Colonial Metal Spinning & Stamping Co.

National Labor Relations Board - Board Decisions

Jan 7, 1993

310 N.L.R.B. 21 (N.L.R.B. 1993)

21
310 NLRB No. 6
COLONIAL METAL SPINNING & STAMPING CO.
1 The judge inadvertently referred to Isaac Tyrnauer as ‘‘Irving.’’
2 The General Counsel has excepted to the judge’s failure to order
that the Respondent post the notice to employees in Spanish as well
as in English. As the majority of the Respondent’s employees are
Spanish speaking, we find merit to the General Counsel’s exception
and will require that the notice to employees be printed in Spanish
and English.
The General Counsel has excepted to the judge’s failure to specify
the exact date of reinstatement for Carlos Asang and Carlos Padin.
Because the record is not sufficiently clear to allow us to state with
certainty the exact date, we shall leave that determination for the
compliance stage of this proceeding.
The General Counsel requests that the Board clarify that the Re-
spondent’s bargaining obligation continues beyond the August 31,
1992 expiration of the contract. We find merit to this exception and
shall modify the recommended Order accordingly.
We shall also order the Respondent to make the unit employees
whole for any losses thay may have suffered as a result of the Re-
spondent’s failure to make the contractually required fund contribu-
tions. See Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).
Colonial Metal Spinning and Stamping Co., Inc.
and Regency Metal Stamping Co., Inc. and
Metal Spinners and Silver Plated Hollowware
Workers’ Union, Local 49E, Service Employees
International Union, AFL–CIO. Cases 29–CA–
15562, 29–CA–15813, and 29–CA–15964
January 7, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 24, 1992, Administrative Law Judge James
F. Morton issued the attached decision. The General
Counsel filed exceptions and a brief in support of the
exceptions and the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Colo-
nial Metal Spinning and Stamping Co., Inc., and its
alter ego, Regency Metal Stamping Co., Inc., Brook-
lyn, New York, their officers, agents, successors, and
assigns, shall take the action set forth in the order as
modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Recognize and, on request, bargain with the
Union as the exclusive representative of all the em-
ployees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment by continuing to apply the terms and con-
ditions of its contract with the Union which was effec-
tive September 1, 1989 through August 31, 1992, until
the Respondent and the Union reach a good-faith im-
passe or execute a new collective-bargaining contract,
or the Union refuses to bargain in good faith.’’
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Make employees whole with interest, for any
losses suffered as a result of the Respondent’s failure
to make contractually-required insurance and retire-
ment fund payments, in the manner set forth in the
remedy, as modified.’’
3. Substitute the attached notice in English and
Spanish for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT repudiate the terms and conditions of
our collective-bargaining agreement with Metal Spin-
ners and Silver Plated Hollowware Workers’ Union,
Local 49E, Service Employees International Union,
AFL–CIO (the Union) or withdraw recognition of the
Union as the exclusive collective-bargaining represent-
ative of the employees in the following appropriate
bargaining unit:
All employees employed at our Brooklyn, New
York facility, including journeymen, spinners, tool
and die makers, machinists, polishers, die setters,
shipping clerks, apprentice spinners, power and
draw press operators, general helpers and packers,
but excluding all office clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT fail to honor our obligations under
our collective-bargaining agreement with the Union by
not making required monthly payments to the Insur-
ance Fund and the Retirement Fund; by not paying the
general wage increase called for in that agreement, or
the vacation, holiday, and sick pay benefits; by not for-
warding to the Union dues deducted from employee
wages; by failing to honor the seniority provisions in
not reinstating employees, based on their seniority, on
their return from sick leave; or by effectively negating
the impact of the safety provisions of the agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The answer also averred that the complaint should be dismissed
as the Union can submit to an arbitrator the issues in this case pursu-
ant to the grievance-arbitration provisions of the agreement between
Colonial and the Union. That contention lacks merit as Regency has
refused to be bound thereby. See Regional Import & Export Trading
Co., 292 NLRB 206 (1988).
2 The Union filed a posthearing motion, one part of which related
to its request that a copy of the decision, in the matter of Lippel
v. Colonial, Index No. 22839/91 before the Supreme Court of New
York, be received in evidence. That part of the motion is granted
as it relates to two of the issues in this case. The court there con-
firmed an arbitration award which found that Regency is the alter
ego of Colonial and that the failure to reinstate the two employees
on sick leave, Asang and Padin, controverted its contract with the
Union. See American Commercial Lines, 291 NLRB 1066 at fn. 2
(1988). The Union, in its motion, also sought partial summary judg-
ment on the alter ego issue and as to Asan’s and Padin’s reinstate-
ment. General Counsel’s letter of March 12, 1992, opposed this part
of the motion. Based on the rationale of the case cited therein, Field
Bridge Associates, 306 NLRB 322 (1992), I find no merit to the
Union’s effort to apply the doctrine of collateral estoppel to those
two issues. Therefore, I deny the motion for partial summary judg-
ment.
The motion and General Counsel’s letter of March 12 are made
part of the record herein, as C.P. Exhs. 7-A and 7-B, respectively.
of their rights under Section 7 of the National Labor
Relations Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of all the em-
ployees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment by continuing to apply the terms and con-
ditions of our contract with the Union which was ef-
fective September 1, 1989, to August 31, 1992, until
we reach a good-faith impasse or execute a new col-
lective-bargaining contract, or the Union refuses to
bargain in good faith.
WE WILL make all payments to the Insurance Fund
and to the Retirement Fund, as required under our con-
tract with the Union.
WE WILL make our employees whole for any losses
they may have suffered as a result of our failure to
make contractually required fund payments, with inter-
est thereon.
WE WILL forward to the Union, with interest, all
union dues deducted from employee wages which have
not been remitted.
WE WILL offer immediate reinstatement to Carlos
Asang and Carlos Padin, and make them whole for all
losses they incurred by reason of our failing to rein-
state them on their return from sick leave in January
1991, with interest thereon.
WE WILL pay employees in the unit described
above, with interest, the general wage increase due
under our contract with the Union, and all benefits
thereunder including holiday pay, vacation, and sick
leave.
WE WILL notify the Union in writing that we will
meet with it on request to discuss the matter of provid-
ing safeguards to make our machinery safe to operate.
COLONIAL METAL SPINNING AND
STAMPING CO., INC. AND REGENCY
METAL STAMPING CO., INC.
David S. Cohen, Esq., for the General Counsel.
Robert C. Dorf, Esq. (Fertig & Dorf), of New York City,
New York, for the Respondents.
Ira Cure, Esq. (Lewis, Greenwald, Kennedy, Lewis, Clifton
& Schwartz, P.C.), of New York City, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint in these cases, which were consolidated for hearing
and amended at the hearing, alleges that Regency Metal
Spinning Co., Inc. (Regency) is the alter ego of Colonial
Metal Spinning and Stamping Co., Inc. (Colonial) and that
Colonial-Regency has failed to bargain collectively with the
Charging Party, Metal Spinners and Silver Plated Holloware
Workers’ Union, Local 49(E), Service Employees Inter-
national Union, AFL–CIO (the Union) in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). In particular, Colonial-Regency is alleged to have (a)
repudiated the collective-bargaining agreement it has with the
Union and withdrawn recognition of the Union as the exclu-
sive collective-bargaining representative of its employees and
(b) failed to honor its contractual obligations to the Union by
not:
(i) making payments to the Insurance Fund and the
Retirement Fund,
(ii) paying a general wage increase along with vaca-
tion, holiday, and sick pay benefits,
(iii) remitting to the Union dues deducted from the
wages of its employees.
(iv) reinstating two employees, Carlos Asang and
Carlos Padin, upon their return from sick leave.
(v) maintaining its equipment in safe condition.
The answer filed by Colonial and by Regency denies that
Regency is the alter ego of Colonial and also denies the al-
leged repudiation of the agreement between Colonial and the
Union.1
The hearing was held in Brooklyn, New York, on Decem-
ber 11 and 12, 1991. Upon the entire record,2 including my
observation of the demeanor of the witnesses, and after due
consideration of the brief filed by the General Counsel, I
make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
Colonial has been engaged at its Brooklyn, New York fa-
cility in the manufacture, sale, and distribution of metal
stampings used by companies in the lamp industry. As dis-
cussed infra, Regency took over that business in October
1990. In the 12-month period preceding that takeover, Colo-
nial derived in excess of $50,000 from the sale of its prod-
ucts to a customer located in New Jersey. Since October
23COLONIAL METAL SPINNING & STAMPING CO.
3 Isaac Tyrnauer and Anhel Tyrnauer each own other businesses,
not involved in this case.
4 Fugazy Continental Corp., 265 NLRB 1301 (1982).
5 Advance Electric, 268 NLRB 1001 (1984). See also Mid-Hudson
Leather Goods Co., 291 NLRB 449 (1988).
1990, Regency has derived annually in excess of $50,000
from sales to that same customer. Colonial and Regency each
meet the Board’s nonretail standard for the assertion of juris-
diction.
The pleadings establish that the Union is a labor organiza-
tion as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alter Ego Issue
In 1985, Irving Tyrnauer purchased Colonial and since
then, has been its sole stockholder and its president. Also
since then, the Union has represented a unit comprised of all
employees of Colonial, including journeymen, spinners, tool-
and-die makers, machinists, polishers, die setters, shipping
clerks, apprentice spinners, power and draw press operators,
and general helpers and packers but excluding all office cler-
ical employees, guards, and supervisors as defined in the
Act. The last signed collective-bargaining agreement for this
unit was executed on September 1, 1989, and was scheduled
to terminate on August 31, 1992. The alleged unlawful repu-
diation of the collective-bargaining agreement is asserted to
have occurred in 1990.
It was in late 1989 and in 1990 that Colonial fell behind
in making monthly payments, as required by that agreement,
to the Metal Spinners Insurance Fund and to the Metal Spin-
ners Retirement Fund. As to the former, Colonial was delin-
quent from March through September 1990 and, as to the lat-
ter, from October 1989 to September 1990. Further, although
it had deducted union dues from the wages of its employees,
it did not remit those moneys, as called for by the agreement,
to the Union for the period May through September 1990.
Colonial’s position is that it was impossible for it to comply
with those contractual obligations because it did not have the
money to do so.
Colonial acknowledged that its president, Isaac Tyrnauer,
after having failed to renegotiate the contract with the Union,
‘‘established Regency.’’ Tyrnauer, himself, acknowledged
that it was his ‘‘business purpose in commencing Regency
. . . to survive in some sort of an operation.’’ Tyrnauer re-
lated further that Regency is not yet operating at the profit
level that he is aiming at as ‘‘[he] still has to give away a
lot of stuff for very cheap [prices].’’
Regency had been incorporated in about July 1990, as evi-
denced by one of its corporate resolutions signed then and
by which it established a corporate bank account. Isaac
Tyrnauer’s name appears therein as Regency’s secretary, not-
withstanding his testimony that his brother Anhel Tyrnauer,
is the sole owner, president, and only officer of Regency.
On or about October 1, 1990, some of the approximately
30 employees in the unit described above were told by Colo-
nial’s shipping manager, William Gonzales, that ‘‘the com-
pany was going to change from Colonial to Regency.’’
Shortly afterwards, the employees began to be paid by Re-
gency checks instead of checks drawn on Colonial’s account.
They continued, without any hiatus, to work on the same ma-
chines, making the same products. Regency has used Colo-
nial’s list of customers without being charged for it. Isaac
Tyrnauer continued to use the same office he had used as
Colonial’s president. His brother, Anhel,3 the president of
Regency, shares an outer office with two employees.
All of Colonial’s employees, including managers and of-
fice clerical employees, were put on Regency’s payroll and
they continued to perform the same functions for Regency as
they had performed for Colonial. Regency used Colonial’s
assets without cost. No written agreement between Colonial
and Regency exists. Colonial holds title to the building occu-
pied by Regency and Regency pays no rent therefor. There
are many other common factors, such as Regency uses the
same telephone number that Colonial used, the same attor-
neys, and the same accountant.
Isaac Tyrnauer has continued to perform the same func-
tions for Regency that he performed as Colonial’s president.
In doing so, as his testimony reflects, he treats Regency as
his own company. Thus, he used the phrase, ‘‘my bank’’
when alluding to Regency’s bank account; he stated, ‘‘I am
ready to sign a contract [with the Union] for Regency’’; and
he referred to Regency’s employees as ‘‘my people.’’
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 transactions; 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 ownership of the two companies by members of
the same family and the absence of any arm’s-length deal-
ings have been held to be circumstances that support a find-
ing that the ownership of the two companies, for purposes
of deciding alter ego status, is substantially identical.5
Applying these principles to the facts in this case, and not-
ing that the operations of Colonial and Regency involved
identical management, business purpose, equipment, cus-
tomers, and employees, that they have substantially identical
ownership under the Advance Electric criteria and that Isaac
Tyrnauer set up Regency to avoid the costs of Colonial’s
contract with the Union, I find that Regency is the alter ego
of Colonial.
B. The Express Repudiation of the Union’s Collective-
Bargaining agreement
Isaac Tyrauer testified that Regency has not applied to its
employees the terms and conditions of the collective-bar-
gaining agreement between Colonial and the Union. He also
had told one of those employees in 1990 that that contract
no longer was valid. Colonial-Regency thereby has repudi-
ated that agreement and thus has failed to bargain collec-
tively with the Union, as contemplated by Section 8(d) of the
Act. See McAllister Bros., 278 NLRB 601, 617 (1986).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided in 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.
C. The Failure to Honor Certain Specified Provisions
of That Agreement
The agreement calls for Colonial-Regency to make month-
ly contributions to the two funds referred to above, to for-
ward to the Union the dues deducted from employee wages,
to give the employees a general wage increase, and to pro-
vide sick pay, holiday, and vacation benefits. Those obliga-
tions were not met, as alleged in the complaint. Colonial-
Regency’s assertion that it was financially unable to meet
those obligations does not constitute a defense. See Inter-
national Distribution Centers, 281 NLRB 742 (1986).
The agreement also provides that seniority shall govern as
to the layoff and recalls of employees. Two unit employees,
Carlos Asang and Carlos Padin, were on sick leave in early
1991. They were cleared by their doctors to return to work.
When they reported to the plant in January 1991, they were
not reinstated. At the hearing, Isaac Tyrnauer testified that
they were not reinstated because they were sick too often.
Less senior employees were working there. Further, Colo-
nial-Regency hired new employees afterwards. When Asang
and Padin protested that they had seniority rights entitling
them to work, Tyrnauer told them that the contract with the
Union is no longer valid. I find, based on the foregoing, that,
had Colonial-Regency honored the contract’s seniority provi-
sions, howsoever imprecise they were phrased, Asang and
Padin would have been reinstated, and that the repudiation
by Colonial-Regency of those provisions, along with the en-
tire contract for that matter, resulted in their not being rein-
stated.
The remaining allegation to be considered is that Colonial-
Regency abandoned its contractual obligation to make nec-
essary repairs on equipment safety features. The contract pro-
vides, as to safety, that a safety committee shall be formed
to promote safe working conditions. The evidence proffered
by the General Counsel is that the Union’s steward repeat-
edly complained to Isaac Tyrnauer that the machines had de-
fective handguards and that, each time, Tyrnauer’s response
in essence was that he would look into the matter. The con-
tract language does not directly pertain to those unresolved
complaints. However, the evasive responses by Tyrnauer to
the steward’s complaint discloses a total indifference to the
underlying concern addressed by the contract provision—the
need for safe operating equipment. Tyrnauer’s brushoffs of
the steward’s concerns thereon were, effectively, repudiations
by Colonial-Regency of the impact of the safety provisions
of the Union’s contract.
CONCLUSIONS OF LAW
1. Colonial with its alter ego Regency is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Colonial-Regency has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by
having
(a) Repudiated the terms and conditions of its collective-
bargaining agreement with the Union and withdrawn recogni-
tion of the Union as the exclusive collective-bargaining rep-
resentative of the following appropriate bargaining unit:
All employees employed at its Brooklyn, New York fa-
cility, including journeymen, spinners, tool and die
makers, machinists, polishers, die setters, shipping
clerks, apprentice spinners, power and draw press oper-
ators general helpers and packers, but excluding all of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
(b) Failed to honor its obligations under the collective-bar-
gaining agreement it has with the Union by not making re-
quired monthly payments to the insurance fund and the re-
tirement fund; by not paying the general wage increase called
for in that agreement, or the vacation, holiday, and sick pay
benefits; by not forwarding to the Union dues deducted from
employee wages; by failing to honor the seniority provisions
in not reinstating Carlos Asang and Carlos Padin on their re-
turn from sick leave; and by effectively negating the impact
of the safety provisions of the agreement.
3, The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent, Colonial-Regency, has
engaged in unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent, Colonial-Regency, shall be required to
notify the Union in writing, that it recognizes the Union as
the exclusive representative for the purposes of collective
bargaining. It shall remit all payments to the insurance fund
and to the retirement fund in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 at fn. 7
(1979). It shall reimburse its employees by paying the gen-
eral wage increase, and vacation, holiday, and sick leave
benefits and the Union with the dues it collected but did not
transmit—all with interest thereon as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Further, the Respondent, Colonial-Regency will be ordered
to offer Carlos Asang and Carlos Padin reinstatement to their
former jobs or, if those jobs are no longer available, to sub-
stantially equivalent jobs, without prejudice to their seniority
or other rights and privileges, and shall make these employ-
ees whole for lost pay and benefits they normally would
have received, less interim earnings, 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, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Colonial Metal Spinning and Stamping
Co., Inc., and its alter ego Regency Metal Stamping Co.,
Inc., Brooklyn, New York, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Repudiating the terms and conditions of its collective-
bargaining agreement with Metal Spinners and Silver Plated
25COLONIAL METAL SPINNING & STAMPING CO.
7 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.’’
Holloware Workers’ Union, Local 49E, Service Employees
International Union, AFL–CIO (the Union) and withdrawing
recognition of the Union as the exclusive collective-bar-
gaining representative of the following appropriate bar-
gaining unit:
All employees employed at its Brooklyn, New York fa-
cility, including journeymen, spinners, tool and die
makers, machinists, polishers, die setters, shipping
clerks, apprentice spinners, power and draw press oper-
ators, general helpers and packers, but excluding all of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
(b) Failing to honor its obligations under the collective-
bargaining it has with the Union by not making required
monthly payments to the insurance fund and the retirement
fund; by not paying the general wage increase called for in
that agreement, or the vacation, holiday, and sick pay bene-
fits; by not forwarding to the Union dues deducted from em-
ployees wages; by failing to honor the seniority provisions
of the contract in not reinstating Carlos Asang and Carlos
Padin upon their return from sick leave; and by effectively
negating the impact of the safety provisions of the agree-
ment.
(c) In any like or related manner interfering with, coercing,
or restraining its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify the Union in writing that it is recognized as the
exclusive collective-bargaining representative of the employ-
ees in the unit described above.
(b) Make all payments to the Insurance Fund and to the
Retirement Fund, as required under its contract with the
Union, in accordance with the remedy section above.
(c) Forward to the Union all union dues deducted from
employees’wages which have not been remitted, with interest
thereon as provided for in the remedy section.
(d) Offer immediate reinstatement to Carlos Asang and
Carlos Padin, and make them whole for all losses they in-
curred by reason of the failure to reinstate them upon their
return from sick leave in January 1991, with interest there-
on—all as specified in the remedy section above.
(e) Pay the employees in the unit described above the gen-
eral wage increase due under the contract with the Union, all
benefits thereunder including holiday pay, vacations and sick
leave, and the general wage increase, with interest as pro-
vided for in the remedy section above.
(f) Notify the Union in writing that it will meet on request
with it to discuss the matter of providing safeguards to make
its machinery safe to operate.
(g) 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.
(h) Post at its plant in Brooklyn, New York, copies of the
attached notice, marked ‘‘Appendix.’’7 Copies of the notice
on forms to be provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places 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, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps have been taken to
comply.