Rogers Cleaning Contractors, Inc. And Its Alter Ego, Olmsted Cleaning Contractors, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1985

277 N.L.R.B. 482 (N.L.R.B. 1985)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogers Cleaning Contractors , Inc. and its alter ego,
Olmsted Cleaning Contractors , Inc. and Service,
Hospital, Nursing Home and Public Employees
Union, Local 47, affiliated with Service Employ-
ees International Union, AFL-CIO-CLC. Cases
8-CA-15104-2 and 8-CA-15104-3
15 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 8 September 1983 Administrative Law Judge
William A. Pope II issued the attached decision.
The Respondent filed exceptions and a supporting
brief, to which the General Counsel filed an an-
swering brief, and the Charging Party filed cross-
exceptions and a supporting brief to which the Re-
spondent filed a brief in reply.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Rogers Cleaning Contractors, Inc. and
its alter ego, Olmstead Cleaning Contractors, Inc.,
Olmstead Falls, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(g).
"(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(f) and re-
letter the subsequent paragraphs.
"(1) Expunge from its files any reference to the
discriminatory terminations of Judy Thompson,
2 We shall modify the recommended Order by incorporating a provi-
sion requiring the Respondent to remove from its files any reference to
the unlawful terminations of employees Thompson, Murphy, and Gulan
and to notify them in writing that it has done so and that evidence of
their unlawful terminations will not be used as a basis for future person-
nel actions against them See Sterling Sugars, 261 NLRB 472 (1982)
We do not find that the Respondent has been shown to have a procliv-
ity to violate the Act or a general disregard for the employees' funda-
mental statutory rights as to warrant a broad cease-and-desist order as
recommended by the judge. Hickmott Foods, 242 NLRB 1357 (1979)
Consequently, we shall substitute a narrow cease-and-desist order for the
broad injunctive language he recommended
Laura Murphy, and Ann Gulan, and notify them in
writing that this has been done and that evidence
of their unlawful terminations will not be used as a
basis for future personnel actions against them."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain with Service,
Hospital, Nursing Home and Public Employees
Union, Local 47, affiliated with Service Employees
International Union, AFL-CIO-CLC as the exclu-
sive bargaining representative for collective-bar-
gaining purposes of our employees in the appropri-
ate unit set forth in the collective-bargaining agree-
ment in effect between ourselves and the Union
since 1 May 1978.
WE WILL NOT bypass the Union as the exclusive
bargaining representative of our employees, as set
forth above, by negotiating directly with them con-
cerning rates of pay and other terms and conditions
of employment.
WE WILL NOT threaten or discharge employees
because of their union activities and sympathies or
because they joined, supported, or assisted a union
and engaged in concerted activities for the pur-
poses of collective bargaining and other mutual aid
or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and bargain with the Union
by acknowledging that we are bound by the collec-
tive-bargaining agreement referred to above.
277 NLRB No. 53
ROGERS CLEANING CONTRACTORS
WE WILL honor, implement, and apply the exist-
ing collective-bargaining agreement referred to
above.
WE WILL make all required contributions to the
Union's health and welfare fund, and pension fund
as required by the collective-bargaining agreement.
WE WILL make our employees whole for any
and all loss of wages and benefits they may have
suffered as the result of our unfair labor practices,
with interest.
WE WILL offer immediate reinstatement, if not
already provided, to Judy Thompson, Laura
Murphy, and Ann Gulan, to their former positions
or, if those positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges, and WE
WILL make them whole for any loss of pay they
may have suffered by reason of our unlawful termi-
nation of their employment, with interest.
'WE WILL notify each of them that we have re-
moved from our files any reference to her termina-
tion and that the termination will not be used
against her in any way.
ROGERS CLEANING CONTRACTORS,
INC. AND ITS ALTER EGO, OLMSTED
CLEANING CONTRACTORS, INC.
Allen Binstock, Esq, for the General Counsel.
Peter H. Hessler, Esq. and David Hessler, Esq., of Brecks-
ville, Ohio, for the Respondent.
Steven Potter, Esq. and Melvin Schwarzwald, Esq., of
Cleveland, Ohio, for the Charging Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
consolidated complaint dated April 28, 1982, the General
Counsel of the National Labor Relations Board alleged
that the Respondents , Rogers Cleaning Contractors, Inc.,
and its alter ego, Olmsted Cleaning Contractors, Inc.,
committed unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act
by threatening to discharge and by discharging employ-
ees because of union activities and/or sympathies, by by-
passing the Union and dealing directly with their em-
ployees, and by unilaterally changing terms and condi-
tions of employment and failing to make payments to the
Union's health and welfare fund and pension fund. The
unfair labor practice charge in Case 8-CA-15104-2 was
filed by the Charging Party on August 20, 1981; the
unfair labor practice charge in Case 8-CA -15104-3 was
filed on August 28, 1981. Trial was held from November
1 through 4, 1982, in Cleveland, Ohio, before me.
I. BACKGROUND
A. Stipulated Facts
The following facts were stipulated by the parties:
483
(1) At all times material, Rogers Cleaning Contractors,
Inc. was an employer engaged in commerce, within the
meaning of Section 2(6) and (7) of the Act. Rogers
ceased business operations on July 10, 1981.
(2) Olmsted Cleaning Contractors, Inc. annually, in the
course and conduct of its business, provides services
valued in excess of $50,000 to the Davy McKee Corpo-
ration, which is directly engaged in interstate commerce.
(3) At all times material through July 10, 1981, except
as otherwise noted, the following named individuals oc-
cupied the positions as set forth after their names and
were agents of Respondent Rogers acting in its behalf,
and were supervisors within the meaning of Section
2(11) of the Act: Richard Rogers, president; Debra
Rogers, secretary (until April 10, 1981); Trudy Rogers,
vice president (until April 10, 1981); Mark Matjasic, op-
erations manager; Bob Smith, supervisor; and Esther
Ellis, foreman.
(4) At all times material from July 13, 1981, except as
otherwise noted, the following named individuals occu-
pied the positions set forth after their names , and have
been and are now agents of Respondent Olmsted acting
in its behalf, and are supervisors within the meaning of
Section 2(11) of the Act: Debra Rogers, president and
treasurer; Trudy Rogers, vice president and secretary;
Richard Rogers, consultant (until March 1982); Mark
Matjasic, supervisor; Bob Smith, supervisor (until April
1982); and Esther Ellis, supervisor (until February 1982).
(5) About August 13, 1981, Respondent Olmsted rec-
ognized the Charging Party as the exclusive representa-
tive for the purpose of collective bargaining for its non-
supervisory cleaning employees.'
(6) Respondent Rogers was a party to a collective-bar-
gaining agreement with the Charging Party, which ex-
pired on April 30, 1981.
(7) In May and/or June 1981, Respondent Rogers en-
gaged in negotiations with the Charging Party in order
to arrive at a new collective-bargaining agreement be-
tween the parties. No agreement was reached.
(8) Rogers Cleaning Contractors, Inc. was incorporat-
ed in the State of Ohio about July 5, 1966, for the pur-
pose of providing cleaning services. Richard Rogers has
been its president from its inception until the present
time. From approximately March 14, 1980, until April
10, 1981, the shares of Rogers were owned as follows:
Richard Rogers, 2625; Julia Rogers, his wife, 1275;
Debra Rogers, his daughter, 750; and, Trudy Rogers, his
daughter, 750. Kerry Mueller and Harvey Biefelt ceased
to be shareholders in March 1980.
From at least January 1980, until April 10, 1981,
Debra Rogers was secretary of Respondent Rogers, and
Trudy Rogers was its vice president. From approximate-
ly March 14, 1980, until May 30, 1981, the board of di-
,
The parties stipulated that the following employees of Respondent
Olmsted constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Sec. 9(b) of the Act.
All employees engaged in janitorial work, excluding office employ-
ees and supervisors as defined in the Labor Management Act of
1947, as amended, and also excluding any such employee working 15
hours or less in an account where only one employee is engaged if
such account is not owned or operated by an entity which operates
in more then one location serviced by the employer
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rectors of Respondent Rogers was composed of Richard
Rogers , Julia Rogers , Debra Rogers , and Trudy Rogers.
After April 1981, Richard and Julia Rogers were the
sole shareholders and officers of Respondent Rogers.
After May 30, 1981 , Richard Rogers'was the sole direc-
tor.
(9) Olmsted Cleaning Contractors , Inc. was incorpo-
rated in the State of Ohio on July 6, 1981, for the pur-
pose of providing cleaning services . At its inception, Re-
spondent Olmsted issued 500 shares of common stock at
a face value of $100 per share, which were equally divid-
ed between Debra Rogers and Trudy Rogers. Debra
Rogers was and is the president and treasurer of Re-
spondent Olmsted, and Trudy Rogers was and is its vice
president and secretary. Debra and Trudy Rogers were
and are the sole members of the board of directors of
Respondent Olmsted.
(10) Until the time it ceased its business operations, the
offices of Respondent Rogers were located at 8660 Co-
lumbia Road, Olmsted Falls, Ohio. Since at least July 13,
1981, the offices of Respondent Olmsted have been locat-
ed at the same address. Respondent Olmsted is the sole
occupant of the building at 8660 Columbia Road, Olmst-
ed Falls, Ohio. The building is owned by Julia Rogers,
who owned it at the time it was occupied by Respondent
Rogers.
B. Background
Until financial difficulties forced it out of business in
July 1981, and eventually into bankruptcy,2 Rogers
Cleaning Contractors , Inc., was engaged in providing
contractual janitorial and cleaning services to customers
in the Greater Cleveland, Ohio area. The janitorial and
cleaning services which Respondent Rogers provided, in-
volving mainly the cleaning of office buildings, were per-
formed by hourly workers, most of whom, it appears,
were women. From May 1, 1978, until Respondent
Rogers went out of business, the exclusive representative
of its nonsupervisory cleaning employes for collective-
bargaining purposes was the Charging Party , Hospital,
Nursing Home and Public Employees, Local 47, affili-
ated with Service Employees International Union, AFL-
CIO-CLC.3
Rogers Cleaning Contractors was a family business
owned and operated by Richard Rogers, its president
and chief executive officer, his wife, Julia, and his two
daughters, Debra and Trudy Rogers, who worked for
the Company in clerical capacities and, until April 1981,
held the corporate offices of secretary and vice presi-
dent, respectively.4 Prior to changes in corporate struc-
2 Rogers Cleaning Contractors, Inc. filed for bankruptcy on November
20, 1981
3 Respondent Rogers and Local 47 were parties to a collective-bar-
gaining agreement covering the period from May 1, 1978, through April
30, 1981
4 Both Debra and Trudy Rogers were employed by Rogers Cleaning
Contractors as clerical workers in its offices at 8660 Columbia Road,
Olmsted Falls , Ohio. As of 1981, Debra Rogers had worked for Respond-
ent Rogers for 13 years and her sister, Trudy Rogers, had worked for the
Company for 11 years There is nothing in the record indicating that
their mother, Julia Rogers , took an active role in the management of the
business
ture brought about by financial reverses in early 1981,
the' four members of the Rogers family constituted Re-
spondent Rogers' board of directors, and were its corpo-
rate officers and the sole stockholders in the corpora-
tion.5
Although its business had been unprofitable for several
years, in early 1981 the financial position of Rogers
Cleaning Contractors worsened to the point that in Feb-
ruary 1981 its line of bank credit was cut off. Then, by
final notice, dated March 27, 1981, the Internal Revenue
Service gave Respondent Rogers 10 days to pay a tax li-
ability of over $25,000, or face enforcement action.
Fearing that they might be held liable for the Compa-
ny's Federal tax liability, Debra and Trudy Rogers re-
signed as officers of the corporation on April 10, 1981,
and returned their corporate stock.6 For the same
reason, on May 30, 1981 , Debra and Trudy Rogers re-
signed as directors of the corporation, and their mother,
Julia Rogers, resigned as both an officer and a director.
After May 30, 1981, Richard Rogers was the sole officer
and director of Respondent Rogers.
Because of his Company's financial problems, in the
spring of 1981, Richard Rogers testified he considered
closing his cleaning business and moving to Tennessee,7
but instead, he decided to keep the cleaning business in
operation as long as possible. Motivated, it appears,
mainly by the uncertain future prospects of Rogers
Cleaning Contractors, Debra and Trudy Rogers began
making plans to open their own cleaning business, using
the name "Olmsted Cleaning Contractors." However, by
June 1981, their venture had not progressed beyond the
preliminary planning stage."
Richard Rogers failed to resolve Rogers Cleaning
Contractors' tax liability, and on June 4, 1981, the Inter-
nal Revenue Service filed a tax lien on all of Rogers
Cleaning Contractors' property and rights to property.9
Subsequently, in late June and early July 1981, the Inter-
nal Revenue Service levied upon Respondent Rogers'
bank accounts and money due to it from at least three of
its customers. 1 °
At that point, Rogers Cleaning Contractors was, for
all practical purposes , unable to carry on in business. It
lacked the funds to meet its payroll for the last week of
June, and the liens and levies by the Internal Revenue
5 There were at least two other nonfamily member stockholders in the
past, but the parties stipulated that these two individuals, identified as
Kerry Mueller and Harvey Bielfelt, ceased to be stockholders in March
1980
a At the time of their resignation as secretary and vice president, re-
spectively, of the corporation , Debra and Trudy Rogers each owned ap-
proximately 14 percent of the corporation's stock . They did not receive
anything of value for the return of their shares of stock to the corpora-
tion.
7 Richard Rogers testified that a year later, in March 1982, he and his
wife actually did move to Tennessee , where he owns a mobile home park
and campground.
3 Debra Rogers testified that she applied for "my workmen 's comp "
in April, opened a bank account in the name of Olmsted Cleaning Con-
tractors in April or May 1981, and ordered letterhead stationery in May
or June
9 The amount of the lien was $25,570 64.
io Notices of Levy were issued to BancOhio National Bank on June
26, 1981 , and to American Airlines, Air Canada, and Midway Airlines on
July 1, 1981
ROGERS CLEANING CONTRACTORS
Service effectively precluded any realistic possibility that
the company could raise additional cash to remain in
business. The principal assets of Rogers Cleaning Con-
tractors, consisting of its equipment and supplies, and
business goodwill and its customers, therefore, were of
no value, unless some means could be found to continue
in the business of providing service to its customers.
The method chosen by Richard Rogers to salvage
what he could from Rogers Cleaning Contractors was to
set up a new business to take over as many of his old
customers as possible. The vehicle chosen for this pur-
pose by Richard Rogers and his daughters, Debra and
Trudy, who, like their father, would be left without
work and income by the failure of Rogers Cleaning Con-
tractors, was the daughters' nascent cleaning business,
Olmsted Cleaning Contractors, which at that point was
actually little more than an idea. Richard Rogers and his
daughters worked quickly, however, and it did not take
long before Olmsted took on form and substance, as
well.
Five days later, on July 6, 1981, Olmsted Cleaning
Contractors, Inc. was incorporated. Its stockholders
were Debra and Trudy Rogers, who each owned 250
shares, or 50 percent, of the corporation's stock. The
next day, July 7, 1981, Respondent Olmsted entered into
an agreement with Respondent Rogers to purchase the
latter's equipment, cleaning supplies, and vehicles.1'
Under the terms of the agreement, Respondent Olmsted
promised to pay $2984.68 and to assume Respondent
Rogers' outstanding obligations to $ancOhio in an
amount not exceeding $16,000.12
Meanwhile, during the week of July 6, 1981, Richard
Rogers visited most, if not all, his customers and solicit-
ed their business for Olmsted Cleaning Contractors.
Roger's offered terms and services by Olmsted which
were approximately the same as offered by Rogers
Cleaning Contractors. As a result of Richard Rogers' ef-
forts, most of Respondent Rogers' customers agreed to
transfer their business to Respondent Olmsted.13
Also, during the week of July 6, Richard Rogers and
other supervisory employees of Respondent Rogers vis-
ited all of the Rogers Cleaning Contractors jobsites and
notified all of Respondent Rogers' employees that the
Company was going out of business. The employees
were given Olmsted Cleaning Contractors job applica-
tions, which they were told to submit if they wanted
jobs, and were told that Olmsted would be nonunion and
would pay lower wages and not offer the benefits which
the employees had received under the collective-bargain-
ing agreement between Respondent Rogers and Local
47,14
II The agreement was signed by Debra Rogers, as president of Re-
spondent Olmsted, and Richard Rogers, as president of Respondent
Rogers.
12 Richard Rogers set the value of the equipment, supplies, and vehi-
cles included in the agreement . There was no independent appraisal.
's Richard Rogers testified that initially all but one of Respondent
Rogers' former major customers agreed to transfer their business to Re-
spondent Olmsted.
14 The employees were told their pay would be lowered from $5.16
per hour to $5 per hour, and there would be no benefits
485
The result of the preparations by Richard Rogers and
his daughter was the orderly phasing out of Rogers
Cleaning Contractors and the transferral of its assets and
most of its customers to Olmsted Cleaning Contractors,
which opened for business on July 13, 1981, without any
break or interruption in service to the customers. On its
first day in business, Olmsted Cleaning Contractors es-
sentially provided the same service to the same custom-
ers,15 at the same price as had been charged by Rogers
Cleaning Contractors, using the same employees,16 su-
pervisors,17 equipment, and offices.'s
Richard Rogers was not a stockholder, officer, or di-
rector of the new business,19 but he was carried on its
payroll as a part-time consultant,20 at a salary of $350
per week.21 In addition to soliciting new business for
Olmsted and handling customer contacts,22 Richard
Rogers gave directions to Olmsted's supervisors,23 was
involved in employee discipline,24 and acted as Olmst-
ed's operations manager for a 2-week period of time in
August 1981.25
Even though Rogers Cleaning Contractors was unable
to meet its payroll after June 21, 1981, its employees con-
tinued working for the Company until it went out of
business about July 10, 1981, after which most of them
15 According to Richard Rogers, all 15 of Olmsted's customers on
July 13, 1981, were former customers of Rogers Cleaning Contractors.
Debra Rogers, on the other hand, testified that Olmsted started with 13
customers, of which 9 were former customers of Rogers Cleaning Con-
tractors
is Only two of Olmsted's employees on July 13, 1981, were not former
employees of Rogers Cleaning Contractors Nine of Respondent Rogers
employees did not apply for jobs with Olmsted, and three former Rogers'
employees who did apply were not hired-Ann Gulan, Judy Thompson,
and Laura Murphy. The former Rogers employees hired by Olmsted kept
the same work hours and same job assignments.
17 Although job titles changed, the parties stipulated the supervisors
were the same.
is The parties stipulated that both Rogers and Olmsted occupied of-
fices at 8660 Columbia Road, Olmsted Falls, Ohio, in a building owned
by Julia Rogers Although Rogers Cleaning Contractors occupied the
space until July 10, 1981, when it went out of business, the entire rent for
the month of July was paid by Olmsted.
19 Olmsted Cleaning Contractors' sole stockholders, officers, and di-
rectors were Debra and Trudy Rogers, who held concurrently the offices
of president and treasurer, and vice president and secretary, respectively.
20 Richard Rogers described himself as a "troubleshooter" for his
daughters. In reality, however, it is apparent from the record that he ex-
ercised overall managerial supervision of the business and provided the
continuity of management and business experience needed to keep the
business going until his daughters gained enough knowledge and experi-
ence of their own to carry on alone.
21 Richard Rogers' salary was substantially greater than that paid by
Olmsted to anyone else, including its owners (Debra and Trudy Rogers
drew $250 per week , each) and other supervisors . Richard Rogers appar-
ently continued to draw this salary from Olmsted until he moved to Ten-
nessee in March 1982, although, by his own admission , as time passed he
devoted less of his time to Olmsted 's business.
22 Olmsted's advertisement in the telephone directory yellow pages re-
quests callers to ask for "Dick Rogers," and makes the claim of "Quality
Cleaning for Over 36 years."
23 Lillian Previts, an Olmsted employee called as a witness by the
General Counsel, testified that some time after Olmsted started , Esther
Ellis, her supervisor, indicated she received orders from Dick Rogers.
24 Francine Rowe, a former employee of Olmsted and a former em-
ployee of Rogers Cleaning Contractors, testified that soon after Olmsted
started in business , she was fired by Richard Rogers
25 Richard Rogers acknowledged that he acted as Olmsted 's operations
manager for 2 weeks in August and September 1981, while the regular
operations manager was on vacation
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to work for Olmsted Cleaning Contractors, Shortly
after Olmsted began operations, Debra and Trudy
Rogers, reportedly using their personal funds, paid the
wages due to the former Rogers employees for their
work for Rogers during the period from June 21 through
July 10, 1981.26
Prior to expiration of the collective-bargaining agree-
ment between Local 47 and Rogers Cleaning Contrac-
tors on April 30, 1981, negotiations on a new multiem-
ployer contract began between the Union and the Con-
tractors Multi-Employer Bargaining Group, of which
Rogers Cleaning Contractors was then a member.27
Finding himself in disagreement with other members of
the bargaining group over strategy, however, Rogers
withdrew Rogers Cleaning Contractors from the bar-
gaining group , effective April 30, 1981. By letter of May
1, 1981, the bargaining group's representative informed
the president of Local 47 of the withdrawal of Rogers
Cleaning Contractors from the bargaining group.
After April 30, 1981,28 Richard Rogers participated in
several separate bargaining sessions with Local 47's rep-
resentatives, during which he declined to agree to some
of the contract provisions already negotiated by the
Union and the bargaining group . Instead, citing financial
losses,29 Rogers requested concessions from the Union
concerning pay, benefits, and working conditions. The
Union refused to accept terms less favorable than con-
tained in the contract it had negotiated with Contractors
Multi-Employer Bargaining Group, and even though
there apparently was agreement between Rogers Clean-
ing Contractors and Local 47 on all except five or six
provisions, the June 23, 1981 bargaining session, which
proved to be the last meeting between the two parties,
ended without agreement on a contract. Although the
June 23 meeting also ended without a specific date being
set for further discussions, there is no doubt that the par-
ties contemplated further bargaining sessions.30 The
Union apparently made no request for another meeting
between June 23 and July 10, 1981, when Rogers Clean-
ing Contractors went out of business; but, neither did
Rogers Cleaning Contractors give notice to the Union in
the interim that it was going out of business.31
26 The employees were paid in cash for 1 week , and by checks drawn
on the bank account of Olmsted for the other According to Richard
Rogers, the entire obligation was approximately $8000
27 Richard Rogers testified that he attended three bargaining sessions
prior to April 30, 1981.
28 Rogers Cleaning Contractors continued to observe the terms of the
expired collective-bargaining agreement after April 30, 1981, except for
the provisions requiring it to make periodic payments to Local 47's
health and welfare and pension funds.
29 According to a June 5 , 1981 letter from Richard Rogers and his at-
torney, Peter A. Hessler, addressed to Local 47, Rogers Cleaning Con-
tractors had suffered net losses of approximately $48,000 in 1979 , $29,000
in 1980, and $8000 in the first quarter of 1981.
30 Richard Rogers testified that at the end of the June 23 meeting, he
"told Joe [Joseph Murphy, the president of Local 47] to contact David
[David Hessler, Rogers' attorney] at any time he wanted to set up the
next meeting.
31 Nor, for that matter , did Olmsted give the Union notice it was start-
ing in business But, the Union was not entirely in the dark as to the
changes taking place ; Rogers' union employees were told of the pending
closing of Rogers Cleaning Contractors and starting up of Olmsted
Cleaning Contractors , and there is evidence in the record of a union
meeting on the subject which was held on July 13, 1981
Some time in July 1981, Local 47 initiated contact
with Olmsted Cleaning Contractors concerning the
wages owed to the former Rogers employees,32 and to
ascertain if Olmsted Cleaning Contractors would sign a
contract with the Union. Initially, Debra Rogers, speak-
ing for Olmsted, took the position that Olmsted would
not then enter into a union contract. Subseqently, how-
ever, on August 13, 1981, Olmsted and Local 47 entered
into a recognition agreement, ' under which Olmsted rec-
ognized Local 47 as the exclusive collective-bargaining
agent for its janitorial employees , 33 and agreed to begin
negotiations on a new collective-bargaining agreement
on August 18, 1981. The negotiating session took place,
as agreed , but no agreement on a contract was reached,
and there were no further bargaining sessions between
the parties.34
Debra Rogers, testifying as president of Olmsted, ac-
knowledged that Olmsted has never made any payments
to Local 47's health and welfare and pension funds.35
II. ISSUES
The issues raised by the complaint and evidence in this
case can be summarized as follows:
(1) Are Rogers Cleaining Contractors , Inc., and Olmst-
ed Cleaning Contractors , Inc. (together referred to as the
Respondent), alter egos and a single employer within the
meaning of the Act?
(2) Did Respondent violate Section 8 (a)(1), (3), and (5)
of the Act by:
(a) About the last week of April 1981, acting , through
its agent and supervisor , Richard Rogers , during a tele-
phone conversation, threaten its employee, Laura
Murphy, because of her union activities and/or sympa-
thies?
(b) About July 13, 1981, terminating the employment
of its employees, Laura Murphy and Ann Gulan , and re-
fusing thereafter to reinstate them, because they had
joined, supported , or assisted a union and engaged in
32 As previously noted, Debra and Trudy Rogers and Olmsted Clean-
ing Contractors paid the former employees of Rogers Cleaning Contrac-
tors the wages they were due for the last 2 weeks during which Rogers
Cleaning Contractors was in operation.
33 The recognition agreement states that Olmsted Cleaning Contrac-
tors began operations about July 1, 1981 , performing the same cleaning
work previously performed by Rogers Cleaning Contractors for some of
the same customers, and that a majority of the initial employees of Ol fist-
ed Cleaning Contractors were former employees of Rogers ' Cleaning
Contractors. The recognition agreement covers all of Olmsted Cleaning
Contractors' employees engaged in janitorial work, excluding office em-
ployees and supervisors , and also excluding employees working 15 hours
or less where only one employee is engaged in performing cleaning work
for a customer which has only one location
34 It does not appear that Local 47 requested further bargaining ses-
sions after August 18, 1981 Instead, the Union initiated proceedings
under the National Labor Relations Act by filing an unfair labor practice
charge against Olmsted Cleaning Contractors on August 20, 1981, alleg-
ing refusal by the employer to hire Ann Gullan, Judy Thompson, and
Laura Murphy because of their activities on behalf of the Union. In a
second charge , filed on August 28, 1981 , the Union alleged that Olmsted
Cleaning Contractors had failed to bargain in good faith with Local 47
3s The parties stipulated that Rogers Cleaning Contractors owes to the
trustees of Local 47's health and welfare and pension funds a sum of
money representing contributions and assessments which it failed to pay
to the various funds during the period from October 1, 1979, through
June 30, 1981
ROGERS CLEANING CONTRACTORS
concerted activities for the purpose of collective bargain-
ing and other mutual aid or protection?
(c) About July 10, 1981, acting through its agent and
supervisor, Bob Smith, bypass the Union (Local 47) and
deal directly with employees represented by the Union,
and inform the employees that they would have to
accept reduced wages and loss of benefits as a condition
of continued employment?
(d) About July 10, 1981, or shortly thereafter, the
e Kact date being unknown, unilaterally changing wage
rates by reducing hourly wage rates of its employees for
whom the Union was the duly recognized and designat-
ed collective-bargaining representative?
(e) About July 10, 1981, the exact date being un-
known, and since that time,36 unilaterally failing and re-
fusing to make payment to the Union's health and wel-
fare fund and pension funds?
(f) About July 13, 1981, unilaterally changing the ap-
plication of its rule for reporting off work, so that the
rule became more onerous for employment?
(g) About July 13, 1981, terminating the employment
of its employee, Judy Thompson, for an offense which
prior to its unilateral change of its rule for reporting off
work would not have resulted in disciplinary action?
The General Counsel argues that Olmsted Cleaning
Contractors, Inc. is merely a "disguised continuance" of
Rogers Cleaning Contractors, Inc., because the evidence
demonstrates that the two enterprises have substantially
identical management, business purposes, operations,
equipment, customers, and supervision. Although there is
no identity of ownership, the General Counsel concedes,
identical corporate ownership is not the "sine qua non of
alter ego status." The two ventures were "the product of
a single family operation and comprised a single continu-
ous entity," argues the General Counsel, and in the pres-
ence of all of the other substantially identical factors,
closed family corporations may be alter egos in the ab-
sence of "identical" ownership.
Because the two enterprises are alter egos, continues
the General Counsel's argument, and therefore consid-
ered to be one employer under the Act, the failure of
Olmsted to continue the employment of three former
employees of Rogers (Laura Murphy, Ann Gulan, and
Judy Thompson) was actually a termination of their em-
ployment, or discharge. Based on the evidence, the Gen-
eral Counsel asserts, it is clear that the Respondent vio-
lated the Act, because Laura Murphy was first threat-
ened by Richard Rogers with discharge because of her
union activities, then, subsequently, her employment, as
well as that of Ann Gulan, was terminated by Olmsted
Cleaning Contractors for the same reason. The termina-
tion of Judy Thompson's employment by Olmsted Clean-
ing Contractors also violated the Act because she was
discharged for violating a reporting to work rule which
36 On a motion of the General Counsel, made and granted during the
trial, par. 13(b) of the complaint was amended to insert the words "and
since that time," after the word "unknown," so that as amended, par
13(u) alleges that: "On or about July 10, 1981, or shortly thereafter, the
exact date being unknown, and since that time, Respondent unilaterally
failed and refused to make payments to the Union's health and welfare
fund and pension fund "
487
the Respondent had unilaterally, without notice to the
Union, instituted.
In the General Counsel's view, no impasse was ever
reached between Respondent Rogers Cleaning Contrac-
tors, Inc., and Local 47 during their negotiations for the
purpose of renewing their collective-bargaining agree-
ment which had expired on April 30, 1981, and, there-
fore, Respondent Olmsted Cleaning Contractors, Inc., as
the alter ego of Rogers, was obliged to recognize and
bargain with Local 47, and, in the interim, abide by the
terms of the expired agreement . Its failure to do so,
argues the General Counsel, by bypassing the Union and
directly contacting the employees concerning the terms
and conditions of their employment, and unilaterally
changing wages and working conditions, as well as by
failing to make payments to Local 47's health and wel-
fare fund and pension fund, without notifying the Union
beforehand or giving it an opportunity to bargain, was a
clear failure to bargain in violation of the Act.
The Charging Party's theory of the case is generally
the same as that of the General Counsel, except about
the matter of Respondent's failure to make payments, as
required under the terms of the collective-bargaining
agreement which expired on April 30, 1981, to Local
47's health and welfare fund and pension fund. The
Charging Party takes exception to the General Counsel's
conclusion that the Respondent is liable only for contri-
butions to the funds which became due on July 10, 1981,
and thereafter. Instead, argues the Charging Party, inas-
much as Rogers Cleaning Contractors, Inc., and Olmsted
Cleaning Contractors, Inc., are alter egos, and thus one
employer for purposes of the Act, and are collectively
referred to in the complaint as the "Respondent," Olmst-
ed is not only responsible for its own contributions
which became due about July 10, 1981, but also for the
failure of Rogers Cleaning Contractors, Inc., its alter
ego, prior to that date, to make its contractually required
payments. Conceding that the complaint charges as an
unfair labor practice only the Respondent's failure to
make payments about July 10, 1981, the approximate
date when Rogers went out of business and Olmsted
began operations, the Charging Party argues that the Re-
spondent was fully and fairly aware of its theory prior to
trial, and that the issue was fully and fairly litigated at
trial.
The Respondent, for its part, argues that Rogers and
Olmsted were not alter egos but, instead, were merely
successor employers. As such, maintains Respondent,
Olmsted had the right to offer different terms and condi-
tions of employment from those previously offered by
Rogers. By extension, therefore, Olmsted did not violate
the Act because of its refusal to hire Judy Thompson be-
cause of an alleged change in the reporting off work
rules. But, further argues the Respondent, even if Rogers
and Olmsted were to be considered alter egos, a status
which Respondent does not concede, Respondent Olmst-
ed was free to unilaterally impose less favorable terms
and conditions of employment, because Respondent
Rogers and Local 47 had earlier reached an impasse in
negotiations for the purpose of reaching accord on a new
collective-bargaining agreement to replace the one which
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had expired on April 30, 1981 . Finally, asserts Respond-
ent, the refusal of Olmsted to hire Laura Murphy and
Ann Gulan was not motivated by antiunion animus, but,
rather, was justified because the two former Rogers em-
ployees were physically unable to perform a required
aspect of their jobs, that of wet mopping.
III. FINDINGS AND CONCLUSIONS
A. Alter Ego Status
On the evidence before me, I find and conclude that
Olmsted Cleaning Contractors, Inc. was the disguised
continuance or alter ego of Rogers Cleaning Contrac-
tors, Inc.
But for Rogers' financial problems, which became in-
tolerably burdensome when tax liens were filed by the
Internal Revenue Service in mid-1981 , Rogers Cleaning
Contractors would not have gone out of business when it
did, and Olmsted Cleaning Contractors , Inc., at that par-
ticular time , would not have been formed or taken over
a substantial part of Rogers ' business as its successor.
Rogers was a closed family-owned business , which was
the primary, if not only, livelihood of Richard Rogers
and his two daughters , Debra and Trudy Rogers, who,
together with Richard Rogers' wife, Julia Rogers, prior
to May 10, 1981 , owned all of the corporation 's stock.37
Faced with the prospect of losing their livelihood and
the assets of the corporation , the most valuable of which,
of course , were its equipment and its customers and busi-
ness goodwill , Richard Rogers and his daughters seized
upon the device of setting up a new corporation , which,
using Rogers Cleaning Contractors' equipment , supplies,
and employees , hopefully would be able to attract the
business of many Rogers' customers and carry on in
Rogers' place . The successor which the Rogers family
set up for that purpose was Olmsted Cleaning Contrac-
tors, Inc., whose stockholders , officers, and directors
were Debra and Trudy Rogers. Olmsted Cleaning Con-
tractors , with Richard Rogers acting as consultant and
salesman, purchased Rogers Cleaning Contractors' equip-
ment and supplies on very favorable terms, retained its
management , hired most of its employees, and, using the
same business offices, went into operation servicing a
substantial number of Rogers ' former customers to
whom Olmsted provided the same services at the same
price, all of which was accomplished in 1 week's time
without any break in service to the customers who
agreed to transfer their business to Olmsted.
Although it is true that Richard Rogers , who clearly
dominated the management of Rogers Cleaning Contrac-
tors and controlled the majority of its stock , 38 did not
34 Prior to May 10, 1981, the stockholders of Rogers Cleaning Con-
tractors were Richard Rogers , his wife, Julia Rogers, and two daughters,
Debra and Trudy Rogers . On May 10, 1981, in order to avoid personal
liability for unpaid taxes owed by Rogers Cleaning Contractors, Debra
and Trudy Rogers resigned as officers of the corporation and returned
their stock.
38 Richard Rogers, with over 30 years ' experience in the cleaning busi-
ness, formed Rogers Cleaning Contractors, together with his wife, owned
the majority of its stock , managed its business , and made all -important
business decisions His daughters , although officers of the corporation
and minority stockholders , were clerical employees of the Company,
who did not participate in its day-to -day management.
have an ownership interest in Olmsted , it is also clear
that at the outset he dominated Olmsted 's management.
Even crediting the testimony of Richard Rogers that he
was thinking of getting out of the cleaning business, and
the testimony of his daughter , Debra Rogers, that she
and her sister hoped to start their own cleaning busi-
ness,39 neither the father nor his daughters intended to
go through with their long-range plans when Rogers
Cleaning Contractors' tax and other financial troubles
forced it out of business.
In particular , it is apparent that Debra and Trudy
Rogers, although they may have gained considerable ex-
perience in running Rogers Cleaning Contractor 's office,
lacked overall management experience in the day-to-day
operation of the business , especially in such important
areas as customer contacts and personnel management.
For Olmsted Cleaning Contractors to succeed in business
on the short notice with which it was set up, it is obvi-
ous that Richard Rogers had to supply and continue to
supply the management knowledge and business experi-
ence which his daughters lacked, until such future time
as his daughters were ready to take over the business
themselves . In the interim , Richard Rogers , who it turns
out received a higher salary from Olmsted than did his
daughters who owned the business-a strong indicator
that his services were of more value to Olmsted than
those of his daughters-began training his daughters to
take over the management of the business , while exercis-
ing overall supervision himself and making his own ar-
rangements to move to Tennessee and devote his atten-
tion to other business interests . Thus, it was not until
nearly 10 months later, when apparently it suited the in-
terests of Richard Rogers and his daughters , that Rich-
ard Rogers moved from the Cleveland area, stopped
drawing a salary from Olmsted , and left the operation of
Olmsted entirely to his daughters.
In summary , under Olmsted Cleaning Contractors, the
business of the defunct Rogers Cleaning Contractors
"continued under the same roof with the same employees
and management , the same business , same customers,
same equipment . The only change really was that of the
name of the business and a shuffling of ownership among
the family."40 As stated by the National Labor Relations
Board in Crawford Door Sales Co., 226 NLRB 1144
(1976), "generally we have found alter ego status where
the two enterprises have `substantially identical' manage-
ment, business purpose, operation , equipment, customers,
and supervisors , as well as ownership."41 In this case, as
in the Crawford Door Sales Co., case, there was a change
in ownership of Rogers Cleaning Contractors and Olmst-
ed Cleaning Contractors , but at the time material to de-
termination of alter ego status , 42 both were wholly-
39 Debra Rogers stated that she did not intend to go into competition
with her father 's business
40 Sturdevant Roofing Co., 238 NLRB 186, 188 (1978)
4i Crawford Door Sales Co., supra at 1144
42 Alter ego status must be determined based on the developments
which took place at the time Olmsted was formed in July 1981 , not what
may have happened at a later time George C. Schearer Exhibitors Delivery
Service, 262 NLRB 623 (1982)
ROGERS CLEANING CONTRACTORS 489
owned by members of the Rogers family and "never lost
their character as a closed corporation." 43 In such cir-
cumstances, the Board, in Crawford Door Sales Co., found
that ownership and control in both enterprises were sub-
stantially identical. Likewise, in this case, I find that
ownership and control of Rogers Cleaning Contractors
and Olmsted Cleaning Contractors, at the time Olmsted
was formed and went into business, was substantially
identical.44 In view of this, and because there is no
doubt that the two Respondents have common business
purpose, management, operations, equipment, customers,
and supervision, I find that Olmsted Cleaning Contrac-
tors is the alter ego of Rogers Cleaning Contractors.
B. Obligation of Alter Ego to Bargain
The Board stated in Denzil S. Alkire, "It is well estab-
lished that an alter ego has the same obligation to em-
ployees as the original employer."45 Although an em-
ployer may go out of business rather than enter into a
contract with a union, once an employer and a union do
enter into a collective-bargaining agreement, "the em-
ployer may not `escape' from it through the expedient of
.. . `going out of business' only to resume it in another
form."46 It is, of course, an unfair labor practice, in vio-
lation of Section 8(a)(5) of the Act, "for an employer to
make a change affecting any matter which is a mandato-
ry subject for bargaining without first advising the bar-
gaining representative and providing it with an opportu-
nity to bargain concerning the change."47 Thus, in the
instant case if, at the time it went out of business, Rogers
Cleaning Contractors was obligated under the terms of a
collective-bargaining agreement with the Charging
Union in this case to bargain over wages, hours, and
other conditions of employment, and to make payments
to the Union's health and welfare fund and pension fund,
then, as alter ego, Olmsted Cleaning Contractors had the
same obligations.
I find, in this case, that Olmsted Cleaning Contractors
was bound to the same extent Rogers Cleaning Contrac-
tors would have been to bargain with Local Union 47
over such matters as pay, benefits, work rules, and other
terms and conditions of employment, and to make pay-
ments to Local 47's health and welfare and pension fund.
The refusal by Olmsted in July 1981 to recognize the
Local 47 as bargaining representative of its employees
and its bypassing of the Local 47 in imposing unilateral
changes concerning matters over which it was obligated
to bargain with Local 47 were unfair labor practices, in
violation of Section 8(a)(1) and (5) of the Act, as alleged.
The real question here does not concern the factual ex-
istence of a collective-bargaining agreement to which
Rogers Cleaning Contractors was a party, nor even
whether or not Olmsted Cleaning Contractors refused
initially to recognize Local 47 as the bargaining repre-
43 Crawford Door Sales Co, supra at 1144
14 The Board similarly held in other cases that identical corporate
ownership is not the sine qua non of alter ego status . See J. M. Tanaka
Construction , 249 NLRB 238 (1980), Denzil S. Alkire, 259 NLRB 1323
(1982),
'15 Supra at 1325
48 P A. Hayes Inc., 226 NLRB 230, 235 (1976).
114 Production Plated Plastics, 254 NLRB 560, 563 ( 1981).
sentative of its employees and unilaterally imposed
changes concerning matters covered by the expired col-
lective-bargaining agreement without notice to the Union
or without affording it an opportunity to bargain. All of
this was stipulated,48 or conceded by Respondent's wit-
nesses during their testimony.49 What is actually at issue
here is whether or not Olmsted Cleaning Contractors
had any obligation to recognize the Union, notify it of
proposed changes in pay, benefits, or other working con-
ditions, and give the Union the opportunity to bargain
over the changes, before putting them into effect. On this
issue , Respondent first contended that Olmsted Cleaning
Contractors was a successor employer of Rogers Clean-
ing Contractors, and not its alter ego and, therefore, was
free to set the initial terms on which it would hire the
employees of its predecessor.50 As I have already found
as a matter of fact and law that Olmsted Cleaning Con-
tractors was the alter ego of Rogers Cleaning Contrac-
tors, that argument is without merit, and requires no fur-
ther discussion.
Also without merit is Respondent's alternative argu-
ment that even assuming, arguendo, alter ego status,
Olmsted, nevertheless, was still entitled to unilaterally
change the terms and conditions of employment because
Rogers Cleaning Contractors had withdrawn from the
multiemployer bargaining group51 and conducted sepa-
rate negotiations with Local 47, which had broken down
when a clear impasse had been reached over the issue of
employees' wages and benefits.
It is well settled that even though a collective-bargain-
ing agreement may have expired, an employer has a duty
to continue to consult and negotiate with the union, and
48 As previously noted, the parties stipulated that there was a collec-
tive-bargaining agreement, which expired on April 30, 1981, between
Rogers Cleaning Contractors and Local 47, the Charging Union, as the
exclusive bargaining representative for the purpose of collective bargain-
ing of Rogers' nonsupervisory cleaning employees. The terms of that
agreement covered such matters as pay, benefits, and other working con-
ditions, and provided that Rogers was obligated to make periodic pay-
ments to the Union's health and welfare fund and pension fund.
49 Richard Rogers and Debra Rogers acknowledged during their testi-
mony that before Olmsted Cleaning Contractors went into business on
July 13, 1981, it had announced to its employees that it would be a non-
union employer and that it would reduce the wage scale previously paid
Rogers Cleaning Contractors and terminate all benefits previously re-
ceived by the employees while working for Rogers, all without notice to
the Union or affording it an opportunity to bargain. Debra Rogers also
acknowledged that Olmsted never made payments to the Union's health
and welfare fund and pension fund
so In support of this proposition, Respondent cites NLRB v. Burns Se-
curity Services, 406 U S. 272 (1972), and Spruce Up Corp, 209 NLRB 194
(1974) Inasmuch as, however, I have found that Olmsted Cleaning Con-
tractors was the alter ego of Rogers Cleaning Contractors, it is unneces-
sary to decide here the question of the extent to which Olmsted could
have gone in setting the initial terms of employment of its predecessor's
former employees, if Olmsted was, itself, no more than a successor em-
ployer
s i The issue of whether or not Rogers Cleaning Contractors' with-
drawal from the multiemployer bargaining group after negotiations had
begun on a new contract was proper is not before me It was not alleged
in the complaint to be an unfair labor practice, although at trial, Richard
Rogers testified that he attended three bargaining sessions as a member of
the multiemployer bargaining group before withdrawing his company
from the group effective April 30, 1981. See Nelson Electric v. NLRB,
638 F.2d 965 (6th Cir 1981), in which the Court of Appeals for the Sixth
Circuit noted that withdrawal from a multiemployer bargaining unit is
untimely if attempted after the commencement of negotiations
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an employer violates Section 8(a)(5) of the Act by
unilaterally changing terms and conditions of employ-
ment prior to the negoiations reaching a genuine im-
passe.52 A genuine impasse is defined as "synonymous
with a deadlock ; the parties have discussed a subject or
subjects in good faith, and despite their best efforts to
achieve agreement with respect to such, neither party is
willing to move from its respective position."53
The facts here do not support a finding of genuine im-
passe because the negotiating sessions between the par-
ties were few in number , agreement had been reached on
all but five or six issues, and there is no evidence that
either side had reached final uncompromising positions
or felt further negotiations would be useless . Indeed, al-
though at the last meeting between Local Union 47 and
Rogers Cleaning Contractors the two sides were in dis-
agreement over issues relating to pay and benefits, the
meeting ended with Richard Rogers requesting the
Union to contact his attorney anytime they wanted to set
up another meeting. The Union did not request another
meeting between that date (June 23, 1981), and the date
Rogers Cleaning Contractors went out of business (July
10, 1981). Only 17 days elapsed between the two events
and Rogers gave no notice to the Union of its intention
to close down nor did it give the Union any opportunity
to bargain over the effects of the closing on Rogers' em-
ployees.54 Under these conditions, no reasonable
grounds exist to support an inference that the Union felt
an impasse had been reached and it was not prepared to
negotiate further, or that it had delayed for an unreason-
able period of time without calling for additional bar-
gaining sessions. Conversely, Richard Rogers, on behalf
of Rogers Cleaning Contractors, gave every indication
that he was prepared to negotiate further with the
Union.
Whether or not the two sides would have eventually
reached agreement is not the question. "The Act does
not compel agreements between employers and employ-
ees."55 What the Act does require, however, is that the
employer meet with the employees' collective-bargaining
representative, in this case, Local 47, and consider any
proprosals the union may advance.56 Before there can be
said to be an impasse, the parties must not only meet to-
gether, but they must have discussed the proposal before
them in good faith and they must have devoted their best
efforts to achieving agreement.57
Where, as here, the parties had just begun to negotiate,
there was not sufficient time or opportunity for them to
devote their best efforts to reaching agreement, and the
evidence of deadlock cited by Respondent is not persua-
52 Electric Machinery Co. v NLRB, 653 F 2d 958 (5th Cir 1981)
53 Electric Machinery Co v. NLRB, supra at 963
54 Rogers Cleaning Contractors ' failure to give notice to the Union of
its intention to go out of business and to give the Union an opportunity
to bargain over the effects on the employees is not alleged in the com-
plaint to be an unfair labor practice . Accordingly , the issue is not before
me in this proceeding It should be noted in passing , however, that an
employer's failure to give notice of closing to the union representing its
employees , and to give the union an opportunity to bargain on the effects
of the closing on the employees, constitutes an unfair labor practice First
National Corp v NLRB, 452 U S 666 (1981).
55 First National Corp v. NLRB, supra at 678.
55 Id at 678-679
57 Electrical Machinery Corp. v NLRB, supra.
sive. Therefore, I find that there was no impasse and, in
the absence of an impasse , neither Respondent Rogers
Cleaning Contractors, nor its alter ego, Respondent Olm-
stead Cleaning Contractors, had the right to impose uni-
lateral changes concerning wages, hours, and other terms
and conditions of employment, regardless of whether or
not the changes were within the scope of preimpasse
proposals. Here, Respondent Olmsted instituted unilateral
changes, by reducing pay rates and eliminating benefits,
and that constituted a refusal to bargain collectively with
the Union, in violation of Section 8(a)(1) and (5).
The unilateral changes instituted by Respondent were
not limited to employee pay and benefits, however. Re-
spondent Olmstead Cleaning Contractors also failed to
make payments, as provided in the expired collective-
bargaining contract between Rogers Cleaning Contrac-
tors, its alter ego, and Union Local 47, to the latter's
health and welfare fund and pension fund.58
58 Respondent Rogers Cleaning Contractors was also in arrears in its
payments to the two funds; however par. 3(B) of the complaint alleges as
an unfair labor practice only Respondent 's failure to make payments
during the period from about July 10, 1981, and afterwards Because the
beginning date coincides with the approximate date Olmsted Cleaning
Contractors went into operation (the last day of services by Rogers
Cleaning Contractors was July 10, 1981, the first day of services by
Olmsted Cleaning Contractors was July 13, 1981 ), the failure to make
payments to Local Union 47 's two funds, as alleged in the complaint, is
limited to Respondent Olmsted . The General Counsel refused to join in a
motion to amend the complaint, offered by the Charging Party during
the trial , which the latter argues would have had the effect of broadening
par. 13(B) of the complaint to include as an unfair labor practice Re-
spondent Rogers' failure and refusal to make payments to the two funds
during the period from October 1, 1980, through June 30, 1981. In the
absence of agreement by the General Counsel to join in the proposed
amendment , the amendment to the complaint proposed by the Charging
Party was denied A complaint may not be amended at trial except on
motion made or joined in by the General Counsel Sec. 3(d) of the Act,
cf. Electrical Workers Local 134 IBEW v NLRB, 487 F.2d 1113 (D C
Car. 1972). The Charging Party, in its brief, asserts that, as used in the
complaint, the term "Respondent" includes both Rogers Cleaning Con-
tractors and Olmsted Cleaning Contractors, and that the language in par
13(B) alleging the "Respondent " unilaterally failed and refused to make
payments necessarily encompasses payments of contributions already due
and owing on July 10, 1981, as well as payments coming due after that
time Thus, reasons the Charging Party, Olmsted Cleaning Contractors
should be held liable for the payments which its alter ego failed to make
It is well settled, however, that each failure to make required periodic
payments to a union's benefit fund constitutes a separate and distinct vio-
lation of an employer 's bargaining obligation. Farmingdale Iron Works,
249 NLRB 98 (1980) Thus, the Charging Party's theory that the failure
to make payments to the funds amounted to cumulative continuing of-
fenses is without merit, and it is plain that the language of par. 13(b) of
the complaint, which refers to failure to make payments about July 10,
1981, and afterwards , does not include , directly or indirectly , any refer-
ence to failure to make payments which occurred prior to July 10, 1981.
(Moreover, even if it could be argued that the pre-July 10, 1981, missed
payments are included within the scope of the complaint only those fail-
ures to make payments which occurred in the 6-month period preceding
the filing (on August 20, 1981) of the first charge in this case could be
remedied Farmingdale Iron Works, supra ) Although in some instances a
violation of the Act may be found even though it was not charged in the
complaint , as where the issue was fully litigated at trial and the employer
was not prejudiced, that is not the situation here As provided in Sec.
3(d) of the Act, the General Counsel has final authority in the prosecu-
tion of complaints before the Board, and here, even though fully aware
of facts indicating that Respondent Rogers also failed to make required
payments to Local Union 47's two funds, the General Counsel declined
to make that alleged violation a part of his case
ROGERS CLEANING CONTRACTORS
The unilateral failure of an employer to make contrac-
tually required periodic payments to a union 's health and
welfare and pension fund is a violation of the employer's
obligation to bargain , and constitutes a violation of Sec-
tion 8(a)(5) of the Act . 59 The employer 's obligation to
continue making pension and health and welfare contri-
butions continues after expiration of the collective-bar-
gaining agreement requiring such contributions. 60 As
alter ego of Rogers Cleaning Contractors , Olmsted
Cleaning Contractors was obligated to continue making
the pension , health , and welfare contributions required
by the expired collective-bargaining agreement with
Local Union 47, until such time as a new contract was
agreed on, or an impasse was reached in the negotiations
over a new contract . 61 Here , as previously stated, no im-
passe had been reached in the bargaining process and,
therefore, Respondent Olmsted 's unilateral refusal and
failure to make pension , health, and welfare contribu-
tions, as required by the expired contract between its
alter ego predecessor and Local Union 47, was a viola-
tion of Olmsted 's obligation to bargain and, as such, a
violation of Section 8(a)(5) of the Act.
It is well established that an employer acts in bad faith
and violates the Act by dealing directly with employees,
who are represented by an exclusive collective-bargain-
ing representative, concerning wages, hours, and other
terms and conditions of employment , particularly when
the employer is engaged in negotiations with the bargain-
ing representative concerning these matters . 62 In the in-
stant case , as previously held, Rogers Cleaning Contrac-
tors and Local Union 47, the exclusive bargaining repre-
sentative of Rogers' employees, were engaged in bargain-
ing over the terms of a new contract and, although they
had reached no agreement on wages and several other
apparently key issues, their disagreement had not pro-
gressed to the point of a genuine impasse when Rogers
was supplanted in business by its alter ego, Olmsted
Cleaning Contractors . As alter ego of Rogers, Olmsted
had the same duty to bargain with Local Union 47 as did
Rogers . When Olmsted bypassed the Union and went di-
rectly to Rogers' employees during the workweek
ending July 10, 1981, and unilaterally announced differ-
ent wages and terms and conditions of employment for
those employees who wished to work for Olmsted, the
latter breached its obligation to bargain in violation of
Section 8(a)(1) and (5) of the Act.
C. Discharge of Judy Thompson
Judy Thompson was one of three employees of Rogers
Cleaning Contractors who were denied employment by
Rogers' alter ego, Olmsted Cleaning Contractors. The
69 Farmingdale Iron Works, 249 NLRB 98 (1980).
50 Farmingdale Iron Works, supra.
61 The requirement to make pension , health, and welfare contributions
is directly related to employee wages and terms and conditions of em-
ployment , and as such it survives the expiration of a contract and cannot
be altered without bargaining . A unilateral change can be made by the
employer only after a genuine impasse has been reached in the bargaining
process, and even then only if the unilateral change was reasonably en-
compassed in a preimpasse proposal . Peerless Roofing Co., 247 NLRB 500
(1980).
82 Hiney Printing Co., 262 NLRB 157 (1982); Farm Crest Bakeries, 241
NLRB 1191, 1196 (1979).
491
facts of the matter are that on or about July 10, 1981,
Judy Thompson, as did the rest of Rogers Cleaning Con-
tractors employees, received an application for employ-
ment by Olmsted Cleaning Contractors , which she was
told to turn in when she reported for work on July 13,
1981. Finding herself unable to report for work on July
13 because of personal reasons, Thompson testified, she
completed the application , and gave it to Laura Murphy,
the union steward , with a request that Murphy turn in
the application for her . Thompson said she also placed a
telephone call to her jobsite . She spoke with Bob Smith,
her supervisor, explaining her reason for being unable to
report for work on time , but saying that she still intend-
ed to report for work later that night. It appears , howev-
er, that Thompson actually did not report for work at all
that night. According to Thompson, she was told by
Smith to call Olmsted's office , but when she dialed the
number , she heard only a recording stating that the
number was not in service . According to Murphy, when
she submitted Thompson 's application to Smith, he told
her that there was no job opening for Thompson. When
Thompson attempted to report for work the next
evening , July 14 , Smith told her that she was a day late
and he had all the people he needed, but that he would
call her when there was a job opening.63
In her trial testimony , Debra Rogers stated that she
and her sister decided not to hire Thompson because
"the first day she was to report for work (for Olmsted)
she never showed up ." Debra Rogers also testified that
she did not believe that Rogers' employees were told
when they received their Olmsted applications that they
would not be hired if they did not report on the first
day.
Pointing to evidence that no employee of Rogers
Cleaning Contractors had ever been fired because they
had missed a day 's work without calling in to report
their absence ,64 the General Counsel argues that the dis-
charge of Thompson resulted from a unilaterally imposed
stricter application of a work rule, imposed without
notice to the Union , in violation of Section 8(a)(5) of the
Act.
Respondent takes the position that , as a successor em-
ployer, Olmsted was free to establish its own hiring poli-
cies and, in any event , even though there were no writ-
ten work rules established by Rogers or Olmsted, both
companies had an unwritten policy that if newly hired
employees expected to work , they were expected to
report the first night , and that because Thompson violat-
ed that rule , she was not hired. 65
es Thompson was never called
94 Trial testimony suggests that there was an unwritten procedure
which employees of Rogers who did not intend to report for scheduled
work on a particular day were expected to follow in order to give the
employer notice and time to locate a replacement . The details of the pro-
cedure and whether or not Judy Thompson complied with it are not par-
ticularly relevant here , because Debra Rogers testified that she was un-
aware that anyone had ever been fired by Rogers Cleaning Contractors
for missing a day's work without calling in.
96 The finding that Olmsted Cleaning Contractors is the alter ego of
Rogers Cleaning Contractors disposes of Respondent 's first argument that
as a mere successor employer it was free to establish its own terms and
conditions of employment , including hiring policies
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As correctly pointed out by Respondent, there is no
evidence that Judy Thompson was refused employment
because of antiunion animus on the part of the Respond-
ent.66 However, a showing of antiunion animus is unnec-
essary if an employee was discharged (in this case, not
hired by a successor alter ego) as a result of an employ-
er's unilateral imposition and application of a stricter
work rule.
As alter ego of Rogers Cleaning Contractors, Olmsted
was obligated to bargain with Local Union 47 over
terms and conditions of employment. Any unilateral
change of terms and conditions of employment imposed
by Olmsted, without notice to the Union or affording it
an opportunity to bargain, is a clear violation of Section
8(a)(1) and (5).67
At issue here is the question of whether or not Olmst-
ed's refusal to hire Thompson, ostensibly because she did
not report for work the night of July 13, 1981, actually
resulted from the application of a stricter work rule uni-
laterally implemented by Olmsted. Under the circum-
stances, I find that it did.
It was clearly the intent of Richard Rogers and his
daughters, Debra and Trudy Rogers, that Olmsted take
over the business of Rogers Cleaning Contractors, with-
out interruption of service, keeping as many of Rogers'
former customers as possible. To accomplish this, Olmst-
ed needed more than just the agreement of the custom-
ers. To avoid a substantial delay, it needed Rogers'
equipment and supplies, employees, and supervisors. Any
appreciable delay while Olmsted acquired new equip-
ment and supplies and hired and trained new employees
and supervisors would surely have resulted in some or
all of Rogers' customers taking their business elsewhere.
That the plan, in fact, was basically to substitute one cor-
porate entity for another and carry on as before is clear
from the circumstances which necessitated the switch in
the first place and the manner in which it was actually
carried out. Olmsted was hurriedly incorporated, it occu-
pied Rogers' business offices, acquired Rogers' supplies
and equipment under favorable conditions, retained
Rogers' supervisors, and began operations on July 13,
1981, with only two employees who had not previously
worked for Rogers (12 of Rogers' employees did not go
to work for Olmsted, 9 by choice and 3 who were re-
fused employment), providing the same service as per-
formed by Rogers, at the same price, to a substantial
number of Rogers' former customers.68
As a practical matter, all of Rogers' employees became
employees of Olmsted as a matter of course without it
being necessary for them to do anything other than con-
tinuing to do their jobs. In fact, it required positive
action by either an employee of Rogers who did not
want to go to work for Olmsted, or by Olmsted, as in
the case of several Rogers employees whom it did not
68 The General Counsel suggests that the reason Thompson was not
hired might have been because her application was submitted through a
union steward. Unsupported by evidence as it is, that suggestion amounts
to no more than mere speculation
67 Production Plastics, supra; Denzil S Alkire, supra.
88 The testimony is to conflict about whether on its first day of oper-
ations Olmsted had 13 customers, 9 of which were former Rogers cus-
tomers, or 15 customers, all of which were former Rogers customers.
wish to employ, in order for a Rogers employee not to
become an Olmsted employee. Whatever use Olmsted
may have had for the employment applications which
were distributed to all of Rogers' employees during the
last week that Rogers was in business, it is clear that
they were not "applications" in the sense that they were
the first step by a former Rogers employee in obtaining
employment by Olmsted.
Because the employees of Rogers became employees
of Olmsted simply on the basis of their prior employment
by Rogers, for purposes of the Act, Judy Thompson was
an employee of Olmsted on July 13, 1981, when Olmsted
terminated her employment. The delivery of her com-
pleted application to her supervisor and her telephone
call to her supervisor made her intention to accept em-
ployment by Olmsted unequivocally clear. The only
thing which Thompson did not do on the night of July
13, 1981, was to physically report for work. As no one
had previously been fired for missing work without re-
porting off, Olmsted's termination of Judy Thompson's
employment on that basis imposed on her a harsher sanc-
tion for an infraction of an informal work rule than pre-
viously imposed by Rogers Cleaning Contractors against
other employees for a similar infraction, and amounted
to a unilateral change in the terms and conditions of em-
ployment.
On the basis of the evidence before me, I conclude
that the termination of Thompson's employment resulted
from the application of a work rule affecting terms and
conditions of employment which Respondent Olmsted
Cleaning Contractors had unilaterally changed without
notice to Local 47 or affording it an opportunity to bar-
gain. Therefore, the termination of Thompson's employ-
ment was an unfair labor practice in violation of Section
8(a)(1) and (5) of the Act.
D. Threatening Statements
The General Counsel alleges that Laura Murphy, an
employee of Rogers Cleaning Contractors, who was the
union steward representing Rogers' employees at the
Davy McKee Corporation job site, was threatened with
discharge because of her union activities by Richard
Rogers during the course of a telephone conversation in
April 1981. According to the General Counsel, the tele-
phone conversation was initiated by Laura Murphy to
discuss the discharge of a fellow employee. During the
course of the conversation, Rogers warned Murphy to
stay out of his business or be fired, and indicated that she
could either work for the Union or Rogers, but not both.
In the view of the General Counsel, those statements by
Rogers violated Murphy's rights guaranteed under Sec-
tion 7 of the Act and were in violation of Section 8(a)(1)
of the Act. I agree.
According to testimony offered by Laura Murphy, she
placed a telephone call to Richard Rogers in April 1981,
to discuss the discharge of another employee named
Francine Buchanan. According to Murphy, during the
course of the conversation, Rogers said to her "Laura,
stay out of my business. If you don't, I'm going to fire
you too." Later in the conversation, according to
Murphy, Roger stated, "Laura, let me tell you some-
ROGERS CLEANING CONTRACTORS
thing. You work for Art Worthy, Joe Murphy and that
Union, or you work for me, but you do not work for
tooth of us." Laura Murphy's husband, George Murphy,
who was also called as a witness during the trial of this
case, testified that at his wife's request he had listened on
an extension telephone to the conversation between his
wife and Richard Rogers. He had heard Richard Rogers
threaten his wife with discharge on two occasions during
the conversation.
Respondent did not address this issue in its posthearing
brief; however, Richard Rogers denied in testimony,
which he gave during the trial of this case, that he had
threatened to fire or discharge Laura Murphy during the
April 1981 telephone conversation.
Resolution of this issue obviously turns on the wit-
nesses' credibility, or lack of it. Laura Murphy testified
that she was threatened by Richard Rogers, and her tes-
timony was corroborated by her husband, George
Murphy, who testified that he had heard the threat while
listening to the telephone conversation on an extension
telephone. Richard Rogers, on the other hand, testified
that he had made no threats during that telephone con-
versation. Concerning this matter, I give greater weight
to the testimony of Laura Murphy and her husband. I do
not find Richard Rogers to have been candid in his testi-
mony concerning many aspects of this case, particularly
his relations with his employees, the Union, and Olmsted
Cleaning Contractors. I do not find his bare denial that
he threatened Laura Murphy to be convincing.
The threats made by Richard Rogers to Laura
Murphy to terminate her employment in April 1981 were
clearly related to her union activities. As such, those
threats constituted the unfair labor practices in violation
of Section 8(a)(1) of the Act.
E. Discharge of Laura Murphy and Ann Gulan
Laura Murphy, the union steward at the Davy McKee
worksite, and Ann Gulan, both of whom had worked for
Rogers Cleaning Contractors at the Davy McKee site
since 1978, were refused employment by Olmsted Clean-
ing, Contractors when they reported for work on July 13,
1981, and presented their completed job applications to
Bob Smith, their supervisor. Smith stated that there were
no job openings for them, and that he would contact
them when an opening occurred. Neither Murphy nor
Gulan was ever contacted subsequently by Olmsted and
offered employment. Seemingly contradicting Smith's ex-
planation at the time, Debra Rogers, during testimony
given in the course of the trial of this case, stated that
Gulan and Murphy were not hired because they were
not physically able to perform wet mopping of wash-
rooms, which was a required part of their jobs.
The General Counsel, on the other hand, contends
that, contrary to the testimony of Debra Rogers,
Murphy and Gulan were terminated by Olmsted Clean-
ing Contractors because of their past activity on behalf
of the Union, and as part of Olmsted's efforts to rid itself
of the Union. Accordingly, argues the General Counsel,
the discharges of Ann Gulan and Laura Murphy violated
Section 8(a)(3) of the Act. I agree.
Laura Murphy was first elected union steward in Oc-
tober 1979. After she became union steward, she was in-
493
volved in a number of grievance proceedings, both on
behalf of others in her capacity of union steward and on
her own behalf. In addition to the grievance proceeding
on behalf of Francine Buchanan , over which Richard
Rogers, in the course of a telephone conversation in
April 1981, threatened to discharge her because of her
involvement, Murphy also became involved in grievance
proceedings brought by Ann Gulan.
Murphy received warning letters from Rogers Clean-
ing Contractors on November 16 and 26, 1979, for tear-
ing a garbage bag and talking, respectively, and was
given a 3-day suspension. She filed a grievance concern-
ing the warning letters which she and others had re-
ceived and her 3-day suspension, which led, ultimately,
to Richard Rogers agreeing to rescind her suspension
and withdraw the warning letters.
Laura Murphy injured her back and shoulder in Janu-
ary 1980, and was off work until April 14, 1980. When
she returned to work, she presented a medical certificate
stating that she was physically unable to wet mop. The
issue of wet mopping became significant about that time
because of disagreement between Rogers Cleaning Con-
tractors and its employees over whether or not the
female employees were required as part of their jobs to
wet mop where necessary in the areas in which they
cleaned, such as in bathrooms. The employees took the
position that they were not obligated under the union
contract to wet mop.69 The issue came to a climax in
June 1980, when Richard Rogers issued warning letters
to his employees telling them that they would be re-
quired to wet mop where necessary in the areas in which
they cleaned. Laura Murphy, however, appealed to Bob
Smith, her supervisor, on the basis of her medical certifi-
cate which excluded her from wet mopping, and Richard
Rogers excused her from wet mopping. She was not
thereafter requested to wet mop as part of her job.
About the same time in October 1979, as Laura
Murphy received two warning letters and a 3-day sus-
pension, Ann Gulan also received two warning letters,
one for sitting down on the job and the other for taking
an unauthorized work break, and on October 26, 1979,
she was fired. Laura Murphy filed a grievance under the
union contract on behalf of Gulan, and at a meeting be-
tween Richard Rogers and union representatives at the
Union's office at the end of November 1979, Richard
Rogers agreed to reinstate Ann Gulan with backpay and
withdraw the warning letters.
Ann Gulan, too, suffered an on-the-job back injury
which left her unable to perform wet mopping in the
opinion of her physician. She first injured her back on
June 6, 1980, and reinjured it on June 13, 1980. She was
off work for the latter injury from until August 11, 1980.
When she returned to work she was told by her supervi-
sor, Bob Smith, that she would have to wet mop. She
called on Laura Murphy and the Union for assistance,
and eventually Rogers Cleaning Contractors dropped the
requirement that she wet mop. However, according to
Gulan, Richard Rogers changed her work assignment by
69 Up to that time, apparently, wet mopping had been largely, if not
exclusively, performed by one or more male employees of Rogers Clean-
ing Contractors at the Davy McKee worksite
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increasing her workload in comparison to that of other
employees. A grievance filed by Gulan over this matter
was eventually settled in her favor. Finally, Gulan pre-
vailed in two separate workmen's compensation claims
which she filed as a result of injuries sustained while em-
ployed by Rogers Cleaning Contractors.
It is, of course, an unfair labor practice for a successor
employer to refuse to hire employees of its predecessor
solely because they were union members, or engaged in
union activity, or as part of the successor employer's
effort to discourage union membership among his em-
ployees.70 Thus, the question here is whether or not Re-
spondent Olmsted refused to hire either or both Laura
Murphy and Ann Gulan, two employees of its alter ego
predecessor, Respondent Rogers Cleaning Contractors,
because they had engaged in union activities or as part of
an effort by Respondent Olmsted to discourage union
membership among its employees. I find this question
must be answered in the affirmative.
There can be no doubt that Olmsted's refusal to hire
Murphy and Gulan had nothing to do with the availabil-
ity or lack of availability of work for the two former
Rogers employees. According to Laura Murphy's undis-
puted testimony, when she and other applicants for work
reported to the Davy McKee work site on July 13, 1980,
they were required to wait for the arrival of Bob Smith,
the job site supervisor, before being admitted to the
building. When Smith arrived, he read from a list of
names, stating, "I will call off these names. You go in
and wait for me at the timeclock. If I don't call your
name, I don't have a enough work. I don't have any
work for you." He did not call either Laura Murphy's or
Ann Gulan's name. It is obvious from all of this, that for
reasons of its own, not having anything to do with the
amount of work available, Olmsted had decided in ad-
vance, not to employ certain employees of its alter ego,
Rogers Cleaning Contractors, a fact tacitly later admit-
ted by Debra Rogers, president of Olmsted Cleaning
Contractors.
There were, it appears from this record, only two em-
ployees of Rogers Cleaning Contractors whom Olmsted
had made a decision in advance not to hire. They were
Laura Murphy and Ann Gulan. I find that the reason
given by Debra Rogers for deciding not hire Murphy
and Gulan is unbelievable under the circumstances, and
was a mere subterfuge designed to conceal the real
reason why Murphy and Gulan were not offered em-
ployment. Although Debra Rogers claimed that the
reason for not hiring Murphy and Gulan was that they
had physical disabilities which prevented them from wet
mopping, it is evident from the record that this reason
was nothing more than an excuse of convenience. What-
ever physical disabilities Murphy and Gulan had, those
disabilities had existed for over a year prior to Rogers
Cleaning Contractors transferring its business and em-
ployees to its alter ego, Olmsted Cleaning Contractors,
and they had been the subject of grievance proceedings
'O Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U S.
249, 262 fn. 8 (1974), Nevis Industries, 246 NLRB 1053 (1979), Love's Bar-
heque Restaurant No. 62, 245 NLRB 78 (1979); Patter's Chalet Drug, 233
NLRB 15 (1977)
resolved against the employer. Once having been re-
buffed in its efforts to take action against Murphy and
Gulan because of their disability, as a result of union
intervention, Rogers Cleaning Contractors did not again
raise the issue that either Murphy or Gulan were unable
to perform all of the work required of them. Curiously,
that issue was not again raised until Rogers Cleaning
Contractors was succeeded in business by its alter ego,
Olmsted Cleaning Contractors, who announced that they
would be a nonunion employer and promptly refused to
hire Laura Murphy, a union steward and leading union
activist, and Ann Gulan, a Rogers employee who had
benefited on a number of occasions from the collective-
bargaining agreement grievance procedures.
On the basis of the record before me, I find that Laura
Murphy and Ann Gulan were two of the most visible
union activists in the employment of Rogers Cleaning
Contractors, and that their union activities and their re-
sorting to the collective-bargaining agreement grievance
procedures were considered by Richard Rogers to be an
unwanted nuisance. Indeed, Richard Rogers considered
Laura Murphy to be such a thorn in his side because of
her union activities, that on one occasion he threatened
to fire her. Later, when the opportunity presented itself
on the occasion of the start up of Olmsted Cleaning Con-
tractors under Richard Rogers' guidance as a nonunion
employer, he carried out his threat to get rid of Murphy,
and refused employment to Gulan, as well, because she
had resorted to seeking union assistance on a number of
occasions concerning employment disputes, largely
through Laura Murphy. Clearly, it was the intent of
Richard Rogers and Olmsted to eliminate two union ac-
tivists, and to provide a warning to other employees de-
signed to discourage them from engaging in union activi-
ty. Any other reason Olmsted may now assert, including
physical limitations, pales to insignificance in comparison
to the antiunion animus which so obviously underlies
Olmsted's refusal to hire Laura Murphy and Ann Gulan.
Accordingly, the refusal by Olmsted Cleaning Con-
tractors to hire Laura Murphy and Ann Gulan was an
unfair labor practice, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act.
CONCLUSIONS OF LAW
1. Rogers Cleaning Contractors, Inc., and its alter ego,
Olmsted Cleaning Contractors, Inc., constitute a single
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. At all times material, Service, Hospital, Nursing
Home and Public Employees Union, Local 47, affiliated
with Service Employees International Union, AFL-
CIO-CLC was a labor organization within the meaning
of Section 2(5) of the Act, and was the exclusive repre-
sentative for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act of the following
employees of Rogers Cleaning Contractors, Inc., and
Olmsted Cleaning Contractors, Inc.:
All employees engaged in janitorial work, excluding
office employees and supervisors as defined in the
Labor Management Relations Act of 1947, as
ROGERS CLEANING CONTRACTORS 495
amended, and also excluding any such employees
working 15-1/2 hours or less in an account where
only one employee is engaged , if such account is
not owned or operated by an entity which operates
in more than one location serviced by the employer.
3. At all times material, and continuing to date, Re-
spondent and the Union have been, and continue to be,
bound by the terms and conditions of a collective-bar-
gaining agreement covering the period from May 1,
1978, to May 1, 1981, embodying rates of pay, wages,
hours of employment, and other terms and conditions of
employment of all employees of Respondent in the unit
referred to in the paragraph 2, above.
4. About July 13, 1981, Respondent unilaterally with-
drew recognition from the Union, and repudiated the
collective-bargaining agreement existing between them,
thereby violating Section 8(a)(1) and (5) of the Act.
5. By unilaterally changing wage rates and other terms
and conditions of employment-of the bargaining unit em-
ployees, on and after July 13, 1981, Respondent has vio-
lated, and continues to violate Section 8(a)(1) and (5) of
the Act.
6. By unilaterally changing working conditions, on and
after July 13, 1981, with respect to failure by bargaining
unit employees to report for work, Respondent violated
Section 8(a)(1) and (5) of the Act.
7. By terminating the employment of bargaining unit
employee Judy Thompson, about July 13, 1981, for vio-
lation of the work rule with respect to failure of bargain-
ing unit employees to report for work which Respondent
had unilaterally changed, Respondent engaged in an
unfair labor practice in violation of Section 8(a)(1) and
(5) of the Act.
8. By about July 10, 1981, the exact date being un-
known, and since that time, unilaterally failing and refus-
ing to make payments to the Union's health and welfare
fund, and pension fund, as required by the collective-bar-
gaining agreement, Respondent violated, and continues
to violate, Section 8(a)(1) and (5) of the Act.
9. By threatening employee Laura Murphy during the
last week of April 1981 with discharge because of her
union activities and sympathies, Respondent violated
Section 8(a)(1) of the Act.
10. By about July 13, 1981, terminating the employ-
ment of Laura Murphy and Ann Gulan, and refusing
thereafter to reinstate them because they had joined, sup-
ported, or assisted a union , and engaged in concerted ac-
tivities for the purpose of collective bargaining and other
mulual aid or protection, Respondent violated Section
8(a)(1) and (3) of the Act.
11. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent engaged in unfair labor
practices, I find it appropriate to order Respondent to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent, having committed unfair labor practices
by unilaterally changing wage rates and other terms and
conditions of employment, shall make the employees af-
fected by the changes whole for any loss of earnings
they may have sustained as a result of the Respondent
having changed their wage rate on July 13, 1981, and
thereafter. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962). Furthermore, Respondent shall be required to re-
store the status quo ante as existed prior to the imple-
mentation of the changes in wage rates and other terms
and conditions of employment. Respondent shall cease
and desist from unilaterally changing conditions of em-
ployment, and shall bargain collectively, on request, with
the Union as the exclusive representative of the bargain-
ing unit employees concerning terms and conditions of
employment and, if an understanding is reached, embody
such terms in a signed agreement.
Respondent, having unilaterally failed and refused to
make payments to the Union's health and welfare fund,
and pension fund, from on or about July 10, 1981, the
exact date being unknown, and since that time, shall be
required to make whole the Union for any and all contri-
butions due to the Union's funds as required by the col-
lective-bargaining agreement.
Respondent, having violated Section 8(a)(1), (3), and
(5) of the Act by unlawfully terminating the employment
of Judy Thompson, Laura Murphy, and Ann Gulan, and,
thereafter refusing to reinstate them to their former posi-
tions, shall now offer to reinstate them to their former
positions, or if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to any
rights or privileges, and make them whole for any loss of
earnings which they may have sustained as a result of
the termination of their former employment. The loss of
earnings shall be computed as set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed71
ORDER
The Respondent, Rogers Cleaning Contractors, Inc.
and its alter ego Olmsted Cleaning Contractors, Inc.,
Olmstead Falls, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Service,
Hospital, Nursing Home and Public Employees Union,
Local 47, affiliated with Service Employees International
Union, AFL-CIO-CLC as the exclusive bargaining rep-
resentative of its employees in the appropriate unit set
forth above.
71 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to honor and implement the collective-
bargaining agreement between Respondent and the
Union covering the period from May 1, 1978, to May 1,
1981, and remaining in effect to the present.
(c) Bypassing the Union as the exclusive bargaining
representative of Respondent 's employees by notifying
them of reduction in wage rates and other changes in
terms and conditions of employment.
(d) Refusing to make all necessary contributions to the
Union Local 47's health and welfare fund and pension
fund , as required by the collective -bargaining agreement.
(e) Threatening employees in the above-described unit
because of their union activities and sympathies.
(f) Discharging employees, and refusing thereafter to
reinstate them, because they joined , supported , or assist-
ed a union and engaged in concerted activities for the
purpose of collective bargaining and other mutual aid or
protection.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain collectively with Local 47
by acknowledging that they are bound by the existing
collective-bargaining agreement.
(b) Honor, implement, and apply the collective-bar-
gaining agreement referred to above.
(c) Make whole Union Local 47 for any and all benefit
fund and health and welfare fund payments due and
owing pursuant to the collective -bargaining agreement
referred to above in the manner set forth in the remedy
section of this decision.
(d) Make whole its employees for any loss of wages
and benefits incurred as a result of the unfair labor prac-
tices found herein in the manner set forth in the remedy
section of this decision.
(e) Offer Judy Thompson, Laura Murphy, and Ann
Gulan immediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them , in the manner set forth in the remedy section of
the decision.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at their facility at 8660 Columbia Road,
Olmsted Falls, Ohio, and at all locations at which they
provide service in the greater Cleveland, Ohio area,
copies of the attached notice marked "Appendix."72
Copies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
72 If this Order is enforced by'a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."