Vinisa II, Ltd.

National Labor Relations Board - Board Decisions

Aug 7, 1992

308 N.L.R.B. 135 (N.L.R.B. 1992)

135
308 NLRB No. 28
VINISA II, LTD.
1 On March 12, 1992, Administrative Law Judge James F. Morton
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The judge states that Minervini operated his coat manufacturing
business under the name of Min Dee Fashions and Polk Street Fash-
ions in 1987, and that in 1988, Minervini reopened the shop as
Vinisa II. We note that former Vinisa II employee Marija Stepanov
testified that she worked for Minervini at Min Dee and Polk Street
Fashions in 1989, and at Vinisa II in 1990. This testimony is sup-
ported by documents entered into evidence by the General Counsel
at the hearing, indicating that in 1989, Minervini’s shop was called
Polk Street Fashions, Inc., and in 1990 it was called Vinisa II. The
judge’s error does not affect the outcome of the case.
3 The General Counsel has filed a motion to strike the Respond-
ent’s counsel’s affidavit attached to its exceptions to the judge’s de-
cision. The motion is granted because this affidavit was not admitted
into evidence at the hearing and therefore is not part of the record
in this proceeding. Coppinger Machinery Service, 279 NLRB 609 fn.
1 (1986); Redok Enterprises, 277 NLRB 1010 fn. 1 (1985). Further,
we note that even if accepted into evidence, the contents of the affi-
davit would not affect the outcome of this case.
Although the General Counsel alleged that Vinisa II and Pisa Coat
are alter egos and a single employer, the General Counsel’s argu-
ments and the judge’s analysis focus exclusively on the issue of alter
ego status. (There is no assertion that in the absence of Vinisa II
and Pisa Coat’s status as alter egos, they would constitute a single
employer.) We shall therefore amend the judge’s Conclusion of Law
1 to read as follows: ‘‘The Respondent, Vinisa II and Pisa Coat, its
alter ego, constitute an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act.’’
Vinisa II, Ltd. and Pisa Coat Co., Inc. and Local
162, International Ladies’ Garment Workers’
Union, AFL–CIO. Case 22–CA–17603
August 7, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The Board must decide whether the General Counsel
has established a prima facie case that Pisa Coat Co.,
Inc. is the alter ego of Vinisa II, Ltd., and whether
Pisa Coat-Vinisa II violated Section 8(a)(5), (3), and
(1) of the Act by unlawfully withdrawing recognition
from the Union, Local 162, International Ladies’ Gar-
ment Workers’ Union, AFL–CIO.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Vinisa II, Ltd. and Pisa
Coat Co., Inc., West New York, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Dorothy Karlebach, Esq. and Stephen Holroyd, Esq., for the
General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollock, P.C.), filed a
brief for the Respondent.
Jesse H. Strauss, Esq. (Reitman, Parsonnet & Duggan), of
Newark, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint as amended alleges that Pisa Coat Co., Inc. (Pisa) is
the alter ego of Vinisa II, Ltd. (Vinisa, II), and that Vinisa
II-Pisa engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act). Vinisa II-Pisa allegedly unlawfully with-
drew recognition from Local 162, International Ladies’ Gar-
ment Workers’ Union, AFL–CIO (the Union) as the exclu-
sive collective-bargaining representative of its employees,
failed to honor the collective-bargaining agreement it had
with the Union for those employees, and laid off those em-
ployees unilaterally because they were members of the
Union.
Pisa denies that it is the alter ego of Vinisa II.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and by Pisa, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
As discussed further below, Vinisa II, and Pisa were en-
gaged in the manufacture of ladies coats in the State of New
Jersey. The answer to the complaint admitted that they per-
formed services annually which were valued in excess of
$50,000 for customers located outside the State of New Jer-
sey.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE REQUESTS FOR ADJOURNMENT
The hearing opened and closed on the morning of Decem-
ber 9, 1991. No one appeared at the hearing for Vinisa II
or for Pisa. Requests had been made by Pisa’s counsel to
postpone the hearing. The rulings thereon and on related re-
quests are contained in various orders. The following chro-
nology summarizes those matters.
Pisa-Vinisa II, then represented by different counsel, had
entered into a settlement agreement in late October 1991
when this case had earlier been scheduled for hearing. As a
result, the hearing then was postponed indefinitely.
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This is an excerpt from the order issued on January 30, 1992,
at the direction of the Board.
2 His letter was dated December 5 and was received on December
6.
3 The Respondent even urged that the failure of its principal,
Minervini, to appear at the hearing pursuant to a subpoena served
on him by General Counsel warranted, in effect, postponement of
the hearing or dismissal of the complaint.
On November 7, 1991, Steven Horowitz, Esq. of the law
firm, Horowitz & Pollack, advised Region 22 that he was
now representing Respondent. He indicated that Respondent
was not going to comply with the prior settlement agreement,
and that he wanted the matter set for trial.1
On November 12, 1991, the hearing was rescheduled to
December 9, 1991, at 9:30 a.m.
On November 27, 1991, Horowitz requested a 45-day
postponement asserting, inter alia, that ‘‘there presently ex-
ists a conflict with Region 29’’ on December 9. The General
Counsel and the Union opposed the request. Associate Chief
Administrative Law Judge Edwin H. Bennett, by order dated
December 3, 1991, denied the request, noting the vague and
uncertain reasons offered by Horowitz and noting other
grounds for denying the request. [On the same date, Novem-
ber 27, that Horowitz had requested the 45-day postponement
based on an asserted conflicting matter in Region 29, Region
29 issued an order in the only case it had listed for hearing
for December 9 which involved the firm of Horowitz and
Pollack. By that order, that Region 29 case was rescheduled.
A copy of that order was sent on November 27 to Chuck
Ellman at Horowitz and Pollack. Horowitz never advised
Judge Bennett that Ellman was the one handling the Region
29 case or that there no longer was a conflicting matter in
Region 29.]
On Friday, December 6, 1991, Stuart Bochner of Horowitz
and Pollack, requested2 that the hearing on Monday, Decem-
ber 9, be rescheduled from 9:30 a.m. to 1:30 p.m. on the
ground that he was engaged before the U.S. Court of Ap-
peals for the Second Circuit in Case 91-7809. He did not
note in his request why Horowitz was not available for the
hearing, nor did he advise that he, himself, would not be able
to continue on December 10. He was scheduled to return to
a hearing before another administrative law judge in a hear-
ing which was resuming on December 10. Neither did
Bochner seek to explain why he accepted the instant case at
such a late date, especially in view of the conflicting matter
he was handling. His request was denied by letter dated De-
cember 6, 1991.
On December 9, 1991, no one appeared for the Respond-
ent for the hearing at 9:30 a.m. At my direction, counsel for
the General Counsel called Horowitz’ office, Horowitz ad-
vised that he would appear when Bochner was available. The
hearing then opened and closed without any appearance from
the Respondent. Bochner wrote later that day seeking to re-
open the hearing. Once again, there was no explanation of-
fered as to Horowitz’ unavailability or why Horowitz never
informed Judge Bennett of Region 29’s postponement of the
asserted conflicting matter there or even why Horowitz had
been assigned to handle that Region 29 matter in place of
Ellman. Nor did Bochner state why he was taking over this
case from Horowitz when he knew he was unable to be
present as scheduled on December 9 or on the succeeding
day or days. By letter dated December 13, General Counsel
opposed the request to reopen . By letter of December 19,
1991, I denied the request and noted that the December 9 re-
quest, General Counsel’s December 13 letter of opposition,
and my letter of December 19 were made part of the record
as ALJ Exhibit 1 A, B and C, respectively.
On January 6, 1992, the Respondent filed a request with
the Board for special permission to appeal my ruling of De-
cember 6. I did not receive a copy of the request and con-
sequently do not know if Bochner had advised the Board that
he was available only for the afternoon of December 9 but
not on the succeeding day or days. The Board, by Order
dated January 20, 1992, affirmed the December 6 ruling. The
Respondent apparently did not file a request to appeal my
ruling of December 19. It is not clear that it ever advised the
Board of that ruling.
Respondent repeatedly has shown a lack of candor in its
requests, to a point bordering on a disdain for the Board’s
processes. This should not be countenanced.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends, in essence, that Mauro
Minervini, as president and owner of Vinisa II, closed down
its operations in early 1991 and, a few months later, surrep-
titiously relocated the business to a nearby town under the
Pisa name. The General Counsel alleges that this was done
to avoid Vinisa II’s obligations under its collective-bargain-
ing agreement with the Union and that Vinisa II-Pisa failed
to hire or to recall from layoff the employees of Vinisa II
in contravention of the provisions of that agreement and be-
cause the employees were members of the Union.
In support of those contentions, the General Counsel of-
fered the following testimony.
Marija Stepanov, a button-hole machine operator, and Car-
men Chappora, a union business agent, testified that
Minervini, in virtually every year from 1985 to 1991, has
moved his ladies coat manufacturing operations to different
locations, using different names. Thus, Stepanov testified that
in 1985, she worked for Evita Fashions in Hoboken, New
Jersey, as a button-hole operator on ladies coats under
Minervini, the owner, and that Evita Fashions was under
contract with the Union. She testified further that it is cus-
tomary in ladies coat manufacturing for a company to close
down during the winter months and to resume operations in
the spring. Pursuant to that practice, she had been laid off
in the winter of 1985–1986 from Evita. In April 1986,
Minervini telephoned Stepanov and told her to report to
work. She returned to the same job. The company, however,
had been changed to Vinisa, Ltd.; in all other respects,
Vinisa, Ltd. was the same as Evita Fashions. In the ensuing
winter season, she was laid off as was customary. Minervini
called her in the spring of 1987. She reported to work for
him at Min Dee Fashions, located at 5508 Polk Street, in
West New York, New Jersey. When the Union learned that
Min Dee Fashions was operating as nonunion, it called a
strike of the employees. The strike was settled when
Minervini agreed to ‘‘go back to the Union.’’ He recognized
the Union at that location. He, however, then changed the
name from Min Dee Fashions to Polk Street Fashions.
Stepanov related that, as before, she continued doing the
same type work for Polk as she had done when she was with
137VINISA II, LTD.
4 Fugazy Continental Corp., 265 NLRB 1301–1301 (1982).
5 Crawford Door Sales Co., and Cordes Door Co., 226 NLRB
1144 (1976).
6 Weinreb Management, 292 NLRB 428, 431 (1989), and cases
cited therein.
7 The complaint was amended to allege a violation of Sec. 8(a)(3),
although the underlying unfair labor practice charge contained no
Continued
Evita, Vinisa, and Min Dee and that all those operations ap-
peared to be identical, involving the making of ladies coats.
In the following winter, Stepanov was laid off along with
the other employees. When she returned in the spring of
1988 to that same facility, the only change was that
Minervini called the company Vinisa II.
Chappora, the Union’s business agent testified that on be-
half of Vinisa II, Minervini had signed ‘‘the same type con-
tract’’ as the one received in evidence—the 1988-1991 col-
lective-bargaining agreement between the International La-
dies’ Garment Workers’ Union, AFL–CIO and the Associa-
tion of Rain Apparel Contractors, Inc. Her testimony in that
Vinisa II thereby joined that Association, resulting in the es-
tablishment of the 3-year contract. Copies of correspondence,
in evidence, between the Union and the Association, confirm
that Vinisa II was so bound.
In January and February, 1991, Chappora, as was her prac-
tice visited the facility where Vinisa II had been located and
found that Vinisa II was no longer there. She learned from
some of the laid-off employees that Minervini was working
in a building on 5505 Palisade Avenue in West New York,
New Jersey.
Stepanov went to that facility in April 1991 and was told
by Minervini there that his company was nonunion. Stepanov
testified further that she did not ask to work there as she
would work only for a company under contract with the
Union. When Chappora later visited that same building, she
was not allowed inside. She was told by a person there, who
was responsible for security, that there were no union shops
in that building.
After several unsuccessful attempts to get into that build-
ing, Chappora, in July 1991, found an unlocked door. She
entered and was able to reach the floor where Minervini was
located. She, as did Stepanov, recognized a man named
Pedro working there; he had been a foreman at Vinisa II.
Minervini told Chappora that he, Minervini, was only the
manager. She observed about 25 employees there, making la-
dies coats. None had been employed at Vinisa II.
The General Counsel placed in evidence an affidavit
signed by Minervini in April 1991. Therein, he stated that he
was employed by Pisa Coat, Inc., a company owned by his
mother. The affidavit also related that she does not ‘‘run’’
the shop, that he will do the hiring and firing of employees
and set their wage scales and that he will start up the shop
as soon as he is able to locate a jobber who will give him
work. His affidavit noted also that some of Vinisa II’s ma-
chines have been set up for Pisa’s operations so that Pisa can
function as soon as it obtains work.
Minervini’s affidavit contains his complaint that Vinisa II
could get work only from nonunion jobbers who apparently
did not pay Vinisa II enough for it to make the payments
to the benefit funds under the Association-Union contract.
Minervini stated in his affidavit that he ‘‘had continually
asked the Union to get me work with Union jobbers
[b]ecause those jobbers will pay all the benefits.’’
In determining whether one business entity is the alter ego
of another, the Board considers a number of factors, none of
which, by itself, is determinative. Among the factors are
common management, ownership, common business purpose,
the nature of operations, and supervision; common premises
and equipment, common customers, i.e., whether the employ-
ers constitute ‘‘the same business in the same market’’; as
well as the nature and extent of negotiations and formalities
surrounding the transaction; whether the purpose behind the
creation of the alleged alter ego was legitimate or whether,
instead, its purpose was to evade responsibilities under the
Act.4
The evidence is clear that the operations of Vinisa II and
Pisa were managed solely by Minervini; Vinisa II and Pisa
were engaged in the manufacture of ladies coats; that the ma-
chines Vinisa II and Pisa used were in good part identical;
that Minervini supervised both operations assisted by a
Vinisa II foreman; that Minervini solicited business for both
companies from jobbers, i.e.—solicited the same market; that
the relocation of the business by Minervini had substantial
precedent, one instance of which had, in 1987, involved an
effort by Minervini to avoid the Union; and that again in
1991, Minervini set up Pisa as nonunion in the context of
concern that the Union had failed in what he perceived as
its obligation to find him jobbers who would pay enough for
Vinisa II to meet its contractual obligations. Minervini’s affi-
davit recites that his mother owns Pisa. The Board has held,
in that regard, that when corporations which are substantially
the same other than ownership but where members of the
same family are the owners, the totality of the circumstances
warrant its finding that ownership and control of both are
substantially identical.5 To find otherwise based on
Minervini’s statement that his mother owns Pisa is to ignore
the reality of the situation.6
In view of the foregoing, I find that Pisa is the alter ego
of Vinisa II, that it was established as an attempt to evade
Vinisa II’s contractual obligations to the Union and that, in
conjunction with that attempt, Pisa failed to recall the em-
ployees of Vinisa II because they were members of the
Union, and further that it unilaterally changed the recall pro-
cedure established in the collective-bargaining agreement.
CONCLUSIONS OF LAW
1. The Respondent, Vinisa II, and Pisa, its alter ego, con-
stitute a single employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent, Vinisa II-Pisa, engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act by having:
(a) Withdrawn recognition from the Union as the exclusive
collective-bargaining representative of its nonsupervisory
production, maintenance, packing, and shipping workers.
(b) Unilaterally rescinded the recall provisions of the col-
lective-bargaining agreement it has with the Union which
covered those employees.
4. The Respondent, Vinisa II-Pisa, has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act7 by having failed to recall from layoff the Vinisa
II employees because of their membership in the Union.
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such allegation. As the same evidence offered to support that allega-
tion was used to support the refusal to bargain allegation, the amend-
ment was appropriate. See Pergament United Sales, 296 NLRB 333
(1989).
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
5. The unfair labor practices described in paragraphs 3 and
4 above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent, Vinisa II-Pisa, has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend that the
Respondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent, Vinisa II-Pisa, shall be ordered to offer
its nonsupervisory production, maintenance, packing and
shipping workers who were laid off in the winter of 1990-
1991 reinstatement to their former jobs or, if those jobs are
no longer available, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges and shall make these employees whole for lost pay
they normally would have received, in accordance with the
formula prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The Respondent, Vinisa II-Pisa, shall further be required
to (1) notify the Union in writing that it recognizes the
Union as the exclusive collective-bargaining representative of
its nonsupervisory production, maintenance, packing and
shipping workers, (2) abide by the terms and conditions of
its collective-bargaining agreement with the Union, including
making all the requisite fund and other contributions there-
under, in accordance with Merryweather Optical Co. 240
NLRB 1213 (1979).
On these findings of fact and conclusions of law, and on
the entire records, I issue the following recommended8
ORDER
The Respondent, Vinisa II, Ltd. and Pisa Coat Co., Inc.,
West New York, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and to bargain collectively with
Local 162, International Ladies’ Garment Workers Union,
AFL–CIO as the exclusive representative of its non-
supervisory production, maintenance, packing, and shipping
workers.
(b) Failing to honor the provisions of the collective-bar-
gaining agreement it entered into with the above Union for
these employees.
(c) Failing to recall from layoff those employees so rep-
resented by its Union who were laid off in the 1990–1991
winter contrary to the provisions of that agreement and be-
cause they were members of the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to employees
laid off in the winter of 1990–1991 to their former jobs or,
if such jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and privi-
leges, replacing if necessary any employees hired in their
place and make them whole, with interest, for any loss of
pay suffered by reason of their not having been recalled ear-
lier, in the manner set forth in the remedy section above.
(b) Notify the Union in writing that it is recognized as the
exclusive collective-bargaining representative of the employ-
ees described above.
(c) Apply to these employees the terms and conditions of
the collective-bargaining agreement covering them, including
paying the moneys due for fund and other contributions, as
provided for in the remedy section above.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts owing under the terms of this Order.
(e) Post at its plant copies of the attached notice, marked
‘‘Appendix.’’9 Copies of the notice on forms to be provided
by the Regional Director for Region 22, after being signed
by the Respondent’s authorized representative, shall be post-
ed by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places at these
locations, including all places where notice to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps have been taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post, and abide by the terms of, this notice.
WE WILL NOT refuse to recognize Local 162, International
Ladies’ Garment Workers’ Union, AFL–CIO as the exclusive
collective-bargaining representative of our nonsupervisory
production, maintenance, packing, and shipping workers or
fail to give effect to the collective-bargaining agreement we
have with this Union for those employees.
139VINISA II, LTD.
WE WILL NOT fail or refuse to recall any of those employ-
ees from layoff in contravention of the applicable provisions
of that collective-bargaining agreement or because they are
members of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL notify the Union in writing that we recognize it
as the exclusive collective-bargaining representative of our
employees and WE WILL honor all the terms of our contract
with it, including making fund and other contributions.
WE WILL offer immediate and full reinstatement to all our
employees represented by the Union in early 1991 to their
former jobs or, if those jobs no longer exist, to substantial
equivalent jobs, without prejudice to their seniority or other
rights and privileges, replacing if necessary any employees
who were hired in their place, and WE WILL make them
whole, with interest, for any pay they lost as a result of their
not having been recalled.
VINISA, LTD. AND PISA COAT CO., INC.