Gartner-Harf Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 531 (N.L.R.B. 1992)

531
308 NLRB No. 77
GARTNER-HARF CO.
1 The General Counsel excepts to the judge’s failure to find that
the Respondent violated Sec. 8(a)(3) by laying off driver Edward
Garbulinski on January 11, 1991. The General Counsel argues that
the judge ‘‘misconstrue[d] Garbulinski’s complaints and the extent
to which these complaints were rooted in the Union collective-bar-
gaining agreement.’’ We disagree. From Garbulinski’s testimony it
is clear, as the judge found, that Garbulinski’s conversations with the
Respondent’s officials regarding lack of work were in the nature of
personal complaints about his own lack of work hours.
The judge’s decision contains certain inadvertent errors which we
correct below. These errors do not affect our results. In the third
paragraph of the ‘‘Facts’’ section of his decision, ‘‘Pagewood N.V.’’
should read ‘‘Acredraw Ltd.’’ In the 10th paragraph of the same sec-
tion, the date ‘‘August 31, 1990’’ should read ‘‘July 31, 1990.’’ Fi-
nally, in the seventh paragraph of the ‘‘unfair labor practices’’ sec-
tion of his decision, the judge states that Hank Garbulinski, the Re-
spondent’s production manager, informed Maisner that it was his un-
derstanding that the foreman’s rate was $9.25. Maisner testified
without contradiction, however, that he asked Garbulinski what the
rate would be and Garbulinski said $8.25. Maisner replied that he
(Maisner) ‘‘was under the impression that the foreman’s rate was
$9.25.’’
2 Unless otherwise noted, the term ‘‘the Respondent’’ refers to GH
Processed Beef and Pagewood Meat Packing, which, as admitted in
its answer and as found by the judge, constitute a single employer.
The judge also found, and we agree, that the Respondent is Gartner-
Harf’s successor and that it was obligated to assume Gartner-Harf’s
contract with the Union when it commenced operation on September
7, 1990.
3 Accordingly, we shall include a part ‘‘B’’ in our Order that ap-
plies to Respondent Gartner-Harf alone. We also add an ‘‘Appendix
II’’ which corresponds to part B of the Order.
As to Gartner-Harf’s violations encompassed within part B of the
Order, par. 47 of the amended consolidated complaint alleges that
‘‘GH/Pagewood’’ (i.e., Gartner-Harf and the Respondent) failed and
refused to adhere to the collective-bargaining agreement by failing
to remit contractually mandated pension and health fund payments,
by failing to remit union dues pursuant to checkoff authorizations,
and by failing to provide its employees contractually required sever-
ance benefits after the cessation of operations. Although our finding
of these violations runs to Gartner-Harf alone, we conclude that Re-
spondent Gartner-Harf is not prejudiced thereby. In this regard, we
note that although the General Counsel timely served Gartner-Harf
with the complaints in this matter, including the amended consoli-
dated complaint, Gartner-Harf failed to file an answer or to other-
wise defend against these alleged violations. In addition, although
Gartner-Harf chose not to be represented by counsel at the hearing,
we note that Harf, one of its owners, was present and testified at
the hearing. Accordingly, we find that Respondent Gartner-Harf was
timely apprised of the violations alleged against it and had ample
opportunity to defend against those allegations. In these cir-
cumstances, we conclude that Gartner-Harf rightfully can neither
claim surprise nor a violation of its due-process rights merely be-
cause we find that it alone is liable for the alleged contractual viola-
tions.
Gartner-Harf Co., Pagewood N.V., Pagewood Meat
Packing Co., and GH Processed Beef, Inc. and
United Food and Commercial Workers District
Union, Local 1, AFL–CIO–CLC. Cases 6–CA–
23012, 6–CA–23062, 6–CA–23275, and 6–CA–
23294
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 14, 1992, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
General Counsel filed limited exceptions and a brief in
support.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The General Counsel has excepted to the judge’s
dismissal of Respondent Gartner-Harf from these pro-
ceedings and to his failure to find that Gartner-Harf,
either as a sole employer or as a single employer with
the Respondent,2 is obligated to remedy the unfair
labor practices it committed prior to its closing on Au-
gust 23, 1990. The General Counsel has also excepted
to the judge’s failure to find that Gartner-Harf and the
Respondent constitute a single employer, a finding that
would, in effect, obligate the Respondent to remedy
Gartner-Harf’s violations discussed above. As to the
judge’s dismissal of Gartner-Harf, the General Counsel
asserts that since Gartner-Harf was still in existence at
the time of the hearing, its viability and obligations
arising from its unfair labor practices should be left to
compliance. As to the single employer issue, the Gen-
eral Counsel contends, inter alia, that since the judge
found that Gartner-Harf and the Respondent are alter
egos and since under Board law alter egos are a ‘‘sub-
set’’ of single employers, the judge should have found
that Gartner-Harf and the Respondent constitute a sin-
gle employer. For the reasons set out below, we find
this latter exception without merit and conclude that
Gartner-Harf and the Respondent are neither a single
employer nor alter egos.
We find merit in the General Counsel’s exception to
the judge’s dismissal of Gartner-Harf as a party re-
spondent, and we further find that Gartner-Harf, as the
sole employer of the employees prior to its closing,
violated the Act as alleged.3 For the reasons set out
below, however, we find no merit in the General
Counsel’s contention regarding the liability of the Re-
spondent for Gartner-Harf’s preclosing violations be-
cause we conclude that Gartner-Harf and the Respond-
ent were neither a single employer nor alter egos.
Because the General Counsel’s exceptions concern
the legal relationship of the four named Respondents,
we shall set out briefly their financial relationship and
their officers’ day-to-day interaction.
Gartner-Harf operated for many years as a slaughter-
house and meatpacking operation in Waterford, Penn-
sylvania. Walter Harf was the Company’s president
and Jack Gartner its vice president and secretary. For
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Unless otherwise noted, all dates hereafter refer to 1990.
5 Odimayo testified that it would be easier for a U.S.-based com-
pany to negotiate Gartner-Harf’s purchase, so GH Processed Beef
was incorporated to replace Pagewood N.V. as the vehicle through
which Odimayo would purchase Gartner-Harf. Odimayo further testi-
fied that after GH Processed Beef was incorporated, Pagewood N.V.
was voluntarily liquidated and died a ‘‘natural death.’’ After the
hearing, the Respondent filed a Motion for Summary Judgment seek-
ing to dismiss Pagewood N.V. from the proceeding on the ground
that it no longer exists. The judge, in effect, granted the motion by
concluding that Pagewood N.V. is no longer an employer engaged
in commerce within the meaning of the Act. As explained above, we
find that the judge properly dismissed Pagewood N.V. from the pro-
ceedings.
6 Dawodu testified that he did not have a job description, but that
he just went ‘‘to who was in charge of any particular thing that [he]
was interested to find out. It was more of a discussion or consulta-
tion with them than giving directives or whatever.’’ In this regard,
Dawodu testified that he attended several meetings on work rules
and plant safety as an observer, but that he never attended any meet-
ings concerning employee grievances. Contrary to Dawodu, Fromm
testified that Dawodu attended and actively participated in two such
meetings in early May. The judge did not resolve this credibility
conflict. We are reluctant to credit Fromm’s testimony for the fol-
lowing reasons. At the hearing, the General Counsel introduced G.C.
Exhs. 14 and 15 which were respectively Fromm’s notes of the May
1 and 7 grievance meetings. At the top of each sheet, as Respond-
ent’s counsel pointed out, the names of the participants, including
Dawodu, seemed to have been inserted after the notes were taken
and appeared not to be in Fromm’s handwriting. When the Respond-
ent’s counsel asked Fromm why the signatures seemed to be in a
different handwriting, Fromm failed to provide a satisfactory expla-
nation, but stated ‘‘[w]ithout trying to be a smart aleck, I guess that
is your call, not mine.’’ In these circumstances, we find Dawodu’s
testimony that he did not attend any grievance meetings between
April and August 23 to be more credible. Moreover, even assuming
that Dawodu did actively participate in two grievance meetings, the
record does not establish sufficient involvement by Dawodu in the
many years the Union had represented Gartner-Harf’s
employees, with the most recent contract extending
from May 1989 to May 29, 1994. After late 1987,
Gartner-Harf experienced financial difficulties and in
August 1988 it signed a letter of agreement to sell the
Company to Odimayo, the Respondent’s president, but
the parties failed to reach final agreement on the sale.
In October 1989, due to financial difficulties, Gartner-
Harf decided to close. One of its officers contacted
Odimayo regarding its financial condition and the par-
ties renewed their negotiations. On December 5, 1989,
the parties executed a ‘‘stock purchase agreement’’
providing for the sale of the Company on February 28,
1990.4 The agreement was signed by Harf and Gartner
for the Company and by Odimayo as president of
Pagewood N.V., a holding company registered in the
Dutch Antilles. The agreement provided for a
$200,000 downpayment to Gartner-Harf. The agree-
ment was not consummated, however, and the parties
negotiated an ‘‘Assets Purchase Agreement’’ dated
March 1 that set May 31 as the closing date. Odimayo
signed this agreement as president of GH Processed
Beef, a Delaware corporation.5 Under the terms of this
agreement, Odimayo paid Gartner-Harf $100,000, thus
increasing his investment in the Company to $300,000.
The parties did not execute the agreement on May
31, however, but agreed to extend it another 2 months.
On June 28 Odimayo advanced Gartner-Harf $600,000
to provide the Company with working capital and to
pay off a demand note held by the bank. As consider-
ation for the payment, Harf and Gartner executed a
‘‘voting Trust Agreement’’ which transferred 50 per-
cent of their stock ownership to Odimayo. The parties
also agreed to extend the closing of the contract to Au-
gust 31, 1992. Gartner continued to run the business
with ‘‘due consultation’’ with Odimayo. In August the
Company again ran into financial difficulty. Odimayo
advanced another $500,000 although he was under the
impression that his tenure on the board had expired on
July 31. The parties, Odimayo, Dawodu (Odimayo’s
brother-in-law), Harf, and Gartner, met on August 10
and executed a ‘‘Stock Purchase Agreement’’ that was
not a formal sales agreement, but indicated that the
March 1 agreement was no longer valid. The parties
were in the process of negotiating a new agreement
when on August 23 the bank foreclosed on its $4 mil-
lion loan to Gartner-Harf.
The bank’s foreclosure ended any possibility that
Odimayo could purchase the Company in accordance
with the prior agreement. Odimayo instead negotiated
with the bank (which was selling the Company’s as-
sets) and Harf and Gartner as the owners of the Com-
pany’s stock. On August 27, Gartner-Harf and GH
Processed Beef executed an agreement that provided
for the sale of all assets of Gartner-Harf to GH Proc-
essed Beef. On August 29, Pagewood Meat Packing
was created to operate the meatpacking business.
Odimayo was its president and Dawodu its secretary.
GH Processed Beef and Pagewood Meat Packing (the
Respondent) began operations on September 7.
As to Odimayo’s actual participation in the day-to-
day operation of Gartner-Harf during the period at
issue, on March 9, after he had invested $300,000 in
Gartner-Harf, Odimayo was made a director of the
Company along with Harf and Gartner. Odimayo was
also made ‘‘Vice Chairman and Chief Executive Offi-
cer.’’ Harf remained chairman and Gartner became
‘‘President and Chief Executive Officer’’ and was re-
sponsible for running the Company on a daily basis.
About March 15, the Company’s management, includ-
ing Odimayo, met with Fromm, the Union’s business
agent. At that meeting Odimayo stated unequivocally
that he intended to honor the obligations of the union
contract when he became owner. At about the same
time, and at Odimayo’s direction, most of the senior
executives received a pay raise. In April, Gartner-Harf
hired Dawodu to participate in the day-to-day running
of the Company and to represent Odimayo’s interests
during Odimayo’s extended absences.6 In addition,
533GARTNER-HARF CO.
employees’ terms and conditions of employment to render the Re-
spondent a single employer with Gartner-Harf.
7 In Hydrolines, supra at 418, by contrast, the Board found that re-
spondents TNT and Hydrolines exercised centralized control over
labor relations despite the fact that TNT had no labor force. In
reaching its finding, the Board relied, inter alia, on the facts that
TNT’s president, Bruyere, screened Hyrdolines’ prospective employ-
ees before Hydrolines made a hiring decision, that Bruyere
‘‘exert[ed] some influence’’ over Hydrolines’ labor force, and that
Bruyere, after receiving the union’s bargaining demand, passed it on
to Hydrolines’ chief executive officer who responded on behalf of
both respondents. Such evidence of centralized control of labor rela-
tions is absent in the present case.
8 The judge found that Gartner-Harf and the Pagewood group were
alter egos. As noted above, the General Counsel points out in his
brief that ‘‘in Board law, alter ego is in effect a subset of the single
employer concept (i.e. not all single employers are alter egos, but
all alter egos by definition met [sic] the criteria for single employer
status).’’ Since we find that Gartner-Harf and GH Processed Beef
are not a single employer, a fortiori Gartner-Harf and the Respond-
ent are not alter egos. We note also that the record does not show
that the Respondent is ‘‘merely a disguised continuance of the old
employer.’’ See Il Progresso Italo Americano Publishing Co., 299
NLRB 270, 288 (1990), citing Southport Petroleum Co. v. NLRB,
315 U.S. 100, 106 (1942).
9 We modify the judge’s Conclusions of Law accordingly. In addi-
tion, we modify the remedy portion of the judge’s decision as fol-
lows. We shall order Gartner-Harf to make the required pension and
health contributions to the trust funds that have not been paid and
that would have been paid but for the unlawful conduct found here,
with any additional amounts as set forth in Merryweather Optical
Co., 240 NLRB 1213 (1979). We shall also order Gartner-Harf to
make whole the unit employees for any losses attributable to its fail-
ure to make the contractually required payments, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). In addition, we shall order
Gartner-Harf to reimburse the Union, with interest as prescribed in
New Horizons, supra, for union dues that it failed and refused to
remit the Union in accordance with the collective-bargaining agree-
ment. Finally, we shall require Gartner-Harf to make whole its em-
ployees for its failure to make the severance payments required
under the contract, with interest as prescribed in New Horizons,
supra.
Odimayo hired a consultant, Shade Munro, to make
certain improvements at the plant in preparation for
doing business with the European Economic Commu-
nity.
A determination of whether two or more employers
constitute a single employer depends on an analysis of
four criteria: (1) interrelation of operations; (2) com-
mon management; (3) centralized control of labor rela-
tions; and (4) common ownership or financial control.
Of these criteria, the Board has stressed that the first
three ‘‘are more critical than common ownership’’ and
has placed ‘‘particular emphasis on whether control of
labor relations is centralized.’’ Hydrolines, Inc., 305
NLRB 416, 417 (1991). Applying these criteria here,
we emphasize that between March and August 1990,
the period Odimayo was negotiating the purchase of
Gartner-Harf, only Respondent GH Processed Beef
was in existence. (Pagewood Meat Packing was incor-
porated on August 29 to run the meatpacking operation
through a lease agreement with GH Processed Beef.)
As noted above, GH Processed Beef was a holding
company. It employed no employees and conducted no
operations. Moreover, the factor on which the Board
places ‘‘particular emphasis’’ in its single employer
determination, centralized control of labor relations, is
absent here. In this regard, we note that Odimayo and
Dawodu, his personal representative at the Gartner-
Harf facility during the period at issue, played no part
in the hiring, firing, or disciplining of the unit employ-
ees or any other role in the determination of the unit
employees’ terms and conditions of employment. Al-
though Odimayo signed an EEO memo that was post-
ed at the plant in May and Dawodu attended two or
three meetings at which employees were present during
the spring, we find that these facts do not establish that
Gartner-Harf and GH Processed Beef together exer-
cised centralized control of Gartner-Harf’s work force.7
We also find that while Odimayo’s financial interest
in Gartner-Harf increased over the spring and summer,
Odimayo’s contributions, made through GH Processed
Beef, were made in furtherance of Odimayo’s plan to
purchase Gartner-Harf and to maintain its viability
until the purchase went through. As the payments to-
ward the purchase were memorialized in letters of in-
tent and contractual agreements, we find that the busi-
ness relationship between the two companies is best
characterized as ‘‘arm’s length’’ and does not evidence
centralized financial control of the two companies. See
Hydrolines, supra, at 418.
Finally, while Odimayo did gain an ownership inter-
est in Gartner-Harf in March, we find that this factor,
standing alone, does not warrant a finding that
Gartner-Harf and the Respondent are a single em-
ployer.8 Consequently, as noted above, we find that
Gartner-Harf, as the sole employer of its employees
prior to its closing, violated Section 8(a)(5) by failing
to make contractually required payments from August
15 to September 7. We shall leave to compliance the
determination of Gartner-Harf’s continued viability and
its obligations arising from its unlawful conduct.9
ORDER
A. The National Labor Relations Board adopts the
recommended Order of the administrative law judge
and orders that the Respondent, GH Processed Beef,
Inc. and Pagewood Meat Packing Co., Waterford,
Pennsylvania, a single employer, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
B. The National Labor Relations Board orders that
the Respondent, Gartner-Harf Co., Waterford, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.’’
1. Cease and desist from
(a) Refusing to bargain collectively with United
Food and Commercial Workers District Union, Local
1, AFL–CIO–CLC, the exclusive representative of its
employees in the bargaining unit, by failing to make
the contractually required pension, health, dues, and
severance payments.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranted them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make the contractually required payments to the
Union’s trust funds, reimburse the Union for the dues
it unlawfully withheld, and make the unit employees
whole in the manner set out above.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the terms of this Order.
(c) Post at its facility in Waterford, Pennsylvania,
copies of the attached notice marked ‘‘Appendix II’’
and mail copies thereof to all employees of Respond-
ent Gartner-Harf who were laid off as a result of the
Respondent’s closure.10 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent’s authorized represent-
ative, shall be mailed by the Respondent to each laid-
off employee and additional copies shall be posted by
the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within
20 consecutive days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX II
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.
WE WILL NOT refuse to bargain collectively with the
United Food and Commercial Workers District Union,
Local 1, AFL–CIO–CLC as the exclusive bargaining
representative of our employees in the bargaining unit,
by refusing and failing to make the contractually re-
quired pension, health, dues, and severance payments.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make the contractually required payments
to the Union’s trust funds, reimburse the Union for the
dues we unlawfully failed to remit, and make our unit
employees whole, with interest, for any losses that
they may have suffered as a result of our failure to
make the contractually required payments.
GARTNER-HARF CO.
Barton Meyers and Patrick Berzai, Esqs., for the General
Counsel.
Frank L. Kroto Jr. and Kenneth Wargo, Esqs., of Erie, Penn-
sylvania, for the Respondent.
Richard Lipsitz, Esq. (Lipsitz, Green, Fahringer, Robb, Salis-
bury & Cambria), of Buffalo, New York, for the Charging
Party.
Walter Harf, pro se, of Erie, Pennsylvania.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried on May 13–16, 1991, in Erie, Pennsylvania.
The charges (Case 6–CA–23021 on September 19, 1990,
amended on January 24, 1991; Case 6–CA–23062 on Octo-
ber 9, 1990, amended on January 24, 1991; Case 6–CA–
23275 on January 14, 1991; Case 6–CA–23275 on January
17, 1991, amended on February 11, 1991) were filed by
United Food and Commercial Workers District Union, Local
1, AFL–CIO–CLC (the Union). Consolidated complaints is-
sued on January 25, 1991, in Cases 6–CA–23012 and 6–CA–
23062 and February 12, 1991, in Cases 6–CA–23275 and 6–
CA–23294, as amended on April 26, 1991. The allegations
in the amended consolidated complaint charge several cor-
porations, Gartner-Harf Co., Pagewood N.V., GH Processed
Beef, Inc., and Pagewood Meat Packing Company, with vio-
lations of Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act). The 8(a)(1) violations include
unlawful interrogations of employees about their union sym-
pathies, threats of plant closure, and the solicitation of a peti-
tion to decertify the Union. The 8(a)(1) and (3) allegations
accuse the Respondents with the discriminatory discharge of
employee Edward Garbulinski and the discriminatory refusal
to recall Timothy Maisner. The Respondent’s layoff of
Garbulinski is also alleged as an 8(a)(4) violation. The al-
leged violations of Section 8(a)(1) and (5) of the Act involve
the refusal and failure of several Respondents, as alter ego,
as a single employer, or as successor corporations (1) to rec-
ognize and bargain with the Union, and (2) to abide by the
collective-bargaining agreement in such areas as the hiring of
employees, the payment of wages, the payment of pension,
535GARTNER-HARF CO.
1 The answer was filed on behalf of Pagewood N.V., GH Proc-
essed Beef, Inc., and Pagewood Meat Packing Co. The other cor-
porate entity, Gartner-Harf Co., did not file an answer and was not
represented by counsel.
2 The parties filed briefs. By letter of July 17, 1991, the Respond-
ent filed a short reply brief which the General Counsel opposed with
a motion to strike. Consideration of the brief is, in my opinion, not
prejudicial to the General Counsel. I, accordingly, deny the motion.
3 R. Br. p. 21, see also R. answer p. 4.
4 On June 24, 1991, the Respondent filed a Motion for Summary
Judgment requesting the dismissal of the allegations against
Pagewood N.V. The General Counsel filed an opposition to the mo-
tion on July 18, 1991.
5 The complaint also alleges that Gartner-Harf and Pagewood N.V.
operated as a single employer and that GH Processed Beef and
Pagewood Meat Packing Co. constituted a single employer.
insurance, and legal assistance funds, and the workweek of
its drivers.
The Respondents1 filed answers on February 11, March 6,
and May 10, 1991, in which certain allegations are admitted.
The Respondents denied the allegations dealing with the
‘‘single employer’’ status and the successor relationships of
the corporate entities. Also denied are the commission of any
unfair labor practices.2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Gartner-Harf Co., was a Pennsylvania
corporation with an office and place of business in Water-
ford, Pennsylvania, where it was engaged in the slaughter,
nonretail sale, and distribution of meat. During the 12-month
period ending August 31, 1990, Gartner-Harf in the conduct
of its business sold and delivered goods and products valued
in excess of $50,000 to points outside the State of Pennsyl-
vania. It was admittedly an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondents Pagewood Meat Packing Company and GH
Processed Beef Co. are Delaware corporations with an office
and place of business in Waterford, Pennsylvania, where, as
a single-integrated enterprise, they are engaged in the slaugh-
ter, distribution, and nonretail sale of meat products. With
projected purchases of products in excess of $50,000 directly
from points outside the State of Pennsylvania, GH Processed
Beef and Pagewood Meat Packing Co. are admittedly a sin-
gle employer or an integrated enterprise engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.3
Affiliated with GH Processed Beef or Pagewood Meat
Packing and alleged as one of the Respondents is Pagewood
N.V. The Respondents denied the allegations that Pagewood
N.V. is a Dutch corporation with an office and place of busi-
ness in Leatherhead, England, or that it was engaged in the
purchase and sale of real property in the United States. In
view of the Respondents’ answer stating that Pagewood N.V.
is a foreign company registered in the Dutch Antilles, the
Board’s jurisdiction over Pagewood N.V. can be asserted
only if it can be determined that it was doing business within
the territorial United States or if it constituted a single em-
ployer with one of the corporate entities which meet the
Board’s criteria. IL Progessso Italo Americano Publishing
Co., 299 NLRB 270 (1990).4
The Union, United Food and Commercial Workers District
Union, Local 1, AFL–CIO–CLC, is admittedly a labor orga-
nization within the meaning of Section 2(5) of the Act.
Facts
The complaint alleges that the following four corporate en-
tities constituted a single employer: Gartner-Harf Co.,
Pagewood N.V., GH Processed Beef, Inc., and Pagewood
Meat Packing Co. In the alternative, it is alleged that the lat-
ter three entities, Pagewood N.V., GH Processed Beef, Inc.,
and Pagewood Meat Packing Co., constitute a single em-
ployer and are a successor to Gartner-Harf Co.5
Gartner-Harf operated for many years as a meatpacker or
a slaughterhouse in Waterford, Pennsylvania. With a work
force of approximately 165 employees, the Company was
owned and operated by Walter Harf and Jack Gartner. Walter
Harf was the president and Jack Gartner, the vice president
and secretary, and Margaret Gartner served as treasurer (Tr.
90). The employees had for many years been represented by
the United Food and Commercial Workers. Their latest col-
lective-bargaining agreement was negotiated to last from
May 1989, to May 29, 1994 (G.C. Exh. 3, Tr. 189).
In late 1989, Gartner-Harf experienced financial difficul-
ties and decided to act. On October 20, 1989, the Company
notified the Union and the Governor of Pennsylvania under
the State’s Worker Adjustment and Retraining Notification
Act that the plant would close, ‘‘unless there is a dramatic
change in the economic conditions of the industry in which
the company is engaged.’’ As early as 1987, Gartner-Harf
had been looking for a buyer of the Company. It had con-
tacted a broker and advertised in the Wall Street Journal. The
Company received 140 responses, including one from
Pagewood N.V. and its principal owner, A. O. Odimayo, a
Nigerian investor (Tr. 192, 493). Negotiations ensued be-
tween Jack Gartner and Walter Harf, the owners, and A. O.
Odimayo of Pagewood N.V. In August 1988, the parties
signed a letter of intent for the sale of the Company to
Pagewood N.V. (Tr. 193, 494). However, the parties did not
comply with the letter of intent.
In October 1989, after Gartner-Harf had notified the Union
of the closing of the plant, an employee of Gartner-Harf
called Odimayo by telephone in London, England, advising
him of the precarious financial position of the Company (Tr.
194, 498). As a result, the parties resumed negotiations and,
on December 5, 1989, executed a ‘‘stock purchase agree-
ment’’ providing for the sale of the Company on February
28, 1990 (G.C. Exh. 17, Tr. 195, 504). The agreement was
signed by Walter Harf and Jack Gartner as selling sharehold-
ers and by A. O. Odimayo as president of Pagewood Com-
pany N.V. The agreement provided for a $200,000 downpay-
ment to Gartner-Harf (Tr. 195). The parties, however, did not
consummate the contract on February 28, 1990, because of
certain financial considerations. The individual parties nego-
tiated another agreement dated March 1, 1990, entitled ‘‘As-
sets Purchase Agreement’’ (G.C. Exh. 18, Tr. 200, 507).
Odimayo signed the agreement as president of GH Processed
Beef, Inc., a company identified in the contract as a Dela-
ware corporation. Odimayo explained the reasons for the
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change of corporate entity from Pagewood to GH Processed
Beef (Tr. 444–445):
Basically when we decided to go ahead with this
contract, it was found that it would be better for ease
of information or ease of access to information that we
should have a U.S. based company to take over what-
ever negotiation, contract, conclusion or completion of
what you call closing here regarding this transaction,
and for that my lawyer at that time, Mr. John Leo, rec-
ommended that we should have a Delaware company
put in place as the successor to this company Pagewood
Company N.V. and to that effect I was empowered to
incorporate the company. It was later known as G.H.
Processed Beef Inc., and that company took over the
activities of Pagewood Company N.V.
This is the reason why subsequent contracts and
draft contracts were in the name of G.H. Processed
Beef, and no longer Pagewood because one was to take
over the activities of the other.
Under the terms of the March 1, 1990 contract, Odimayo
paid $100,000 to Gartner-Harf, which brought Odimayo’s
total investment in the Company to $300,000 (Tr. 509). At
the advice of his counsel, Odimayo requested and Gartner
Harf agreed to include Odimayo in the management of
Gartner-Harf (Tr. 203, 509). Accordingly, pursuant to a spe-
cial meeting of the board of directors of Gartner-Harf on
March 9, 1990, Odimayo was made a director of the Com-
pany along with Jack Gartner and Walter Harf. Odimayo was
elected ‘‘Vice Chairman and Chief Executive Officer,’’ while
Harf remained Chairman and Gartner became ‘‘President and
Chief Operating Officer’’ (G.C. Exhs. 19–22, Tr. 203).
Harf’s testimony shows that his executive role was dimin-
ished and that Odimayo and Gartner would be in control of
the Company (Tr. 203):
A. Because I was no longer going to be staying with
the company as its future head, it was suggested that
people knew—should know who to report to and that
Jack Gartner was to be the President of the Company
after I was no longer going to be the President and in
that way there would be no confusion among the em-
ployees as to who was the boss. I was to leave, phys-
ically leave the premise and not be there on an every-
day on-going situation as Chief Executive Officer.
. . . .
A. Mr. Gartner assumed the Presidency and those re-
sponsibilities with it, yes.
Q. And it was contemplated that he would continue
that role under—after the sale was finalized?
A. That would be between he and Mr. Odimayo.
On about March 15, 1990, management of Gartner-Harf,
including Odimayo, met with George Fromm, business agent
of United Food and Commercial Workers District Union,
Local 1 (Tr. 32, 544). Odimayo unequivocally indicated dur-
ing the meeting that he expected to honor the obligations of
the union contract under his ownership. Fromm recalled the
conversation as follows (Tr. 32–33):
A. I was introduced to Odimayo and he let me know
that he was—spoke several languages. He talked about
his Nigerian culture and that he, himself, didn’t have
any fear of labor unions. He said he had looked at the
contract. He found it workable and made a remark that
we would reach a point where we would welcome con-
cession. I took exception to that and told him that I
doubted it. We both seemed kind of confused at that
point. He indicated to me that his brother-in-law,
[Adesina Dawodu] his representative, would be on the
premises as his representative.
. . . .
A. I asked him point blank, ‘‘Are you assuming the
contract on the men?’’ and he said, yes, he was and I
asked him if we could put that in writing and he said
he didn’t really feel that was necessary, that things
would only get better. He talked a great deal about im-
provements in the plant and getting the plant ready for
distribution of beef to Europe and that he felt things
would only go up from there.
. . . .
A. He pointed out that he was the Chief Executive
Officer of the company and that Jack Gartner would be
the President.
Odimayo similarly testified as follows (Tr. 545):
A. Yes. I told Mr. George Fromm in the presence of
such persons as Mr. Jack Gartner who was President of
the company, Mr. Michael Harf, Mr. Henry Garbulinski
and maybe Mr. Jim Graves that I would on the acquisi-
tion and assumption of ownership and responsibility of
the company Gartner and Harf Company also take on
board as it have been expected and natural the contract
with the union. I had no problem with that and I told
him that.
Odimayo became increasingly involved in the management
of the Company. Adesina Dawodu, his brother-in-law, was
hired as a paid employee of Gartner-Harf and served as
Odimayo’s representative. He participated in the day-to-day
management of the business (Tr. 44–50, 214, 227). At the di-
rection of Odimayo, most of the senior executives were
given pay raises (Tr. 218). Shade Munro, a consultant to
Odimayo, supervised and directed that certain improvements
be made to the physical facility so that it was prepared to
do business within the standards of the European Economic
Community. An example was the installation of a fence
around the entire plant (Tr. 227). Even though Odimayo
maintained his residence in England, he became involved in
the purchase and acquisition of Union Meats, a major cus-
tomer of Gartner-Harf (Tr. 236–238, 510–514, G.C. Exh.
26). Union Meats was indebted to Gartner-Harf for more
than $400,000 and could not pay. In an effort to preserve
both companies, Odimayo and Gartner decided to acquire
Union Meats (Tr. 514). In addition, Odimayo encouraged
Harf to work with the Kosher customers like Alle Processing
and to undertake various changes necessary to accommodate
them (Tr. 230).
Gartner-Harf’s financial situation continued to deteriorate.
The parties to the March 1, 1990 agreement did not consum-
mate the closing set for May 31, 1990. Instead, the parties—
with the consent of the First National Bank of Pennsyl-
vania—extended the date for a period of 2 months. Further-
more, on June 28, 1990, Odimayo advanced to Gartner-Harf
537GARTNER-HARF CO.
6 However, the record indicates that Odimayo continued as a direc-
tor (G. C. Exh. 30, 41).
the sum of $600,000 as a loan from his bank, the United
Bank of Africa, to provide working capital to the Company
and to pay a demand note held by the First National Bank
of Pennsylvania. (Tr. 516–517). As the consideration for the
payment, Jack Gartner and Walter Harf executed a ‘‘voting
Trust Agreement’’ which transferred 50 percent of their stock
ownership to Odimayo. The parties further agreed to extend
the closing of the contract to August 31, 1990 (G.C. Exhs.
29, 30). During this time, according to Odimayo, Gartner
‘‘ran the business with due consultation with me
[Odimayo]’’ (Tr. 521).
In August 1990, the Company again ran into ‘‘red ink’’
and was unable to cover $490,000 in issued checks. Odimayo
was willing to advance an additional $500,000, even though
he was under the impression that his tenure on the board of
directors had expired on August 31, 1990 (Tr. 522–524).6 He
advanced an additional $500,000 through his bank, the
United Bank of Africa, in the form of a loan, to Gartner-Harf
(Tr. 253, 524–526.)
The parties met on August 10, 1990, in Erie, Pennsyl-
vania, in order to renegotiate the agreement for the sale of
Gartner-Harf on reduced terms to reflect the Company’s de-
teriorated financial position. The four individuals, Gartner,
Harf, Odimayo, and Dawodu, agreed to certain terms and
signed a handwritten document entitled ‘‘Stock Purchase
Agreement)’’ on August 10, 1990 (G.C. Exh. 31, Tr. 255,
527–530). But this document was not a formal sales contract
and indicated that the parties considered the March 1, 1990
asset purchase agreement no longer valid (Tr. 254, 527). At-
tempts to reach an agreement continued but proved futile be-
cause of certain conditions imposed by the creditor, the First
National Bank of Pennsylvania (Tr. 256–257, 529–530).
Odimayo returned to England, but the parties had not aban-
doned their efforts. Gartner agreed to keep Odimayo in-
formed about any further developments and Odimayo ex-
pressed his intentions to proceed with the purchase of the
Company (Tr. 257, 532).
The record shows that from March until August Odimayo
continued to be involved in managing the Company in spite
of his frequent absences. He testified as follows (Tr. 533):
A. About—from about the 15th of March when I got
involved with the management I was here about 10
days in March, I was here about another 10 in April
and I was here for about five in May, but I did not re-
turn to the United States between the 22nd of May until
the 7th of August when I came straight into New York.
During this period, Gartner handled the day-to-day affairs,
Dawodu, Odimayo’s representative at the plant, was kept in-
formed of all important matters and was in frequent contact
with Odimayo by telephone (Tr. 533–534). In this manner,
Odimayo learned what Harf described as the ‘‘disaster’’ (Tr.
257, 535).
On August 23, 1990, the First National Bank of Pennsyl-
vania decided suddenly to foreclose its $4 million loan to
Gartner-Harf (Tr. 257). Harf explained that an official from
the bank called the Company’s comptroller stating ‘‘that they
were on their way out to foreclose the company . . . they
said you owe us—Gartner-Harf Company owes the First Na-
tional Bank $4 million plus interest of August which was
$53,000.00. . . . We would like a check now.’’ (Tr. 257–
258). The Company was in no position to pay the amount
and agreed to shut down the plant and sell its inventory (Tr.
258–259). Harf testified: ‘‘We had 300 cattle . . . in the
barn. We requested that we should kill them, turn them into
inventory, cancel whatever cattle were in route and begin the
orderly shut down of our company.’’ (Tr. 258). At the
Bank’s insistence Walter Harf and Jack Gartner signed an
agreement outlining the procedures governing the liquidation
of all assets (G.C. Exh. 32). The agreement was signed on
August 29, 1990, but the Company commenced to comply
with the terms of the agreement as of August 23 (Tr. 259).
Harf informed George Fromm, the Union’s business rep-
resentative, on August 24, 1990, that the plant was closing
and that management would take steps for an orderly layoff
of the employees (Tr. 259).
Odimayo was stunned by the news and instructed Dawodu
‘‘to attend the negotiations and see how to close the gap in
[their] relationship’’ and, if necessary, sign an agreement.
Dawduo was authorized by Odimayo’s power of attorney to
sign an agreement (Tr. 536). However, any efforts to pur-
chase Gartner-Harf in accordance with the prior agreement
were unsuccessful as a result of the bank’s foreclosure. Nev-
ertheless, Odimayo did not abandon his efforts. In the words
of Harf, ‘‘he still indicated his desire to purchase the com-
pany’’ (Tr. 260). Odimayo testified that he ‘‘had an exposure
which at that time totaled about direct cash infusion to
Gartner and Harf family and to the company of $1.5 mil-
lion.’’ (Tr. 536–537.) According to Odimayo, he then nego-
tiated with ‘‘the parties that were selling the assets of
Gartner and Harf which was . . . the First National Bank of
Pennsylvania that had seized the assets as of the 23rd of Au-
gust, 1990 and the rightful owners of the stock of Gartner
and Harf Company Jack and Walter.’’ (Tr. 539.)
With the cooperation of the First National Bank of Penn-
sylvania, an agreement was executed on August 27, 1990,
between Gartner-Harf and GH Processed Beef Co., Inc., the
corporate entity owned and controlled by Odimayo (G.C.
Exh. 33). The agreement provided for the sale of all assets
of Gartner-Harf to GH Processed Beef, including the real and
personal property. Another contract entitled ‘‘Assets Pur-
chase Agreement’’ was negotiated on September 5, 1990, be-
tween Odimayo on behalf of GH Processed Beef, Inc. and
Gartner-Harf Co. (G.C. Exh. 34). This transaction avoided
the formal foreclosure procedure which could have taken
several months and accomplished a quick transfer of all as-
sets (Tr. 534–540).
Odimayo explained the relationship between the name GH
Processed Beef Company and Gartner-Harf as follows (Tr.
543–544):
A. First, I had agreed to let the name continue because
it had a lot of good will accumulated over the years.
Two as a commitment to that realization because of the
fact that I wanted to do business not only here but also
in the United Kingdom and the rest of the E.E.C., I had
caused to be set up this company in Delaware known
as G.H. Processed Beef which derives the first two let-
ters from the word G as in Gartner and H as in Harf
so that there would be a link through the records that
were available. They were a holding company some-
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where in Delaware which owned 100 percent the assets,
the business which was known as Gartner and Harf
Company.
GH Processed Beef, incorporated in March 1990 and con-
trolled by Odimayo, is directly related to a company known
as Pagewood Meat Packing Company which was created on
August 29, 1990, to operate the meatpacking business.
Odimayo became the president of Pagewood and Dawodu its
secretary. Odimayo explained the relationship as follows (Tr.
465):
A. Well there is a verbal understanding, but there is
lease agreement. The verbal understanding is subject to
the approval of the bank that the properties and the as-
sets which are owned by G.H. Processed Beef Inc. will
be leased onto Pagewood Meat Packing Company, but
the bank has not yet given its consent because as you
know the bank is the financier and they have a lien on
the assets. So we need their consent which has not
come yet.
In substance, the record shows that GH Processed Beef is
simply the owner of the assets which were formerly held by
Gartner-Harf and that Pagewood became the operator of
Gartner-Harf’s business. As conceded by the Respondent,
‘‘Pagewood and G. H. Beef themselves are a single em-
ployer’’ which began operations on September 7, 1990, or
about 2 weeks after the attempted foreclosure by the bank on
August 23 (Tr. 706–707, 712).
Pagewood employed essentially the same supervisory hier-
archy as that which formerly managed Gartner-Harf (G.C.
Exh. 2, Tr. 708-709). Dawodu testified that everybody in
middle management was brought back. Even the previous
personnel director was offered a job as a foreman in the
plant (Tr. 709). Supervisors were then instructed to call the
employees and offer them employment with Pagewood.
Dawodu explained the process as follows (Tr. 710):
A. We had a meeting Mr. Odimayo and myself and
Shade. We had a meeting which was conducted by Mr.
Odimayo and at that meeting it was with the super-
visors as well. At that meeting Mr. Odimayo told them
in general terms where we were at that point that we
finally purchased the assets of the company what the
aspirations of the company are, his own goals and so
on and so forth, the support that he wanted from the
staff generally and he basically gave a directive that
employees should be hired on a phased out basis based
on our production levels and that if any employee who
used to work with the old company was interested to
come back to work with us that they should give him
a chance.
Odimayo testified that he envisioned ‘‘a gradual build up
of the activity because of his limited resources and that he
‘‘gave directives that they should start hiring people depart-
ment by department.’’ (Tr. 552–553.) Eventually the work
force consisted of approximately 115 employees, all with the
exception of 5 had previously been employed by Gartner-
Harf (G.C. Exhs. 2, 9).
During the interviews, the employees were told that
Pagewood would operate as a nonunion employer (Tr. 397,
624). The wages offered to the employees differed from their
wages with Gartner-Harf, and the health insurance plan was
entirely different because Pagewood was self-insured. The
employees’ pension plans were also changed (Tr. 468–469).
All employees were regarded as new employees for purposes
of vacation time. Accordingly, some employees who had ac-
cumulated seniority or vacation time, lost the benefits (Tr.
469). In short, the working conditions of the employees at
Pagewood differed substantially from those which the same
employees had at Gartner-Harf. Moreover, it is undisputed
that Pagewood accomplished the changes unilaterally and
without the Union’s participation. Pagewood’s hiring process
disregarded the recall provisions of the collective-bargaining
agreement with Gartner-Harf (G.C. Exh. 3). Article 5 of the
agreement, entitled ‘‘Seniority, Layoff, Recall,’’ provides for
a recall procedure based on seniority on plantwide and de-
partmentwide basis. Many of the more senior employees of
Gartner-Harf were therefore not among the employees at
Pagewood. As pointed out by the General Counsel, a com-
parison of the employee lists shows that more than 20 em-
ployees were adversely affected (G.C. Exhs. 44, 45).
When asked whether Pagewood adhered to the collective-
bargaining agreement, Odimayo stated that ‘‘Pagewood was
a new entity [which] did not know of it in a legal sense’’
(Tr. 467). Odimayo conceded that the rates of pay of some
employees at Pagewood differed from their pay at Gartner-
Harf. He also admitted that health benefits, pension plans,
and vacations for Pagewood employees had been changed
(Tr. 468–469). That Pagewood had decided not to recognize
the Union nor be governed by the terms of the collective-
bargaining agreement was confirmed by the testimony of the
Union Representative Fromm.
Fromm testified as follows about a meeting on September
7, 1990, with Dawodu and Shade Munro (Tr. 65–66):
A. I suggested to the company that we sign our rec-
ognition and talk about the issues that the company had
pointed out to us. . . . There was a reluctance on the
company’s part to discuss really anything and I sensed
that there seemed to be a change in attitude. I asked
them what was wrong. The company said that they
really didn’t feel that they had any responsibility to the
men or to the contract. We had a little bit of silence
for a few minutes and I said, well, that was a change
in position than what Mr. Odimayo told me back in
March. What had been said through these—all these
many months. He said, well, that they really didn’t feel
that they had any responsibility I kept asking Shino,
‘‘That isn’t what your brother-in-law said back in
March.’’ He acknowledged the fact that Mr. Odimayo
had told him that but that things had changed. I asked
him what had changed and he said, ‘‘Things have just
changed.’’ We got talking out the contract again and re-
call of people, bringing them back to work and I asked
if it would be done in seniority. The company said, no,
they doubted that. I said, ‘‘You mean you will selec-
tively recall?’’ and they said yes and I said, ‘‘Well, that
isn’t sticking to the contract’’ and they said, ‘‘Well, we
don’t feel we have to do that. We don’t have to feel—
we don’t feel we have to stick to the contract.’’
539GARTNER-HARF CO.
In spite of Odimayo’s earlier commitment to the Union,
Pagewood did not bargain with it and refused to abide by the
bargaining agreement, yet the Company employed approxi-
mately 115 of the 165 employees of Gartner-Harf, operated
the same business, albeit at 60 percent of its former level,
from the same location in the same plant with basically the
same customers. The record shows that Pagewood’s manner
of operation was similar to that of Gartner-Harf for the re-
mainder of 1990 and that in 1991 Pagewood increased its
emphasis on processed beef from 45 percent to 70 percent
(Tr. 746–747). In short, Pagewood’s operation was substan-
tially the same as that of Gartner-Harf, except that the pro-
duction volume was reduced (Tr. 748–749).
During the ensuing period, the Respondent engaged in
other conduct which gave rise to the complaint. For example,
on about September 21, 1990, Odimayo had a conversation
with Edward Garbulinski, a truckdriver at Pagewood. Ac-
cording to Garbulinski, Odimayo said the following (Tr.
357–358):
A. Well, the first statement I believe that Mr.
Odimayo made to me was he asked me why the Union
was trying to hurt him . . . and I reminded him that
back in April, he had told us and the union that he had
no problem with the men, the labor contract or the
union being in place.
I made the statement that if he was the union, what
did he expect the union to do but fight, [and] about that
point, he made a comment that he needed someone to
step forward on his behalf and speak up in rejection of
the union. . . .
He said—He told me that he did not feel that he was
obligated to the union because he did not buy the com-
pany from Walter or Jack.
On September 28, 1990, a petition was circulated among
the employees which stated (G.C. Exh. 16):
We former employees of Gartner-Harf Co. and UFC
Local One and now present Employees of Pagewood
Company, here signed refuse to see the Union NFCW
Local 1 Return Back into Pagewood Company.
This petition was circulated by employees Dave Enterline,
Frank Schultz, and Robert Loughery and was signed by 75
employees (Tr. 122–124). Supervisors John Pacilieo or John
Jagels observed the employees circulating the petition, briefly
inquired about it, but did not prohibit it. One of the employ-
ees estimated that this activity lasted approximately 4 to 5
hours including working time (Tr. 124). Dawodu explained
the general working environment on that day as follows (Tr.
712–713):
Like I said it was a general clean up of the plant inside
and outside. Our production pattern at that time when
we first started was very inconsistent. There were days
that we killed. There were days that we didn’t kill be-
cause that we were in the process of trying to regain
customer confidence. So it was a very, very slow start
and on that particular day everybody was out there
painting, building shacks and so on and forth. I wasn’t
particularly involved, but there were people all around
moving all over the place cleaning up. Sometimes I
went out and was inspecting what they were doing talk-
ing to the guys, that type of thing.
The employees handed the petition to Odimayo during a
meeting as described by Dawodu (Tr. 714):
Mr. Odimayo was conducting the meeting, and some
people knocked at the door and they came in, and it
was Bob Laughery, Dave Enterline and Frank Schulz,
Jr. and they had a piece of paper in their hand and said
Mr. Odimayo something to the effect they just handed
him the paper. Mr. Odimayo was sitting at the head of
the table and everybody was interested in what was
going on. He started smiling and so on and so forth.
He got up and shook their hands and said thank you
I am so surprised and so on and so forth and the guys
just left.
Garbulinski recalled Odimayo’s reaction to the petition in
this conversation (Tr. 360–361):
A few minutes after Dave and Frank left, Mr.
Odimayo came walking up with I believe that it was
John Pacilieo, they were looking at the work that was
being done. He came walking up the driveway.
I said that I had and he told me—he says,—He says
this was a nice gift for me. He was very happy that the
men would have done something for him like this. It
made him very happy that the men did this for him.
He also asked me if I had signed it.
I told him that I hadn’t and he asked me why not
and I told him that I was not prepared to. I told him
that I felt that we still needed a union in place because
of some of the managers that he had at the plant.
The Respondents refused to employ Timothy Maisner fol-
lowing an interview on September 11, 1990 (Tr. 407–409).
Maisner, a 16-year veteran of Gartner-Harf and most recently
employed as a cooler foreman was interviewed by Hank
Garbulinski (Tr. 407–409). Maisner had served as a union
steward and during the interview questioned the rate of pay
which Pagewood was offering. Maisner’s repeated reference
during the interview to the union contract and his steward’s
reputation, caused the Respondent’s refusal to employ
Maisner, according to the General Counsel.
In the fall of 1990, Gartner-Harf laid off truckdriver Ed-
ward Garbulinski. Garbulinski had worked for Gartner-Harf
for 9 years and served as a union steward for the last 2 years
(Tr. 350–351). He was interviewed by Pacilieo, a supervisor
with Pagewood. Pacilieo asked him whether he ‘‘had any
problem coming to work in a non-union shop’’ to which
Garbulinski replied that he ‘‘did not feel a union was needed
to protect [his] job but . . . that a union was needed to pro-
tect [his] rights as a worker’’ (Tr. 353). When Garbulinski
proceeded to ask questions about the pension plans and the
health and welfare package and made notes of the conversa-
tion, Pacilieo told him that he was not ready to return to
work (Tr. 353–354). Garbulinski was hired on September 17,
1990, after a second interview. During his tenure,
Garbulinski repeatedly urged management to increase his
working hours and, if necessary, reduce the drivers’ work
force (Tr. 363–372, 663–664, 716). The Company had hired
all of Gartner-Harf’s drivers but did not have sufficient full-
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The motion to open the record for the receipt of an O.S.H.R.C.
decision dated October 16, 1990, is denied pursuant to Sec.
102.35(h) of the Board’s Rules and Regulations. The decision is a
public document which the Board may nevertheless consider on its
discretion.
time work. On one occasion, Garbulinski observed the sched-
uling of a junior driver to the Pittsburgh run, considered a
coveted assignment. He complained to his supervisor,
Enterline, and also to Odimayo and suggested that the most
capable and qualified driver should be assigned to that work.
Odimayo agreed and instructed Enterline to schedule
Garbulinski for that assignment (Tr. 362). Garbulinski ob-
served that management was making an attempt to equalize
the available work among the drivers, so that drivers would
alternate and work 5 days one week and 3 days the next.
Garbulinski repeatedly urged management to lay off or reas-
sign a driver and suggested that Odimayo set the precedent
to select the most experienced drivers. Even though
Garbulinski worked 5 days a week, some of the hours were
considered overtime and not a basis for his pension and prof-
it sharing plan.
In December 1990, Dawodu held a meeting with the driv-
ers to discuss their sentiments about the working hours be-
cause Odimayo was concerned about Garbulinski’s persistent
complaints (Tr. 719). The drivers expressed their approval of
the Company’s efforts to divide the available work (Tr. 664–
720). But Garbulinski, who did not attend the meeting, con-
tinued his criticism. On January 7, 1991, Garbulinski told
Enterline that he had heard rumors of a layoff of one or two
drivers. Enterline confirmed the rumors but reassured him
because he was considered a good driver. Several days there-
after, Garbulinski called Odimayo at his home in London of-
fered numerous suggestions to improve the efficiency of the
operation at the plant and again suggested that one or two
of the seven drivers be laid off (Tr. 369–370). Garbulinski
told Dawodu about his conversation with Odimayo and
Dawodu confirmed that layoffs were imminent.
On January 11, 1991, at a meeting with the drivers, it was
announced that Paul Haines, the yard driver, and Garbulinski
were laid off (Tr. 371–372). Dawodu, who made the deci-
sions, explained to Garbulinski that he had been getting most
of the available hours, that the Company tried to accommo-
date him but that he continued to be unhappy and critical of
management’s efforts and that he was not a team player (Tr.
372, 726–727).
On January 4, 1991, representatives of Pagewood, and the
Union met at the offices of Region 7 of the National Labor
Relations Board to discuss the pending charges. However,
the meeting ended without a resolution of the matter. In re-
sponse to a rumor at the plant that the Union had prevailed
at that meeting and that the Company would have to recog-
nize the Union or close down the plant, Dawodu scheduled
a meeting with the employees to allay their concerns (Tr.
728, 733). Among other remarks, Dawodu told the employ-
ees that the plant might close down. The context of these re-
marks according to employee Gregory Wells was as follows
(Tr. 337–338):
Shino [Dawodu] said that nothing happened and they
came to no conclusion about the meeting and he went
on saying that if the Union came back we might have
a problem with that because of back pay and all that.
If the Union came back, we might have to close the
doors.
Yes, there could be a problem with back pay, you
know, the Union coming back wanting back pay and
everything else.
Probably we would have to close the doors.
Yes, he said, about the Union picketing the other
customers, that could hurt the business. They should
not have to picket other customers.
According to another employee, Bruce Chrzanswski,
Dawodu said (Tr. 401):
A. Recognize the union and then he started to say
that if we wanted the union out, we could vote on it
ourselves to get it out. And if the union asked too much
of us, that he would sit down—if we wanted the union
in, they would sit down and negotiate with them but if
the union wanted too much, that they would have to
close the doors.
. . . .
A. Oh, he said, if the union would picket, it would
hurt our business and it would hurt us.
Following the meeting, the Company posted a notice de-
signed to respond to employees’ concerns about the Union
(G.C. Exh. 42).
Analysis
1. The corporate relationship
The complaint as well as the General Counsel’s brief, pro-
poses alternative theories, on the one hand taking the posi-
tion that all four corporate entities (Gartner-Harf, Pagewood
N.V., G.H. Processed Beef, Inc. and Pagewood Meat Packing
Co.) constitute a single-integrated enterprise and a single em-
ployer, or, on the other hand, that the Pagewood Group
(identified as Pagewood N.V., GH Processed Beef, Inc. and
Pagewood Meat Packing Co.) has continued the employing
entity of and is a successor to Gartner-Harf. The complaint
also alleges that Gartner-Harf and Pagewood N.V. constitute
a single-integrated enterprise and a single employer and that
the Pagewood Group (Pagewood N.V., GH Processed Beef
Co., and Pagewood Meat Packing Co.) are an integrated en-
terprise and a single employer. To complicate the issues, the
Respondent has filed posthearing motions dealing with these
issues; a Motion for Summary Judgment filed June 24, 1991,
to dismiss Pagewood N.V. as a party from this action and
a motion, filed September 3, 1991, to open record to include
as exhibit H the Decision and Order of an administrative law
judge of the Occupational Safety, and Health Review Com-
mission (O.S.H.R.C.). The General Counsel filed motions in
opposition dated July 16, 1991, and September 27, 1991, re-
spectively.7
According to the O.S.H.R.C. decision, Gartner-Harf Com-
pany is bankrupt and totally unrelated to GH Processed Beef,
Inc. and Pagewood Meat Packing Company, because ‘‘[t]his
was not a sale or take-over of an existing operating plant but
rather a shut down, repossession and sale of the plant fol-
lowed by the opening of a similar but financially unrelated
business at the same physical facility.’’ The decision held
that there was no successorship for the purpose of that Act.
541GARTNER-HARF CO.
8 The Respondent conceded ‘‘that the successorship issue is a close
one, and that there is probably sufficient evidence to support a deci-
sion one way or the other by the court.’’(R. Br. p. 38.)
The record in the case before the National Labor Relations
Board, however, shows that there existed a financial relation-
ship between Gartner-Harf on the one hand, and GH Proc-
essed Beef and Pagewood on the other. The latter purchased
the assets of Gartner-Harf. Moreover, the principals of
Gartner-Harf, notably Odimayo and Dawodu, were the prin-
cipals of GH Processed Beef. It is accordingly clear that the
O.S.H.R.C. decision can be of little guidance in this proceed-
ing before the Board.
With respect to the Respondent’s Motion for Summary
Judgment dismissing Pagewood N.V. from the proceeding, it
is necessary to consider that Pagewood was a party to the
December 5, 1989 Stock Purchase Agreement which
Odimayo signed as president (G.C. Exh. 17). Under the
terms of the agreement, Pagewood N.V., owned and con-
trolled by A. O. Odimayo, made a cash payment of $200,000
to Gartner-Harf. According to Odimayo, GH Processed Beef
was incorporated in Delaware as a successor to Pagewood
N.V. (Tr. 444). Pagewood N.V. is a foreign corporation
which, according to the record, is not engaged in any other
business activity in the United States and does not have any
employees. Under these circumstances it is clear that the
Board would not exercise its jurisdiction over Pagewood
N.V. unless it can be established that it is considered a single
employer with another corporate entity which meets the
Board’s jurisdictional criteria. Il Progresso Italo Americano
Publishing Co., 299 NLRB 270 (1990). Under the criteria of
a single employer status, it is clear that Pagewood N.V. can-
not be considered a single employer with Gartner-Harf.
Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255
(1965). However, it is conceivable for the Board to exercise
jurisdiction over Pagewood N.V. because of its interrelation-
ship with GH Processed Beef and Pagewood Meat Packing.
The four factors which are determinative for a single em-
ployer status are: (1) interrelation of operation; (2) common
management; (3) centralized control of labor relations; and
(4) common ownership or financial control. Ibid. Here the
record shows that the connections of Pagewood N.V. with
the two corporate entities, GH Processed Beef and Pagewood
Meat Processing, might be sufficient to establish a single em-
ployer relationship. Not only is the name ‘‘Pagewood’’ com-
mon to two corporations, but it is clear that Odimayo owns
and controls the corporations which establishes at least two
criteria, common ownership and common management. How-
ever, according to Odimayo, Pagewood N.V. does not have
any employees, it has no offices and no assets except those
belonging to Odimayo and his family (Tr. 442–448). Al-
though the Board’s finding of a single employer status can
be supported when less than the four indicia enumerated
above are present, it appears that the significance of
Pagewood N.V. to this proceeding is remote. Its relevance
diminished with the creation of the domestic corporate enti-
ties. The sole relevance of this foreign entity is to provide
an understanding of the background and to explain the deal-
ings between the parties leading to the operations of GH
Processed Beef, Inc. and Pagewood Meat Packing Co. Under
this circumstances, I find that the Respondent’s Motion for
Summary Judgment is justified in favor of Pagewood N.V.
I accordingly grant the Respondent’s motion and dismiss
Pagewood N.V. from this proceeding.
According to the Respondents’ brief ‘‘it is conceded that
Pagewood [Meat Packing Co.] and G.H. Beef themselves are
a single employer’’ (R. Br. p. 21). The Respondents’ position
in this regard is well supported by the record. Both entities
are domestic companies and operate on an integrated basis,
the business which had been Gartner-Harf. The issue which
remains to be resolved is the relationship of Gartner-Harf
with the GH-Pagewood entities. The complaint alleges that
Gartner-Harf and GH-Pagewood companies constitute a sin-
gle employer or, in the alternative, GH-Pagewood are succes-
sor corporations to Gartner-Harf. The record fully supports
the successor relationship. NLRB v. Burns Security Services,
406 U.S. 272, 284 (1972); Fall River Dyeing Corp. v. NLRB,
482 U.S. 27 (1987); Phoenix Pipe & Tube, 302 NLRB 122
(1991). The business of Gartner-Harf and that of GH-
Pagewood is essentially the same, the employees of the new
company are doing the same jobs under the same supervisors
under similar working conditions (with the exception of
those matters alleged as unilateral changes); GH-Pagewood
sells the same products from the same plant at the same ad-
dress and deals with essentially the same customers. Begin-
ning in early 1991 the production process at GH-Pagewood
has emphasized more boxed or processed beef and less
‘‘swinging beef’’ and the customer list has changed due to
changing market conditions. GH-Pagewood continued with
approximately 60 percent of the original customer base and
discontinued in due course most of the smaller Kosher cus-
tomers. Many of these changes were the result of an overall
reduction in the business activity. In this regard the Board
has rejected the argument that ‘‘the reduced size of [the] op-
erations in comparison to that of the predecessor’’ is of any
significance. Phoenix Pipe & Tube, supra. It must also be
emphasized that Odimayo initiated certain changes at
Gartner-Harf which were merely continued by the successor
firms. Any suggestion that the temporary closure of the plant
and a 2- or 3-week hiatus in the continuity of the operation
is of significance is also without merit. In Fall River Dyeing,
supra at 46, the Court stated ‘‘that there was a 7-month hia-
tus between Sterlingwale’s demise and petitioner’s start-up’’
was not determinative of the successorship issue. See also
Nephi Rubber Products, 303 NLRB 151 (1991). Of little
consequence in the consideration of this issue is the role of
the First National Bank of Pennsylvania. Although its action
threatening foreclosure precipitated the urgency of the sale of
the assets of Gartner-Harf, the record shows that the succes-
sor firms under Odimayo were organized for the sole purpose
of acquiring the assets from Gartner-Harf and that the transi-
tion was accomplished pursuant to an Asset Purchase Agree-
ment, executed by the parties on September 5, 1991, subject
to the bank’s approval (G.C. Exh. 34). The record fully sup-
ports a finding that GH-Pagewood succeeded to the collec-
tive-bargaining obligation of Gartner-Harf because the vast
majority or almost all employees are former employees of
the predecessor and because the operations manifest a ‘‘sub-
stantial continuity’’ between the enterprises. Hydrolines, Inc.,
305 NLRB 416 (1991).8
Where as here the successor firms have expressly adopted
the collective-bargaining agreement, they are bound by it. In
Burns, supra at 291, the Court stated, ‘‘in a variety of cir-
cumstances involving merger . . . or assets purchase, the
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board might properly find as a matter of fact that the succes-
sor had assumed the obligation under the old contract.’’ See
also World Evangelism, 248 NLRB 909, 916 (1980). Eklund
Sweden House Inn, 203 NLRB 413 (1973). Contrary to Re-
spondents’ argument, the record here shows that Odimayo
unequivocally consented to the continuation of the labor
agreement. Fromm credibly testified that Odimayo assured
him at a meeting on March 15, 1990, that he would assume
the collective-bargaining agreement (Tr. 32–33). Indeed,
Odimayo testified that he gave that assurance to Fromm in
the presence of Jack Gartner and Walter Harf (Tr. 54). And
Odimayo and especially Dawodu participated in the daily
management of the selling company pursuant to the contract
with the Union. The mere fact that the bank had interrupted
the negotiations in process between the corporate entities and
commenced a foreclosure, does not detract from this conclu-
sion, particularly in the instant situation where (1) the pur-
chaser had continuously indicated its intentions to own and
control Gartner-Harf, (2) the acquisition was accomplished
pursuant to direct negotiations and agreements with the
former employer, and (3) the principals, mainly Odimayo
and Dawodu, had assumed a managerial role in both the sell-
ing entity and the purchasing companies. Signal Communica-
tions, 284 NLRB 423, 427 (1987). I, accordingly, find that
Pagewood Meat Packing Co. and GH Processed Beef, Inc.
are legal successors to Gartner-Harf with obligations to rec-
ognize and bargain with the Union and with a duty to abide
by the collective-bargaining agreement.
I have also considered the alternative theories, and find
merit in the argument that the three corporate entities,
Gartner-Harf, GH Processed Beef, and Pagewood Meat Pack-
ing Co., constitute a single employer, or that there existed an
alter ego relationship. The unique factual circumstances here,
not only demonstrate the continuity of the employee com-
plement linking the seller and the buyer typical in a succes-
sor relationship, but they also show common ownership and
control of the corporate entities. Prior to the actual transfer
of all assets to the purchasing firms, Odimayo had invested
more than $1 million of his own money in Gartner-Harf, he
was a member of the board of directors, controlled 50 per-
cent of the voting stock and served as vice chairman and
chief executive officer. During his frequent absences, his rep-
resentatives, Dawodu and Munro, were involved in managing
the Company. Towards the end, Odimayo with his represent-
atives exercised more control than Harf and equaled
Gartner’s powers over the affairs of Gartner-Harf. Dawodu
participated in the labor policies of Gartner-Harf and, as al-
ready stated, Odimayo had met with the Union’s representa-
tive and given his assurance to abide by the collective-bar-
gaining agreement. Under these circumstances, it can be con-
cluded that the successor corporations are in reality the alter
ego of Gartner-Harf, and that the corporate entitles reflect ‘‘a
mere technical change in structure or identity of the employ-
ing entity.’’ Howard Johnson Co. v. Detroit Local Joint Ex-
ecutive Board, 417 U.S. 249 (1974). NLRB v. Omitest In-
spection Services, 937 F.2d 1112 (3d Cir. 1991).
Finally, the established criteria of a single employer status
are met at least partially by the instant scenario. The Board
considers the four factors in determining whether two or
more corporations should be treated as a single employer: (1)
interrelation of operations; (2) common management; (3)
centralized control of labor relations; and (4) common own-
ership or financial control. However, not all criteria need be
met so long as the control of labor relations are satisfied.
Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255
(1965); Blumenfeld Theatres Circuit, 240 NLRB 206 (1979).
The record is clear that most of the enumerated indicia are
present in the instant scenario between Gartner-Harf, GH
Processed Beef, and Pagewood Meat Packing. The Respond-
ent makes the following observation concerning the single
employer status: the one factor, interrelation of operations,
indicates ‘‘that the single employer doctrine is meant to
cover situations involving two or more ongoing entities.’’ (R.
Br. p. 23). In Blumenfeld Theatres Circuit, supra at 214–216
(1979), the Board found a single employer relationship even
though one operation closed and another opened. In any case,
the record shows in substance that Jack Gartner and Walter
Harf intended to sell their operation and A. O. Odimayo in-
tended to purchase their Company. Both parties succeeded
and the companies organized by Odimayo are now operating
the business.
Without belaboring the point and considering the totality
of the circumstances, it is more appropriate to conclude that
GH Processed Beef and Pagewood, admittedly single em-
ployers, are successors to Gartner-Harf with a duty to bar-
gain with the Union and to abide by the collective-bargaining
agreement.
2. The unfair labor practices
Section 8(a)(1) and (5). Alleged in the complaint as viola-
tions of Section 8(a)(1) and (5) are the Respondent’s refusal
to recognize and bargain with the Union and its failure to
abide by the collective-bargaining agreement.
The record shows and it is not disputed that the Respond-
ent and single employer, GH Processed Beef and Pagewood
Meat Packing Co. (GH-Pagewood), refused to recognize and
bargain with the Union and that management informed all
prospective employees that it was a nonunion employer. The
Union requested the Respondent by letter of September 13,
1990, to bargain and to recognize the Union (G.C. Exh. 9).
Such requests were denied (G.C. Exh. 12). The Respondent
failed to abide by the collective-bargaining agreement gen-
erally and in several specific instances. For example, the con-
tract provided for a specific recall procedure of employees.
The Respondent’s failure to abide by that procedure ad-
versely affected up to 27 employees who were not recalled.
The Respondent unilaterally changed the employees’ working
conditions, including the paying of different wages, the fail-
ure to make contributions to the employees’ pension, legal
aid, and health insurance funds, and the failure to collect
union dues pursuant to the checkoff authorization. By the
Respondents refusal to recognize and bargain with the Union
and its failure to abide by the collective-bargaining agree-
ment and its layoff and recall provisions and by unilaterally
changing the employees’ working conditions, the Respondent
violated Section 8(a)(5) and (1) of the Act.
Also alleged as a violation of Section 8(a)(1) and (5) of
the Act was the Respondent’s meeting with the drivers in
December 1990. Dawodu elicited the employees’ sentiment
concerning the shrinking working hours and dealt with the
problem by initially equalizing the hours and by subse-
quently laying off two drivers. The Company’s conduct in
bypassing the employees’ elected representative and dealing
543GARTNER-HARF CO.
9 The testimony was denied (Tr. 655, 763). However, considering
the demeanor of the witnesses, I have credited the consistent and
plausible testimony of the two employees.
directly with the employees violated Section 8(a)(5) and (1)
of the Act.
Section 8(a)(1). The complaint alleges as a violation of
Section 8(a)(1) Odimayo’s interrogation of Edward
Garbulinski on September 28, 1991. On that day, several em-
ployees who had circulated a petition against the Union
handed it to Odimayo during a meeting with the employees.
Following the meeting, Odimayo, approached employee
Garbulinski and told him that he was happy about the peti-
tion. He also asked Garbulinski if he had signed the petition;
Garbulinski replied in the negative. Odimayo then inquired
why he had not signed it. Garbulinski expressed his opinion
that a union was needed at the plant (Tr. 360–361). To be
sure, the record shows that Garbulinski was an employee not
easily intimidated by management. However, the test is
whether the interrogation reasonably tends to restrain, coerce,
or interfere with rights of the employee in the light of the
surrounding circumstances. Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The sur-
rounding circumstances here fully support a finding of coer-
cion. Odimayo is the owner and the chief executive of the
Respondent, he expressed his favorable reaction to the peti-
tion and then asked the employee whether he had signed it
and why not. The Respondent clearly interfered with the Sec-
tion 7 rights of the employee in violation of Section 8(a)(1)
of the Act.
Another 8(a)(1) violation occurred in January 7, 1991.
Adesina Dawodu, a supervisor and second in command at
the GH-Pagewood, held a meeting with the employees and
reported about the discussion between representatives of
management and the Union at the Board’s offices. One of his
remarks was that the plant would ‘‘close the doors’’ if the
Union returned and demanded too much during negotiations.
Dawodu also said that business would be hurt if the Union
picketed customers (Tr. 337–338, 401).9 Even though
Dawodu may have attempted to quell certain rumors, his re-
marks were clearly not an attempt to predict adverse con-
sequences of unionization on the basis of objective facts.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617–618 (1969).
Here, management speculated and referred to the adverse
consequences of a strike on business and the unsubstantiated
possibility that the Union might ask for too much. The mes-
sage clearly conveyed the impression that the Employer
might close the plant if the employees supported the Union.
Considering the remarks in the total context of the speech
and the seriousness of the threat, it is clear that the conduct
was coercive. Nebraska Bulk Transportation v. NLRB, 608
F.2d 311 (8th Cir. 1979); Southwire Co., 277 NLRB 377
(1985), enfd. 820 F.2d 453 (D.C. Cir. 1987).
The complaint alleges that the Respondent solicited, en-
couraged, and condoned a petition seeking the rejection of
the Union. In this regard the record shows that on September
21, 1990, Odimayo approached employee Garbulinski and
spoke about the Union. He asked him why the Union was
trying to hurt him and, after some further comments, stated:
‘‘that he needed someone to step forward on his behalf and
speak up in rejection for the union’’ (Tr. 357–358).
Garbulinski did not respond to Odimayo’s suggestion, never-
theless, this was a clear attempt to have an employee take
the lead in an attempt to decertify the Union. Moreover, a
petition was subsequently circulated by three employees,
Enterline, Schultz, and Loughery, on September 28, 1990.
One of the foremen, Jagel or Pacilieo, observed the employ-
ees as they solicited the signatures of the other employees.
The activity of the employees was tolerated even though it
was partially done during the employees’ working time (Tr.
122–124, G.C. Exh. 16). The signed petition was handed to
Odimayo, who expressed his gratitude to the employees (Tr.
714). In January, management posted a notice in the plant
which explained to the employees the process of decertifica-
tion of a union (G.C. Exh. 42). Under these circumstances,
I find that the Respondent’s solicitation, tacit approval, and
condonation of the employees’ activity in the context of
other unfair labor practices violated Section 8(a)(1) of the
Act. Placke Toyota, 215 NLRB 395 (1974). The petition
signed by 75 employees is accordingly tainted and invalid as
an objective reflection of the employees’ sentiment.
Section 8(a)(1), (3), and (4). Timothy Maisner worked for
Gartner-Harf for almost 16 years and was a cooler foreman.
On September 11, 1990, Hank Garbulinski, Respondent’s
production manager, interviewed him for a job but did not
hire him. According to the General Counsel, the Respond-
ent’s failure to hire Maisner was union related. The record
shows that Maisner served as an active union steward at
Gartner-Harf and frequently presented grievances (Tr. 407).
At one point, Pacilieo and Garbulinski, both supervisors at
Gartner-Harf, removed him as a foreman because his fore-
man’s position was deemed incompatible with his job as a
steward. He was subsequently reinstated after he consulted
with the Union about the possibility of filing a charge with
the Board (Tr. 408–409). During the interview on September
11, 1990, Garbulinski, then a supervisor at GH-Pagewood,
informed him that it was his understanding that the fore-
man’s rate was $9.25. This was a reference to the wage scale
contained in the bargaining agreement. Garbulinski did not
reply to Maisner’s inquiry but he gave Maisner the impres-
sion that he did not get the job (Tr. 413). Maisner called sev-
eral weeks later but Garbulinski gave an indefinite reply. The
foregoing leads to a clear inference that Maisner was not
hired because of his union activity as a steward and his ref-
erence to his union pay scale. I, accordingly, find that the
General Counsel has made out a prima facie case that
Maisner was not hired because of the Respondent’s union
animus. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981). The Respondent has failed to rebut the
presumption that Maisner would not have been hired even in
the absence of his union activity. Garbulinski testified that
the decision not to employ Maisner was made by someone
else and that both Union Stewards Maisner and Nearhoof
were not hired following the interview. (Tr. 620.) I find Re-
spondent’s argument not credible that ‘‘Maisner was not
hired by Pagewood because of his reputation for being a
poor worker’’ (R. Br. p. 43). Accordingly, I find that Re-
spondent’s failure to hire Maisner violated Section 8(a)(3)
and (1) of the Act.
Edward Garbulinski’s layoff on January 11, 1991, is al-
leged to have violated Section 8(a)(1), (3), and (4) of the
Act. The record shows that Garbulinski was hired by GH-
Pagewood following two interviews. The first one
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In the event that the conduct and commitment of the principals
of GH-Pagewood to be bound by the collective-bargaining agree-
ment are deemed insufficient or invalid for purposes of the
successorship, I find that GH-Pagewood is an alter ego entity of
Gartner-Harf.
Garbulinski inquired about pension plans and other benefits
and expressed his union support. During the second inter-
view, he toned down his union rhetoric and was hired as a
truckdriver. Throughout his tenure as a truckdriver, he re-
peatedly urged management to increase his hours and, if nec-
essary, lay off one or more of the drivers. The Respondent
made an attempt to equalize the available hours among the
drivers. However, Garbulinski continued to complain and, on
one occasion, confronted his supervisor, Enterline, when he
saw that a junior driver was given an assignment which
Garbulinski coveted. Odimayo agreed with Garbulinski’s
complaint and instructed Enterline to change the assignment.
Garbulinski continued to voice his criticism and, on one oc-
casion, made a telephone call to Odimayo’s home in London,
England. He spoke with Odimayo at length about the entire
operation, suggesting various changes and again urging that
a driver be laid off. In January 1991, the Respondent finally
abandoned the policy of dividing the available work among
its drivers and, at a meeting on January 11, 1991, announced
the layoff of two drivers, Paul Haines and Garbulinski (Tr.
371–372). The record shows that the decision was made by
Dawodu, who explained to Garbulinski that his unhappiness
with and his persistent criticism of management’s policy in
spite of all efforts to accommodate him were responsible for
the decision. Dawodu also told him that he was not a team
player (Tr. 372, 726–727). According to the General Coun-
sel, Respondent’s ‘‘team player’’ remark was a thinly veiled
reference to Garbulinski’s prounion sentiments, which im-
plied management’s ‘‘dissatisfaction with Garbulinski’s con-
tinued pressing of Respondent to honor the terms and condi-
tions of its predecessor’s collective-bargaining agreement’’
(G.C. Br. p. 30).
The record supports Garbulinski’s union sympathy and his
union activity. For example, in his first job interview he re-
ferred to the benefits contained in the collective-bargaining
agreement. Odimayo was aware of Garbulinski’s union sym-
pathy when he questioned him about the antiunion petition.
Several supervisors asked him in October 1990 whether he
was organizing for the Union, in an apparent reference to his
frequent conversations with coworkers (Tr. 265). For the
same reasons, he was cautioned by his brother, Henry
Garbulinski, a supervisor (Tr. 366).
Considering the Respondent’s antiunion animus, Odi-
mayo’s interrogation of Garbulinski, and his protected activ-
ity on behalf of the Union, the General Counsel has estab-
lished a prima facie case that this employee was laid off be-
cause of his support of the Union and his activities related
to the union contract. Wright Line, supra.
I further find that the Respondent has shown that
Garbulinski would have been singled out for layoff or dis-
charge even in the absence of any union considerations. I
make this finding because I believe that the Respondent’s
reference to ‘‘team player’’ did not relate to his union activi-
ties or his reliance on the union contract or any other con-
certed activity, but to Garbulinksi’s constant prodding of
management to increase his working hours at the expense of
other drivers. In this regard, Garbulinski advocated his own
interest not on the seniority provisions of the union contract,
but with requests for preferential treatment for the more
qualified and capable driver, namely, himself. The record in-
dicates that management tolerated Garbulinski’s union sup-
port, but in a sudden shift of policy, possibly prompted by
Garbulinski, the Respondent abandoned its efforts to equalize
the available working hours for all drivers and decided to lay
off two employees. Concerned with morale of the truck-
drivers who would have preferred the prior policy, Dawodu
included Garbulinski for the reasons stated (Tr. 726–727). It
is entirely plausible that the Respondent relied on the narrow
justification that management regarded him as a chronic
complainer, dissatisfied with his working hours, and, in view
of his constant requests for preferential treatment, not a team
player. I, therefore, find that the Respondent did not violate
Section 8(a)(1) and (3) of the Act. Moreover, the record is
totally without support for any finding of an 8(a)(1) and (4)
violation of the Act. There was no evidence that the Em-
ployer discriminated against this employee because of his
testimony before the Board.
CONCLUSIONS OF LAW
1. Gartner-Harf Co. was an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. GH Processed Beef, Inc. and Pagewood Meat Packing
Co. (GH-Pagewood) is a single employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
3. United Food and Commercial Workers District Union
Local 1, AFL–CIO–CLC is a labor organization within the
meaning of Section 2(5) of the Act.
4. GH-Pagewood, as single employer, is a successor to
Gartner-Harf Co. with an obligation to recognize the Union
as the collective-bargaining representative of the following
unit found appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Waterford, Pennsylvania facility; excluding all
guards, professional employees and supervisors as de-
fined in the Act.
5. GH-Pagewood assumed the contractual obligation of the
collective-bargaining obligation of the collective-bargaining
agreement between Gartner-Harf Co. and the Union by the
expressed commitment of A. O. Odimayo, the principal
owner of GH-Pagewood, and by his and Adesina Dawodu’s
compliance with the union contract during their managerial
tenure at Gartner-Harf Co.10
6. By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining representa-
tive of all production and maintenance employees of GH-
Pagewood, the successor employer violated Section 8(a)(1)
and (5) of the Act.
7. By bypassing the Union and dealing directly with the
driver employees, Respondent GH-Pagewood violated Sec-
tion 8(a)(1) and (5) of the Act.
8. By failing to abide by the collective-bargaining agree-
ment between the Union and Gartner-Harf, and unilaterally
changing the working conditions with respect to rates of pay;
545GARTNER-HARF CO.
11 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.
payments to employee pension, health care, and legal funds;
deduction for union dues; recall following layoff; and other
terms and conditions of employment, Respondent GH-
Pagewood violated Section 8(a)(1) and (5) of the Act.
9. Threatening the employees with plant closure because
of the Union and by coercively interrogating an employee
with respect to his union sympathy, the Respondent GH-
Pagewood violated Section 8(a)(1) of the Act.
10. By soliciting, encouraging, and condoning an antiunion
petition among the employees, the Respondent GH-
Pagewood violated Section 8(a)(1) of the Act.
11. By failing to employ Timothy Maisner, because of his
union activities, the Respondent violated Section 8(a)(1) and
(3) of the Act.
12. Pagewood N.V. and Gartner-Harf Co. are no longer
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3), (5), and (1) of the Act, I shall recommend that
it cease and desist therefrom and, on request, bargain collec-
tively with the Union as the exclusive representative of all
employees in the appropriate unit found herein, and honor
and abide by the collective-bargaining agreement executed
by the Union and Respondent’s predecessor.
Having unlawfully refused to hire Timothy Maisner the
Respondent shall offer him reinstatement and make him
whole for lost earnings and other benefits computed on a
quarterly basis for the date of discharge to the date of a
proper offer of reinstatement, less net interim earnings in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Having further found that the Respondent unilaterally im-
plemented their own conditions of employment without bar-
gaining with the Union and not in accordance with the terms
of the collective-bargaining agreement of the predecessor, the
Respondent will be ordered to restore the terms and condi-
tions of employment, including rates of pay, contributions to
the employees’ pension, health care, and legal funds, and by
recalling employees in accordance with the recall provision
of the agreement. The Respondent will also be ordered to
make the employees whole for any losses in earnings or
other benefits suffered as a result of the Respondent’s failure
to abide the contract in accordance with applicable prece-
dents. The Respondent will also be ordered to post an appro-
priate notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, GH Processed Beef, Inc. and Pagewood
Meat Packing Co., Waterford, Pennsylvania, single employer,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with plant closure because
of the Union.
(b) Coercively interrogating employees about their union
sympathy.
(c) Soliciting, encouraging, and condoning employees with
antiunion petitions.
(d) Refusing to hire employees because of their union ac-
tivities.
(e) Failing and refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and conditions
of employment with United Food and Commercial Workers
District Union, Local 1, AFL–CIO–CLC as the exclusive
representative of the employees in the following unit found
to be appropriate for the purpose of collective bargaining.
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Waterford, Pennsylvania facility; excluding all
guards, professional employees and supervisors as de-
fined in the Act.
(f) Failing to adhere to the provisions of the collective-bar-
gaining agreement executed between the Union and Gartner-
Harf and by unilaterally modifying the provisions contained
therein.
(g) By bypassing the Union and dealing directly with unit
employees concerning their conditions of employment.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in 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) Recognize and, on request, bargain with the above-
named labor organization as the exclusive representative of
its employees in the aforementioned appropriate unit, with
respect to rates of pay, wages, hours, and other terms and
conditions of employment.
(b) Honor, maintain, and abide by the aforementioned col-
lective-bargaining agreement.
(c) Offer Timothy Maisner immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to his se-
niority or any other rights or privileges previously enjoyed
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(d) Reinstate, apply retroactively, and restore the terms and
provisions of the contract which it changed unilaterally, in-
cluding rates of pay, contributions to the employees’ health,
pension, and legal funds, as well as reimburse the Union for
all dues authorized under the checkoff provision, and make
the employees whole for any loss of earnings and other bene-
fits suffered as a result of the failure to abide by the agree-
ment.
(e) Recall all former employees who were members of the
Union in accordance with seniority, layoff, and recall provi-
sion of the contract to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, as set forth in the remedy section.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.’’
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its Waterford, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’12 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX I
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through 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 threaten our employees with job loss or
plant closure because of the United Food and Commercial
Workers District Union, Local 1, AFL–CIO–CLC.
WE WILL NOT coercively interrogate our employees about
their union sympathy.
WE WILL NOT solicit, encourage, or condone antiunion pe-
titions.
WE WILL NOT refuse to hire employees because of their
union activity.
WE WILL NOT fail or refuse to bargain with the union as
the exclusive bargaining representative in the following unit:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Waterford, Pennsylvania facility; excluding all
guards, professional employees and supervisors as de-
fined in the Act.
WE WILL NOT fail to abide by the collective-bargaining
agreement between the Union and Gartner-Harf or unilater-
ally and without bargaining with the Union modify the provi-
sions contained therein.
WE WILL NOT bypass the Union 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 guaran-
teed you by Section 7 of the Act.
WE WILL recognize and bargain with the Union as the col-
lective-bargaining representative of our employees.
WE WILL honor, maintain, and abide by the collective-bar-
gaining agreement.
WE WILL offer Timothy Maisner immediate and full rein-
statement to his former job or equivalent position and make
him whole for any loss of earnings.
WE WILL reinstate, apply retroactively, and restore the
terms of the contract which we changed, including rates of
pay, contributions to the employees’ health, pension, and
legal funds, and reimburse the Union for all dues authorized
under the checkoff provision.
WE WILL recall former employees of Gartner-Harf who
were members of the Union in accordance with the seniority,
layoff, and recall provisions of the contract and make them
whole for any loss of earnings.
PAGEWOOD MEAT PACKING COMPANY AND
GH PROCESSED BEEF, INC.