The Bell Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 474 (N.L.R.B. 1976)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Bell Company , Inc., and its agent , Richard Balis - IT IS FURTHER ORDERED that the complaint be, and
treiri ; Paul Moskowitz as receiver for The Bell it hereby is, dismissed insofar as it alleges unfair la-
Company, Inc; and Richard Balistreiri , d/b/a Endu- bor practices not found herein.
rail Products and United Brotherhood of Carpenters
District Council of Milwaukee County and Vicinity,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 30-CA-3220
June 30, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On April 19, 1976, Administrative Law Judge Wal-
ter H. Maloney, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent Endurall
Products filed exceptions and a supporting brief, the
General Counsel filed a memorandum in support of
the Administrative Law Judge's Decision, and Re-
spondent Endurall Products filed a brief in answer to
the General Counsel's memorandum.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondents, The Bell
Company, Inc., and its agent, Richard Balistreiri,
Paul Moskowitz, as receiver for The Bell Company,
Inc., and Richard Balistreiri, d/b/a Endurall Prod-
ucts, Glendale and Brookfield, Wisconsin, and their
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Delete paragraph I, 1(a) and reletter the re-
maining paragraphs accordingly.
2. Add the following as new paragraph, l(g):
"(g) In any other manner interfering with, re-
straining, or coercing their employees in the exercise
of their rights guaranteed by Section 7 of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
1 We hereby grant General Counsel's motion to strike Respondent 's brief
in answer to the General Counsel's memorandum The General Counsel's
memorandum did not constitute exceptions or cross-exceptions to the Ad-
ministrative Law Judge 's Decision , and the Board has not considered it as
raising any contentions contrary or in addition to the Administrative Law
Judge's findings It is therefore in the nature of an answering brief to
Respondent' s exceptions, and its filing does not authorize a further re-
sponse
2 The Administrative Law Judge found that Richard Balistreiri violated
Sec 8 (a)(1) of the Act when he told employees that the reason he discharged
employee Buch was that the latter had talked about Balistreiri 's personal life
behind his back, on the theory that Buch's remarks had occurred in the
course of protected concerted activities Since Bahstrein 's explanation of the
discharge , if found to be a violation, would be little more than cumulative to
the other, more serious violations found herein, and since we are providing,
as the Administrative Law Judge inadvertently neglected to do, a broad
cease-and-desist order, resolution of the lawfulness of Balistreiri 's statement
is more or less academic and we shall not pass on it
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge
in which Endurall, The Bell Company, and its receiv-
er were found to have violated certain provisions of
the National Labor Relations Act, we are posting
this notice and will comply with its provisions.
WE WILL NOT coercively interrogate employees
or threaten them in order to undermine the sta-
tus of their duly designated bargaining represen-
tative.
WE WILL NOT discharge or otherwise discrimi-
nate against employees in order to discourage
membership in United Brotherhood of Carpen-
ters District Council of Milwaukee County and
Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. WE WILL NOT in-
terfere with, restrain, or coerce employees by
any means or in any manner in the exercise of
rights guaranteed to them by Section 7 of the
National Labor Relations Act. All of our em-
ployees are free to join or remain members of
this labor organization.
WE WILL NOT bargain unilaterally with em-
ployees in such a manner as to undermine the
status of a duly designated collective-bargaining
agent.
WE WILL NOT unilaterally modify, repudiate,
or fail to give effect to existing collective-bar-
gaining agreements which we are obligated to
comply with.
225 NLRB No. 63
THE BELL COMPANY, INC. 475
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed by Section 7 of
the Act.
WE WILL recognize United Brotherhood of
Carpenters District Council of Milwaukee and
Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive
collective-bargaining representative of all pro-
duction and maintenance employees employed
at or out of our Glendale, Wisconsin, plant, ex-
cluding office clerical employees, guards, and
supervisors as defined in the Act, and WE WILL
bargain with that Union as the exclusive repre-
sentative of the above-mentioned employees.
WE WILL execute and give effect to a collec-
tive-bargaining agreement concluded between
the above-mentioned Union and The Bell Com-
pany on or about August 5, 1974, and WE WILL
apply its terms and conditions to all employees
in the above-mentioned bargaining unit, retro-
active to July 7, 1975.
WE WILL offer full and immediate reinstate-
ment to Steven Abraham, David Feller, John
Hafeman, Robert Hanrahan, John Herman,
Henry Lauscher, Ramond Luczkowski, George
Schmidt, and Gary Schroeder to their former
jobs or, if such jobs no longer exist, to substan-
tially equivalent positions. WE WILL make whole
these individuals for any loss of pay and fringe
benefits which they have suffered by reason of
the discrimination which was practiced against
them, with interest thereon at 6 percent. WE
WILL also make whole all other individuals em-
ployed by us in the above-designated bargaining
unit for the difference in pay and fringe benefits
which they have received and which they would
have received if the Union-Bell contract had
been in effect at Endurall on and after July 7,
1975.
THE BELL COMPANY, INC., AND ITS AGENT,
RICHARD BALISTREIRI: PAUL MOSKOWITZ AS
RECEIVER FOR THE BELL COMPANY, INC.; AND
RICHARD BALISTREIRI, d/b/a ENDURALL
PRODUCTS
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on to be heard before me at Milwaukee,
Wisconsin, upon a second amended complaint,' issued by
the Regional Director for Region 30, which alleges that the
several Respondents herein violated Section 8(a)(1), (3),
and (5) of the Act. Respondent Bell Company 2 is a Wis-
consin corporation which is now in receivership in the cir-
cuit court of Milwaukee , Wisconsin . Respondent Paul
Moskowitz is the receiver of Bell appointed by the circuit
court upon petition of various creditors of the Bell Compa-
ny. Respondent Richard J . Balistrein was an officer and
supervisor of the Bell Company and is now doing business
as a private proprietorship trading under the name of En-
durall Products. The General Counsel alleges that all Re-
spondents are responsible for remedying the unfair labor
practices which are alleged , and that Richard Balistreiri,
d/b/a Endurall , is a successor or alter ego of the Bell Com-
pany. All are alleged to have violated the Act by commit-
ting independent violations of Section 8(a)(1), and of vio-
lating Section 8(a)(3) of the Act, by the discriminatory
discharge of nine employees admittedly terminated by Bell
on June 26, 1975, when it closed its business. The com-
plaint also alleges that Respondent Bell violated Section
8(a)(5) by failing to notify the Charging Party and failing
to bargain with it about the effects of closing of Bell's facil-
ities, by unilaterally changing the terms and conditions of
an existing collective -bargaming agreement between Bell
and the Charging Party, by negotiating directly with unit
employees in derogation of the Charging Party's status as
1 The principal docket entries in this case are as follows Charge filed by
United Brotherhood of Carpenters District Council of Milwaukee County
and Vicinity, United Brotherhood of Carpenters and Joiners , AFL-CIO
(herein called Union or Carpenters), against The Bell Company , Inc (herein
called Bell) on July 7 , 1975, first amended charge filed by the Union against
Bell, Endurall Products and their Agent Richard Balistreiri , on August 26,
1975, third amended charge filed by Union against the above-named Re-
spondents , adding as Respondent Paul Moskowitz , Receiver , on November
14, 1975; original complaint issued on August 28, 1975, against Endurall
and Bell, answer filed by Endurall on September 5, 1975, and by Bell on
September 5, 1975, amended complaint issued on November 4, 1975, which
Endurall answered on November 12, 1975, answer of Moskowitz , Receiver
for Bell , filed on December 16, 1975; answer of Endurall filed on December
4, 1975, hearing held in Milwaukee, Wisconsin , on December 17, 18, and
19, 1975 , brief of the General Counsel filed on January 19, 1975
21 find that The Bell Company, Inc, is a Wisconsin corporation which
maintained its principal place of business in Brookfield , Wisconsin, a sub-
urb of Milwaukee, where it manufactured and sold , and from which point it
installed , countertops , cabinets, and related items During 1974, Bell derived
gross revenues in excess of $300,000, and sold and shipped from its Brook-
field, Wisconsin , plant, directly to points and places outside the State of
Wisconsin , goods and merchandise valued in excess of $50,000 According-
ly, it is an employer engaged in commerce within the meaning of Sec. 2(2),
(6), and (7) of the Act
I also find that Paul L Moskowitz , Esq, of Milwaukee, Wisconsin, is the
receiver of The Bell Company, Inc, the aforesaid Wisconsin corporation,
and was appointed to that responsibility by the circuit court of Milwaukee
County, Wisconsin , by order of that court in case number 435, 943, which
order is dated November 5, 1975
I further find that Richard J. Balistreiri owns and operates a business
trading as Endurall Products (herein called Endurall) which manufactures,
sells, and installs countertops and cabinets . Said business , a private propri-
etorship , is operated at Glendale , Wisconsin, and was commenced on or
about July 7, 1975 Since that time it has manufactured , sold, and installed
products valued in excess of $12,000 per month On a projected basis, Endu-
rall will produce and sell products valued in excess of $300 ,000 per annum,
and will sell and ship from its Glendale , Wisconsin , plant, to points and
places located outside the State of Wisconsin goods valued in excess of
$50,000 Accordingly , Endurall is an employer engaged in commerce within
the meaning of Sec 2 (2), (6), and (7) of the Act The Union is a labor
organization within the meaning of Sec 2(5) of the Act.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agent, by refusing to recognize the Charging
Party as the collective-bargaining agent of Endurall's em-
ployees, and by refusing to apply to Endurall's employees
the terms and conditions of the outstanding agreement be-
tween Bell and the Charging Party. Moskowitz, the receiv-
er, contends that it is unable to remedy any unfair labor
practices committed by Bell because it is merely holding
assets of Bell in trust for creditors and is seeking to learn
the whereabouts of other assets which may be used to satis-
fy the debts of the defunct corporation. It is not now oper-
ating and will not reopen the business formerly operated
by Bell. Balistreiri, d/b/a Endurall, contends that it is nei-
ther the successor nor the alter ego of Bell but that it is an
independent enterprise which bears no responsibility for
the asserted wrongdoing of Bell. Bahstreiri also contends
that Bell went out of business and laid off its employees
solely and exclusively for economic considerations. Upon
these and subsidiary contentions the issues herein were
joined .3
A. The Unfair Labor Practices Alleged
Bell was a small family corporation owned by four of the
five Balistrein brothers-James, Giuseppi, Dominic, and
Anthony (A.J.). A fifth brother, John Balistreiri, was gener-
al manager until 2 years before Bell terminated its opera-
tions and maintained active interest in the company there-
after. Various combinations of the Balistrein brothers and
their wives also own and operate other enterprises, includ-
ing Juneau Academy, a clinic for retarded children, and
Bel-Cor, Inc., a real estate holding company which owns
the building on North 127th Street in Brookfield where
Bell conducted its business, and Bell Therapy. One of the
five brothers, John, played an active role in the formation
of Bell in the late 1940's and early 1950's, and was active in
the management of the firm until a year or two before the
firm formally terminated operations in June 1975. John's
son, Richard J. Balistreiri, worked for the Company from
time to time during his early years. After completing his
education, he began to work for Bell full time. After satis-
fying his father and his uncles that he had learned the busi-
ness, he was elected president of the corporation in 1973 in
place of A. J. Balisteiri . As the activities of his father and
his uncle, A. J. Balistreiri, on behalf of Bell declined, Rich-
ard Balistreiri took over and became the principal operat-
ing head of the firm from 1973 until it closed in 1975.
While certain limitations were placed upon Richard by his
father and his uncles, such as a requirement that he seek
permission of the board of directors to make capital ex-
penditures in excess of $500, Richard was basically given
the authority to run the Company and he did so.
Bell manufactured formica and laminated plastic coun-
tertops and cabinets which it installed in hospitals, banks,
housing projects, and various other institutions. All manu-
facturing was performed to contract. No items were pro-
duced for general sale on a speculative basis. Bell em-
ployed about nine employees. Since 1956, it had successive
contracts with the Union covering both its manufacturing
and installation activities. The contracts in question were
normally of 2 years' duration. These contracts were the
standard millwork contracts for the Metropolitan Milwau-
kee area. The Carpenters always insisted that Bell accept
its areawide agreement in toto on the occasion of each re-
newal. Despite Bell's unhappiness at being required to sign
a standard area contract, Bell did agree to the 1974-76 area
contract on August 5, 1974. Richard Balistreiri signed it as
president of Bell Company on behalf of the firm. The con-
tract expires in June 1976.
Bell's unhappiness with the area millwork agreement was
basically one of economics. Bell long felt that the wage
rates contained in the contracts rendered the Company
noncompetitive in bidding jobs against nonunion firms.
One of Bell's particular gripes was the fact that the union
agreement required it to pay its mechanics on an hourly
basis for installation work at construction sites. Bell always
preferred to pay mechanics on a linear footage basis for
installation work, and Richard Balistreiri often told his em-
ployees they would be better off under such a system. Bell
frequently expressed to the Union its unhappiness with the
entire arrangement. On one occasion, Richard Balistreiri
vented his feelings about the contract by physically tearing
up a copy in public view at the Bell shop. In October 1971,
when he was still active in the operation of the Company,
John Balistreiri wrote to John Cioli, the Union's business
representative, to inform him that a particular laminated
plastic job had been awarded to a nonunion competitor
and complained that the Union was doing nothing to pro-
tect unionized companies from being undercut by non-
union competitors. He went on to say to Cioli, under such
circumstances, he saw no reason why Bell should continue
to operate as a union shop. The same complaint was ver-
bally communicated to the Union on other occasions. In
May 1974, after he had taken over as president of the Com-
pany, Richard Balistreiri wrote to Cioli to express his op-
position to being required to assent to any area contract to
be negotiated by other millwork companies, and demanded
"personal representation," meaning individual negotia-
tions, between Bell and the Union. During one of the sev-
eral discussions which took place over the years between
John Balistreiri and Cioli, the elder Balistreiri threatened to
break Cioli's legs.
From the Union's standpoint, its relationship with Bell
was not altogether felicitous. On several occasions, it made
complaints against Bell for violating the terms of existing
contracts. In 1973, complaints were made to Bell that em-
ployees John Herman and Ronald Brown were not being
paid the contract rate for their job classifications. Another
complaint was made that Bell was permitting nonunion
employee Peter Buch to work in violation of the union-
security provisions of the contract. The Union also object-
ed that employees John Hafeman and Ray Luczkowski
were doing work at a flat or piece rate rather than in accor-
dance with the hourly rate provisions of the contract. On
another occasion, a union visitation to the plant discovered
that Bell was in arrears in making required health, welfare,
At no time did Bell ever become a formal member of any multiemployer
3 Certain errors in the transcript have been noted and corrected bargaining unit or employer negotiating committee
THE BELL COMPANY , INC. 477
and vacation fund payments on several employees, as re-
quired by the contract.
Several times in 1974 and early in 1975, Richard Balis-
treiri held informal "bitch" sessions with employees at
which he aired certain ideas and complaints about Bell's
operations . On one such occasion , he suggested to employ-
ees that they would be better off if they would agree to
perform installation work atjobsites on a linear foot rather
than an hourly basis. On one occasion in late 1974, Bell
actually employed David Feller to do installation work at
the North Lawn Housing Project on a footage rate. At
several of these meetings, Richard Bahstrein voiced the
thought to employees that someday he would like to open
his own nonunion shop, and inquired from time to time if
any employees would care to work for him on that basis.
Some said they would consider it. He also took these occa-
sions to note his unhappiness with his father and his uncles
concerning attempts which they were making from time to
time to direct him in the operation of the business. He
suggested that this factor might prompt him to open his
own business , and stated that, in the event he did so, he
would not begin operating a union plant because he need-
ed time to get established and could not do so by paying
the union rates which were demanded in the Milwaukee
area by the Carpenters . Such sentiments and views were
also expressed by Richard Balistreiri on various occasions
in private conversations with employees. On one occasion
in 1975, John Balistreiri came to the plant and complained
angrily to the employees that they were not working hard
enough , that the Company was not making enough money
to stay in business, and that "hell would freeze over" be-
fore they would be getting the interim wage increase in
June as provided in the contract.
On or about May 8, 1975, Richard Balistreiri held a
meeting at the shop with all his employees . Among those
present was his secretary and bookkeeper, Bonnie Austin
Richard Balistreiri told employees that the business was
not making a profit and also told them that they would
have to work harder and produce more in order to help the
Company make money . Miss Austin came up with the sug-
gestion that employees could help the current gloomy prof-
it picture if they would agree to work 8-1/2 hours for 8
hours' pay. This question was discussed for a while. Rich-
ard Balistrein stated that he would be agreeable to the idea
but would not go along with it unless all the employees
agreed . He stated that his only other alternative was to lay
off one employee. After various opinions were expressed,
he took a secret ballot straw poll of the employees to de-
termine their feelings on the matter . There were no nega-
tive votes ; however , on the following morning, he informed
his employees that he had decided against implementing
the plan to work 8-1/2 hours for 8 hours' pay.
During the course of the same morning, Richard Balis-
treiri overheard a private conversation between employees
Peter Buch and George Schmidt concerning the proposal
which had been discussed and voted upon the previous
afternoon. Buch told Schmidt that he resented the request
that the men be required to work 8-1/2 hours for 8 hours'
pay, and suggested to Schmidt that the reason the proposal
had been made was that Richard Balistreiri was trying to
milk the Company to pay for his domestic difficulties.
Buch told Schmidt that Bahstrein 's wife was trying to take
him for all he was worth. At noon on the same day, Balis-
trein fired Buch . He told Buch that he resented his remarks
and thought that Buch 's statements were in particular bad
taste in light of previous favors he had done for him. Balis-
treiri reminded Buch that it was he who paid Buch 's union
initiation fee when Cioli was bringing pressure to require
Buch to join up or be fired.
About 3 days later, Cioli called Balistreirn to protest the
discharge and to ask him what had brought it about . Balis-
treiri told Cioli that Buch was insubordinate , that he had
"stabbed him in the back" by making the above -recited
remarks, and that Buch was not performing his work satis-
factorily Cioli reminded Bahstrein that the contract re-
quired him to give any discharged employee 24 hours' no-
tice or a day's pay, and objected to Balistreiri's failure to
comply. In the course of this telephone conversation, Cioli
and Balistrein also had occasion to discuss other dis-
agreements between them . Balistreiri objected to the
Union's wage scale . He brought up the fact that the con-
tract called for a wage increase effective June 1 , and told
Golf that if the Company did not start to make money, he
was not going to pay any increase in the scale . He com-
plained that he was losing money by paying the Union's
scale and that he was not going to stay in business and lose
money just to keep his employees busy. Cioli protested that
Balistreiri was underpaying two employees, Austin and
Brown , and Balistrein countered by saying that he had
men on the payroll who were incompetent . Cioli protested
that Balistreiri was "dealing with the men again ," i.e., by-
passing the Union, in announcing a prospective refusal to
pay them in accordance with the contract , whereupon they
both engaged in an animated conversation about the as-
serted skills and qualifications of various employees on
Bell's payroll . Balistreiri told Cioli that what transpired be-
tween his men and him was none of Cioli's "g- d- busi-
ness." He also told Cioli that "if you guys press any issues
I'll close the goddamn doors and I'll go non-union."
He told Cioli that he had lost $7,000 in the preceding 4
months, although he had enough work in the shop so that
he should have made a $12,000 profit . He also complained
to Cioh about the union rule that requires employees doing
on-site fabricating to report to the company premises each
morning rather than going directly from home to the job-
site.
On May 21, 1975, the Union filed a formal grievance
against Bell over the discharge of Buch and held two griev-
ance meetings with Bell representatives during the months
of May and June in an effort to resolve the matter. A lump
sum payment to Buch was agreed upon in settlement of the
dispute but the money has yet to be paid. Despite earlier
indications to the contrary from Bell 's management, Bell
employees ultimately did receive the interim wage increase
in June, and were so compensated during their final month
as Bell employees.
On or about June 16, James Balistreiri, then chairman of
the board of directors of Bell, requested Richard
Balistreiri 's resignation as president. Richard submitted his
resignation on June 23 James Balistreiri also prepared a
memorandum , dated June 19, in which he notified all of
Bell's employees that the Company was going out of busi-
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness because "we have sustained such financial loss over a
period of the last five years that it is now economically
unfeasible to continue to stay in business." This memoran-
dum was distributed to Bell 's employees by Richard Balis-
treiri. Employee Gary Schroeder asked Richard Balistrein
at the meeting in which the termination notices were dis-
tributed if he was going into business for himself. Balis-
treiri replied that he was considering doing so but was not
sure at the time . As detailed hereafter, Balistreiri was able
to determine on June 26, after obtaining a line of credit at
the M & I West Suburban Bank, that he would be open-
ing his own business. He told employees who were interest-
ed in working for him to contact him after July 7. Friday,
June 27, was the last day of the Bell operation. Richard
Balistreiri went on vacation the following week. On July 7,
he opened the Endurall Company at the same premises
formerly occupied by Bell. By July 9 he had hired four
former Bell employees-accountant Bonnie Austin and
bargaining unit employees David Feller, Robert Hanra-
han, and John Herman. As detailed hereinafter, Endurall
continued to operate at Bell 's 127th Street address in
Brookfield for about a month before relocating in Glen-
dale, Wisconsin, another Milwaukee suburb about 10 miles
from the original premises.
Although Bell and union officials met on two occasions
in May and June to discuss the Buch grievance, Bell gave
the Union no indication of his firm decision to go out of
business until after the final day of operations. On June 28,
Cioli received a letter at the union office from Bell inform-
ing him of the event. About July 10, Cioli went to the Bell
premises, where Endurall was beginning its operation, and
asked Richard Balistreiri if he was going to honor the col-
lective-bargaining agreement which Bell had concluded
with the Union. Balistreiri told him emphatically that he
would not and that the Union would have to negotiate with
him if it wanted an agreement covering Endurall. Since
that time, Endurall has taken an ambivalent position vis-a-
vis the Union. It has denied formal recognition to the
Union. On the other hand, Balistreiri has indicated to Cioli
that he would be willing to enter into an initial bargaining
relationship with the Union. At the present time , Endurall
is operating with about seven bargaining unit employees
and a foreman, Joseph Pohlhammer, who became em-
ployed by Endurall in August after closing his own busi-
ness. About 3 months after the termination of the Bell op-
erations, its creditors petitioned the circuit court for
Milwaukee County for the appointment of a receiver. Re-
spondent Moskowitz was so appointed on November 5,
1975. He has found few if any assets to take over in order
to satisfy Bell's outstanding obligations and has brought
civil contempt proceedings against Bell's officers and direc-
tors to force them to disclose the whereabouts of Bell's
assets.
B. Analysis and Conclusions
1. The relationship of Bell and Endurall
The relationship of Bell to Endurall presents a tangled
web of transactions between the defunct corporation
owned by the elder Balistreiris and the new proprietorship
established by the scion of one of Bell's principals. A broad
brush view of the activities of the Balistreiris presents a
picture of six individuals who systematically stripped a
going concern of its tangible assets and left its creditors to
seek out and collect from its debtors, meanwhile permitting
the operating head to the defunct Company (who actually
derived his principal livelihood from the manufacture and
sale of cabinets and countertops) to continue to do so un-
der a different name and style. We leave it to the circuit
court of Milwaukee County to determine whether these
efforts amounted to a fraud on Bell 's creditors. The
Board's task is to determine if the course of conduct of
Bell's officers and stockholders amounted to a subterfuge,
whose purpose and effect was to deprive Bell's employees
of contract benefits and statutory rights guaranteed to
them by the National Labor Relations Act.
One of the Respondents' economic justifications for
closing the Bell operation in June was a continuing prob-
lem of "cash flow." 5 The General Counsel contends that
this "cash flow" problem was, in large part, self-induced
because unusual amounts of cash were flowing to fraternal
stockholders who were getting substantial amounts of their
investment out of the Bell Corporation, thereby leaving the
concern so undercapitalized that its fate was sealed. In
other words he suggests that Bell's economic plight was
caused by the deliberate acts and deeds of its owners rather
than by external factors above and beyond its control. The
General Counsel points out that Bell is a corporation
which, in 1974, derived gross revenues from its operation in
excess of $300,000. However, it had corporate stock listed
at $12,273 in its books, of which figure $8,600 had been
bought back from its stockholders and was being held and
recorded on the books as treasury stock. The net effect is
that the stockholders' entire stock investment in the con-
cern totaled $3,673. One shareholder, A. J. Balistreiri, ac-
cepted an equity of $4,691 in an insurance policy in ex-
change for his interest in the corporation . Bell's unaudited
balance sheet, dated June 30, 1975, disclosed that Bell had
purchased life insurance having a cash surrender value of
$7,936 on the lives of various corporate officers (who were
also principal shareholders), and that its accounts receiva-
ble included $8,600 in debts (presumably unsecured) which
were owed to the Company by the four fraternal officer-
shareholders and John Balistreiri for loans or advance-
ments of some kind which were made to these individuals.
So it is clear that the shareholders were withdrawing funds
in somewhat unorthodox ways from the corporation prior
to its termination and that this practice was part and parcel
5 Richard Balistreiri testified that Bell had a cash flow problem because it
had a large amount of accounts receivable-customers who were strapped
for cash and who could not meet their bills The unaudited balance sheet in
evidence indicates that some $43,304 was due and owing Bell from its cus-
tomers on June 30, 1975 However, all but $12,307 of this figure involved
bills which were overdue by no more than 4 months An additional $24,933
in receivables had been assigned to the M & I West Suburban Bank for
cash, so this figure does not reflect adversely on Bell's cash flow status
Richard Bahstrem testified that Bell faced the same problem in previous
years as well, namely, customers who were strapped for cash and could not
pay their bills Bell's 1974 income tax return shows that, as of December 31,
1974, Bell had $78,142 in accounts receivable , an amount greatly in excess
of what Bell's creditors owed some 6 months later Hence nonpayment by
customers is an unconvincing reason why Bell should have elected to dis-
continue its business in June 1975
THE BELL COMPANY, INC. 479
of the adverse profit and loss picture with which it con-
fronted its employees as the reason for its corporate dem-
ise. James Balistreiri 's written notice to employees, dated
June 19, that the Company had been losing money for the
past 5 years is contradicted, at least in part, by Bell's 1974
income tax returns. They are of record and show that Bell
had a net taxable income in calendar year 1974 of $6,464
on gross receipts of $305,919. The returns admitted a Fed-
eral income tax liability of $1,019.
In the face of an economic justification for termination
which is specious and partially self-induced, further acts of
the principals in this scenario lend additional color to the
peculiar transition from Bell to Endurall. Endurall's first
month of operation was on Bell's premises. It utilized the
entire stock and machinery which remained from the oper-
ation of Bell 's business. Bel-Cor, Inc., the owner of the
premises in which Bell operated and in which Endurall
began to function, is owned by A. J. and John Balistreiri.
Bel-Cor gave Endurall a month's free rent to help it com-
mence operations. Bell's balance sheet indicated that it
paid health insurance premiums out of Bell's assets to cov-
er Endurall's employees during the first month of
Endurall's existence.
With respect to a note owed by Bell to M & I West
Suburban Bank for major items which Bell owned and
which were being financed by this bank, Endurall pur-
chased the Bell machinery simply by taking over the pay-
ments on the note. The same bank had also financed the
Bell operation by extending a line of credit. Endurall re-
ceived a line of credit from the same bank, arranged by
Richard Balistreiri before he announced the opening of
Endurall in the amount of $15,000 together with an addi-
tional $10,000 based on discounting receivables to the
bank. Endurall's line of credit in the amount of $15,000
was secured by a life insurance policy issued on the life of
John Balistreiri , who pledged this asset to assist Endurall in
starting up.6 Bell's stock of inventory and machinery was
sold to Endurall and removed from the former Bell prem-
ises. When Endurall moved from the Bell location at the
end of July, it left behind only some aged office machinery,
a typewriter that did not work, and 20 or 30 pieces of dis-
continued laminate . The sale price for the Bell machinery
and stock on hand was simply set by Richard Balistreiri's
father and uncles without any negotiation. The unaudited
balance sheet of the Bell Company, speaking as of June 30,
1975, stated in an accompanying explanatory schedule the
following:
Note 8-Accounts Receivable Sale of Equipment
The figure of $6,870.78 represents the sale price of the
following pieces of equipment to Endurall Products:
De Walt Radial Arm Saw, (2) 10" Delta Uni Saw, 1
Marble Slittler, 1 Bechtold Spray System , 1 Bechtold
Miniram , and I Evan Easy Bond Pinch Roller. The
company incurred $9,941.81 loss in the sale of these
pieces of equipment , and this loss is shown as Other
Expenses on the statement of income.
6 John Balistreiri was also a cosigner with Richard Balistreiri on the note
which established Bell's line of credit
Richard paid only $800 in cash for the equipment he pur-
chased and gave an unsecured note to the corporation for
the balance.
While he was president of Bell, Richard Balistrein was
compensated on a basis of a weekly salary 7 plus a percent-
age of the net profit. All payroll and other checks issued by
Bell were signed by Richard Balistreiri and this practice
included his own salary check. On the last day of Bell's
operation, Richard Balistreiri wrote himself a check for
$2,200 on Bell's account. The amount represented unpaid
percentage of profit he felt was due and owing to him. This
act was done with the approval of his father and uncles.
Although he gave an unsecured note to pay for certain
machinery purchased from Bell, Richard Balistreiri has
filed with the receiver a claim of $3,590 for alleged back-
pay due and owing to him as president of Bell. This sum
represents Richard Balistreiri's claim that Bell now owes
him $100 a week for an increase in his weekly wage which
he was promised but did not receive and 7 weeks' vacation
pay which he also never received because of the financial
straits in which Bell supposedly found itself.8
These transactions are detailed because they have a di-
rect bearing on one of the important distinguishing fea-
tures between a successorship situation, from which vari-
ous legal consequences flow, and the establishment of an
alter ego, from which relationship other and more binding
consequences result. Such factors indicate clearly that the
relationship of Bell to Endurall was not the usual or arms-
length relationship which exists when one business buys
out another one. Bell's principals withdrew all of the assets
they could from Bell before closing it down entirely, then
sold equipment to a close relative at discounted prices,
gave him free rent for a month, paid a month's health in-
surance premiums on his employees, and permitted him to
take from Bell's bank account on the last day of Bell's
operations a substantial amount of cash under the guise of
a debt arising out of unpaid profit sharing.' Moreover, a
moving force though not a formal shareholder in Bell,
Richard Balistrein's father, John, pledged the equity in his
life insurance policy as collateral to give Endurall the cred-
it it needed to begin operations. It is obvious that Richard's
father and uncles were merely using Bell's remaining assets
to set up Richard in business of his own, free and clear of
a collective-bargaining agreement. Other factors which
show continuity between Bell and Endurall merely confirm
the nature of their maneuverings.
The products manufactured by Bell and Endurall are
substantially and essentially the same. Both manufacture
formica and laminated countertops and cabinets. Both in-
stall items which they manufacture pursuant to contracts
r In his testimony, Balistreiri stated that he was paid $285 per week How-
ever, the company records in evidence indicate that his weekly salary was
$350 I do not regard the discrepancy between his testimony and company
records on a matter of such significance as oversight or lapse of memory on
Balistrein's part
8If such a claim for compensation were to be allowed in the insolvency
proceeding, it might well be deemed to be preferred claim and payable to
Richard Balistreiri before strangers to the Bell corporation could collect out
of the few remaining assets for other debts due and owing them
9 Richard Balistreiri's act in appropriating for himself an unpaid amount
of profit sharing is a further contradiction of Respondent's thesis that it was
not making any money
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or subcontracts with construction contractors. In the first
few months of its existence, Endurall has done somewhat
less installation in relation to the totality of business done
and in comparison with its manufacturing effort than did
Bell. However, this is a question of emphasis and degree
and not an indication that it is engaging in a different type
of business. Similarly, Endurali is now promoting a stan-
dardized cabinet which Richard Balistrein developed while
he was an officer and supervisor for Bell, while Bell's oper-
ation emphasized custom-made items. However, such van-
ations in product line do not indicate any basic difference
in the type of business which both have conducted.
Most of Bell's suppliers are Endurall's suppliers. Con-
versely, most of Endurall's suppliers were Bell's suppliers.
This factor is especially noticeable when one evaluates sup-
pliers in terms of the amounts of goods purchased, as dis-
tinguished from a simple listing of names of companies
from which goods have been obtained. Endurall also serves
essentially the same clientele that Bell once had . Before
Endurall began to operate under that trade name , Richard
Balistrein circulated a letter to all of Bell 's customers to
inform them that Bell was closing, and the Endurall was
opening as a "custom formica shop." He requested Bell's
old customers to look at Endurall for all of their formica
needs. One such letter, sent to Paul Krolich of the Burmeis-
ter Woodwork Company, contained a personal note from
Balistreiri who stated:
Paul, Thank you for the past business . Looking for-
ward to serving your needs in the future. Will continue
the jobs we have going for you now and also quotes.
Endurall finished some installation jobs which Bell had
undertaken before June 27. Endurall finished a Bell con-
tract for the installation of plastic laminate at St. Joseph
Hospital which Bell had previously begun as a subcontrac-
tor for Becker Construction Company, Inc. About 80 per-
cent of this job had been completed when Bell went out of
business . Endurall also finished a Bell installation contract
at St. Luke's Hospital. Endurall honored two job price
quotations which Bell had submitted to the Burmeister
Company for installation of laminated plastic work on the
second phase of the St. Camillus Hospital and on the con-
struction of an administration building for the city of
Greenfield.
The first four employees hired by Endurall early in July
1975 were Bell employees. Bonnie Austin, a nonunit Bell
employee, lent Richard Balistreiri $5,000 in cash to begin
the Endurall operation. At Endurall she handled all of the
functions that she had performed at Bell and took over
additional administrative responsibilities as well. Three of
Bell's unit employees-Feller, Hanrahan, and Herman-
made up the entire complement of Endurall employees
during the first 2 weeks in July. Richard Balistreiri placed
an ad in the paper for formica mechanics and obtained
additional employees. At the present time, only a minority
of Endurall's seven or eight nonsupervisory employees are
alumni of the Bell organization . Endurall does not observe
the Union's area agreement. As its wage scale is somewhat
lower than Bell's and as there are no health, welfare, pen-
sion, and vacation benefits, it is easy to see why Bell's em-
ployees did not flock to Endurall. Moreover, Endurall is
free to perform installation work on a footage basis, where-
as Bell was required by the union contract to compensate
employees on an hourly basis for such work. There is no
doubt that the person in charge of both operations was and
is the same-Richard Bahstreiri-although the details of
his daily routine might be slightly vaned as between Bell
and Endurall.
In addition to taking over Bell's operating equipment,
Endurall obtained certain motor vehicles operated by Bell.
Part of Richard Balistrein 's compensation as president of
Bell was the unlimited use of a rented automobile paid for
by Bell. Upon the termination of Bell and the initiation of
Endurall, Balistreiri retained the vehicle and continued to
pay the monthly rental charge from Endurall's funds. En-
durall did not voluntarily take over Bell's outstanding
debts or its accounts receivable. Part of the pending circuit
court action in the insolvency proceeding may well exam-
ine into Endurall's liability for those debts.
It is well settled that a successor company must remedy
discriminatory discharges committed by its predecessor. J.
Howard Jenler, d/b/a Glendora Plumbing Company, 165
NLRB 101 (1967), Intergraphic Corporation of America, 160
NLRB 1284 (1966). Whether a successor must bargain with
a collective-bargaining agent of the employees of a prede-
cessor and whether a successor is bound by the terms and
conditions of a contract entered into by its predecessor are
considerations discussed and resolved, in part, by the Su-
preme Court 's decision in N.L. R.B. v. Burns International
Security Services, Inc, et al., 406 U.S. 272 (1972). In Burns,
one plant protection company at an aircraft factory was
replaced by another contractor in an arms-length trans-
action which arose when the successor simply underbid its
predecessor to get the job. The successor hired a majority
but not all of the predecessor's employees. The Supreme
Court agreed with the Board that a successorship relation-
ship existed because of many common factors which ex-
isted in the two employing enterprises , the most important
of which was that a majority of the successor 's payroll was
composed of employees who worked for the former guard
company under a collective -bargaining agreement in effect
when the change of contractors took place. Under those
facts and circumstances, the Supreme Court held that the
successor was obligated to bargain with the Union which
represented employees of its predecessor . However, the
Court ruled out any liability on the part of this successor
for adopting, observing, or complying with the terms and
conditions of the former employer's labor agreement.
In arriving at this result, the Supreme Court said simply
that the fact of successorship does not, in and of itself, give
rise to an obligation to observe a preexisting collective-
bargaining agreement when the successor never assented to
the contract and never became a party to it in any fashion.
In so holding, the Court left the door open to the possibili-
ty that situations might arise in which a successor would be
deemed bound by a contract in existence at the time of a
change of ownership.
In many cases, of course, successor employers will
find it advantageous not only to recognize and bar-
gain with the union but also to observe the pre-ex-
isting contract rather than to face uncertainty and tur-
THE BELL COMPANY, INC. 481
moil. Also, in a variety of circumstances involving a
merger, stock acquisition, reorganization, or assets
purchase, the Board might properly find as a matter of
fact that the successor had assumed the obligations
under the old contract. [Citing Oilfield Maintenance
Co., Inc., 142 NLRB 1384.] Such a duty does not, how-
ever, ensue as a matter of law from the mere fact that
an employer is doing the same work in the same place
with the same employees as his predecessor. [Supra,
406 U.S. 272 at 291.]
In light of this teaching, it appears that two distinct situ-
ations exist in law involving continuity of enterprise and
the legal consequences thereof. In the case of a bona fide
arms-length sale or transfer between two totally separate
principals engaged in the same employing enterprise, an
obligation to recognize an antecedent labor organization
arises, especially if the new enterprise employs a majority
of the employees of its predecessor. However, no obliga-
tion exists from these facts alone to comply with the collec-
tive-bargaining agreement entered into by the predecessor.
On the other hand, if the new business is merely a dis-
guised continuance of the old, it is an alter ego of the for-
mer employer and hence is bound by labor contracts en-
tered into by its predecessor. Johnson Electric Company,
Inc., 196 NLRB 637 (1972); Helrose Bindery Inc., and
Graphic Arts Finishing, Inc., 204 NLRB 499 (1973). In my
opinion, the Bell-Endurall relationship falls into the latter
category.
One factor which prompts this conclusion is also of im-
portance in resolving the status of the nine employees who
were discharged on or about June 26 when Bell closed
down. I refer to the bristling animus displayed by Richard
Balistreiri and his father over a long period of time toward
the Union involved in this case. Of more remote vintage
are letters and remarks of John Balistreiri to Cioli to the
effect that the Union was incompetent in protecting Bell
from nonunion competition and that he saw no reason why
Bell should continue as a union shop. The elder Balistreiri
once threatened to break Cioli's leg in the course of a ver-
bal dispute. More recently, Richard Bahstreiri frequently
told his employees that he might open a nonunion shop,
asked how many of them would join him, tore up the union
contract in the shop in order to demonstrate his antipathy
toward it, and suggested to employees that they would be
better off working installation jobs on a footage basis in
violation of the contract than they would be in complying
with the contract. He actually paid one employee to work a
particular job on the basis and in violation of the contract
while Bell was in business. Sometime in 1975, John Balis-
treiri told employees they would not receive the raise in
scale provided for in the contract. On May 8, 1975, Rich-
ard Balistreiri took a straw poll of employees on a proposal
to violate the contract by working 8-1/2 hours for 8 hours'
pay. Within 6 weeks of closing the Bell operation, Richard
Balistreiri told Cioh angrily that he would close down and
go nonunion if the Union pressed its position under the
contract, meaning a continued insistence on the June 1
increase and the taking of Buch's discharge to arbitration.
Against this background of animus, Richard Balistrein
took over all of the valuable assets of the Bell Company
under circumstances wherein he could hardly claim the sta-
tus of a bona fide purchaser for value, hired some of Bell's
former employees, serviced Bell's former customers, se-
cured credit from Bell's principal financing institution with
help of assets pledged by his father, and obtained his sup-
plies principally from Bell's former suppliers. The main dif-
ference between the new and the old enterprise was that
now Richard Balistreiri felt himself free to set his own
wage rates and practices without reference to the union
contract and free from the payment of fringe benefits re-
quired by that contract. In such circumstances, and noting
also the close family relationships which existed through-
out the life of the Bell Company and the emergence of
Endurall, it is clear that Endurall is not merely an arms-
length successor but is an alter ego of Bell, established in
order to avoid contractual responsibilities which Bell owed
to the Charging Party.
2. The allegations of per se violations of Section 8(a)(1)
and (5) of the Act
a. As found above, the contract in existence between
Bell and the Union provided for an interim wage increase
of approximately 13-15 cents per hour on June 1, 1975.
John Balistreiri came to the plant not long before this date
and told employees that "hell would freeze over" before
they would get such an increase because they were not
working hard enough and the Company was not making
enough money to pay it. Richard Balistreiri told Union
Representative Cioh the same thing in a phone conversa-
tion on May 12 when Cioli called him to protest this and
other company actions. Such statements constitute a unila-
teral modification and repudiation of an existing collec-
tive-bargaining agreement and violate Section 8(a)(1) and
(5) of the Act. Curtis Manufacturing Co., Inc., 189 NLRB
192 (1971).
b. On several occasions within the period of limitations,
Richard Balistreiri inquired of Bell's unionized employees
if they would be willing to work for him on a nonunion
basis in another company that he was making plans to
establish. Such inquiries clearly undermine the Union's po-
sition as bargaining agent at the Bell Company and are an
integral part of a scheme to establish a new concern for the
purpose of avoiding the terms and conditions of an out-
standing collective-bargaining agreement. As such, they vi-
olate Section 8(a)(1) and (5) of the Act. Courtesy Volkswag-
en, Inc., 200 NLRB 84 (1972).
c. On May 8, 1975, Richard Balistreiri met with employ-
ees in the absence of union officials to determine if they
would agree to a modification of the contract and threat-
ened them with the layoff of one employee if they did not
so consent. Such actions are both coercive and constitute
an attempt to deal directly with bargaining unit members
in derogation of the status of the bargaining agent. They
violate Section 8(a)(1) and (5) of the Act.
d. The private discussion between Buch and Schmidt
concerning the proposal to depart from the contract con-
cerning wages which had been voted upon by employees
and Richard Balistrein's possible reason for advancing it is
concerted, protected activity on the part of the partici-
pants. When Richard Balistreii told employees that they
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be fired for engaging in such conversations, he was,
in effect, threatening them with discharge for engaging in
concerted, protected activities. The threat constitutes a vio-
lation of Section 8(a)(1) of the Act.
3. The discharge of nine Bell employees on June 26
When Bell announced that it was discontinuing its oper-
ations and closing up shop, it informed nine unit employ-
ees that they were terminated.10 As found above, the dis-
continuance of Bell and the establishment of Endurall as
its alter ego was a device designed to nd the Balistreins of
a union contract and permit the continuance of a laminat-
ed plastics business under Balistrein auspices but not un-
der union conditions. The assertion that Bell was suffering
economic reversals and that its inability to make a profit
was what prompted the discharges was mere pretext. Bell
in fact made a profit in calendar year 1974. Its cash flow
posture was no worse in June 1975 than it was at the end
of 1974. It was in fact a better position as its accounts
receivable in June 1975 were at a lower figure than they
were 6 months earlier. Bell experienced none of the symp-
toms normally associated with a small corporation in des-
perate economic straits, such as defaults to note holders,
bouncing of checks, inability to meet weekly payrolls, sale
of assets to raise money, or large numbers of judgments
outstanding against it. There is no evidence that its cred-
itors were pressing it. Indeed, Bell's creditors did not be-
come exercised until after Bell terminated its operations.
Bell's line of credit at M & I West Suburban Bank was
still intact and was, in essence, transferred to Richard
Balistrein's individual proprietorship when the Bell opera-
tion ceased. These facts, taken together with the animus
described above and Richard Balistreir's statement to Cio-
li that if the Union pressed him he would go nonunion,
clearly indicate that the termination of the Bell operation
was discriminatorily motivated and that those who were
discharged as a part of this plan were of necessity dis-
charged in order to discourage union membership or affili-
ation. Such discharges violate Section 8(a)(3) of the Act.
4. Violations of Section 8(a)(5) by Bell and Endurall
The General Counsel alleges alternatively that Bell vio-
lated Section 8(a)(5) of the Act by refusing to notify the
Union and bargain with it about the effects of going out of
business , and that Endurall , its alter ego, violated Section
8(a)(5) of the Act by refusing to apply to its employees the
terms and conditions of the Bell contract with the Charg-
ing Party . The alternative positions of the General Counsel
recognize that there is a certain inconsistency in asserting
an obligation to bargain about going out of business, and a
coexisting obligation to recognize a union and abide by a
contract because one has not in fact gone out of business
but has merely changed his name and mode of operation.
See International Offset Corp., 210 NLRB 854 (1974).
It is well settled that, when an organized company goes
10 Those terminated were Steven Abraham, David Feller, John Hafeman,
Robert Hanrahan, John Herman, Henry Lauscher, Raymond Luczkowski,
George Schmidt , and Gary Schroeder
out of business, it has an obligation to notify the bargain-
ing agent of its employees concerning its intention and to
bargain with the union regarding the effects upon employ-
ees of its decision. The facts of this case indicate clearly
that Bell did not notify the Union that it was going out of
business until after the event took place and that it did not
afford the Union an opportunity to bargain with it con-
cerning the effects of its decision on the nine employees
who were laid off. Without more, such considerations
would warrant the conclusion that Bell violated Section
8(a)(5) of the Act because of this neglect of its duty to
bargain. A remedy for such a violation in this case would
be largely meaningless. More to the point, I have conclud-
ed that Bell did not in fact go out of business but merely
caused to be transferred its assets, its credit, its work in
progress, and some of its employees to Endurall, who has
continued essentially the same operation as its unionized
corporate predecessor.
When Cioli approached Balistreiri on July 10 and asked
him to recognize the Union and honor the Bell contract,
Balistreiri refused. Endurall has continued paying employ-
ees at a lesser scale than the contract calls for and has
refused to pay union fringe benefits. As found above, En-
durall was and is an alter ego of Bell and, as such, is obli-
gated to remedy all unfair labor practices committed by
Bell and honor the contract which was in effect at the time
of transition of enterprise from a corporation to private
proprietorship. Endurall's failure to do so is more than a
simple breach of contract. It amounts to a repudiation of a
collective-bargaining relationship, and as such, constitutes
a violation of Section 8(a)(1) and (5) of the Act. I so find
and conclude. See C & S Industries, Inc., 158 NLRB 454
(1966).
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondents The Bell Company, Inc., and its agent,
Richard Balistreiri , Paul Moskowitz , Esq., receiver for The
Bell Company, Inc., and Richard Balistreiri, d/b/a Endu-
rall Products are, jointly and severally , employers engaged
in commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
2. United Brotherhood of Carpenters Council of Mil-
waukee County and Vicinity, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. All production, maintenance , and installation em-
ployees employed by Richard Balistreiri , d/b/a Endurall
Products , at his Glendale, Wisconsin , plant , excluding of-
fice clerical employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since on or about July 7, 1975, the Union herein has
been the duly designated exclusive collective -bargaining
representative within the meaning of Section 9 (a) of the
Act of the Respondent Endurall 's employees who are em-
ployed in the bargaining unit described above.
5. By directly dealing with employees in an attempt to
bypass the duly constituted collective-bargaining agent; by
THE BELL COMPANY, INC. 483
making threats and posing questions to employees for the
purpose of undermining the Union's position as bargaining
agent; by unilaterally modifying and repudiating the provi-
sions of an outstanding collective-bargaining agreement;
and by refusing to bargain collectively with the Union
herein with respect to employees employed in the unit de-
scribed above; and by failing and refusing to execute and
apply to employees in said unit the contract concluded on
or about August 5, 1974, between the Union and Respon-
dent Bell, the Respondents herein have violated Section
8(a)(5) of the Act.
6. By discharging Steven Abraham, David Feller, John
Hafeman, Robert Hanrahan, John Herman, Henry
Lauscher, Raymond Luczkowski, George Schmidt, and
Gary Schroeder in order to discourage their membership in
support of the Union, the Respondent herein violated Sec-
tion 8(a)(3) of the Act.
7. By the unfair labor practices recited above in Conclu-
sions of Law 3 and 4, and by threatening employees with
discharge if they engaged in concerted, protected activities,
the Respondent herein violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have committed cer-
tain unfair labor practices, I will recommend that they be
ordered to cease and desist therefrom and take other ac-
tions designed to effectuate the purposes and policies of
the Act. Respondent Moskowitz, the receiver of the Bell
Company, is what might be called ex officio respondent in
that he has personally committed no unfair labor practices.
However, the Board has held that receivers stand in the
shoes of the defunct employers whose assets they have tak-
en over, and that, insofar as is practicable, they are respon-
sible for remedying the unfair labor practices committed
by their debtors. Marion Simcox, Trustee of Wagner Ship-
yard and Marina, Inc., and Stateside Service, Inc. d/b/a
Stateside Shipyard and Marina, Inc., 178 NLRB 516 (1969).
As the Respondents' illegal actions have been widespread
repeatedly, and have included the discriminatory dis-
charges of nine employees, they go to the heart of the Act,
so I will recommend the issuance of a broad 8(a)(1) order
designed to suppress any and all violations of that section
of the Act. J. C. Penney Co., Inc. (Store # 1814), 172 NLRB
1279, fn. 1 (1968); Adam & Eve Cosmetics, Inc., 218 NLRB
1317 (1975). I will also recommend that the nine discrimi-
natees discharged on or about June 26, 1975, be reinstated
by Endurall, and that all Respondents herein be required
to make them whole for any losses which they have suf-
fered, in accordance with the Woolworth formula," with
interest thereon computed at 6 percent per annum. I will
also recommend that Endurall be required to recognize
and bargain collectively with the Union and to execute and
to give effect to the Bell-Union contract, retroactive to the
commencement of the Endurall operation. Endurall will
11 F W Woolworth Company, 90 NLRB 289 (1950)
also be required to pay the difference between what it has
been paying its employees and what it would have paid
them had the contract scale been followed during this peri-
od of time. It will further be required to make all health,
welfare, pension, and vacation payments it would have
paid had it complied with the terms and conditions of the
contract. Such amounts also carry with them interest at 6
percent per annum.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended:
ORDER12
1. Respondent The Bell Company, Inc., and its agent,
Richard Balistreiri, Paul Moskowitz, as receiver for the
Bell Company, Inc., and Richard Balistreiri, d/b/a Endu-
rall Products, and their officers, directors, supervisors,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for engaging
in concerted, protected activities.
(b) Discharging or otherwise discriminating against em-
ployees in the hire or tenure of their employment because
they are members of or give support to United Brother-
hood of Carpenters District Council of Milwaukee County
and Vicinity, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO.
(c) Bargaining directly with employees in such a manner
as to undermine the status of a duly designed collective-
bargaining agent.
(d) Unilaterally modifying, repudiating, or failing to
give effect to existing collective-bargaining agreements.
(e) Threatening and questioning employees in order to
undermine the Union's position as a bargaining agent.
(f) Refusing to recognize and bargain collectively with
the Union as the duly designated exclusive collective-bar-
gaining representative in a unit composed of all of
Endurall's production and maintenance employees em-
ployed at its Glendale, Wisconsin, plant, excluding office
clerical employees, guards, and supervisors as defined in
the Act.
(g) Refusing to execute and give effect to a collective
agreement entered into by Respondent Bell and the Union
on August 5, 1974.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
Make whole Steven Abraham, David Feller, John Hafe-
man, Robert Hanrahan, John Herman, Henry Lauscher,
Raymond Luczkowski, George Schmidt, and Gary Schroe-
der for any loss of pay they have suffered by reason of the
discrimination practiced against them and found herein, in
the manner described above in the section entitled "Reme-
dy."
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. In addition to the requirements set forth in the
above-recited Order, Respondent Richard Balistreiri,
d/b/a Endurall Products, Inc., and his supervisors, agents,
successors , and assigns, shall:
(a) Offer to Steven Abraham, David Feller, John Hafe-
man, Robert Hanrahan, John Herman, Henry Lauscher,
Raymond Luczkowski, George Schmidt, and Gary Schroe-
der immediate reinstatement to the positions which they
held with the Bell Company, or in the event that said posi-
tions no longer exist, to substantially equivalent employ-
ment, without prejudice to seniority or other rights and
privileges which they formerly enjoyed, discharging if nec-
essary other employees who have been hired in their
places.
(b) Make whole all employees who have been employed
by it since July 7, 1975, for any difference between the pay
which they have received and which they would have re-
ceived if Respondent Endurall had complied with the
terms and conditions of a contract concluded by the Union
herein and the Bell Company on or about August 5, 1974,
with interest on said difference in amounts computed at 6
percent per annum.
(c) Pay to the appropriate trustees any and all amounts
due in pension, health, welfare, or vacation benefits which
are due and owing for all unit employees employed by
Endurall since July 7, 1975, and all of the aforenamed dis-
criminatees found herein, under the terms of the collective-
bargaining agreement concluded on or about August 5,
1974, by the Bell Company and the Union, with interest
thereon computed at 6 percent per annum. In the event
that any of Endurall's employees are not eligible to partici-
pate in union-sponsored pension, health, welfare, and va-
cation plans, the amounts representing such payments to
the trustees of said plans shall be paid directly to said em-
ployees, together with the interest due and owing thereon.
(d) Recognize and, upon request, bargain collectively
with the Union herein as the exclusive collective-bargain-
ing representative of all of its production and maintenance
employees employed at its Glendale, Wisconsin, plant, ex-
cluding office clerical employees, guards and supervisors as
defined in the Act.
(e) Execute and give effect to the terms and conditions
contained in a collective-bargaining agreement concluded
on or about August 5, 1974, by the Bell Company and the
Union, retroactive to July 7, 1975.
(f) Post at its Glendale, Wisconsin, plant copies of the
attached notice marked "Appendix." 13 Copies of the Ap-
pendix, to be furnished for the Respondent by the Region-
al Director for Region 30, and duly signed by a representa-
tive of the Respondent Endurall, shall be posted by
Respondent Endurall immediately upon receipt thereof,
and shall be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
Insofar as the second amended complaint alleges viola-
tions of the Act which have not been found herein, the said
complaint is hereby dismissed.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "