Bensie Mfg. Co. and New York Imperial Foundations Inc. and Commonwealth American Foundations, Inc. and Foundyn, Inc.

National Labor Relations Board - Board Decisions

May 24, 1982

261 N.L.R.B. 1043 (N.L.R.B. 1982)

BENSIE MFG. CO.
Bensie Mfg. Co. and New York Imperial Founda-
tions, Inc. and Commonwealth American Foun-
dations, Inc. and Foundyn, Inc. and Internation-
al Ladies' Garment Workers Union, Local 600,
AFL-CIO and International Ladies' Garment
Workers Union, AFL-CIO. Case 24-CA-4597
May 24, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
Upon a charge filed on November 5, 1981, and
amended charges filed on December 4 and Decem-
ber 22, 1981, by International Ladies' Garment
Workers Union, Local 600, AFL-CIO, herein
called the Union, and International Ladies' Gar-
ment Workers Union, AFL-CIO, herein called the
International Union, and duly served on Benise
Mfg. Co., New York Imperial Foundations, Inc.,
Commonwealth American Foundations, Inc., and
Foundyn, Inc., herein called, respectively, Re-
spondent Bensie, Respondent New York Imperial,
Respondent Commonwealth, and Respondent
Foundyn, and also referred to collectively as Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 24, issued a complaint on December 29,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding. Re-
spondent failed to file an answer to the complaint.
On March 2, 1982, the General Counsel filed di-
rectly with the Board a Motion for Summary Judg-
ment, with exhibits attached. Subsequently, on
March 8, 1982, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. Re-
spondent failed to file a response to the Notice To
Show Cause and, therefore, the allegations in the
Motion for Summary Judgment stand uncontro-
verted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically stated that unless an
answer was filed to the complaint within 10 days
from the service thereof "all of the allegations of
the complaint shall be deemed to be admitted to be
true and may be so found by the Board." Further,
according to the uncontroverted allegations of the
Motion for Summary Judgment, the Regional Di-
rector for Region 24, pursuant to Section 102.22 of
the Board's Rules and Regulations, voluntarily ex-
tended the time for Respondent to file an answer,
and warned Respondent in writing that unless an
answer was filed by January 28, 1982, a motion
would be made before the Board for entry of an
order based on the undenied allegations of the
complaint. Respondent has failed to file an answer
to the complaint or to respond to the Notice To
Show Cause. Thereafter, on March 2, 1982, no
answer having been filed, counsel for the General
Counsel filed the instant Motion for Summary
Judgment.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to
file a timely answer, the allegations of the com-
plaint are deemed admitted and are found to be
true and, accordingly, we grant the General Coun-
sel's Motion for Summary Judgment.
Upon the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Bensie, a wholly owned subsidiary
of Respondent Commonwealth, is a Delaware cor-
poration which, at all times material herein, has
maintained an office and place of business at Road
261 NLRB No. 147
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
693, Km. 7.1, in Dorado, Puerto Rico, herein
called the Puerto Rico plant, where it is, and has
been at all times material herein, engaged in the
sewing of brassieres, ladies' garments, and related
products.
Respondent Commonwealth, a Delaware corpo-
ration, has maintained an office and place of busi-
ness at Route 46 in Pine Brook, New Jersey, and at
2860 Route 10 in Morris Plains, New Jersey, where
it is, and has been at all times material herein, en-
gaged in the sale and distribution of brassieres,
ladies' garments, and related products.
Respondent New York Imperial, a New York
corporation and a wholly owned subsidiary of Re-
spondent Foundyn, and Respondent Foundyn, a
New Jersey corporation, have maintained an office
and place of business at 67-34 Street, Brooklyn,
New York, and at 2860 Route 10, Morris Plains,
New Jersey, where they are, and have been at all
times material herein, engaged in the cutting, sale,
and distribution of brassieres, ladies' garments, and
related products.
At all times material herein, Respondent Bensie
has been a member of the Puerto Rican Corset and
Brassiere Association, whose constituents own,
maintain, or operate plants in Puerto Rico for the
manufacture of corsets, brassieres, and related
products. During the past year members of the As-
sociation, including Respondent Bensie, purchased
goods and materials valued in excess of $50,000 di-
rectly from sources outside Puerto Rico and,
during the same period, sold, manufactured, or fin-
ished goods exceeding $50,000 in value which were
shipped directly to points outside Puerto Rico. Re-
spondent Bensie is, and has been at all times mate-
rial herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
In addition, we find that, at all times material
herein, Respondent Bensie, Respondent New York
Imperial, Respondent Commonwealth, and Re-
spondent Foundyn have been affiliated business en-
terprises with common officers, ownership, direc-
tors, management, and supervision; that these cor-
porations have formulated and administered a
common labor policy affecting employees of said
operations; that they have shared common premises
and facilities; that they have provided services for
and made sales to each other; that they have inter-
changed personnel with each other; and that they
have held themselves out to the public as a single
integrated business enterprise. Accordingly, we
find that Respondent Bensie, Respondent New
York Imperial, Respondent Commonwealth, and
Respondent Foundyn constitute a single employer
within the meaning of the Act and that, as a single
employer, Respondent is an employer engaged in
commerce within the meaning of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Ladies' Garment Workers Union,
Local 600, AFL-CIO, and International Ladies'
Garment Workers Union, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All workers employed by the respective mem-
bers of the Association in connection with any
and all operations in the manufacture of gar-
ments produced in any shops located in Puerto
Rico by said Association members, including
cutters, clickers, spreaders, operators, shipping
employees, packers, boxers, folders, cleaners,
examiners and floor girls, and also including
maintenance employees, machinists, mechanics,
assistant mechanics, drivers, porters, and gar-
deners, but excluding therefrom the clerical
and office force, watchmen, designers, execu-
tives, supervisors (as defined in the Act), fore-
men, foreladies, and assistant foremen and
foreladies, professionals, administrative and ex-
ecutive employees.
At all times material herein, since at least 1979,
the Union has been the collective-bargaining repre-
sentative of the employees in the above-described
unit within the meaning of Section 9(a) of the Act.
Respondent has been party to a collective-bargain-
ing agreement with the Union, effective from Janu-
ary 1, 1980, to January 31, 1983.
B. The Refusal To Bargain
On or about September 3, 1981, Respondent
closed its Puerto Rico plant, terminating the em-
ployment of all its employees at said plant, without
prior notice to the Union and without giving the
Union the opportunity to bargain over the effects
of said closing. By such action, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
1044
BENSIE MFG. CO.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative actions designed to effectu-
ate the policies of the Act. We shall order Re-
spondent upon request to bargain with the Union
concerning the effects of the plant closing and to
pay the terminated employees amounts at the rate
of their normal wages when last in Respondent's
employ from 5 days after the date of this Decision
until the occurrence of the earliest of the following
conditions: (1) the date Respondent bargains to
agreement with the Union on those subjects per-
taining to the effects of the layoffs; (2) a bona fide
impasse in bargaining; (3) the failure of the Union
to request bargaining within 5 days of this Deci-
sion, or to commence negotiations within 5 days of
Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the
Union to bargain in good faith; but in no event
shall the sum paid to any of these employees
exceed the amount each would have earned as
wages from the time of their termination to the
time each secured equivalent employment else-
where, or the date on which Respondent shall have
offered to bargain, whichever occurs first; pro-
vided, however, in no event shall this sum be less
than that such employees would have earned for a
2-week period at the rate of their normal wages
when last in Respondent's employ.' Backpay shall
be computed in the manner set forth in F W. Wool-
worth Company,2 and Florida Steel Corporation.3
Finally, we shall order that, in lieu of posting,
copies of the notice to employees be mailed to
Transmarine Navigation Corporation and its Subsidiary. International
Terminals Inc., 170 NLRB 389 (1968). Despite his partial dissent in
Transmarine, Member Jenkins notes that the remedy there has been ac-
cepted by the courts and the Board and, since some type of remedy for
the misconduct is needed, he is therefore willing to join in the Decision
here. Uncle John's Pancake House, 232 NLRB 438, 440, fn. 7 (1977).
290 NLRB 289 (1950)
3 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Member Jenkins would award interest on backpay
in accordance with his dissent in Olympic Medical Corporatrion, 250
NLRB 146 (1980).
those employees on Respondent's payroll on the
date final notice was given of the plant's closure.4
Said notices shall be in both Spanish and English. s
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bensie Mfg. Co., New York Imperial Founda-
tions, Inc., Commonwealth American Foundations,
Inc., and Foundyn, Inc., constitute a single employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers Union,
Local 600, AFL-CIO, and International Ladies'
Garment Workers Union, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
3. All workers employed by the respective mem-
bers of the Association in connection with any and
all operations in the manufacture of garments pro-
duced in any shops located in Puerto Rico by said
Association members, including cutters, clickers,
spreaders, operators, shipping employees, packers,
boxers, folders, cleaners, examiners and floor girls,
and also including maintenance employees, machin-
ists, mechanics, assistant mechanics, drivers, por-
ters, and gardeners, but excluding therefrom the
clerical and office force, watchmen, designers, ex-
ecutives, supervisors (as defined in the Act), fore-
men, foreladies, and assistant foremen and forelad-
ies, professionals, administrative and executive em-
ployees, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since at least 1979, International Ladies' Gar-
ment Workers Union, Local 600, AFL-CIO, has
been the exclusive representative of all employees
in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By failing to notify the above-named Union in
advance of the closing of its Puerto Rico plant on
or about September 3, 1981, and by failing to give
the above-named Union an opportunity to bargain
over the effects of said closing, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By the aforesaid failure to notify and give an
opportunity to bargain, Respondent has interfered
with, restraining, and coerced, and is interfering
with, restraining, and coercing, employees in the
4 See, e.g., Randall E Wheeler, Kevin E Wheeler, and Edmund J
Wheeler, a General Partnership d/b/a Wheelco Co., 260 NLRB 867 (1982);
Cerro CAT'VDevices, Inc., 237 NLRB 1153 (1978)
s See. eg., Hollander Home Fashion Corp., 255 NLRB 1098 (1981)
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the rights guaranteed them in Section 7
of the Act, and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Bensie Mfg. Co., Dorado, Puerto Rico, New York
Imperial Foundations, Inc., New York, New York,
Commonwealth American Foundations, Inc., Pine
Brook and Morris Plains, New Jersey, and Foun-
dyn, Inc., New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to notify and give International
Ladies' Garment Workers Union, Local 600, AFL-
CIO, an opportunity to bargain over the effects of
the closing of its Puerto Rico plant.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively and in
good faith with International Ladies' Garment
Workers Union, Local 600, AFL-CIO, as the ex-
clusive representative of its employees in the
below-described bargaining unit concerning the ef-
fects of the closing of its Puerto Rico plant. The
appropriate unit is:
All workers employed by the respective mem-
bers of the Association in connection with any
and all operations in the manufacture of gar-
ments produced in any shops located in Puerto
Rico by said Association members, including
cutters, clickers, spreaders, operators, shipping
employees, packers, boxers, folders, cleaners,
examiners and floor girls, and also including
maintenance employees, machinists, mechanics,
assistant mechanics, drivers, porters, and gar-
deners, but excluding therefrom the clerical
and office force, watchmen, designers, execu-
tives, supervisors (as defined in the Act), fore-
men, foreladies, and assistant foremen and
foreladies, professionals, administrative and ex-
ecutive employees.
(b) Pay those employees terminated as a result of
the closing of its Puerto Rico plant their normal
wages in the manner and for the period set forth in
the section of this Decision entitled "The
Remedy."
(c) Mail a copy of the attached notice marked
"Appendix" 6 to each employee who was on its
Dorado, Puerto Rico, plant payroll on the date
final notice was given of the plant's closure. Such
notice is to be mailed to the last known address of
each employee. Copies of said notice in both Span-
ish and English,7 on forms provided by the Re-
gional Director for Region 24, after being duly
signed by Respondent's representative, shall be
mailed by Respondent immediately upon receipt
thereof.
(d) Notify the Regional Director for Region 24,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
6 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labo)r Relations Board."
7 The Regional Director, as part of the compliance process, shall be
responsible for having the attached notice translated into Spanish prior to
mailing
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to notify and give In-
ternational Ladies' Garment Workers Union,
Local 600, AFL-CIO, an opportunity to bar-
gain over the effects of the closing of our
Puerto Rico plant.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL, upon request, bargain collectively
and in good faith with International Ladies'
Garment Workers Unions, Local 600, AFL-
CIO, as the exclusive representative of our em-
ployees in the below-described bargaining unit
concerning the effects of the closing of our
Puerto Rico plant. The appropriate unit is:
All workers employed by the respective
members of the Association in connection
with any and all operations in the manufac-
ture of garments produced in any shops lo-
cated in Puerto Rico by said Association
members, including cutters, clickers, spread-
ers, operators, shipping employees, packers,
1046
BENSIE MFG. CO
boxers, folders, cleaners, examiners and floor
girls, and also including maintenance em-
ployees, machinists, mechanics, assistant me-
chanics, drivers, porters, and gardeners, but
excluding therefrom the clerical and office
force, watchmen, designers, executives, su-
pervisors (as defined in the Act), foremen,
foreladies, and assistant foremen and forelad-
ies, professional, administrative and execu-
tive employees.
WE wiul. pay those employees terminated as
a result of the closing of our Puerto Rico plant
their normal wages in the manner and for the
period set forth in the Board's Decision and
Order.
BFNISI. MIG. CO. AND Ni-W YORK
IMPIRIAI. FOUNDA IONS, INC. ANI)
COMMONWEAI.TH AMERICAN FOUN-
DATIONS, INC. AND FOUNI)YN, INC.
1047