G & T Terminal Packaging Co.

National Labor Relations Board - Board Decisions

Aug 20, 1998

326 N.L.R.B. 114 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
G & T Terminal Packaging Co., Inc., and Mr.
Sprout, Inc., and Tray Wrap, Inc. and Chain
Trucking Inc. a Single Employer, and G & T
Terminal Packaging Inc., and its alter ego
Slow Pack, Inc. and Paper Products and Mis-
cellaneous Drivers, Warehousemen, Helpers
and Messengers, Local 27, International
Brotherhood of Teamsters, AFL–CIO now
known as Private Sanitation Union Local 813,
International Brotherhood of Teamsters a/w
AFL–CIO and Denny Lopez. Cases 2–CA–
26738, 2–CA–27745, 2–CA–28364, and 2–CA–
28360
August 20, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
On September 9, 1996, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent and the General Counsel filed exceptions
and supporting briefs. The General Counsel also filed
a brief in support of the administrative law judge’s
decision.
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 re-
cord in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order3 as
modified.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951 ). We have carefully examined the re-
cord and find no basis for reversing the findings.
In affirming the judge’s finding that Respondent Slow Pack is an
alter ego of Respondent G & T, we note in addition that Anthony
Spinale, president of both companies, admitted that “Slow Pack was
set up to replace G & T when we had the problem with Local 27.”
2 The General Counsel excepted to a series of minor inadvertent
errors involving the judge’s conclusions of law and appendices. We
shall make corrections as warranted. Thus, Conclusion of Law 3
shall read “April 17, 1995” rather than “June 17, 1995”; Denny
Lopez and Mercedes Garcia shall be included in App. A because
both their testimony and their time cards show they reported to work
on April 17, 1995, but did not work; the date “1/1/94” on App. D
shall read “Jan. 93.”
3 We agree with the judge that a broad order is warranted and find
that the Respondent’s exception to it is without merit. We rely,
however, on the judge’s findings, and our additional findings here,
that the Respondent engaged in widespread violations of Sec. 8(a)(5)
and (3) of the Act thereby demonstrating a general disregard for the
employees’ fundamental statutory rights. We note that the judge
erred by stating that there had been a previous finding that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act in Case 2–CA–
26738 by both withdrawing recognition from the Union and by
unilaterally discontinuing payments to the Union’s Pension and
Welfare Funds. In fact, the Respondent’s misconduct there involved
only the latter violation. However, even without the former matter, a
broad order is warranted.
1. The judge found that the Respondent violated
Section 8(a)(5), (3), and (1) of the Act in several re-
spects. First, the Respondent and the Union agreed on
a contract on June 10, 1994, which the Respondent
refused to sign, in violation of Section 8(a)(5). Sec-
ond, the Respondent discriminatorily discharged or
laid off almost all of its employees on April 17, 1995,
and refused to reemploy them, in violation of Section
8(a)(3). Third, the Respondent violated Section
8(a)(5) by unilaterally subcontracting or transferring its
potato packaging operations on April 17, 1995.
Fourth, the Respondent reinstated some employees on
April 19, 1995, without regard to the seniority provi-
sions of the expired contract, in violation of Section
8(a)(5). Fifth, the Respondent unilaterally granted a
wage increase to some of its employees in May 1995,
in violation of Section 8(a)(5). In addition, the judge
found that the Respondent must comply with the back-
pay specification pursuant to the Board Order in Case
2–CA–26738 (not included in bound volumes) and
make whole the Union’s Welfare and Pension Funds
for those amounts that it unlawfully withheld.4
We agree with the judge’s findings with the follow-
ing modifications.
(1) The judge found that the Respondent discrimina-
torily discharged or laid off employees on April 17,
1995. He noted that Union Business Agent Richard
Ruggiero and two other business agents arrived at the
Respondent’s business location about 7:30 a.m. They
began picketing to protest the Respondent’s unfair
labor practices and to communicate with employees.
He further found that the union agents did not ask the
employees to engage in a strike. Employees attempted
to go to work at 7:55 a.m., 5 minutes before the start-
ing time. The Respondent’s owner, Anthony Spinale,
told them that he did not need them and that they
should go home and/or collect unemployment.5 The
judge then concluded that “Spinale laid off a large
group of his employees on April 17, 1995, when he
saw that the Union was engaged in picketing activity
4 In adopting the judge’s findings regarding Case 2–CA–26738,
we need not rely on his opinion that “the contracts . . . incorporate by
reference the underlying trust documents.” The judge correctly
applied Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979), to the issue of calculating interest for defaulted payments
owed to funds. In Merryweather the Board held that, as matter of
remedy, it would look in the first instance to the underlying trust
documents to determine the amounts necessary to satisfy a make-
whole remedy for defaulted fund payments. Accordingly, the Re-
spondent owes the Union’s Pension and Welfare Funds the amounts
established by the judge in his decision, tabulated in Apps. D and E,
and subject to such continuing liability as indicated by the judge.
5 Spinale allowed 10–12 of his approximately 80 employees to
perform the work of packaging Brussel sprouts.
326 NLRB No. 19
G & T TERMINAL PACKAGING CO. 115
and when he saw that his employees were speaking to
union representatives before the start of the work day.”
The judge’s recitation of facts and conclusion reveal
that he implicitly credited the testimony of Ruggiero
and other General Counsel witnesses and implicitly
discredited Spinale and other Respondent witnesses.
Ruggiero testified that he and his union colleagues
went to the Respondent’s site in the Hunts Point Mar-
ket on April 17, 1995, at 7:30 a.m. They displayed
picket signs stating that “the NLRB ruled the Em-
ployer has been charged with an unfair labor practice”
and “would have to pay back health and welfare bene-
fits.” According to Ruggiero, he and his colleagues
wanted to let the employees “know that the NLRB had
ruled against the Employer and in favor of them, [and]
that . . . back pension and health and welfare benefits
would be paid.”6 Ruggiero also testified that the Re-
spondent’s employees “were starting to come in to
report to work and they asked us questions.” He spoke
to “around 68” employees telling them “that this was .
. . an information picket line,” and urging them “to
report to work, not to stay out here.” Ruggiero further
testified that about 5 minutes before the 8 a.m. starting
time, Spinale told the employees “that he didn’t want
any of [them] working here anymore, that they would
all be fired and get out of here to collect unemploy-
ment, he didn’t need them anymore.” Ruggiero then
approached Spinale with the employees and asked Spi-
nale to let the employees go to work, but Spinale “said
that he didn’t want anybody back here that would be
affiliated or socializing with the Union.” Spinale also
repeated his admonitions that he did not want the
employees working for him, and they could collect
unemployment.7
In cases in which it is alleged that an employer had
discriminated against employees in violation of Sec-
tion 8(a)(3) and (1), the General Counsel must demon-
strate that animus against the employees’ protected
concerted activities was a factor that motivated the

6 Ruggiero was referring to Case 2–CA–26738. The Board Order,
enforced by the Second Circuit Court of Appeals, required the
Respondent to make whole the Union’s Welfare and Pension Funds
for payments it had unlawfully withheld.
7 The General Counsel presented several employee witnesses who
corroborated Ruggiero’s testimony generally rather than specifically.
Denny Lopez testified that he arrived at work at 7:45 a.m. and Spi-
nale said that he “didn’t want anyone inside”; Mercedes Garcia
testified that she arrived at 7:30 a.m. and Spinale said, “I don’t want
people with a Union working here”; Antonio Castillo testified that he
arrived at 7:45 a.m. and Spinale said, “[H]e didn’t have work for us.”
Finally, three of the Respondent’s witnesses also generally corrobo-
rated Ruggiero. Ramona Escoboza testified he went to work and
“found all of the people outside” and was told by Spinale to “go
ahead outside” when he attempted to go into work. Anthony
Pugello, an electrician for the Hunts Point Market, testified that he
saw people gathering the employees outside the Respondent’s loca-
tion before 8 a.m. Albert Lipsey, an independent truckdriver who
delivers tomatoes to the Respondent, testified that he heard Spinale
tell the employees “to go home” at about 7:30 a.m.
employer’s actions.8 If the General Counsel makes
that showing, the burden then shifts to the employer to
show that it would have taken the same action regard-
less of the employees’ protected activities.9
The record amply supports a finding that antiunion
animus motivated the discharges of the Respondent’s
employees on April 17, 1995, when, just before
attempting to report to work, they were seen speaking
with Ruggiero and his union colleagues about the Re-
spondent’s failure to make payments to the union
funds. As found in our previous decision and by the
judge here, the Respondent had been violating the Sec-
tion 7 rights of its employees by failing to make the
contractually required payments to the Union’s Wel-
fare and Pension Funds since January 1993 and by
failing to sign its renewed agreement with the Union
since June 1994. In his testimony, Spinale described
the employees as having been “corralled by the [Un-
ion] representatives.” Even more tellingly, on the
morning in question, when Ruggiero asked why the
employees were being prevented from coming in to
work, Spinale said he did not want anyone who would
be socializing with the Union and that they should just
go collect unemployment. Spinale therefore clearly
conveyed the message that consorting with the Union
and employment with the Respondent were incompati-
ble.
On the basis of the foregoing, we find that the Gen-
eral Counsel has established that antiunion animus was
a motivating factor in the Respondent’s action. The
burden therefore shifts to the Respondent to show that
the discharges or layoffs would have occurred
irrespective of the employees’ union activities. In this
regard, the Respondent claims that the employees were
on strike and were not discharged or laid off. The
judge, however, implicitly discredited Spinale’s testi-
mony to that effect. The Respondent also argues that
some of the employees were not reinstated because of
the closure of its potato packaging operations. As we
find below, however, the closure of those operations
was also motivated by antiunion animus, and therefore
it cannot justify the failure to reinstate those employ-
ees. Accordingly, the Respondent has failed to carry
its burden and we find, as did the judge, that the Re-
spondent discharged or laid off employees on April 17,
1995, in violation of Section 8(a)(3) and (1) of the Act.
2. The judge found that the Respondent unilaterally
subcontracted or transferred its potato packaging op-
erations on April 17, 1995. We agree with the judge
for the reasons he states. However, we find merit to
the General Counsel’s exception that this conduct vio-
8 NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
9 Wright Line, 251 NLRB 1083, 1089 (1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
lated Section 8(a)(3) and (1) as well as Section 8(a)(5)
and (1) of the Act.
The judge found that Spinale “decided to get rid of
the potato packaging machine because of the union
activity that occurred on the morning of April 17,
which indicated that the Union was serious about
pressing him to sign a contract.” We agree. Ruggiero
testified that he twice met with the Respondent’s attor-
ney, Linda Strumpf, after 8 a.m. on April 17, 1995, in
a vain attempt to have Spinale sign the June 10, 1994
contract. Strumpf communicated with Spinale
throughout this time. Spinale testified that he decided
to eliminate his potato packaging operations at this
time and the potato packaging machine was dismantled
and on the truck for delivery to M&M Farms an hour
after noon.
Therefore, at the very time Spinale decided to termi-
nate his potato packaging operations on April 17,
1995, he knew that his employees were agitating for
the long-overdue payments to the expired contract’s
Pension and Trust Funds, and their union representa-
tive was agitating for him to sign the June 10, 1994
renewed contract. Moreover, Spinale discharged or
laid off his employees at either approximately the same
time or only shortly before he decided to terminated
his potato packaging operations and proceeded to do
so. We find that the animus that motivated the Re-
spondent’s decision to discharge his employees also
motivated the Respondent’s decision to terminate his
potato packaging operations. Spinale’s contemporane-
ous resistance to signing the agreed-upon June 10,
1994 contract is additional evidence of animus.
Accordingly, we agree with the judge that the Gen-
eral Counsel has established that antiunion animus was
a motivating factor in the Respondent’s decision to
terminate its potato packaging operations. We also
agree with the judge’s implicit finding that the Re-
spondent failed to carry its burden to show that the
termination and transfer or subcontracting of the potato
packaging operations would have occurred even in the
absence of union activities.10 The judge contrasted
Spinale’s testimony claiming the potato packaging
operation was not economically viable with the evi-
dence showing that Spinale’s potato packaging opera-
tions were profitable in 1994 and 1995; that the Union
was not seeking an increase in wages in the renewed
contract; and Spinale’s concession that 40–60 percent
of his pre-April 17, 1995 sales were made to his cus-
tomers pursuant to his instructions via his subcontrac-
tor, M&M Farms. Hence the Respondent failed to
carry its burden of rebuttal. We find that the Respon-
dent’s April 17, 1995 termination and transfer of its

10 Wright Line, supra.
potato packaging operations violated Section 8(a)(3)
and (1) of the Act.11
3. The judge recommended that the Union be al-
lowed to set the commencement date of the 3-year
term of the agreed-on June 10, 1994 contract at any
time from June 10, 1994, until the time of the Respon-
dent’s compliance. We disagree. The record shows
that the parties agreed to a fixed term retroactive from
October 1, 1992, and running until September 30,
1995, with automatic renewal from year-to-year there-
after in the absence of reopening. In these circum-
stances, we cannot change the agreement of the par-
ties.12
In similar circumstances, the Board has given the
union the choice between making the employer sign
the contract and bargaining for a new agreement. Ben
Franklin National Bank, 278 NLRB 986 fn. 3 (1986).
The rationale was that, the contract having expired, the
union should be allowed to choose between the con-
tract and bargaining. Although the contract in that
case, like the one here, contained a rollover provision,
the Board did not appear to focus on that fact in devis-
ing the remedy.
In contrast to Ben Franklin, we would give full play
to the entire contract, including the rollover provision.
The normal remedy for an unlawful refusal to sign a
contract is to require the offending party to sign the
contract. Accordingly, the Respondent should be
bound to the contract through September 30, 1995, and
the Union should have the roll over option (as set forth
in the contract) from year-to-year thereafter. The con-
tract is what the Union bargained for and is therefore
what it should get.13 More particularly, the Union
should have the choice between bargaining for a new
agreement as of the expiration of the contract in 1995
and deeming the contract to have rolled over in 1995
11 We agree with the judge, for the reasons he states, that a resto-
ration remedy is appropriate. It is warranted by both aspects of the
misconduct—Spinale failed to notify and bargain with the Union
about his transfer or subcontracting of the potato packaging opera-
tions, and he did so in retaliation for his employees’ union activities.
However, we do not rely on the judge’s comment: “if as Mr. Spinale
says a more modern and computerized machine would be more
efficient than this obsolete potato packaging machine, then the sum
of money spent to replace it would probably be a good investment,
yielding future profits.”
In light of the conclusion that Respondent’s discontinuance of the
potato packaging operations violated Sec. 8(a)(3), Member Hurtgen
finds it unnecessary to pass on whether that conduct violated Sec.
8(a)(5).
12 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
13 We shall order the Respondent to make the unit employees
whole for any losses they may have suffered as the result of the
Respondent’s unlawful refusal to sign and to abide by the terms of
the agreement, as prescribed in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and Kraft Plumbing
& Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
G & T TERMINAL PACKAGING CO. 117
(and also in subsequent years). We cannot assume that
the contract would have renewed because neither party
requested that it be renegotiated. After all, the Re-
spondent refused to sign or acknowledge the agree-
ment; consequently, the Union cannot be faulted for
not having requested a reopener. Had the Respondent
honored the agreement, the Union might well have
reopened in 1995 and in later years, and we shall not
assume that it would not have done so. On the other
hand, neither party might have reopened the agree-
ment, and thus it might have rolled over in 1995, and
perhaps also in subsequent years.
We find that, as the innocent party here, the Union
should have the option of treating the contract as hav-
ing expired on September 30, 1995, or as having re-
newed on that date. If the Union chooses the latter
course, the contract will be deemed to have been in
effect through September 30, 1996, and the Union can
choose whether to treat the contract as having expired
on that date or as having renewed again; and so on. If
the Union chooses to treat the agreement as having
expired on any of those dates, the Respondent must
bargain over the terms and conditions of employment
for a successor agreement.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, G & T
Terminal Packaging Co., Inc., Mr. Sprout, Inc., Chain
Trucking, Inc., Tray Wrap, Inc., and Slow Pack, Inc.,
Bronx, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraphs.
“(d) Subcontracting or transferring its potato pack-
aging operations because of the union activity of its
employees.”
2. Substitute the following for paragraphs 2(a) and
(b).
“(a) Execute the collective-bargaining agreement
that was agreed to on June 10, 1994; give retroactive
effect to its terms and conditions of employment from
October 1, 1992, until September 30, 1995, and for any

14 We note that in Operating Engineers Local 30 (Hyatt Manage-
ment), 280 NLRB 205 (1986), enfd. 817 F.2d 140 (D.C. Cir. 1987),
the Board in an 8(b)(3) refusal-to-sign case declined to order the
parties to apply the terms and conditions of employment of the con-
tract, which had expired. That case, however, is distinguishable.
The Board there reasoned that, had it applied the contract, the of-
fending union would have gotten the wage increases it had bargained
for, but the innocent employer would not have received the benefits
of its bargain such as the management-rights clause. Apparently to
avoid that anomalous result, the Board simply ordered the union to
sign the contract. Here, by contrast, the Union is the innocent party,
and should receive the benefits it bargained for; if the Respondent
fails to reap the benefits of its bargain, it has only itself to blame.
periods thereafter for which the Union may elect to
treat the agreement as having renewed; and make em-
ployees whole, with interest, for any losses they may
have suffered as a result of the Respondent’s refusal to
sign the agreement on June 10, 1994.
“(b) For any period after September 30, 1995, for
which the Union may elect to treat the collective-
bargaining agreement as not having renewed, bargain
with the Union as the exclusive representative of the
employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an
understanding is reached, embody the understanding in
a signed agreement:

All full-time and regular part-time employees em-
ployed by the Respondent at its facility, excluding
guards, professional employees and supervisors as
defined in the Act.”

3. Substitute the attached notice for that of the ad-
ministrative law judge.

CHAIRMAN GOULD, dissenting in part.
I agree with my colleagues’ determination not to
adopt the remedy recommended by the administrative
law judge but I disagree with their refusal to grant the
remedy set forth in Ben Franklin National Bank, 278
NLRB 986 fn. 3 (1986). The record shows that the
parties agreed to a fixed term retroactive from October
1, 1992, and running until September 30, 1995. As the
Board did in Ben Franklin, I would order the Respon-
dent to sign the June 10, 1994 agreement at the request
of the Union or, absent such request, bargain in good
faith with the Union, on request, with respect to the
terms and conditions of a contract and, if an agreement
is reached, embody it in a signed agreement. Worrell
Newspapers, Inc., 232 NLRB 402 (1977).

APPENDIX F
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
WE WILL NOT refuse to bargain collectively with Pri-
vate Sanitation Union Local 813, International Broth-
erhood of Teamsters a/w AFL–CIO by refusing to sign
the contract that was agreed to on June 10, 1994.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally subcontracting or transferring
potato packaging operations.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally reinstating employees out of
seniority order.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally granting wage increases to some
of our employees.
WE WILL NOT discharge, lay off, or subcontract our
potato packaging operations or otherwise discriminate
against any of you for supporting Private Sanitation
Union Local 813, International Brotherhood of Team-
sters a/w AFL–CIO or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guar-
anteed you by Section 7 of the Act.
WE WILL execute the collective-bargaining agree-
ment with the Union that was agreed to on June 10,
1994, through its expiration date of September 30,
1995, and WE WILL give retroactive effect to the terms
and conditions of employment contained in the agree-
ment for that period and for any subsequent periods for
which the Union may elect to treat the agreement as
having been renewed.
WE WILL make our employees whole, with interest,
for any losses they may have suffered as a result of our
refusal to sign the contract.
WE WILL, for any periods since September 30, 1995,
for which the Union may elect to treat the contract as
not having renewed, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.

All full-time and regular part-time employees em-
ployed by the Respondent at its facility, excluding
guards, professional employees and supervisors as
defined in the Act.

WE WILL, within 14 days from the date of the
Board’s Order, offer the employees illegally dis-
charged, 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.
WE WILL make the employees who were unlawfully
discharged, whole for any loss of earnings and other
benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of employees and WE WILL,
within 3 days thereafter, notify them in writing that
this has been done and that the discharges will not be
used against them in any way.
WE WILL restore the potato packaging operation to its
size as of April 17, 1995.
WE WILL furnish to the Union, a list of the bargain-
ing unit employees currently working setting forth
their names, addresses, telephone numbers, rates of
pay, and job classification.

G & T TERMINAL PACKAGING CO.,
INC. AND MR. SPROUT, INC., AND
TRAY WRAP, INC., AND CHAIN
TRUCKING, INC., A SINGLE EMPLOYER,
AND G & T TERMINAL PACKAGING
INC., AND ITS ALTER EGO SLOW PACK,
INC.

Margit Reiner, Esq., and Laura Kaplan Esq., for the General
Counsel.
Thomas P. Piekara, Esq. and Linda Strumpf Esq., for the
Respondents.
Michael S. Lieber, Esq., for the Union.

DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York on various days from December 4,
1995, to March 15, 1996.
Case 2–CA–26738 involves a backpay specification after
the Board issued an unpublished Decision and Order on July
15, 1994. In that case the Respondent G & T Terminal Pack-
aging, Inc. was ordered to make whole bargaining unit em-
ployees by making monetary contributions to the Welfare
Trust Fund and the Pension Fund as required under the terms
of the employer’s collective-bargaining agreement effective
November 1, 1989, through October 31, 1992. The Court of
Appeals, for the Second Circuit enforced the Board’s Order
on September 20, 1994. The backpay specification alleges
the following.
1. That the backpay period is from on or about January 1,
1993, the date that the Respondent ceased making contribu-
tions and continuing until such date that the Respondent
resumes payment.
2. That the amount owed to the Welfare Fund, pursuant to
paragraph 25 of the contract is the sum of $6 per month for
each employee covered by the Agreement.
3. That the amount owed to the Pension Fund is the sum
of $8 per employee who works 1 or more days in a given
week.
4. That in determining the amounts owed to the Pension
and Welfare Funds, the calculation of the number of employ-
ees working after April 17 and 19, 1995 (the dates of the
alleged unlawful layoffs), should be supplemented by the
number of employees who would have been employed but
for the unlawful actions of the Respondent.
G & T TERMINAL PACKAGING CO. 119
5. That the liability for fund contributions is still continu-
ing.
6. That the interest rate should be calculated in accor-
dance with the Trust Agreements for each fund.
The charge in Case 2–CA–28360 was filed by Denny Lo-
pez on April 19, 1995. The charge in Case 2–CA–28364 was
filed by the Union on June 14, 1995, and amended on June
14 and October 18, 1995.1 A consolidated complaint in rela-
tion to these two charges was issued on August 23, 1995, and
was amended on November 8, 1995. Further amendments
were made during the trial. The complaint as amended al-
leged:
1. That G & T Terminal Packaging Co., Inc. (G & T), Mr.
Sprout, Inc., Chain Trucking, Inc., and Tray Wrap, Inc., were
affiliated business enterprises with common officers, owners,
directors, management, and supervisors and constitute a sin-
gle employer within the meaning of the Act.
2. That on or about April 19, 1995, a company called
Slow Pack, Inc., was created by G & T as a disguised con-
tinuation of G & T and that it is an alter ego of G & T.
3. That the collective Respondent is obligated to recog-
nize and bargain with the Union as the representative of the
following employees:

All full-time and regular part-time employees employed by
the Respondent at its facility, excluding guards, profes-
sional employees and supervisors as defined in the Act. 2

4. That on or about June 10, 1994, the Union and the Re-
spondent reached a full and complete agreement which the
Respondent has failed and refused to execute.
5. That on or about April 14, 1995, the Union requested
the Respondent to execute a written contract embodying the
agreement described above.
6. That since April 14, 1995, the Respondent has failed
and refused to execute the aforesaid agreement.
7. That on April 17, 1995, the Union and employees en-
gaged in a concerted protest regarding Respondent’s refusal
to execute the agreement.
8. That on or about April 17, 1995, the Respondent dis-
charged certain of its employees because of their union activ-
ity.
9. That on or about April 17, 1995, Respondent G & T
unilaterally transferred and subcontracted to M&M Farms
and Sales, that portion of its business operations associated
with the packaging of potatoes; work that was previously
performed by bargaining unit employees.
10. That on or about April 19, 1995, the Respondent rein-
stated certain employees but refused to reinstate or offer to
reinstate other employees.3

1 G.C. Exh. 1 shows that each of the charges and amended
charges were filed in the Regional Office respectively on August 24,
1994, April 19 and 20, and June 14, 1995. Further, the exhibit
shows that all of the charges were served on the Respondent and this
is evidenced by affidavits of service and Post Office return receipts.
2 The last effective contract prior to the one that the Respondent
refused to reduce to writing and sign ended, by its terms, on October
31, 1992.
3 At the March 15, 1996 session of the hearing, the General Coun-
sel made certain amendments to Apps. A and B to the complaint. In
some cases, names were deleted from an appendix and in some
cases, names were added.
11. That in or about mid-May 1995, the Respondent, in
order to discourage employees from supporting the Union,
raised the hourly wages of certain of its employees.
12. The General Counsel is asking, inter alia that the Re-
spondent (a) execute the agreement that was allegedly
reached; (b) reinstate with backpay the employees who were
discharged; and (c) restore the potato packaging operations
as they existed before April 17, 1995.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
During the course of the hearing, the Respondent admitted
that G & T Terminal Packaging Co., Inc. (G & T), Mr.
Sprout, Inc., Chain Trucking, Inc., Slow Pack, Inc., and Tray
Wrap, Inc., were affiliated business enterprises with common
officers, owners, directors, management, and supervisors and
constitute a single employer within the meaning of the Act. It
also is admitted and I find that these Companies (collectively
the Respondent), constitute a single employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.4 I also find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Negotiations and the Alleged Refusal to Execute
an Agreement
The Respondent and the Union have maintained a collec-
tive-bargaining relationship for many years, first at a location
at 230th Street in the Bronx, and then after the Company
moved to the Hunts Point Terminal Produce Market.5 After
the Company moved its operations in or about 1990, it em-
ployed on average about 80 employees who were represented
by the Union in its various vegetable packaging operations
(potatoes, tomatoes, and sprouts).
For the most part, the Company buys these vegetables in
bulk from growers and brokers, and after repackaging them
into smaller units, sells them to retail grocers and supermar-
kets. In connection with potatoes, the Company has used, for
many years, potato sorting and packaging machinery into
which loose potatoes are dumped and out of which emerge 5
pound bags. This is, from what I understand, an assembly
line type of operation, having a conveyer belt, scales, and
bagging equipment. The parties refer to this as the potato
packaging machine and its role in this case will soon be ap-
parent.
At some point in 1992, the Union was put into trusteeship
by the International. Richard Ruggiero, a business agent,
took over representing certain of the shops that had been the
4 The answer admitted that G & T, Mr. Sprout, Tray Wrap, and
Slow Pack each purchased and received goods and materials valued
in excess of $50,000 from points located outside the State of New
York.
5 Initially, the collective-bargaining relationship was between the
company and Local 27, IBT. However, on December 1, 1995, Local
27 merged into Teamsters Local 813. Companies such as G & T
were notified that their contracts would be administered by Local
813 and that any future contracts would be negotiated with Local
813.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
responsibility of a person who left. As a contract between the
Respondent and the Union was to expire on October 31,
1992, Ruggiero attempted to contact Anthony Spinale, the
Respondent’s president, to set up negotiations for a new
contract. After further communications, Ruggiero met Spi-
nale at a restaurant on October 29, 1992, where according to
the uncontradicted testimony in the prior case (Case 2–CA–
26738), Spinale said that he did not recognize a union and
that he was not going to bargain.
The administrative law judge in Case 2–CA–26738, essen-
tially dealing with the negotiations that took place in 1992
and 1993, made the following conclusions:

1. That the Respondent did not have objective
grounds for asserting a good faith doubt as to the Un-
ion’s continued majority status and therefore that it vio-
lated Section 8(a)(5) by withdrawing recognition.
2. That the Respondent, in the absence of an im-
passe, unilaterally discontinued to make contributions to
the Union’s Pension and Welfare Funds and therefore
violated Section 8(a)(5) of the Act.
3. That the Respondent had met and bargained with
the Union in good faith. Therefore, this allegation of the
Complaint was dismissed.

It should be noted that the judge, in the prior case, con-
cluded that as of November 5, 1993, “the parties had agreed
to all of the terms except for the arbitration clause.”
As noted above, the prior decision was adopted by the
Board on July 15, 1994, and was enforced by the court of
appeals on September 20, 1994.
Ruggiero testified that on June 10, 1994, he had a meeting
with Linda Strumpf, who had represented the Company dur-
ing the previous negotiations. He testified that she said that
the Company would not appeal the administrative law
judge’s decision and that she was there to sign a contract.
Ruggiero told her that the Company would have to pay ac-
crued Pension and Welfare contributions and that all union
dues should be made current. He states that they reviewed
the contract to the extent that they had agreed to its terms
back on November 5, 1993, and that Strumpf said that Spi-
nale wanted to eliminate the arbitration clause. According to
Ruggiero, he responded that he would agree to eliminate the
arbitration clause if the Company agreed to eliminate the no-
strike clause. He states that she agreed and said that she
would have Spinale sign the contract and fax it to the Union
as soon as possible. Ruggiero states that in response to his
request for a list of the current job classifications and wages,
she said she would send a rider containing that information.
(The Union was only looking to maintain the current pay that
the employees were getting.)6
With respect to the June 10 meeting, Ruggiero credibly
testified that he asked that the Company pay back dues and
what it owed to the Pension and Welfare Funds. But he also
testified that he did not make payment of defaulted fund
payments or payment of past dues a condition of any agree-
ment. (As the Company, by virtue of the prior unfair labor
practice case, was legally obligated to make retroactive pay-
ments to the Pension and Welfare Funds, Ruggiero would

6 At this and at all future meetings, Linda Strumpf represented the
Company as Spinale refused to attend any of the meetings with the
Union.
have been well within his rights on insisting that such obliga-
tion be satisfied.)
Strumpf testified that she attended the June 10 meeting
and asserts, contrary to Ruggiero that she did not agree to a
contract. She testified that Ruggiero said that another union
was trying to organize the employees and wanted to get a
contract. She states that Ruggiero said that the Union would
agree to delete the arbitration clause if the Company agreed
to delete the no-strike, no-lockout clause. She claims that she
said that she could not agree right away and would have to
check with Spinale.
Regarding the allegation that the parties reached a full
agreement on June 10, 1994, it is my opinion that the evi-
dence supports the General Counsel’s contention. That is, I
believe the version of the events as testified to by Ruggiero.
In this regard, the credible evidence convinces me that after
the judge’s decision in the prior case, Strumpf, who was
delegated the function of collective bargaining, met with
Ruggiero to resolve the only outstanding contract issue,
namely what to do about the arbitration clause. And what
happened was that the Union essentially gave in to the Com-
pany’s previous demand for its elimination, conditioned only
on the concomitant elimination of the no-strike, no-lockout
clause. There is no question in my mind that Strumpf agreed
to this quid pro quo and that she conveyed to the Union that
she was authorized to do so. Although there was some dis-
cussion about back dues and back payments to union funds,
these were treated as separate issues and the execution of a
contract was not dependent on them.
Ruggiero testified that he waited from June to the middle
of August 1994, without receiving anything, before finally
calling up Strumpf to inquire as to the contract’s where-
abouts. He states that Strumpf said that she would be faxing
the contract over to Spinale for his signature. When
Ruggiero, on August 16, received the “contract” via fax, he
noticed that although the contract had eliminated the arbitra-
tion and no-strike clauses, as per agreement, it was not
signed and it did not have a schedule containing the employ-
ees wages and classifications. (The wage and classification
schedule would really not be a new contract term as the Un-
ion had agreed to keep wages the same as they were under
the expired contract. Instead, what the Union wanted was
simply a list memorializing what the employees were getting
paid.)
According to Ruggiero, he called Strumpf on several oc-
casions in August 1994, in an attempt to get a signed contract
with a wage and classification schedule and never received it
despite Strumpf’s assurances that she had left it with Spinale.
Strumpf acknowledges that she did not do anything about
the contract in June or July because it was not on the top of
her priority list. (She admits that she procrastinated.) She
testified that in the beginning of August 1994, the Company
got a letter from a Local 202 IBT indicating that they wanted
to represent the employees and that Spinale told her that he
wanted to get a contract drafted vis a vis the Charging Party.
She testified that on August 8, 1994, she called Ruggiero,
referred to the letter from the rival union, and said that Spi-
nale wanted her to draft a contract covering what had been
G & T TERMINAL PACKAGING CO. 121
agreed upon. 7 According to Strumpf, she told Ruggiero that
she would have a document ready to send to both Spinale
and Ruggiero the following week. She also testified that
Ruggiero said that he wanted to have the pension and welfare
payments made and that he wanted dues to be taken out ret-
roactively. (At this point, the Company, in accordance with
the decision in the previous unfair labor practice case, owed
an indeterminate amount of money to the funds.) She states
that Ruggiero said that he would fax her what the Union
believed was owed to the Pension and Welfare Funds. (R.
Exh. 8 is a copy of the fax where Ruggiero enclosed what
amounts to a bill for pension and welfare contributions for
the period from January 20, 1992, to August 26, 1994. It
makes no claim for union dues.)
According to Strumpf, on August 16, 1994, she sent a
draft contract to both Spinale and to Ruggiero. In the cover
letter to the company, she stated:

I am enclosing two copies of proposed Union con-
tract for Tony to sign. prepared it. I am also enclosing
the list of payments the union says is due for pension
and welfare. They agree to take payments. Tell me how
many you need.
Also, they want us to deduct back dues owed from
the employees They want us to take 3—1 each month
to catch up.
Finally, if Tony wants to sign contract and return to
me; that is OKAY. Meanwhile, I will try to get up there
either Wednesday or Friday early.

In my opinion, the letter from Strumpf to Spinale contra-
dicts her assertion that she had not reached an agreement
with Ruggiero. It asks for his signature on the document and
does not either make or ask for any comments or suggestions
regarding its terms. Moreover, by its terms, it demonstrates
to me that she understood that any moneys that the Company
owed to the Union’s Pension and Welfare Funds and any
claimed dues payments, were separate issues and that the
execution of a contract was not conditioned on them.
When Ruggiero did not receive the executed contract, he
filed the charge in Case 2–CA–27745 on August 24, 1994,
alleging that the Company refused to execute an agreement
reached on June 10, 1994. As noted above, a complaint was
issued in that case on October 7, 1994. As far as I can deter-
mine, not much happened with the parties until April 1995.
Ruggiero states that on April 12, 1995, he received a call
from Federal Mediator Irwin Gerard, who said that Strumpf
wanted to meet on April 14, to sign the contract.
According to Ruggiero, he met with Strumpf and Gerard
on April 14 at his office. He states that Strumpf asked if he
had received a signed contract and he said no. Ruggiero testi-
fied that she said that she made a mistake and had sent it to
Washington, but would have it later in the day. At this point,
according to Ruggiero, Strumpf presented an unsigned ver-
sion of a contract from which she had deleted a number of
provisions in the previously agreed upon contract. He states
that two holidays were deleted, and that the shop steward and
grievance clauses were deleted. Ruggiero testified that when
he pointed out the deletions that she had made in the con-

7 This testimony supports my conclusion that Strumpf not only
agreed to the terms of a contract on June 10 but that she had been
authorized by Spinale to do so.
tract, Strumpf said that she would change them and that she
would call him on Monday to set up a meeting. Ruggiero
states that at one point during the meeting, Strumpf tendered
a check for $15,000 made out to Local 27 and said that this
was for pension and welfare moneys owed. Ruggiero states
that he told her that this should be for back dues and not fund
payments. 8
Strumpf acknowledges that on April 12, she made some
deletions in the contract and asserts that Spinale told her that
he wanted additional concessions from the Union in ex-
change for deleting the no-strike and no-lockout clause.
(These concessions being proposed by Strumpf for the first
time after about 11 months had gone by.) She testified that
there was a dispute about the check and for what purpose the
money was supposed to be used. While this whole issue is, in
my view, irrelevant to this case, I will point out that in her
view, the check was intended for pension and welfare pay-
ments whereas Ruggiero said that he wanted that money to
go to payment of back union dues. Strumpf states that she
told Ruggiero that the Employer was not going to pay back
dues out of his own pocket and suggested that the Union
waive back dues. She states that Ruggiero said that employ-
ees should pay back dues once a week until they were caught
up, which in her opinion, would raise a stink because the
employees didn’t get paid much to begin with. Strumpf testi-
fied that she told Ruggiero that she would not be able to
speak to Spinale until after Monday, April 17, 1995.
Pursuant to Section 8(d) of the Act, when the parties reach
a collective-bargaining agreement either side, at the request
of the other, is required to reduce such agreement to writing
and to execute it. Thus, under the National Labor Relations
Act once it has been established that there has been a meet-
ing of the minds, a contract will come into existence before
its execution, and the Act requires both sides to sign such an
agreement at the request of the other, H. J. Heinz Co. v.
NLRB, 311 U.S. 514, 526 (1941).
In the present case, I am convinced that on June 10, 1994,
Strumpf as counsel to the Respondent and as its sole repre-
sentative during the negotiations, conveyed to the Union that
she was authorized to make a final contract with the Union.
Thus, I conclude that she either had actual or apparent au-
thority to make an agreement. Metco Products v. NLRB, 884
F.2d 156 (4th Cir., 1989), enfg. 289 NLRB 76 (1988). I am
also convinced that at this meeting, the parties reviewed the
negotiations that had preceded the previous unfair labor prac-
tice case, reiterated their agreement to those items already
agreed to, and further agreed to eliminate from the contract
the arbitration clause in exchange for the elimination of the
no strike/no lockout clause. Accordingly, I conclude that
from that moment, a contract came into existence and that
the Respondent was obligated to reduce it to writing and to
execute it upon request.
I reject, as contrary to the evidence, any suggestion that
the Union, by Ruggiero, conditioned the contract on the
8 In this regard, Ruggiero testified that at the time, he understood
that a check for pension and welfare fund payments had to be made
out to the funds and not to the Union. Indeed as such liability was
the subject of the previous unfair labor practice case, the proper
procedure was for the company to tender the payments, via the com-
pliance procedure, to the NLRB’s Regional Office which then is
responsible for its disbursement. (The check was not cashed.) In
either event, this issue is to my mind, essentially irrelevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
payment of back union dues or on the payment of pension
and welfare contributions that were owed to the funds. Nor
do I conclude that the Union, on April 17 or 18, 1995, with-
drew from the agreement previously reached on June 10,
1994. As will be discussed below, when the Respondent still
refused to execute the agreement and insisted on making new
and additional changes, Ruggiero, in a fit of pique, said that
if the Respondent wanted to change the contract, then he
wanted a 25-cent-an-hour raise for the employees during
each year of the contract. This, to my mind, is not equivalent
and cannot be construed as manifesting an intention to with-
draw from the agreement previously reached on June 10,
1994. Nor do I construe it as a waiver by Ruggiero of the
Respondent’s (and the Union’s ), obligation to execute that
agreement. Ruggiero’s statement merely was an outburst
made in response to the Respondent’s provocative behavior
of bringing up new contract changes at the last moment and
which were first mentioned almost a year after the parties
had reached an agreement.
B. The Layoffs and the Events on April 17 to 19
Although the Hunts Point market was closed to the public
on Monday, April 17, 1995, this was a regular workday for
the employees of the Respondent. At about 7:30 a.m.,
Ruggiero and two other business agents went to the market
and started picketing at the Company’s business location.
The signs indicated that the Union was protesting the em-
ployer’s unfair labor practices. At the lower portion of the
signs, some said, “On Strike, G&T Packers.”9
Notwithstanding the picketing activity, the fact is that the
Union did not ask the employees to engage in a strike, and at
about 7:55 a.m., the employees attempted to enter the prem-
ises to go to work.
The evidence shows that when the employees tried to en-
ter the premises, Spinale told them that he did not need them
anymore and that they should go home and/or collect unem-
ployment. At this point, as they were not allowed to go to
work, the employees joined the Union in the picketing activ-
ity. In this regard, I conclude that the evidence establishes
that Spinale laid off a large group of his employees on April
17, 1995, when he saw that the Union was engaged in picket-
ing activity and when he saw that his employees were speak-
ing to union representatives before the start of the workday.
On that day, about 10 to 12 of the employees were allowed to
go to work and these were people who packaged Brussels
sprouts.
The testimony of Spinale also shows that later on April 17,
he decided to terminate , at least for the moment, his potato
packaging operation. His testimony was that he decided to
either sell or junk the potato packaging machine and to have
the packaging of 5 pound bags of potatoes done by one of his
suppliers. This was M&M Farms located in Goshen, New
York. Working with remarkable dispatch, Spinale had the
potato packaging machine disassembled and on a truck up to
M&M by that afternoon. He asserts that M&M did not buy
the machine, but used it for parts.
Spinale’s testimony convinces me that he decided to get
rid of the potato packaging machine because of the union
activity that occurred on the morning of April 17, which

9 Ruggiero testified that one of the purposes of the picketing was
to try to communicate with the employees particularly as the Union
had had little contact with them for a couple of years.
indicated that the Union was serious about pressing him to
sign a contract. When he was asked what had changed to
make him decide to terminate his potato packaging opera-
tion, his testimony, in part, was as follows:

JUDGE GREEN: So, what was the problem? I don’t
understand. What is the problem with respect to that?
THE WITNESS: I couldn’t compete. My packages
were costing me $2.20, $2:30 to pack, where M&M
could pack them for 80 cents. So, how could I compete
and make money? My overhead was tremendous. My
labor costs was tremendous. And I wasn’t feeling well.
And somewhere along, I made bad judgments with cer-
tain things, and it just didn’t work out that well. And fi-
nally, I found out the problem, and Mr. Ruggiero helped
me correct it in a hurry. (Emphasis added.)

When one considers that his labor costs were no different
from preceding years, that the Union was not asking for any
change in the wage rates, and that the Company’s potato
packaging operations were profitable in 1994 and 1995, the
only conclusion that I can reach regarding Spinale’s testi-
mony, is that what was now different and what caused him to
ship the potato packaging machine up to M&M, was that
Ruggiero was pressing him to execute the contract and it was
looking as if there were no more delaying tactics to employ.
10
Spinale claims that between April 17, 1995, to some time
in May 1995, he suspended his potato packaging operations.
(He states he resumed some potato packaging by hand in
May 1995.) In the meantime, he acknowledges that some-
where between 40 to 60 percent of the potato sales that he
had made before April 17, were now being made to his cus-
tomers and pursuant to his instructions, by M&M. 11 He also
claims that he gave up some potato sales, but these seem to
have been limited. In any event, the evidence shows that a
substantial portion of Respondent’s potato sales after April
17 were essentially subcontracted to M&M and that what-
ever sales Spinale chose to give up, were given up by his
own choice, which, as I have already concluded, was moti-
vated by his desire to avoid having a contract with the Union.
In short, I conclude that the Respondent did not partially
close its business. Rather, it temporarily stopped doing po-
tato packaging at its own facility for a short time, effectively
subcontracted out that work to M&M, and ceased selling
certain limited types of potatoes. These decisions were made,
I believe, to avoid signing a contract with the Union and in
response to the Union’s lawful picketing which occurred on
April 17. This decision, to my mind was not taken because of
any outside market forces and I view as absurd, any conten-
10 R. Exh. 30 was offered as a profit and loss summary for the po-
tato operations of G & T from 1991 through March 31, 1996. While
showing losses in 1991, 1992, and 1993, this summary shows that
for the year ending 1994, the potato operations had a profit of
$169,000 and that for the year ending 1995, potato operations had a
profit of $85,000. Although the summary purports to show a loss
during the first quarter of 1996, (of $59,000), this is after the deci-
sion to dispose of the potato packaging machine.
11 Inasmuch as I found Spinale to be argumentative and evasive, I
take this estimate as being the minimal estimate. I would not be
surprised, if a much larger percentage of his potato packaging opera-
tions were subcontracted to M&M.
G & T TERMINAL PACKAGING CO. 123
tion by the Respondent that it merely acceded to a “demand”
by Ruggiero that the Company go out of business.
At about 8:30 a.m. on April 17, 1995, Ruggiero and the
pickets were told by the market’s security officer that they
would have to take their pickets outside the market and they
complied. Later in the morning, Strumpf appeared at the
market and had a conversation with Ruggiero at the security
office. Ruggiero credibly testified that Strumpf said that she
had a contract to be signed but that the shop steward and
grievance clauses had to be deleted. He told her that this was
not what had been agreed to and in a fit of pique (clearly
justified), Ruggiero told her that if she insisted on changing
the agreement, then he wanted a 25-cent-per-hour increase
for each year of the contract. (Recall that the Union had
already agreed to a contract containing no wage increases.)
In response, Strumpf said that the Employer was going to
close and Ruggiero said that was fine and that they should
negotiate the terms of a close out. She then said that Em-
ployer would reinstate about 30 people but would not do so
by seniority. Ruggiero told her that she could not do that and
she said that she could inasmuch as there was no contract and
therefore no seniority clause.
Ruggiero testified that on Tuesday, April 18, 1995, he
asked Spinale to take the employees back and that Spinale
said that he would take back about 30 people.
In his pretrial affidavit, Spinale stated:

Linda Strumpf came into the Employer facility later that
morning. When she arrived the Union representatives and
employees were gathered in an area outside the main gate
to the Market. After Strumpf arrived, I told her that since I
had eliminated the potato packing machine, I would not be
able to continue to employ all of the employees. I told her
that I might be able to use 25 to 30 employees, and that if
the Union wanted me to, I would go out to the main gate
and pick them from the group of employees gathered out-
side the main gate, and that the rest could then go and col-
lect unemployment.

Similarly, Strumpf stated in her pretrial affidavit:

On Tuesday April 18, 1995, I arrived at the Market at about
7:30 a.m. Later that morning at 9:00 a.m. Market Security
told Spinale that all of the employees wanted to come back
to work. . . . Spinale said that he had closed his G&T opera-
tion based upon the Union’s ultimatum, and that he could
not use all of the employees. He went on to say that he
could use about 30 employees for his other operations. Don
responded that he was not sure that was a good idea be-
cause there were about 70 employees out there. Spinale
then said O.K., and to forget it. Shortly thereafter, Don
suggested that either Spinale or myself go out to talk about
it with the Union.

On Wednesday, April 19, Spinale took back some of the
laid-off employees and told the remainder that they could
collect unemployment. He concedes that he did not use sen-
iority as a criteria and asserts that he picked those people
who could do the jobs that he needed. 12

12 In the collective-bargaining agreement that was agreed to on
June 10, 1994, the parties agreed to carry over most of the terms of
the previous contract which had expired in 1992. Under the terms of
that agreement, it provides at art. 15(a):
The Company concedes that after April 19, it hired new
workers and resumed at least some of the potato packaging
operation in May 1995. The Company claims that around
Thanksgiving it sent letters to some of the laid-off employees
and as they did not respond, hired additional new employees.
In the latter regard, these letters were not sent by certified
mail and the Company offered no convincing evidence either
that these purported letters were sent or that they were ever
received.
Appendix A to this decision is a list of company employ-
ees laid off on April 17, 1995. Appendix B to this decision is
a list of employees who remained laid off after April 19,
1995, and who either were never recalled to work or were
reinstated at some point after April 19. Appendix C is a list
of employees who while not laid off on April 17, 1995, were
either on vacation, were ill or were on leave during the week
of April 17 and were not reinstated when they wished to go
back to work thereafter.
In addition to the above, the evidence shows that in May
1995, the Company gave a 10-cent-an-hour raise to some of
its female employees and that it did so without notifying or
offering to bargain with the Union.13
The General Counsel alleges that Spinale created a new
corporation and that he shifted his employees onto its payroll
after April 17, 1995. As it is conceded that this new corpora-
tion, Slow Pack, is a single employer with the old, it is liable
for all of the unfair labor practices committed herein. The
evidence shows that Slow Pack has common ownership and
management as G & T, that it has the same business purpose
and place of business, and that it uses many of the same em-
ployees as G & T. Also, as the evidence shows that Slow
Pack was established immediately after the Union’s request
to have the contract signed and right after the mass layoffs on
April 17 and 19, it is my opinion that Spinale, on advice of
counsel, set up this new corporation and transferred the em-
ployees of G & T to its payroll, in the vain hope that he could
avoid executing a contract with the Union. As such, it is
concluded that Slow Pack is an alter ego of G & T and that it
is obligated to abide by the terms of the collective-bargaining
agreement that was reached on June 10, 1994. RCR, 312
NLRB 513 (1993), Crawford Door Sales Co., 226 NLRB
1144 (1976).
III. THE BACKPAY SPECIFICATION
General Counsel’s Exhibit 65 is the final amendment to
the backpay specification in Case 2–CA–26738.
As noted above, Judge Morris, in his earlier decision,
found that the Respondent violated Section 8(a)(5) of the Act
when it unilaterally failed and refused to make continued
contributions on behalf of its employees to the Welfare and
Pension Funds in accordance with the terms of its expired
collective-bargaining agreement with Local 27 IBT. The
judge noted that pension and welfare contributions, as pro-
vided for by a collective-bargain- ing agreement, survive the
The Employer will not discharge any of its Employees for
Union activities. In laying off for economic reasons, the Em-
ployer will abide by Seniority. Seniority shall prevail among all
Employees for purposes of preference in employment, re-
employment, lay-off or recall, providing the Employee so af-
fected has the skill and ability to perform the work required. . . .
13 Spinale testified that this raise was given only to the female
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
expiration of the contract and cannot be unilaterally altered
without bargaining and in the absence of an impasse.
Judge Morris recommended that the Respondent be or-
dered to make payments to the Pension and Welfare Funds in
the amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and Merry-
weather Optical Co., 240 NLRB 1213 (1979). For better or
worse, New Horizons, supra, and Merryweather Optical,
supra, provide for two different interest rate formulas and
this discrepancy will have to reconciled.
The backpay specification alleged that the backpay period
commenced on January 1, 1993, which is the date that the
Respondent ceased making contributions to the funds. It also
alleges and I agree that the backpay period continues until
the Respondent resumes making payments at the rates set
forth by whatever collective-bargaining agreement is in ef-
fect.
Under the terms of the expired contract and the terms of
the agreement that was reached on June 10, 1994, there are
provisions at article 25, requiring the Employer to make
contributions to the Union’s Welfare Trust Fund and the
Union’s Pension Fund. As to the Welfare Trust Fund, the
contributions are set at $6per month for each employee cov-
ered by the agreement. Regarding the Pension Fund, the
contributions are set at $8 per week for any employee cov-
ered by the Agreement who worked at least one day during
any given week.
Effective from June 1995, and in accordance with a court
order, the Respondent has been making payments of $3000
per month to the Union which have been transferred into the
Pension and Welfare Funds. These moneys have been allo-
cated by the two Trust Funds to the defaulted payments ret-
roactive to when the payments ceased. Thus for example, the
payment in June 1995 was applied to the default in January
1993, the payment in July 1995 was applied to the default in
February 1993, etc. As this is the case, then the maximum
period for at least a portion of the interest computation would
be 30 months as each $3000 payment would have been and is
still being made and applied to a default month that occurred
30 months before.
All parties agree that the payments of $3000 per month
should offset the payments owed to the funds. I will allocate
the $3000 to each fund in proportion to what had been allo-
cated in the past. Thus, $2500 per month is allocated to the
Pension Fund and $500 per month is allocated to the Welfare
Fund.
For the period from January 1, 1993, to April 19, 1995,
the backpay specification uses the actual number of bargain-
ing unit employees that worked during any given weekly
period for calculating the amounts owing to the funds. From
April 19, 1995, on, the General Counsel used the actual
number of bargaining unit employees who worked and added
22 to that number. This is based on the assumption that al-
though there were 24 people illegally laid off on April 19, 2
were rehired within the week. (See App. B.)
The parties stipulated to the number of employees who
worked during the respective periods of time and the
amounts that would be required to be paid for each employee
for each fund during the entire period of the backpay specifi-
cation. Thus, there is no dispute as to the gross amounts
owed to each fund for the period from January 1, 1993, to the
week of April 17, 1995. What was in dispute was whether
the employer had illegally laid off a group of employees
during that week who should be added to the employee count
for purposes of calculating the Pension and Welfare Fund
contributions. Also in dispute is the method to calculate in-
terest.
As I have concluded above that the employer laid off this
group of employees on April 19, 1995, for discriminatory
reasons, and as I also conclude that the Respondent should be
ordered to restore its potato packaging operation, I agree
with the General Counsel’s assumption that but for the illegal
layoffs, the number of employees that would have worked
after April 19, 1995, is the number who actually worked plus
the number who would have worked but for the illegal dis-
crimination. Appendices D and E to this Decision sets forth
the amounts owed to the Pension and Welfare Funds.
With respect to interest, New Horizons For the Retarded,
supra, sets interest on backpay awards at the short-term Fed-
eral rate, determined quarterly, with the rate for any calendar
quarter being the rate determined by the Secretary of the
Treasury on the first month of the previous calendar quarter.
Thus, under this rule, the interest rate can theoretically
change four times a year which is consistent with the fact
that the Board computes backpay on a quarterly basis.
However, the Board in Merryweather Optical Co., supra.,
established a different rule for calculating interest for de-
faulted payments owed to funds established under collective-
bargain-ing agreements. In that case the Board stated:

Because the provisions of employee benefit fund
agreements are variable and complex, the Board does
not provide at the adjudicatory state of a proceeding for
the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance
state the question of whether Respondent must pay any
additional amounts into the benefit funds in order to sat-
isfy our “make-whole remedy. These additional
amounts may be determined, depending upon the cir-
cumstances of each case, by reference to provisions in
the documents governing the funds at issue and, where
there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding ac-
tion, which might include the loss of return on invest-
ment of the portion of funds withheld, additional admin-
istrative costs, etc., but not collateral losses.

In the present case, the underlying collective-bargaining
agreements (the voluntarily signed contract that expired in
1992 and the agreement reached on June 10, 1994), require
the employer to make contributions to the respective funds
but do not set out any specific interest rate for defaulted
payments. However, the contracts, in my opinion, incorpo-
rate by reference the underlying trust documents. General
Counsel’s Exhibit 37 is a Declaration of Trust dated May 2,
1994, for the Pension Fund modifying the “Agreement and
Declaration of Trust as originally entered into as of April 9,
1970 and restated in its entirety in 1975.” At section 5 of
this document, it states in pertinent part:

In addition to any other remedies to which the parties may
be entitled, an Employer in default for not less than five
working days shall be obligated to pay interest at the rate
specified in the Collective Bargaining Agreement, or if a
G & T TERMINAL PACKAGING CO. 125
rate is not specified in the collective Bargaining Agree-
ment, at a rate of not less than one and one half percent per
month on the contributions due from the date when pay-
ment was due to the date when payment is made, together
with all expenses of collection incurred by the Trustees, in-
cluding reasonable attorneys’ and auditors’ fees.

General Counsel’s Exhibit 38 is the Declaration of Trust
for the Welfare Fund and it contains an identical provision.
As the present backpay case involves the failure to make
pension and welfare fund contributions, the proper rule for
calculating interest is the one set forth in Merryweather Op-
tical Co., supra and this is the rule I shall adopt for this case.
Therefore, pursuant to the Trust documents, the interest
would be 1.5 percent per month or 4.5 percent per quarter.
Moreover, because the $3000-per-month payments have
each been applied and will continue to be applied retroac-
tively to a default period 30 months before, the maximum
period for a portion of the interest for any given month
would be 30 months. That is, when an offset payment was
made and applied to a default month, and the amount paid
turns out to be lower than the payment owed plus 30 month’s
of accumulated interest, then additional interest would be
owed on the difference. For example, for January 1993, the
pension amount due was $2400, plus interest at1.5 percent
per month for 30 months or $1080, minus an offset of $2500,
which equals a remaining obligation of $980 for that month.
As this latter amount would still be owed for January 1993,
additional interest should be calculated for the remainder
($980) at 1.5 percent per month until such time as the full
amount that is owed, is paid.
As the backpay specification as amended runs only until
the end of February 1996, and as backpay is still running, the
General Counsel may issue a new backpay specification or
reopen this one as appropriate. Additionally, as the backpay
amounts for all months after March 1994 are calculated on
the assumption that the Respondent will continue to comply
with the court’s Order to pay $3000 per month, any cessation
or deviation of that obligation may give reason to reopen this
matter.
CONCLUSIONS OF LAW
1. By refusing to execute a collective-bargaining agree-
ment that was mutually agreed to on June 10, 1994, the Re-
spondent has violated Section 8(a)(1) and (5) and Section
8(d) of the Act.
2. By discharging or laying off employees on April 17
and 19, 1995, and by refusing to reemploy employees there-
after because of their union membership and activities, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
3. By unilaterally subcontracting or transferring its potato
packaging operations to M&M Farms and Sales, on June 17,
1995, the Respondent has violated Section 8(a)(1) and (5) of
the Act.
4. By unilaterally reinstating employees out of seniority
order, the Respondent has unilaterally changed the terms and
conditions of employment and has violated Section 8(a)(1)
and (5) of the Act.
5. By unilaterally granting wage increases to some of its
employees, the Respondent has violated Section 8(a)(1) and
(5) of the Act.
6. In relation to the backpay specification in Case 2–CA–
26738, the Respondent owes the sums of money set forth in
Appendices D and E, with interest. Moreover, the backpay
liability shall continue until Respondent fully complies with
the Order in that case.
THE REMEDY
The General Counsel seeks an order compelling the Re-
spondent to restore its potato packaging operations as they
existed before the events of April 17, 1995.
In We Can, Inc., 315 NLRB 179 (1994), the Board stated:

When an employer has curtailed operations and dis-
charged employees for discriminatory reasons, the
Board’s usual practice is to order a return to the status
quo ante—that is, to require the employer to reinstate
the employees and restore the operations as they existed
before the discrimination—unless the employer can
show that such a remedy would be unduly burden-
some.14

The Respondent asserts that the record in this case shows
that such a remedy would be unduly burdensome. Alterna-
tively, it seeks permission to adduce additional evidence at
the compliance stage to show that such a remedy would be
unduly burdensome.
In my opinion, the record does not show that a restoration
remedy would be unduly burdensome to the Respondent. The
evidence shows that on April 17, 1995, the Company ceased,
on a temporary basis, its potato packaging operations and
that it dismantled and got rid of its potato packaging assem-
bly line machine. This machine, according to Spinale was
about 35 years old and was substantially out of date. When
asked how much a replacement would cost, he gave the opin-
ion that it would cost between $130,000 and $150,000. Nev-
ertheless, as he admitted that he has not gone out to price
such a machine, this figure was merely a guess.
Although claiming that its potato packaging operations
were not profitable, this was belied by the summary intro-
duced by the Respondent which showed that its potato opera-
tions made a profit in 1994 and 1995. Moreover, there seems
to be no contention that the Respondent’s other operations
were not profitable, and taken as a whole, a sum of $150,000,
may not be all that significant in proportion to the Com-
pany’s total financial picture. At least the Respondent has not
shown that such an amount would be a great deal in the con-
text of its total operations. Finally, if as Spinale says, a more
modern and computerized machine would be more efficient
than his obsolete potato packaging machine, then the sum of
money spent to replace it would probably be a good invest-
ment, yielding future profits.
In We Can, Inc., supra, the Board, although refusing to re-
open the record, did amend the administrative law judge’s
recommended Order to provide that restoration and rein-
statement would be required “unless the Respondent can
establish at compliance—on the basis of evidence that was
not available at the time of the unfair labor practice hear-
ing—that those remedies are inappropriate.” See also Ferra-
gon Corp., supra.
In view of the above, I shall therefore recommend that the
Respondent, having discriminatorily laid off or discharged
employees, must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed

14 See also Ferragon Corp., 318 NLRB 359 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
on a quarterly basis from the date of discharge to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (2987). 15 I shall further recommend that the
potato packaging operation be restored. Consistent with the
cited cases, I shall recommend that the Respondent be al-
lowed at the compliance stage of the proceeding, to try to
establish, based on new evidence, that the restoration of op-
erations would not be appropriate.
In relation to the finding that the Respondent refused to
execute an agreed upon contract, I shall recommend that the
Respondent do so if requested by the Union. In this regard, it
appears that the document which was received into evidence
as General Counsel’s Exhibit 6 incorporates the contract that
was agreed to on June 10, 1994.
As the Respondent refused to sign General Counsel’s Ex-
hibit 6, and as there is and may continue to be a substantial
hiatus between the effective date of that agreement until the
time that this Order is enforced or complied with, I recom-
mend that the Union be given the option of having the 3-year
term of that contract commence at any time of its choosing
from June 10, 1994, until the time that the Respondent com-
plies with this Order.
Further, as the Company has illegally but successfully
kept the Union at bay for a significant amount of time, I rec-
ommend that the Respondent be required to furnish to the
Union a current list of its employees, their job classifications,
and rates of pay, along with their home addresses and tele-
phone numbers. This remedy is designed to allow the Union
to reestablish communication with the employees affected by
the Employer’s unfair labor practices and to enable it to
evaluate the terms of the agreed upon contract vis a vis the
existing terms and conditions of the Respondent’s bargaining
unit workforce.
Although I have concluded above, that the Respondent has
violated Section 8(a)(5) of the Act by giving wage increases
to some of its employees without first bargaining with the
Union, the Respondent shall not be required to rescind these
wage increases unless explicitly requested to do so by the
Union.
As the Respondent’s employees are largely Spanish speak-
ing, it is recommended that the notices be in Spanish and
English.
Finally, as the Respondent has previously violated the Act
and as the violations herein are considered by me to be sub-
stantial and serious, I recommend that a broad order be is-
sued. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, G & T Terminal Packaging Co., Inc. ,
Mr. Sprout, Inc., Tray Wrap, Inc., Chain Trucking, Inc., a

15 However, any moneys owed to the union trust funds pursuant to
the terms of the June 14, 1994 contract would require interest as
calculated in Merriweather Optical, supra.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
single employer, and G & T Terminal Packaging, Inc., and
its alter ego Slow Pack, Inc., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with Pri-
vate Sanitation Union, Local 813, International Brotherhood
of Teamsters a/w AFL–CIO by refusing to sign the contract
that was agreed to on June 10, 1994.
(b) Discharging or laying off employees and refusing to
re-employ employees because of their membership in or
activities on behalf of Private Sanitation Union, Local 813,
International Brotherhood of Teamsters a/w AFL–CIO, or
any other labor organization.
(c) Unilaterally subcontracting or transferring its potato
packaging operations.
(d) Unilaterally reinstating employees out of seniority or-
der.
(e) Unilaterally granting wage increases to some of its
employees.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the Union, execute the contract that was
agreed to on June 10, 1994, in accordance with the terms of
the remedy section of this opinion.
(b) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time employees em-
ployed by the Respondent at its facility, excluding
guards, professional employees and supervisors as de-
fined in the Act.

(c) Within 14 days from the date of this Order, offer the
employees listed on Appendices B and C full reinstatement
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(d) Make the employees listed on Appendices A, B, and C
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.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges and
notify the employees in writing that this has been done and
that the discharges will not be used against them in any way.
(f) Restore the potato packaging operation to its size as of
April 17, 1995, unless it can show at compliance, on the
basis of evidence that was not available at the time of the
unfair labor practices hearing, that those actions would be
unduly burdensome.
(g) Furnish to the Union, a list of the bargaining unit em-
ployees currently working setting forth their names, ad-
dresses, telephone numbers, rates of pay, and job classifica-
tions.
(h) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
G & T TERMINAL PACKAGING CO. 127
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(i) Within 14 days after service by the Region, post at its
facility Bronx, New York, copies of the attached notice
marked “Appendix F.”17 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being
signed by the Respondent’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 custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 19, 1995.
(j) 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 Respondent has taken to comply.
In relation to the backpay specification in Case 2–CA–
26738, the Respondent owes the sums of money set forth in
Appendices D and E, with interest as calculated. Moreover,
the backpay liability in relation to that charge shall continue
until Respondent fully complies with the Order in that case.

APPENDIX A
The evidence shows that 60 employees were discharged
on April 17, 1995, when they were not allowed to go to work
on that day. These are:

Estefania Acevado Maria Garcia
Nancy Amparo Vitalina Genao
A. Rocio Barragan Martin Gonzales
Daria Batista Benjamin Guzman
Ysidro Canela Ana Hernandez
Anonio Castillo Paula Javier
Miriam Contreras Victor Jimenez
Herman DiazEligio Disla Romana Lopez
Agapito Duran Fernando Mendez
Ramona Escoboza Primitiva Mercado
Erlinda Espinoza Jose Merigildo
Astia Mesa Luz Ramos
Regino Mora Francisco Rodriguez
Leonardo Morel Matilda Rodriguez
Magdalena Negron Olimpia Rodriguez
Beatriz Olivo Aida Romero
Benita Olivo Juan Romero
Juana Olivo Onofre Romero
Dominot Orbe Felix Sanchez
Jose Rafael Ortega Carlos Santana
Maria Ortiz Zunilda Santana

17 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
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
Bienvenido Padilla Claudio Santiago
Carmen Perez Thelma E. Severino
Leonides Perez Carment Sosa
Juan Ramos RosaTejada
Augustina Fermin Aurora Terrero
Candida Frias Leyda Triunfel
Ana Villanueva

APPENDIX B
This list consists of those people who were laid off on
April 17, 1995, and who were not recalled by the Respondent
on April 19, 1995. In a few cases, employees returned to
work on the dates set forth next to their names.

Estefania Acevado Primitivo Lopez
Sabina Cabrera Jose Merigildo
Antonio Castillo Leonardo Morel
Marco Delgado Beatriz Olivo
Herman Diaz Benita Olivo
Romana Escoboza (retn 4/25) Juana Oliva
Erlinda Espinoza Jose Ortega
Maria Garcia Francisco Rogriguez
(retn 4/23)
Mercedes Garcia Matilda Rodriguez
Ana Hernandez Carlos Santan
Casimiro Hernandz Claudio Santiago
Denny Lopez Leyda Triunfel

APPENDIX C
There were four employees who were not actually work-
ing during the week of April 17 because of illness or because
they were on leave and who were not allowed to return when
they reported to work. These are:
Sabina Cabrera. She had left for the Dominican Republic
on or about April 12 and when she reported back to work on
May 1, 1995, she was not allowed to return.
Marcos Delgado. On April 17 he was out sick, his last
previous day worked being April 6, 1995. He testified that
when he tried to return to work on or about April 26, he was
not allowed in.
Primitivo Lopez. He testified that he left on or about
March 27, 1995, to go to Santa Domingo for 1 month and
that he reported this to Spinale’s nephew. He returned to
New York on April 27 and within a day or two tried, without
success to return to work. He testified that when he did, Spi-
nal told him that he had no more work.
Casimiro Hernandez. He had been out ill for about 2
months before April 17, 1995. He attempted to return to
work in late April and was told through a coworker that he
should collect unemployment.
With respect to these employees, the evidence shows that
the company has had a practice of permitting employees to
take extended leaves and that it has put them back to work
when they were ready to return. Since I have concluded that
the Respondent made its decision to reduce its workforce and
have their work done by another company, I conclude that
the failure to allow these four employees to return to work
after their illnesses or their leaves of absence, constituted a
violation of Section 8(a)(1) and (3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128

APPENDIX D
PENSION FUND CONTRIBUTIONS
PERIOD GROSS INTEREST OFFSET TOTAL
1/1/94 $2,400 $1,080 $2,500 $ 980
Feb.–93 2,424 1,090.8 2,500 1,014.8
Mar.–93 2,424 1,090.8 2,500 1,014.8
Apr.–93 3,120 1,404 2,500 2,024
May.–93 2,544 1,144.8 2,500 1,188.8
Jun.–93 2,536 1,141.2 2,500 1,177.2
Jul.–93 3,064 1,378.8 2,500 1,942.8
Aug.–93 2,432 1,094.4 2,500 1,026.4
Sep.–93 2,440 1,098 2,500 1,038
Oct.–93 3,272 1,472..4 2,500 2,244.4
Nov.–93 3,224 1,450.8 2,500 2,174.8
Dec.–93 2,592 1,166.4 2,500 1,258.4
TOTAL $17,084.4

Jan.–94 2,488 1,119.6 2,500 1,107.6
Feb.–94 2,560 1,152 2,500 1,212
Mar.–94 2,448 1,101.6 2,500 1,049.6
Apr.–94 2,928 1,317.6 2,500 1,745.6
May.–94 2,480 1,116 2,500 1,096
Jun.–94 2,608 1,173.6 2,500 1,281.6
Jul.–94 3,248 1,461.6 2,500 2,209.6
Aug.–94 3,216 1,447.2 2,500 2,163.2
Sep.–94 2,656 1,195.2 2,500 1,351.2
Oct.–94 2,688 1,209.6 2,500 1,397.6
Nov.–94 3,368 1,515.6 2,500 2,383.6
Dec.–94 2,600 1,170 2,500 2,270
TOTAL $19,267.6

Jan.–95 2,344 1,054.8 2,500 898.8
Feb.–95 2,384 1,072.8 2,500 956.8
Mar.–94 3,128 1,407.6 2,500 2,035.6
Apr.–95 2,416 1,087.2 2,500 1,003.2
May–95 3,280 1,476 2,500 2,256
Jun.–95 2,664 1,198.8 2,500 1,362.8
Jul.–95 2,664 1,198.8 2,500 1,362.8
Aug.–95 3,072 1,382.4 2,500 1,954.4
Sep. –95 2,624 1,180.8 2,500 1,304.8
Oct.–95 3,152 1,418.4 2,500 2,070.4
Nov.–95 2,784 1,252.8 2,500 1,536.8
Dec.–95 2,800 1,260 2,500 1,560
TOTAL $18,302.4

Jan.–96 3,392 1,526.4 2,500 2,418.4
Feb.–96 2,672 1,202.4 2,500 1,374.4
TOTAL $ 3,682.8

GRAND TOTAL
$58,447.2 Plus Interest

G & T TERMINAL PACKAGING CO. 129

APPENDIX E
WELFARE FUND CONTRIBUTIONS
PERIOD GROSS INTEREST OFFSET TOTAL
Jan.–93 $474 $213.3 $500 $187.3
Feb.–93 486 218.7 500 204.7
Mar.–93 480 216 500 196
Apr.–93 498 224.1 500 222.1
May–93 510 229.5 500 239.5
Jun.–93 492 221.4 500 213.4
Jul.–93 516 232.2 500 248.2
Aug.–93 510 229.5 500 239.5
Sep.–93 486 218.7 500 204.7
Oct.–93 540 243 500 283
Nov.–93 522 234.9 500 256.9
Dec.–93 516 232.2 500 248.2
TOTAL $2,743.5

Jan.–94 498 224.1 500 222.1
Feb.–94 504 226.8 500 230.8
Mar.–94 504 226.8 500 230.8
Apr.–94 498 224.1 500 222.1
May–94 498 224.1 500 222.1
Jun.–94 504 226.8 500 230.8
Jul.–94 516 232.2 500 248.2
Aug.–94 516 232.2 500 248.2
Sep.–94 558 251.1 500 309.1
Oct.–94 522 234.9 500 256.9
Nov.–94 516 232.2 500 248.2
Dec.–94 504 226.8 500 230.8
TOTAL $2,900.1

Jan.–95 456 205.2 500 161.2
Feb.–95 474 213.3 500 187.3
Mar.–94 492 221.4 500 213.4
Apr.–95 510 229.5 500 239.5
May–95 510 229.5 500 239.5
Jun.–95 510 229.5 500 239.5
Jul.–95 510 229.5 500 239.5
Aug.–95 510 229.5 500 239.5
Sep.–95 510 229.5 500 239.5
Oct.–95 510 229.5 500 239.5
Nov.–95 510 229.5 500 239.5
Dec.–95 510 229.5 500 239.5
TOTAL $2,717.4

Jan.–96 510 229.5 500 239.5
Feb.–96 510 229.5 500 239.5
TOTAL $ 479

GRAND
TOTAL

$8,840 Plus Interest