APF Carting, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 73 (N.L.R.B. 2001)

APF CARTING, INC. 73
APF Carting, Inc. and Local 813, International
Brotherhood of Teamsters, AFL–CIO and Local
958, Laborers International Union of North
America, AFL–CIO, Party in Interest

New York Connecticut Waste Recycling, Inc. and
Local 813, International Brotherhood of Team-
sters, AFL–CIO and Local 958, Laborers Inter-
national Union of North America, AFL–CIO,
Party in Interest

APF Carting, Inc. and its alter ego Gem Enterprises,
Inc. and Local 813, International Brotherhood
of Teamsters, AFL–CIO and Local 958, Labor-
ers International Union of North America,
AFL–CIO, Party in Interest

Local 116, Production and Maintenance Employees
Union and Local 813, International Brotherhood
of Teamsters, AFL–CIO. Cases 2–CA–27220, 2–
CA–27303, 2–CA–27476, 2–CA–27488, 2–CA–
27507, 2–CA–27634, 2–CA–28135, 2–CA–28409,
2–CA–28897, and 2–CB–15927
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On April 2, 1999, Administrative Law Judge D. Barry
Morris issued the attached decision. The Respondents
filed exceptions, a supporting brief, and an answering
brief. The General Counsel filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order as
modified.2
As detailed in the judge’s decision, prior to May 19,
1994, Respondent APF Carting, Inc. (APF) was engaged
in the business of sorting and carting waste material from
its recycling transfer station in Mount Kisco, New York.
APF was owned and operated by Alan, Peter, and Emelia
Ferraro3 and General Manager Gary Mueller. APF’s
machine operators, tractor-trailer drivers, and mechanics
were represented by Local 813, International Brother-
hood of Teamsters, AFL–CIO (Local 813).

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d.
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
On December 2, 1993, APF signed a Conditional Sales
Agreement with Respondent New York Connecticut
Waste Recycling, Inc. (NYConn). NYConn operated a
transfer station in Danbury, Connecticut, and had a col-
lective-bargaining agreement with Local 958, Laborers
International Union of North America (Local 958) cover-
ing certain of its employees at the Danbury station. The
sale to NYConn was conditioned on certain permits
granted by the New York State Department of Environ-
mental Conservation.
The following day, on December 3, 1993, Respondent
Gem Enterprises, Inc. (Gem) was incorporated. Emelia
Ferraro and Gary Mueller were the owners and operators
of Gem. Thereafter, on May 1, 1994, in anticipation of
the sale, Gem contracted with NYConn for the carting of
waste material from the Mount Kisco facility, which pre-
viously had been performed by APF drivers. On May
11, Gem signed a collective-bargaining agreement with
Local 958. On May 19, APF was sold to NYConn, and
the equipment formerly owned by APF was transferred
to Gem.
The judge found, and we agree, that Respondents APF
and Gem are alter egos.4 The judge further found that
Respondents APF and Gem engaged in extensive viola-
tions of Section 8(a)(1), (2), (3), and (5). These viola-
tions included bypassing Local 813 in January 1994 and
directing APF employees to seek other employment if
they wanted to continue membership in Local 813;5
3 Allan, Peter, and Emelia Ferraro are siblings. As reflected in the
record, all three were shareholders of APF Carting. Alan and Peter
were president and vice president, respectively, of APF.
4 In excepting to this finding, the Respondents argue, inter alia, that
there is no evidence that Gem was created for an illegal purpose, i.e., to
evade APF’s responsibilities under the Act. The judge did not address
whether Gem was created for such an illegal purpose and we also find
it unnecessary to do so. Although motive is a relevant consideration,
the Board does not require that an illegal motive be established to find
alter ego status. See Dupont Dow Elastomers L.L.C., 332 NLRB 1071
fn. 1 (2000), and cases cited there. See also Goodman Piping Products
v. NLRB, 741 F.2d 10, 11 (2d Cir. 1984). In agreement with the judge,
we find that alter ego status has been established based on the relevant
objective criteria, including substantially identical management, busi-
ness purpose, operation, equipment, and ownership.
The judge also found that APF and Gem constituted a single em-
ployer. We do not adopt this finding. See NYP Acquisition Corp., 332
NLRB 1041 fn. 1 (2000), affd. sub nom. Newspaper Guild of New York
Local 3, 261 F.3d 291 (2d Cir. 2001) (single-employer analysis is ap-
plicable only where two ongoing businesses are coordinated by a com-
mon master).
5 The General Counsel excepts to the judge’s dismissal of the allega-
tion that Respondent APF also violated Sec. 8(a)(5) by refusing to
engage in effects bargaining with Local 813 over the sale. The judge
336 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
withdrawing recognition from and refusing to bargain
with Local 813 since May 1994;6 refusing to furnish re-
quested information to Local 813 in June 1994 concern-
ing the relationship between APF and Gem; requesting
employee Russell Bonds in May 1994 to withdraw mem-
bership from Local 813, instructing him to sign an au-
thorization card for Local 958, and threatening him with
discharge; distributing a Local 958 authorization card to
employee William Hiltbrand in May 1994 and telling
him and other employees that they “had to sign Local
958 cards”;7 and threatening to terminate employee Jef-
frey McBride in May 1994 if he did not sign a Local 958
card, initially refusing to hire him when he failed to do
so,8 and subsequently discharging him in January 1995
because of his protected union activities. We also adopt
these findings.9

found that APF offered to engage in effects bargaining but Local 813
was unwilling to do so. We adopt these findings.
6 The judge declined to find that Gem violated Sec. 8(a)(2) by rec-
ognizing Teamsters Local 958 because the complaint was not amended
to allege this violation. The General Counsel excepts, contending that
the matter was fully litigated. We find it unnecessary to decide the
matter in view of our finding that Gem, as an alter ego of APF, unlaw-
fully withdrew recognition of Local 813. Our remedy requiring Gem to
bargain with Local 813 will effectively preclude Gem from continuing
to recognize Local 958.
7 The judge dismissed the allegation that Respondent Gem subse-
quently discharged Hiltbrand because of his protected union activity in
violation of Sec. 8(a)(3). The judge found that the General Counsel
failed to make an initial showing under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 445 U.S. 989
(1982), that the discipline was motivated by Hiltbrand’s protected
activity, and that in any event Gem had established that Hiltbrand
would have been discharged even in the absence of protected conduct
for abusing equipment. In affirming the dismissal of this allegation,
Member Liebman relies solely on the judge’s finding that Hiltbrand
would have been discharged even absent his protected activity.
8 Although the judge found in sec. II,A,12 of his decision that Re-
spondent Gem refused to hire McBride, he failed to formally include
this violation in his conclusions of law. We have therefore amended the
conclusions of law to conform to the judge’s findings.
9 The General Counsel excepts to the judge’s failure to find various
additional violations of Sec. 8(a)(1) and (2) of the Act by Respondents
APF and Gem in accordance with the evidence adduced at the hearing.
We find it unnecessary to pass on the General Counsel’s exception as
the additional violations would be cumulative and would not affect the
Order, remedy, or notice.
The General Counsel also excepts to the judge’s dismissal of the
8(a)(1), (2), (3), and (5) allegations against NYConn. The judge found
that NYConn was not the legal successor to APF because NYConn
subcontracted the hauling work to Gem prior to the sale, never per-
formed the trucking function at Mount Kisco, and therefore had no
reason to hire the former APF truckdrivers. The judge found that al-
though NYConn did hire APF’s two remaining machine operators and
mechanics as of the date of sale, they did not constitute a majority of
the four employees who were hired by NYConn in those employee
classifications. Finally, the judge also found that NYConn’s president,
James Gallante, did not distribute or urge employees to sign Local 958
authorization cards. We adopt the judge’s findings.
Although finding that Gem violated Section 8(a)(3) by
initially refusing to hire McBride in May 1994, the judge
dismissed the allegation that Gem unlawfully refused to
offer employment to other former APF employees who
likewise declined to withdraw membership in Local 813.
The judge so found because the General Counsel had
failed to show that the other alleged discriminatees had
applied for employment with Gem. The General Coun-
sel excepts. For the reasons discussed below, we find
merit to those exceptions with respect to Gem’s failure to
employ driver Robert Colarusso.
As of the date of the conditional sales agreement be-
tween APF and NYConn, APF employed five drivers—
Russell Bonds, Robert Colarusso, Donald Champlain,
Jeffrey McBride, and Kevin Ryan.10 On May 19, 1994,
the day of the actual sale, Bonds, Colarusso, and
McBride were APF’s only remaining drivers. Champlain
had left APF on March 8, 1994, to work at Suburban
Carting as a route driver. Ryan also left APF and began
working at Trottown Transfer Company on May 16,
1994. In view of this evidence that Champlain and Ryan
had left APF’s employment prior to the date that Gem
began its operations, and absent any allegation that these
employees were unlawfully terminated, we find that Gem
was not obligated to offer these former APF employees
driving positions. Of the remaining three drivers, the
evidence shows that both Bonds and McBride were of-
fered driver’s jobs with Gem on the condition that they
resign from the Union. Bonds complied and was hired,
whereas McBride refused and was unlawfully denied
employment.
The sole remaining APF driver was Colarusso.11 We
find that, in dismissing the allegation that the Respon-
dents unlawfully failed to offer Colarusso employment,
the judge erred in relying on Colarusso’s failure to for-
mally apply for a driver’s job with Gem. As indicated
above, Gem was APF’s alter ego and there was no hiatus
in operations between APF and Gem. Moreover, the
record is replete with evidence that the Respondents,
through Mueller, made clear to the APF drivers that they
had to withdraw from Local 813 and sign up with Local
10 APF also employed Robert Brichta and Jeffrey Woodward as ma-
chine operators and Robert Mead as a mechanic. Since Gem only hired
tractor-trailer drivers and not machine operators or mechanics, there is
no basis to find the additional 8(a)(3) violations alleged in the com-
plaint regarding these employees. In any event, the evidence shows that
Woodward had left APF’s employment in April 1994 and that Brichta
and Mead were hired by NYConn. See fn. 9, supra.
11 Although Colarusso had arranged to accept a job with another em-
ployer prior to his discharge by the Respondents, he remained as an
active APF employee as of May 19, 1994.
APF CARTING, INC. 75
958 to continue their employment.12 In these circum-
stances, we find that by unlawfully conditioning contin-
ued employment on rejection of the employees’ bargain-
ing representative, the Respondents constructively dis-
charged Colarusso. See Campbell-Harris Electric, 263
NLRB 1143 fn. 6 and 1149 (1982), enfd. 719 F.2d 292
(8th Cir. 1983); Crawford Door Sales Co., 226 NLRB
1144 (1976). Accordingly, we find that the failure to
employ Colarusso violated Section 8(a)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 8 of the judge’s
conclusion of law.
“8. By refusing to employ McBride and Colarusso and
by subsequently discharging McBride for his union ac-
tivities, Respondents APF and Gem have engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, APF
Carting and its alter ego Gem Enterprises, Inc., Mt.
Kisco, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(c) and
reletter the subsequent paragraphs.
“(c) Within 14 days from the date of this Order, offer
Jeffrey McBride and Robert Colarusso immediate and
full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
“(d) Make Jeffrey McBride and Robert Colarusso
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.”
2. Substitute the following for relettered paragraph
2(f).
“(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-

12 Although there is no clear evidence that Mueller stated this to Co-
larusso directly, it is reasonable to infer under the circumstances that
Colarusso would have heard about this unlawful condition from
McBride and/or Hiltbrand. In any event, it is clear that filing an appli-
cation with Gem would have been futile if Colarusso failed to accede to
the unlawful condition.

cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative 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 or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT state to employees that their employ-
ment is conditioned on their withdrawal of membership
in Local 813, International Brotherhood of Teamsters,
AFL–CIO or on their joining Local 958, Laborers Inter-
national Union of North America, AFL–CIO.
WE WILL NOT threaten employees with discharge if
they support Local 813 of if they refuse to withdraw
membership in Local 813.
WE WILL NOT threaten employees with discharge if
they refuse to join Local 958.
WE WILL NOT distribute Local 958 authorization
cards to employees and urge them to sign the cards.
WE WILL NOT refuse to hire employees and dis-
charge them for activities protected by Section 7 of the
Act.
WE WILL NOT refuse to recognize and bargain with
Local 813 as the exclusive representative of our employ-
ees in the appropriate unit with respect to wages, hours,
working conditions, or other terms and conditions of
employment of the employees and refuse to honor the
collective-bargaining agreement applicable to those em-
ployees.
WE WILL NOT bypass Local 813 and deal directly
with our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
WE WILL, on request, bargain with Local 813 and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

All chauffeurs and helpers, bulldozer operators, ma-
chine drivers/operators and recycling truck drivers at all
locations of Respondents, excluding guards and super-
visors as defined in the Act.

WE WILL comply with the terms and conditions of
the collective-bargaining agreement between Respondent
APF and Local 813, including making the appropriate
payments, and make whole employees for any loss of
earnings and other benefits resulting from their dis-
charges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
offer Jeffrey McBride and Robert Colarusso immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges previously enoyed.
WE WILL make Jeffrey McBride and Robert Cola-
russo whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Jeffrey McBride and, WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.

APF CARTING, INC. AND GEM
ENTERPRISES, INC.

Nancy K. Reibstein, Esq. and Katherine R. Schwartz, Esq., for
the General Counsel.
Steven B. Horowitz, Esq. (Ruderman & Glickman, P.C.), of
Springfield, New Jersey, for Respondent (APF).
Ira Drogin, Esq., of New York, New York, for Respondent
(Gem).
Edward F. Beane, Esq. (Keane & Beane), of White Plains, New
York, for Respondent (NYConn).
Sonja P. Fritts, Esq. (Cohen, Weiss & Simon), of New York,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York, New York, during 15 days
of hearing beginning November 8, 1995, and concluding on
July 2, 1998. On numerous charges, which were filed, an
amended consolidated complaint was issued on June 8, 1995.
The consolidated complaint alleged that Respondents violated
various sections of the National Labor Relations (the Act), as
amended. Respondents filed answers denying the commission
of the alleged unfair labor practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on De-
cember 4, 1998.
On the entire record of the case including my observation of
the demeanor of the witnesses I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, APF Carting, Inc. (APF), a New York corpora-
tion, with an office and place of business in Mount Kisco, New
York, has operated a recycling transfer station in Mount Kisco
and has been engaged in the sorting and carting of waste mate-
rial. Respondent, New York Connecticut Waste Recycling,
Inc. (NYConn), a corporation, with an office and place of busi-
ness in Danbury, Connecticut, has operated a recycling transfer
station in Danbury, Connecticut, and Mount Kisco and has been
engaged in the sorting of waste material. Respondent, Gem
Enterprises, Inc. (Gem), a New York corporation, with an of-
fice and place of business in Bedford Hills, New York, has
been engaged in the carting of waste material and brokerage of
dumping. Respondents have admitted and I find that they are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. In addition, it has been admitted
and I find that Local 813, International Brotherhood of Team-
sters, AFL–CIO (Local 813 or the Union), Local 958, Laborers
International Union of North America, AFL–CIO (Local 958),
and Local 116, Production and Maintenance Employees Union
(Local 116) are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The background
Until May 19, 1994,1 when APF sold its business to NY-
Conn, APF operated a recycling transfer station in Mount
Kisco, New York. From this Mount Kisco transfer station,
which APF occupied by virtue of a lease agreement with the
village of Mount Kisco, APF engaged in the business of sorting
and carting waste material. Alan Ferraro and his brother Peter
were president and vice president respectively of APF. Gary
Mueller was APF’s general manager.
APF and Local 813 had a collective-bargaining relationship
since the 1980s. The parties’ last collective-bargaining agree-
ment was effective by its terms from November 1, 1990,
through November 30, 1993. The contract covered the bargain-
ing unit consisting of chauffeurs and helpers, bulldozer opera-
tors, machine drivers/operators, and recycling truckdrivers. As
of December 1993 APF employed the following bargaining
unit employees, two machine operators (Robert Brichta and
Jeffrey Woodward), five tractor-trailer drivers (Russell Bonds,
Jeffrey McBride, Robert Colarusso, Donald Champlin, and

1 All dates refer to 1994 unless otherwise specified.
APF CARTING, INC. 77
Kevin Ryan), and one mechanic (Robert Mead). As of May 19,
when the sale of APF took place APF employed the following
bargaining unit employees: One mechanic (Robert Mead), one
machine operator (Robert Brichta) and two truckdrivers (Jef-
frey McBride and Russell Bonds).
NYConn operated a transfer station in Danbury, Connecticut,
where it was engaged in the sorting and carting of waste mate-
rial. James Galante is president and owner of NYConn and
Thomas Milo is secretary and owner of the corporation. On
December 2, 1993, APF and NYConn signed a Conditional
Sales Agreement. By letter dated December 10, 1993, Allan
Ferraro wrote to Michael Lieber, counsel to Local 813, that
“APF Carting has entered into a conditional sales contract with
NYConn, Recycling which would in effect transfer all of the
company’s business to them.” The letter further stated, “[W]e
offer to meet with you at your convenience to discuss the affect
[sic] of that contract upon our unit employees.”
In early January 1994, Local 813 Business Agent Marcello
Mastropietro visited the Mount Kisco station and told several
employees that APF was selling its business to NYConn. Mas-
tropietro distributed NYConn job applications for the employ-
ees to complete and for the Union to submit to NYConn. Later
that day, Mueller called a meeting with the APF drivers. Rus-
sell Bonds, one of the drivers present, testified that he asked
Mueller about Local 813 and that Mueller replied that “NY-
Conn had their own Local, which was 958.”
Gem was incorporated on December 3, 1993, the day after
APF and NYConn entered into the Conditional Sales Agree-
ment. Emelia Ferraro, the sister of Allan and Peter, is the presi-
dent of Gem and Mueller is the vice president. Emelia and
Mueller are the sole shareholders of Gem. On May 1, NYConn
and Gem entered into a subcontracting agreement for Gem to
perform the trucking portion of the former APF business. On
May 11, Gem signed a collective-bargaining agreement with
Local 958. On May 19, the equipment formerly owned by APF
and sold to NYConn was transferred to Gem.
2. Alter ego and single employer
The complaint alleges that Gem is the Alter Ego of APF and
that APF and Gem constitute a single employer. In Crawford
Door Sales Co., 226 NLRB 1144 (1976), the Board stated the
following criteria for establishing alter ego status:

Clearly each case must turn on its own facts, but generally we
have found alter ego status where the two enterprises have
“substantially identical” management, business purpose, op-
eration, equipment, customers, and supervision, as well as
ownership.

Not all of these indicia need be present. Blake Construction
Co., 245 NLRB 630, 634 (1979), enf. granted in part and de-
nied in part on other grounds 663 F.2d 272 (D.C. Cir. 1981); E.
G. Sprinkler Corp., 268 NLRB 1241, 1243 (1984), enfd. sub
nom. Goodman Piping Products v. NLRB, 741 F.2d 10 (2d Cir.
1984); Walton Mirror Works, 313 NLRB 1279, 1283–1284
(1994). The Board has held that common ownership is estab-
lished if both companies are owned by members of the same
family. J. M. Tanaka Construction, 249 NLRB 238, 241 fn. 29
(1980), enfd. 675 F.2d. 1029 (9th Cir. 1982); Superior Export
Packing Co., 284 NLRB 1169, 1170 (1987); Walton Mirror
Works, supra, 313 NLRB at 2184.
I find that all of the legal criteria have been satisfied. Muel-
ler was general manager of APF and is vice president of Gem.
I credit Bonds’ testimony, who appeared to me to be a credible
witness, that Emelia Ferraro regularly assigned work at APF.
Emelia is president of Gem. The operation and business pur-
pose of the Companies were the same. Indeed, at the meeting
at the board of trustees of the Village of Mount Kisco held on
March 21, 1994, it was stated that “the old APF operation
would be moving back to Mount Kisco.” Mueller conceded
that with respect to the Hartford Burn Plant, Gem was working
on a APF letter of credit until August 1994. With respect to
equipment, Gem used the same equipment that APF used. The
record contains the bills of sale from NYConn to Gem of the
Peterbilt Tractors, which were executed contemporaneously
with the sale of the equipment by APF to NYConn. With re-
spect to ownership, APF was owned by Allan and Peter
Ferraro. The record contains two agreements, which refer to
the principals of APF as Allan, Peter, and Emelia Ferraro.
Emelia was a major shareholder of Gem. As stated above, the
Board has held that common ownership is established if both
companies are owned by members of the same family. See
Walton Mirror Works, supra. Accordingly, I find that Gem is
the alter ego of APF.
The complaint also alleges that APF and Gem constitute a
single employer within the meaning of the Act. The criteria
that the Board normally looks to in deciding whether nominally
separate businesses may be regarded as a single employer are
common management, common ownership, centralized control
of labor relations, and interrelation of operations. See Mer-
chants Iron & Steel Corp., 321 NLRB 360 fn. 1 (1996). For the
same reasons stated above for finding that Gem is the alter ego
of APF, I find that the two corporations constitute a single em-
ployer.
3. Request for effects bargaining
The complaint alleges that since December 1993, the Union
requested that APF engage in effects bargaining and that APF
refused to do so in violation of Section 8(a)(1) and (5) of the
Act. By letter dated December 10, 1993, Allan Ferraro, presi-
dent of APF, wrote to Michael Lieber, general counsel of Local
813, as follows:

APF Carting Inc. has entered into a conditional sales contract
with NYConn Recycling which would in effect transfer all of
the company’s business to them. We believe that the condi-
tions of that contract will be met in the future and the sale will
become effective. Because of that belief, we offer to meet
with you at your convenience to discuss the affect [sic] of that
contract upon our unit employees.

On February 4, Lieber wrote to Sanford Pollack, counsel to
APF, requesting that the parties meet to negotiate a renewal
collective-bargaining agreement. Lieber pointed out that he
had not as yet been provided a copy of the Conditional Sales
Agreement. Lieber testified that he received the copy of the
Conditional Sales Agreement on February 10. Lieber further
testified that Pollack had “from the beginning wanted to pro-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
ceed with effect bargaining as opposed to bargaining for a re-
newal collective-bargaining agreement.” Lieber stated that the
Union instead “wanted to negotiate a successor collective-
bargaining agreement with APF.” Lieber testified, “I wasn’t
looking to have an effects bargain, because I didn’t think it was
the type of situation that required an effects bargain. I was
looking to bargain over a successorship and not effects bar-
gain.”2 By letter dated June 13, 1994, Pollack informed Lieber
that APF “[R]emains willing to discuss the effects of our dis-
continuance of operations.”
As pointed out above, the complaint alleges that since De-
cember 1993, APF refused to engage in effects bargaining re-
garding its decision to sell its business to NYConn. The record
clearly indicates, however, that APF offered to engage in ef-
fects bargaining. Lieber testified however, that the Union was
unwilling to engage in effects bargaining and only wanted to
bargain over a successor agreement. Accordingly, I find that
the General Counsel has not shown that APF refused to engage
in effects bargaining and, therefore, the allegation is dismissed.
4. Bypassing the Union
The complaint alleges that in January 1994 Mueller bypassed
the Union and dealt directly with APF’s employees by directing
and encouraging them to seek other employment if they wanted
to continue membership in the Union, in violation of Section
8(a)(1) and (5) of the Act.
In early January 1994, Mastropietro visited the Mount Kisco
transfer station and told several employees that APF was selling
its business to NYConn. Mastropietro distributed NYConn job
applications for the employees to complete and for the Union to
submit to NYConn. Realizing that the employees had heard
about the APF sale, Mueller convened a meeting later that day
with APF drivers in the APF garage. Donald Champlin, one of
the APF drivers, who appeared to me to be a credible witness,
testified that Mueller told the drivers that “we all better go out
and find another job because NYConn was taking over and you
know that NYConn had her own Union, which was 958.”
Champlin further testified that Mueller told them “[I]f we had
any NYConn applications, please give them to him, and he
would see that they got to NYConn. Because if you gave them
to the Union, you know, nothing would probably happen with
them.”
I credit Champlin’s testimony and find that by dealing di-
rectly with the drivers Respondent unlawfully bypassed the
Union and failed in its duty to bargain exclusively with the
Union, in violation of Section 8(a)(1) and (5) of the Act. See E.
I. du Pont & Co., 311 NLRB 893, 919 (1993); Leisure Knoll
Assn., 327 NLRB 327 (1999).
5. Successorship
The General Counsel contends that NYConn is the legal suc-
cessor to APF. Accordingly, the complaint alleges that NY-
Conn refused to recognize Local 813 as the exclusive collec-

2 The General Counsel has moved to correct LL. 11–12, p. 206 (Feb-
ruary 2, 1998) of the transcript. The General Counsel’s motion is
granted. The transcript shall read “APF was prepared to meet to effects
bargain.”
tive-bargaining representative of the NYConn unit and has
failed to offer employment to the former APF unit employees.
On December 2, 1993, NYConn entered into a Conditional
Sales Agreement to purchase the assets of APF at the Mount
Kisco transfer station. This asset sale was conditioned on the
Village of Mount Kisco’s approval of the assignment and the
issuance to NYConn of a permit to operate the transfer station
by the New York State Department of Environmental Conser-
vation (DEC). These conditions were not satisfied until May
1994. Prior to the sale, which was consummated May 19, NY-
Conn decided that the transportation of solid waste would be
subcontracted to Gem. NYConn never performed the trucking
function in Mount Kisco and therefore did not hire any tractor-
trailer drivers. It is well settled that a “purchasing employer is
not obligated to hire the selling company’s work force and that
only the refusal to hire for a discriminatory motive is unlaw-
ful.” Shortway Surburban Lines, 286 NLRB 323 (1987), enfd.
862 F.2d 309 (3d Cir. 1988). In analyzing whether an em-
ployer’s hiring practices were discriminatorily motivated, the
Board applies the traditional Wright Line analysis. New Breed
Leasing Corp., 317 NLRB 1011, 1022 (1995). The complaint
alleges that since February 1994, NYConn refused to offer
employment to APF’s tractor-trailer drivers. The necessary
approvals for the sale of the assets of APF to NYConn did not
take place until May 1994. Until then NYConn was not obli-
gated to, nor could it have offered employment to the former
APF employees. By the time the sale was consummated NY-
Conn had decided to subcontract the hauling work to Gem.
Accordingly, it had no reason to hire APF’s former tractor-
trailer drivers. I believe that the General Counsel has not made
a prima facie showing sufficient to support the inference that
NYConn’s refusal to hire the former APF tractor-trailer drivers
was because of their membership in Local 813. Accordingly,
the allegation is dismissed. See Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
As stated in Harbert International Services, 299 NLRB 472,
475 (1990):

It is settled law under the Board’s and Court’s traditional test
that when a new employer takes over the business of a for-
merly unionized operation and does so with a substantial and
representative complement of bargaining unit employees, a
majority of whom had been similarly employed by the prede-
cessor, the new employer will be considered a “successor em-
ployer” and will inherit certain of the predecessor’s bargain-
ing obligations.

See NLRB v. Burns Security Services, 406 U.S. 272 (1972);
Fall River Dyeing Corp. v. NLRB, 482 U.S. 275 (1987).
NYConn’s payroll records establish that as of the payroll pe-
riod ending May 25, NYConn employed one mechanic, Robert
Mead, and three machine operators, Robert Brichta, William
Magrino, and Scott Edwards. Two of the four bargaining unit
employees, Mead and Brichta, were former APF employees.
The other two were not. Inasmuch as NYConn did not hire a
majority of former APF employees I find that NYConn is not
the legal successor to APF. Accordingly, the allegation that
APF CARTING, INC. 79
NYConn unlawfully refused to recognize and bargain with
Local 813 is dismissed.3
6. Alleged violations by Mueller in May 1994
In May 1994, Mueller had a conversation with Bonds.
Mueller told Bonds that he and Emelia Ferraro were forming a
company called Gem Enterprises and Mueller offered Bonds a
job at Gem. I credit Bonds testimony that Mueller told him that
he would, “[H]ave to get a withdrawal card from 813 and join
Local 958.” I also credit Bonds testimony that Mueller told
him, “I could not cause any problems with any of the guys that
he was going to get, as far as other employees, as far as trying
to get them into 813, or he will fire me and I will have noth-
ing.” Bonds met again with Mueller on the day that the sale
was consummated. Mueller told Bonds that he and Emelia
Ferraro were now in business as Gem Enterprises and that
Bonds could start working for them the following Monday. I
credit Bond’s testimony that Mueller told him he would have to
get a withdrawal card from Local 813 to continue working for
Gem. Bonds met again with Mueller approximately 1 week
later. I credit Bonds testimony that at that time Mueller told
him that “I’d have to sign a 958 card for Local 958.” Bonds
signed the authorization card for Local 958 but omitted the date
pursuant to Mueller’s instruction.
By requesting that Bonds withdraw membership from Local
813 and join Local 958 and by threatening him with discharge,
I find that Respondent, through Mueller, violated Section
8(a)(1) of the Act. In addition, by Mueller instructing Bonds to
sign an authorization card for Local 958 and by him advising
Bonds the manner in which to sign the card Respondent vio-
lated Section 8(a)(2) of the Act. See Citywide Service Corp.,
317 NLRB 861, 876–877 (1995).
7. NYConn’s alleged distribution of authorization cards
The complaint alleges that on May 18, 1994, James Gallante,
president of NYConn, distributed Local 958 authorization cards
to the employees at the Mount Kisco transfer station and urged
them to sign the cards. Mead testified that on May 18, Fiorello
introduced him to a representative from Local 958 and they
asked himself and Brichta to sign authorization cards. Brichta
testified that no NYConn representative introduced him to a
Local 958 representative but instead that the Local 958 repre-
sentative introduced himself and told Brichta that “he has cards
for us to sign.” I credit Brichta’s testimony and find that the
General Counsel has not shown by a preponderance of the evi-
dence that any NYConn representative distributed Local 958
authorization cards to employees on May 18, and urged them to
sign the cards. Accordingly, the allegation is dismissed.
8. Request for information
The complaint alleges that since June 22, the Union has re-
quested that APF furnish it with information concerning the
ownership status of APF’s equipment but that APF has refused
to furnish the information. By letter dated June 22, Lieber re-
quested that APF supply the Union with documentation as to

3 The complaint alleges that NYConn’s recognition of Local 116
was unlawful since it was required to bargain with Local 813. In view
of my finding that NYConn was not required to bargain with Local
813, the allegation is dismissed.
the status of the APF equipment. Specifically, Lieber asked for
documentation concerning what arrangements were made for
the tractor-trailers and bulldozers. Lieber testified that he
needed the information because he believed that Gem was an
alter ego of APF and “wanted to find out what happened to the
trucks.” The parties met for a negotiating session on July 11.
Lieber again requested the documentation. He credibly testi-
fied, “I advised Mr. Pollack that I needed the information that I
had requested in order for me to determine . . . whether or not
Gem was a separate, new company or whether it was an alter
ego.” Pollack refused to turn over the information and told
Lieber, “[D]o what you have to do, let the NLRB make the
ruling.” I find that APF’s refusal to furnish the Union with the
requested information constitutes a violation of Section 8(a)(1)
and (5) of the Act. See Brisco Sheet Metal, 307 NLRB 361
(1992).
9. Gem’s withdrawal of recognition
The complaint alleges that since May 1994, Gem has with-
drawn recognition from Local 813 and has refused to recognize
and bargain with Local 813 as the exclusive bargaining repre-
sentative of the Gem unit, in violation of Section 8(a)(1) and
(5) of the Act. On May 11, Gem entered into a collective-
bargaining agreement with Local 958. It is undisputed that
Local 813 was the exclusive bargaining representative of an
appropriate unit of APF’s employees. On May 24, Lieber
wrote to Mueller demanding that Gem recognize and bargain
with Local 813. By letter dated May 31, Sanford Pollack,
Counsel to Gem, wrote to Lieber, “[W]e do not agree with your
conclusion with regard to the successorship issue.” Inasmuch
as I have found that Gem is the alter ego of APF, I find that
Gem’s withdrawal of recognition from Local 813 constitutes a
violation of Section 8(a)(1) and (5) of the Act.4 See Citywide
Service Corp., supra.
10. McBride discharge
Jeffrey McBride was employed by APF from March 1991
until APF was sold to NYConn on May 19. McBride began
working for Gem as a part-time employee in August 1994, and
in late August or early September 1994 he was hired by Muel-
ler as a full-time tractor-trailer driver. McBride testified that in
early January 1995, all the Gem employees signed Local 813
authorization cards. The evening after the employees signed
the Local 813 authorization cards Mueller telephoned McBride
at his home. Mueller told McBride, “[W]e have to talk, we
have to meet. You guys signed cards.” They met the following
day. I credit McBride’s testimony that Mueller told him,
“[Y]ou signed these guys up 813 . . . I can’t believe you just f-
everybody’s job.” At the same conversation Mueller also told
McBride that he, “[S]tabbed him in the back,” and they con-
cluded the conversation by Mueller telling McBride, “[Y]ou
have to work on Monday and we’ll take it from there.” As they
4 The General Counsel has requested that I find, sua sponte, that
Gem violated Sec. 8(a)(2) by recognizing Local 958. I decline to do so
inasmuch as the complaint was not amended to allege this violation and
Respondent was given no opportunity to contest the allegation. See
Medin Realty Corp., 307 NLRB 497, 503 (1992); Citywide Service
Corp., supra, 317 NLRB at 879.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
left the restaurant where they had been meeting Mueller told
McBride, “[H]e’s gonna park the trucks and in a year after this
all blows down he’ll hire more guys and he’ll get them in 958,
that there’s no way he’s gonna go with 813.” On the following
Monday, January 9, 1995, after McBride delivered his first load
on the way back to the transfer station the clutch in his truck
broke. When McBride returned to the transfer station Mueller
told him, “[N]ow that the truck is broken, that he’s not going to
fix the truck and now I’m laid off.” Mueller was unhappy with
McBride having signed the authorization card for Local 813.
Very soon thereafter, McBride was laid off. I find that the
General Counsel has made a prima facie showing sufficient to
support the inference that protected conduct was a motivating
factor in Gem’s decision to lay off McBride. See Wright Line,
supra, 251 NLRB at 1089.
Mueller stated that the reason for laying off McBride was
that Gem had no spare truck at the time and he did not know
how long it would take to repair the truck. I credit McBride’s
testimony that it was Mueller’s practice that if a driver’s truck
was being repaired Mueller would have the driver work a night
shift hauling refuse to Hartford, Connecticut, where the landfill
was open until 3 a.m. Mueller testified that when a truck was
out of commission for several days an employee would take
vacation or sick days. Mueller admitted that he did not recall
McBride to work, even though after McBrides alleged layoff,
Mueller hired a new driver. In addition, Mueller admitted that
after the truck was repaired he did not recall McBride to work
for Gem. I find that Gem has not satisfied its burden of demon-
stating that the “same action would have taken place even in the
absence of the protected conduct.” Accordingly, I find that on
January 9, 1995, Gem discharged McBride in violation of Sec-
tion 8(a)(1) and (3) of the Act.
11. Hiltbrand discharge
William Hiltbrand was employed by Gem as a tractor-trailer
driver on May 9, 1994. I credit Hiltbrand’s testimony that on
May 19, 1994, the day of the APF sale, Mueller gave him a
Local 958 authorization card to sign and told Hiltbrand and the
other employees that they “had to sign 958 cards.” I also credit
Hiltbrand’s testimony that at the same time Mueller asked
McBride if he was going to sign the Local 958 card, at which
time McBride said that he would not. At that point Mueller
told McBride, “[W]ell, I guess you’re terminated.” I find that
Mueller’s having distributed authorization cards on behalf of a
union constitutes a violation of Section 8(a)(2) of the Act. See
Citywide Service Corp., supra, 317 NLRB at 877. In addition,
Mueller’s threat to McBride that he would be terminated if he
did not sign an authorization card for Local 958 constitutes a
violation of Section 8(a)(1) of the Act.
Mueller discharged Hiltbrand on March 9, 1995. Hiltbrand
testified that the only reason Mueller gave for terminating him
was for “equipment abuse.” I credit Mueller’s testimony that
Hiltbrand had previously stranded a driver and was warned
about his conduct, had run out of fuel by failing to check the
gas gauge and had once had a blown air line and failed to fol-
low the proper procedures and had not reported the problem to
Mueller. In late April or early March 1995, Hiltbrand was sent
to haul a load of refuse to the Westfield, Massachusetts land-
filll. When he arrived he could not offload the trailer and he
noticed smoke coming from beneath the tractor. Mueller be-
lieved that Hiltbrand had negligently allowed an expensive
hydraulic pump to be burned. Mueller told Hiltbrand that if
Mueller learned that Hiltbrand negligently destroyed the pump,
Hiltbrand would be fired. Mueller showed the pump to Mead.
I credit Mueller’s testimony that Mead told him “this guy drove
with his pump engaged.” I am making no finding whether in
fact Hiltbrand drove with the clutch engaged. I do, however,
credit Mueller’s testimony that he believed that Hiltbrand
abused the equipment and he discharged him for that reason.
I do not believe that the General Counsel had made a prima
facie showing sufficient to support the inference that protected
conduct was a motivating factor in Gem’s decision to discharge
Hiltbrand. Hiltbrand signed the Local 813 authorization card
approximately 2 months prior to his discharge. He signed it
together with other employees who were not discharged. Had
Mueller wanted to terminate Hiltbrand because of his activity
on behalf of Local 813, he would have done so much sooner,
similar to the timing that was used in discharging McBride.
Even, however, if it were deemed that the General Counsel has
made a prima facie showing, I believe that because of the
equipment abuse, Respondent Gem has satisfied its burden of
showing that “the same action would have taken place even in
the absence of the protected conduct.” Wright Line, supra, 251
NLRB at 1089.
12. Gem’s alleged failure to offer employment to former
APF employees
The complaint alleges that since May 1994, Gem failed to
offer employment to former APF unit employees, including
McBride, Woodward, Colarusso, and Brichta. I credit Mc-
Bride’s testimony that in May 1994 Mueller told him that he
obtained the exclusive contract to haul out of APF’s yard and
that “I would have to take a withdrawal from 813 if I wanted to
come to work for him.” McBride did not accept the offer. I
find that Gem’s refusal to hire McBride unless he withdrew
from Local 813 constitutes a violation of Section 8(a)(1) and
(3) of the Act. See C. J. Rogers Transfer, 300 NLRB 1095,
1100–1101 (1990), enfd. 936 F.2d 279 (6th Cir. 1991). With
respect to Woodward, Colaruso, and Brichta, no adequate
showing has been made that they applied for employment with
Gem. Accordingly, the allegations with respect to them are
dismissed.
CONCLUSIONS OF LAW
1. Respondents APF Carting, Inc., and Gem Enterprises,
Inc., constitute a single employer and Gem is the alter ego of
APF.
2. Respondents APF, Gem, and New York Connecticut
Waste Recycling, Inc. are employers engaged in commerce
within the meaning of Section (2), (6), and (7) of the Act.
3. Local 813, IBT, Local 958 Laborers International Union
of North America and Local 116, Production and Maintenance
Employees Union are labor organizations within the meaning
of Section 2(5) of the Act.
4. The following employees of Respondents APF and Gem
constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
APF CARTING, INC. 81

All chauffeurs and helpers, bulldozer operators, machine
drivers/operators and recycling truck drivers at all locations of
the Respondents, excluding guards and supervisors as defined
in the Act.

5. At all material times Local 813 has been the exclusive col-
lective-bargaining representative of the employees in the ap-
propriate unit, within the meaning of the Act.
6. By stating to employees that their employment was condi-
tioned on their withdrawal of membership in Local 813 and by
joining Local 958; by threatening employees with discharge if
they supported Local 813, if they refused to withdraw member-
ship in Local 813 and if they refused to join Local 958, Re-
spondents APF and Gem have engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. By distributing Local 958 authorization cards to employ-
ees and by urging them to sign the cards, Respondents APF and
Gem have engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (2) of the Act.
8. By discharging McBride for his union activities, Respon-
dents APF and Gem have engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
9. By bypassing the Union and dealing directly with the unit
employees, by failing to furnish Local 813 with relevant re-
quested information and by withdrawing recognition from Lo-
cal 813, Respondents APF and Gem have engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of
the Act.
10. The aforesaid unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. Respondents did not violate the Act in any other manner
alleged in the complaint.
THE REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I find it necessary to order Respondents to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent APF, and its alter ego, Re-
spondent Gem, violated Section 8(a)(1) and (5) of the Act, I
shall order them to recognize and, on request, bargain with
Local 813 as the exclusive bargaining representative of the
employees in the appropriate unit. In addition, I shall order
Respondents APF and Gem to make whole any employees who
may have incurred losses as a result of Respondents’ unlawful
failure to adhere to the terms of the collective-bargaining
agreement. Any backpay owed shall be computed in the man-
ner prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Respondents APF and Gem shall also make whole
employees by making any unpaid fringe benefit fund contribu-
tions as provided by the collective-bargaining agreement and
by reimbursing employees for any expenses ensuing from Re-
spondents’ failure to make such contributions as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981). Reimbursement payments to
employees shall include interest to be computed in the manner
prescribed in New Horizons for the Retarded, supra.
Respondents APF and Gem, having initially unlawfully
failed to hire McBride, and then, after hiring him, having
unlawfully discharged him, I find it necessary to order Respon-
dents to offer him full reinstatement to his former position or, if
such position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he may
have suffered from the time he was initially denied employment
to the date of Respondents’ offer of reinstatement. Backpay
shall be computed in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended5
ORDER
The Respondents, APF Carting, Inc. and its alter ego, Gem
Enterprises, Inc., Mount Kisco and Bedford Hills, New York,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Stating to employees that their employment is condi-
tioned on their withdrawal of membership in Local 813 or on
their joining Local 958; threatening employees with discharge
if they support Local 813 or if they refuse to withdraw mem-
bership in Local 813; or threatening employees with discharge
if they refuse to join Local 958.
(b) Distributing Local 958 authorization cards to employees
and urging them to sign the cards.
(c) Failing to hire employees and discharging them for
activities protected by Section 7 of the Act.

(d) Refusing to recognize and bargain with Local 813 as the
exclusive representative of its employees in the appropriate unit
with respect to wages, hours, working conditions, or other
terms and conditions of employment of said employees and
refusing to honor the collective-bargaining agreement applica-
ble to those employees.
(e) Bypassing Local 813 and dealing directly with its em-
ployees.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain collectively with Local
813 as the exclusive representative of the employees in the
following appropriate unit and, on request, embody in a signed
agreement any understanding reached. The appropriate unit is:

All chauffeurs and helpers, bulldozer operators, machine
drivers/operators and recycling truck drivers at all locations of
5 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
Respondents, excluding guards and supervisors as defined in
the Act.

(b) Comply with the terms and conditions of the collective-
bargaining agreement between APF and Local 813, including
making the appropriate payments, and make whole employees
for any loss of pay and other benefits that they may have suf-
fered, with interest, in the manner set forth in the remedy sec-
tion above.
(c) Within 14 days from the date of this Order offer Jeffrey
McBride immediate and full reinstatement to his former posi-
tion or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or other
rights and privileges and make him whole for any loss of earn-
ings, with interest, in the manner set forth in the remedy section
above entitled.
(d) Within 14 days from the date of this Order, remove from
their files any references to the unlawful discharge and within 3
days thereafter notify McBride in writing that this has been
done and that the discharge will not be used against him in any
way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cilities copies of the attached notice marked “Appendix.”6 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondents have gone out
of business or closed the facility involved in these proceedings,
the Respondents shall duplicate and mail, at their own expense,
a copy of the notice to all current employees and former em-
ployees employed by the Respondents at any time since Janu-
ary 2, 1994.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
(h) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”