R. Sabee Co. LLC

National Labor Relations Board - Board Decisions

Dec 28, 2007

351 N.L.R.B. 1350 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 100
1350
R. Sabee Company, LLC, Draper Products, Inc., Cir-
cle Machinery & Supply Co., Sabee Products,
Inc., Stanford Professional Products, Sabee Re-
alty, Inc. and JMS Converters, Inc. d/b/a JMS
Converting, a single employer and/or continuing
enterprise; and/or R. Sabee Company, LLC,
Draper Products, Inc., Circle Machinery &
Supply Co., Stanford Professional Products
Corporation, Sabee Realty, Inc., and Its Succes-
sors Sabee Products, Inc., and JMS Converters,
Inc. d/b/a JMS Converting1 and United Steel Pa-
per and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers In-
ternational Union, Local 2-932. Case 30–CA–
16482–1
December 28, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On February 6, 2007, Administrative Law Judge Jane
Vandeventer issued the attached decision. The Respon-
dents jointly filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief and the Charging Party filed a brief in opposition to
the Respondents’ exceptions.
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 briefs2 and has decided to
affirm the judge’s rulings,3 findings,4 and conclusions as

1 Pursuant to a settlement, the General Counsel withdrew complaint
allegations against R. Sabee Company, LLC (R. Sabee), Draper Prod-
ucts Inc. (Draper), and Circle Machinery & Supply Co. (Circle). We
shall revise the notice to delete the names of these entities.
2 The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
3 The Respondents assert that the judge erred in accepting into evi-
dence statements made during a state court injunction proceeding and
during a related court-ordered mediation of the state claims. It is the
Respondents’ position that Wisconsin law treats any facts adduced
during temporary injunction proceedings as inadmissible hearsay in any
other proceedings, and that the state rules of evidence precluded the
judge from admitting statements made during mediation. We disagree.
The Board is not bound by state rules of evidence. Rather, Sec. 10(b)
of the Act states that unfair labor practice proceedings “shall, so far as
practicable, be conducted in accordance with the rules of evidence
applicable in the district courts of the United States . . . .” See also
Sec.102.39 of the Board’s Rules and Regulations. The sworn testi-
mony of the Respondents’ owner Michael Sabee at the injunction pro-
ceedings, expressly acknowledging the interrelationship among the
various Sabee manufacturing companies, was properly admissible
under Fed.R.Evid. 801(d) as both a prior inconsistent statement and a
party admission. The antiunion statements made by the Respondents’
negotiator during mediation of the state claims similarly were admissi-
ble as party admissions under Fed.R.Evid. 801(d)(2). The Respondents
modified5 and to adopt the judge’s recommended Order
as modified6 and set forth in full below.7

acknowledge that the prohibition in Fed.R.Evid. 408 against admitting
statements made during compromise negotiations was inapplicable
because the statements were not being offered here to prove the state
claim. See Uforma/Shelby Business Forms v. NLRB, 111 F.3d 1284,
1293–1294 (6th Cir. 1997); Vulcan Hart Corp. v. NLRB, 718 F.2d 269,
276–277 (8th Cir. 1983). The Respondents argue instead that the
statements were privileged under Wisconsin law. But even if the
statements were privileged under State law, Fed.R.Evid. 501 renders
state privilege claims inapplicable in federal proceedings. North Caro-
lina License Plate Agency #18, 346 NLRB 293, 294 fn. 5 (2006). See
generally Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000) (“In gen-
eral, federal privileges apply to federal law claims, and state privileges
apply to claims arising under state law.”); EEOC v. Illinois Department
of Employment Security, 995 F.2d 106, 108 (7th Cir. 1993) (state un-
employment records, confidential under state law, nonetheless available
to EEOC).
4 Although Respondents R. Sabee, Draper, and Circle are no longer
parties in this case, we affirm the judge’s factual findings that Respon-
dents Sabee Products Inc. (SPI) and JMS Converters, Inc. (JMS) are
liable for the violations found, as single employers and/or alter egos
and continuing enterprises or, in the alternative, as successors, of those
three companies. We also affirm the judge’s further finding that SPI
and JMS are liable as alter egos of one another.
The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
5 Having reviewed the record, we conclude that there is insufficient
evidence to hold either Respondent Sabee Realty (Realty) or Stanford
Professional Products (Stanford) jointly liable with the other Respon-
dents here. As the Respondents correctly observe, the judge did not
make any underlying factual findings or offer a rationale for holding
Realty or Stanford jointly liable as part of the single employer enter-
prise with Respondents SPI and JMS. Although both Realty and Stan-
ford were owned and managed by Michael Sabee, the owner and presi-
dent of SPI and JMS, additional evidence supporting single-employer
status is equivocal at best. Realty owned some of the property where
the manufacturing of the single employer enterprise occurred, and
Realty operated out of the same offices as SPI and JMS, but the evi-
dence regarding commingled assets with respect to Realty is either
conflicting (e.g., whether rent was regularly paid) or too general (indi-
cating only that funds were generally commingled among the various
companies) to support a single employer finding, absent other factors
not here in evidence. As to Stanford, the record evidence establishes
only that, prior to August 2003, it served as the northeast distributor for
Draper Products, Inc., one of the predecessor single employer manufac-
turing entities of SPI and JMS. There is no evidence about what Stan-
ford did as a distributor or what, if any, role Stanford had within the
enterprise structure afterwards. In these circumstances, we find that the
General Counsel has failed to establish single employer or alter-ego
status as to Realty or Stanford, and we accordingly dismiss the com-
plaint with respect to both.
6 We shall amend the judge’s recommended remedy for the 8(a)(5)
unilateral changes to require that Respondents make whole all bargain-
ing unit employees employed since 2003 for any loss of earnings or
benefits they may have suffered as a result of the unilateral changes, in
accordance with Ogle Protection Services, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971). We shall also modify the judge’s
R. SABEE CO., LLC 1351
ORDER
The National Labor Relations Board orders that the
Respondents Sabee Products, Inc. and JMS Converters,
Inc. d/b/a JMS Converting, Appleton, Wisconsin, their
officers, agents, successors, and assigns, shall jointly and
severally
1. Cease and desist from
(a) Laying off, refusing to hire or rehire, or refusing to
retain in employment employees because they were rep-
resented by the United Steel Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service
Workers International Union, Local 2-932 (the Union).
(b) Intentionally limiting the retention and rehiring of
bargaining unit employees in order to avoid employing
unit employees as a majority of the work force, and dis-
criminatorily requiring an additional level of review for
bargaining unit employees who sought continued em-
ployment or re-employment.
(c) Failing and refusing to provide the Union with in-
formation requested for the purpose of carrying out its
representational duties.
(d) Withdrawing recognition from the Union and fail-
ing and refusing to bargain with the Union as the exclu-
sive bargaining representative of unit employees.
(e) Repudiating the collective-bargaining agreement
and refusing to continue applying the terms and condi-
tions of employment established by the agreement.
(f) Unilaterally, and without affording the Union no-
tice or an opportunity to bargain, making changes to unit
employees’ terms and conditions of employment, laying
off unit employees, and refusing to continue their em-
ployment.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

recommended Order to conform to the Board’s standard remedial lan-
guage and to make clear that the Respondents’ liability is joint and
several. Finally, we shall substitute a new notice to conform to the
Order as modified.
7 Starcon International, Inc. v. NLRB, 450 F.3d 276 (7th Cir. 2006),
which the respondent relies on for the proposition that backpay is un-
available for discriminatees who did not specifically testify that they
would have accepted employment, is wholly inapposite. Unlike Star-
con, or the Board’s recent decision in Toering Electric Co., 351 NLRB
226 (2007), this is not a refusal to hire salting case but rather involves
employees who were discriminatorily laid off and not retained or re-
called to duty by the Respondents. In these circumstances, as in any
unlawful layoff or discharge case, the discriminatees’ interest in con-
tinued employment is presumed, and backpay is appropriate unless the
respondent establishes otherwise in compliance proceedings. The
Respondents have offered no evidence calling into question the dis-
criminatees’ continued interest in employment.
(a) Within 14 days from the date of this Order, offer to
reinstate all unit employees who were laid off and not
hired, rehired, or retained in employment by the Respon-
dents to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, at the restored terms
and conditions of employment applicable under the
unlawfully repudiated collective-bargaining agreement,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make whole all unit employees who were laid off
and not hired, rehired, or retained in employment by the
Respondents in 2003 for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision.
(c) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoffs,
and/or refusals to retain in employment or hire the bar-
gaining unit employees referred to in paragraphs 2(a) and
(b) above, and within 3 days thereafter notify these em-
ployees in writing that this has been done and that the
actions will not be used against them in any way.
(d) Recognize and, upon request, bargain collectively
with the Union over terms and conditions of employment
of employees in the following appropriate unit:
All employees engaged in production and mainte-
nance; excluding professional employees, office em-
ployees, clerical employees, guards and supervisors.
(e) Restore the terms and conditions of employment
applicable under the unlawfully repudiated collective-
bargaining agreement, and continue those terms and con-
ditions in effect unless and until changed through collec-
tive bargaining with the Union.
(f) Make whole all unit employees hired or retained in
employment for any loss of earnings and other benefits
suffered as a result of the Respondents’ refusal to con-
tinue the terms and conditions applicable under the
unlawfully repudiated collective-bargaining agreement,
in the manner set forth in our amended remedy.
(g) Provide the Union with the information it requested
in its letters, e-mail letters, and grievance attachments
dated from February 7 through September 8, 2003.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1352
(i) Within 14 days after service by the Region, post at
their Appleton, Wisconsin locations, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
30, after being signed by the Respondents’ authorized
representatives, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondents have gone out of business or closed the
facilities involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees
employed by the Respondents at any time since February
1, 2003.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of re-
sponsible officials on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
It is further ordered that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT lay you off or refuse to hire, rehire, or
retain you because you are represented by the United
Steel Paper and Forestry, Rubber, Manufacturing, En-

8 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ergy, Allied Industrial and Service Workers Interna-
tional Union, Local 2-932 (the Union).
WE WILL NOT intentionally limit our retention and re-
hiring of bargaining unit employees in order to avoid
employing unit employees as a majority of our work-
force, or discriminatorily require an additional level of
review for bargaining unit employees who sought con-
tinued employment or re-employment.
WE WILL NOT fail or refuse to provide relevant infor-
mation requested by the Union for the purpose of carry-
ing out its representational duties.
WE WILL NOT withdraw recognition from the Union or
fail or refuse to bargain collectively with the Union as
the exclusive bargaining representative of bargaining unit
employees.
WE WILL NOT repudiate the collective-bargaining
agreement or fail or refuse to continue applying the terms
of employment set out in the agreement.
WE WILL NOT refuse to bargain collectively with the
Union by making changes in your terms and conditions
of employment without first giving the Union notice of
the proposed changes and an opportunity to bargain
about them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed above.
WE WILL, within 14 days of the Board’s Order, offer to
reinstate all bargaining unit employees whom we laid off
or refused to hire, rehire, or retain in employment in
2003 to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make whole, with interest, all unit employees
whom we laid off or did not hire, rehire, or retain in em-
ployment in 2003 for any loss of earnings and other
benefits suffered as a result of our discrimination against
them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs and/or refusals to hire, rehire, or retain in em-
ployment the bargaining unit employees referred to
above, and WE WILL, within 3 days thereafter notify these
employees in writing that this has been done and that the
actions will not be used against them in any way.
WE WILL, upon request, bargain collectively with the
Union over terms and conditions of employment of em-
ployees in the following unit:
All employees engaged in production and mainte-
nance; excluding professional employees, office em-
ployees, clerical employees, guards and supervisors.
R. SABEE CO., LLC 1353
WE WILL restore the terms and conditions of employ-
ment applicable under the collective-bargaining agree-
ment and continue those terms and conditions unless and
until changed through collective bargaining with the Un-
ion.
WE WILL make whole, with interest, all unit employees
for any loss of earnings or other benefits they may have
suffered as a result of our unlawful failure to abide by the
collective-bargaining agreement and by our unlawful
changes in terms and conditions of employment.
WE WILL provide the Union with the information it re-
quested in its letters, e-mail letters, and grievance at-
tachments dated from February 7 through September 8,
2003.
R. SABEE PRODUCTS, INC. AND JMS
CONVERTERS, INC. D/B/A JMS CONVERTING
Paul Bosanac, Esq., for the General Counsel.
John E. Thiel, Esq. and Gordon B. Gill Esq., for the Respon-
dent.
Marianne Goldstein Robbins, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on November 15, 2004, February 14, 15, and 16,
2005, and August 1, 2006, in Appleton, Wisconsin.
Prior to the opening of the case, the General Counsel with-
drew its complaint allegations against R. Sabee Company, LLC
(R. Sabee), Draper Products, Inc. (Draper), and Circle Machin-
ery & Supply Co. (Circle), because those three Respondents
had entered into a Settlement Agreement with the General
Counsel. Facts regarding those three Respondents comprise
essential parts of the evidence in the record, but no remedy or
order was sought regarding those three Respondents, and none
has been recommended. The remaining entities involved in this
proceeding are Sabee Products, Inc. (SPI), Stanford Profes-
sional Products (Stanford), Sabee Realty, Inc. (Realty), and
JMS Converters, Inc. d/b/a JMS Converting (JMS). These four
entities will be referred to as Respondents or by their individual
names.
The complaint alleges Respondents, as a single employer, or
in the alternative as and alter ego and/or a continuance of a
single employer, or in the alternative as a successor employer,
violated Section 8(a)(1) and (3) of the Act by laying off em-
ployees, and by refusing to recall or rehire bargaining unit em-
ployees. The complaint also alleges Respondents violated Sec-
tion 8(a)(1) and (5) of the Act by laying off employees, moving
machinery and employees from one location and one employ-
ing entity to another, failing to recall and/or rehire employees,
all without notice to the Union1 and without affording the Un-

1 The Union filed the original charges under its then name “Paper,
Allied-Industrial, Chemical and Energy Workers Union (PCE) AFL–
CIO–CLC, Local 7-0932.” On the last day of hearing in the instant
ion an opportunity to bargain about these actions and/or the
effects of these actions, by withdrawing recognition from the
Union, by failing and refusing to apply the collective-
bargaining agreement to the employees, and by failing and
refusing to provide necessary and relevant information to the
Union. The Respondents filed answers denying the essential
allegations in the complaint. After the conclusion of the hear-
ing, the parties filed briefs which I have read.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondents SPI and JMS are corporations with offices and
places of business in Appleton, Wisconsin, where they are
engaged in the manufacture of disposable health care products.
During a representative 1-year period, Respondents sold and
shipped from their Appleton facility goods valued in excess of
$50,000 directly to points outside the state of Wisconsin. Ac-
cordingly, I find, as Respondents admit, that they are employers
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent Stanford is a corporation with
an office and place of business in Pennsauken, New Jersey,
where it is engaged in the distribution of medical and dental
products. During representative periods, Respondent Stanford
sold and shipped goods valued in excess of $50,000 directly to
points outside the state of New Jersey. Accordingly, I find, as
Respondent admits, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The group of companies involved in this case are owned
predominantly by related individuals in the Sabee family. The
late patriarch of the family, Reinhardt Sabee,2 began Circle
about 1948, and added companies over the years. Circle was a
manufacturer of packaging machinery and paper converting
machinery. Two years later, a second company, R. Sabee, was
started, and manufactured disposable health care products.
Reinhardt’s son Michael Sabee first began working for R. Sa-
bee not long after it’s founding. After college in 1965, he
joined the family businesses full time. Draper was begun in the
1960s, and it also manufactured disposable health care prod-
ucts. By 2001, Draper was owned one-third by Reinhardt Sa-
bee, one-third by Lois Sabee, his wife, and one-third by Mi-
chael Sabee. The company group used two main business loca-
tions, one on Highland Avenue (Highland facility) and, begin-
ning in the 1960s, a second location at West 8th Street and

matter, all parties stipulated that the Union had changed its name to that
stated in the caption of this case.
2 Reinhardt Sabee died in January 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1354
Linwood (Linwood facility). R. Sabee and Draper used both
facilities for their manufacturing activities. Stanford was begun
by Reinhardt Sabee and a partner, Ralph Stanford, in the late
1960s. Initially it also manufactured health care products, but
after 1984, operated a warehouse and distribution center in
New Jersey. Michael Sabee initially owned a 45-percent inter-
est in Stanford, and continues to be a corporate director.
In 1975, Michael Sabee founded SPI and owned and oper-
ated it himself. Like Draper, SPI manufactured health care
products at both the Linwood and Highland facilities. By 2001,
these two companies, along with R. Sabee, manufactured prod-
ucts. It is undisputed that manufacturing employees were
nominally employed by R. Sabee, but in fact performed work
for all three companies. The manufacturing employees at the
Linwood and Highland facilities have been represented by a
labor organization for over 25 years. Since 1982, Michael Sa-
bee has been involved in collective-bargaining negotiations for
this bargaining unit, and signed seven successive collective-
bargaining agreements on behalf of R. Sabee from 1982
through 1999. His name was listed along with the title, “Presi-
dent” in the agreements. The last agreement was effective by
its terms from November 1, 1999, until October 31, 2004. Mi-
chael Sabee was responsible for conducting labor relations with
the Union up through January 18, 2002. At the beginning of
2002, there were approximately 200 employees in the bargain-
ing unit.
In his testimony, Michael Sabee could not say how much
time he spent on the business of each of the three manufactur-
ing companies, R. Sabee, Draper, and SPI, because he did not
keep track. He was paid by all three companies for some peri-
ods of time, by R. Sabee and SPI for some periods, and by SPI
only for some periods, but he did not know when he was paid
by which companies.
Several other companies were also part of the family’s group
of companies. Realty, the majority of which is owned by Mi-
chael Sabee and his brother Craig, operated as a real estate
holding company by 2001. It owned real estate at the Linwood
and Highland facilities. There were no written leases or agree-
ments’ showing how much was to be paid for the use of the
facilities by the three manufacturing companies.
By the time of events relevant to this case, Reinhardt Sabee
had largely retired from active participation in the businesses.
His wife, Lois Sabee, remained somewhat involved, and all
three of their children, John Michael Sabee (Michael Sabee),
Sherry Sabee Donovan Ahlman, and Chris Sabee, were in-
volved in the businesses to varying extents.
2. Businesses in 2001
The record reflects that during 2001, prior to the allegations
of unfair labor practices, the main three companies were largely
run by Michael Sabee. The three manufacturing companies, R.
Sabee, Draper, and SPI, all used the same employees and ma-
chinery in conducting their operations. There was an under-
standing that each company would pay the other companies for
rent, for use of their machinery and for use of their employees,
but it is not clear in the record how regularly these payments
were made pursuant to the understanding. It is clear in the
record that the method of arriving at the amounts of these pay-
ments was formulated solely by Reinhardt Sabee while he was
active in the business, and for at least the several years prior to
2002, solely by Michael Sabee. There was no evidence that the
intercompany payments were arms-length transactions. In fact,
Michael Sabee testified that money was simply moved from
one company to another as needed.
In 2001, certain other members of the family, such as Mi-
chael Sabee’s mother and sister, became unhappy with the way
he was running the companies. For convenience, this part of the
family is called the Lois Sabee group. In late 2001, they ap-
proached Michael Sabee about agreeing to some changes, and
when he would not agree, decided to hire new managers for the
business. On January 18, 2002, the Lois Sabee group changed
the locks on the buildings at the Linwood and Highland facili-
ties, and locked Michael Sabee out of the businesses. They
hired a team of managers to run the businesses in Michael Sa-
bee’s absence.
3. Sabee family disagreement and State court proceedings
Immediately after the lockout, Michael Sabee filed a suit in
Wisconsin State Court seeking to regain his businesses, and
shortly thereafter an injunction hearing was held. In Michael
Sabee’s testimony under oath at that hearing, he described the
operation of SPI, R. Sabee, and Draper at being “a comingling
[sic] of assets and employees and equipment.” He described
himself as president or “president-type” of all three companies.
He further stated that no lines were drawn between the compa-
nies, and “they all worked in concert with each other.” Michael
Sabee described himself as being responsible for procuring the
raw materials for the manufacturing processes for all three
companies, stated that all three companies share the facilities at
Linwood and Highland, and that all three companies use the
manufacturing equipment at the two facilities. The three com-
panies all share front office space and employees as well as
production facilities. With regard to the payment of utilities
and taxes on the facilities, Michael Sabee stated, “[T]he money
was primarily moved around as it was needed.” When R. Sa-
bee and Draper experienced a need for cash during the 5 or so
years before the injunction hearing, Michael Sabee borrowed
money personally and used it in these businesses to pay for
purchases, payroll, and inventory. Michael Sabee testified that
he did not know how much money had been moved back and
forth between R. Sabee, Draper and SPI. In his testimony,
Michael Sabee estimated that SPI was “responsible for” about
80 percent of the weekly payroll for the employees. The pay-
roll account was funded by SPI.
In testimony at the instant hearing, Michael Sabee testified
that he was the main decision maker for Draper, owned and
operated SPI himself, and was the chief operating officer for R.
Sabee. All three companies were producing the same or similar
health care products at the same facilities, using the same em-
ployees and equipment. Michael Sabee himself “allocated”
customers among the three companies. Michael Sabee admit-
ted that as of 2001, the three companies had been commingling
assets and equipment, and “working in concert” with each other
for approximately 25 years. Michael Sabee signed the tax re-
turns for the Companies. All three companies used the same
office space, the same accountant and the same labor attorney.
R. SABEE CO., LLC 1355
Michael Sabee testified that he does not know whether there
was a board of directors for any of the three companies, or
whether the boards, if they existed, ever met or took minutes of
the meetings. While Michael Sabee took out personal loans to
help shore up R. Sabee and Draper when they needed cash, the
loans were repaid out of company funds, but Michael Sabee did
not know which of the two companies made payments. Other
evidence at trial showed that Michael Sabee signed various
documents in his capacity of president or chief operating officer
of R. Sabee, Draper, and SPI for several years before January
18, 2002, and decided himself how costs and payments would
be distributed among the three companies.
4. Eighteen-month interim period and settlement in 2003
The preliminary injunction proceedings gave Michael Sabee
access to the business. Michael Sabee and the Lois Sabee
group began negotiations to divide the family businesses be-
tween them. During nearly 18 months, they engaged in media-
tion facilitated by a retired Wisconsin State judge. The family
members finally agreed to a division of the businesses in a
document effective June 2, 2003.
During the interim period, in September 2002, Michael Sa-
bee founded another company, JMS. At trial, he explained that
he did it because “it seemed like a good idea.” He began using
the JMS name for conducting the same business he had been
operating under the SPI name, using the same equipment and
employees during this period. SPI continued to operate at the
Linwood and Highland locations, but between February and
August 2003, Michael Sabee moved his operations to a third
facility, called in the record the Reeve Street facility. This
facility had been leased to another company, but became avail-
able during 2003. Michael Sabee testified that he “had a busi-
ness” and that he needed a “new home for it.” He began using
the JMS entity for his manufacturing operations beginning in
early 2003. At trial he referred to JMS as “doing business as”
SPI.
During the period the parties were negotiating over the divi-
sion of assets, debts, real estate, equipment, inventory, and
customers, they did not make any agreements about the em-
ployees the three manufacturing companies shared. The set-
tlement agreement and related documents include great detail
about the division of all the above subjects, but contain no
agreement for dividing the employees among the companies.
There is a separate agreement dealing with “Production Ma-
chinery and Equipment” and another separate document dealing
with customers. The major mention of employees occurs in the
June 2, 2003 settlement agreement and concerns an agreement
for shares of payroll costs to be borne by SPI during June and
July 2003. SPI was to pay 76 percent of the payroll at the be-
ginning of June, but that amount was to change as R. Sabee
employees were laid off and SPI hired employees. The agree-
ments refer to SPI, not to JMS, but by this time, Michael Sabee
was using the JMS name to continue his manufacturing opera-
tions.
The only reference to employees is contained in a short
paragraph near the end of the settlement agreement. It states, in
part, that “R. Sabee will be significantly reducing the size of its
workforce at the end of the Transition Period [August 2, 2003],
and that Sabee Products currently is, and will continue to be
looking to hire similarly qualified individuals to add to its
workforce during and after the Transition Period. On approxi-
mately July 1, R. Sabee will provide Sabee Products with a
tentative list of those employees which R. Sabee expects to
layoff” on August 2.
According to the testimony of Joe Donovan who attended the
mediation sessions, the Lois Sabee group wanted to negotiate a
division the employees between the two family groups, just as
they were negotiating a division of customers and machinery.
However, Michael Sabee did not want to do this. At one nego-
tiation session, a negotiator for Michael Sabee, Dan Flaherty,
stated that his side of the negotiation would not divide the em-
ployees because SPI was not going to have a union, and that all
the negotiators should be careful what they said, and be careful
what was put into the settlement document.3 Witness John
Holland also testified that the Lois Sabee group raised the sub-
ject of negotiating about the employees in January 2003, and
wanted to agree to a division of the employees. He testified
that Flaherty replied that his side of the negotiation did not
want to have any agreement with regard to employees because
they didn’t want a large block of union employees there. Hol-
land mentioned the concept of accretion, and said he didn’t
understand how Michael Sabee could avoid having them when
he would be “running the same machines in the same building
with the same people?” Flaherty replied that it would be a
“cold day in hell” before they’d let that happen without a fight.
Flaherty did not testify, and another witness did not recall the
statements being made. Michael Sabee did not address this
issue in his testimony. Thus, the testimony of Holland and
Donovan regarding Flaherty’s statements are uncontradicted in
the record.
R. Sabee did lay off approximately 120 employees in July
2003.
5. Status of businesses after division
After August 2, 2003, Michael Sabee’s businesses, JMS and
SPI, continued to manufacture the same products SPI had done
for over 25 years, continued to use much of the same equip-
ment, but bought some new equipment. At some time after the
division of the businesses, Michael Sabee relocated JMS and
SPI to the Reeve Street facility, but his testimony was vague on
the timing of the relocation. Michael Sabee estimated SPI’s
proportion as approximately 75 percent of the total payroll
before the division of the family businesses, and after the divi-
sion, Michael Sabee continued to employ approximately 150
employees, which is roughly equivalent to the 75 percent of the
previous bargaining unit of 200 employees.

3 Where Michael Sabee’s testimony conflicts with that of Donovan
or John Holland, I credit Donovan and Holland over Michael Sabee.
Michael Sabee demonstrated an extremely poor recollection of many
facts, including noncontroversial facts. He confessed to having a bad
memory, and his testimony contains numerous failures of recollection.
Holland had worked as a manager for R. Sabee for 2002 and 2003, and
helped craft the division of the companies. His association with R.
Sabee or any other party to this case ended approximately 3 years be-
fore his testimony. His demeanor and recall were both impressive, and
I credit his testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1356
The Lois Sabee group retained control of R. Sabee, Circle,
and Draper. R. Sabee continued its manufacturing operations at
the Linwood and Highland facilities with approximately 25
percent of the bargaining unit employees continuing to work for
R. Sabee.
6. Bargaining demands and information requests
During the course of negotiations between the two Sabee
factions, the Union made several requests for information.
Union Representative Michael Pyne sent a letter to R. Sabee
and to Michael Sabee on February 7, 2003, requesting the
names of the companies that would be in existence after the
corporate reorganization, their owners, assets, locations, cus-
tomers, and other information. The letter also requested infor-
mation regarding the Respondents’ intentions about the em-
ployees. Pyne supplemented the information request on March
17, 2003, to include specific questions about SPI and JMS. R.
Sabee, by John Holland, provided some of the information
requested by the Union in April 2003. The Union received no
information from Michael Sabee regarding any of the three
companies he was operating at the time, SPI, Stanford, or JMS.
On April 25, 2003, the Union filed a grievance with both R.
Sabee and Michael Sabee about new employees performing
bargaining unit work at the Highland facility. These were ap-
parently the employees hired by Michael Sabee under the JMS
name. The Union also requested information about the em-
ployees and who employed them. John Holland, on behalf of
R. Sabee, responded with some of the information requested,
but Michael Sabee never responded to the grievance in any
way, neither answering it nor providing the information re-
quested. Upon learning that the employees were employed by
Michael Sabee as JMS, Pyne wrote a letter to Michael Sabee on
May 13, 2003, stating that the work being performed at the
Highland facility was bargaining unit work, and requesting an
answer to the Union’s grievance. Subsequently in June 2003,
Pyne, by letter, reiterated his requests for the information he
had not received, and added a request for a copy of the agree-
ment for the division of the businesses. The Union also added
the layoff of employees to its grievance of April 25, 2003.
7. Hiring by Michael Sabee
In February 2003, Michael Sabee hired Carolyn Bruex as a
personnel director for JMS at the Reeve Street facility. Mi-
chael Sabee instructed Bruex to check on all bargaining unit
applicants by talking with either himself, his brother Craig
Sabee, or one of two supervisors of JMS, Pingel or McLeod.
Within a month, Bruex developed a hiring policy and began
hiring employees for JMS. For applicants who worked for R.
Sabee in the union-represented bargaining unit doing precisely
the type of work JMS would be performing, Bruex would talk
with Michael Sabee, Pingel or McLeod about the employee, as
instructed. At times, she even talked with another employee
about the applicant. In addition, she evaluated the application
and in most cases interviewed the applicant before making a
hiring decision. In all cases where one of the managers or the
employee with whom she talked recommended against hiring
the bargaining unit employee, Bruex did not hire that employee.
JMS hired approximately 47 employees who had formerly
worked in the bargaining unit.
For outside applicants, only an application and an interview
were required. Bruex evaluated the application, decided
whether or not to interview the applicant, and after an inter-
view, decided whether or not to hire the applicant. She did not
check with Michael Sabee or any other manager concerning
outside applicants, but made those hiring decisions on her own.
By October 10, 2003, JMS had 152 employees performing
production work, of whom 47 were former R. Sabee bargaining
unit employees, while 105 had been hired from among the out-
side applicants. Approximately 92 R. Sabee bargaining unit
employees applied for work with JMS. Bruex compiled a list
of 54 R. Sabee bargaining unit employees whom JMS did not
hire. For 33 of these individuals, Bruex relied on negative
comments from Michael Sabee, Craig Sabee, Pingel, McLeod,
or an employee about the applicant’s work, which essentially
vetoed their employment. In a few cases, there was an instruc-
tion to Bruex not to hire the applicant, but no reason was cited.
Bruex gave no reason at all for not hiring six other former bar-
gaining unit employees. Three applicants were rejected by
Bruex because they said they wanted to work the same type of
shift as they had done at R. Sabee, rather than a different one at
JMS. Respondent offered no evidence for JMS’ failure to re-
tain or hire former bargaining unit employees except for the
comments supposedly made to Bruex.
Had Respondent JMS retained or hired the 54 bargaining
unit employees cited by Bruex in her testimony, there would
have been 101 bargaining unit employees out of a total of 152
in the JMS workforce. Thus, the bargaining unit employees
would have constituted a majority of the JMS work force.
B. Discussion and Analysis
1. Respondent status—2001 and interim period
Prior to the reorganization of the Sabee family businesses,
and prior to the events herein which are alleged to comprise
unlawful conduct, the record evidence shows overwhelmingly
that the companies were operated as a single enterprise. They
have a long history of being run as a single entity, first by
Reinhardt Sabee, and subsequently by his son, Michael Sabee.
Not only were all the companies owned in whole or in part by
the same family members, which constitutes “common owner-
ship” under Board law, they operated in the same two locations
in Appleton, shared offices and office staff, and manufactured
the same products or types of products. The employees used by
all the three companies which actually performed manufactur-
ing, SPI, R. Sabee, and Draper, were all nominally employed
by R. Sabee, but it is undisputed that they made products for all
three of the companies using the same machinery.
Common control of both labor relations and financial deal-
ings at all three of the manufacturing companies during this
period is likewise overwhelmingly supported by the record
evidence. It is Michael Sabee’s own testimony that he was the
president or operating officer of all three companies, made all
the decisions regarding relations among and between the three
companies, and made all financial decisions for all three com-
panies. He stated that they were commingled, and that he
switched money from one company to another as it was needed.
R. SABEE CO., LLC 1357
Michael Sabee was in charge of all collective-bargaining nego-
tiations and signed all the collective-bargaining agreements for
nearly 20 years prior to 2001. Upon the undisputed facts and
Michael Sabee’s testimony alone, it is obvious that the Sabee
family companies operated as a single enterprise and was a
single employer under applicable Board and court law. I find
that the record evidence demonstrates that all the named Re-
spondents were owned by members of one family, had inte-
grated operations, common management, and common control
of labor relations. Radio & Television Broadcast Technicians
Local 1264 v. Broadcast Service of Mobile, Inc., 380 U. S. 255,
276 (1965); Beverly California Corp., 326 NLRB 232, 242
(1998). Therefore, I find that the enterprise as a whole, as well
as each of its constituent companies, especially the manufactur-
ing companies, SPI, R. Sabee, and Draper, all had the same
obligations under the Act. I further find that Michael Sabee, as
the chief executive of the three manufacturing companies, was
the person who normally did carry out those obligations up to
and through the end of 2001.
2. The interim period: January 2002 through August 2003
When the Lois Sabee group decided that they needed to
separate their business interests from those of Michael Sabee, it
took approximately 18 months to divide and disentangle the
complexities of the Sabee family companies, their customers,
machinery, assets, and real estate. The reorganization resulting
from this process was not completely agreed until June 2, 2003,
and was not fully carried out until August 3, 2003. It is there-
fore logical that throughout the interim period, and until August
3, 2003, the employing entity continued to be the single enter-
prise it had been for 50 years or so. During this period also,
therefore, each part of the Respondent had the same obligations
it had always had under the Act and under the collective-
bargaining agreement to which it was a party. I find that the
companies did not become two separate entities until the divi-
sion of the businesses was finally completed on August 3,
2003. From that date onward, the Lois Sabee group controlled
R. Sabee, and approximately one-fourth of the manufacturing
business, and Michael Sabee continued to control the majority,
approximately 75 percent, of the manufacturing business.
3. JMS and SPI repudiation of the collective-bargaining
agreement in February 2003
SPI continued to operate as one among the family group of
companies, as it had in the past. Michael Sabee continued to
function as its chief operating officer, although he no longer
performed that function for R. Sabee and Draper. The manag-
ers hired by the Lois Sabee group chiefly operated R. Sabee
and Draper during the interim period.
SPI continued to be Michael Sabee’s manufacturing com-
pany, but in February 2003, he began to use the name JMS for
his manufacturing operations, and apparently to move some of
them to another location, Reeve Street. In testimony, Michael
Sabee described JMS as “doing business as” SPI. By the time
of his testimony in February 2005, SPI was not manufacturing,
but JMS was, and Michael Sabee could not remember which
company paid him. He did recall that all the production em-
ployees were nominally employed by JMS. I find that Michael
Sabee’s production operations were a continuation of the em-
ploying entity. SPI was one of the original Sabee family com-
panies found above to be part of the overall employing enter-
prise, and had performed a large majority of the manufacturing
work. JMS was simply a new name created by Michael Sabee
to use for his SPI portion of the business. At trial, counsel for
Respondent asked Michael Sabee a series of questions about
JMS, referring to it in questions as Michael Sabee’s “new busi-
ness” and its move to the Reeve Street facility. Michael Sabee
responded, “I actually had a business; I needed to find a new
home for it.” This testimony, along with his testimony that
JMS is “doming business as” SPI, shows clearly that Michael
Sabee considers JMS to be simply another name for “his” busi-
ness. In addition, ownership, management, financial control,
and labor relations control for both SPI and JMS reside solely
in Michael Sabee. Based on the record evidence, I find that SPI
and JMS are alter egos of one another. See, e.g., Vallery Elec-
tric, Inc., 336 NLRB 1272 (2001).
Beginning in February 2003, Michael Sabee began to em-
ploy employees under the JMS name. According to the testi-
mony of Bruex, these employees worked longer shifts than the
8-hour shifts agreed to in the collective-bargaining agreement.
In fact, it is undisputed that Michael Sabee did not continue to
apply the collective-bargaining agreement to the employees
who were nominally employed by JMS. On the contrary, he
repudiated the collective-bargaining agreement and withdrew
recognition from the Union as to employees who continued to
work for him under the JMS name. He unilaterally changed
their terms and conditions of employment, to terms and condi-
tions different from the agreement.
It is undisputed in this record that Michael Sabee repudiated
the collective-bargaining agreement regarding continued SPI
operations and JMS operations. In addition, it is undisputed
that Michael Sabee gave the Union no notice and no opportu-
nity to bargain about other changes to employees’ wages,
hours, and working conditions, to the extent these were not
covered by the collective-bargaining agreement. It is further
undisputed that Michael Sabee failed and refused to respond to
any of the numerous information requests made by the Union.
Respondent asserts only that JMS had no obligation to recog-
nize the Union or to continue the collective-bargaining agree-
ment in effect.
It is further undisputed that he did not give the Union notice
of his move of employees and equipment to Reeve Street dur-
ing the late winter and spring of 2003, nor did he afford the
Union an opportunity to bargain about the decision to move, the
application of the collective-bargaining agreement to the relo-
cated employees, the movement of machinery, or any other
aspect of the relocation or its effects on employees.
As I have found above, the entities comprising the Sabee
family enterprise, including JMS, were part of a single-
integrated enterprise until formally reorganized an separated on
August 3, 2003. Therefore, JMS, like the other Sabee family
entities, was a party to the collective-bargaining agreement, and
had an obligation to recognize the Union. It also had an obliga-
tion to provide relevant information about the terms and condi-
tions of employment of the bargaining unit employees. I find
that Michael Sabee, acting both as SPI and as JMS, violated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1358
Section 8(a)(5) of the Act by repudiating the collective-
bargaining agreement, withdrawing recognition from the Un-
ion, and failing and refusing to provide information to the Un-
ion.
4. Unilateral change allegations
The layoff of approximately 120 bargaining unit employees
in June and July 2003 was announced to the bargaining unit
employees by R. Sabee. However, the formal division or reor-
ganization of the Employer had not yet been accomplished.
Consistent with the finding above that the Employer continued
to be a single employer until the date of the formal division, I
find that the layoff of employees in June and July 2003, was
conducted by the overall single employer, and was therefore the
responsibility of each constituent entity. Thus SPI and JMS, by
laying off 120 employees without notice to the Union and
without affording the Union an opportunity to bargain about the
layoff or its effects, violated Section 8(a)(5) of the Act. It is
axiomatic under Board law that alter egos are liable for the
actions and the unfair labor practices of one another. See, e.g.,
Vallery Electric, Inc., above.
5. Status of the employer after August 3, 2003
After August 3, 2003, the Lois Sabee group, consisting of R.
Sabee, Draper, and other nonmanufacturing companies, contin-
ued manufacturing, on a smaller scale, the same type of prod-
ucts for the same customers with the same machinery at the
same location. The same family group was in control of the
businesses. They had only about one-fourth of the bargaining
unit employees, as their proportion of the overall manufacturing
business was smaller. Whether R. Sabee had an obligation
under the collective-bargaining agreement as a continuation of
the former employer, or whether it is more properly analyzed as
a successor employer need not be decided here. No allegations
regarding R. Sabee are before me, and I decline to decide any
such issues.
At the very least, it is apparent that the family businesses be-
came two separate bargaining units on August 3, 2003, with
approximately one-fourth of the employees continuing their
employment with R. Sabee, and the remaining employees either
laid off or being “rehired” by Michael Sabee’s company, JMS.
As set forth above, SPI and JMS are alter egos of one an-
other. Whether they are a continuation of the former employer,
the Sabee family businesses, is a different issue. The Board has
ruled that a finding of alter ego status may be appropriate even
where the motivation for a change in the employing enterprise
is not undertaken for the sole purpose of avoiding a bargaining
obligation. There are situations in which an employer takes
advantage of a business change to attempt to rid itself of the
union. I find that in the instant case, Michael Sabee attempted
to take advantage of the division of the family business which
was forced upon him by the Lois Sabee group to try to evade
his and his companies’ obligations under the collective bargain-
ing agreement and under the NLRA.
Michael Sabee formed another company, employed employ-
ees in its name, apparently in the view that a new name was all
that was needed to justify his repudiation of the collective bar-
gaining agreement and his bargaining obligation as a whole.
Michael Sabee, in his testimony, did not distinguish between
JMS and SPI, but for the most part, spoke generally of his busi-
ness. I have found above that JMS and SPI were and are oper-
ated by Michael Sabee as a single entity. The issue posed is
whether this single entity is a continuation (or alter ego) of the
Sabee family businesses, or a successor of the Sabee family
businesses.
The record evidence supports a finding that Michael Sabee’s
current business is a continuation, or alter ego, of the Sabee
family businesses. First, there is common ownership in that
Michael Sabee owned a majority of the previous family busi-
ness, at least 75 percent of it, as shown by the amount of busi-
ness he received when the companies were divided. Secondly,
prior to the division, Michael Sabee was the chief manager of
all the manufacturing companies, and continues to be the chief
manager of SPI and JMS. Thirdly, Michael Sabee conducted
labor relations for the original family entity for nearly 20 years
and continues to do so for SPI and JMS. Michael Sabee for-
merly managed all the financial transactions for the original
family entity, and continues to do so for SPI and JMS. The fact
that Michael Sabee relocated his manufacturing operations to a
new location in the same town is not dispositive, and cannot
outweigh all the other factors tending to show identity between
his businesses and the original family entity. The fact that SPI
and JMS continued making the same products for the same
customers, and that their share of the original family entity is
approximately three-quarters of the original business is strong
evidence that Michael Sabee’s companies should be considered
as the continuation of the original family entity, and thus as the
employer which was and is obligated to continue its bargaining
obligation. As the Board wrote in Martin Bush Iron & Metal,
329 NLRB 124 (1999), “as the Eighth Circuit noted in Crest
Tankers, Inc. v. National Maritime Union, 796 F.2d 234, 238
fn. 2 (8th Cir. 1986), the presence of a legitimate business rea-
son for a change in corporate organization does not preclude
finding alter ego status.” I find that SPI and JMS, were a con-
tinuation of the employer, and as such, were obligated to con-
tinue to abide by the collective-bargaining agreement and to
recognize and bargain with the Union. By the undisputed fail-
ure of SPI and JMS to continue the collective-bargaining
agreement in effect after August 3, 2003, and by its undisputed
refusal to recognize and bargain with the Union, I find that
Respondents SPI and JMS violated Section 8(a)(5) of the Act.4
6. Failure to provide information after division
It is undisputed that Michael Sabee, on behalf of JMS and
SPI, did not respond to information requests of the Union nor to
its grievance. Respondents’ only defense is that they had no
obligation to recognize the Union. I have found above that they
do have such an obligation, and so Michael Sabee’s companies
SPI and JMS were obligated to provide the information re-
quested in the Union’s letters and the attachment to the griev-

4 Even SPI and JMS were analyzed as a successor employer to the
original family entity rather than a continuation, they would still be
under an obligation to recognize and bargain with the union, as is set
forth in sec. B,7, below. The remedy for their actions would be the
same.
R. SABEE CO., LLC 1359
ance. Respondents violated Section 8(a)(5) of the Act by refus-
ing to provide the information.
7. JMS and SPI hiring practices
As a continuation (alter ego) of the original family entity,
SPI and JMS had an obligation to bargain with Union about
both the division of the business (and the effects on employees)
and the relocation of employees, along with the effects of the
relocation on employees. Furthermore, it had an obligation to
continue the contract in effect and therefore all its terms and
conditions. If Respondents had observed their obligations, SPI
and JMS would then have continued the employment of ap-
proximately 75 percent of the bargaining unit employees. In-
stead, those employees were laid off. SPI and JMS established
terms and conditions of employment different from those in the
collective bargaining agreement, and hired new employees. By
this conduct, Respondents SPI and JMS violated Section
8(a)(5) of the Act.
Even if JMS and SPI had not been found to be a continuation
of the employing enterprise, they are still a single employer and
would be a successor under applicable Supreme Court and
Board law. Many of the same facts are relevant. Michael Sa-
bee continued to own and operate the “new” company, manu-
facturing the same products, using most of the same equipment,
and in the same location until the business division obliged him
to relocate. The record evidence shows that Michael Sabee
intended from at least early 2003 to avoid any successor bar-
gaining obligation by not employing current employees for
precisely that reason. The statements of his representative,
Flaherty, evidence a determination to avoid retaining union-
represented employees so as to constitute a majority of the
work force.
Even if this statement were not considered as evidence, the
record is replete with additional evidence of Michael Sabee’s
intent to avoid recognizing the Union. The reorganization set-
tlement agreement provides evidence that Michael Sabee re-
fused to deal with the other party to the division negotiations
with regard to employees. Donovan and Holland testified
credibly that the Lois Sabee group desired to negotiate a divi-
sion of the employees between the two parties, but that the
Michael Sabee side of the negotiations adamantly refused to
negotiate about this important business decision.
The fact that the division of employees, hitherto used by all
six related companies, was not dealt with in the discussion,
specifically by the insistence of Michael Sabee representative,
when every other aspect of the businesses was carefully di-
vided, is strong evidence that Respondent wished to avoid its
bargaining obligation. While the plant, real estate, office space,
money, company names, customers, and products, were all
dealt with in detail, the allocation of the approximately 250
bargaining unit employees to the two divided entities of the
original family entity was not mentioned at all in the discus-
sion. This evidence was not objected to and should be relied
upon. The settlement agreement shows that the division of all
other aspects of the Sabee family businesses was minute and
detailed. Michael Sabee’s clear determination to be rid of Un-
ion-represented employees in his approximately 75 percent
share of the manufacturing operation may be inferred from this
conduct. I so infer.
In addition, Michael Sabee’s unlawful conduct during Feb-
ruary through August 2003, the changes to terms and condi-
tions of employment undertaken unilaterally and without af-
fording the Union notice or an opportunity to bargain about the
changes or about their effects is strong evidence of animus.
Further evidence of animus against union-represented employ-
ees is his refusal to provide information during a time when he
still had an obligation to do so under any theory, his puzzling
refusal to continue the employment of most of the experienced
employees already in his employment, and the discriminatory
hiring scheme he ordered his personnel director to use to hire
new, mainly nonunion-represented employees. Respondent
advanced no reasons for its failure to hire experienced employ-
ees who already knew the exact work they would be doing
supports the inference that Respondent did so in order to avoid
majority status of bargaining unit employees. Taken together,
these facts are ample evidence from which substantial animus
against employing union-represented employees may be, and
should be, inferred. I find that the totality of Michael Sabee’s
conduct evinced intent to avoid any obligation of SPI or JMS to
continue to recognize the Union, and a determination to get rid
of a sufficient number of union-represented employees so that
they would not constitute a majority of employees. It is well
settled that a successor employer who refuses to hire its prede-
cessor’s employees in order to evade its bargaining obligation
will be found to have violated Section 8(a)(3) of the Act by so
doing. E. S. Sutton Realty Co., 336 NLRB 405 (2001). See
also D & K Frozen Foods, 293 NLRB 859 (1989); U. S. Marine
Corp., 293 NLRB 669 (1989).
Animus against the bargaining unit employees can also be
inferred from Michael Sabee’s discriminatory hiring scheme.
Union-representative applicants were subjected to an extra
requirement which other applicants were not. Such conduct has
repeatedly been found by the Board to be unlawful discrimina-
tion. See, e.g., New Otani Hotel and Garden, 325 NLRB 928
(1998); Monfort of Colorado, 298 NLRB 73, 79–83 (1990),
enforced in relevant part 965 F.2d 1538 (10th Cir. 1992). Had
Respondent hired all 92 bargaining unit applicants, they would
have constituted a majority of its approximately 150-person
work force. I find that Respondent SPI and JMS violated Sec-
tion 8(a)(3) of the Act by imposing additional requirements on
union represented applicants for employment, and that they
discriminated in hiring union-represented employees so as to
avoid successorship status.
CONCLUSIONS OF LAW
1. By laying off employees because they were represented
by the Union, by refusing to continue the employment of em-
ployees because they were represented by the Union, by refus-
ing to hire or rehire employees because they had been repre-
sented by the Union, by intentionally limiting its retention and
rehiring of bargaining unit employees in order to avoid employ-
ing a majority of the represented employees, by refusing to
continue to employ bargaining unit employees under their con-
tractually required terms and conditions of employment, and by
discriminatorily requiring an additional level of review for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1360
represented employees who sought to continue their employ-
ment, or in the alternative, be rehired, Respondent has violated
Section 8(a)(3) and (1) of the Act.
2. By failing and refusing to provide necessary information
about the bargaining unit employees and the decisions affecting
employees and the effects upon them of the reorganization of
Respondent’s business as requested by the Union, by repudiat-
ing the collective-bargaining agreement in effect and by refus-
ing to continue its terms and conditions of employment, by
withdrawing recognition of the Union, by unilaterally and
without affording the Union notice or an opportunity to bar-
gain, making changes to employees’ terms and conditions of
employment, by laying off employees and refusing to continue
their employment without affording the Union notice or an
opportunity to bargain, by unilaterally setting new terms and
conditions of employment beginning in February 2003 without
affording the Union notice or an opportunity to bargain about
the decision or the effects of such conduct, and by continuing to
refuse to recognize and bargain with the Union, Respondent has
violated Section 8(a)(5) and (1) of the Act.
3. The violations set forth above are unfair labor practices
affecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec-
essary to effectuate the policies of the Act.
I shall recommend that Respondent be required to restore the
terms and conditions of employment in effect at the time it
unlawfully repudiated the collective-bargaining agreement and
to maintain those terms and conditions in effect unless and until
changed through bargaining with the Union. I shall also rec-
ommend that Respondent be ordered to remove from the em-
ployment records of all bargaining unit employees any nota-
tions relating to the unlawful layoffs, refusals to continue their
employment, and/or refusals to hire them, and to make them
whole for any loss of earnings or benefits they may have suf-
fered due to the unlawful action taken against them, in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]