Specialty Envelope Co.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 94 (N.L.R.B. 1993)

94
313 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We do not pass on any of the judge’s other rulings, findings, or
conclusions, nor on the parties’ exceptions thereto.
2 The only additional issue presented will be the Receiver’s status
as an employer.
3 The parties are entitled to present evidence regarding the Receiv-
er’s alleged status as an employer. Thus, the Respondents may
present evidence in support of their argument that the Receiver is
exempt from jurisdiction of the Act as a political subdivision of a
State. See Holiday Inn Coliseum, 300 NLRB 631 (1990). The parties
may also present any evidence they were precluded from presenting
in the prior proceeding because the Receiver was not named as an
employer. The judge may accept any other evidence necessary to ac-
complish the purposes of this remand.
Western Paper Products, Inc. d/b/a Specialty Enve-
lope Company, Samuel L. Peters, Receiver, and
its successor, Specialty Envelope, Inc. and
United Paper Workers International Union,
AFL–CIO and its Local 459. Cases 9–CA–
29283, 9–CA–29552, 9–CA–29703, 9–CA–29829,
and 9–CA–30136
November 23, 1993
ORDER REMANDING PROCEEDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 22, 1993, Administrative Law Judge Peter
E. Donnelly issued his decision in this proceeding. The
General Counsel filed exceptions and a supporting
brief, the Charging Party filed cross-exceptions and a
supporting brief, the Respondents filed exceptions and
a supporting brief, the General Counsel and the Re-
spondents filed answering briefs, and the Respondents
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to remand the proceeding
to the judge.
The charges and an ensuing series of complaints in
this case allege that a variety of unfair labor practices
were committed by Western Paper Products, Inc. d/b/a
Specialty Envelope Company (Western); by Samuel L.
Peters, Receiver for Western; and by Specialty Enve-
lope, Inc. (Specialty Envelope). The five complaints
that issued in this case prior to the hearing allege that
unlawful acts committed by Peters during the receiver-
ship were attributable to Western because Peters was
Western’s agent.
At the hearing, the General Counsel moved to
amend the complaint to allege, in the alternative, that
Peters, in his capacity as Receiver for Western, was an
employer within the meaning of the Act. The Respond-
ents objected to the amendment. The judge denied the
motion, holding that (1) it was inappropriate to allege
in the alternative that Peters was an agent of Western
and/or an employer as the Receiver; (2) it was un-
timely to name a new employer which allegedly vio-
lated the Act; and (3) the additional allegations were
not closely related to the charge. The General Counsel
and the Charging Party filed exceptions to the judge’s
failure to allow the amendment to the complaint. We
find merit in their exceptions for the reasons that fol-
low.1
First, we are not troubled by pleading in the alter-
native as a general rule. Here the amendment was
prompted by precedent indicating that the Board will
not find a receiver appointed under state law to be an
agent of the business entity it is managing. Cone-
Heiden Corp., 305 NLRB 1045 (1991). Accordingly,
although the motion to amend the complaint provides
alternative bases for liability, it is clear to all con-
cerned that the Receiver’s alleged statutory status as an
employer is likely to be the primary theory of liability.
Second, although the judge is correctly concerned
about naming a new party to the complaint at a late
stage of the proceeding, the usual grounds for concern
are not present in this case. The charges and all of the
prior complaints alleged Peters’ actions during the re-
ceivership to be unlawful; Peters, as the Receiver, was
served with the charges and earlier complaints; and
‘‘Samuel Peters, Receiver’’ has appeared in the caption
of all previous complaints. Accordingly, the Respond-
ents were on notice from the inception of the case that
certain actions during the receivership were at issue.
The Receiver’s due-process rights, therefore, are not
infringed by allowing the amendment. This case is
most closely analogous to one where the wrong em-
ployer is named in the complaint, but there is actual
notice to the correct alleged wrongdoer. The Board
will allow the addition of parties who are on notice of
a proceeding and are not prejudiced by an amendment
to include them. See, e.g., American Geriatric Enter-
prises, 235 NLRB 1532, 1534–1536 (1978).
Third, we find the judge’s concern that the amend-
ment is not closely related to the charge to be without
merit in the circumstances of this case. The amend-
ment concerns the entity which committed the alleged
unlawful actions that are enumerated in the charges
and the previous complaints. The facts and legal issues
to be decided remain the same.2 Although the Board
will not join a new party to a proceeding simply be-
cause the issues are closely related, we find, as set
forth above, that the Receiver was on notice from the
charges and complaints of the allegations of its wrong-
doing.
Accordingly, we grant the General Counsel’s motion
to amend the complaint and shall remand the case to
the judge to consider any and all issues raised by the
amendment.3
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Peter E. Donnelly for further
95SPECIALTY ENVELOPE CO.
1 The complaint also alleges that Specialty violated Sec. 8(a)(5) of
the Act by insisting as a condition of collective bargaining that the
Union agree to withdraw the unfair labor practice charges filed by
the Union against Western. The General Counsel attempted to ad-
duce testimony thereon, but on motion by Respondent, the General
Counsel was precluded from taking such testimony because these
conversations were essentially settlement discussions, and testimony
inhibiting such discussions are not admissible.
2 All dates refer to 1992 unless otherwise indicated.
consideration consistent with the above instructions, in-
cluding reopening the record to adduce further evi-
dence on the Receiver’s alleged status as a statutory
employer and its alleged liability for actions taken dur-
ing the receivership.
IT IS FURTHER ORDERED that Judge Donnelly shall
prepare and serve on the parties a supplemental deci-
sion containing findings of fact, conclusions of law,
and recommendations regarding the issue on remand.
Following service of the decision on the parties, the
provisions of Section 102.46 of the Board’s Rules and
Regulations, Series 8, shall be applicable.
Donald A. Becher, Esq. and Mary Elizabeth Walker-
McBride, Esq., for the General Counsel.
David K. Montgomery, Esq., of Cincinnati, Ohio, for the Re-
spondent.
Peter M. Fox, Esq., of Cincinnati, Ohio, for the Union.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On the
various dates set forth there, charges were filed by United
Paper Workers International Union, AFL–CIO, and its Local
459 (Union or Charging Party), against Western Paper Prod-
ucts, Inc. d/b/a Speciality Envelope Company, Samuel L. Pe-
ters, Receiver (Western) and Specialty Envelope, Inc. (Spe-
cialty). Several complaints based on the allegations of the
various charges against both Respondents were consolidated
into an order consolidating cases, fourth consolidated com-
plaint and order rescheduling hearing which issued on De-
cember 22, 1992. That complaint alleges, inter alia, that
Western violated Section 8(a)(1) of the Act by promising to
provide employees with improved medical and insurance
benefits if they withdrew their support for the Union. The
complaint also alleges 8(a)(5) violations by Western in refus-
ing to furnish information to the Union necessary and rel-
evant to its duties as collective-bargaining representative of
Western’s production and maintenance employees; by mak-
ing various unilateral changes in the terms and conditions of
employment of those employees without notice to or con-
sultation with the Union; and refusing to discuss, on request,
the matter of Western going into receivership, as it affected
the terms and conditions of employment of unit employees.
With respect to Specialty, alleged as a successor to West-
ern, the complaint alleges 8(a)(5) violations by: the failure of
Specialty to furnish certain information necessary and rel-
evant to the Union’s duties as collective-bargaining rep-
resentative of the unit employees; making various unilateral
changes in the terms and conditions of employment of unit
employees without notice to or consultation with the Union;
by its overall conduct in refusing to bargain in good faith
with the Union and by withdrawing recognition from the
Union.1 Answers to the various complaints have been timely
filed. Pursuant to notice, a hearing was held before me on
March 2 and 3, 1993. Briefs have been timely filed by Re-
spondent, General Counsel, and Charging Party, which have
been considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Western was a manufacturer of commercial envelopes with
a production facility at Cincinnati, Ohio. During the 12
months immediately preceding June 25, 1992, it sold and
shipped from that facility goods valued in excess of $50,000
directly to points outside the State of Ohio. Based on these
jurisdictional facts, which are admitted in the answer, I con-
clude that Respondent Western is an Employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The parties stipulated at the hearing that Spe-
cialty, since beginning operations, has sold $50,000 worth of
goods across state lines from the Cincinnati facility and is
engaged in commerce within the meaning of the National
Labor Relations Act.
II. LABOR ORGANIZATION
The complaint alleges and the record here establishes that
the Union is an employee organization dealing with employ-
ers concerning terms and conditions of employment and is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
About June 1988, Western bought an envelope manufac-
turing facility located at Cincinnati, Ohio. At that time, the
employees of Western were represented by the Union and
Western agreed to honor the then-existing collective-bargain-
ing agreement with the Union. Subsequently, a new contract
was negotiated effective December 10, 1990, through No-
vember 20, 1993.
For some time prior to the execution of the 1990 contract,
Western had been experiencing financial difficulty. During
1991, the production staff was reduced from 150 employees
to about 70 employees, and during those weeks toward the
end of 1991, production was significantly reduced because
suppliers were refusing to provide production material to the
facility. On January 9, 1992,2 without the funds to guarantee
wages, the employees were sent home to await further devel-
opments.
Meanwhile, in view of these dismal economic prospects,
Central Trust Company (Central Trust), who was Western’s
principal lender with a secured interest in the assets of West-
ern, obtained on January, 13, an ‘‘order Appointing Re-
ceiver’’ from the Court of Common Pleas for Hamilton
County. Under the terms of the Order, Samuel L. Peters was
appointed Receiver and given control of Western’s assets and
the day-to-day operation of the business, as well as directions
to attempt to sell Western’s assets, subject to the approval
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It appears that Peters had considerable expertise in this type of
business as the owner of similar paper products companies.
4 Peters did not testify.
of the court.3 Also on January 13, the employees returned to
work. As set out below in greater detail, the receivership
lasted until June 19, when Peters himself purchased the as-
sets of Western.
It is significant to note, and it is undisputed, that prior to
the beginning of the receivership on January 13, about No-
vember 1991, Western had ceased making certain insurance
payments to which it was contractually obligated under its
labor agreement with the Union, specifically Employer con-
tributions to the Union’s pension fund and insurance pre-
mium contributions for health insurance, sickness, and acci-
dent disability insurance and life insurance.
On assuming the duties of Receiver on January 13, Peters
went to the plant that same day and explained the situation
to the employees. He introduced himself as the court-ap-
pointed Receiver and introduced Sam Venanzio as the new
plant manager. It is undisputed that neither Peters nor
Venanzio had any prior involvement in the affairs of West-
ern.
It was stipulated by the parties that during the receiver-
ship, Peters declined to honor the existing labor agreement.4
It is undisputed that contractually obligated insurance and
pension payments, earlier discontinued by Western, were not
resumed by Western after the appointment of the Receiver on
January 13, although Receiver-provided health care coverage
was resumed. In addition, the Receiver declined to observe
the contract’s provisions concerning breaktimes, vacations,
and birthdays as paid holidays and instituted his own policies
as to those items. The birthday holiday was eliminated. Dur-
ing the receivership, Peters also ignored the job-bidding pro-
cedures of the contract, denied plant access to the Union’s
International representative, as provided in the contract,
failed to utilize the recall provisions of the contract in recall-
ing laid-off employees, failed to pay the appropriate higher
wage rate provided for in the contract to employees tempo-
rarily transferred to a higher wage classification, and failed
to pay the appropriate contract wage rate to employees clas-
sified as print technicians. Indeed, it was conceded that Pe-
ters advised both the Union and the employees that the con-
tract was not a part of the receivership, and the parties stipu-
lated that any changes in working conditions made after Jan-
uary 13 were made without notice to the Union.
Consistent with this position, Peters, during the receiver-
ship, did not honor the grievance procedures of the contact.
Various grievances filed with the Receiver over the Receiv-
er’s failure to observe various contract provisions, including
vacations; bumping rights; reimbursement for health insur-
ance premiums and health care costs for the period they were
without coverage; union representatives’ visitation rights to
the plant; failure to make payroll deductions for union dues;
payments to the pension fund; and hiring new employees in-
stead of rehiring laid-off employees. All those grievances
were rejected with identical memos from Venanzio stating:
It is my understanding that the contract signed
12/13/90 is not a part of the receivership with Samuel
L. Peters.
We are doing everything possible to secure this
Company as a profitable organization and are looking
for your support and cooperation in this endeavor.
All these changes or modifications to the contract were
unilaterally made, without notice to or bargaining with the
Union.
During the receivership, the Union, in its capacity as col-
lective-bargaining representative of the unit employees, by
letter dated January 15, requested information from the Re-
ceiver, concerning the arrangements and documents which
brought Western into receivership. Also, by letter dated
March 3, the Union requested information relating to the en-
rollment of employees in Western’s health care plan. Peters
did not respond, and it is conceded that apart from whatever
information it provided during settlement discussions, re-
quests for information were not honored by Western during
the receivership.
During the receivership period, in February 1992, an effort
was made to decertify the Union. Annalee Turner, an em-
ployee, circulated a petition signed by the employees stating
that they no longer desired representation by the Union. A
decertification petition was filed with the Board on March 5,
1992, and dismissed by the Regional Director because of the
pending unfair labor practice allegations and the existing
labor agreement. Turner testified that Western’s failure to
make its contractually obligated contributions for the pension
fund and health care premiums had ‘‘quite a lot’’ to do with
the circulation of the decertification petition. Venanzio testi-
fied that he was shown a petition being circulated by Turner,
but Turner has no recollection of showing him the petition,
and Venanzio was only able to describe its contents in a gen-
eral way.
As noted above, on June 19, the court approved Peter’s
purchase of the assets of Western and issued a ‘‘Journal
Entry Approving Offer to Purchase Assets, Confirming Sale,
Ordering Deed and Distributing Sale Proceeds.’’ At this
time, a recently established corporation, Specialty Envelope,
Inc. replaced Western Paper Products, Inc. d/b/a/ Specialty
Envelope Company. Thereafter, all employees were required
to fill out new employment applications and were advised on
or about June 25 by memo of what their benefits would be
as employees of Specialty Envelope, Inc. That memo reads:
Company Benefits
1992
HOLIDAY PAY:
MUST BE FULL TIME EMPLOYEE
MUST BE EMPLOYED 30 DAYS
TO RECEIVE HOLIDAY PAY
MUST WORK DAY BEFORE AND
DAY AFTER TO RECEIVE
HOLIDAY PAY
97SPECIALTY ENVELOPE CO.
8 Days Paid: New Years
Memorial Day
4th of July
Labor Day
Thanksgiving and day after
Christmas Eve and
Christmas Day
Vacations: Must be full time employee
1 Week after 1st year
employed (see attached)
2 Weeks after 2nd year
employed (see attached)
3 Weeks after 10 years
employed (see attached)
Vacations are not accrued.
Vacations must be taken in
year earned or it is forfeited.
Once termination has occurred
no vacation pay is due to the
employee.
* See attached vacation policy
for times vacation must be
taken and cutoff date for
earned vacation.
Insurance Medical (Community Mutual
*Disability HMP)
Must be full time employee
Eligible for company
insurance 90 days after 1st
day of employment.
*Disability insurance after 1
year of employment
Birthday Employees who have perfect
attendance with no absences,
tardiness, or leave work early
for a full calendar year (Jan. 1
thru Dec. 31) will receive
their birthday off with pay.
Payroll Deductions: Benefits offered thru payroll
deductions:
Credit Union
Savings
Christmas club
Loans
IRA—Offered thru 5th
3rd bank
401K Plan
Seniority Previous service with Western
Paper Products, Inc., will be
honored for all purposes
except bumping in the event
of a layoff.
The record also reflects, either by way of stipulation or ad-
mission, that, after the purchase, Specialty continued to de-
cline to make payments to the Union’s pension fund and
continued in effect various changes in working conditions
made during the receivership, i.e., job assignments and job
bidding procedures, wage rates for unit employees tempo-
rarily transferred to work in higher classifications, and
workbreaks.
On or about July 21, Specialty also issued a personnel pol-
icy announcement stating the number of absences and
latenesses that would be considered excessive and ‘‘in viola-
tion of the Company’s attendance standards.’’
After the June 19 sale, the Union continued to request in-
formation. By letter dated July 31 to Peters, the Union re-
quested certain information concerning seniority, health in-
surance, life insurance, sickness and accident benefits, and
sale documents related to the purchase by Specialty in con-
templation of the possible enrollment of the unit employees
into a Union-sponsored health care plan. The letter also
asked for data concerning coverage of unit employees under
the existing Specialty health care plan. It is conceded that
none of this information was provided to the Union and,
apart from information produced pursuant to unsuccessful
settlement efforts, none of the information requested by the
Union since the beginning of the receivership has been pro-
vided.
The parties also stipulated that since January 13, Peters, as
Receiver, and Specialty have refused either to honor the con-
tract or to recognize and bargain with the Union. It was also
stipulated that all the changes made in the terms and condi-
tions of employment, either by Peters during his receivership
or made by Specialty, were unilateral, without notice to or
consultation with the Union.
B. Discussion and Analysis
To briefly review the basic and undisputed facts, Western,
after encountering overwhelming financial problems, was
forced into receivership by its principal creditor, Central
Trust. The court appointed as Western’s Receiver, Samuel
Peters, a man with substantial industrial expertise in the same
line of products. The court ordered Peters to manage the af-
fairs of Western and to attempt to find a purchaser for West-
ern’s assets, the proceeds of the sale to satisfy the indebted-
ness to Central and other Western creditors. On assuming re-
ceivership status, Peters announced his intention to purchase
Western himself and, subsequently, with court approval, this
was done.
In November 1991, Western ceased making payments for
health insurance premiums, and, about the same time, ceased
making pension contributions on behalf of the unit employ-
ees. Both payments were required by the labor contract. Nei-
ther was resumed by Peters. After the appointment of Peters
as Receiver on January 13, the receivership ended on June
19, when the Court of Common Pleas, Hamilton County,
Ohio, approved the sale of Western’s assets to Specialty,
owned by Peters, by order dated June 19, 1992. During Pe-
ters’ receivership and under his direction, various unfair
labor practices were committed. Indeed, Peters announced his
decision not to honor the existing collective-bargaining
agreement, instituted various changes in terms and conditions
of employment, and refused to discuss the receivership issues
with the Union. Beginning on June 19, the Company began
operations as Specialty Envelope, Inc. At this time the em-
ployees were advised by memoranda of various changes that
were being made in their conditions of employment and they
were required to make out new employment applications for
employment as employees of Specialty. It is undisputed that
all the changes in working conditions and terms of employ-
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Cone-Heiden Corp., 305 NLRB 1045 (1991).
6 Respondent’s reliance on Glebe Electric, 307 NLRB 883 (1992),
is misplaced because in Glebe, unlike the instant case, there was no
purchase and otherwise no evidence of a viable business relationship.
7 Burns, supra at 294, 295.
8 U.S. Marine Corp., supra at 671, 672.
ment, set out above in greater detail, were implemented with-
out notice to or consultation with the Union.
After Specialty began operations, various requests for in-
formation and requests to bargain were made by the Union
for Specialty’s employees. It is undisputed that none of these
requests were honored by Specialty.
There can be no doubt that Western, prior to January 13,
violated Section 8(a)(5) and Section 8(d) of the Act by fail-
ing to make payments for insurance premiums and failing to
make payments to the pension fund as required by the exist-
ing labor contract, and I so find.
It is next necessary to consider those unfair labor practices
occurring during the period of the receivership. The com-
plaint alleges that those unfair labor practices committed by
Peters, as Receiver, were assignable to Western since Peters
was an agent of Western. Respondent disagrees, and cites the
Board decision in Cone-Heiden5 as authority for its position
that state court appointed receivers are not agents of the
companies they manage. In Cone-Heiden, the Board held that
a receiver appointed by a state court to temporarily manage
the assets of an employer was not an agent of that employer,
but was rather a ‘‘fiduciary charged by the Court with man-
aging Cone-Heiden assets for the benefit of Cone-Heiden’s
creditors’’ Cone-Heiden, supra at 1 and, as fiduciary for the
creditors, it could not also be an agent of Cone-Heiden.
In the instant case, Peters was appointed by an Ohio state
court as a receiver with a duty to protect and preserve the
assets of Western for its its creditors, principally Central
Trust, and to seek a buyer, sell the assets and satisfy insofar
as possible Western’s financial obligations to Central Trust
and thereafter to repay other creditors with any remaining
funds. In these circumstances, as in Cone-Heiden, I conclude
that the Receiver, Peters, was not the agent of Western. Ac-
cordingly, I shall recommend that those unfair labor practices
alleged to have been committed by Western during the pe-
riod of Peters’ receivership be dismissed.
Next, it is necessary to consider the matter of Specialty as
successor to Western. In the instant case, it is undisputed that
Specialty ‘‘signed up’’ basically the entire Western work
force and management as its own employees. It continued to
operate from the same facilities and to produce the same
products with the same machinery and to service the same
customers. In these circumstances, it is clear that Specialty
is a successor to Western under criteria established by the
Supreme Court in Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27 (1987). Thereafter, Specialty, as a suc-
cessor to Western, was obliged to bargain with the Union as
the collective-bargaining representative of its employees.
NLRB v. Burns Security Services, 406 U.S. 272 (1976).
Having thus concluded that Specialty is a successor to
Western, there remains for consideration what obligation, if
any, exists on the part of Specialty, as a successor, to remedy
the unfair labor practices committed by Western. In Golden
State Bottling Co. v. NLRB, 414 U.S. 158 (1973), the Su-
preme Court held that where a purchaser was a bona fide
successor under Burns, and is aware of the unfair labor prac-
tices of its predecessor, it has joint and several liability with
the predecessor to remedy those unfair labor practices. The
record here makes it clear that that Specialty was fully aware
of the outstanding unfair labor practices allegations against
Western, particularly bacause Peters, the sole owner of Spe-
cialty, had also been Western’s Receiver and fully informed
of all the pending unfair labor practice allegations from the
time the first charge was filed on January 30. Accordingly,
in these circumstances, when Specialty acquired ownership
of Western’s assets, it became, with Western, as successor,
jointly and severally liable for remedying those unfair labor
practices committed by Western.
Respondent contends that there is no successor relationship
between Specialty and Western because there was no busi-
ness relationship between Western and Specialty at the time
of purchase, and such a business relationship is essential to
any successor finding. Respondent argues that Western’s as-
sets were purchased by Specialty, not from Western, but
from an intervening entity, Peters, the state court appointed
Receiver, and so there was no business relationship between
Specialty and Western. The weakness in this argument is that
Western remained, even during the receivership and through
the sale, a viable corporate entity and its assets, although
sold through the Receiver to Specialty, were still Western’s
assets, not Peters. To hold otherwise would be to conclude
that Peters bought something he already owned. The fact is
that Peters, as sole owner of Specialty, purchased all the as-
sets of Western for $1.7 million. There was clearly a busi-
ness relationship between Specialty and Western.6
There remains for consideration the General Counsel’s al-
legations that those unilateral changes made by Specialty as
successor to Western violated Section 8(a)(5) of the Act.
Under Burns, it is clear that a successor corporation has no
obligation to assume the labor contract of its predecessor and
may normally set initial terms of employment for the work
force. However, this principle does not apply in cir-
cumstances where the successor retains the same work force
as the predecessor. As the Court held in Burns:
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 per-
fectly clear that the new employer plans to retain all the
employees in the unit and in which it will be appro-
priate to have him initially consult with the employees’
bargaining representative before he fixes terms.7
The Board has applied this concept in U.S. Marine Corp.,
293 NLRB 669, 671 (1989), observing that:
Under Burns, supra, a successor employer is ordi-
narily free to set initial employment terms, without pre-
liminary bargaining with the incumbent Union. When,
however, ‘‘it is perfectly clear that the new employer
plans to retain all of the employees in the unit,’’ the
successor must consult the Union before altering the
terms and conditions of employment8 [footnote omit-
ted].
In the instant case, Specialty, after the purchase from West-
ern, continued the operation basically unchanged and retained
Western’s employees, simply having them submit new em-
99SPECIALTY ENVELOPE CO.
9 Specific requests to bargain for those employees of Specialty
covered by the contract were made by the Union in letters to Peters
dated June 23 and July 1.
ployment applications to sign up with Specialty. In these cir-
cumstances, Specialty was not free to set initial terms of em-
ployment, and with respect to any changes made in the terms
and conditions of employment of unit employees after June
19, Specialty was obligated to consult with the Union. Hav-
ing failed to do so, Specialty violated Section 8(a)(5) of the
Act.9
Specialty is also alleged to have violated the Act by con-
tinuing in effect certain unilateral changes in working condi-
tions initiated during the receivership, as set out above. In
agreement with the General Counsel, I conclude that when
Specialty either implemented or continued in effect those
unilateral changes in working conditions which would have
been unlawful at their inception, except that they were com-
mitted during the receivership, Specialty violated Section
8(a)(5) of the Act.
As noted above, Specialty was obligated to bargain with
the Union as the collective-bargaining representative of its
employees. Because the Union thus retained its status as col-
lective-bargaining representative, Specialty was obliged to
furnish to the Union whatever information was requested by
the Union which was relevant and necessary to the exercise
of that responsibility. By failing to provide the Union with
the information it requested concerning seniority and health
care coverage in its letter dated July 31, 1992, Respondent
is refusing to bargain with the Union within the meaning of
Section 8(a)(5) of the Act.
In a separate contention, Specialty argues that even assum-
ing that it is a successor to Western, the Union lost its ma-
jority status by reason of a petition signed by a majority of
the employees in March 1992 indicating that they no longer
desired union representation. Specialty argues that even a
successor has no obligation to recognize and bargain with a
union where it has a good-faith doubt, based on objective
considerations, that the Union no longer represents a majority
of the unit employees. However, this record, despite the fil-
ing of a decertification petition, is totally insufficient to sup-
port the conclusion that Specialty had any reasonable basis
for concluding that the Union no longer represented a major-
ity of its employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondents, as set forth in section
III, above, in connection with the Respondents’ operations
described in section I, above, have a close and intimate rela-
tionship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. REMEDY
With respect to the failure to make contractually obligated
insurance payments and pension fund contributions, as noted
above, these violations were committed by Western. How-
ever, because Specialty was a successor to Western, fully
aware of those unfair labor practice allegations, both are
jointly and severally liable for compliance with the remedial
order.
After the purchase, because Specialty, as noted above,
maintained essentially the same work force performing the
same functions as Western, Specialty was not free to set its
own terms and conditions of employment and is liable for
the remedy of the unilateral change unfair labor practices
committed after the purchase; refusing to furnish the Union
with requested information; and failing to recognize and bar-
gain with the Union. The status quo, for the purpose of rem-
edying the unilateral change unfair labor practices committed
by Specialty, shall be the terms and conditions of employ-
ment as they existed under Western, including those em-
bodied in the collective-bargaining agreement.
The status quo for remedying those unilateral change un-
fair labor practices initiated by the Receiver and also alleged
as violations by Specialty shall also be the terms and condi-
tions of employment, including the collective-bargaining
agreement, as they existed under Western. To hold otherwise
where, like here, Peters was both the Receiver and the owner
of the successor, would be to allow the successor to profit
from its own wrongdoing while acting with impunity as the
Receiver. It would be inequitable to allow Peters, as owner
of the successor, to enjoy the fruits of the unfair labor prac-
tices he committed in his capacity as Receiver, even though
as Receiver, he was not accountable for them.
Because the Receiver was not an agent of Western, those
unfair labor practices committed during the receivership are
not assignable to Western.
All payments owing by Respondent under the terms of this
Order shall be with interest and shall be computed in the
manner described in New Horizons for the Retarded, 283
NLRB 1173 (1987), and F. W. Woolworth Co., 90 NLRB
289 (1950).
CONCLUSIONS OF LAW
1. Respondent Western Paper Products, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Specialty Envelope, Inc. is a successor to
Western Paper Products, Inc., and an employer within the
meaning of Section 2(6) and (7) of the Act.
3. United Paper Workers International Union, AFL–CIO,
and its Local 459, is a labor organization within the meaning
of Section 2(5) of the Act.
4. At all times material, the following described unit has
been an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
All regular production, maintenance, shipping and re-
ceiving employees, including truckdrivers, at [Western
and/or Specialty Envelope’s] facility, but excluding of-
fice and clerical employees, technical, managerial and
professional employees, watchmen, guards and super-
visors as defined in the Act.
5. At all times material, the Union has been and is now
the exclusive representative of the employees in the above-
described bargaining unit for the purposes of collective-bar-
gaining within the meaning of Section 9(a) of the Act.
6. Western and the Union executed a collective-bargaining
agreement effective December 10, 1990, through November
20, 1993.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. Respondent Western, by failing and refusing to make
contractually obligated payments for employee health insur-
ance, sickness and accident disability insurance, and life in-
surance, violated Section 8(a)(5) and Section 8(d) of the Act.
8. Respondent Western, by failing and refusing to make
contractually obligated payments to the pension plan, vio-
lated Section 8(a)(5) and Section 8(d) of the Act.
9. Respondent Specialty, by failing and refusing to furnish
to the Union information requested by letter dated July 31,
1992, which was necessary and relevant to the Union’s per-
formance as collective-bargaining representative of the unit
employees, violated Section 8(a)(5) of the Act.
10. Respondent Specialty, by unilaterally eliminating the
birthday holidays, paid breaks, and vacation benefits for unit
employees, violated Section 8(a)(5) of the Act.
11. Respondent Specialty, by unilaterally changing the job
assignments and job-bidding procedures for unit employees,
violated Section 8(a)(5) of the Act.
12. Respondent Specialty, by unilaterally changing wage
rates for unit employees temporarily transferred to work in
higher classifications, violated Section 8(a)(5) of the Act.
13. Respondent Specialty, by unilaterally ceasing to honor
unit employees’ seniority for purposes of layoff, violated
Section 8(a)(5) of the Act.
14. Respondent Specialty, by unilaterally implementing a
new disciplinary policy with respect to the attendance of unit
employees, violated Section 8(a)(5) of the Act.
15. Respondent Specialty, by refusing to bargain with the
Union as the collective-bargaining representative of the unit
employees, violated Section 8(a)(5) of the Act.
[Recommended Order omitted from publication.]