Rotary Business Systems, Inc.,

National Labor Relations Board - Board Decisions

Dec 9, 1986

282 N.L.R.B. 378 (N.L.R.B. 1986)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landhill . Press, Inc., and- Rotary Business Systems,
Inc., its alter ego and successor and Local 51,
International Printing and Graphic Communica-
tions Union, AFL-CIO. Cases 29-CA-9392 and
29-CA-10490
9 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On' 3 January 1985 Administrative Law Judge
Thomas T. Trunkes issued the attached decision.
Respondent Rotary Business Systems, Inc., , the
General Counsel, and the Charging Party filed ex-
ceptions and supporting briefs. The General Coun-
sel and Respondent Rotary also filed reply briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Landhill
Press, Inc. and its alter ego Rotary Business Sys-
tems, Inc., East Farmingdale, New York, its offi-
cers, agents, successors, and assigns , shall take the
action set forth in the Order.
Amy B. Kaminshine, Esq., for the General Counsel.
David Lew, Esq. (Bart Lew, & Monat), of New York,
New York, for Respondent Rotary Business Systems,
Inc.
Jerome Lovitts, of Syosset, New York, for Respondent
Landhill Press, Inc.
Joshua Bienstock, Esq. (Quinn & Lilly, P.C.), of Garden
City, New York, for the Charging Party.
i The Respondent , Rotary Business Systems, Inc., has excepted to
some of the judge's credibility findings. The Board 's established policy is
not to overrule an administrative law judge 's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard 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.
2 Because we agree with and adopt the judge 's conclusion that Rotary
Business Systems, Inc. is the alter ego of Landhill Press, Inc., we find it
unnecessary to pass on the judge's alternative finding that Rotary is the
successor to Landhill.
In adopting the judge 's conclusion that the Respondents violated Sec.
8(a)(5) and (1) of the Act by Rotary denying the Union's president access
to its premises in March 1983 , we note that Respondent Rotary excepts
to this finding based solely on its contention that it is not the alter ego of
or successor to Landhill.
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge. The
above proceeding was held in New York,, New York, oil
March 5, April 25, 26, and 27, May 7 and 8, and June 12,
1984, predicated on a complaint and notice of hearing
issued on February 3, 1982, in Case 29-CA-9392, and a
second complaint and notice of hearing issued on July
15, 1983, in Case 29-CA-10490. By Order dated August
11, 1983, the two complaints were consolidated for hear-
ing. The complaint in Case 29-CA-9392 alleges, inter
alia, that since 1954 Respondent Landhill Press, Inc.
(Landhill) has been a party to successive collective-bar-
gaining agreements with Local 51, International Printing
and Graphic Communications Union, AFL-CIO (the
Charging Party, Local 51, or the Union) covering a unit
of pressman; that in August 1981 Respondent Rotary
Business Systems,,_ Inc. (Rotary) succeeded to the busi-
ness of Landhill as an alter ego and/or successor; that in
August 1981 Landhill and Rotary (collectively Respond-
ents) withdrew recognition from the Union and ceased
making contributions to the Union's funds on behalf of
the pressmen in violation of Section 8(a)(5) and (1) of the
Act. A hearing in Case 29-CA-9392 opened on January
24, 1983, before Administrative Law Judge Howard
Edelman. At that time, a settlement agreement appeared
to have been agreed on between the parties.
The complaint in Case 29-CA-10490 alleges, inter alia,
that on January 24, 1983, Rotary executed a collective-
bargaining agreement with the Union, covering a unit of
pressmen; that about March 11, 1983, the Union request-
ed Rotary to furnish it with names and addresses of the
unit employees and to provide, the union representative
entry to Rotary's pressroom; that since January 24, 1983,
Rotary has failed and refused to honor and abide by the
aforesaid collective-bargaining agreement, has failed to
make contribution payments to the Union's - funds on
behalf of the unit employees, has refused to furnish the
Union with the information requested, and has refused to
allow the union representatives access to the pressroom,
all in violation of Section 8(a)(5) and (1) of the Act. Re-
spondents filed answers to the two complaints, denying
the commission of any unfair labor practices.
All parties were presented and participated at the
hearing, and were afforded full, opportunity to adduce
evidence , examine and cross-examine witnesses, file
briefs, and argue -orally. Respondent Rotary and the
General Counsel filed briefs. Neither the Charging Party
nor Landhill filed briefs.
The principal issues raised in this proceeding are the
following:
(1) Whether Rotary is the alter ego of Landhill.
(2) Whether Rotary is the successor of Landhill.
(3) Whether Rotary and/or Landhill, violated Section
8(a)(5) and (1) of the Act by committing any of the
unfair labor practices as alleged in the complaints.
On the entire record in this case, including my obser-
vation of the demeanor of all witnessess, my evaluation
of the transcript and exhibits, and due consideration of
all briefs filed by the parties, I make the following
282 NLRB No. 58
LANDHILL PRESS 379
FINDINGS OF FACT
I. JURISDICTION
Respondent Landhill, a New York corporation, with
offices and a place of business located in Westbury, New
York, was at all times material engaged in the wholesale
printing, sale, and distribution of printed business forms
and related products. During the year ending August 12,
1981, it purchased paper, ink, and other goods and mate-
rials in excess of $50,000 annually directly and indirectly
from States located outside the State of New York. The
complaints allege, Landhill admits, and I find that it has
been at all times material an employer engaged in com-
mierce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent Rotary, a New York corporation with of-
fices and a place of business located in East Farmingdale,
New York, is, and has been at all times material engaged
in the wholesale printing, sale, and distribution of printed
business forms and related products. Since commencing
operations about August 12, 1981, Respondent Rotary, in
the course and conduct of its business operations, pur-
chased paper, ink, and other goods and materials in
excess of $50,000 annually directly and indirectly from
States outside the State of New York. The complaints
allege, Rotary admits, and I find that it is now, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaints allege, Respondents admit, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background"
In 1954 Respondent Landhill entered into an agree-
ment with the Union in which Landhill agreed to
comply with the terms of the then-existing and future
agreements between the Union and Printers' League Sec-
tion of the New York Employing Printers' Association2
(the Association). Thereafter, the Union and the Associa-
tion executed successive collective-bargaining agree-
ments which covered a unit of printing pressmen, the
most recent agreement effective from March 4, 1983, to
March 3, 1985. Although it was never a member of the
Association, Landhill abided by all the terms and condi-
tions of the collective-bargaining agreements agreed on
between the Union and the Association from 1954 until
August 1981.
1 From this point until the subparagraph entitled "Discussion and
Analysis," a concise summary of facts will be presented . A detailed ac-
count of the facts, including disputed facts, will be more fully developed
under the subsection entitled "Discussion and Analysis."
2 The present name of the Association is Printing League Section,
Printing Industries of Metropolitan New York, Inc.
B. Operations of Landhill
Until August 19813 Landhill was engaged in the
wholesale printing business at a facility located in West-
bury, Nassau County, New York. A New York corpora-
tion, it was family owned and operated. Jerome Lovitts
was president; his wife, Phyllis, was vice president; his
daughter Lori Scharf was secretary; and another daugh-
ter Bonnie was treasurer.4 Each of the officers had spe-
cific responsibilities and duties. Lovitts was in charge of
the day-to-day operations of the plant; Phyllis ' was an
outside sales representative; Lori functioned as the office
manager; while Bonnie worked in the production area.
As of August 12, excluding the 4 officers, Landhill
employed 15 employees, as follows: i office employee; 1
composition-room employee; 5 pressmen, namely, Ike
Fisher, George Capizzi, John Capizzi, Eugene Loperena,
and Carl Moseley; and 8 bindery room employees. The
five named pressmen were represented by the Charging
Party.
In addition to Respondent Landhill, the Lovitts family
owned and controlled two other enterprises, Forms-R-Us
(Forms) and Lovitts Enterprises. Forms commenced op-
erations in early 1981 as a printing broker. All the print-
ing business solicited by it was printed by Landhill. The
four corporate officers of Forms were Lovitts,, Phyllis,
Lori, and Bonnie, the -same principals of Respondent
Landhill. Forms discontinued its operations at the end of
1981. Lovitts Enterprises, established in 1967; is an ongo-
ing business, operated by Lovitts and Phyllis. Although a
printing broker like Forms, only approximately 50 per-
cent of the business solicited by it was printed by Land-
hill, the remainder being performed' by other printing
companies.
C. Landhill Ceases Its Relationship with the Union
In March, the Union mailed a standard agreement to
Landhill to reconfirm Landhill's recognition of the in-
dustrywide contract in effect between the Union and the
Association. In May, not having' received the returned'
signed agreement from Landhill, Union President Julius
Seide visited Landhill and asked Lovitts for an explana-
tion. Lovitts replied that he was not signing the contract,
because Landhill was going out of business, and that he
would send a 60-day written notice to the Union as re-
quired by the agreement. By letter dated June 2, Land-
hill notified the Union of its planned closure. Shortly
thereafter, Seide again visited Landhill. Lovitts informed
Seide that Landhill was closing sometime in August, and
that all moneys owed to the Union! would be paid by
Landhill up to the date of closure. About August 12,
Landhill ceased deducting dues on behalf of its pressmen,
discontinued payments to the Union's various funds, and
ceased recognizing the Union as the bargaining repre-
sentative of its pressmen.
2 Unless otherwise indicated all dates refer to 1981.
4 Lovitts apparently inherited the business from his father who was a
partner at the time Landhill recognized the Union in 1954.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Transfer of the Business from Landhill to Rotary
From the testimony of various witnesses of both Re-
spondent, undisputed by the General Counsel or the
Charging Party because of their lack of knowledge of
the matter involved, the following was adduced at the
hearing:
Sometime in 1981 Landhill , finding itself in financial
difficulty, sought advice from its attorney, Abraham
Broido, an individual who had represented the Lovitts
family in legal matters for approximately 50 years.
Among the creditors of Landhill was Attorney Broido.
In satisfaction for the debt owed him, Broido volun-
teered to take over Landhill and assume some of its
debts. This agreement was never executed in writing.
Thereafter, about August 12, the date that Landhill
closed its operations in Westbury, Lovitts informed the
printing pressmen ' that Landhill could no longer operate
with the Union. Broido was taking over the business and
all the pressmen were offered employment with him.
Broido confirmed the offer of employment for the press-
men. All the pressmen , but one , accepted the job offer.
The same job offers were extended to other employees
of Landhill, many of whom accepted the offer.
E. The Operations of Respondent Rotary,
On June 1 Broido filed for incorporation under the
name of Anchor Printing Corp. On July 1, however, the
name of his enterprise was changed to Rotary. On
August 19, Rotary executed a lease for premises located
in East Farmingdale, Suffolk County, New York. Short-
ly thereafter, Landhill's equipment was moved from
Westbury, Nassau County, to East Farmingdale, Suffolk
County, a distance of approximately 15 miles.
In addition to the employees of Landhill who contin-
ued employment at Rotary, all the principal officers of
Landhill continued to work at Rotary. Production had
been suspended to accommodate the move of the plant
equipment from Westbury to East Farmingdale. On as-
semblying the equipment, Rotary commenced produc-
tion.
F. Relationship Between the Union and Rotary
In late August, Seide discovered that the Landhill em-
ployees were working for Rotary in East Farmingdale.
In early September he visited Rotary. Ike Fisher in-
formed Seide that he was not allowed in the plant as it
was not a union plant. Fisher escorted him to the office
where Seide met Lori. He inquired for Lovitts, but was
informed by Lori that he was out. He then asked to
speak to the owner of. Rotary. When Lori stated that the
owner would call, Seide left. Failing to hear from
anyone from Rotary or Landhill, Seide, by letter dated,
October 20, requested that Lovitts meet to discuss the ef-
fects on employees of the sale of Landhill. By letter also
dated October 20, he requested that Rotary, as successor
to Landhill, meet for the same purpose. He received no
response to either of the two letters. Thereupon, he at-
tempted to contact Respondents by telephone. Failure to
contact anyone prompted the Union to file the underly-
ing charges in Case 29-CA-9392 with the Board. On
January 24, 1983, at the commencement of the hearing,
Administrative Law Judge Howard Edelman was in-
formed that the parties had reached an out-of-Board set-
tlement that was placed on the record. At the same time,
the Union and Rotary appeared to have executed a col-
lective-bargaining agreement.
G. Refusal of Rotary to Abide by the Agreement
Following the execution of the agreement , as noted
above, Seide unsuccessfully attempted to contact Rotary
by telephone. In March 1983 he paid a visit to Rotary
and met with Broido. He informed Broido that he was
there to speak to the unit employees and requested that
he be allowed to speak to the day-shift pressmen. Broido
refused this request, but permitted Seide to speak to the
pressmen one by one in his office. Seide thereafter spoke
to the pressmen, handing each one a copy of the agree-
ment and application forms for union membership. After
being denied a request to speak to night-shift employees,
later, Seide left applications with Broido who agreed to
have them distributed to the night-shift pressmen. Seide
also asked Broido for information respecting the inden-
tity of all pressmen and wages and benefits received by
them.
Not hearing further from Rotary, Seide again attempt-
ed to contact Broido by telephone without success. In
addition, Seide did not receive the information requested
of Rotary, nor were the forms that were to be distribut-
ed to the night-shift pressmen ever returned to him. In
April 1983 Seide again visited the Rotary plant, but was
refused permission to speak to any of the supervisors of
Rotary or the pressmen in the plant. Subsequently, by
letter dated April 8, 1983, the Union's attorney advised
Rotary that it was in violation of the agreement signed
by it, and requested a meeting between the parties. No
response was forthcoming . By letter dated June 3, 1983,
the Union's attorney advised Rotary that it was delin-
quent in payments to the Union's trust funds. No reply to
that letter was received. Seide attempted to contact
Rotary several more times, but was never able to effect
contact with Rotary. Thereafter, on May 23, 1983, the
Union filed its charge in Case 29-CA-10490.
H. Discussion and Analysis
1. Positions of the parties
The General Counsel and the Charging Party assert
that the record establishes that Rotary is no more than a
disguised continuance of Landhill and, hence, an alter
ego of Landhill. As Landhill's alter ego, Rotary is obli-
gated to honor the collective-bargaining agreement to
which Landhill has been bound and to remedy all the
unfair labor practices. In the alternative, the General
Counsel asserts that should it be decided that Rotary is
not the alter ego of Landhill, Rotary is the successor of
Landhill, and, as such, is obligated to recognize and bar-
gain with the Union. Rotary not only unlawfully refused
to do this, but further refused to abide by the 1983-1985
contract it executed with the Union in January 1983.
Thus, as a result of Respondent's conduct, for the past 3
years the pressmen employed by Respondents have been
LANDHILL PRESS 381
unlawfully denied their right to be -represented by, he
Union.
Respondents , on the other hand, contend that from the
facts elicited at the hearing there is no basis for finding
Rotary to be either an alter ego or a successor of Land-
hill. Accordingly, neither Landhill nor Rotary has violat-
ed the Act in any manner, and the complaints should be
dismissed in their entirety.
For reason detailed below , I find merit in the General
Counsel's position that Rotary is the alter ego of Land-
"hill, and further find that until higher, authority deems
otherwise, I find Rotary to be a successor of Landhill.
Having drawn this conclusion , I find that Respondents
Landhill and Rotary are in violation of Section 8(a)(5)
and (1) of the Act.
2. Credibility of witnesses
Before a'finding can be made whether any of the al-
leged violations occurred as contended by the General
Counsel, credibility resolutions regarding the testimony
of various witnesses presented at the hearing by both the
General Counsel and Respondents must be determined.
In addition to considering the demeanor of the witnesses,
the Board has stated in Northridge Knitting Mills, 223
NLRB 230, 235 (1976):
It is abundantly clear that the ultimate choice be-
tween conflicting testimony also rests on the weight
of the evidence, established or admitted facts, inher-
ent probabilities, reasonable inferences drawn from
the record, and, in sum, all of the other variant fac-
tors which the trier of facts must consider in resolv-
ing credibility. [Northridge Knitting Mills, 223
NLRB 230, 235 (1976).]
In cases such as the instant case, when there is no
"smoking gun," the General Counsel must rely on infer-
ences to be drawn from various facts. Most of the factual
information of the instant case was presented through
testimony of Respondents' witnesses in an effort to evi-
dence a lack of a relationship between Landhill and
Rotary from which one may conclude that Rotary is the
alter ego or successor of L.andhill. The principal wit-
nesses for Respondents were Broido and Lovitts. After
observing these witnesses, both of whom testified rather
extensively, and after reviewing the transcript of the tes-
timony, I am unconvinced that either of them related
facts as they really occurred. Both concealed facts that
were relevant and important to the instant case, and cou-
pling their testimony with other facts presented at the
hearing, I am constrained to conclude that the testimony
related by both of them cannot be credited.
a. Abraham Broido
Broido, a practicing attorney for more than 50 years,
incredulously testified that in January 1983, when the
hearing in Case 29-CA-9392 opened before Judge Edel-
man, he signed a document that recognized the Union as
the bargaining agent of Rotary's employees without
reading the document as he was legally blind and was
unable to, read. Although I have no reason to dispute his
testimony that he is legally blind, inasmuch as a letter
was received in evidence from a physician that lent cre-
dence to the claim, from other evidence obtained at the
hearing, I cannot credit Broido's account. First, from my
own observation, and as the General Counsel pointed out
several times during the hearing, Broido was able to read
documents placed before him while he was on the wit-
ness stand. Secondly, his attorney at the January 1983
hearing credibly testified that he read the document to
Broido who acknowledged that he understood it and ini-
tialed changes and signed the document. This document
was received into evidence. Lastly, as I indicated at the
hearing, I cannot believe that an attorney with 50 years'
experience would sign a document and initial changes
without, having either read it or having it read to him.
Accordingly, I find that this attempt by Broido to reject
a document signed by him unworthy of a man in his po-
sition. I consider this attempt to deceive the Board as the
cornerstone on which I make other credibility findings
unfavorable to Broido.
b. Jerome Lovitts
Lovitts did not impress me at all with his testimony.
He appeared to be lost in the proceeding, unaware of
what was going on. At crucial times, when asked to re-
spond to certain questions by the General Counsel, he
apparently_ was unable to set forth answers that would be
helpful to the resolution of the case. For example, when
asked by the General Counsel if his salary was the same
at Rotary, where he is allegedly employed as a consult-
ant, as it was ' at Laridhill and Forms, two entities of
which he was the principal, he answered that he could
not remember. Throughout the hearing, I was left with
the impression that Lovitts, in his desire not to state facts
unfavorable to him, did not ^ respond to questions in a
forthright manner. Accordingly, I have concluded when
the testimony of Lovitts conflicted with facts brought
forth by the General Counsel the issues will be resolved
against Respondents.
3. Relationship between the Union and Landhill
The undisputed evidence established that on October
4, 1954, Landhill entered into a contractual relationship
with the Union, whereby it agreed to be bound by exist-
ing and succeeding agreements executed between the
Union and the Association . In Ted Hicks & Associates,
232 NLRB 712, 713-714 (1977), the'Board held that by
signing a memorandum agreement, as in the instant case,
an employer is bound by the collective-bargaining agree-
ment between the union and the association, notwith-
standing that the employer failed to sign any agreements
subsequent to the original memorandum agreement.
Landhill does not deny that it was bound by the asso-
ciation contract with the Union. In fact, in early 1981, it
supplied the Union with official notice that it was .closing
its plant , as required by the agreement . At no time had
Landbill ever informed the Union that it was refuting the
agreement between the Union and the Association. It is
further noted that Landhill abided by the terms and con-
ditions of the association agreement throughout the years
from 1954 to 1981 , furnishing, payments to the various
funds of the Union during that period.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held that an employer's continuous ad-
herence to the terms and conditions of a collective-bar-
gaining agreement constitutes an acceptance of that
agreement , notwithstanding that the employer never exe-
cuted a formal adoption of the agreement. See Marquis
Elevator Co., 217 NLRB 461, 465-466 (1975). Further, at
no time prior to August 12, 1981, did Respondents pro-
vide the Union with a notice that they did not consider
themselves bound by the agreement. Respondents are es-
topped from making a claim to the contrary at this time.
See American Sign & Neon Co., 176 NLRB 1049, 1051-
1052 (1969). On the facts presented in the instant case, I
find that Landhill was bound to the terms of the collec-
tive-bargaining agreement between the Union and the
Association. See Johnson Electric Co., 196 NLRB 637,
643-644 (1972), enfd. 472 F.2d 161 (6th Cir. 1973).
4. The alter ego contention
In Advance Electric, 268 NLRB 1001, 1002 (1984), the
Board held as follows:
In analyzing the foregoing facts, the [administra-
tive law] judge set forth the proper standard uti-
lized by the Board and the courts to determine
whether two facially independent employers consti-
tute alter egos for purposes of the Act, to wit:
The legal principles to be applied in determin-
ing whether two factually separate employees
[sic] are in fact alter egos are well settled. Al-
though each case must turn on its own facts, we
generally have found alter ego status where the
two enterprises have "substantially identical"
management , business purpose, operation, equip-
ment, customers, and supervision, as well as own-
ership.
Denzil S. Alkire, 259 NLRB 1323, 1324 (1982).
Accord: NLRB v. Campbell-Harris Electric, 719
F.2d 292 (8th Cir. 1983). Other factors that must be
considered in determining whether an alter ego
status is present in a given case include , "whether
the purpose behind the creation of the alleged alter
ego was legitimate or whether, instead, its purpose
was to evade responsibilities under the Act."
(Fugazy Continental Corp., 265 NLRB 1301 (1982).)
In the finding that an alter ego status existed between
Advance Electric and Beacon Electric, the Board ana-
lyzed each of, the factors as listed above. I will do like-
wise.
a. Substantially identical management
It is undisputed that Landhill was a family corpora-
tion. At Landhill, Lovitts, president of the corporation,
was the chief executive officer, in complete control of
the operation; his wife, Phyllis, vice president, worked as
a sales person ; his daughter Lori, secretary of the corpo-
ration, supervised the office clerical staff; and his daugh-
ter Bonnie worked in the production area. On the estab-
lishment of Rotary, the wife and two daughters of Lo-
vitts were hired by Rotary to perform essentially the
same services as they had previously performed at Land-
hill. Although Respondents' witnesses unanimously testi-
fied that Broido was the sole owner of Rotary and had
complete control of the management of Rotary, and that
no one in the Lovitts family had any interest in Rotary, I
reject this testimony. As indicated earlier, I found that
neither Broido nor Lovitts testified in a credible manner.
Further, Lori, in support of them, did not impress me
either. After careful study of the evidence, I have come
to the conclusion that Rotary has "substantially identical
management" as Landhill. I base my conclusion on the
following:
1. At no time did Lovitts indicate to Seide that he was
engaged in any business dealing with Broido. He simply
stated that Landhill was closing its operations.
2. Although Respondents' principal witnesses testified
that the transfer and sale from Lovitts to Broido took
place, they testified that the transaction was made over a
handshake, and that no written evidence of such transfer
or sale had ever been recorded. Once upon a time, per-
haps in Camelot, Shangrila, or Oz, such business transac-
tions may have taken place with a handshake. However,
in the last quarter of the 20th century in modern industri-
al America, business normally is not conducted in this
manner.
3. Lovitts conceded that although officially Landhill
had been closed in early August he continued to take
orders from customers, informing them that the orders
would be processed by Rotary. Again, in the modern
business world, it appears more logical that on closing of
a business, management would inform its customers to
seek other suppliers prior to the closing, and clearly
management would not accept orders after it has closed.
4. The evidence revealed that after Landhill ceased
production Lovitts continued to order supplies for Land-
hill.
5. Respondents contend that Lovitts was listed as
president of Rotary for the purpose of signing a lease for
the new premises of Rotary in East Farmingdale. Re-
spondents explained this away by asserting that the ma-
chinery and equipment had been leased from Landhill by
Rotary and that the landlord of the premises desired that
Lovitts sign the lease to secure the equipment as collater-
al. Other than this hearsay testimony of Respondents'
witnesses, no evidence was adduced at' the hearing that
such a requirement was necessary for the lease to be
signed. If such had been the case, there would be no ne-
cessity for Lovitts to sign the lease as president of
Rotary inasmuch as the equipment and machinery was
owned by Landhill.
6. The evidence established that Landhill and Rotary
were covered by the same insurance policy number with
the same insurance company. Under this policy with
Landhill, the president and vice president were insured
for $25,000 and the secretary and treasurer were insured
for $75,000. The individuals so covered were Lovitts and
his wife, Phyllis, for $25,000, and Lori and Bonnie for
$75,000. The policy further provided that all other em-
ployees be insured at a maximum of $10,000. These num-
bers remained the same when the insurance company
was informed of a name and address change from Land-
LANDHILL PRESS
hill to Rotary . Although an official" of the insurance
company testified that a change in corporate or employ-
ee status required a notification in writing to the insur-
ance company, no such notification had been accorded it
by Landhill. Thus, according to the insurance company's
records, Lovitts was still president and entitled to
$25,000 coverage.
7. Lori conceded that in her capacity as office manag-
er of Rotary she submitted insurance premiums to the in-
surance company identifying herself as secretary. Al-
though Respondent Rotary insists that she was employed
as a secretary of Rotary with no official title, I reject this
argument on the basis that secretaries who submit docu-
ments for officials of companies do not include their
titles. Therefore, the usage of the word "secretary" after
her name signifies that Lori was and is an officer of
Rotary.
8. It,is inconceivable that a new operation , as Rotary
claims to be, would simply adopt an insurance policy of
a company in which it insists it has no connection, rather
than make a application for new insurance coverage, list-
ing Broido as the sole owner to be so insured . Respond-
ents offered no explanation why the Lovitts family,
having no managerial interest in Rotary, should continue
to be covered by an insurance company with premiums
being paid by Rotary.
9. Although Lovitts testified that he did not recall his
salary at Rotary, as compared to his salary at Landhill,
the records of both companies revealed that the officers
of Landhill, i.e., the entire Lovitts family, received' the
same salaries at Rotary that they had previously received
at Landhdl. The records further revealed that employees,
such as Fisher and George Capizzi , received pay raises
in 1982. None of the Lovitts family received any salary
increase, which further tends to convince me that none
of them were mere employees of Rotary but rather indi-
viduals who had, a proprietary interest in the business. It
should benoted that the same payroll records of Rotary
established that Broido was not listed on the records
until January 1982, approximately 5 months after Rotary
commenced its operations,
10. The undisputed record established that Broido had
never had any experience in the printing industry. He
spent his entire career as an attorney. He has been Lo-
vitts family attorney for three generations , over a period
50 years, of and obviously has engendered some form of
trust between the Lovitts family and himself.
To sum up, from the evidence presented , as listed
above, I am convinced that Broido was used as a "front"
for the Lovitts family,, and that the true managers of
Rotary are Lovitts and members of his family.
b. Business purpose
There can be no dispute but that Landhill and Rotary
had the same business purpose. Both are engaged in the
wholesale printing, sale, and distribution of printed busi-
ness forms and related products, operating in the same
geographical area of Long Island, New York, a suburban
area of New York City.
383
c. Operations
The record reveals that there are some similarities and
some differences between the operations of Landhill and
Rotary. With respect to differences, each enterprise had
different insurance companies for liability purposes and
different banks, as well as different trucking services.
Whereas Landhill had no cleaning service, Rotary does.
Most important, they operated at different locations.
Nevertheless , each plant is located in the same geo-
graphical area, the New York metropolitan area , in gen-
eral, and Long Island , in particular. The Westbury plant
is located , approximately 15 miles from the, East Farming-
dale plant.
As for similarities, the record reveals that Lovitts,
through his brokerage firm, Lovitts Enterprises, ' contin-
ued to do business with Rotary after Landhill closed.
Lovitts continued to accept order for Landhill, and
Rotary completed the unfinished business subsequent to
the closing of Landhill. However, a study of the person-
nel of Landhill and Rotary reveals a great similarity. As
indicated earlier , the entire office staff, consisting of the
Lovitts family and Linda Jahn, transferred en masse to
the Rotary payroll. The first new employee, discounting
Broido, was hired on October 13 when Jill Weill was
hired. She remained at Rotary for exactly 1 month. The
next employee , Gale Schwartz, was hired in April 1982.
The record revealed that the composition department
had one employee who also transferred to Rotary from
Landhill. The first new employee in the composition
room was Stanley Lynch, hired October 22, 1981, and
terminated August 30, 1982. The next composition room
employee was ' not hired, until June 21, 1982, but was ter-
minated within 11 days. The evidence reveals that in the
bindery department, at the time Landhill closed, there
were eight employee. Three of them left on August 12,
1981, while the "other five transferred to Rotary. One of
the five left Rotary on October 1, 1981. Rotary hired
four new bindery employees, between August, 19 and
September 1. Thus, by September 1, there were five
bindery employees formerly employed at Landhill and
four new bindery employees. The record reveals that on
October 1, one of the Landhill bindery employees was
terminated, and on October 2, one of the, new Rotary
bindery employees was terminated. Two new employees
were hired in October, and one of them left in Decem-
ber. Throughout 1982, 1983, and 1984, many bindery, em-
ployees were hired and terminated, as the record indi-
cates.
It is the pressroom employees that are of paramount
concern in this case . The evidence revealed that in
August 1981 there were five pressroom employees in-
cluded in the appropriate unit represented by the Union.
In addition, another employee, Leon Rosenberg, had
been terminated on July 22. Of the five Landhill press-
room employees, four employees, including Isaac Fisher,
George Capizzi, John Capizzi, and Carl Moseley, trans-
ferred to Rotary's payroll. The fifth pressroom employ-
ee, according to undisputed testimony of John Capizzi,
refused to transfer to Rotary on being informed by both
Broido and Lovitts that Rotary would be a nonunion
shop and that the employees would have to leave the
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The record further, shows that two new employ-
ees were hired by Rotary in August 1981. The next em-
ployee to be hired in the pressroom was Nat Simmons,
hired on August 16, 1982, 1 year after Rotary com-
menced its operation. The record further, revealed that
on the transfer to Rotary, Fisher, who had been a work-
ing foreman covered by the collective-bargaining agree-
ment with the Union, was promoted to plant superin-
tendent with full authority to hire new employees in the
plant. The record further disclosed that George Capizzi
then replaced Fisher as a working foreman. It is noted
that at some later date George Capizzi was assigned
greater responsibilities to warrant a conclusion that he is
a supervisor under Section 2(11) of the Act. However, in
August 1981, he was not a supervisor under the Act, but
a working foreman with all the rights and privileges of
employees covered by the Act.
Although Respondents argue to the contrary, I find
that Rotary hired a vast majority of Landhill's employ-
ees in each of the four listed categories. This included
the entire office staff, the entire composition staff, five of
eight bindery employees, and all but one pressroom em-
ployee.5 Even assuming, arguendo, that Fisher is no
longer covered by the collective-bargaining agreement as
a result of his promotion at Rotary to plant superintend-
ent, there still remained three employees in the press-
room formerly employed by Landhill, with two employ-
ees hired in August to replace Fisher and Loperena.
Respondents argue that both Fisher and George Ca-
pizzi became supervisors on the advent of Rotary, and
thus should be executed from the unit. Respondents
reason that as two new pressmen were hired the comple-
ment of pressmen would be four nonsupervisory press-
men in the unit, which would negate the conclusion that
a majority of the pressmen at Rotary were former press-
men of Landhill. I reject this argument, having found
George Capizzi was not a supervisor at the time of his
transfer to Rotary. Accordingly, I find that a majority of
Landhill's pressroom employees did transfer to Rotary at
its inception.
d. Equipment
The parties stipulated that a list of equipment of Land-
hill, consisting of several pages and marked as the Gen-
eral Counsel Exhibit 8, was transferred over to Rotary.
Thereafter, the General Counsel asked Lovitts the fol-
lowing:
Q. Is General Counsel's Exhibit 8 all the equip-
ment you had at Landhill?
A. This one?
Q. Did ' that contain a list of all the equipment
that you had at Landhill other than paper products?
A. Yes.
5 John Capizzi testified that the one employee had been - offered em-
ployment, but was not hired when he refused to abandon the Union, as
requested by Lovitts and Broido. There , is nothing in the record to reveal
why the Regional Director did not allege a construction discharge and a
violation of Sec. 8(a)(3) and (1) of the Act with respect to Gene Loper-
ena, the individual in question . As there is no allegations, the General
Counsel does not urge that a violation be found, and as the issue was not
fully litigated, I will make no findings with respect to this matter.
Q. So, all your equipment, then went over to
Rotary, correct?
A. Right.
Subsequently, under examination by Respondents, Lo-
vitts stated that most of the machinery and equipment of
Landhill were transferred to Rotary, and the rest, enu-
merating several specific items, were sold or retained by
Lovitts himself.
John Capizzi, a witness for the General Counsel, testi-
fied without dispute that a truck used at Landhill was
again used by Rotary., However, he did concede that
Rotary did have a new truck in addition to the older
one, and there were additional new machines at Rotary
that had not been at Landhill.
e. Customers
The parties offered several stipulations with respect to
customers as follows.
In 1981, Landhill had 131 customers. Of this number,
109 were also customers of Rotary. Of the 22 customers
of Landhill who did not become customers of Rotary, 3
were not in business prior to August 1, 1981; 7 had only
one order with Landhill; and 2 of those,were transferred
to Anchor Business Forms, a broker that did business
with Landhill and with Rotary, such transfer occurring
prior to August 1981. Of 131 customers of Landhill, 51
of those were sent bills for orders after August 1, about
August 17; and of the 51, 23 were sent bills for orders of
Landhill received after August 24.
The record further shows the following dates, Rotary
customers, and number who had been former Landhill
customers as follows:
Date Rotary
Formerly
LandhillCustomers Customers
September 1981 .......................... 70 58
October ....................................... 16 13
November ................................... 19 9
December .................................... 8 6
January 1982 ............................... 7 5
February...................................... 10 3
March .......................................... 11 3
April ............................................ 12 1
May ............................................. 3 0
June ............................................. 20 3
July .............................................. 14 0
August ......................................... 14 2
September ................................... 9 2
October ....................................... 10 0
November ................................... 9 0
December .................................... 12 0
The parties further stipulated that by December 1982
Rotary had 244 customers. The parties further stipulated
that of the 109 Landhill customers that ultimately
became Rotary customers 15 were last Landhill custom-
ers sometime prior to July 1981.
LANDHILL PRESS
Lori testified that she employed" the same system in
making entries on the customer cards for Rotary as he
had done at Landhilt
Respondents contend that in the printing brokerage
business clientele often utilize numerous manufacturers of
forms at the same time , depending on the cost of each
job they are brokering . In addition , Respondents assert
that the criteria with respect to customers is not a true
criterion in this industry , inasmuch as had Landhill
stayed in business and Rotary opened a new business the
brokers would undoubtedly have been customers of
both, and many other form printing establishments as
well. Therefore , Respondents submit that the numbers
regarding customers are insufficient under the circum-
stances . I do not agree with Respondents' contentions. It
may' be, as Lovitts testified , that one cannot turn over
customers from one establishment to another . Neverthe-
less,, I find it highly significant that a vast majority of
Landhill's customers did rotate to Rotary after Landhill
closed . It should be noted that Lovitts, in taking orders
from customers , did inform the customers in August
1981 that the work would be performed by Rotary, and,
in fact, orders taken by Landhill or by Lovitts' other
brokerage businesses were performed by Rotary after
Landhill closed.
f, Supervision
The office staff of both Landhill and Rotary is super-
vised by Lori. She testified that her official position was
office manager and secretary of both corporations. The
evidence adduced at the hearing revealed that at Land-
hill Lovitts was in charge of the overall supervision,
while Ike Fisher was in charge of the pressmen as a
working foreman. However, testimony revealed that at
Rotary Fisher is the plant superintendent and at some
later date George Capizzi became the pressroom fore-
men. Respondents assert that Lovitts has no supervisory
authority at Rotary, but only retains an office and acts as
a consultant, but Broido, with no connection at all with
Landhill, is the overall supervisor of Rotary. According
to Respondents, Broido has full authority to hire and dis-
charge all employees,; although the supervisors, including
George Capizzi, effectively recommend hiring of em-
ployees. However, it' is noted earlier that Lovitts signed
the lease for the premises as president for Rotary, and
the insurance company that insures the lives of nonunion
employees lists him as president of Landhill and Rotary.
From the evidence presented, I have concluded that the
supervisory staff at Rotary is substantially the same as
the supervisory staff at Landhill. Although Respondents
argue that Broido is the overall supervisor of Rotary, the
evidence established that Broido has had no prior experi-
ence in the, printing business, and no evidence was ad-
duced that he had any experience in personnel work. Al-
though no direct evidence was presented to refute re-
spondents' witnesses that Broido was in overall charge of
Rotary, I reject this contention of Respondents, and find
that Lovitts continues to supervise the overall operations
of Rotary, dispite the fact that his alleged, title is, that of
consultant, and he allegedly has no interest in Rotary.
385
g. Ownership
The undisputed evidence reveals that Lovitts owned
100 percent of Landhill. Respondents claim that Broido
is the sole shareholder and director of Rotary and that
Lovitts is not involved in the ownership. I am unable to
accept Respondents' contention for the following rea-
sons.
1. There is no documentary evidence in the record to
prove that Broido is the sole owner of Rotary and that
Lovitts or members of his family have no financial inter-
est in Rotary. Respondents assert that inasmuch as
Broido and Lovitts had been good friends for many
years the deal that transferred Landhill to Rotary was
consummated by a handshake. Nevertheless, the record
disclosed that on August 3, 1981, Lovitts and Broido ex-
ecuted a lease for the rental of equipment from Landhill
to Rotary. (R. Exh. 5.) No explanation was proffered by
Respondent to explain if Broido and Lovitts were such
great friends who were able to transfer Landhill to
Rotary by a handshake, why it was necessary that the
transfer of equipment from Landhill to Rotary necessitat-
ed a signed lease . In addition, although it was alleged
that Lovitts owed Broido money in excess of $100,000
for services rendered as an attorney, there is no docu-
mentary evidence of this debt, nor is there any documen-
tary evidence relieving Lovitts of the debt to Broido.
Further, Lovitts has no record of the amount of moneys
owing to Broido. Nobody was able to testify about the
amounts of money Lovitts owed Broido prior to his
turning over the business of Landhill to Broido.,
2. Evidence was adduced that Lovitts signed a lease of
the premises in East Farmingdale as president of Re-
spondent. Broido testified that there were minutes of the
corporate meeting evidencing Lovitts being made presi-
dent for 1 day. At the hearing, this judge stated that
unless the minutes were produced, he would draw the
conclusion that no such minutes were taken. No minutes
were ever produced by Respondents.
3. The insurance data revealed that the same policy
number applied to both Landhill and Rotary, and that
Lori, as secretary, notified the insurance company of a
change of name and address from 'Landhill in ' Westbury
to Rotary in East Farmingdale. However, no notification
was given to the insurance company of the change of the
beneficiaries of the contract. Thus, the name of Lovitts
as president and his wife Phyllis as vice president, as
well as his two children as secretary and treasurer, re-
mained on the insurance policy that was adopted by
Rotary. Thus, as an agent of the insurance company tes-
tified that, had Jerry Lovitts or any of the Lovitts family
died under insurance coverage the insurance company
was obliged to pay the moneys under which they were
insured. It is noted that at a later date Broido was listed
as' executive president of Rotary. Although the agent of
the company testified that the company should have dis-
covered that two presidents were listed for Rotary, and
could not explain why it was not' discovered; I cannot
fault the insurance company for this error. On the other
hand, I can fault Rotary, be it Lovitts or Broido, for not
making it perfectly, clear, if such was not the situation,
that Lovitts and his family members were no longer offi-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cers of Rotary, but that Broido was the sole person to be
insured . This, of course, did not occur because, as I find,
the Lovitts family was still the owner of the business,
whether'it be called Landhill or Rotary.
4. The undisputed evidence further revealed that Lo-
vitts informed the customers of Landhill at the time he
was taking orders after Landhill allegedly closed that
they would be using , Rotary, which was the same entity
as Landhill.
5. It is undisputed further that the company known as
Forms-R-Us was borrowed from Landhill by Rotary
until such time as Rotary received an" identification
number . When asked for an explanation of how this oc-
curred, Broido testified as follows:
Well, when we signed the lease , I applied for the
ID number , it didn't come in, in time and the
checking company gave us to understand that they
couldn't issue the checks, the payroll checks with-
out an ID number . We had an old corporation which
was dormant, as far as I was concerned, as we used
their number. [Emphasis added.]
Broido identified the old corporation that was dormant
as Forms-R-Us, one of Lovitts' corporations.
Based on the above testimony by Broido , it is obvious
to me that Broido considered Forms-R-Us intertwined
with Rotary and Landhill, and had no qualms with in-
dentifying that corporation as one that "we" had. Ac-
cording to the' testimony of Respondents' witnesses, at
no time did Rotary have any connection with Forms-R-
Us other than borrowing an ID number for a brief time.
Broido's testimony, however, can be interpreted as indi-
cating that there was a nexus among the three corpora-
tions, namely, Landhill, Forms-R-Us, and Rotary. I so
make that connection.
h. Purpose of activation of rotary press
In analyzing all the facts of the instant case, I am con-
strained to conclude that the purpose of activating
Rotary by Lovitts was to avoid any dealings with the
Union. I base this conclusion on the following:
1. Landhill claims it was deep in debt, was unable to
carry on it business, and was about to go bankrupt. Nev-
ertheless, Broido, without any experience or background
in the printing business , "agreed" to start up a new busi-
ness. The record indicates that within 3 years, Rotary
built up a bankrupt business into an apparently prosper-
ous profit-making concern, with many more employees
and customers ., Whether this highly successful turnabout
could have been accomplished with a union agreement is
highly speculative. However, inasmuch as the Employer
was not obliged to pay fringe benefits into various union
funds, it was either able to lower its prices, generate
more profit, or do both.
2. At the time that Landhill became Rotary in August
1981, both Broido and Fisher informed the pressroom
employees that they were operating a nonunion shop and
asked the employees to resign from the Union. One em-
ployee refused to do so and resigned. The other employ-
ees signed a document creating a nonunion shop.
3. Seide testified, without contradiction, that on his
visit to Rotary in East Farmingdale, he ,was informed by
Lori, allegedly only a secretary with a nonofficial status
in Rotary, that a union was not needed at Rotary as it
would put them out of business.
From the evidence as detailed above, I find that the
true purpose for which Rotary was formed was, to evade
Landhill's responsibility under the Act to honor its col-
lective-bargaining agreement with the Union. Such a mo-
tivation supports an alter ego finding. J. M. Tanaka Con-
struction v. NLRB, 675 F.2d 1029 (9th Cir. 1982).
Although it can be argued that inasmuch,as all the fac-
tors utilized by the Board and the courts to determine
whether two employers constitute alter egos for the pur-
poses of the Act may not be present in the clearest form,
the Board has held that all the indicia need not be
present. See Blake Construction Co., 245 NLRB 630, 634
(1979), enf. granted in part and denied in part on other
grounds 663 F.2d 272 (D.C. Cir. 1981). In analyzing all
the factors listed above, on balance, I find and conclude
that Rotary is, and was at all time since August 1981, the
alter ego of Landhill and, thus, is and was obligated to
bargain with the Union as the representative of the press-
room employees and is and was bound by the collective-
bargaining agreement entered into between the, Associa-
tion and the Union inasmuch as Landhill had agreed as
early as 1954 to the terms and conditions of the agree-
ment negotiated between the Union and the Association.
By failing to so bargain with the Union and, by with-
drawing recognition from it, in addition to repudiating
the collective-bargaining agreement to which Landhill
was bound, Rotary violated Section 8(a)(5) and ,(1) of the
Act.
5. The successorship issue
It is the contention of the General Counsel that should
it be found that an alter ego situation does not exist alter-
natively it should be found that Rotary is a successor of
Landhill, and, as such, is bound to recognize the Union
as the collective-bargaining representative of the press-
room employees. Respondents, on the other hand, deny
that Rotary, a new enterprise lacking much of the crite-
ria that would signify a successors violated the Act by its
refusal to recognize the Union as the agent of its employ-
ees.
The Board has offered guidelines for determining
whether a bargaining obligation attends the sale or trans-
fer of a business . These factors are:
(1) Whether there has been a substantial continuity of
the same business operations.
(2) Whether the successor uses the same plant as that
of the predecessor.
(3) Whether it has the same or substantially the same
work force.
(4) Whether the same jobs exist under the same work-
ing conditions.
(5) Whether it employs the same supervisors.
(6) Whether it uses the same machinery, equipment,
and methods of productions.
(7) Whether it manufactures the same product or
offers the same services. See Band Age, Inc., 2,17 NLRB
LANDHILL PRESS 387
449, 452-453 (1975); J-P Mfg., - -194, NLRB '965; 968
(1972).
All the criteria for finding a successor have been thor-
oughly analyzed in the section on' alter ego. The sole cri-
terion that I find lacking is item 2, that is, the successor,
Rotary, did not utilize the same plant as its predecessor,
Landhill. Accordingly, on the possibility that either the
Board or courts are not in agreement with my analysis
that Landhill and Rotary are alter egos, based on my
analysis of the evidence as discussed in the alter ego sec-
tion, I am in accord with the. General Counsel's alternate
theory that at the very least Rotary is a successor to
Landhill, and thus is obligated to recognize and bargain
with the Union.
6. Rotary's refusal to honor the collective-
bargaining agreement executed on January 24, 1983,
and its refusal to make contributions to the Union's
funds on behalf of the unit employees
The evidence established that at the opening of a hear-
ing before Judge Edelman on January 24, 1983, it ap-
peared that the Charging Party and Respondents entered
into an out-of-Board settlement whereby Respondents
acknowledged that they were alter egos and Rotary was
a successor of Landhill. At the same time, the parties ex-
ecuted an agreement whereby Rotary recognized the
Union as having jurisdiction over "Offset presses and re-
lated lithographic work such as camera, stripping and
plate making."
Subsequently, Rotary refused to abide by the terms of
the agreement that prompted the Union to file a second
charge, resulting in the issuance of the complaint in Case
29-CA-10490.
The General Counsel contends that the agreement was
entered into by Rotary freely and that Rotary's only de-
fense that Broido signed the agreement without being
aware of the contents of the document as he was legally
blind has no merit. I have fully discussed this matter ear-
lier in this decision and have discredited Respondents'
contention. However, Respondents offered a second de-
fense, namely, that the unit in the agreement (G.' C. Exh.
20) contained a unit that included employees other than
the pressman represented by the Union.
The General Counsel argues that the testimony of Re-
spondents' attorney, Licata, and the Union's president,
Seide, makes it abundantly clear that the only individuals
sought by the Union were the pressroom employees, and
not any other fringe employees. The General Counsel
further argues that Respondents did not dispute the testi-
mony of Licata or Seide.
Again, based on the assumption that the Board or
courts do not agree with my conclusion that an alter ego
status exists between Landhfill and Rotary, and having
found that in the alternative Rotary is a successor to
Landhill, a question remains whether' Rotary was bound
by the agreement, executed by the parties on January 24,
1983. I find merit in Respondents' argument that the unit
encompassed in the agreement far exceeds the unit repre-
sented by the Union. Despite the General Counsel's ar-
gument that both Licata and Seide testified orally that
they meant the, unit encompasses only pressroom em-
ployees, Licata was unable to explain why, despite the
^faot'that crossouts and additions were initialed by the
parties in the agreement, this was not done with respect
to the unit.
It is common knowledge in contract law that written
contracts cannot be altered by oral testimony. Thus, al-
though Respondents did not refute the testimony of
Licata and Seide, I cannot accept their testimony that
the agreement only included pressroom employees, and
not other employees performing related lithographic
work. Therefore, I find that the agreement entered be-
tween the parties on January 24, 1983, to be valueless
and that Respondents were under no obligation to abide
by the terms and conditions of this agreement. Accord-
ingly, I recommend that this portion of the complaint be
dismissed.
7. Respondents' refusal to furnish the Union with
names and addresses of unit employees, and to
permit union representatives access to Respondents'
premises
The undisputed evidence established that in March
1983 Union President Seide visited Rotary's premises. He
was denied permission by Broido to speak to the press-
men in the plant, although he was permitted to see them
one by one in Broido's office. Seide requested from
Broido names and addresses of each pressman, and infor-
mation regarding wages and benefits received by them.
Not having received the information requested, Seide
again attempted to speak to the pressmen in the plant in
April, but was not permitted to do so by Rotary. There-
after, his attorney wrote Rotary to inform it that it was
in violation of the agreement and requested Broido to
contact Seide. No response was made. A further letter,
dated June 23, 1983, by the Union's attorney advised
Broido that Rotary was in arrears in payment to the
Union's trust funds. Again, Rotary did not respond, nor
has it made any contact with the Union to date.
Regardless of whether Rotary is the alter ego of, or
successor to, Landhill, I find merit in the General Coun-
sel's contention that the Union is entitled to the informa-
tion sought by it from Rotary.
It is well established under the Act that an employer
may be required to furnish its employees' bargaining rep-
resentative, on request, with sufficient data' on wage
rates, job classifications, and other allied matters to
permit the representative: (1),To bargain understanding;
(2) to police the administration of the current contract;
and (3) to prepare for coming negotations.
See Aluminum Ore Co., 39 NLRB 1286 (1942), enfd.
131 F.2d 485 (7th Cir. 1942); NLRB v. Item Co., 220
F.2d 956 (5th Cir. 1955); General Controls Co., 88 NLRB
1341 (1950).
Later Board and court decisions have required em-
ployers under the Act to-furnish unions with names and
addresses of all employees in the unit that the union rep-
resents. See Standard Oil Co v. NLRB, 399 F.2d 639 (9th
Cir. 1968). Prudential Insurance Co. v. NLRB, 412 F.2d
77 (2d Cir. 1969), cert. denied 396 U.S. 928 (1969);
United Air Craft Corp. v. NLRB, 424 F.2d 1198 (2d Cir.
1970.)
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further well established that an employer is
obliged to permit the bargaining representatives of its
employees reasonable access to its facility, whether by
contract or past practice. See Campo Slacks, Inc., 250
NLRB 420, 429 (1980), and R. C. Cobb Inc., 231 NLRB
99, 104 (1977).
Accordingly, I find that Respondents, by their failure
to supply the desired information to the Union, and by
their failure to permit access of union representatives to
their plant, violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondents Landhill Press, Inc. and Rotary Busi-
ness Systems , Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 51, International Printing and Graphic Com-
munications Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Rotary Business Systems, Inc. is, for the
purpose of this proceeding, the alter ego of Respondent
Landhill Press, Inc.
4. All pressroom employees, including printing press-
men employed by Landhill Press, Inc. and by its alter
ego Rotary Business Systems, Inc., exclusive of all other
employees, office clerical employees, guards and all su-
pervisors as defined in Section 2(11) of the Act consti-
tute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
5. At all times material the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the appropriate unit described above in paragraph
4 within the meaning of Section 9(a) of the Act.
6. Since about October 4, 1954, and at all times materi-
al the Union and the Printing League Section, Printing
Industries of Metropolitan New York, Inc., have been
parties to successive collective-bargaining agreements,
the most recent of which is effective by its terms for the
period March 4, 1983, to March 4, 1985.
7. About October 4, 1954, Respondent Landhill and
the Union executed an agreement whereby Landhill
adopted the existing association agreement and agreed to
adhere to the terms of succeeding association agree-
ments.
8. By failing and refusing to recognize and bargain
with the Union as the exclusive representative of its em-
ployees in the appropriate unit, and by failing to adhere
to the terms and conditions of the association agreement
with respect to such employees, Respondents have vio-
lated Section 8(a)(5) and (1) of the Act.
9. By failing and refusing to furnish the Union infor-
mation requested by it on March 11, 1983, and thereaf-
ter, and by refusing to allow the union representatives to
enter its pressroom since March 11, 1983, Respondents
have violated Section 8(a)(5) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents engaged in unfair
labor practices , I shall recommend that they cease and
desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
Having found that Respondent Rotary is the alter ego
of Respondent Landhill and has continued to operate its
business, but has failed and refused to recognize the
Union as the collective-bargaining representative of its
employees or to apply the terms of the association agree-
ment between the Union and Respondent Landhill, I
shall order Respondent Rotary to recognize the Union as
the representative of its pressroom employees and to
honor and apply the terms of the association agreement,
and any subsequent agreement,6 to its employees. In ad-
dition, I shall order Respondents to make whole their
employees by making the contractually established pay-
ments to the various trust funds established by the collec-
tive-bargaining agreement,7 and by reimbursing employ-
ees for any expenses ensuing from Respondents' unlawful
failure to make such required payments, as provided in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). See also Ad-
vance Electric, id. at 1005.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Landhill Press, Inc. and its alter ego
Rotary Business Systems, Inc., East Farmingdale, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local 51,
International Printing and Graphic' Communications
Union, AFL-CIO as the exclusive representative for pur-
poses of collective bargaining of the employees in the
following appropriate unit:
All pressroom employees, including printing press-
men employed by Respondents, exclusive of all
6 The record established that Landhill never termmatd its 1954 agree-
ment with the Union , and that the agreement remains in full force and
effect. Accordingly, Respondent Rotary is bound to the terms of any sub-
sequent collective-bargaining agreement between the Association and the
Union until such time as Respondent Rotary gives proper and timely
written notice to terminate their agreement to the Union , and then to the
expiration of that agreement. Advance Electric, 268 NLRB 1001, 1005 fn.
13 (1984).
4 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy. I therefore
leave to further proceedings the question of how much interest Respond-
ents must pay into the benefit fund in order to satisfy the Board's "make-
whole" remedy. These additional amounts may be determined , depending
on the circumstances of each case, by reference to provisions in the docu-
ments governing the fund at issue and , where there are no governing pro-
visions, to evidence of any loss directly attributable to the unlawful
action that might include a loss of return on investment of the portion of
funds, withheld additional adminstrative cost, etc., but not collateral
losses. See Advance Electric, supra at 1005 fn. 14, Merrywea'ther Optical
Co, 240 NLRB 1213, 1216 fn 7 (1979). Other payments to the Union, if
any, shall bear interest as prescribed in Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB 716, (1962). ,
a If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be ' deemed waived for all pur-
poses.
LANDHILL PRESS
other employees , office clerical employees, guards,
and all supervisors as defined in Section 2(11) of the
Act.
(b) Refusing to honor and implement the collective-
bargaining agreement in effect between Landhill Press,
[nc. and the Union.
(c) Refusing to furnish the Union with names and ad-
dresses of all their employees in the appropriate unit and
information regarding wages and benefits received by
them.
(d) Refusing to allow representatives and agents of the
Union to enter their pressroom pursuant to the terms of
the collective-bargaining agreement.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their'
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Comply with the terms and conditions of the col-
lective-bargaining agreements between the Association
and the Union to which Respondents are bound, retroac-
tively to August 12 , 1981 , including making the appro-
priate trust funds, the employees , and the Union whole
in the manner described in the remedy section of this de-
cision.
(b) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
appropriate unit described above inparagraph 1(a) con-
cerning terms and conditions of employment.
(c) Furnish the Union with names and addresses of
employees in the appropriate unit presently employed by
Respondents and information regarding wages and bene-
fits received by them.
(d) Provide representatives and agents of the Union
entry to their pressroom pursuant to the terms of the col-
lective-bargaining agreement.
(e) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its offices in East Farmingdale , New York,
copies of the attached notice marked, "Appendix."g
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by Respond-
ents' authorized representative, shall be posted by Re-
spondents immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents
to ensure that the notices are not altered, defaced, or
covered by any other materials.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
389
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to recognize and bargain with
Local 51, International Printing and Graphic Communi-
cations Union, AFL-CIO as the exclusive representative
for purposes of collective bargaining of our employees in
the following appropriate unit:
All, pressroom employees , including printing press-
man employed by us, exclusive of all other employ-
ees, office clerical employees, guards, and all super-
visors as defined in Section 2(11) of the National
Labor Relations Act.
WE WILL NOT refuse to honor and implement the col-
lective-bargaining agreement in effect between Landhill
Press, Inc. and the Union.
WE WILL NOT refuse to furnish the Union with names
and addresses of all our employees in the appropriate
unit and information regarding wages and benefits re-
ceived by them.
WE WILL NOT refuse to allow representatives and
agents of the Union to enter our pressroom pursuant to
the terms of the collective-bargaining agreement:
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL acknowledge that we are bound by the exist-
ing collective-bargaining agreement in effect between
Landhill Press, Inc. and the Union, retroactive to August
12, 1981.
WE WILL honor, implement, and apply this collective-
bargaining agreement.
WE WILL make whole the Union for any and all bene-
fits funds and other payments due and owing pursuant to
this collective-bargaining agreement.
WE WILL make whole unit employees for any losses
they may have suffered by reason of our failure to honor
and implement the collective-bargaining agreement with
the Union, with interest.
WE WILL, on request, recognize and bargain with the
Union as the exclusive representative of our employees
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit concerning terms and conditions WE WILL provide representatives and agents of the
of employment. Union entry to our pressroom pursuant to the terms of
WE WILL furnish the Union with names and addresses our collective-bargaining agreement.
of employees in the appropriate unit presently employed
LANDRILL PRESS, INC. AND ITS ALTER
by us and information regarding wages and benefits re- EGO, ROTARY BUSINESS SYSTEMS, INC.
ceived by them.