Il Progresso Italo Americano Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1990

299 N.L.R.B. 270 (N.L.R.B. 1990)

270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II Progresso Italo Amencano Publishing Company,
Inc. and Sedint S.P.A., a Single Employer, and
its alter ego Sedint U.S.A., and American Multi
Media, and Giovanni Pinto and Maria Theresa
Mercurio Pinto and Newspaper Guild of New
York, Local No. 3 of The Newspaper Guild,
AFL-CIO and New York Italian Typographical
Union No. 261. Cases 22-CA-15571 and 22-
CA-15635
July 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 12, 1989, Administrative Law Judge
Joel P Biblowitz issued the attached decision Re-
spondent Il Progresso Italo Amencano Publishing
Company, Inc (II Progresso) filed exceptions and a
supporting brief
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions 1 and bnef and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified and to adopt the recom-
mended Order as modified and set forth in full
below
1 We find no ment to Ii Progresso's exception
that the judge improperly asserted jurisdiction over
Sedmt S P A (SPA), an Italian corporation It is
well established that the Board's statutory jurisdic-
tion encompasses foreign employers doing business
' No exceptions were filed to the following findings of the judge (1)
the Respondents violated Sec 8(a)(1) of the Act by threatening employ-
ees with job loss and plant closure because of their union membership
and support, (2) the Respondents violated Sec 8(a)(3) and (1) of the Act
by (a) transferring employee Javorsky to a lower paying position and
laying off employees Cluom, Mian, Pam', and Vito Taormina because of
their union and protected concerted activities, and (b) closing its Emer-
son, New Jersey operation and terminating its employees who were
union members, and reopening and refusing to hire the former employees
at its new location because of their union membership, (3) the Respond-
ents violated Sec 8(a)(5) and (1) of the Act by (a) closing the Emerson
facility and reopening as a nonunion facility in Long Island City, (b) fail-
ing to transmit to the Unions membership dues and pension and benefit
fund contributions, (c) refusing to provide information, and (d) bypassing
the Unions by soliciting employees to abandon the Unions' bargaining de-
mands and to enter into individual employment contracts, and (4) neither
Giovanni Pinto nor Maria Theresa Mercurio Pinto are alter egos of the
other Respondents, nor are they individually liable for the unfair labor
practices committed
2 The Respondent II Progresso has excepted to some of the judge's
credibility findings The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear prepon-
derance 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 In particular we have examined the judge's dis-
crediting of the testimony of Victor Pmeyro and find that the judge's de-
termination in this regard as documented in his decision is amply support-
ed by the record
within the territorial United States Great Lakes
Dredge & Dock Go, 240 NLRB 197, 199 (1979),
State Bank of India, 229 NLRB 838, 841 (1977),
affd 808 F 2d 526 (7th Or 1986) Such a finding is
established as to SPA based on the judge's finding
that SPA and Il Progresso constitute a single em-
, ployer The Board's jurisdiction as to II Progresso
is not in dispute The Board's jurisdiction is proper-
ly asserted over two corporate entities found to be
a single employer, where one of the entities meets
the Board's jurisdictional criteria 3 See Marysville
Travelodge, 233 NLRB 527, 529 (1977), enfd sub
nom NLRB v Cofer, 637 F 2d 1309 (9th Cir
1981), HDC, Inc, 218 NLRB 316 (1975) 4
2 We agree with the judge that Il Progresso and
SPA constitute a single employer In so conclud-
ing, we note, in addition to the factors relied on by
the judge, the critical role played by Giovanni
Pinto, SPA's consultant to Ii Progresso The evi-
dence establishes that Pinto effectively controlled
Ii Progresso's operations Pinto controlled editorial
policy, dispensed assignments to journalists, direct-
ed the hiring of employees, proposed changes in
the format of the newspaper, held meetings with all
employees in which he requested wage reductions,
made a similar request in a private meeting with
union officials, was introduced to employees as the
boss, and was viewed as such by the employees 5
Additionally, Pinto was cited in a meeting with
union officials as the guarantor that required pay-
ments would be made, and he appears to have been
the original architect of closing II Progresso's oper-
ation in Emerson, New Jersey, and moving it to
Long Island City Pmto discussed such an eventu-
ality commencing in 1986 and directed Leopoldo
DeRosa, the assistant general manager of Ii
Progresso, to visit several locations in Long Island
City and to report to Pinto on the results of the
visit The direct control exercised by Pinto, SPA's
representative, over Ii Progresso's operations tran-
scends any mere consultative role 6 and establishes
' In finding that jurisdiction was properly asserted over SPA, we do
not rely on the judge's finding that SPA has an Independent physical
presence in the United States sufficient to Invoke the Board's jurisdiction
4 We also find mentless II Progresso's exception that proper service of
process was not made on SPA As the judge noted, valid service of proc-
ess was made on the other Respondents found to constitute a single em-
ployer with, and alter ego of, SPA Mid-Hudson Leather Goods Co. 291
NLRB 449, 453 (1988), G W Truck, 240 NLRB 333, 334-335 (1979)
5 We note also that Pinto stayed in regular telephone contact with II
Progresso dunng the periods he spent in Italy
6 This is clearly expressed in a letter written to the chairman of SPA
by II Progresso's vice president and general manager, which states in per-
tinent part
If the present system of management is to continue, where Prof
Pinto is giving company directives and is implementing decisions
that have a financial effect on II Progresso, he will have to be ap-
pointed by the Board to a role that officially assumes responsibility
for the company
299 NLRB No 33
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 271
the lack of the arm's-length relationship found
among unintegrated companies See Emsing's Su-
permarket, 284 NLRB 302 (1987), enfd 872 F 2d
1279 (7th Cir 1989) (the fundamental inquiry in de-
termining single-employer status is whether there
exists overall control of cntical matters at the
policy level)
3 In agreeing with the judge that SPA, Sedmt
U S A (USA), and American Multi Media (AMM)
constitute a single employer, we note, in addition
to the factors cited by the judge, the following fac-
tors, which indicate the lack of an arm's-length re-
lationship among these companies (1) USA made
numerous payments on behalf of AMM and billed
SPA for these amounts, (2) Pinto played a focal
role at USA as SPA's "consultant" and shaped edi-
torial policy at AMM, 7 and (3) at the suggestion of
Victor Pmeyro, the president of USA, SPA trans-
ferred to USA the composing work previously per-
formed by AMM, and AMM's composing room su-
pervisor and several employees in that department
became employees of USA 8
4 We also agree with the judge that USA and
AMM are alter egos of Ii Progresso and SPA In
so concluding, we note, m addition to the factors
relied on by the judge, that (1) the customers of
the newspaper remained the same, in that SPA re-
tained the paper's subscription list when it began
publishing from Long Island City, (2) furniture,
computers, and archives were moved from Il
Progresso's Emerson location to the Long Island
City offices of USA, with the approval of SPA, (3)
the several instances of overlapping management
among these compames, 9 and (4) the numerous ex-
penditures by USA on behalf of both Ii Progresso
and AMM, which were billed to SPA
Further, we find that the numerous antiunion
statements made by Pinto and Pmeyro, and their
statements that the paper would close and reopen
elsewhere, are clear evidence of union animus
7 We note that DeLuca, who was in charge at AMM, testified that he
would call Pinto when AMM had financial difficulties
9 We do not rely, however, on the judge's assumption that (1) Pinto
played an active role in labor relations at AMM because "there appears
to be a vacuum at AMM regarding labor relations," and (2) the fact that
AMM was incorporated by Nancy Dell'Oho (counsel to SPA and a
member of the law firm of the chairman of SPA) indicates that AMM is
either owned or controlled by SPA
9 Pmeyro, the executive vice president of H Progresso, became the
president of USA Francisco DeLuca, the promotions manager of II
Progresso, was employed by USA and was active in setting up the initial
operation in Long Island City, and thereafter was named treasurer of
AMM and put in charge of day-to-day operations at AMM by SPA's
chairman, Lupoi Salvatore Taormina, managing editor of II Progresso,
became the first editor-in-chief for AMM Additionally, Pinto played his
pivotal role as SPA's consultant first to II Progresso and thereafter to
USA
" For example, the judge credited testimony that Pmeyro stated sever-
al times that the Union was going too far and it could be deadly for
them, that they could shut down and move some place else, and that
This animus supports the judge's finding that the
establishment of USA and AMM and the publica-
tion of "Il Progresso Italo Amencano" from Long
Island City as a nonunion operation was a mere
technical change in the structure and identity of
the employing entity to evade responsibilities under
the Act Mid-Hudson Leather Goods, supra at 453
Additionally, although the evidence does not es-
tablish SPA owned AMM, we are persuaded that
SPA maintained substantial control over AMM In
this regard, we note first that DeLuca was put in
overall charge of AMM, and was asked to serve as
treasurer of AMM, by the chairman of SPA,
Lupo', and by Dell'Oho, Lupoi's legal associate
and counsel to SPA 1 " Second, DeLuca testified
that SPA was the sole source of AMM's income
Third, Lupoi transferred the composing work pre-
viously performed by AMM to USA and concomi-
tantly transferred AMM's composing room super-
visor and several employees to USA Fourth,
AMM existed m essence to provide editonal serv-
ices for SPA 12 The appointment by SPA's chair-
man of DeLuca as head of AMM, AMM's total fi-
nancial dependence on SPA, and SPA's unilateral
transfer to its wholly owned subsidiary of a portion
of AMM's operation clearly establish that AMM
"virtually exists at the sufferance" of SPA See
McAllister Bros, 278 NLRB 601, 616-617 (1986),
enfd 819 F 2d 439 (4th Cir 1987), Fugazy Conti-
nental Corp, 265 NLRB 1301, 1302-1303 (1982),
enfd 725 F 2d 1416 (D C Cir 1984)
ORDER' 3
The National Labor Relations Board adopts the
recommended Order of the administrative law
pretty soon things would change Pinto's policy regarding the Unions
was described as "attack, attack, attack"
DeLuca testified that he has never met or dealt with the titular
president of AMM, Michael Horne
72 The record indicates that AMM had no clients other than SPA
IS We shall modify the remedy set forth by the judge to require the
Respondents to execute a collective-bargaining agreement with Local
No 3 of the Newspaper Guild of New York, AFL-CIO, containing the
terms and conditions agreed to at a negotiating session on February 2,
1988, and to apply retroactively the terms and conditions of that agree-
ment, and to make employees whole for any loss of earnings and other
benefits suffered as a result of the failure to execute and abide by that
agreement, in the manner described in Ogle Protection Service, 183 NLRB
682 (1970), enfd 444 F 2d 502 (6th Cif 1971), with Interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987) We shall fur-
ther modify the remedy to provide that the Respondents transmit to the
Guild the dues payments they unlawfully failed to make, with Interest in
accordance with New Horizons for the Retarded, supra We shall also re-
quire that the Respondents make pension and benefit fund payments in
the manner prescribed in Merryweather Optical Co, 240 NLRB 1213 fn 7
(1979), and reimburse employees for any expenses ensuing from the un-
lawful failure to make those payments as set forth in Kraft Plumbing d
Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir
1981) We shall also order the Respondents to remove from their records
any reference to the unlawful layoffs and transfer and to notify the em-
ployees in writing that this had been done and that these actions will not
be used against them in any way
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge as modified and set forth in full below and
orders that the Respondents, Ii Progresso Italo
Amencano Publishing Company, Inc , Emerson,
New Jersey, Sedmt S P A, Rome, Italy, and their
alter egos, Respondents Sedmt U S A and Ameri-
can Multi Media, Long Island City, New York,
their officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening employees with job loss or plant
closure because of their union membership and ac-
tivities
(b) Transferring, demoting, laying off, terminat-
ing, or otherwise discriminating against employees
due to their actions in support of the Unions, or
other protected concerted activity
(c) Closing its business operation and reopening
the same business elsewhere and refusing to employ
its former employees at the new location because
of their union membership
(d) Failing and refusing to supply the Unions
with requested information that is necessary and
relevant to their function as collective-bargaining
representatives of Respondents' employees
(e) Failing and refusing to transmit dues pay-
ments, pension payments, and other fund payments,
that it is obligated to pay pursuant to its collective-
bargaining agreements with the Unions
(0 Failing and refusing to execute a collective-
bargaining agreement after it had reached full
agreement with the Guild on the terms and condi-
tions of such agreement
(g) Bypassing the Unions by soliciting its em-
ployees to abandon the Unions' bargaining de-
mands
(h) Bypassing the Unions by soliciting its em-
ployees to enter into individual employment con-
tracts and to abandon the Unions
(0 In any like or related manner mterfenng with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer all employees who were terminated
when the Respondents closed their Emerson, New
Jersey facility about June 30, 1988, immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other nghts or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the
remedy section of the judge's decision
(b) Recognize and, on request, bargain with the
Newspaper Guild of New York, Local No 3 of the
Newspaper Guild, AFL-CIO (Guild) and the New
York Italian Typographical Union No 261 (Typo-
graphical Union) as the collective-bargaining repre-
sentatives of its employees
(c) Execute, on request, a collective-bargaining
agreement with the Guild containing the terms and
conditions agreed to at a negotiating session with
the Guild on February 2, 1988
(d) Apply retroactively, the terms and conditions
of the collective-bargaining agreement to which
the Respondents and the Guild agreed, and make
employees whole for any loss of earnings and other
benefits suffered as a result of their failure to exe-
cute and abide by that agreement in the manner set
forth in the remedy section of the judge's decision
as modified
(e) Offer Riccardo Chiom, Vito Taormina,
Marzio Mian, and Antonio Volpe Pasim immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings 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
(0 Make whole Amalia Javorsky for any loss of
earnings and other benefits she may have suffered
as a result of the discrimination against her, in the
manner set forth in the remedy section of the
judge's decision
(g) Remove from its files any reference to the
unlawful lay off of Riccardo Chioni, Vito Taor-
mina, Marzio Mian, and Antonio Volpe Pasim and
the unlawful transfer of Amalia Javorsky, and
notify these employees in writing that this has been
done and that these actions will not be used against
them in any way
(h) Transmit to the Guild the dues that it deduct-
ed and failed to transmit since about September 25,
1987, plus interest
(i) Make all required pension fund payments pur-
suant to the terms of the collective-bargaining
agreement with the Guild that the Respondents un-
lawfully failed to make since about October 1,
1987, in the manner set forth in the remedy as
modified
(j) Make all required fund payments pursuant to
the terms of the collective-bargaining agreement
with the Typographical Union that the Respond-
ents unlawfully failed to make since about August
1987, in the manner set forth in the remedy as
modified
(k) Make whole employees for any losses suf-
fered as a result of the Respondents' failure to
make required pension fund and other fund pay-
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 273
ments, in the manner set forth in the remedy as
modified
(1) Furnish the Unions, on request, information
that is necessary and relevant to their function as
collective-bargaining representatives of Respond-
ents' employees
(m) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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
(n) Post at its Long Island City, New York facil-
ity copies of the attached notice marked "Appen-
dix " 14 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and mamtamed for 60 consecu-
tive 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 altered, defaced,
or covered by any other material
(o) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
14 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"
APPENDIX
NOTICE To EmpLoyEESS
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 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT threaten our employees with job
loss or plant closure due to their membership in or
activities on behalf of the Newspaper Guild of
New York, Local No 3 of the Newspaper Guild,
AFL-CIO (Guild), or the New York Italian Typo-
graphical Union No 261 (Typographical Union) or
any other labor organization
WE WILL NOT transfer, demote, lay off, termi-
nate, or otherwise discriminate against our employ-
ees in retaliation for their activities on behalf of the
Guild or the Typographical Union, or any other
labor organization
WE WILL NOT close our operations at one loca-
tion and reopen them at another location in retalia-
tion for our employees' membership in or activities
on behalf of the Guild or the Typographical
Union, or any other labor organization
WE WILL NOT refuse to bargain in good faith
with the Guild or the Typographical Union by fail-
ing and refusing to make all required dues and fund
payments
WE WILL NOT refuse to bargain in good faith
with the Guild or the Typographical Union by so-
liciting our employees to abandon the Unions' bar-
gaining demands or by soliciting our employees to
enter into individual employment contracts, con-
taining new terms and conditions of employment,
thereby bypassing the Unions
WE WILL NOT fail to execute a collective-bar-
gaining agreement with a collective-bargaining rep-
resentative of our employees at a time when we
have agreed to all the terms and conditions of the
agreement
WE WILL NOT fail and refuse to provide to the
Unions requested information that is necessary and
relevant to their role as collective-bargaining repre-
sentatives of our employees
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Riccardo Chiom, Marzio Mian,
Vito Taormina, Antonio Volpe Pasim, and all em-
ployees who were terminated when we ceased pub-
lishing and closed our Emerson, New Jersey facili-
ty about June 30, 1988, immediate and full rein-
statement to their former jobs or, if those positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their terminations,
less any net interim earnings, plus interest
WE WILL make Amalia Javorsky whole for any
loss of earnings and other benefits, plus interest,
she suffered as a result of our discrimination
against her
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL notify Riccardo Chiom, Marzio Mian,
Vito Taormina, Antonio Volpe Pasim, and Amalia
Javorsky that we have removed from our files any
reference to our actions against them which have
been found to be unfair labor practices, and that
these actions will not be used against them in any
way
WE WILL recognize and bargain with the Guild
and the Typographical Union as the collective-bar-
gaining representatives of our employees at our
Long Island City, New York facility
WE WILL remit to the Guild the dues we deduct-
ed from our employees' pay but failed to transmit
to the Guild since about September 25, 1987, plus
interest
WE WILL make all required pension fund pay-
ments pursuant to the terms of our collective-bar-
gaining agreement with the Guild that we unlaw-
fully failed to pay since about October 1, 1987
WE WILL make all required fund payments pur-
suant to the terms of our collective-bargaining
agreement with the Typographical Union that we
failed to pay since about August 1987
WE WILL make employees whole for any losses
suffered as a result of our failure to make required
pension fund and other fund payments, plus inter-
est
WE WILL, on request, execute a collective-bar-
gaining agreement with the Guild containing the
terms and conditions agreed to at a negotiating ses-
sion with the Guild on February 2, 1988
WE WILL apply retroactively the terms and con-
ditions of the collective-bargaining agreement to
which we and the Guild agreed, and WE will make
you whole with mterest for any loss of earnings
and other benefits resulting from our failure to exe-
cute and abide by that agreement
WE WILL, on request, furnish the Unions infor-
mation that is necessary and relevant to their func-
tion as collective-bargaining representatives of our
employees
IL PROGRESSO ITALO AMERICANO
PUBLISHING COMPANY, INC , SEDINT
S PA, SEDINT US A, AND AMERI-
CAN MULTI MEDIA
William F Grant, Esq , for the General Counsel
Elliot J Mandel, Esq (Kaufman, Franlc, Naness, Schnei-
der & Rosenswezg), for Respondent Sedmt SPA, Sedint
U S A, Giovanni Pinto, Maria Theresa, Mercuno
Pinto and American Multi Media
Peter M Napohtano, Esq , for II Progresso Italo Ameri-
can° Publishing Company, Inc
Irwin Bluestein, Esq (Vladeck, Waldman, Elias & Engel-
hard, P C ), for Newspaper Guild
Andrew S Hoffman, Esq (Wiseman, Hoffman & Walzer,
Esqs ), for Typographical Union
DECISION
STATEMENT OF THE CASE
JOEL P BIBLOWITZ, Administrative Law Judge This
case involved 11 days of hearing in Newark, New
Jersey, and New York, New York, commencing Decem-
ber 8, 1988 1 and concluding February 6, 1989 The
unfair labor practice charge, and the first, second, and
third amended charges in Case 22-CA-15571 were filed
on February 25, March 18, July 14, and October 6 by
Newspaper Guild of New York, Local No 3 of the
Newspaper Guild, AFL-CIO (the Guild) The unfair
labor practice charge, and the first and second amended
charges in Case 22-CA-15635 were filed on March 29,
August 9, and October 11 by New York Italian Typo-
graphical Union No 261 (the Typographical Union)
The amended consolidated complaint, which issued Oc-
tober 19, was further amended pursuant to a motion to
amend complaint, dated January 4, 1989, alleges
(a) That Respondent, Il Progresso halo Amencano
Publishing Company, Inc (II Progresso), and Respond-
ent Sedint SPA (SPA), constitute a single-integrated
business enterprise and a single employer within the
meaning of the Act
(b) Respondents Giovanni Pinto (Pinto) and Mana
Theresa Mercurio Pinto (Maria Pinto) are alter egos of Ii
Progresso, USA and SPA and are individually liable for
their unfair labor practices
(c) SPA, Respondent Sedmt USA (USA), and Re-
spondent American Multi Media (AMM), constitute a
single-integrated business enterprise and a single employ-
er within the meaning of the Act
(d) AMM, and USA are alter egos of II Progresso and
SPA
The substantive allegations of the amended complaint
are as follows
(a) In about April or May, at its Emerson, New Jersey
facility, II Progresso, by Victor Pmeyro, its executive
vice president, threatened its employees with job loss
and plant closure because of their membership in, and ac-
tivities on behalf of, the Guild and the Typographical
Union
(b) In about November 1987, II Progresso transferred
employee Amalia Javorsky to a lower paying position,
and on about January 11, Il Progresso laid off employees
Riccardo Chiom, Vito Taormina, Marzio Mian, and An-
tonio Volpe Pasim because these employees joined or
supported the Guild, or because they engaged in other
protected concerted activities
(c) Since on or about September 25, 1987, Il Progresso
has failed to remit to the Guild dues payments deducted
from the pay of its employees who were members of the
Guild and had authorized said deductions
(d) Since about September 25, 1987 (for the Guild) and
about September 29, 1987 (for the Typographical Union),
II Progresso has unilaterally ceased making all benefit
fund contributions (a mandatory subject of bargaining) to
'Unless indicated otherwise, all dates referred to here relate to the
year 1988
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 275
the Guild and the Typographical Union on behalf of
their members/employees
(e) Since about February 2, Il Progresso has failed to
execute a written contract embodying the terms and con-
ditions of employment agreed to between it and the
Guild
(f) On about March 14, Il Progresso repudiated its col-
lective-bargammg agreements with the Guild and the
Typographical Union
(g) Since about March 14, Il Progresso has withdrawn
its recognition of the Guild and the Typographical
Union as the representative of certain of its employees
and has refused to abide by the terms and conditions of
employment of its contract with the Guild and the Typo-
graphical Union
(h) On about June 30, Il Progresso ceased publishing
at its Emerson facility and terminated all its employees
who were represented by the Guild and the Typographi-
cal Union, because the employees joined and supported
the Unions and engaged in other protected concerted ac-
tivities
(i) Since about July 1, USA has refused to hire the em-
ployees referred to above at its new Long Island City fa-
cility because they joined or supported the Unions or en-
gaged in other protected concerted activities
(0 In about April or May, II Progresso, by Pmeyro
and Louis Dab, its advertising director, bypassed the
unions by soliciting its employees to abandon the Union's
bargaining demands, thereby engaging in conduct de-
signed to undermine the status of the Unions as their col-
lective-bargaining representative
(k) On about July 1 and 3, USA, by Pmeyro, and on
about July 9 and 10, by Dab, bypassed the Unions by
soliciting its employees to enter into individual employ-
ment contracts containing new terms and conditions of
employment, and by soliciting its employees to abandon
their union membership
(1) From January through June, II Progresso, by Pin-
eyro, at meetings and negotiations, intentionally misrep-
resented information concerning the ownership and con-
trol of II Progresso to the Unions, thereby failing and re-
fusing to bargain in good faith with them
(m) Since about July 5, Il Progresso has failed and re-
fused to provide the Unions with information they re-
quested, information which is necessary for, and relevant
to, the Union's performance of its function as collective-
bargaining representative for certain of II Progresso's
employees
It is alleged that by the above activity, the Respond-
ents have violated Section 8(a)(1), (3), and (5) of the Act
I BACKGROUND
For many years (and until June 20) Il Progresso, a
New Jersey corporation, was the only Italian language
daily newspaper in the United States Until that date, it
was published at the Emerson, New Jersey facility and
distributed primarily in the New York and New Jersey
area In 1981 the family/foundation that owned the
newspaper sold it to a group of Italian investors In 1985
all of these investors except for one (Dominick Scag-
hone, 2 the president, who owned 5 percent of the stock)
sold their interest in the newspaper to SPA, an Italian
corporation
For many years, the Guild has represented employees
of Ii Progresso in the following unit office clerical em-
ployees, translators, proofreaders, 1 photographers, jour-
nalists, and managing editors The most recent written
agreement between the parties was for the period Janu-
ary 1, 1985, through December 31, 1986 At the expira-
tion of that agreement, II Progresso continued to apply it
to these employees' terms and conditions of employment
No further written agreement was entered into between
the parties, however, as stated supra, one of the allega-
tions is that on February 2, the parties reached full and
complete agreement, but Respondent refused to execute
a contract containing these terms and conditions
For many years, the Typographical Union has repre-
sented the typesetters and composing room employees
employed by Ii Progresso, the most recent agreement be-
tween the parties is for the period January 1, 1985, to
December 31, 1986 Subsequent attempts to negotiate a
successor agreement were unsuccessful
Scaglione was the president of II Progresso until 1986,
at that time he was replaced by Giannantomo Rom who
spent most of his time m Italy Pmeyro was originally
the circulation director for Ii Progresso, in about March
1987 he was promoted to executive vice president At
about this time, Andrea Mantmeo and Salvatore Taor-
mina were managing editors, Francesco DeLuca was
promotions manager, Louis Dabo was advertising direc-
tor, and John Lee, of Lee Sexton & Company was the
accountant Pinto was, officially, a consultant who spent
about one-third of his time in this country at II
Progresso His permanent residence was in Italy As dis-
cussed more fully, supra, there was substantial testimony
that his responsibilities at the paper were more significant
than simply as a "consultant" Javorsky, a bargaining
unit employee until the paper closed in July, was origi-
nally assistant controller and became controller in 1987
In 1985 SPA purchased 95 percent of the stock of Il
Progresso, in about 1987 the paper's masthead was trans-
ferred to SPA, this was due to the Italian law that pro-
vides for grants to Italian newspapers published abroad
The amount of this grant is substantially greater when an
Italian company, such as SPA, owns the paper's mast-
head At that time, Rom became "Editor Responsible"
for the paper, this is a position apparently dictated by
Italian laws Maunzio Lupo', an attorney, is a sharehold-
er and chairman of SPA, Maria Pinto, the wife of Nit%
is also a shareholder and general administrator of SPA
After the transfer of the masthead to SPA, II
Progresso was published under printing and distribution
agreements with SPA Allegedly, SPA was unhappy
with the publication and had been threatening to end the
agreement since late 1987 Finally, SPA cancelled the
agreement on about June 30, 10 days after the paper's
employees went out on strike On July 27, Il Progresso
reappeared (II Progresso II), this time publishing from a
2 In about January, Scaglione sold his interest in the paper and relin-
quished his position in the paper s operation
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Long Island City, County of Queens, State of New York
location, as compared to the Emerson, New Jersey loca-
tion it had previously published from In addition, the
new operation was nonunion with Ii Progresso II sub-
contracting the editorial work to AMM and the advertis-
ing work to Advertising Venture International (AVI)
Pregresso II was published by USA, wholly owned by
SPA Maria Pinto was the original president and only di-
rector of USA, Nancy Dell Oho, who is a member of
Lupoes law firm in Italy and maintains an office at the
New York law firm of Eaton & Van Winkle, was secre-
tary-treasurer and Pinto was a consultant At the request
of Lupoi, Pmeyro became president in July Salvatore
Taormina, formerly the editor-in-Chief at Il Progresso,
was the original editor of AMM, he was later replaced
by Guiseppe Fumagalli Michael Horne was the presi-
dent of AMM, Dell Oho was secretary, and Sherry
Ritter of Lee Sexton & Company (also called the Office
of John Lee) was the assistant treasurer Francisco
Deluca, who was in overall charge of the operation, was
also the treasurer, he had previously been employed at II
Progresso Lee is, or was, the president of AVI and
Louis Dab, who was in charge of advertising for Ii
Progresso is presently employed by AVI in a similar ca-
pacity
II JURISDICTION
Il Progresso admits that during the 12 months preced-
ing July 1, it derived gross revenues in excess of
$200,000, held membership in or subscribed to various
interstate and international news services and advertised
various nationally sold products I therefore find that it is
an employer engaged m commerce within the meaning
of Section 2(2), (6), and (7) of the Act Belleville Employ-
ing Printers, 122 NLRB 350 (1958)
III LABOR ORGANIZATION STATUS
There being no dispute, I find that the Guild and the
Typographical Union are each labor organizations within
the meaning of Section 2(5) of the Act
IV PINTO
Professor Pinto, who did not testify, 3 is a key element
in this matter, he was a consultant to both Ii Progresso
and Il Progresso II through USA, and spent approxi-
mately 30 percent of his time in the United States Re-
spondent alleges that he was consultant solely for editori-
al matters General Counsel alleges that Pinto played a
major part m II Progresso's labor relations policies and
The requests of counsel for Sedint, dated February 8 and 27, 1989,
that the January 19, 1989 letter from Jacobsen to Lupo' and the Decem-
ber 15 letter from Lupo' to Jacobsen be received Into evidence is granted
and said exhibits shall be numbered Respondent Sedmt I9a and 19b Coun-
sel for Sedmt's request, dated March 31, 1989, that the July 14 letter from
Attorney Conneely to Attorney Bluestein be received is denied
Apparently, the only service on Pinto occurred in November at a
meeting between the parties to attempt to resolve their many differences
Barry Lipton, president of the Guild was one of the union representatives
present Pinto, Lupo' (Pinto's Italian attorney), Dell Olio and others were
present on behalf of the different employers At the commencement of
this meeting, Lipton handed Pinto a copy of the consolidated amended
complaint because he "understood that he denied any knowledge that
any complaint had been Issued
even if he only spent 30 percent of his time in the United
States, he was on the telephone on almost a daily basis
with management representatives at the Emerson facility
Numerous witnesses testified about Pinto, Mantmeo,
editor of Ii Progresso, testified that Pinto initially came
to the facility in 1985 and identified himself as General
Consultant for SPA, he had his own office (the largest at
the facility) Pinto spoke to Mantmeo about increasing
the number of pages in the paper (which they did) cov-
ering more stories involving Italians (individuals or com-
panies), giving prizes to Italian Americans and other
ideas to promote the paper among its constituency He
participated in most of the editorial meetings when he
was present and discussed which reporters to assign to
particular stories as well as discussing the work being
performed by the reporters He occasionally wrote edito-
rials for the paper or designated articles that would
appear in the paper In addition, Pinto spoke at meetings
attended by all of Il Progresso's employees, but Man-
tmeo never heard him discussing labor relations at those
meetings On other occasions, he heard Pinto comment
that the employees' salaries were too high and he expect-
ed lower salaries and greater productivity in the next
contract He did not see Pinto at the Emerson facility
from January through June, but he continued to have
regular phone conversationg with Taormma during this
period
Riccardo Chioni, who was employed by Ii Progresso
as a reporter, testified that Pinto told him that he was
the owner of the newspaper and gave him some assign-
ments when he was present at the facility Antonio
Volpe-Pasim, who was employed by Ii Progresso as a re-
porter, testified that Pinto gave him some special assign-
ments, such as interviewing foreign dignitaries and told
him what questions to ask On some of these occasions,
Pinto accompanied him on the interview On occasion,
Pinto changed his articles Pas= testified "For me, he
was my boss" Martino Rizzotti, a Guild chairman and
reporter for II Progresso since 1981, testified that in
about late December 1987, Pinto had a meeting with
"everybody" at which he said that the company that
handled their advertising had stolen their money and so
they had a cash-flow problem He asked the employees
to agree to a 5-percent reduction in salary or to waive
the overtime premium rate Rizzotti told him that he
would have to discuss such topics with Guild officials
On January 7, Pinto asked Rizzotti, Massimo Jaus, as-
signment editor, and Joseph Pantano, who was employed
by Il Progresso and was president of the Typographical
Union, to attend a private meeting with him At this
meeting, Pinto again asked them if they would relinquish
5 percent of their pay or agree to waive premiums for
overtime work They answered that they would not, that
he should discuss that with the union representatives
Jaus testified that Pinto gave him job assignments, Jaus
felt uncomfortable with these assignments because Man-
tmeo was the editor and Pinto was giving him assign-
ments On occasion, Jaus explained this difficulty to
Pinto and asked Pinto to first discuss it with Mantmeo,
Pinto said "Listen, I am the owner of this company, so I
do whatever I want If Mantmeo doesn't like it, it's too
IL PROGRESSO ITALO AMERICAN° PUBLISHING CO 277
bad for him" Silvio Zucca, production manager and
general foreman for Ii Progresso, testified that Guido
Gaghano, who was vice president and general manager
of Ii Progresso, introduced him to Pinto as "Come with
me, I'm going to introduce you to the new boss" Leo-
poldo DeRosa, whoge last position at II Progresso was
assistant general manager, testified that Gagliano first in-
troduced Pinto to him as "the one that will be running
the company" Subsequently, he heard Pinto introduced
as the consultant general and the publisher Pinto direct-
ed DeRosa in hiring employees and played a major part
in the paper's labor relations with the umons He in-
formed DeRosa and others that he wanted givebacks
from the unions, he expressed his strategy as "attack,
attack, attack" He wanted givebacks on maternity leave,
wages, vacation, and health benefits In about mid-1986,
the paper's health insurance policy was cancelled for
nonpayment, Pinto commented "Don't worry about it
Maybe they'll walk off the job and shut down" Begin-
ning in 1986, Pinto discussed the possibility of closing
the paper in New Jersey and reopening operations in
Long Island City and New York City, and DeRosa vis-
ited different locations in that areas on behalf of II
Progresso and reported the results of the visits to Pinto
Scaglione testified that he first met Pinto about a year
before SPA purchased Il Progresso At that time, Pinto
asked him (then the president of II Progresso) whether
the paper was for sale Subsequent to the sale, he was in-
formed that Pinto was an advisor, representative or dele-
gate of SPA At a shareholders' meeting of Ii Progresgo
held in February 1987, Pinto was present with the proxy
of SPA
Pmeyro testified that Pinto was general consultant to
Ii Progresso Pinto advised on editorial policy, for exam-
ple what position the paper should take on a certain
issue, and the layout of the paper, but not financial as-
pects of the newspaper If he and Pinto disagreed on an
issue, Pmeyro made the final decision Pinto never at-
tended or played a role in collective-bargaining negotia-
tions and never consulted with him on the subject Pm-
eyro, who appeared very cooperative and forthright on
direct examination, was argumentative and, often, unre-
sponsive when questioned by General Counsel General
Counsel referred to Pinto as the main contact between
SPA and Ii Progresso, Pmeyro disagreed General Coun-
sel then asked
Q My question is, who from S P A Sedmt
S P A, had responsibility to oversee the operations
at Ii Progresso? I asked if you could name a person
from Sedmt S P A who was in charge of looking
after II Progresso?
A I'm sorry, that question you should ask of
someone else
As Pmeyro was the top person running the everyday
affairs at the paper, I interpret that answer as a refusal,
rather than inability, to answer In answer to a subse-
quent question on the same subject, Pmeyro testified
"Evidently you are not aware of what my position was
"Finally, Pmeyro testified that he mentioned some
financial matters to Pinto and that Pinto would ask him,
"in general," how the situation was Pinto attended man-
agement meetings, but never gave directions on the edi-
torial policy of the paper He testified "He never gave
direct instructions to nobody All of his instructions were
given through me" Pinto expressed to Pmeyro his dis-
pleasure about the poor quality of the newspaper and the
high absenteeism of the employees He testified that he
doesn't know of SPA's financial arrangements with
Pinto, but he does know that Pinto was paid no salary
by II Progresso, rather the paper paid for his expenses
while in the United States In this regard, they paid his
bills for an apartment and a leased Mercedes Benz,
which were used almost exclusively for him In 1988, the
monthly rent Ii Progresso paid for Pinto's apartment was
$3500, the monthly leasing charge for the automobile
was $1023
By letter dated July 31, 1986, Gagliano wrote to
Lupo', inter alia
Since there is no direct link between Prof Pinto
and Ii Progresso, I would find it very hard, in light
of our financial predicament, to justify to an exam-
ining party, the expenditure of well over $50 thou-
sand in goods and services supplied to Prof Pinto
during the last seven months As far as any auditor
would be concerned, apartments and automobiles
and Amex card charges would amount to personal
income At the moment, I could be held personally
responsible for un-paid income tax
If the present system of management is to contin-
ue, where Prof Pinto is giving company directives
and is implementing decisions that have a financial
effect on II Progresso, he will have to be appointed
by the board to a role that officially assumes re-
sponsibility for the company If Prof Pinto returns
in such a capacity, and I receive official notification
from you that such will be the case, the above
problems are somewhat alleviated
V THE CLOSING AND OTHER ALLEGATIONS
The last collective-bargaining agreements between II
Progresso and the Guild and the Typographical Union
expired December 31, 1986, subsequent intermittent ne-
gotiations were unsuccessful at arriving at new agree-
ments It is undisputed that II Progresso has made no
pension contribution to the Guild (as it is contractually
obligated to do) since it made a payment to the Guild in
May for the month of September 1987 No payments
were therefore made for any portion of the period Octo-
ber 1, 1987, through June 20 The parties stipulated that
II Progresso made no payments to the Typographical
Union's funds (as it was obligated to do) from August
1987 through June 20 The parties also stipulated that II
Progresso failed to remit union dues to the Guild for the
period September 25, 1987, through June 20 although
said dues were deducted from active Guild employee-
members
As stated, supra, the last collective-bargaining agree-
ment between II Progresso and the Guild and II
Progresso and the Typographical Union expired on De-
cember 31, 1986, although II Progresso continued to
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
abide by most of the provisions of these agreements,
except for its refusal to remit dues or pay to the union
funds as discussed, supra On November 18, 1987, the
Guild employees of II Progresso had a meeting where
they discussed the fact that they had gone almost a year
without a new contract and other problems they were
encountenng At this meeting, the members voted unani-
mously to authonze a stnke against the paper
Amaha Javorsky was in charge of Ii Progresso's ac-
counting department from about April through Novem-
ber 1987 Dunng this period, Pmeyro repeatedly asked
her to resign from the Guild, but she refused She was
one of the employees who voted on November 18, 1987,
to authorize a strike against the paper 4 A few days later,
Pmeyro called her into his office and told her that she
would be transferred to the advertising department and
Mananna Pisan() would take over her position 5 She was
asked by General Counsel whether Pmeyro gave her a
reason for the change and she answered, "no" When
General Counsel asked
Q In fact, he told you that he was doing it be-
cause you voted to strike, didn't he'?
A No I asked him, because I vote for the strike,
and he told me, "No, I need somebody else in the
accounting department"
Q Mr Pmeyro informed you that due to your
actions at the union meeting he was removing you
from the accounting department and transfernng
you to advertising Didn't he tell you that?
A No, I asked him and he said, "Not for your
action Because I need somebody else" But believe
at that time it was for my action because I vote for
the union, yes
Javorsky was then shown a letter she wrote to the
Guild on February 24, in the letter she states
A few days after the meeting, Mr Pmeyro called
me into his office and informed me that due to my
actions at the union meeting, he was removing me
from the accounting department and transferring me
to the advertising department
Javorsky testified that Pmeyro never specifically said
that the change was due to her actions at the union
meeting, but she "presumed" that was the reason, be-
cause when she asked whether it was because of her vote
at the union meeting, Pineyro simply shrugged his shoul-
ders
The next allegation, chronologically, is that Ii
Progresso and the Guild reached full agreement on a
new contract at a meeting held on February 2, but Ii
Progresso subsequently reneged on the agreement About
15 negotiating sessions, beginning in early 1987, preceded
this meeting Attorney John Canom, labor counsel for Ii
Progresso since about 1981, was its pnncipal spokesman
4 Javorsky, who has been employed by II Progesso II as a bookkepper,
was subpoenaed by General Counsel and was a somewhat uncooperative
witness
5 In January, Pmeyro told her that she would be returned to her pnor
position because Pisano couldn't handle It
in these negotiations, also present for the paper at this
meeting were Dabo and Pineyro Present for the Guild
was Bill Montes (who did not testify), business agent for
the Guild, together with employees Rizzotti and Jaus
There were approximately six open issues at the begin-
ning of this session, admittedly, agreement was reached
on, at least, all but one of these issues The only issue in
controversy was wages the General Counsel alleges that
there was agreement on that issue, as well, at this meet-
ing, and therefore full agreement was reached Pmeyro
(and Ii Progresso) allege that there was a misunderstand-
ing about the terms, and therefore no agreement was
reached Sometime during this meeting, Pmeyro and
Montes met separately from the rest of the participants
After they returned, Canom proposed a 6-percent in-
crease with only 3 percent of that retroactive to January
1, 1987, then a 5-percent increase on January 1, 1988,
and another 5-percent increase January 1, 1989 Canom
said that this proposal "compounded to 16 87 percent
over the term of the contract and that I thought my
client was giving far more money than he should but, the
union, if they were wise, should accept the proposal "6
He testified, as well, that "at the end the union really
didn't dispute the wage issue After I made the proposal,
we concentrated on the other items" As to whether the
Guild accepted his wage offer, he testified "They did
not indicate disagreement" and, at the conclusion of the
meeting, Montes, Jaus, and Rizzotti shook hands with
Canom, Pmeyro and Dabo and said that they were happy
that it was over Canom testified "I shook hands because
it seemed to me that the negotiations had been initially
concluded" He also testified "I had made an offer on
behalf of the Company and at the end of the day the
offer as revised had been accepted by the union" On the
following day, Canom received a phone call from the
mediator who told him that Pmeyro had called him and
said that there was a serious misunderstanding He had
never agreed to 16 87 percent, the paper only meant to
offer 13 percent He said at subsequent meetings and dis-
cussions with the Guild regarding this situation "Mr
Montes' position was that he was willing to sit down and
discuss further the difference between the 13 percent that
the company said was the wage offer, and the 6, 5 and 5
that the union was saying was the wage offer" Howev-
er, Montes "did say that it was Mr Lipton's (Barry
Lipton, President of the Guild) position that there was
an agreement on wages and there was nothing more to
discuss with respect to that issue" He testified "Mr
Lipton was consistent throughout, he never vaned from
that position
Pmeyro was questioned about this meeting by counsel
for Ii Progresso He testified that Montes told him that
unless they agreed upon a contract he would "be literal-
ly fired from my job " On cross-examination, he
testified "Not exactly fired he was going to be
taken out of the negotiations" At their pnvate meeting
on February 2, Montes asked him for 15 percent over 3
years-5 percent, 5 percent, and 5 percent Montes told
Pmeyro "You know where I'm going to be sent after
6 He testified that he had previously discussed this offer with Pmegro
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 279
this meeting if I don't get something" Pmeyro said "I
said, okay The only thing we can do is 3% for the year
that went by, 5% and 5% That would make a gross
13 percent increase" Montes said that he wanted 15 per-
cent—"to save his neck" Pmeyro said that he couldn't
do that Montes then proposed that they receive 6 per-
cent, 5 percent and 5 percent, but "instead of 6%, it's
going to be three because we're going to take only half
of the year" Pmeyro testified that he misunderstood
Montes believing that "it was 3%, 5% and 5% It was
like that So, when I left the room, said we had a deal
between Mr Montes and myself, not with the union, by
my understanding was 3, 5 and 5" he told Canom of
their agreement and Canon' told him that something was
wrong Pmeyro told him that he didn't want to hear
about it and Canom made the 6 percent, 5 percent, and 5
percent offer with only 3 percent retroactive, to the
Union At the conclusion of the meeting, the parties
shook hands While driving back to his office at the con-
clusion of the meeting, he told Dabo "Something's
wrong around here Something doesn't sound good"
When he arnved at his office, he called Montes and told
him that he made a mistake, he then called the mediator
and told him the same thing
Mantmeo testified that on the evening of February 2,
after Pmeyro returned to the facility, he met with Man-
tmeo, Taormina, Pisano, and others At this meeting Pm-
eyro told them that it was a very expensive agreement,
but because of it, labor difficulties would disappear and
working relations would improve
In March, a further negotiating meeting took place be-
tween Il Progresso and the Typographical Union
Present on behalf of Il Progresso were Canom and Pm-
eyro, for the Typographical Union were Andrew Hoff-
man, its attorney, George McDonald, president of New
York Mailers' Union, No 6, Pantano and other Ii
Progresso employees As II Progresso was talking of pos-
sibly closing, Hoffman asked about security for the possi-
ble severance pay and unpaid fund and pension pay-
ments Pineyro said that his client "had no reason for
any concern," that he was a man of his honor, and ev-
erything would be paid Hoffman then asked Pmeyro
who owned Ii Progresso, and he said that 95 percent
was owned by SPA, Hoffman then asked Pmeyro who
owned SPA and Pmeyro said that Pinto owned it Hoff-
man then asked him who was guaranteeing the severance
pay and Pmeyro said that SPA would guarantee the pay-
ments Hoffman asked him if he was authorized to speak
for SPA and Pmeyro said that he was Hoffman asked
him numerous times if he had spoken to Pinto about it
and each time he answered that he had McDonald testi-
fied that at this meeting, in answer to Hoffman's ques-
tions, Pmeyro said that 95 percent of Il Progresso was
owned by SPA who would stand behind making the
payments, and that he had spoken to Pinto about it and
Pinto was a man of his word and said that all payments
would be made Pantano testified that at a meeting in
either February or March, when Hoffman questioned
Pmeyro about the ownership of II Progresso, Pmeyro
said that it was owned by SPA, one of whose sharehold-
ers was Pinto The sole testimony by Pmeyro regarding
this conversation was that in answer to Hoffman's ques-
tions he told him that 95 percent of , 'the stock of II
Progresso was owned by SPA s
By late 1987 labor relations at the paper had become
less than harmonious In December 1987, a number of
the Guild members prepared a leaflet to be distributed at
a dinner held at the Waldorf Astoria in mid-December
by II Progresso for the Italian Prime Minister and promi-
nent Italian-Americans in the area The leaflet referred to
their being without a contract, and that the subsidy the
government gave to Ii Progresso was misdirected and
should be frozen until they agreed upon a new contract
It referred to intimidations and violations of civil rules,
stated that they had to go to the Labor Board and re-
quested a meeting with the prime minister Reporters
Riccardo Chiom, Tony DeSantore, Martino Rizzotti, and
Marzio Mian distributed these leaflets that evening at the
Waldorf Astoria Chioni handed a leaflet to the Italian
Ambassador that evening, Pmeyro observed him for a
while without saying anything In addition, he observed
Mian giving a leaflet to Pinto In all, about 100 leaflets
were distributed over a 2-hour period Pas= gave a leaf-
let to the Prime Minister's press secretary that evening
and arranged to meet with him the following morning
together with Mian and Rizzotti Rizzotti testified that
Pinto, as well, was handed a leaflet that evening On
about January 12, Il Progresso laid off reporters Chioni,
Mian, Pasim, and Vito Taormina (son of Salvatore Taor-
mina), General Counsel alleges that the layoffs were mo-
tivated by the leaflettmg a month earlier at the Waldorf
Astoria Ii Progresso defends that these layoffs were by
seniority and were therefore lawful (At the time, Chioni
and Mian had more seniority than Pasmi and Vito Taor-
mina) Chioni testified that a few days after the leaflet-
tmg, Taormina (his editor) told him to remain seated at
his desk while others covered his assignments On Janu-
ary 12 he was sent to Pmeyro's office and given a letter
informing him of his layoff In addition, Pmeyro told
him "From now on, I don't want to see you anymore in
this place" Rizzotti testified that after the four were laid
off he had numerous discussions with Pmeyro in an at-
tempt to get them reinstated Pmeyro repeatedly told
him that he didn't care about Vito Taormina and Pawn',
"but he didn't want to see the other two guys around
particularly Riccardo Chioni, because he really
hates him" Rizzotti told Pmeyro that it was clearly re-
taliation, Pmeyro said that he didn't want Cluom around
Pmeyro referred to the leaflettmg as "disgusting" and
said "After what they did, I don't want them back"
When Rizzotti continued his efforts to settle the matter,
Pmeyro said that he would do it if he could avoid
having Chiom, and to a lesser extent, Mian, return Jaus
testified that prior to the layoffs, overtime work among
the editorial staff was minimal, after the layoffs, overtime
among the staff averaged 20 hours a week Rizzotti testi-
fied that after the layoffs, he was repeatedly asked to
work overtime In addition, after the layoffs, the paper
could not produce 24 pages on a regular basis Mantmeo
testified that after the layoff of the 4 reporters, only 11
journalists (including himself and Taormina) remained,
necessitating an average of 1 day a week of overtime
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work for each journalist Under the Guild contract, the
journalists are paid time and a half for overtime
Pineyro testified that on January 7, he determined that
economic conditions necessitated that four journalists
had to be laid off "I went to the contract with the
Guild, those were Guild employees and I did as per the
contract said" [layoff by seniority] That was how he
chose Chioni, Mian, Vito Taormina, and Pasuu (in order
of most to least senior) On that day, he wrote to Montes
about this decision "He agreed with me, 1,000% And I
got the union's blessing through Mr Montes " The
choice of individuals was based solely on seniority, it
had nothing to do with atumus due to their union activi-
ty or with the distnbation of the leaflets at the Waldorf
Astoria, although, he testified, it showed "a disgusting
attitude" on their part and hurt Il Progresso's chances of
continuing the contract with SPA to publish the paper
He never told anyone that he would rehire Vito Taor-
mina and Pasim if he didn't have to take back Chiom and
Mian
A number of employees testified to statements Pmeyro
and Pinto made to them regarding closing and later re-
opening the paper at a different location Mantmeo testi-
fied that on six or seven occasions between January and
May, Pmeyro told him that the Union was going too far
and it could be "deadly" for them That they could shut
down the paper and move some place else He also told
Mantmeo "Pretty soon things will change" He also told
Mantmeo that "the paper would close but that does
not mean the paper will die" Enzo DeBlasio, who was
employed by Ii Progresso in the advertising department,
testified that in about March, Pineyro told him that
unless the union lowered its demands, "there was a
strong possibility that Ii Progresso would close" There
was no mention of the paper reopening at another loca-
tion Pmeyro testified that he never had such a conversa-
tion with Mantmeo where he discussed the papers diffi-
cult financial condition and what he considered to be the
Guild's excessive demands He told him that unless the
paper's operation improved, their contract to publish the
paper would be terminated He never told Mantmeo that
the paper would move to a different location "we never
had senously the idea of moving" In addition, he was
never aware of any plan to close the paper in New
Jersey and to reopen in Long Island City with new em-
ployees
DeRosa, assistant general manager at Il Progresso until
1987, testified that on a number of occasions when some-
body mentioned the Unions, Pinto answered "To hell
with them If they stop working, we'll close down" Be-
ginning in 1986, Pinto spoke to him about moving the
editorial department of the paper to Long Island City
Pineyro testified that beginning in late 1987, SPA was
threatening to terminate its agreement with Il Progresso
to publish the paper, 7 but through numerous telephone
calls and vigits to Italy and discussions with Pinto and
Lupo', he was able to convince them to delay their deci-
sion During this period, he also Informed the unions of
7 Pmeyro's testimony of the relationship between SPA and II
Progresso "SPA was the publisher of the paper We were the Company
that made up the production of the paper"
the serious situation facing the newspaper and that unless
they agreed to moderate their demands and obtain coop-
eration from their members, the paper could close In
fact, on a few occasions, SPA had decided to end the
contract and close the paper, but Pineyro convinced
them (until June 29) to delay that decision On one of
these occasions when Pineyro believed that the contract
was to be cancelled, Canon' wrote the following letter,
dated March 14, to the Guild
We are writing on behalf of II Progresso to
notify the Guild as follows
(1) this letter is to terminate the collective bar-
gaining agreement between the Guild and Il
Progresso entered into on August 8, 1985 for a term
from January 1, 1985 through December 31, 1986 to
the extent the terms and conditions of said Agree-
ment have remained in effect after December 31,
1986 until this notice of termination,
(2) this letter is also to advise that Ii Progesso is
planning to close its operations effective April 1,
1988 We would like to meet with representatives
from the Guild to discuss this matter fully includ-
ing, without limitation, the effects of this closing on
the employees represented by the Guild Please
contact the undersigned to arrange for a meeting at
your earliest convenience
The notice and offer to meet stated in the second
numbered paragraph above was also delivered
orally to Guild Local Representative Bill Montes at
a meeting at our office this morning
Between November 1987 and June, the Guild held nu-
merous meetings with its members to keep them in-
formed of the situation at II Progresso The employees
struck on June 20 and Ii Progresso never published again
from New Jersey Rizzotti and Jaus testified that the em-
ployees voted to strike for numerous reasons the fact
that no new agreement had been reached for 18 months,
that after an agreement was reached on February 2, the
paper reneged on the agreement, and the fact that the
paper had not made the required pension and fund pay-
ments, nor had it remitted to the Guild the dues deduct-
ed from the employees' pay Another factor was the Jan-
uary layoff of the four employees Joseph Pantano, an
employee of Il Progresso and president of the Typo-
graphical Union, testified that his members also author-
ized a strike in 1987 His union followed the Guild on
strike because of the lack of a contract over 18 months,
the failure of the paper to pay the required pension funds
to the Union since about mid-1987 and bounced checks
to the employees •
By letter dated June 29, new counsel for II Progresso
wrote to the Unions
We have been retained by II Progresso Publish-
ing Company, Inc , to represent the Corporation
As you were previously advised, the contract to
produce "Ii Progresso Italo-Amencano," between Il
Progresso Publishing Co, Inc and Sedmt S P A
expired December 31, 1987 The contract was
thereafter extended several times, but the quality of
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 281
the newspaper has not improved Sedmt S P A has
decided not to extend its contract with Il Progresso
Publishing Co, Inc beyond June 30, 1988
Consequently, as of that date II Progresso Pub-
lishing Co, Inc will cease publication of "II
Progresso Italo-Amencano," and all personnel are
free to make other arrangements for employment
As you are also aware, the stock of II Progresso
Publishing Co, Inc was sold at the end of 1987 to
new owners The Corporation intends to remain in
business performing non-publishing activities
I am available at your convenience to discuss the
effect of this development on your umon members
Please contact me to arrange for a meeting
On the following day, II Progresso formally notified
each of its union employees that it would not publish Il
Progresso after that date and that the employees were
free to make other arrangements
Subsequently, the Guild sent the following letter,
dated July 6, to new counsel for II Progresso, which
forms the basis of the allegation that Il Progresso violat-
ed Section 8(a)(5) of the Act by failing to provide the
Guild with requested information which was relevant to
its position as representative of the employees
Following up on our meeting of yesterday after-
noon in connection with the above matter, please
send me copies of the following documents immedi-
ately
1 All documents evidencing ownership of the
shares of Copyright International Trading Organiza-
tion Limited (Copyright International)
2 All documents relating to the sale to Copy-
right International of the shares of Ii Progresso
Publishing Co, Inc ("II Progresso")
3 The contract between Sedmt S P A (Sedmt)
and Il Progresso for the production by Il Progresso
of II Progresso-Italo Amencano
4 All communications relating to the cancellation
by Sedmt of the contract between Sedmt and Ii
Progresso for the production of Ii Progresso Italo-
Amencano
5 A list of all the assets and liabilities of Ii
Progresso
By letter dated July 25, to counsel for the Guild,
counsel for II Progresso stated, inter aim
your broad document request appears to be a
discovery request related to the pending litigation
Negotiations are further hindered by your contin-
ued refusal to provide II Progresso with the infor-
mation it previously requested about the present
value of accrued vested pension benefits and with-
drawal liability and your outright refusal to agree to
any confidentiality safeguards We reiterate our
offer to provide you with financial information and
other relevant information provided that you agree
to our legitimate request for confidentiality safe-
guards
Counsel for the Guild responded by letter dated
August 4 as follows, inter aim
2 So far as the documents I have requested are
concerned, your refusal to provide them frustrates
negotiations over the outstanding issues between the
parties and violates the National Labor Relations
Act Given the various representations you have
made, it is impossible for the Guild to negotiate
with you without the document which would sup-
port or disprove those representations Every docu-
ment which I have requested has been requested in
response to a matenal representation made by you
as to the ownership of Il Progresso, the alleged loss
of the contract to publish Ii Progresso Italo-Amen-
cano, or some other fact material to the negotia-
tions
5 Finally, since your view of confidentiality ap-
pears to require the Guild to abandon its efforts to
enforce its contractual and legal rights at the Board,
or in any other forum it may choose, the Guild
cannot agree to this illegal precondition to the re-
ceipt of information which you are mandated by
law to provide
Please provide me with the mformation requested
immediately
In addition to the alleged threats to close the New
Jersey facility and reopen elsewhere, some of General
Counsel's witnesses testified to being offered or given
jobs at Ii Progresso II after being employed at II
Progresso in New Jersey DeBlasio testified that on
about July 10, he received a call from Dabo (advertising
manager8 of Ii Progresso, and his supervisor since about
1985) asking to meet with him When they met, Dabo
told him that Pinto said that he was willing to hire DeB-
lasio on a straight commission basis, no salary and no
union, it was for Ii Progresso in Long Island City DeB-
lasio said that he would not accept such an arrangement
and Dabo said that he wasn't surprised, but he felt that
he should tell him anyway He told DeBlasio not to
mention the conversation to anybody Dabo (a witness
called by General Counsel) testified that at the meeting
he never transmitted a job offer from Pinto to DeBlasio,
when DeBlasio asked hun what was new at the paper, he
said nothing was new, but he understood that the paper
would resume publication, but with a different company
Tina Sasso, who was employed by Il Progresso as a
receptionist and, later, in the circulation department, tes-
tified that in about January 1987, Pmeyro told her "that
he had intentions of possibly publishing in Long Island
City If that should happen, would I be interested in
going there in the circulation department?" About 3
months prior to the stnke, Pmeyro said the same thing
and asked her if she would go there, she said that she
would think about it, but she didn't think so On about
8 DeBlasio testified that Dab directed the work of the employees in
the department "He took charge of us and his duties were those of
supervising our operation, making sure that we would do the proper
thing " Dab was present at the negotiations, on behalf of II
Progresso, at the final three or four sessions, although he did not say any-
thing
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
June 29, Pmeyro's secretary, Rita Scaravalli, called Sasso
and said that Pineyro would like to meet her at his
house, at the time, he was recuperating from surgery A
day or two later she met him at his house At that time,
Pmeyro said that they would be reopening the paper in
Long Island City in about 15 days and would she be in-
terested in working there with him He said that she
would keep her seniority, sick days and vacation days,
and her salary would be increased, but he did not say by
how much She said that she would have to think about
it some more She asked him if he had spoken to other
employees and he said that he hadn't, but intended to do
so Later, Sasso told Pmeyro that she wasn't interested,
and did not return to work for Ii Progresso II
Guista Licausi who was employed by II Progresso as
assistant foreman in the composing room from about
1980 until the closing, testified that on about July 1,
Scaravalli called her and said that Pmeyro would like to
speak to her and her husband (also employed at the
paper) at his home That afternoon they met with Pin-
eyro at his home Pmeyro told them that they were
moving to Long Island City and he asked them if they
wanted to go back to work with Ii Progresso Licausi
asked Pmeyro what his intentions were with the other
people who were fired, he said that they intended to pay
everybody Licausi said that she and her husband would
think about it and call the next day The next day she
called Pmeyro (she speaks better English than her hus-
band) and asked if they would receive the same benefits
as before At first, he answered no, but he called back
later that day and told Licausi that they would be given
contracts with the same benefits they previously enjoyed
Licausi told Pmeyro that they would consider it, she
then called Pantano who told her that the paper had no
intention of settling with the unions After that, she
called Pmeyro and told him that they could not accept
the job Gramlla Bivona began her employ with Ii
Progresso in August 1987 as a receptionist She testified
that in about January, Pmeyro called her into his office
and said that in the future II Progresso was going to
move to Long Island City and he offered her a job there
as editorial coordinator He said that it was a manage-
ment position so she would have to resign from the
Guild She said that she would think about it That was
the last time she discussed the job with Pmeyro
Silvio Zucca was employed by Ii Progresso as produc-
tion manager, he testified that in May, he told Pmeyro
that he was over 65 and wanted to retire Pmeyro asked
him why and Zucca said that he was tired of the travel-
ing and the aggravation Pmeyro told him to postpone
his retirement "because I'm going to need you" In July,
Pmeyro called him and asked him if he would return to
work for II Progresso Zucca said he would, the only
reason he did so, was that he felt that it could assist the
unions in locating II Progresso II Pmeyro told Zucca
that there would be no union and he would assist to
format and program the computers Zucca simply report-
ed the address to the union and Mantmeo and never re-
ported to work there
Javorsky testified that when the strike began, she
joined the strike Sometime in July, she received permis-
sion from the Unions to report to work for some book-
keeping work regarding vacation pay and severance pay
At about that time, she spoke to Pmeyro, who told her
that "Sedint" was looking for a bookkeeper and if she
was interested, she should go to Interfore, an employ-
ment agency and fill out an application, "he told me it's
a new company and you have to fill out an application
like everybody else" Pmeyro told her that he would be
president of the company She filled out the application
with Interfore and shortly thereafter she was told that
the bookkeeper position was hers, if she wanted it She
did
Pineyro testified that pnor to June 30, he never of-
fered anybody a job with Il Progresso II and, at any
time, never offered anybody a contract for services with
that company More particularly, he never offered jobs
to DeBlasio or Sasso As to Sasso, he testified that at
about the beginning of July, she came to his house and
"seemed concerned about losing her job And so I prom-
ised her to mention her name, even recommend her to
the people that was hiring employees at Sedmt Yes, that
I did" He testified that he did call Zucca
I called him And being that he had resigned9 from
the Company a couple of months before, so he had
nothing with any claim or any union or him
personally He was in retirement, so I understood
and absolutely free to work for anybody if he de-
cided to do so And we might have been able to use
someone with his background He said that he ac-
cepted [as a consultant] but he never showed up
Pmeyro testified further that "our lawyers" made the
arrangements with Interfore," "an employment agency,
a consultant company"—for hiring employees for USA
The issue of employment for Javorsky with USA arose
when
She came over to visit me at my house I men-
tioned that these people were hiring and if she
decided to do something on that direction, and if I
had a chance to, I would be more than happy to re-
comend her for the job
However, on cross-examination, Pmeyro testified that
while Interfore did the interviewing, he made the final
decision on who would be hired Pmeyro's son Martin,
circulation manager, Francisco DeLuca, sales promotion
manager, and Enzo Scaravalli, distribution manager,
each began with USA after II Progresso ceased publish-
ing Pmeyro testified that he told Interfore to contact
9 Zucca testified that he was production manager at the paper until It
closed, on July 5, when he received the call from Pmeyro 'I was apply-
ing for retirement" By letter dated June 17, Zucca told Pmeyro that, as
per their prior discussion, he would resign and retire on July I Pmeyro's
testimony as to when Zucca's retirement was to begin is unclear, at one
point he testified that Zucca resigned while he was still vice president of
II Progresso, two questions still vice president
10 At another point, he was asked
Q And who told you that this consultant agency would be em-
ployed for this purpose—or did you make that decision'
A Yes Nobody told me I made that decision alone with the gen-
eral consultant Sedmt, USA, with Mr Pinto
Q So the two of you made the decision'
A I made a decision
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 283
them and if they were interested in working for USA, to
interview them
In early to mid-July, furniture, computers, and ar-
chives were moved from the Emerson, New Jersey facil-
ity to the new facility rented by the paper in Long
Island City Pmeyro testified that he knew he could take
these items because they belonged to SPA which was
now a 100-percent owner of the stock of USA Pmeyro
was asked
Q Who informed you you could use it
A Professor Lupo'
Q When did he inform you of that?
A That that belonged to Sedmt, S P A and I
could use whatever I need
Q My question was, when did Mr Lupoi tell
you that?
A I don't recall
Q Well, when did you have—
A Before I made the move sometime in July
A few moments later Pineyro was asked
Q Now, are you sure it was Mr Lupo' who you
talked to about moving the furniture out of Emer-
son?
A I didn't talk to Lupo' about moving the furni-
ture
Q Who did you talk to about moving the furni-
ture?
A I said before, to nobody
After these items were shipped to the new Long Island
City facility, and other items were put in storage, the
Emerson facility was empty
Francesco DeLuca, who had been employed by Il
Progresso as a photographer until it closed, and was sub-
sequently employed at AMM as an administrator, testi-
fied that in early July, Martin Pmeyro (Pineyro's son)
asked him if he would help them move the furniture and
equipment from New Jersey to Long Island City After
they physically moved the equipment and furniture,
Taormina, the original editor at AMM, asked him to stay
and assist him to setting up the operation
Pmeyro testified that he chose Long Island City as the
new location for II Progresso II to be close to the pnnter
of the paper—Stellar Printing He located the space and
negotiated with the landlord for the space He discussed
some aspects of the new operation with Pinto The initial
issue of Ii Progresso II appeared on July 27, it included
an article extremely critical of the unions and employees
of its past operation The masthead of Ii Progresso had
changed very little from October 1987, until the final
issue on June 20, for the initial issue of Ii Progresso H
there were substantial changes Instead of "published by
II Progresso Italo Amencano Publishing Co, Inc for
Sedmt SPA," it stated that SPA was the editor, Guin-
mantono Rom was still the "Direttore Responsabile " Co-
ordinating the editorial and distnbution work was USA,
whose president was Pmeyro Stellar Printing was listed
as the printer (it had been the printer at the conclusion
of the operation in New Jersey, but was not listed on the
masthead) and AVI, whose president was listed as John
Lee, was in charge of advertising
It is next alleged that in the operation of Ii Progresso
II, subsequent to July, USA and AMM are alter egos of
the prior operation of Il Progresso and SPA Respond-
ents defend that in the operation of Ii Progresso II,
USA'S sole function was to coordinate all the activities
Stellar for the printing, AMM for the editorial and cre-
ative functions of the paper, and AVI for advertising 11
Pmeyro testified that the first time he heard of USA
was on June 12 in a phone call from Lupo' who told him
that he (Pmeyro) would be the president of USA and
that its purpose was to coordinate the production of the
paper He was also informed that Maria Pinto was the
original president of USA He originally testified that
this phone call from Lupoi was the first he knew of
USA, subsequently, he testified that Lupoi did not tell
him of the creation of USA in this call 12 He testified
that Lupoi did not give him a specific date when he
would be president of USA or that USA would begin
producing the paper, he said that it depended upon
when, and if, SPA cancelled the existing agreement with
Ii Progresso During this conversation, Lupo' did not tell
Pmeyro what his compensation would be as president of
USA, nor did Pmeyro ask In about July, he met with
Pinto who told him that Ii Progressgo II would be pub-
lished through contracting firms, Pmeyro would be the
president of USA" which would be a liaison between
SPA and the subcontracting companies Pinto said that
AMM (whom Pineyro had never previously heard of)
would be doing the editorial work, AVI for advertising,
Stellar for printing, and USA for distribution Pinto told
him that the operation would be located as Long Island
City, where Stellar was located, and instructed him to
find space there for USA Stellar located temporary
space for USA next door to their facility and they
moved there in July
By letter dated May 30 from "Maria Teresa Mercurio"
(as "Sole Administrator") to USA ao Eaton & Van
Winkle, Ms Pinto wrote, inter slut
Subject Coordination of production operations of "Ii-
Progresso Italo-Americano"
Gentlemen
This is to confirm to you that by the end of June
we expect to have in operation the new structure
for the production of the daily, "Ii Progresso Italo-
Amencano," for which you will be handling the
technical and financial coordmation in addition to
" In his brief, General Counsel alleged AVI as an alter ego for the
first time Unlike AMM, which was added to the complaint as an alter
ego by amendment of General Counsel, no such amendment was made
for AVI No such finding will therefore be made as to AVI BMD Sports-
wear Corp, 283 NLRB 142 (1987), cited by General Counsel in his brief
in this regard, is inapposite
12 Also confusing and unclear is Pmeyro's testimony of who told him
this (Lupo' or Pinto) and when he first heard It (June or July)
13 A Consent of Sole Stockholder in Lieu of Annual Meeting of USA
dated in 1988 (no month) list "Marla Teresa Mercurio" as sole director
Other formal documents of USA list Dell'Olio as secretary, effective in
March and Pmeyro as president and Rita Scaravalli, assistant secretary,
effective July 1
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the operations as distributor, as governed by a sepa-
rate contract
For clarity's sake, the new structure is based on
the following points
(1) We, as publishers of the newspaper contract
directly with all the suppliers of goods and services,
such as, for example, with the printer, the paper
suppliers, the press agencies, the advertising agen-
cies, the journalists, etc
The letter continued that USA would provide its own
facilities, means and staff, would commence services on
June 1 and would receive monthly compensation in the
amount of $92,000 By letter dated July 15, Maria Teresa
Mercurio, again as sole administrator, wrote to USA c/o
Eaton & Van Winkle
Gentlemen
In accordance with the agreements reached, we
hereby confirm the assignment to distribute the
newspaper we publish, "Il Progresso Italo-Amen-
cano "
The relationship shall be governed by the follow-
ing
GENERAL CONDITIONS
1 It is understood that the assignment you are
undertaking is on an ABSOLUTELY EXCLU-
SIVE basis and covers the distribution and sale of
the newspaper in all outlets in terntones outside
Italy
2 Under the terms of the assignment conferred
upon you, the relations with the subdistnbutors are
entirely your responsibility, and you undertake to
handle the distribution with the utmost diligence in
order to guarantee the widest possible dissemination
of the newspaper
3 We shall keep you informed in a timely
manner of any possible modifications or changes
that might be made during our relationship with re-
spect to the SALE PRICE, FORMAT or
WEIGHT of the newspaper and of whatever might
necessitate changes to the preparation of the print-
out of subscribers
4 The initial run and subsequent runs will be de-
cided by mutual agreement based on the trends of
the sales and taking into account any requests for
changes you may receive from the sub-distributors
The letter went on to state that USA would be paid 3-
1/3 cents per copy distributed and that the term of the
agreement would be for 1 year
The Certificate of Incorporation of AMM (a New
York State Corporation) was filed by - Dell'Olio on
March 24, the purpose of the corporation is stated to be,
inter alia
to print, publish and distribute daily newspaper,
magazines, books and periodicals of all types, to
purchase, license, sell, write and generally deal in
and with any and all types of literacy works
Also received into evidence is a Contract of Purchase of
Journalistic Services, dated June 9, 1988, between SPA
and AMM, however, it contains no signatures nor places
for signatures This contract, basically, provides that
AMM will provide articles, columns, and photographs to
USA and SPA will pay AMM $30,000 a week
As stated supra, USA originally moved into the build-
ing next to Stellar in Long Island City, Pmeyro testified
that after obtaining this temporary space (half of a floor)
he recommended to the then president of AMM, Tom
Montemarano, to contact the landlord of the building to
attempt to find space close to U S A He apparently did
so because AMM rented the other half of USA's floor in
that building and moved in shortly afterward Apparent-
ly, the space was less than ideal and was always consid-
ered to be temporary Almost immediately, Pmeyro
began looking for permanent space to lease He "dis-
cussed" and "consulted" about the move with Monte-
marano Pmeyro testified that he didn't coordinate this
latter move with AMM and did not purposely look for
space with adjacent space available for AMM
He was asked
Q So it was just coincidence that the other end
of the hall happened to be empty?
A I said before—you don't remember what I
said I said that I leased half of the floor because I
didn't even—yes the half of the floor and then re-
modeled that, and I thought that it was an ideal sit-
uation That's exactly what I said I mentioned it to
Mr Montemarano
Q And he thought it was an ideal situation too?
A It was
Q And did he sign a lease for that property?
A Yes
Q And you signed a lease for that property'
A I signed my lease, he signed his
Pmeyro signed a lease on behalf of USA on August 5
for premises of 42-15 Crescent Street, Long Island City,
hereinafter referred to as the L I C facility The lease
was for a period of 10 years commencing October 1 at a
rental of $5000 a month for the first 4 years The first
page of the lease states that it is for one-half of the third
floor, a subsequent page states it it is for the entire third
floor, however, a diagram of the entire third floor at-
tached to the lease has half of the floor crossed out Pm-
eyro testified that he negotiated the lease on behalf of
USA and the designation in the lease that USA was rent-
ing the entire floor was a mistake, USA rented about
5000 square feet, about half of the third floor After
meeting with the landlord on a few occasions, Pmeyro
told Montemarano about the location and recommended
that he contact the landlord because "we need to be
close to each other" Montemarano did not testify, but
AMM did lease the other half of the third floor at the
LIC facility AMM moved into their half of the third
floor at the LIC facility a few weeks after USA
Prior to an extensive discussion of the interaction
betwen USA and AMM (both of employees and finan-
cial) I quote a long segment of Pmeyro's testimony on
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 285
the operation of the two companies to illustrate what a
difficult and uncooperative witness he was
Q You coordinate with who at American Multi
Media?
A No I don't coordinate with American Multi
Media I coordinate with all the companies that
provide a service for Sedmt, S P A And my job is
not [to] make them do their job, it's to make sure
that the job is properly done—to inform my parent
company in Italy how things are going, and recom-
mend changes and that kind of thing I'm not sup-
posed to be in a police position to look for the
people doing their jobs It's not that exactly
Q Do you coordinate American Multi Media or
don't you?
A I don't coordinate American Multi Media I
coordinate works done by three different companies
that are so constructed in my parent company in
Italy I don't coordinate them
Q So who does coordinate American Multi
Media with the other companies—the advertising,
the printing, the distribution? Those the three com-
panies you're alluding to that you coordinate
A It's not that simple American Multi Media
has nothing to do with distribution of the paper So
they have nothing to coordinate
Q They have nothing to do with what?
. A With the distribution of the paper They have
nothing to do with advertising the paper
Q Right
A So they have nothing to coordinate
Q Right
A I don't know what—
Q So you coordinate those things You don't co-
ordinate the editorial content of the newspaper?
A No
Q Who does from Sedmt, USA?
A Nobody
Q So, Sedint, USA publishes Ii Progresso News-
paper, right?
A No, Sedmt, S P A does
Q And it is designated Sedmt, USA to coordi-
nate the publication of the newspaper right?
A Only the operations that are demanded to
produce the publication of the paper You're trying
to imply that I'm a coordinator—
[At this point, I instructed Pmeyro to answer yes or no
whenever possible]
Q In connection with your responsibilities
with—with your duties according to Sedmt, S P A,
do you know who is responsible for what articles
are printed in the newspaper Il Progresso?
A Not all the time
Q I'm not asking you all the time Do you
know? Do you know some of the time?
A I know some of the time
Q Okay Any who is in charge from S P A to
see what articles are appearing m its newspaper
A That I don't know You're talking about polit-
ical editorial policy, or you talking—what ? I under-
stand your question
Q I'm talking about a newspaper hits the stands
and its got stories in it
A Yes
Q And I'm saying who from S P A or Sedmt,
USA has any role, whatsoever, deciding what sto-
ries they're going to be? Do you know?
A The Managing Editor
Q Who is that'?
A At this point is Mr Fumagalli
Q And before him who was it
A Mr Taormina
Q And who did Mr Fumagalli or Mr Taormina
report to at those Sedmt, USA, or S P A, if you
know?
A Sedint, S P A
Q They reported directly to Sedmt, S P A?
A Yes
Q In Italy?
A Yeah
Q How do they do that, by telephone?
A Yes
Q And Sedint, S P A would call them by tele-
phone?
A Yes
A So you have no role in that aspect of it
Q The only role that I have is to make sure that
the editorial policy that was set up by the owners is
being accomplished so far as my understanding is I
don't dictate editorial policy in S P A
Q They tell you what the editorial policy is,
right?
A I have an idea
Q And then you're supposed to make sure they
follow that editorial policy?
A Yes
A And what do you do in connection with that
job?
A I -read the paper—that's something I do
Q Do you ever talk to anybody at the paper
about that?
A Sure
Q Who did you talk to?
A The Managing Editor
Q Fumagalli or Mr Taormina?
A The editors
Q So you do talk to them about what article is
going to go in the newspaper?
A No
Q Well, what kind of policy are you referring to
then?
A General policy of the paper General policy
Q No [sic] can you give us an example of that
general policy?
A Yes, for example, we wouldn't like in the
paper any apology for Communism because we
have the understanding that ours is a conservative
publication That's an example
Received in evidence was an invoice, dated October
13, of numerous items of office furniture and equipment
allegedly sold by USA to AMM, the total of the invoice
is $11 502- Javorsky (the USA bookkeeper) testified that
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this has not been paid by AMM, Pmeyro testified that it
was paid for, sometime in 1988 Neither General Counsel
nor counsel for USA or AMM introduced documentary
evidence to establish whether this bill had, in fact, been
paid
As stated, supra, Javorsky, who had been the book-
keeper for II Progresso, became the bookkeeper for USA
in about August, Martin Pineyro, DeLuca, and Enzo
Scaravalli (the husband of Rita Scaravalli, secretary at II
Progresso, who was appointed assistant secretary of
USA), all former II Progresso employees, became em-
ployed by USA when it commenced operations in July
In fact, these three men actually moved the furniture and
equipment from Emerson to Long Island City
The first editor-in-chief for AMM was Taormina, who
had been the editor at Ii Progresso Montemarano was
the first president of AMM Subsequently, DeLuca (who
had been employed by, and was active in setting up the
initial operation for USA in Long Island City) was told
that Montemarano had resigned and Lupoi and Dell'Oho
asked DeLuca to be in charge of AMM," to oversee the
operation of AMM and "to be sure that the Compa-
ny, American Multi Media, to be physically and legally
separate from any other interference with Mr Pm-
eyro " When Montemarano ceased being the president of
AMM, DeLuca became treasurer and Michael Horne
(who DeLuca has never met or dealt with) became presi-
dent
Guiseppe Fumagalli, who at the time of the hearing
had replaced Taormina as the editor of AMM," testified
that while living in Italy he was interested in working
for Il Progresso In early 1988, he spoke to both Man-
tmeo and Pinto about this interest, but they were non-
committal By early July, Fumagalli had learned that the
paper was not publishing, but was still interested in
coming to the United States, he called Pinto who told
him that the paper would probably be published again
and that he could work there if it did resume publication
He purchased his own plane ticket and came to the
United States He went to the first facility at Long Island
City where he was hired by Taormina as a journalist for
AMM
One aspect of General Counsel's allegations of alter
ego and single-employer status is based on the financial
interaction between these companies beginning July,
apart from the contractual amounts that SPA paid USA
and AMM USA's financial records and checkbooks es-
tablish that since July, USA has made numerous pay-
ments on behalf of AMM, AVI, and II Progresso As an
example, in about a 1-week period in late July, USA paid
over S5000 for expenses of AMM (computer technician,
carpet Installer, carpenters, air conditioners, and a
moped), about $10,000 for AVI (rent and telephones)
and $4300 for II Progresso's attorneys
Additional examples of the interchange between the
companies is set forth in the USA's check register for
14 At a Board of director's meeting of AMM, on October 7, when
DeLuca was appointed treasurer of AMM, Sherry Ritter of Lee Sexton
& Company (John Lee's company) was named assistant treasurer Ritter
had been an auditor at II Progresso
15 DeLuca, who, at the time was running AMM learned from Taor-
mma that he had been fired, but did not know by whom
August On August 5, USA wrote a $275 check to an
employee of AMM, made a S1330 loan to Taormina (of
AMM) at Pineyro's direction, loaned II Progresso
$11,000 on about August 9 and made a loan of $1190 to
another AMM employee on August 12 The register also
records additional loans of S19,000 in August to II
Progresso that were never repaid On September 30,
USA paid the salaries of Dab, Mariana Pisano, and
Tony Aggimenb, all employees of AVI On September
30, USA also repaid a bank S3200 for a loan to Ii
Progresso There are also checks written to AMM em-
ployees by Javorsky, but they were voided pnor to
being deposited or cashed when AMM located enough
money in its account to cover the checks On November
4, USA wrote 16 checks in an amount totalling almost
$10,000 to AMM employees, each states "personal
loan" On December 13, USA paid $2000 to Taormina as
a personal loan and, at about that time, paid approxi-
mately $13,000 to New York Telephone for AMM's tele-
phone system In November and December, USA wrote
about 40 checks to AMM employees to cover its payroll
Javorsky testified that AMM or AVI "Sometime they
need a check in an emergency" and on those occasions,
USA would use one of its checks and make payment for
AMM or AVI USA then notified SPA of this payment
and requests that SPA reimburse USA for these pay-
ments She testified that SPA has reimbursed USA for
some payments made for AVI, but not for the payments
made for AMM At the time of the hearing, over $50,000
was owed from AMM, and $15,000-20,000 from AVI
Received into evidence were loan receivable summaries
for USA dated January 31, 1989, they show the follow-
ing amounts due to USA on that date
From Il Progresso $31,510
From SPA

$212,868
From AVI

$15,889
From AMM

$67,699
Pmeyro testified that he is "aware of loans by Sedint
USA on behalf of Sedint SPA to American Multimedia"
The loans were made because, at the time, AMM did not
have the cash to pay salaries and if the employees did
not get their salaries, they would have quit working and
the paper could not have been published The same is
true of the payment by USA to the telephone company
on behalf of AMM, if USA had not made the payment,
the telephone would have been disconnected and no
paper would have been produced USA billed SPA for
these amounts On many occasions, he advanced Taor-
mina money from his personal account and received a
check from USA as reimbursement of this loan, he
looked to AMM or SPA to repay these amounts He
always assumed that SPA would reimburse USA for
these amounts expended to AMM "I had all the reasons
to believe that that money would be paid back I
know the people, that I am dealing with " By late
1988, Pineyro had been dissatisfied with the composing
work performed by the AMM employees He discussed
this with Lupoi, and, commencing January 16, 1989,
USA took this operation from AMM, and USA employ-
ees performed the composing work for Ii Progresso II
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 287
The composing roon supervisor and "part" of the em-
ployees working under him became employed by USA
as of that date, Pmeyro testified that he doesn't recall
how many employees work in the department
Pinto is a consultant for Il Progresso II (or USA) as
he was for Ii Progresso prior to July He receives the
same perquisites of office that he had previously en-
joyed—an apartment with maid service, an automobile
and his expenses while in this country Since the main
area of his interest at Ii Progresso was editorial policy,
since July, when he visited II Progresso II, he also spent
time at AMM 16
AVI's sole business is handling the advertising for II
Progresso H, prior to July, AVI had been involved in
ads from Italy for II Progresso John Lee was the presi-
dent of AVI until about December, at that time, Guido
Bach' became the president The accounting firm of Lee
Sexton & Co is the accountant for AVI Dab o was the
advertising manager at Ii Progresso and worked there
until about July, after the strike, he continued to be paid
although there was no work to do since there was no
paper being published After the operation ended, Pm-
eyro called him and told him that he would be "ab-
sorbed by another company, AVI," and asked him to be
in charge of the "business part not administration"
of AVI and he accepted When AVI began operationg
after July, the first three or four checks were from
USA," since that time the checks have been from AVI
Aggimente had been coordinator of the classified adver-
tising section at Ii Progresso He testified that after being
on stnke for a few weeks (he was a Guild member), in
about early July, he received a phone call from Pmeyro,
who asked him what he was doing, he said that he was
looking for a job After a few more conversations, Pm-
eyro offered him a job at AVI commencing about
August 1 performing the same job that he had at Ii
Progresso, and he began with AVI on about August 1
Pmeyro testified that he never hired anyone to work
for AVI, all the hiring was done by Interfore He spoke
to Dabo after the paper ceased publishing and "might
have" suggested that he apply for a job with AVI Aggi-
mente called him to say that he was interested in work-
ing for AVI, "I told him to report to Interfore " He
never urged anyone at AVI to hire either Dabo or Aggi-
mente He testified that he "threw some names to Lee
and Interfore " USA paid the first month's rent and de-
posit for the space that AVI was renting Pmeyro testi-
fied that AVI had "a tremendous deal" on the lease, but
did not have the money available for the deposit or first
month's rent Pmeyro called Lupoi and told him of the
1 ° This was another example of Pmeyro's lack of credibility Initially,
he was asked if Pinto visits AMM to discuss editorial policy, he an-
swered "I don't know what he does and where he goes" When It
was pointed out that they're on the same floor, he testified "I don't
follow the man, I have my work to do when he is there" Finally, he
answered
He goes over there Oh, yes, he goes I don't know what for and
what he is going to do over there Many times he leaves his office
and I see him going in that direction, but I have to say that the
men's room is in that direction, too
17 Because AVI is not alleged to be a single employer or alter ego, I
will not discuss more fully all the payments made by USA on behalf of
AVI
situation and Lupo' told him to pay the money for AVI
and that he would be reimbursed by SPA The money
has since been repaid to USA The record is somewhat
confusing on the actual amount USA paid to the land-
lord for AVI's space Apparently, USA paid a $5000 de-
posit and 2 or 3 months' rent, at about $2500 a month
The record establishes that $7500 was paid to the land-
lord by USA on July 27, $1302 on August 17, $2756 on
September 7 and $2798 on October 11
Lee Sexton & Co, of which John Lee was a senior
partner, was the accountant firm for II Progresso Repre-
sentatives of that firm are authorized to sign checks for
AMM and AVI
There is some indefinite testimony regarding a compa-
ny named Copyright International (Copyright) Pmeyro
testified that he understood (fron letters and documents
that he had seen in about July) that the stock of Ii
Progresso had been sold to Copyright, although he never
met anyone from Copyright Scaglione testified that in
about late 1987, he was told by Pinto that "Sedmt SPA
had found a purchaser for the paper" The sale to Copy-
right was to take place on about January 1 and Copy-
right would have 6 months from that time to verify all
statements and warranties He endorsed his shares of
stock to Copyright and turned over his 5-percent owner-
ship on about January 1 and received his compensation
in July from SPA
VI CREDIBILITY
As stated, I found Pmeyro to be an extremely uncoop-
erative and evasive witness, who was not being forth-
right with the court I have only provided a few glaring
examples of this attitude, supra, and would not generally
credit his testimony Unless indicated otherwise, infra, I
found most of General Counsel's witnesses to be rather
direct and fair in their testimony, even though they must
have harbored resentment toward their prior employer-
Il Progresso
VII SINGLE EMPLOYER AND ALTER EGO
ALLEGATIONS
It is initially alleged that Ii Progresso and SPA, and
also that SPA, USA, and AMM constitute single inte-
grated business enterprises and single employers within
the meaning of the Act, as well as the fact that they are,
and have been at all material times, alter egos It is by
now well settled that in determining whether two or
more employing entities constitute a single employer, the
Board looks at the following factors (1) interrelation of
operations, (2) common management, (3) centralized con-
trol of labor relations, and (4) common ownership Radio
Technicians Local 1264 v Broadcast Service of Mobile, 380
U S 255 (1965), NLRB v Burgess Construction, 596 F 2d
378 (9th Cir 1979), Blumenfeld Theatres Circuit, 240
NLRB 206 (1979) Not all of these criteria need be
present to establish single-employer status and a signifi-
cant factor is the absence of an "arms length relationship
found among umntegrated companies" Operating Engi-
neers Local 627 v NLRB, 518 F 2d 1040 (D C Cir
1975)
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There can be little question about the interrelation of
operations among the companies SPA owned and oper-
ated Ii Progresso until its closing in June," beginning in
July, the Ii Progresso operation is coordinated by USA
(which is owned by SPA), AMM, which was established
by Dell'Oho, is in charge of the editorial work, and
AVI, whose ownership is not clear, handles the advertis-
ing The interrelationship is established not only in the
day-to-day publication of the paper, but by the financial
relationship which established numerous, fairly regular,
payments by USA on behalf of Ii Progresso, AMM, and
AVI for payroll, repayment of loans, rent, office equip-
ment, workmen or other expenses Many of these pay-
ments were never repaid, further establishing the connec-
tion between these companies Common management is
not as obviously present because each Company, at least
on paper, had different officers Pmeyro ran USA and
testified to no control of AMM and AVI, yet DeLuca,
who appears to be the principal administrator at AMM
(and who had been previously employed by USA in set-
ting up their Long Island City operation) had never met
the president of the Company and seemed to be unaware
of some of the activities occurring at the top of the
AMM hierarchy Additionally, the credible evidence es-
tablishes that Pinto played a major role in the manage-
ment of Il Progresso and USA and, at least, some role in
the operation of AMM Finally, the accounting firm of
Lee Sexton & Co, and its individual members are
present at each of these companies Centralized control
of labor relations at these companies can be described in
one word—Pinto The credible evidence clearly estab-
lishes that he had a lot to say about labor relations at II
Progresso and the establishment of Il Progresso II and
USA Although there is no record testimony that he was
in charge of labor relations at AMM, it would not be un-
reasonable to assume that he did play an active part in
this regard, because there appears to be a vacuum at
AMM regarding labor relations Common ownership is
also fairly clear SPA owned Ii Progresso and subse-
quently USA Although it is not clear who owns the
stock of AMM, the fact that it was created by Dell'Oho
indicates that it is either owned or controlled by SPA A
review of all these factors establishes a lack of an arm's-
length relationship among these companies, Local 627,
supra I find that Ii Progresso and SPA constitute a
single employer within the meaning of the Act and that
SPA, USA, and AMM likewise constitute a single em-
ployer within the meaning of the Act
The complaint alleges that USA and AMM are alter
egos of II Progresso and SPA The determinative factor
for alter eqo status are somewhat different than those
that are applicable for single-employer status In South-
port Petroleum Co v NLRB, 315 U S 100 at 106 (1942),
the Court stated that the ultimate question is whether
there was a true change in ownership and management
or "merely a disguised continuance of the old employ-
er" Prior to examining these companies to determine
18 I do not believe what I would characterize as the "charade,"as testi-
fied to by Pineyro, that SPA contracted with II Progresso to publish the
newspaper and beginning in late 1987 threatened to end that contract and
finally did so in June
alter ego status, it should be noted that prior to July,
both \ Pmto and Pmeyro were informing employees that
the newspaper might cease operating in New Jersey and
resume operations elsewhere In addition, in the period
subsequent to the closing of the paper, Pineyro was
active hiring people to work for USA, AMM, and AVI
As stated, supra, in the discussion of single-employer
status, during about the first 6 months of itg operation,
USA made nuerous payments on behalf of Il Progresso,
AMM, and AVI, and by January 31, 1989, AMM and II
Progresso still owed almost $100,000 to USA This is not
something that can be called an arm's-length relationship
Through June, Il Progresso was owned by, and pub-
lished for SPA After June, Il Progresso II resumed pub-
lication, albeit from a different location This time the
paper was produced by USA (owned entirely by SPA)
and AMM, apparently also owned by SPA, with the
same auditors and many of the same employees who had
previously produced the paper Additionally, many of
these employees had been personally solicited by Pmeyro
to return to publish the paper In Howard Johnson Co v
Detroit Local Joint Executive Board, 417 U S 249, 259
(1974), the Supreme Court stated that alter ego cases in-
volve "a mere technical change in structure or identity
of the employing entity, frequently to avoid the effect of
the labor laws, without any substantial change in its
ownership or management" This is a fair description of
the instant matter, prior to July, SPA owned the paper
and had it published by Ii Progresso, which it also
owned Subsequently, it continued to own the paper and
the companies that produced it, but this time without the
unions that had previously represented the employees I
therefore find that USA and AMM are alter egos of Ii
Progresso and SPA At subsequent times m this decision,
Il Progresso, SPA, USA, and AMM will be referred to,
at times, collectively as Respondents
It is next alleged that Pinto and Maria Pinto are also
alter egos of II Progresso, SPA, and USA and jointly
and individually liable for their unfair labor practices
Pinto was a consultant (at the least) for Il Progresso and
USA and played an active part in determining their edi-
torial policy Because I generally found General Coun-
sel's witnesses credible (together with the fact that Pinto
did not testify and I found Pmeyro's testimony often in-
credible), I find that he also played an active part in for-
mulating Ii Progresso's labor relations policy and partici-
pated in the plan to cease operations in New Jersey and
reopen in Long Island City However, that does not
make him an alter ego of the Respondents and liable to
remedy the unfair labor practices to be discussed infra,
and General Counsel has not provided me with any
guidance for finding Pinto to be an alter ego of II
Progresso, SPA, and USA, this allegation shall therefore
be dismissed General Counsel does argue, however, that
because of the "lavish life style" Pinto enjoyed while in
the United States, he should be personally liable for the
unfair labor practices herein, citing F & W Oldsmobile,
272 NLRB 1150 (1984) That case involved the two
owners of a company who each took $37,000 from an
escrow account meant for the company's expenses and
creditors and misappropriated a company asset for their
IL PROGRESSO ITALO AMERICANO PUBLISHING CO 289
personal use The administrative law judge (with the
Board affirming) found that this "constituted a dissipa-
tion of corporate assets and an attempt to evade backpay
liability, so that the individuals should be liable for back-
pay obligations" For that reason, the Board pierced the
corporate veil and found the two owners personally
liable for the backpay This case is distinguishable from
the instant matter, the record fails to establish any com-
pensation to Pinto (while in the United States) other than
his expenses The total payments, on his behalf of, about
$5000 a month for apartment rental, car lease, and other
expenses are certainly not so outrageous as to be found
to constitute the wrongful distribution of corporate
assets
General Counsel also alleges that Maria Pinto is an
alter ego of II Progresso, SPA, and USA Suffice it to
say that the record establishes very little activity on the
part of Maria Pinto, and no evidence that she was ever
in the United States This allegation will therefore be dis-
missed
Counsel for SPA alleges that the allegations as to it
should be dismissed because the Board has no jurisdic-
tion over it and because no valid service of the charges
and complaints was made upon it Counsel alleges that
the Board has no jurisdiction over SPA because It has no
independent presence in the United States and conducts
no business in the United States I reject this argument,
SPA does have a physical presence in the United States
through Dell'Oho and Lupoi and conducts business in
the United States through Pinto and over the telephone
I also reject counsel's argument that the complaint
should be dismissed as to SPA because good service was
not made upon SPA I reject this argument for two rea-
sons valid service was made upon the other Respondents
who, I have found, constitute an alter ego of (and single
employer with) SPA, as well as the fact that SPA was
represented by counsel during the entire hearing
VII THE SUBSTANTIVE ALLEGATIONS
I found Mantmeo to be an extremely credible and be-
lievable witness and I have no problem crediting his tes-
timony over that of Pmeyro I therefore find that on six
or seven occasions between January and May, Pmeyro
told him that the Guild was going too far and it could be
"deadly" for them, that the paper could close and reopen
elsewhere I find that these statements violate Section
8(a)(1) of the Act
As regards the transfer of Javorsky, General Coungel
has clearly sustained his burden under Wright Line, 251
NLRB 1083 (1980) The transfer occurred a few days
after the Guild members, including Javorsky, voted
unanimously to authorize a strike, prior to this vote Pm-
eyro had asked her repeatedly to resign from the Guild,
but she refused Finally, whether I believe her testimony
(she was a less than totally cooperative witness, possibly
because she was still employed by USA) that Pmeyro
simply shrugged his shoulders when she asked him if the
transfer was due to her vote authorizing a strike, or the
contents of her February 24 letter to the Guild stating
that Pmeyro told her that "due to my actions at the
union meeting, he was removing me from the accounting
department," I find little doubt that General Counsel has
sustained his burden that the transfer was due to her
Guild support and her vote supporting a strike Respond-
ent presented no evidence to rebut this testimony and I
therefore find that it has not sustained its burden I there-
fore find that in November 1987, Il Progresso transferred
Javorsky to a lower paying position due to her union ac-
tivities, in violation of Section 8(a)(1) and (3) of the Act
The next allegation is that on about January 11, II
Progresso laid off employees Chiom, Vito Taormina,
Mian, and Pasim because of their concerted or union ac-
tivities, in violation of Section 8(a)(1) and (3) of the Act
I find that General Counsel has clearly satisfied his initial
burden under Wright Line, supra The leaflet distribution
had occurred about 3 weeks prior to the layoff and Pm-
eyro certainly knew about it and strongly disapproved of
it, having referred to it as "disgusting" Three of the four
laid off were involved in the leaflettmg (all but Vito
Taormina) and since the Guild contract required the
paper to lay off by seniority, in order to get to the two
most active participants (Chioni and Mian), Pmeyro had
to first lay off Vito Taormina and Pasim Additional evi-
dence of this is the animus directed at Chiom subsequent
to the Waldorf Astoria leaflettmg, as well as the state-
ments made by Pmeyro to Rizzotti (which I credit) that
he would reinstate Vito Taormina and Pasim but would
not take back Chiom and Mian I find that Respondent
has not satisfied its burden under Wright Line, as stated
on numerous occasions, supra, I found Pmeyro to be a
generally incredible witness and therefore give little cre-
dence to his testimony that this layoff was solely moti-
vated by economics Additionally undermining this argu-
ment is the timing of the layoffs and the fact that after
the layoffs, each journalist was working 1 day a week of
overtime work (at time-and-a-half under the agreement)
and, even with that, the paper could not publish the
number of pages it had previously printed I therefore
find that the layoff on about January 11 was discrimina-
torily motivated, that Respondent really wanted to lay
off Omni, Mian, and Pasim, but, as a smokescreen, and
in order to comply with the Guild contract, laid off Vito
Taormina as well It therefore violated Section 8(a)(1)
and (3) of the Act
It is undisputed, and I fiiid, that Respondents failed to
make the pension contributions as required by its agree-
ment with the Guild for the period October 1, 1987,
through June 20 and that it likewise failed to make re-
quired payments to the Typographical Union's funds for
the period August 1987 through June 20 Respondents
therefore violated Section 8(a)(1) and (5) of the Act Re-
spondents also failed to remit to the Guild dues, which
had been deducted from its employees wages, for the
period September 25, 1987 through June 20 This also
violates Section 8(a)(1)(5) of the Act
It is next alleged that Respondents violated Section
8(a)(1) and (5) of the Act by failing to execute the agree-
ment fully agreed to by the parties on February 2 Re-
spondent defends that there was no violation because the
agreement allegedly reached on that date was based
upon a misunderstanding Counsel for Respondents, in
his brief, states that the testimony of Pmeyro's "unrebut-
ted conversation with Montes shows that the deal be-
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween the parties, as agreed in the off-the-record discus-
sion between the chief employer representative and the
chief union representative, was different than that an-
nounced at the table" and that it was curious that Gener-
al Counsel failed to call Montes as a witness I agree that
Montes may have been a helpful witness in determining
what occurred on February 2 However, although
Montes did not testify to rebut Pmeyro's testimony about
their pnvate meeting on that day, because I found Pm-
eyro to be a witness almost totally lacking credibility, I
do not credit his testimony about the meeting Counsel in
his brief, states that when there was a mutual mistake or
misunderstanding, the employer is under no obligation to
execute the agreement based upon the mistake or misun-
derstanding I find no mistake or misunderstanding,
rather, the parties knew exactly what they were agreeing
to on February 2 Canom was, obviously, uncomfortable
in his position as a witness called by General Counsel
herein, he had represented Ii Progresso and continues to
represent employers in his practice Regardless, he was a
believable witness The alleged misunderstanding, as tes-
tified to by Pmeyro, related solely to the first year's in-
crease as finally agreed to, it was a 6-percent increase,
with only 3 percent retroactive to January 1, 1987 Pm-
eyro testified that his understanding was that the increase
was simply 3 percent The difference, of course, is that in
1988 and 1989 that additional 3 percent would "kick in"
The difficulty I have with Pineyro's testimony regarding
this meeting is that there does not appear to be any mis-
understanding during the meeting or during the hand-
shakes Rather, it appears that no misunderstanding exist-
ed until much later that day The evidence establishes
that after Pmeyro's private meeting with Montes, Canom
proposed a 6-percent increase the first year with only 3
percent retroactive to January 1, 1987, a 5-percent in-
crease on January 1, 1988 and a 5-percent increase on
January 1, 1989, this offer is a fairly simple one, not
easily capable of being misunderstood The Guild accept-
ed this offer and by the conclusion of the meeting, all the
remaining issues were resolved and the parties shook
hands at the conclusion of the meeting and said that they
were happy that it was over Further, proof of a lack of
misunderstanding is the testimony of Mantineo (a very
credible witness) that on the evening of February 2, Pm-
eyro told him and others that it was an expensive agree-
ment, but because of it, labor relations would improve
The ultimate issue in cases such as this is whether there
was a meeting of the minds, a mutuality of understanding
between the parties on February 2 Printing Industries of
Northern California, 204 NLRB 329 (1973), Lincoln Hills
Nursing Home, 257 NLRB 1145 (1981) I find that there
was and that Respondent's refusal to execute the agree-
ment subsequent to February 2 violates Section 8(a)(1)
and (5) of the Act
It is also alleged that on about March 14, Il Progresso
repudiated its agreements with the Guild and the Typo-
graphical Union, and since about March 14, it has with-
drawn its recognition of the Guild and Typographical
Union as the representative of certain of its employees
The sole evidence in this regard is the March 14 letter of
Canoru, which states that the letter is to terminate the
agreement between the parties because the paper is plan-
ning to close April 1, in the letter, Il Progresso offers to
negotiate with the Union on the effects of the closing on
the employees However, the paper did not close on
Apnl 1 and, apparently, between April 1 and June 20, Il
Progresso did continue to abide by the terms of the ex-
pired agreements I therefore have difficulty perceiving
this violation, and General Counsel's bnef does not refer
to it This allegation is therefore dismissed
It is next alleged that in about April or May, Il
Progresso, by Pmeyro and Dab, violated Section
8(a)(1)(5) of the Act, by bypassing the Unions through
soliciting its employees to abandon the Union's bargain-
ing demands I have previously found that Pmeyro's
statements to Mantmeo on six or seven occasions be-
tween January and May, that the Guild was going too
far and that it could be "deadly" for them, violated Sec-
tion 8(a)(1) of the Act I also find that it violates Section
8(a)(1) and (5) of the Act as an attempt to solicit employ-
ees to bypass the Guild I credit the testimony of DeBla-
sio that in about March, Pmeyro told him that unless the
Union lowered its demands, there was a strong possibili-
ty that the paper would close This statement is also an
attempt to convince an employee to abandon the Union's
bargaining demands and therefore violates Section 8(a)(1)
and (5) of the Act
It is next alleged that in about July, Respondents, by
Pmeyro and Dab, bypassed the Unions by soliciting its
employees to enter into individual employment contracts,
thereby abandoning the Unions, in violation of Section
8(a)(1) and (5) of the Act There is a credibility issue re-
garding the Dabo allegation, because I found Dabo to be
an articulate, believable, and impartial witness (he was a
witness for General Counsel) I credit his testimony over
that of DeBlasio regarding the alleged job offer, and this
allegation will therefore be dismissed As to the allega-
tions involving Pmeyro, I have little difficulty crediting
the testimony of Sasso, Licausi, Zucca, and Javorsky
over Pineyro I therefore find that, after the paper ceased
operating, Pineyro offered each of these employees (and
union members) jobs at Ii Progresso II, at a time when
he was concealing the existence of this operation from
the Unions These job offers by Pmeyro therefore violate
Section 8(a)(1) and (5) of the Act
It is next alleged that Respondents violated Section
8(a)(1)(5) of the Act by failing to provide the Unions
with information they requested On June 29, counsel for
Ii Progresso wrote to the Unions, informing them that
effective immediately, II Progresso would cease publica-
tion and employees were free to make arrangements for
other employment The letter concluded by saying that
he was "available to discuss the effect of this devel-
opment on your union members" Shortly thereafter, the
Guild wrote to counsel for Il Progresso requesting infor-
mation regarding ownership of Copyright International
and its purchase of the stock of Ii Progresso, the con-
tract between SPA and II Progresso for the publication
of the paper and all communications regarding the can-
cellation of that agreement and a list of the assets and li-
abilities of Ii Progresso Ii Progresso never supplied
these documents
IL PROGRESSO ITALO AMERICANO PUBLISHING CO ' 291
Under well-settled Board law an employer Must pro-
vide a union with requested information "if there is a
probability that such data is relevant and will be of use
to the union in fulfilling its statutory duties and responsi-
bilities as the employees' exclusive bargaining representa-
tive" Associated General Contractors of California, 242
NLRB 891, 893 (1979), NLRB v Acme Industrial Co,
385 U S 432 (1967) Bohemia, Inc , 272 NLRB 1128,
1129 (1984), stated
The Board use a liberal, dicovery-type standard to
determine whether information is relevant, or po-
tentially relevant, to require its production NLRB
v Truat Mfg Co, 351 U S 149 (1956) Information
about terms and conditions of employment of em-
ployees actually represented by a union is presump-
tively relevant and necessary and is required to be
produced Ohio Power Co, 216 NLRB 987 (1975),
enfd 531 F 2d 1381 (6th Cir 1976) Information
necessary for processing grievances under a collec-
tive-bargaining agreement, including that necessary
to decide whether to proceed with a grievance or
arbitration, must be provided as it falls within the
ambit of the parties' duty to bargain NLRB v Acme
Industrial, supra, Bwkerstaff Clay Products, 266
NLRB 983 (1983)
There can be no question that the information sought
by the Guild was relevant to, and necessary for it as the
representative of some of Ii Progresso's employees Here
was an employer who had deducted Guild dues from his
employees' pay, but had not transmitted these amounts to
the Guild since September 1987 In addition, Ii Progresso
had not made the required pension payments for about
the same period The Guild and its funds were therefore
owed a substantial sum of money by a company that had
Just notified it that it had gone out of business It re-
quires little analysis to conclude that the Guild is entitled
to wide lattitude in seeking information and documents
to assist it in locating and collecting this money Re-
spondent's failure to provide the Guild with this informa-
tion therefore violates Section 8(a)(1) and (5) of the Act
The complaint also alleges that from January through
June, Il Progresso, through Pmeyro, intentionally mis-
represented information concerning the ownership and
control of II Progresso to the Unions in violation of Sec-
tion 8(a)(1) and (5) of the Act Although this issue was
not supported by the brief of General Counsel, I assume
that this allegation refers to Pmeyro's statements in the
March meeting with the Typographical Union This vio-
lation is not readily apparent and, even if it were, it
would be cumulative I therefore recommend that this al-
legation be dismissed
Finally, it is alleged that on about June 30, Il
Progresso ceased publishing at its Emerson facility and
terminated all its employees who were represented by
the Unions because they supported the Unions and en-
gaged in other protected concerted activities This alle-
gation also claims that since about July 1, USA has re-
fused to hire these employees at its Long Island City fa-
cility because they supported the Unions and engaged in
other protected concerted activities 19 It is alleged that
Respondent, by this activity, violated Section 8(a)(1), (3),
and (5) of the Act The record establishes that for some
time prior to' June 20, Respondent had planned to cease
operations and become a nonunion operation else-
where—principally in Long Island City DeRosa testified
that in 1986, Pinto discussed closing the New Jersey op-
eration and reopening in Long Island City, in fact,
DeRosa visited a number of potential sites for Il
Progresso on Long Island City In addition, when the
paper's health insurance policy was canceled in 1986,
Pinto told DeRosa not to worry about it— maybe the
employees would strike and the paper could shut down
During the first half of 1988, Pmeyro hinted to Mantmeo
on numerous occasions that the paper could close and
later reopen At or about this time, Pmeyro told DeBla-
sio that unless the Unions lowered their demands, "there
was a strong possibility" that the paper would close
That testimony, together with my prior findings of single
employer and alter ego status and the evidence of Pm-
eyro's surreptitious method of offering jobs to a large
number of II Progresso's employees for the USA, AMM,
and AVI operation, leaves no doubt in my mind that Re-
spondents planned to close its operation in New Jersey
to move to a nonunion operation in Long Island City,
and saw the June 20 strike as a good opportunity to ac-
complish this purpose By closing the Emerson facility
on about June 30 and reopening in July in Long Island
City, while only offering employment to certain employ-
ees in an attempt to be a nonunion operation, Respond-
ents violated Section 8(a)(1), (3), and (5) of the Act
IX THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondents set forth above, occur-
ring in connection with the Respondents' operations de-
scribed above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof
CONCLUSIONS OF LAW
1 Il Progresso is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Guild and the Typographical Union are each
labor organizations within the meaning of Section 2(5) of
the Act
3 Il Progresso and SPA constitute a single-integrated
business enterprise and a single employer within the
meaning of the Act
19 complaint also alleges, and I so find, that the strike by the
Guild and the Typographical Union, commencing on about June 20 was
an unfair labor practice strike The employees had gone 18 months with-
out a contract, had seen II Progresso renege on its February 2 agreement
with the Guild, had learned that II Progresso had not transmitted to the
Guild dues that It had deducted from their pay and had failed to make
other required payments to the Unions since about September 1987, had
terminated some of its employees due to their concerted activities and
had bounced some checks This was certainly adequate to make It an
unfair labor practice strike ,
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 SPA, USA, and AMM constitute a single-integrated
business enterprise and a single employer within the
meaning of the Act
5 USA and AMM are alter egos of Ii Progresso and
SPA
6 Pinto and Maria Pinto are not alter egos of these
employers nor are they individually liable for the unfair
labor practices committed
7 Respondents violated Section 8(a)(1) of the Act by
threatening its employees with job loss and plant closure
because of their membership in, and activities on behalf
of, the Guild and the Typographical Union
8 Respondents violated Section 8(a)(1) and (3) of the
Act by
(a) Transferring Javorsky to a lower paying position,
in about November 1987, because of her activities on
behalf of the Guild and other protected concerted activi-
ties
(b) Laying off Chiom, Mian, Pam', and Taormina, on
about January 11, because of their support for the Guild
and other protected concerted activities
(c) Closing its Emerson, New Jersey operation on or
about June 30, thereby terminating its employees who
were members of the Guild or the Typographical Union
and reopening its operation in Long Island City on or
about July 1, while, at the same time, refusing to hire its
former employees because of their union membership
9 Respondents violated Section 8(a)(1) and (5) of the
Act by
(a) Closing its Emerson, New Jersey facility on about
June 30 and reopening its Long Island City facility, on
or about July 1 as a nonunion facility
(b) Failing and refusing to transmit to the Guild since
about September 25, 1987, dues that it had deducted
from the wages of its employees who were members of
the Guild and who had properly authorized such deduc-
tions
(c) Failing and refusing to transmit to the Guild, since
about October 1, 1987, the pension contributions it was
obligated to make under its agreement with the Guild
(d) Failing and refusing to transmit to the Typographi-
cal Union, smce about August 1987, the fund contribu-
tions it was obligated to make under its agreement with
the Typographical Union
(e) Failing and refusing to execute a collective-bargain-
ing agreement subsequent to February 2, although it had
reached agreement with the Guild on that date on all the
terms and conditions of employment for a new agree-
ment
(f) Bypassing the Unions, in about April or May, by
soliciting its employees to abandon the Unions' bargain-
ing demand
(g) Bypassing the Unions in about July, by soliciting
its employees to enter into individual employment con-
tracts and to abandon the Unions
(h) Failing and refusing, since about July 5, to provide,
relevant, and necessary information to the unions, as re-
quested
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they
be required to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act
I have found that Ii Progresso unlawfully transferred
Javorsky to a less-favorable position on or about Novem-
ber 1987, I shall recommend that she be reimbursed by
Respondents for any loss she suffered for the period until
she was reinstated to her prior position I have also
found that Chtom, Mum, Pasim, and Vito Taormina were
laid off in violation of Section 8(a)(1) and (3) of the Act
on or about January 11 I shall recommend that Re-
spondents be ordered to offer them reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges, as the ter-
minations were labeled as lay offs rather than discharges,
an expunction order is not necessary It is also recom-
mended that Respondent make them whole for all losses
they suffered due to their termination As with Javorsky,
backpay shall be computed in accordance with F W
Woolworth Co, 90 NLRB 289 (1950), and New Horizons
for the Retarded, 283 NLRB 1173 (1987) See generally
Isis Plumbing & Co, 138 NLRB 716 (1962) As I have
also found that Respondents discriminatorily closed its
Emerson, New Jersey facility and reopened in Long
Island City on a nonunion basis, I shall also recommend
that Respondents offer reinstatement to all members of
the Guild and Typographical Union who were employed
by II Progresso on about June 20 Said reinstatement
shall be to their former positions or, if said positions no
longer exist, to a substantially equivalent position, with-
out prejudice to their seniority or other rights and privi-
leges It is also recommended that Respondent make
these employees whole in the manner as discussed above,
and to recognize the Unions as the collective-bargaining
representative of these employees at the Long Island
City facility
As regards the 8(a)(1) and (5) violations, in addition to
the usual cease-and-desist order, I shall recommend that
Respondents be ordered to pay to the Guild the dues and
pension payments it failed to pay to the Guild and to pay
to the Typographical Union the fund payments it previ-
ously failed to pay I shall also recommend that Re-
spondents be ordered to provide the Unions with the in-
formation they requested on or about July
[Recommended Order omitted from publication ]