The Bell Co., Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 977 (N.L.R.B. 1979)

THE HtI.I. COMPANY. IN(C.
The Bell Company, Inc., and its agent, Richard Bali-
streiri; Paul Moskowitz as Receiver for The Bell
Company, Inc; and Richard Balistreiri, d/b/a
Endurall Products; and Floyd A. Hlarris as Receiver
for Endurall 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
August 2, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MIMB;RS JNKINS
AND PN EI1)
On June 30, 1976, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tied proceeding,2 in which it found that The Bell
Company, Inc. (herein called Bell). and Endurall
Products (herein called Endurall), as the alter ego of
Bell, violated Section 8(a)(5) and (I) of' the Act by
refusing to bargain with United Brotherhood of Car-
penters District Council of Milwaukee County and
Vicinity, United Brotherhood of Carpenters and Join-
ers of America, AFL CIO (herein called the Union).
as the collective-bargaining representative of Respon-
dent's production, maintenance, and installation em-
ployees; by dealing directly with their Union-repre-
sented employees in an attempt to bypass the Union;
by making threats and posing questions to employees
in an attempt to undermine the Union's position as
their bargaining agent; by unilaterally modifying and
repudiating provisions of an outstanding collective-
bargaining agreement; and by failing and refusing to
execute and apply to employees in the aforesaid unit
the contract concluded on or about August 5, 1974,
between Bell and the Union. The Board also found
that Bell and Endurall violated Section 8(a)(3) and (I)
of the Act by discharging nine employees in order to
discourage their membership in and support of the
Union and, finally, that Bell and Endurall violated
Section 8(a)(1) of the Act by threatening employees
with discharge if they engaged in protected concerted
activities. To remedy these unfair labor practices, the
Board ordered Respondents to cease and desist there-
from, and to take certain affirmative action, including
making the unlawfully discharged employees whole
for whatever loss of pay they may have suffered as a
result of having been terminated
'At the hearing. the Adrinnlstratsle law Judge granted the General
(Counsel's requestl Io add the name of IFlosd A lHarrls. receiver r lir Indurall
Prxoducts. to the captlion as a Respondent
225 NI.RB 474
'The Board also ordered [Indurall to recognlze and bargain with the
Union as the collectlve-barglining representative if its production nd main
Thereafter, on September 26. 1977. the ULniled
States Court of Appeals for the Seventh Circuit en-
forced the Board's Order insofar as it concerned Bell.
but declined to enforce the Order to the extent it per-
tained to Endurall, on the ground that Endurall was
not, as the Board found. an al/tr 'go of Bell.4
On June 12. 1978. the General Counsel issued a
backpay specification and notice of hearing. alleging
that Endurall was a successor to Bell. and that Bcll
and Endurall were jointly and severall3 liable tor spe-
cific amounts of backpay to the nine emploNees
whom the Board and the court found to have been
unlawfully discharged by Bell. Respondent Bell did
not file an answer to the backpay specification, but
Respondent Endurall did file an answer, gnerallk de-
nying the allegations contained therein andi rai sing
certain affirmative defenses.
Subsequently. on October 26. 1978X. a hearing was
held before Administrative law Judge Elbert D.
Gadsden for the purpose of determining the backpa;
due the discriminatees, but neither Bell nor Endurall
appeared at the hearing. On January 31, 1979. the
Administrative Law Judge issued the attached Sup-
plemental Decision. Thereafter. the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(bh) 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 Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings.
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Because Bell did not file an answer thereto. we
deem true and correct the allegations of the backpay
specification, including the sums of backpay which
the General Counsel asserts to be due and owing each
of the individual discriminatees, in respect to Bell.'
The issue raised hb the General Counsel's exceptions
tenance employees to execute and give effect to the terms and conditions ,it
the collective-hargaining agreement concluded on or about August 5. 1974.
between Bell and the Union, retroactive to July 7. 1975. to make whole
employees employed bh Endurall since Jul5 7. 1975. fior and loss t' pas
suffered by them because of Endurall's failure to obhserve the terms o the
aforesaid contract; to pay to the appropriate trustees amounts due in pen-
sion. health. welfare, or vacation henefits for all unit emplosees employed bh
Endurall since July 7, 1975, and all nine discriminatoril1 discharged emplo-
ees. under the terms of that conract: and t) offer the nine iliegall terml-
nated emplosees immediate reinstatement to the positions thes held with
Bell. or to substantially equls alent positins.
4561 F.2d 1264
5 At twoi points in the Supplemental )ecision. the Admiilstratise I aw
Judge inadvertentl cnfounded the identities 1,o Bell iand Indlur.ll I ls
occurred throughout the second paragraph and in the inal entence ll the
sixth paragraph ot the "cnclulsnons seclin Ihthe Sipplenlent.ll I)eclsin
In lightl o our det:iled dlscnilssii hercil. it is not necessars to o,rrecl theme
errors
I Sec. 1t)2 54(.) Nallonal I.lhr Rel.t..nns Boaid Rules and Regulalton.,
Series . as amended
243 NLRB No. 152
977
I)(FCISIONS OF NA IIONAI I.ABOR RELATIONS BOARDI
is whether the Administrative Law Judge correctly
concluded that Endurall was not a successor to Bell,
and therefore did not share joint and several liability
with Bell for the amounts of backpay.7 The Adminis-
trative Law Judge held that the court of appeals deci-
sion denying enforcement to the Board's original Or-
der as it concerned l-ndurall precluded him from
finding Endurall liable as a successor to Bell in this
backpay proceeding. In so deciding, the Administra-
tive Law Judge relied mainly on the court's observa-
tion that the absence of common ownership of Bell
and Endurall relieved Endurall of any obligation to
remedy unfair labor practices committed by Bell.
Successorship
Contrary to the Administrative Law Judge, and in
agreement with the General Counsel, we find that
Endurall is a successor to Bell, that such a finding is
not precluded by the court of appeals decision, and
thus that Endurall is jointly and severally liable with
Bell for the backpay owed to the nine employees
whom Bell discharged in violation of the Act.
We recognize that the court of appeals decision is
final and binding regarding whether Endurall is an
alter ego of Bell. But, as pointed out by the General
Counsel, the court did not have before it, nor did it
decide, whether Endurall was a successor to Bell
within the meaning of the Supreme Court's decision
in Golden Stale Bottling Co., Inc., e al. v. N.L.R.B.,"
and was therefore responsible with Bell for remedying
Bell's unfair labor practices to the extent prescribed
by that case. In Golden State (414 U.S. at 171, fn. 2),
the Court directly approved the Board's holding in
Perma Vinyl Corporation,9 that "one who acquires
and operates a business of an employer found guilty
of unfair labor practices in basically unchanged form
under circumstances which charge him with notice of
unfair labor practice charges against his predecessor
should bc held responsible for remedying his prede-
cessor's unlawful conduct." The subsequent employer
need not be united with the predecessor by common
ownership to fit within this definition of successor-
ship.' ° Further, unlike an alter ego a Golden State
successor is not required by the Board to "cease and
desist" from the previous employer's unfair labor
' Inasmuch as Endurall did not appear at the hearing. no evidence was
presented by it to contradict the (;eneral Counsel's computations concerning
the amounts of backpay owed to the individual discriminatees and we Ihere-
fore find that these sums accurately reflect the hackpa) to which each dis-
cnminatee is entitled, notwithstanding the denials contained in indurall's
answer to the backpa) specification
'414 U.S. 168 (1973).
v 164 NLRB 968. 969 (1967) enld. ub nm 'niri'd Staiei Ppc & Fiundn
(, v N L. RB. 398 F 2d 544 (5th (ir. 1968)
1'414 S. at 176 177.
practices,'' or to honor the predecessor's labor con-
tract if there is one.' 2 Nor is it necessarily required to
bargain with a union representing employees of the
earlier employer." Generally, a Golden State succes-
sor is held jointly and severally liable for backpay due
employees as a consequence of the predecessor's un-
fair labor practices. and is required to offer unlaw-
fully discharged employees immediate reinstatement
to their former or substantially equivalent positions.' 4
We are now called upon to decide in this proceed-
ing for the first time whether Endurall acquired
and operated Bell's business "in basically unchanged
form" with knowledge of the unfair labor practices
committed by Bell.
The facts, as found by the Board and the court of
appeals, reveal that Bell was a small, family-owned
and -operated corporation engaged in the business of
manufacturing and installing formica and laminated
plastic countertops and cabinets. It was owned by
four of the five Balistreiri brothers, James, Giuseppi,
Dominic, and Anthony. The fifth brother, John,
served as general manager of the Company until
1973, when his son, Richard, became president and
principal managing agent of Bell. Richard continued
in that capacity until June 1975, the month when Bell
ceased operations.
Bell and the Union had been parties to successive
collective-bargaining contracts since 1956, covering
Bell's production, maintenance, and installation em-
ployees. Richard Balistreiri, as agent of Bell, person-
ally committed most of the unfair labor practices,
summarized at the beginning of this Decision, of
which the Board found Bell guilty in the original pro-
ceeding. Also, Richard Balistreiri was president of
Bell on June 19. 1975. when James Balistreiri an-
nounced that Bell was closing down, resulting in the
discharge of the nine employees represented by the
Union on June 27, 1975.
On July 7, 1975, 10 days after Bell went out of
business, Richard Balistreiri opened Endurall, a con-
cern engaged in basically the same business as Bell
and in the manufacture of similar products, and be-
came its principal managing agent. Bonny Austin,
Richard Balistreiri's secretary at Bell, invested $5,000
in Endurall and was hired as its accountant. Also,
Richard's father, John Balistreiri, allowed his life in-
surance policy to be used as security for a $15,000
bank loan extended to Endurall. Endurall purchased
Bell's equipment, inventory, and supplies fr use in
the new business, and operated out of Bell's former
premises for a month before moving to a new loca-
Id at 177. In 4
'Id at 183 185
i Id at 184. In. 6.
i1 Id at 171 172.
978
liIIIl II ( )\1 . I (
lion. It. li ll', btle ll c1hclt, Richird Ih1allteir[i
wrolte to Bell's csltt.l ers lltolrilti thetil tlhat Bll
w\s ooill, otut it hltlilleS. i iltd inllllin ihc ll.I to lse
lndul-rall to meet tller oll llilcI leeds. Main otl ell's
CUStOllleI'S Si)bsequtlllt? hi)CccLiIt c L'(It0IICl[N Illr-
all, anld Inldtil;all complleted wolik On scer;ll prolects
begun hb Bell. Most of Indurall's suppliers hid also
been suppliers of Bell. [lmall. three of I ldlurall's
seven production. maillcnlltlce. illI insl;ll;tlioL ellm-
ployees had worked for 1Bell
It is not hard to concllude Ilthit ndlr;lIl suCleleded
to Bell's business with knowledge of the unfiir lalbor
practices committed hy Bell. because Ricl;ard Ball s-
treiri, the operating head of hoth ( oinipalnles, \ as
himself responsible for the commission of lost of tl
unfair practices and was certainl\ aware of thlet ;ll.
Nor can there he genuine dispute that tIndurall con-
tinued Bell's business in essenti;ally the same loorm.
inasmuch as Endurall was managed by the same per-
son as Bell; was engaged in virtualls the same tpe of
business; received financial assistance from two per-
sons associated with Bell: purchased Bell's equip-
ment, inventory,. and supplies; serviced mamns of Bell's
customers and utilized most of its suppliers: and hired
three former Bell employees out of a complement of
seven production, maintenance, and installation em-
ployees. We find therefore that ndurall is a succes-
sor to Bell as successorship is defined in (o/,ln Stale.
and that Endurall and Bell are jointly and severall
liable for the sums of backpay indicated below.
We are fully aware that the General ('ounsel could
have alleged, as an alternative theory, that Endurall
was a Golden State successor to Bell in the original
unfair labor practice proceeding. Indeed, we think it
would have been better practice for the General
Counsel to have done so. But we do not believe that
the General Counsel's failure to advance Go,len State
successorship as a separate theory of liabilit) in that
proceeding forecloses him from asking the Board to
determine Endurall's successorship status in this
backpay case. Unlike Pevion Packing C(ompanv,
Inc.," in which the Board refused to permit the Gen-
eral Counsel to allege the same act as violations of
different sections of the statute in separate proceed-
ings, the General Counsel is merely seeking here to
insure that the unfair labor practices fiund to have
been committed by Bell are remedied to the fullest
extent possible. To hold differently would be to de-
prive wrongfully discharged employees of access to a
potentially necessary and legitimate source of funds
for satisfaction of their backpay claini. 6
11 129 NLRB 1358 119611.
e Our dissenting colleague's concern for unnecessary harassment oi Re-
spondents, which we share. is misplaced in this case. For. as the Adminlstra-
tive Law Judge found in our original D)ecision. the relationship oI Bell to
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fPurstta t ) Secti i 1It )I (t, Il i t i iliIl I .Ii ltui
Relations \tl, a.s, ;arcle . h lie Naitnl;l I i) RCla-
tions Board hereh orders t lhat the RcspOnl c ll I hce
Bell Cotmnpanl'. Inc.. ,1in1 Its agent. Richa;rd Balis-
treiri: Paull 'vioskowit/ ;as receiver fir he Bell ( om-
pany, Inc.: and Richard Balistreiri. d/h/l'; l:nd urall
Products: and Flovd A. ialrris as receiver tor Intlur-
all Products, Milw aukee, Wisconsin, their otlicers
agents. successors. and assigns. shall jointlI or ever-
ally pa',y to the emplo ce \ htose nalilmes ;ppe;lr inl the
section of' this Supp llllntall )ecision atlld ()Ordtler cIl-
tied "Backpa" the sims tI itl htakpa slic, iin 1oppo-
site their lnalles. witih -percent interest thIereltol. less
ans tax ,.ithholdiig required hb las.
MlMIR N I I (. dissentinIg il prt:
I agree with my colleagues that 'The Bell (' nlpaul,
Inc.. is liable for the sums of hackpas which thes
have indicated. I do not agree that :induralll Products
I.ndlurall presents a "tangled webh ro transa.itllls he celi Ihr dctllik I *ti
ralirn o' ned bh the elder H.llslreirlns .anl the n, prprlt r ll ii hi thelJ
hb thr scion o( one (o Bell's prilllcipal A broad blush s cII I i thlc .ctl l e
ot he Balstrirls presenlts . pllre i '1 lridlxlual wn dsinilcl.ll.alt\
stripped a going cmicern o is lungile ssets and tell Is credito in-n seck uti
:nd collect from isl debtor,, meanwhile pernltilng the pera;ling heard jol]
the delunci (ompany (who acialulls dcrlscd Ihsi principal hs chnhl orn the
nanulaclure and sale of cahnelt anid counterilops) to InlllirIC ti doI %0
under a different name and strle" (225 NlRB ;t 4781
We thereliore do not view the pplhcatioun to I nduralI ol ( ,Idemn Sttre's
equitable consideralo in. nlnelk. he protcctiln ot lcilllt ied eliplio\ce.
he harassMllen in all degree
'Il I, Plumbhing & H,,,r, (,. 18 N RB 71h il')-2) ('llsilCnt -lth
Board pilics. we h.all I1it require ReCspolndcnl I 1 \ p1' 11rei nI1 i ccordrinti c
lth ur decision tIlrida .Si/l ( -rnat.,i 21 Nl RB il 14 77). b-.
cause ur origilii ()order is eitorced b the curt I appealc.s reqited the
p.amenol o nterest onkly ;a, prescribed h tw.
I) ( ISI()NS ()I NA I I()NAI I.ABO()R RII.A I IONS t()ARI)
should he held jointly and severally responsible with
Bell for this hackpay.
As set forth more completely i the majority opiln-
ion, the Board lfound in its original Decision that Bell
had conimitted nuimerous unfair labor practices in-
cluding the unlawful discharge of nine emnployees. D
The Board also tounlld that Enduilrall was an alter uego
of Bell, and therefore required both Bell and lindurall
to remedy the unfair labor practices. owever, the
court of appeals, contrary to the Board, decided that
Endurall was not ell's alter ego, and enforced the
Board's Order only to the extent that it applied to
Bell.'" Subsequently, the General Counsel initiated
the instant hackpay proceeding, seeking to hold
Endurall, in addition to Bell, liable for designated
amounts of backpay owed to the illegally terminated
employees. he (;eneral Counsel predicates ndur-
all's liability on its alleged status s a successor to Bell
as defined in (;,,oldn Slate Bottling Co., In., et al v.
N. L. R. B. 2"
I do not quarrel with the majority conclusion that
Endurall meets the (;olden State criteria for succes-
sorship, because Endurall acquired and operated
Bell's business in basically unchanged form with no-
tice of Bell's unfair labor practices. If that were the
only issue here, I would sign my colleagues' opinion.
But I believe the overriding question confronting the
Board is whether we should permit the General
Counsel to divide his theories of Endurall's liability,
advancing one, alter ego, in the original unfair labor
practice proceeding, and saving a second, Golden
State successorship, for another day. Not only were
all the facts needed by the General Counsel to prove
successorship available to him when he tried the first
case, but they were found by the Board and the court.
Indeed, all the evidence relied on by the majority as
showing Endurall's successorship to Bell is taken
from the original record: no new facts were developed
at the backpay hearing. I find, and Board precedent
holds, that sanctioning such conduct by the General
Counsel is inconsistent with sound administrative
practice and is unfair to Endurall.
The General Counsel is, of course, correct, as a
general rule, when he states in his brief that it is per-
fectly proper to litigate Golden State successorship in
a backpay proceeding. What he neglects to add, and
what the majority fails to appreciate, is that such a
backpay action is ordinarily the only opportunity
which the General Counsel has to raise the successor-
ship issue, because transfer of the business has usually
not occurred at the time of the hearing on the prede-
s 225 NLRB 474 (1976).
' 561 F.2d 1264 (7th Cir. 1977).
20414 U.S. 168 (1973).
cessor's unfair labor practices. 2' Hut where, as here.
the successor has emerged before the issuance o1' the
unfair labor practice complaint against the offcnding
emplover, and where it has been named in the conm-
plaint as an alter ego of the predecessor, there is no
justification for giving General ('Counsel atntoher
chance in a backpay hearing to litigate the liability of'
the second employer.
Although I have not found a case involviln aln
identical set of f acts, I view Pe,on IPa(tcing, ( o'rinpa ,
/h,."22 as squarely controlling. lhe IBo ard in P'rlton
Packing dismissed an 8(a)(5) complaint asserting that
Respondent had unlawfully withheld a bonus in l)e-
cember 1958, because the General ('ounsel had al-
leged the withholding of the same bonus as a viola-
tion of Section 8(a)(I) of the Act in an earlier
proceeding. In refusing to countenance such relitiga-
tion of the same conduct, the Board declared. "Gen-
erally speaking, sound administrative practice, as well
as flirness to respondents, requires the consolidatio n
of all pending charges into one complaint. he same
considerations dictate that, wherever practicable,
there be but a single hearing on all outstanding viola-
tions of the Act involving the same respondent. To
Act otherwise results in the unnecessary harassment
of respondents." 23 Ihe Board also noted that it "does
not grant respondents second hearings to relitigate al-
legations made against them because they may have
mishandled their defense in the original presentation
of the case," and that "the General Counsel is not a
favored litigant and he is not entitled to any privi-
leges not accorded any other litigant appearing bef'ore
the Board."2 4
Two cases amplify the meaning of PrIon Packing.
In one, Overnite Tranportation ('ompaulv, 25 the Board
summarized Pevion Packing as holding that the same
single act may not be litigated first as a violation of
one section of the Act, and then litigated in a second
proceeding as a violation of another section. 26 In the
21 For example, this was true in Golden State as well as in Perma Vinvl
Corporation, Dade Plastics Co. and United States Pipe and Foundri Corpora-
tion, 164 NLRB 968 (1967), enfd. sub. nom. United States Pipe & Found Or Co.
v. N L R.B, 398 F.2d 544 (51h Cir. 1968). the leading Board case relied on by
the Court in Golden State.
2 129 NLRB 1358 (1961).
2
1 d at 1360.
2 Id
25 International Brotherhood of Teamsters Chaufeurs, Warehousemen and
Helpers of America, el al. (Overnile Transportation (ompanm., 130 NRB
1020 (1961).
26 The Board. however, found Peyton Packing inapplicable, because multi-
ple, separate acts were involved in Overnile, none of which had been the
subject of two proceedings. Interestingly, then-Member Fanning dissented,
arguing that, even though different acts arising in different Regions were in
issue, Petion Packing required the consolidation o the cases into one pro-
ceeding. tie commented. "the General Counsel insured himself two bites at
the apple by failing to consolidate. proceeding in the first case and. if unsuc-
cessful. proceeding against Respondents on the same violation in the sec-
ond." 130 NLRB at 1025.
I II BII I ()MPANY, INC(
other, Ncuht?/ll ros. Pac cr.v. Inc. ,2 we defined more
exactly the scope of Pcvton Packing, indicating that
separate litigation of rougly concurrent alleged viola-
tions is permissible where "the alleged violations oc-
curred after the complaint issued in the earlier case,
were not known to the General Counsel at the time of'
the earlier hearing, were independent acts, and were
not the type of alleged violation commonly known or
readily discoverable. even after an exhaustive investi-
gation." More recently, Pevion 'Packing has often
been cited with approval. 25
I do not think there is real room for doubt that the
instant situation falls within the reach of' Pion
Packing as measured by Nuhof B Rros. Thus. [ndurall
succeeded to Bell's business befltre the (ineral Coun-
sel issued the original complaint, the G(eneral Counsel
was fully aware of the relationship between Bell and
Endurall at that time and, indeed, named ndurall as
a respondent and sought to make Endurall liable with
Bell as an atirer ego. By direct analogy to Pevton Pack -
ing itself, where the withholding of a bonus was liti-
gated both as a violation of Section 8(a)( I) and Sec-
tion 8(a)(5). the same set of facts describing
Endurall's relationship with Bell has been the subject
of two proceedings.
But, offering a difference in place of a distinction,
my colleagues say that Pevton Packing prohibits du-
plicative litigation of facts giving rise to violations of
separate sections of the statute, but does not prohibit
duplicative litigation of facts giving rise to separate
theories of liability. It need only be recalled that two
considerations underlay Pevion Packing, (1) sound
administrative practice, and (2) prevention of unnec-
essary harassment of respondents, both of which are
promoted by trying in a single proceeding all causes
of action against a respondent born out of a common
set of facts. The same considerations are present here,
and dictate that the allegations of the backpay speci-
fication which concern Endurall be dismissed.
2' 159 NLRB 1710. 1711 fn. (t966). enfd. in part 398 F.2d 640 (5th Cir.
1968). Accord, Truck Drivers, Oil Drivers, Filling Station and Platform Work-
ers Union. Local No. 705. et al. (Gasoline Retailers Association of Metropolitan
Chicago), 210 NLRB 210 (1974).
2 See, e.g., Jefferson Chemical Company, Inc.. 200 NLRB 992 (1972);
Union Electric Company, 219 NLRB 1081 (1975).
SUPPLEMENTAL DECISION
SIATEMENT OF THE CASF
ELBERT D. GADSDEN, Administrative Law Judge: Pursu-
ant to a Decision and Order of the National Labor Rela-
tions Board issued on June 30. 1976. in Case 30-CA-3220,
directing the Bell Company, Inc. and its agents. Richard
Balestreiri. and Paul Moskowitz, as receiver for the Bell
Company, Inc.. and Richard Balestreiri (sometimes spelled
Balislreiril. d/h/a Endurall Productls. Inc.. its successors or
assigns, herein called Respondent. to make whole nine iden-
tified discharged employees tir losses occasioned by Re-
spondent's untair labor praclices in iola;lion o Section
8(a)(I) and (3) oft the National l.abor Relatiols Acl. ;ts
;I rmended-.
()n November 15. 1977. the Linited State Court ofr Ap-
peals for the Seventh (ircuit entered judgment enorcing
the hackpay order of the Board.
A controvers) having arisen over the amolintl of hackpa\
due under the terms of the Board's ()rder. tli Resional
Director of the National Labor Relations Board Ior Region
30, issued this hackpay specification and notice of' hearing
on July 24. 1978. alleging the amniounl t i Ihe hackp;ly due
under the Board's Order.
By request of Respondent dated June 15. 1978. the hear-
ing was rescheduled for October 26. 1978, and on June 30.
1978. Respondent filed an answer del.'vng.' that it purchased
alld operates the business ;is hasically unchanged ram the
former operator, Bell: that E.ndurall, with notice of Bell's
unfair labor practices purchased and operates the husiness
ais tormerly operated by Bell: that Endurall is a successor to
Bell within the meaning of Board law and the Board's Or-
tier: that it is obligated as a successor to Bell. to remed 3 the
hbackpay Order for unlawful conduct committed by Bell.
and most particularly. the amounts of backpay owing to the
nine discharges ;is computed by the Board and set forth in
paragraphs 8 through 12 in the hackpay specifications and
notice of hearing.
A hearing in the above matter was held befbre me at
Milwaukee, Wisconsin, on October 26. 1978. Counsel for
the General Cousnel introduced an affidavit of service
(G.C. Exh. No. I(d)), as evidence that Respondent, the Bell
Company and Endurall Products, Inc.. were served with
notice of the hackpay specifications and notice of hearing
on June 13. 1978. Respondent, as above-named, made no
appearance in this proceeding. and counsel for the General
(ounsel introduced documentary evidence ((i.(C. xh. 2 a
c) that on July 27. 1978. Respondent had undergone an
assignment for the benefit of creditors and the appointment
of a receiver, that a receivership had been accepted: and
that a court order had appointed a receiver, in the person of
Floyd A. Harris, Esquire, upon whom and by whom, ser-
vice of a copy of the backpay specifications and notice of
hearing had been acknowledged (G.C. Exh. No. I(j)).
Upon motion by counsel for the General Counsel. the
backpay specifications and notice of hearing was amended
to allege that Floyd A. Harris, Esquire, as receiver for Re-
spondent, is a party in interest and therefor stands in the
shoes of Respondent.
The General Counsel also introduced a letter (G.C. Exh.
2(a)) as evidence that a letter from Respondent's attorney
Stanley S. Jaspan, also notified the Regional Director for
Region 30 and receiver Floyd A. Harris o the hearing
herein scheduled for October 26, 1978. The letter further
advised that Jaspan no longer represented Endurall Prod-
ucts, Inc.
Steven Abraham was employed by Respondent the Bell
Company, on and prior to June 1975. and was discharged
Name of Charging Parts amended at hearing
1)1( ISI()NS ()I NI)NAI I.AH()R RI.lAII()NS B()ARI)
from Bell in June of 1978. In the iourll quarte (of 1')75
Abraham testified thai he incurred expenses in the course tfI
seeking emplymnient which were docImunlnled in (;eer;al
('ounsel's xhhit 4. Such expenses inclutded mileage and
parking fees when he visited thle nemlployllIent compensa-
tion departmlent.
The General ('ounsel proceeded lo explain how the hack-
pay earnings foir dischargee Robert Ilafenilanl was ncoil-
puted in accordance with the Board's olirmlla for comput-
ing hackpay for the period Januar -March 1975. 1 ind that
the hackpay earnings of dischargee Robert lalcneman was
computed in accordance with the Board's foirmil; as ex-
plained by counsel for the General Counsel. Although Re-
spondent denied that the computations were correct, it did
not support its denial with any evidence or reasons for its
position, as it is required to do by Sections 102.54(b) (c)
and 102.57 of the Board's Rules and Regulations. C'ounsel
for the General Counsel further represented that the earn-
ing computations for all of the other eight dischargees were
prepared in accordance with the same reasonable formula
established by the Board for computing backpay earnings,
as was utilized in computing the earnings in Robert Ilafe-
man's case.
The General ('ounsel further explained that the earnings
records used to compute the backpay owing to Steven
Abraham and David Feller are both records of the EIm-
ployer Bell and Endurall, as opposed to social security rec-
ords. However, in computing the backpay earnings of' the
other dischargees the actual earnings records of said em-
ployees were used, except for dischargee Hanrahan, fr
which counsel for the General Counsel moved to amend the
computation for the fourth quarter of 1975, during which
period Hanrahan was unable to work, and which correctly
requires a reduction in the alleged backpay for $3,133.24 by
$2,124.63. which when carried through the entire formula
for computing backpay, results in a corrected backpay
owing to Hanrahan of $615.77.
Argument
Counsel for the General Counsel argues that Endurall is
a Perma Vinyl-Golden State successor who is obligated to
remedy the unfair labor practices of the predecessor, the
Bell Company. He cites in support of this contention the
court's decision, as well as the Board's underlying Decision,
which found that the operation of Endurall utilized the
same equipment, same customers, same suppliers, and was
substantially the same enterprise, as found by the Adminis-
trative Law Judge and affirmed by the Board in The Bell
Company, Inc., 225 NLRB 474 (1976).
The General Counsel further contends that the Board's
Decision, was undisturbed by the court's decision that
Richard Balistreiri was the president of the Bell Company
and had distributed the discharge letters to the employees;
that he thereafter became the founder of Endurall; that
Respondent in its answer acknowledges that Balistreiri was
both the president of Bell Company and the sole proprietor
and/or president of the successor, Endurall. Consequently,
the General Counsel contends Balistreiri's knowledge and
participation in the unfair labor practices found by the
Board, are actual, and are imputed to the successor, Endur-
all.
the (icnieral Counsel also conltends that while such
knowledge by Balistreiri did not constitute knowledge of
tile filing of the complaint, it nevertheless did constitute
knowledge of the unfair labor practices which costNilitaes
sullicient knowledge. In support of its position he cites
.Stulih'lcrt lt:''e/lole ('. I. & .S'oteiellrtl E spandve/-
tpe, Inc. 206 NI.RB 933(1973). particularly pages 951-954:
at d -lstLi/' i- n'e1ing Home, a' , Jim. 11. Prt(,
.e vce. 188 NlRB 235 (1971).
Finally. the General (Counsel explained that , dcse ,iot
t'eeA liill O ui, i'.il Elndlurall flir the unflir labor practices
committed hby Bell because that issue was resolved by the
Seventh (Circuit Court of Appeals. ilowever, to establish
under the theory and reasons of (ol/den SliI andl Perill
l'iirll. pr)lo. Endurall must remedy the unfair labor prac-
tices to the extent that it can, in order to avoid or prevent
effectuating the public interest of the polcies by pervading
the Act.
In the Bell Cn('Ollnpav. Inc. 225 NI.RB 474, the Adminis-
trative l.aw Judge, as affirmed by the Board. lound that
[Endurall utilized some if not most all of' Bell's equipment,
purchased sonic of its supplies, completed some of its con-
tracted work, and hired a minority of Bell's employees. By
these acts, the Board held that Endurall was the alter ego of'
Bell, aid as such. is obligated to remedy all of the unfair
labor practices committed by Bell. and to honor the union
contract which was in effect at the time Bell terminated its
employees and closed its business operation. 'The Board fur-
ther found that the new business (Endurall) herein is merely
a disquised continuance of the old (Bell) business, which
makes it an alter ego of the former enterprise (Bell),
thereby, rendering ndurall bound by the contract entered
into by its predecessor.
Conclusions
It is particularly observed that neither the Administrative
l.aw Judge nor the Board in affirming. specifically found
that Endurall was in fact a successor of Bell, which accord-
ing to the Board's description of criteria for a successor,
"results from a bona fide arm's length sale or transfer be-
tween two totally separate principles engaged in the same
employing enterprise, wherein the new enterprise employs a
majority of the employees of its predecessor."
Unlike counsel for the General Counsel contends, Re-
spondent did not admit in its answer in the Bell case that
Balistreiri was the sole proprietor of Endurall. However,
Respondent Bell did admit in its answer that Richard Bali-
streiri was president, treasurer, and director of Endurall,
and was a supervisor within the meaning of the Act and an
agent acting on behalf of Endurall. Moreover, the United
Court of Appeals for the Seventh Circuit, held that al-
though Balistreiri was an officer and an agent of Endurall,
such positions did not constitute ownership of Endurall by
Balistreiri who served at the pleasure of the owners of Bell
and could be terminated by them at any time. Conse-
quently, Balistreiri was not in control of Bell and the evi-
dence does not show that any of the prior owners of Bell
owned, controlled, or benefited from the operation of
Endurall. The Court said it found no authority to support a
finding that Endurall is an alter ego of Bell under the cir-
cumstances established.
982
TIlE BELl. COMPANY. INC.
The (Court stated that: "If there is a bona fide discontinu-
ance and true change in ownership. the new company is
under neither remedial obligation by virtue of an NLRB
order directed at its predecessor nor is the new company
subject to the old collective bargaining contract." Soutlhport
Petroleum Comnpany v. N.L. RB., 315 U.S. 100, 106 (1942):
N.L.R.B. v. Williams J. Burns International Securitl Ser-
vices Inc.. 406. U.S. 272 (1972): and Howard Johnson Co.
Inc. v. Hotel Emplovees. 417 U.S. 249. 259. Fn. 5 (1974).
The court went on to point out that the cases relied upon by
the Board have a common element. the continued control
or ownership of the new business by the owners of the old
company. The Court granted enforcement of the Board's
Order against Bell, Richard Balistreiri as agent for Bell. and
Paul Moskowitz as receiver for Bell, but it denied enforce-
ment of the Order against Richard Balistreiri, doing businss
as Endurall Products, Inc.
Since the continuity in ownership in the Bell case was not
litigated and established, and is not an issue before me. I
agree with counsel for the General Cousenl when he stated
that liability against Endurall is precluded by the above-
cited court decision. However, the General ('ounsel never-
theless argues that it seeks to establish under theory and
reasons of Golden Sate Bottling Co. Inc. v. N.L. R.B., 414
U.S. 168 (1973) and Perma V'inYl Corporation, 164 NLRB
968 (1967). that Endurall must remedy the unfair labor
practices to the extent that it can, in order to protect the
public interest and avoid the policies of the Act being per-
vaded.
However, a reading of Golden State Bottling Co. Inc.
supra, readily reveals that the Court was referring to a bona
fide successor. In fact, in that case, both the predecessor
and the successor remained in business, and the Court or-
dered both firms jointly or separately to award backpay to
the discriminatee involved. In the current case, the evidence
is clear that the Bell Company terminated business opera-
tions and it was not established that any of the new owner-
ship of Endurall were previous owners of Bell. Hence, it
would seem clear that Richard Balistreiri. d/b/a Endurall.
cannot be held liable for backpay resulting from unfair la-
bor practices by Bell. under either the theory or the reasons
enunciated in Golden Slate or Perma Vinyl, supra, since in
each of the aforecited cases, the common element of owner-
ship prevailed in both the old and the new business con-
cerns.
Counsel for the General Counsel also cites Soulheastern
Envelope Company. 206 NLRB 933 (1973), in support of its
position that Endurall should be liable to some extent for
the backpay owing to the unlawfully discharged employees.
However, my reading of this case clearly conveys that the
Board concluded that Southeastern Envelope of Georgia
(successor) was in fact a successor to Southeastern Enve-
lope Company, Inc. & Southeastern Expandvelope. Inc..
the latter of which, committed the unlawful discharges and
subsequently started doing business as Diversified. By con-
cluding that Southeastern Envelope of Georgia was a suc-
cessorship the Board must have found a common element
of ownership of the successor as well as the predecessor. In
other words, being the successor of its predecessors. South-
eastern Envelope Company of Georgia was correctly held
liable for backpay to the discriminatorily discharged em-
ployees of its predecessor. This significant factual finding
distinguishes Southeastern l:nvelope ('omppan from the
emergence of Richard Balistreiri d/bh/a Endurall, since
Balistreiri was not shown to be the owner of Endurall but
rather an employee of the latter.
The evidence clearly established that Balistreiri wa an
employee of- the predecessor Bell. C(onsequentl as the
General Counsel stated, after its herein-before described ar-
gument. that the issue of the liability of Endurall was re-
solved b the Seventh Circuit (Court of Appeals. Hence. I
find that the law of the case confines the lihilit for back-
pay to the discriminatees to the Bell (omipansn . Richard
Balistreiri as agent for Bell. and Paynl Moskos I as receiver
for Bell.
Appendix A to the complaint herein established that the
total net backpay owing to the several unlawfulls dis-
charged employees is as follows:
Steven Abraham
David Feller
John lafeman
Robert Hanrahan
John Herman
tHenry Lauscher
Raymond Luchzkowski
George Schmidt
Garry Schroeder
$6,237.71
7.402.96
1.302.66
(corrected) 615.77
873.0
4.989.28
4,529.84
1.261.56
2.977.15
Based on the foregoing credited evidence of' record, I
thereupon conclude and find that the proper amount of
backpay owing to the nine discharges herein before named
is the amount set opposite their respective names, plus in-
terest computed in accordance with the Board's formula in
backpay cases.)
Not only did Respondent not appear in this proceeding
and present evidence to support its position, but the Union
presented undisputed evidence that the dischargees were
entitled to the amounts of backpay herein found.
Upon the foregoing findings of fact and conclusions of
Law, upon the entire record, and pursuant to Section IO(c)
of the Act I hereby issue the flloving recommended:
OR[)ER'
Pursuant to Section IO(c) of the National Labor Rela-
tions Act, as amended, the Respondent. The Bell Company.
Balistreiri as agent for Bell. and Paul Moskowitz as receiver
for Bell. of Brookfield. Wisconsin. their officers, agents. suc-
cessors, and assigns. shall pay to the dischargees above-
named, the amount of hbackpay set opposite their respective
names, together with interest as computed in accordance
with the formula prescribed in the Florida Soel (orpora-
lion, supra. case. until all indebtedness has been discharged.
2 Flrrda Steel (rporariton. 231 NL.RB 651 (1977)
In the event no excepilons are filed as proslded h Sec 02.46 oi the
Rule, and Regulations of Ihe National L.abor Reltllons Board findings. con-
clusions, and Recommended Order herein shall. s provs ided n Sec 102.48 ol
the Rules and Regulations. he adopted by the Board and become its findings.
conclusions. nd Order. and all objections there to shall he deemed .alved
for a.ll purposes
983