lipton asked Purcell to resume negotiations.
3. Refusal to bargain and withdrawal of recognition
The General Counsel argues that when Faris by letter of Sep-
tember 30 and October 5 refused to bargain with the Guild and
withdrew recognition, Respondent violated Section 8 (a) (1)
and (5) of the Act.32 General Counsel urges that as the alter
ego of the successor Acquisition, Holdings had a duty to recog-
nize and bargain with the Guild. General Counsel contends that
Holdings’ sole reason for withdrawing recognition and refusing
to bargain was that the Guild members were on strike.
The Respondent argues that Holdings, as the successor to
The New York Post Co., Inc., had a right under Burns to hire a
new workforce and set initial terms and conditions of employ-
ment. If the majority of employees eventually hired by Hold-
ings was not made up of former Guild unit members, then
Holdings would not have a duty to recognize and bargain with
the Guild. Moreover, Respondent urges, even if Acquisition
were found to be a successor, thereby moving up the date on
which the Burns rules apply, Acquisition always made it clear
that once the sale of the Post closed, the terms and conditions
of employment would be different from those in the contract
with The New York Post Co., Inc. Acquisition never misled
the employees into believing that they would all be retained
without a change in working conditions. Respondent further
argues that if Acquisition is deemed to be a successor of The
New York Post Co., Inc., Holdings is not the alter ego of Ac-
quisition because that would require a finding that Holdings is
also a single employer with Acquisition.
Soon after Burns was decided, the Board discussed the right
of a successor to set initial terms of hire in light of the “per-
fectly clear” exception articulated by the Court. In Spruce Up
Corporation, 209 NLRB 194 (1974), a new employer offered
the predecessor’s unionized employees employment at rates of
pay different from those they had enjoyed under the predeces-
sor. On the first day that the new employer was in operation, a
majority of the employees set up a picket line and they did not
report for work. The new employer hired replacement employ-
ees and, initially, the replacements outnumbered the union-
represented predecessor’s employees. The Board discussed the
import of the “perfectly clear” exception in Burns. The Board
found that the exception to the proposition that a new employer
may ordinarily set initial terms of hire did not apply where “an
employer who has not yet commenced operations announces
new terms prior to or simultaneously with his invitation to the
previous work force to accept employment under those
terms. . . .” 209 NLRB at 195. The Board reasoned that the old
employees might not want to work under the new terms an-
nounced by the new employer and thus it might not be “per-
fectly clear” that the new employer could plan to retain all the
employees in the unit. The new employer would not have a
duty to bargain before it was determined that a majority of the
former, unionized, employees had indeed accepted employ-
32 The letter of October 5 was reiterated on November 3 in response
to a further bargaining request from the Guild on October 27.
NYP ACQUISITION CORP. 1069
ment. Spruce Up was enforced without published opinion at
529 F.2d 516 (4th Cir. 1975).
I have found above that Acquisition was not a successor of
The New York Post Co., Inc. There is no dispute, however,
that Holdings is a successor employer. Pursuant to Burns and
Spruce Up, Holdings had the right to announce that it was hir-
ing employees under different terms and conditions from those
in the old Post Co. contract. Holdings exercised this right.
From the beginning of the Post Co. bankruptcy proceedings in
March, and continuing through September, 1993, NAPI repre-
sentatives made it clear that eventual purchase of the paper and
its survival as an employer depended upon setting new terms
and conditions for the paper’s employees. As set forth above,
on September 30, the day before Holdings purchased the assets
of Post Co., Faris informed Lipton that Holdings did not intend
to assume the collective bargaining agreement of its predeces-
sor and that Holdings would hire as a new employer and estab-
lish its own initial terms and conditions of employment. The
facts show that a majority of the employees hired by Holdings
to perform work formerly performed by the Guild unit are not
former Guild represented employees of the Post. Thus, there is
no basis for finding that Holdings had a duty to bargain with
the Guild on September 30, October 5 or November 3.
It is true that the slate of corporate directors and officers of
Acquisition and Holdings were practically identical on October
1, 1993, the day Holdings purchased certain of the assets of The
New York Post Co., Inc. Further, the same managers who had
run the Post while Acquisition managed the paper continued
their duties after Holdings became the owner on October 1. As
has been amply demonstrated in the record, Acquisition and
Holdings are wholly owned subsidiaries of NAPI and all of
these entities are ultimately controlled by Murdoch. There can
be no dispute that Acquisition and Holdings had substantially
identical management, business purpose, operation, equipment,
customers, supervision and ownership. I find that Holdings is
the alter ego of Acquisition. Crawford Door Sales, 226 NLRB
1144 (1976). Although there has been no showing that Hold-
ings was formed with an illegal purpose to avoid a duty to bar-
gain under the Act, such a finding is not necessary to the appli-
cation of the alter ego doctrine. Goodman Piping Products,
Inc., 741 F.2d 10, 12 (2d Cir. 1984). However, I have not
found, as alleged by General Counsel, that on March 29, 1993,
Acquisition was a successor to The New York Post Co., Inc.,
with a successor’s duty to bargain with the Guild. It follows
that Holdings could not have any duty to bargain deriving from
its status as an alter ego of Acquisition.
General Counsel’s brief also argues that Acquisition, Hold-
ings and NAPI constitute “a single-integrated employer.” I
note that the Complaint alleges only that Acquisition and Hold-
ings are a single employer. Given my view of the facts and the
law, it is not necessary to decide this issue because a finding
that it is a single employer with Acquisition would not impose
any greater obligation on Holdings than a finding of alter ego.
I am reluctant to enter the dispute concerning the ultimate rela-
tionship between the concepts of single employer and alter ego
signalled by Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir.
1994), and discussed by Member Raudabaugh in the underlying
decision which was not enforced by the court, Johnstown
Corp., 313 NLRB 170, 172 (1993). I note that the Second Cir-
cuit favors a separate analysis of the two concepts. Lihli Fash-
ions Corp. v. NLRB, 80 F.3d 743, 748 (1996). Pursuant to Lihli
Fashions, I believe that it is proper to find that Holdings is an
alter ego of Acquisition without also deciding whether Hold-
ings is a single employer with Acquisition.
In an effort to show that the NAPI negotiators acknowledged
that Holdings was legally obligated to maintain the conditions
of the old contract and to continue to recognize and bargain
with the Guild, General Counsel relies on the two conversations
testified to by Lipton concerning his queries about what would
happen if no agreement were reached with the Guild by the
time the sale of assets closed. I credit Lipton that he spoke to
O’Neill on September 14 at the Bankruptcy Court and that
O’Neill said that Holdings would either continue to apply the
terms of the collective bargaining agreement or post conditions.
Lipton’s recollection of this conversation was specific and
O’Neill’s response was consistent with the NAPI negotiators’
intent expressed that day to go through with the purchase even
if no Guild contract had been reached. The negotiators wanted
to Guild employees to keep working so that the paper could be
published and all concerned hoped for a successful contract
settlement. Similarly, I credit Lipton that either Faris or Price
said at one of the last bargaining sessions that they had not
decided what would happen if no agreement were reached and
that they might continue the existing terms or post conditions.
However, these comments do not amount to an acknowledg-
ment, as General Counsel contends, that Holdings was legally
bound to honor the existing agreement or keep negotiating.
The management negotiators’ comments reflected that they had
not decided what would happen and that they had two alterna-
tives in mind. But there is no admission here and certainly no
admission that the conditions to be posted had to reflect NAPI’s
last offer. Lipton himself did not seek to bind O’Neill, Faris or
Price to these statements during the strike or its aftermath by
reminding them of any purported admission or promise. Al-
though the Guild Bulletin quoted above attacked Murdoch for
stealing Guild jobs, it did not attack him for reneging on a
promise to maintain existing conditions of employment or post
conditions identical to his last offer. In fact, General Counsel’s
brief concedes that these conversations are “irrelevant.”
When Holdings became the owner of the Post on October 1,
1993, the Guild unit was on strike. Lipton had told the NAPI
negotiators that his members were striking the Post and that
they would refuse to work for the paper if their severance pay
entitlements were not guaranteed by Holdings and if there were
no third party review of dismissals during the evaluation pe-
riod. Holdings, as a successor to The New York Post Co., Inc.,
had a right, as set forth in Burns, to hire a new work force and
set initial terms and conditions of employment. Faris’ letter of
October 30 states Holdings’ intention to exercise its rights as a
new employer. Thereafter, Holdings proceeded to hand out
applications for employment and it hired new employees, in-
cluding a number of people who had worked for the Post in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
former Guild unit.33 There is no contention that Holdings dis-
criminated in its hiring of these individual applicants. As a
successor, Holdings had no duty to recognize and bargain with
the Guild unless it hired a majority of employees in the former
Guild unit. General Counsel does not contend that Holdings is
required to recognize and negotiate with the Guild based on its
hiring after October 1. Therefore, it was not a violation of the
Act for Holdings to fail to recognize and fail to negotiate with
the Guild after October 1, 1993, and it was not a violation to
establish new terms and conditions for the newly hired employ-
ees.
4. Alleged termination and refusal to reinstate
Before the sale of assets closed on October 1, Faris issued a
memorandum to Guild unit members urging them to work even
if the Union called a strike. However, the Guild members
struck because they did not wish to work under the conditions
that the NAPI negotiators had demanded. The Guild members
were exercising their right under the Act to put economic pres-
sure on the prospective owner of the paper in order to force the
prospective owner to accede to their desires. When Holdings
closed the asset purchase and became the owner of the Post on
October 1, the Guild unit was still on strike. On October 1,
Holdings as a successor had the right to hire a new work force
and this it proceeded to do. I cannot find that Holdings dis-
charged striking Guild members because I cannot find that
these individuals were ever employees of Holdings. It follows
that Holdings did not discharge the striking Guild unit members
nor refuse to reinstate them in violation of the Act.
The General Counsel points out that Holdings signed con-
tracts with the 10 other unions on October 1, 1993, and did not
require the employees in the 10 other units to apply for jobs.
General Counsel attributes this difference in treatment to

33 The record does not disclose how many former Guild unit mem-
bers applied for work with Holdings nor what proportion of those who
applied were actually hired.
unlawful discrimination and anti union animus on the part of
Holdings. However, the employees in the 10 other units had
agreed to work for Holdings under new terms and conditions
which were acceptable to both employer and employees. In
many of those units, numbers of positions would be eliminated
once the contracts became effective. Holdings had exercised its
right as a successor to hire them under new terms and condi-
tions and the employees had accepted. The Guild represented
employees had not agreed with the NAPI negotiators on new
terms and conditions to be applicable once Holdings closed the
asset purchase, and the Union had reiterated the employees’
position that they would not work for Holdings without the
severance pay and third party review provisions demanded by
the Guild. Indeed, the strike called by the Guild in advance of
the asset purchase closing on October 1 was further proof of the
employees’ determination not to work for Holdings under the
conditions demanded by the NAPI negotiators. Thus, I do not
find that Respondent discriminated unlawfully against the
Guild unit members.
CONCLUSIONS OF LAW
1. The General Counsel has not proved that Respondent vio-
lated the Act as alleged in the Complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The complaint is dismissed.
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.