D.I.C. Manufacturing Co., Sewing Associates, Inc., And 970 Ridge Corp.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 426 (N.L.R.B. 1989)

426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D.I.C. Manufacturing Co., Sewing Associates, Inc.,
and 970 Ridge Corporation and Local 109,
International Ladies' Garment Workers ' Union,
AFL-CIO. Case 4-CA-16302
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 5, 1988, Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
Respondents D.I.C. Manufacturing Co. (D.I.C.)
and 970 Ridge Corporation (Ridge) filed exceptions
and a brief, Respondent Sewing Associates, Inc.
(Associates) filed exceptions and a brief, and coun-
sel for the General Counsel and the Charging
Party filed briefs in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record in light of
the exceptions and briefs, and has decided to-affirm
the judge's rulings, findings,' and conclusions, and
to adopt the recommended Order as modified.
In affirming the judge's finding that Ridge and
D.I.C. are a single employer, we note that Carlos
' Zukowski, the sole shareholder and chief managing
officer of Ridge and D.I.C., disregarded corporate
distinctions between these two entities in significant
respects. Ridge existed for the purpose of owning
the premises at 970 Ridge Avenue, which it leased
to D.I.C. for $400 a month. The record establishes
that immediately following D.I.C.'s payment of
rent each month to Ridge, Ridge-under Zukows-
ki's signature-issued a $356 monthly paycheck to
Zukowski. The, rental price included equipment
owned by Ridge and used by D.I.C. in the manu-
facture of women's apparel. Although the record
does not make clear when the transaction oc-
curred, Zukowski testified that D.I.C. (not Ridge)
traded in the original, Ridge-owned equipment in
the building and purchased new equipment, which
it later sold in 1987 after ceasing operations. D.I.C.
realized $32,500 in proceeds from the sale of the
equipment, but the money was deposited in Ridge's
checking account. Additionally, we note that $2500
in attorneys' fees incurred by D.I.C. in a dispute
with the Union concerning health and welfare ben-
efits were paid on a Ridge account. In all these
transactions, Zukowski was the principal. In addi-
tion, Zukowski freely admitted writing checks for
personal and household expenses on both the Ridge
and D.I.C. accounts.
Zukowski's operation of Ridge and D.I.C., indi-
cating that the two corporations shared equipment
and other assets , evidences an interrelation of oper-
ations, which when considered with the corpora-
tions' common ownership and common manage-
ment ,2 and Zukowski's disregard of corporate dis-
tinctions, warrants a finding that the two constitute
a single employer.
With regard to our affirmance of the judge's
finding that Associates was an alter ego of D.I.C.
and Ridge, we agree with the judge's rationale for
finding that the predominant ownership of Associ-
ates by Gina Zukowski and her two children,
Wendi (Zukowski) Hillerman and Russell Zu-
kowski, and Carlos Zukowski's sole ownership of
Ridge and D.I.C. give rise to a finding that the
three corporations are commonly owned. Relying
on cases also cited by the judge in the instant case,
the Board in Kenmore Contracting Co., 289 NLRB
336 (1988), found that two companies, owned re-
spectively by the parents and their children, were
commonly owned under the facts in that case. In
Kenmore, the Board noted that the two Hanley
children, who were the owners of nonunion Sloan
Erectors, were financially dependent on their par-
ents who were the owners of unionized Kenmore,
and that the children capitalized Sloan through in-
direct contributions from their parents. In the in-
stant case, Gina Zukowski's $20,000 investment in
Associates, as well as the $10,000 invested on
behalf of her two children,3 was financed by cash-
ing a $36,000 certificate of deposit that she held
jointly with her husband. Through this investment,
Gina Zukowski and her two children were able to
obtain 75 of Associates' 100 shares of stock, with
five former D.I.C. employees holding the remain-
ing 25 shares equally.4 We agree with the judge's
conclusions that this 75-percent ownership by Zu-
kowski's wife and children was used to conceal
Zukowski's ownership and ongoing active involve-
ment in Associates' operation. In particular, we
note that neither Gina Zukowski nor the children
were knowledgeable about the clothing manufac-
turing business. On this basis we find that on the
facts here presented, the judge was warranted in
' The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings
2 Common or central control of labor relations is not a factor because
Ridge has no employees
S The record shows that the children each received $5000 worth of
stock that had been obtained by their mother
4 In his decision, the judge observed that the stock certificates were
never distributed to their owners, and that several of the employee-inves-
tors did not know how many shares they owned
294 NLRB No. 30
D I C MFG CO
concluding that D.I.C., Ridge , and Associates were
commonly owned and that , as further explained by
the judge , Associates was an alter ego of the other
two companies. Accordingly , we agree with the
judge 's conclusion that the Respondents violated
Section 8 (a)(5) and ( 1) when Associates , about No-
vember 3 and all times material thereafter , refused
to recognize and bargain with the Union and abide
by the contract between D.I.C. and the Union.
Because Associates was the alter ego of D.I.C, it
was, as found by the judge , bound to the collec-
tive-bargaining agreement between D . I.C. and the
Union that was effective from June 1, 1985,
through May 31 , 1988. Under the terms of that
agreement , the Respondents were required to recall
laid-off former employees of D.I . C. to employment
at Associates , when the latter opened in November
1986, before hiring from other sources . The Re-
spondent , however , did not recall the former
D.I.C. employees , hiring new employees instead.
The judge found that the Respondents ' failure to
recall D.I.C. employees violated Section 8(a)(3) of
the Act . To remedy this violation , he ordered that
they recall the former D.I.C. employees and make
them whole for any loss of earnings or benefits suf-
fered by reason of the discrimination against them.5
Although we agree with the judge 's finding that
the conduct described above violates the Act, we
note that Associates is no longer in business and
that its closing has not been alleged to be a viola-
tion of the Act. Accordingly , we shall modify the
recommended Order to require that former D.I.C.
employees who were not recalled be made whole
for the period that Associates was in business, with
interest , and that the discriminatees be offered full
reinstatement to their former or substantially equiv-
alent positions of employment , without prejudice to
their seniority or other rights and privileges of em-
ployment, at such time as the Respondents may
resume operations.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents , D.I.C. Manufacturing Co., Sewing As-
sociates , Inc., and 970 Ridge Corporation , Scran-
ton, Pennsylvania, their officers, agents , successors,
5 To the extent that the Respondents must make fringe benefit contri-
butions to trust funds initially established under the terms of its collec-
tive-bargaining agreement with the Union , any interest due on trust fund
payments shall be computed in the manner prescribed in Merryweather
Optical Co , 240 NLRB 1213 (1979)
We further note that the level of backpay due employees with respect
to any failure of the Respondents to make such fringe benefit fund contri-
butions shall be calculated under the criteria set forth in Kraft Plumbing,
252 NLRB 891 at fn 2 ( 1980), enfd 661 F 2d 940 (9th Cir 1981)
427
and assigns , shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraphs 2(c)
and (d).
"(c) In the event of resumption of operations,
recall or offer employment to all former D.I.C.
unit employees to their former positions or substan-
tially equivalent ones , without prejudice to their se-
niority or other rights and privileges previously en-
joyed , before employing new employees.
"(d) Make whole all former D .I.C. unit employ-
ees who were not recalled or offered employment
with Sewing Associates, Inc. from the time it com-
menced operations until it closed , with interest."
2. Substitute the attached notice 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 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 withdraw recognition of Local
109, International Ladies' Garment Workers'
Union , AFL-CIO as the exclusive bargaining rep-
resentative of our employees in the appropriate
unit.
WE WILL NOT fail and refuse to recognize and
bargain collectively with the Union as the exclu-
sive bargaining representative of our employees in
the appropriate unit.
WE WILL NOT fail and refuse to abide by the col-
lective-bargaining agreement between us and the
Union.
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 , in the event of resumption of our op-
erations , recall or offer employment to all former
D.I.C. Manufacturing Company unit employees to
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their former positions or substantially equivalent
ones , without prejudice to their seniority or other
rights previously enjoyed, before employing new
employees.
WE WILL make whole all former D.I.C. unit em-
ployees who were not recalled or offered employ-
ment with Sewing Associates , Inc. from the time it
commenced operations until it closed , with interest.
WE WILL recognize and, on request, bargain
with Local 109 , International Ladies ' Garment
Workers' Union, AFL-CIO as the exclusive collec-
tive-bargaining representative of employees in the
below -described appropriate unit:
1. The bargaining unit consists of all non-su-
pervisory production (excluding pattern
makers), maintenance , packing and shipping
workers employed by all employers under col-
lective agreements with the Union.
2. Packing and shipping workers shall be
deemed to include , but not limited to, shipping
clerks , receiving clerks , chargers , order pick-
ers, checkers , piece goods workers , packers,
porters , and workers engaged in errands or in
the delivery of garments by hand or similarly.
With respect to such workers, temporary
workers shall be deemed within the bargaining
unit , but casual workers (those employed a
few hours a day), students employed during
vacation periods and heads of departments
shall not be deemed within the bargaining unit.
Where an Employer employs one or two such
workers, the right of the Employer to promote
a worker to head of the department shall, if
disputed by the Union, be subject to final de-
termination by the impartial Chairman. The
employment of casual workers in excessive
numbers or for extended periods shall not be
permitted.
D.I.C. MANUFACTURING Co.,
SEWING ASSOCIATES, INC., AND 970
RIDGE CORPORATION
Henry R. Protas, Esq., for the General Counsel.
David E. Koff, Esq. (Rosenn, Jenkins & Greenwald), of
Wilkes Barre , Pennsylvania , for Respondent Sewing
Associates.
Richard M. Goldberg, Esq. (Hourigan, Kluger, Spohrer &
Quinn, P. C.), of Wilkes Barre, Pennsylvania , for Re-
spondents D.I.C. and 970 Ridge Corp.
Charles W. Johnston, Esq., of Harrisburg , Pennsylvania,
for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN , Administrative Law Judge. On
charges of unfair labor practices filed on January 5, 1987
by Local 109, International Ladies' Garment Workers'
Union , AFL-CIO (the Union), against D.I.C. Manufac-
turing Co., and Sewing Associates , Inc. (Respondents), a
complaint was issued by the Regional Director for
Region 4 , on April 30, 1987 and an amended complaint
on October 2, 1987, against 970 Ridge Corp., also (Re-
spondent).
In essence, the complaint as amended alleges that the
Respondents are alter egos and a single employer within
the meaning of the Act; that as such , on or about No-
vember 3, 1986 , the Respondents withdrew recognition
of the Union as the exclusive representative of their em-
ployees in the unit ; that since on or about November 3,
1986, the Respondents have failed and refused , and con-
tinue to fail and refuse to recognize and bargain collec-
tively with the Union as the exclusive representative of
their employees in the unit; and that since on or about
November 3, 1986 , the Respondents have refused to
abide by the collective-bargaining agreement between
the parties , in violation of Sections 8(a)(1) and (5) and
8(d) of the Act; that since on or about November 3,
1986, Respondents have failed and refused to employ or
recall for employment employees formerly employed by
D.I.C.; and that the Respondents engaged in the latter-
described conduct to avoid its collective -bargaining obli-
gations with the Union as the exclusive representative of
the unit employees , in violation of Section 8(a) (3) of the
Act
Respondents D.I.C. Manufacturing and Sewing Asso-
ciates, Inc. filed an answer on May 14, 1987, and Re-
spondent 970 Ridge Corporation filed an answer on No-
vember 4 , 1987, denying the allegations as set forth in
the complaint, as amended.
The hearing in the above matter was held before me in
Scranton , Pennsylvania, on December 14 and 15, 1987.
Briefs have been received from the General Counsel,
counsel for Respondents D.I.C. and 970 Ridge Corpora-
tion, counsel for Sewing Associates , and counsel for the
Union , respectively , which have been carefully consid-
ered.
On the entire record in this case , including my obser-
vation of the demeanor of the witnesses , and my consid-
eration of the briefs filed by respective counsels, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material until April 1986 , D.I.C. Manufac-
turing Co . was engaged in the manufacture of women's
apparel from a plant located at 970 Ridge Avenue,
Scranton , Pennsylvania.
D.I.C. Manufacturing Co. and 970 Ridge Corporation
stipulated that in the course and conduct of their busi-
ness operations during the past year , D.I.C. Manufactur-
D I C. MFG CO
ing shipped goods valued in excess of $50,000 directly to
points outside the Commonwealth of Pennsylvania.
Sewing Associates admits in its answer that, in the
course and conduct of its business operation during the
past year, it shipped goods valued in excess of $50,000
directly to points outside the Commonwealth of Pennsyl-
vania.
The complaint alleges, Respondents D.I.C. Manufac-
turing and Sewing Associates admit, and I find that both
Respondents are now, and have been at all times materi-
al, employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
970 Ridge Corporation is, and has been at all times
material, a corporation engaged in the ownership and
rental of a plant located at 970 Ridge Avenue, Scranton,
Pennsylvania, which has been used for the manufacture
of women's apparel.
970 Ridge Corporation denies that it is an employer
engaged in commerce within the meaning of the Act,
and moved for its dismissal of the complaint against it,
on the grounds of lack of jurisdiction. Respondent 970
Ridge Corporation's motion to dismiss is denied pending
a determination of its alter ego/single-employer status.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges and Respondents D.I.C. Manu-
facturing Co. and 970 Ridge Corporation admit, and I
find, that the Joint Council, New York Coat, the Asso-
ciation, the Department, and Local 109, Ladies' Garment
Workers' Union, AFL-CIO are, and have been at all
times material, labor organizations within the meaning of
Section 2(5) of the Act.
By stipulation D.I.C. Manufacturing Co. and 970
Ridge Corporation admit that Northeast Apparel Asso-
ciation is an organization of employer-members, which
exist for the purpose, inter alia, of representing its em-
ployer-members in negotiating and administering collec-
tive-bargaining agreements.
Sewing Associates denies that, at all times material,
Dressmakers Joint Council and its constituent and affili-
ated locals, including New York Coat, are, and have
been, labor organizations within the meaning of Section
2(5) of the Act, because either it lacks knowledge of
their organizational function, or because it contends it
has no recognition obligations to them as an independent
enterprise Notwithstanding, because Respondents D.I.C.
Manufacturing and 970 Ridge Corporation admit the
labor organizational status of the aforenamed organiza-
tions, I find that such organizations are labor organiza-
tions within the meaning of the Act, and are applicable
to Sewing Associates if the latter is found to have alter
ego/single-employer status.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Carlos Zukowski is sole owner of 970 Ridge Corpora-
tion. 970 Ridge Corporation owns the 970 Ridge Avenue
building and the manufacturing machinery in it, but it
' The facts set forth above are not in conflict in the record
429
does not have any employees. After 1971, 970 Ridge
Corporation leased the 970 Ridge Avenue building and
machinery to D.I.C. Manufacturing Co. (D.I.C. Manu-
facturing), of which Carlos Zukowski is sole shareholder.
D.I.C. Manufacturing operated the dress manufacturing
business until April 1986, when it closed down business
operations. Six months later, 970 Ridge Corporation
leased the 970 Ridge Avenue building and machinery to
Sewing Associates, a group of former employees of
D.I.C., for the manufacture of women's dresses.
The Union alleges that D.I.C. Manufacturing Co. went
out of business to avoid its contractual and bargaining
obligations with the Union. Because the plant was leased
6 months after the closing of D.I.C. by Sewing Associ-
ates, which is composed of Zukowski's wife, son, and
daughter as principal shareholders, with former employ-
ees of D.I C., as minority shareholders, the Charging
Party alleges D.I.C. Manufacturing, 970 Ridge Corpora-
tion, and Sewing Associates constitute an alter
ego/single-employer arrangement. It further alleges that
such business arrangement was designed for the purpose
of withdrawing recognition of the Union and avoiding
D.I.C. and 970 Ridge's contractual and bargaining obli-
gations with the Union. D.I.C., 970 Ridge Corporation,
and Sewing Associates all deny they constitute an alter
ego or single-business enterprise, or that their business
transactions were undertaken to avoid any contractual or
bargaining obligations with the Union.
B. Business Ownership and Operations of D.I. C.
Manufacturing
The undisputed evidence shows that D . I.C. Manufac-
turing is a Pennsylvania corporation of which Carlos Zu-
kowski is the sole stock owner and president , his wife
Gina, vice president , and Joyce Sargent , secretary. There
is no dispute that prior to April 1986 , D.I.C. was en-
gaged in the manufacture of women 's dresses.
Northeast Apparel Association , Inc., is an organization
of employer -members which represents employer-mem-
bers for the purpose of negotiating and administering
collective -bargaining agreements . Dressmakers Joint
Council , which consists of Local 109 , International
Ladies' Garment Workers' Union , AFL-CIO and other
labor organizations , has been a party to several collec-
tive-bargaining agreements with the Association. The
most recent of such agreements , by its terms, was effec-
tive from June 1, 1985, through May 31, 1988.
The collective -bargaining agreement of D.I . C. Manu-
facturing provided that D.I.C. was required to give em-
ployment to workers who have been laid off at the end
of the preceding season, before employing new help.
Sewing Associates did not attempt to hire former D.I.C.
Manufacturing employees before it employed new em-
ployees of the general public.
Zukowski testified that between November 5, 1984,
and June 14, 1986 , he wrote checks to himself for
$356.08 as salary . He was the executive management offi-
cial of D . I C. and he worked in the office , except 1 day
each week , when he was away soliciting and bidding on
jobs from customers.
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Starting in August or September 1985, Zukowski ob-
tained a real estate license and commenced performing as
a part-time real estate agent until January 1986, when he
devoted full time to that task . Whenever Zukowski was
away from the plant , Mary Andrea Polk, floorlady and
manager, was in charge . She made daily work assign-
ments to employees , checked the quality of their work,
and dealt with the Union on behalf of D.I.C.
Joyce Sargent was bookkeeper and she worked in the
office where Zukowski worked and she signed checks
for employees ' payroll and company bills.
D.I.C. commenced its dress manufacturing operation
after 1972 . It contends it closed business in April 1986
because it lost two major customers , Sandy Stevens and
Murray Misner , Inc. union jobbers , which went out of
business and D . I.C. was unable to replace them with
union jobber work and because it could not pay the con-
tributions to the Union 's health and welfare fund. The
contract between D.I.C. and the Union permitted D.I.C.
to perform work for nonunion manufacturers , but D.I.C.
had to ' pay additional money to the Union health and
welfare fund in New York . Consequently , Zukowski laid
off 50 to 60 employees and closed D.I.C. in April 1986.
Zukowski acknowledged that he referred to the health
and welfare fund as "ransom money."
Gina Zukowski testified without dispute that she and
her husband , Carlos Zukowski , jointly owned a certifi-
cate of deposit for $20,000; that she cashed in the certifi-
cate of deposit and purchased $20,000 worth of stock in
Sewing Associates. She said she did not know how many
shares her money bought ; she did not know how the
money was transferred to Sewing Associates ; and she did
not receive a receipt for the purchase of stock . She said
without knowing anything about the dress manufacturing
business , she invested in Sewing Associates because she
knew the investors so well , and she was aware that
D.I.C. Manufacturing closed because of losing money;
but she knew the rent from Sewing Associates would
provide rental income for her husband from the idle and
vacant 970 Ridge building.
Wendi Hillerman initially testified she paid $1000 for
shares of stock in Sewing Associates. She credibly ac-
knowledged on examination that the shares were a gift to
her from her parents, Gina and Carlos Zukowski, in No-
vember 1986 , as an anniversary , birthday , and Chanuk-
kah gift ; that she did not know how many shares of
stock she owned; that she never received any document
of ownership of stock ; that she did not know she was on
the board of directors of Sewing Associates ; and that she
lives 115 miles from the Company.
Similarly , 24-year-old Russell Zukowski lives in Geor-
gia and his mother, Gina Zukowski, testified his $5000
shares were an all-occasion (birth , holiday , etc.) gift to
him from his parents , Gina and Carlos Zukowski.
Andrea Polk , president and manager of Sewing Associ-
ates , said she paid $200 a piece for five shares of stock in
the Company.
Theresa Gregorski testified she purchased $ 1000 worth
of shares but she did not know how many shares that
represented; and that she never received receipt or docu-
mentation of ownership for her purchase.
Vice president/secretary of Sewing Associates , There-
sa Gregorski , credibly testified she purchased $1000
worth of stock, but did not know how many shares it
bought ; that she never received any document of owner-
ship for her purchase ; that she did not know Wendi and
Russell Zukowski , even though they too were members
of the board of directors of Sewing Associates with her,
and that she had no involvement with the business oper-
ation of the Company.
Mary Ann Kerecman testified she paid $1000 for the
purchase of stock in Sewing Associates but did not know
how many shares of stock she owned.
Irene Cierkowski testified she purchased $ 1000 worth
of stock in Sewing Associates but she did not know how
many shares she owned ; and that she operated the identi-
cal sewing machine for Sewing Associates that she oper-
ated for D.I.C. Manufacturing.
Sewing Associates ' bookkeeper and assistant manager,
Joyce Sargent , testified she paid $1000 for five shares of
stock in Sewing Associates.
It is clear from the uncontroverted evidence of record
that 970 Ridge Corporation is owned exclusively by
Carlos Zukowski. It is equally well established under the
credited evidence that D.I.C. Manufacturing is also
owned exclusively by Carlos Zukowski , on which board
of directors , Zukowski 's wife , Gina, serves. Although
Zukowski does not personally "in name" own any stock
in Sewing Associates , his wife , Gina Zukowski , owns 51
of 100 shares , his daughter, Wendi Zukowski Hillerman,
owns 12 shares , and his son , Russell Zukowski , owns 12
shares of Sewing Associates' stock . Consequently, Zu-
kowski 's family owns 75 of the 100 shares of stock of
Sewing Associates . The remaining 25 shares are owned
by 5 former D.I.C. employees in the amount of 5 shares
apiece at the cost of $200 a share.
I therefore conclude and find on the foregoing evi-
dence that the owner of 970 Ridge Corporation and
D.I.C. Manufacturing is Carlos Zukowski.
C. The Formation of Sewing Associates
Essentially all the testimony on the discussions con-
cerning the formation of Sewing Associates was given
by witnesses Valerie Rosengrant , and to a substantially
less degree by Theresa Gregorski , and the minimal re-
mainder by the president of Sewing Associates, Andrea
Polk. It is particularly noted , however, that Rosengrant
testified without dispute that Joyce Sargent called her at
her home in August 1986 and informed her that there
was a meeting being held at her house to discuss reopen-
ing the plant . Sargent also called Rosengrant at a later
time and informed her about a second meeting at her
home on September 11 to discuss additional information
regarding reopening the plant . She told Rosengrant on
both occasions not to tell anybody about the meetings.
Rosengrant further testified that Carlos Zukowski was
present at both meetings and at the first meeting, told the
15 former D.I.C. employees he was thinking about re-
opening the factory and was talking to his lawyer in this
regard ; that he had to talk to his lawyer about "getting
the Union off his back"; that he closed D.I.C. because he
lost two jobber customers and the business was not prof-
D.I.C. MFG. CO.
itable, and because he had to pay a percentage of money
to the Union 's health and welfare fund , which money he
described as "ransom money ." He further stated that he
did not tell them at the time of closing that he was think-
ing about reopening the factory because he could be ac-
cused of "Union busting." He said he was reopening the
factory nonunion by using investors, but he would keep
his real estate job so it would appear he is not involved
in the factory ; that he had another 10 years to put into
the factory and he would act as consultant and go-be-
tween in securing work for the factory; that he wanted
to open the new factory in January 1987 and he needed
them to invest $500 to $1000, which they could pay ini-
tially or by payroll deduction like a Christmas club; and
that, as investors , the Union could not bother them.
Carlos Zukowski denied the statements attributed to him.
Essentially , neither Theresa Gregorski nor Andrea
Polk contradicted Rosengrant's testimony as described
above . The only aspect of Rosengrant 's testimony, which
was controverted by Polk and Gregorski , was Gregors-
ki's statements that Zukowski said he "could not reopen
the business," and she said she did not hear him say he
would not have the Union . However, she said she under-
stood that the new company would be started as non-
union. Polk only contradicted Rosengrant 's testimony
that Zukowski said he "was still going to be the boss, in
low profile ." Patricia Zanghi simply testified that she
overheard Zukowski tell an unidentified employee he
was "sorry but he was not her boss, that if she wanted to
know anything, ask her boss , Andrea Polk."$
The record evidence established without dispute that
Sewing Associates ' attorney, David Koff, executed an
agreement on behalf of Sewing Associates for the con-
sultative services of Carlos Zukowski . Both Zukowski,
Sargent, and Andrea Polk testified that , in fact, his con-
sultative services were never needed or used by Sewing
Associates.
2 I credit the testimonial account of Rosengrant not only because I was
persuaded by her demeanor that she was testifying truthfully , but also,
because her testimony is essentially uncontroverted by Gregorski, and
Respondent 's witnesses Andrea Polk and Patricia Zanghi . I do not credit
the version of Andrea Polk because of her close relationship with Zu-
kowski as floorlady and reputed manager for D.I.C., subsequent manager
of Sewing Associates, and because Polk gave very little testimony about
what Zukowski had to say in either of the meetings . Moreover, I was not
persuaded by Polk's demeanor that she was candid in telling the whole
truth Although Gregorski said Zukowski said he could not reopen the
business , I do not find her testimony necessarily in conflict with Rosen-
grant's , in this regard because , assuming she is correct, Zukowski could
have meant he could not reopen the Company as D.I.C., which he did
not do . Although Gregorski said she did not hear Zukowski say he
would not have the Union , she nevertheless acknowledged she did under-
stand the new company would be nonunion . I was persuaded that Gre-
gorski was telling some of the truth , but I was persuaded she was not
telling the whole truth , and I discredit her testimony that she did not
hear Zukowski announce that the new company would be nonunion be-
cause it may be reasonably inferred that she received her understanding
from his statement . Additionally, I also credit the testimonial account of
Rosengrant over that of Gregorski , Polk, and Zukowski because Rosen-
grant's account is consistent with the credited record evidence as a
whole, as the organizational events of Sewing Associates subsequently
unfolded.
431
Conclusions
I therefore conclude and fmd on the foregoing cred-
ited evidence, as well as the credited evidence in this
record , infra, that Zukowski 's statements at the meetings,
to the effect that he planned to reopen the factory non-
union with investors , and he was talking to his lawyer
about it-and "getting the Union off his back"; that he
closed D.I.C. Manufacturing because he had to pay
money to the Union 's health and welfare fund , which he
described as ransom money-implying it was an unfair
payment or some form of extortion ; that he was keeping
his real estate job to make it appear he was not involved
with the factory, but he would still be a consultant and
help to obtain work for the factory . I further find that all
of such evidence constituted evidence of alter ego status,
because manifest in such evidence , is one of the main
purposes behind creating Sewing Associates , to evade re-
sponsibilities under the Act and the contract between
D.I.C. Manufacturing and the Union . Advance Electric,
supra; Apex Decorating Co., 275 NLRB 1459 (1985).
Analysis and Conclusions
The principal question presented for determination is,
whether at all times material , D.I.C. Manufacturing, 970
Ridge Corporation , and Sewing Associates constituted
alter ego/single-employer status.
As early as 1965 the Supreme Court held that in deter-
mining whether enterprises constitute a single employer,
"The criteria set out and elaborated in the Board's deci-
sions are interrelation of operations , common manage-
ment , centralized control of labor relations and common
ownership ." Radio Union 1264 v. Broadcast Service, 380
U.S. 255, 256 (1965).
The Board has held that for purposes of the Act,
single-employer status depends upon all circumstances of
a case . However , it noted that not all the controlling cri-
teria specified by the Supreme Court need be present.
Blumenfeld Theatres, 240 NLRB 206, 214, 215 (1979).
The Board has also held that substantial common own-
ership among family members is sufficient for alter ego
purposes. Identical ownership is not mandatory for such
a finding . Advance Electric, 268 NLRB 1001 (1984);
Farmingdale Ironworks, 249 NLRB 98, 107 (1980); Craw-
ford Door Sales Co., 226 NLRB 1144 (1976).
The Board has generally found alter ego status when
two ostensibly separate companies have substantial or
identical (1) ownership, (2) management , (3) business
purpose, (4) operation, (5) equipment, (6) customers, and
(7) supervision. Shellmaker, Inc., 265 NLRB 749 (1984);
Advance Electric, supra at 1002 ; Crawford Door Sales Co.,
supra.
The Supreme Court has also held that two separate
business entities may be regarded as a single employer if
one is the alter ego or "disquised [sic] continuance" of
the other. Southport Petroleum Co. v. NLRB, 315 U.S.
100, 106 (1942).
Additionally, the court of appeals has held that "The
crucial element in a decision to apply the alter ego doc-
trine is a finding that the older company continued to
maintain a substantial degree of control over the business
claimed to have been sold to the new entity ." NLRB v.
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scott Printing Corp., 612 F.2d 783, 786 (3d Cir. 1979); and
the Board has held that in determining whether alter ego
is present, it will consider "whether the alleged alter ego
was legitimate or whether, instead, its purpose was to
evade responsibilities under the Act." However, it fur-
ther states that intent is not an essential element of an
alter ego relationship . Advance Electric, supra; Fugazy
Continental Corp., 265 NLRB 1301 (1982), enfd. 725 F.2d
1416 (D.C. Cir. 1983).
Ownership and Management of Sewing Associates
The record shows that Sewing Associates came into
existence November 3, 1986, and that its shareholders are
as follows [G .C. Exh. 7.]
Unanimous Consent in Lieu of First Meeting of
the Board of Directors of Sewing Associates, Inc.,
dated November 3, 1986 , lists the shareholders of
the corporation as follows:
Shareholders No. ofShares Amount Paid
Gina Zukowski 51 $20,000
Wendi Hillerman 12 4,800
Russell Zukowski 12 4,800
Andrea Polk 2.5 1,000
Theresa Gregorski 2.5 1,000
Mary Ann Kerecman 2.5 1,000
Irene Cierkowski 2.5 1,000
Joyce Sargent
(G.C. Exh. 7)
2.5 1,000
The stock certificates, which were never distributed to
their owners , show the following ownership interests in
the Company (Tr. 128, 129).
Shareholders No. of Shares
Gina Zukowski 51
Wendi Hillerman 12
Russell Zukowski 12
Andrea Polk 5
Theresa Grergorski 5
Mary Ann Kerecman 5
Irene Cierkowski 5
Joyce Sargent 5
Interestingly , Gina Zukowski purchased her shares for
$20,000 by cashing a $20,000 certificate of deposit which
was jointly owned by herself and her husband, Carlos
Zukowski . The $5000 paid for shares for Wendi Zu-
kowski Hillerman , and the $5000 paid for the shares of
Russell Zukowski, were both a gift from their parents,
Carlos and Gina Zukowski . Under these circumstances
the conclusion is inevitable that ownership of 75 shares
of the stock by the Zukowskis makes Sewing Associates
essentially a family-owned corporation. The conclusion is
correct even though, Carlos Zukowski does not own any
Sewing Associates' stock in his name . More importantly,
Zukowski helped to finance half of the purchase of his
wife's shares, and he and his wife financed the purchase
of the shares of their son and the shares of their daugh-
ter, since the - evidence clearly establishes that neither
child (Wendi nor Russell) ever actually received the
$5000 each, which money was used to purchase stock in
their names in Sewing Associates . The money for their
shares was transferred directly from the control of their
parents (the Zukowskis) to Sewing Associates with the
consent or authorization of Wendi and Russell.
It is also noted in the instant case , that neither stock-
holder Gina Zukowski nor Wendi Zukowski Hillerman,
knew anything more than they were stockholders in
Sewing Associates ; neither knew how many shares of
stock their money purchased and they owned , nor pre-
cisely how the money for the purchase of their shares
was transmitted for payment to Sewing Associates.
Wendi Zukowski Hillerman did not know she was a
member of the board of directors and neither she nor her
brother, Russell Zukowski, had ever attended a board of
directors' meeting , although their father , Carlos Zu-
kowski, who is not a board member , had attended such a
meeting . All of these factors clearly indicate that Carlos
Zukowski had a more involved interest in the ownership
and operation of Sewing Associates than Respondents
now contend . Also, the circumstances under which
shareholders would receive dividends were not described
and the shareholders did not receive any dividends. Nei-
ther Gina Zukowski nor Wendi Zukowski Hillerman in-
quired about the number of shares they owned or the
payment of dividends . It is therefore clear that Sewing
Associates is a family corporation and that Gina , Wendi,
and Russell were used to conceal Carlos Zukowski's
ownership interest and involvement in Sewing Associ-
ates. Under such circumstances, the Board has found,
and I now fmd , such evidence sufficient evidence of
common ownership to support a fmding of alter ego
status. Mar-Kay Cartage, 277 NLRB 1335, 1341 ( 1985).
Other evidence of Carlos Zukowski 's ownership inter-
est in Sewing Associates was the payment of $2000-per-
month rent by Sewing Associates to 970 Ridge Corpora-
tion (Carlos Zukowski), as compared to $400 per month
paid by D.I.C. Manufacturing , ending only a few months
earlier . For several months, Sewing Associates (Joyce
Sargent), in lieu of paying the $2000-per-month rent to
970 Ridge Corporation, paid bills of the defunct D.I.C.
Manufacturing Co., without giving any accounting of
such payments to Carlos Zukowski, that she paid the
bills of D .I.C. Manufacturing , or 970 Ridge Corporation.
Carlos Zukowski withdrew money from Sewing Associ-
ates' account through bookkeeper Joyce Sargent, whom
he said he considered a family member.
Under the foregoing circumstances , it is clear that ben-
efits of ownership flowed from Sewing Associates to its
predecessor employer, D.I.C. Manufacturing (Carlos Zu-
kowski), in the payment of bills, and such evidence is
sufficient to support a finding of an alter ego relation-
ship, even in the absence of actual common ownership.
All Kind Quilting, Inc., 266 NLRB 1186 fn . 4 (1983),
American Pacific Concrete Pipe Seal Ca, 262 NLRB 1223,
1226 (1982).
Based on the foregoing essentially uncontroverted and
credited evidence regarding the formation and ownership
of Sewing Associates, I fmd that the Zukowski family is
a substantial owner of Sewing Associates ; and that since
Carlos Zukowski is the exclusive owner of 970 Ridge
D.I.C. MFG. CO.
Corporation and D . I.C. Manufacturing , his family's sub-
stantial ownership of Sewing Associates makes Sewing
Associates' ownership and management interest substan-
tially identical to the ownership of D.I .C. Manufactur-
ing. Advance Electric , supra; Farmingdale Iron Works,
supra . I further find Carlos Zukowski 's family interest in
Sewing Associates sufficient evidence of common owner-
ship to support a finding of alter ego status . Mar-Kay
Cartage, supra at 1341.
The Alter Ego/Single-Employer Status
In evaluating the evidence of the interrelations of op-
erations, common management , centralized control of
labor relations and common ownership between D.I.C.
Manufacturing and Sewing Associates, the following is
established:
Comparative Business operations of Sewing Associates
and D.I.C. Manufacturing:
Sewing Associates
1. Location-leased
970 Ridge Ave. from
970 Ridge Corp.,
owned by Carlos
Zukowski, who
established the rent
for Sewing Assoc. at
$2,000 per month, but
was reduced to $1,200
a month in April 1987.
From Nov. 1986 to
April 1987 Sewing
Assoc. did not issue
any checks for rent to
970 Ridge Corp., but
paid the bills of D.I.C.
Manufacturing.
2. Rent-Sewing
Assoc. did not issue a
check to 970 Ridge
Corp. for rent from
Nov. 1986 to April
1987, but instead, paid
the bills of D.I.C.
Manufacturing, in lieu
of rent, by depositing
a monthly check into
D.I.C.
Manufacturing's
account, labeled, on
account of rent. In
April 1987, Sewing
Assoc. for the first
time started issuing a
check to 970 Ridge
Corp.
3. Accountant-Jack
Marks
D.I.C. Manufacturing
Location-970 Ridge Ave.
leased by D.I.C.
Manufacturing from 970
Ridge Corp. owned by
Carlos Zukowski, at a rental
of $400 per month.
Rent-D.I.C. Manufacturing
paid $400 a month rent to
970 Ridge Corp.,(Carlos
Zukowski).
Accountant-Jack Marks
433
4. Equipment-same Equipment-Machines
machinery owned by owned and used by
D.I.C. Manufac . was Manufacturing (Carlos
used but not leased by Zukowski).
Sewing Assoc., except
for one machine
bought or used by
Sewing Associates.
5. Customers Customers
(a) Ellen Hart, (a) Ellen Hart
referred to Sewing
Assoc. by Carlos
Zukowski.
(b) Tafford (b) Budget Uniforms,
Manufacturing formerly Tafford Mfg.
(c) Tailored Apparel , (c) Tailored Apparel, Inc.
Inc.
Common Management, Control and Supervision of
D.I.C. Manufacturing , 970 Ridge and Sewing
Associates
If there were any management staff at D.I.C. manufac-
turing at all, it is clear from the evidence that those who
steered the managerial operation of D.I .C. Manufactur-
ing were: (1) owner, Carlos Zukowski, (2) Andrea Polk,
who gave work assignments, was reputed as manager
and floorlady , represented D.I.C. Manufacturing when
dealing with the Union, and was in fact a manager, and
(3) Joyce Sargent, the bookkeeper and secretary of
D.I.C., who had authority and did , in fact, sign checks
and adjust employee grievances.
Common management and control are also present
since Carlos Zukowski is the exclusive manager of 970
Ridge Corporation , and he was also the owner and gen-
eral manager of D.I.C. Manufacturing . Because Mr. Zu-
kowski was the chief manager of both companies and no
other person was shown to have equivalent authority in
either company, it is reasonably inferred from such cir-
cumstances that he was in charge of labor relations for
both companies Consequently , labor relations policies for
both companies are determined by D.I.C. (Carlos Zu-
kowski). The viability of the two companies as landlord
and tenant with the same financial accounting were de-
pendent one on the other for their survival and success.
They were inextricably bound to each other in a single
business purpose and I find that they constituted in this
arrangement, a single-employer . Land Equipment, 248
NLRB 685 , 688 (1980); Allcoast Transfer, 271 NLRB
1374, 1379. The financial interchange (same account and
withdrawals of money from both companies by Zu-
kowski) between D.I.C. Manufacturing , Sewing Associ-
ates, and 970 Ridge Corporation is additional evidence of
their single-employer status . Dahl Fish Co., 279 NLRB
1084 ( 1986).
Carlos Zukowski and Andrea Polk were managers of
D.I.C. Manufacturing and Andrea Polk was the chief
manager of Sewing Associates , with Carlos Zukowski,
her consultant under contract . Zukowski was in charge
of labor relations at 970 Ridge Corporation and D.I.C.
Manufacturing . It is therefore reasonably inferred from
this evidence and other evidence in the total record, that
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
some , if not all of Zukowski's labor relations policies
were infused into Sewing Associates through his former
D.I.C. manager and friend, Andrea Polk, to whom he
was also consultant under the contract; and also, because
Zukowski knew and understood the total operation of
the dress manufacturing business and Polk and Sargent
did not. Obviously, that is why Sewing Associates con-
tracted for Zukowski's consultative services.
The evidence is uncontroverted that Polk and Sargent
became the managers of Sewing Associates. Although
the testimonial evidence showing that Carlos Zukowski
did not report to the factory except on one, two, or
three occasions on the request of Polk to repair machin-
ery, the evidence clearly shows that Mr. Zukowski was
the chief moving source in the creation of Sewing Asso-
ciates. His family became the substantial owner of
Sewing Associates of which he stated prior to its forma-
tion, that he "would be the boss but would keep his real
estate job to make it appear he was not involved in man-
agement of the factory." Moreover, Carlos Zukowski
was the most knowledgeable of the two visible managers
(Polk and Sargent) on the total operation of the dress
manufacturing business, which is probably why he at-
tended a board of directors meeting with Directors Polk
and Sargent. Under contract, he was a consultant to
Sewing Associates and I am not persuaded by the testi-
mony of Sewing Associates' managers that they never
needed or used his consultative services. Under the cir-
cumstances here, common experience discredits it.
When all of these aspects of Carlos Zukowski's
behind-the-scenes relationship to Sewing Associates are
considered in conjunction with his family's substantial
ownership, it is reasonably inferred from such circum-
stances that Carlos Zukowski is a part of management of
Sewing Associates. Because Polk and Sargent were a
part of management at D.I.C. Manufacturing, it is obvi-
ous that they continued their managerial functions with
Sewing Associates, and that such evidence establishes
continuity of managerial control and supervision from
D.I.C. Manufacturing.
Business Purpose
Sewing Associates' business purpose was to engage in
the identical business operation (manufacturing dresses)
as was D.I.C. Manufacturing. It did so engage, from No-
vember 3, 1986, until August 1987. As such, Sewing As-
sociates employed 57 individuals, 18 of whom were
former employees of D.I.C. Manufacturing.
The evidence of record is without conflict, and I find,
that Sewing Associates has the identical business purpose
as D.I.C. Manufacturing, namely; the manufacture of
women's dresses.
Equipment
It is established by the uncontroverted evidence that
except for one machine and the use of an outside cutting
machine, Sewing Associates used the same machines in
the manufacture of its dresses as did D.I.C. Manufactur-
ing. In fact, the machines, with the exception of one,
were owned by D.I.C. Manufacturing and it was not
shown that Sewing Associates paid any special fee for
their use by Sewing Associates. Consequently, I find that
both D.I.C. Manufacturing and Sewing Associates used
the same equipment in their manufacturing processes.
Customers
Alter ego criteria has been found satified by the Board
where a second company has the same type but not nec-
essarily identical customers . American Pacific Concrete
Pipe Co., supra at 1226 fn. 14.
Conclusion-Customers
In the instant case, D.I.C. Manufacturing lost two of
its major unionized customers who went out of business,
and by which closing , D.I.C. now contends it was forced
out of business. However, two of D.I.C. Manufacturing
nonunion customers (Ellen Hart and Tailored Apparel,
Inc.) remained in business and became customers of
Sewing Associates. Although D.I.C. Manufacturing's
nonunion customer, Tafford Manufacturing, went out of
business it was nevertheless succeeded or purchased by
Budget Uniforms, which became a customer of Sewing
Associates. The first two of these customers were identi-
cal customers of D.I.C., and the newly purchased or suc-
ceeding business of Budget Uniforms was the same type
of customer (nonunion dress manufacturers) for which
D.I.C. Manufacturing performed the same type dress-
making services . Consequently, I find that there is com-
monality of two of the identical customers (Ellen Hart
and Tailored Apparel, Inc.), and the same type of new
third customer (Budget Uniforms) for which D.I.C. per-
formed work. American Pacific Concrete Pipe Co., supra.
Based on the foregoing credited evidence, I conclude
and find that the labor management, control, and super-
vision criteria enunciated in the above-cited court and
Board decisions have been satisfied, and that D.I.C.
Manufacturing and Sewing Associates are and have been
alter egos and single employer within the meaning of the
Act. Shellmaker, Inc., supra; Crawford Door Sales Compa-
ny, supra. This finding is made while consciously cogni-
zant of the rule that no one factor is "the siuane quo non
of alter ego status." Fugary Continental Corp., 265 NLRB
1301. Here, I am persuaded that substantially, if not all
the Board's criteria for the support of such a finding are
satisfied by the evidence in this case.
Additionally, the Board has applied the "disguised
continuance" test to determine if one business entity is
the alter ego of another entity. In doing so, if it finds
that the arrangement by which the new entity exists is
merely a sham, the new entity will be found to be a "dis-
guised continuance" of the predecessor entity. All Kind
Quilting, supra; Superior Sprinkler, 227 NLRB 204, 211
(1976). Also when determining whether the formation of
a new entity is a disguised continuance of the old, the
degree of control retained by the predecessor entity over
the new entity, as well as whether evidence of the cre-
ation of the new entity was motivated to evade statutory
or contractual obligations will be examined. Fugary Con-
tinental Corp., 265 NLRB 1301 (1982).
Further applying the above-cited authority to the facts
in the instant case, I note that the evidence has already
shown that 970 Ridge Corporation and D.I.C. Manufac-
D LC MFG CO
turing (Carlos Zukowski) retained considerable control
over the financial operation of Sewing Associates. It is
also established by the record that D.I.C. Manufacturing
(Zukowski) gave two reasons why it went out of busi-
ness (1) it could not find sufficient work to yield an ade-
quate return on its investment, (2) it considered the con-
tributions to the Union's health and welfare fund re-
quired by the contract too onerous. Thus, it is clear that
the latter reason advanced by Zukowski for closing
D.I.C. Manufacturing was his contractual obligation to
the Union's health and welfare fund. Zukowski's first
reason is not convincing, because it was he who urged
and assisted former D.I.C. Manufacturing employees to
invest in the very same business under the name of
Sewing Associates, in which his family became the sub-
stantial owner. Moreover, Sewing Associates obtained
nonunion work which gave it a profitable yield but for
the exorbitant rent ($2000) it paid monthly to 970 Ridge
Corporation, and the strike against it by the Union. Also,
Zukowski told the former D.I.C. Manufacturing employ-
ee-investors that they could avoid the Union; that he
would still be the boss; that he wanted to get the Union
off his back and not pay "ransom money." He in fact,
became a consultant for the investors of Sewing Associ-
ates.
Under these circumstances, the conclusions and find-
ings are inevitable that creating Sewing Associates was
an attempt by Zukowski to do indirectly what he could
not do directly, evade the statutory and contractual re-
sponsibilities of D.I.C. Manufacturing's obligation to bar-
gain with the Union and make payments to the Union's
health and welfare fund. Thus, I find that Sewing Asso-
ciates was established to circumvent those responsibil-
ities, and I further find that Sewing Associates is a "dis-
guised continuance" and alter ego of 970 Ridge Corpora-
tion and D.I.C. Manufacturing. All Kind Quilting, supra;
Superior Sprinkler, supra.
Jurisdiction
970 Ridge Corporation, a rental owner of a factory,
denies that it is an employer engaged in commerce be-
cause it has not had sufficient activities in the past 2
years to satisfy the jurisdictional volume of business.
However, both D.I.C. Manufacturing and Sewing Asso-
ciates admitted that each of them shipped goods valued
in excess of $50,000 to points outside the Commonwealth
of Pennsylvania during the previous year. Consequently,
since D I.C. Manufacturing, Ridge Corporation, and
Sewing Associates are alter egos and single employer, ju-
risdiction is asserted over 970 Ridge Corporation as an
alter ego/single-employer with the other Respondents.
Superior Sprinkler, supra.
Withdrawal of Recognition
Contending that it is a new and independent corpora-
tion, Sewing Associates admitted that as of November 3,
1986, it refused to recognize and bargain with the Union
However, having found that Sewing Associates is the
alter ego single employer and disguised continuance of
D.I.C. Manufacturing, I find that Sewing Associates' re-
fusal to recognize and bargain with the Union over the
435
unit employees described in the contract between D.I.C.
Manufacturing and the Union, violated Section 8(a)(5) of
the Act. Walter N. Yoder & Son, 270 NLRB 652 fn. 2
(1984).
Failure to abide by the Contract
The collective-bargaining agreement between D.I.C.
Manufacturing and the Union provided that D.I C. recall
all bargaining unit employees from layoff before employ-
ing any new employees. Their agreement was extended
until May 31, 1988. Contending that it is a new and inde-
pendent corporation, Sewing Associates admits that it
failed to abide by the terms of the above-described provi-
sion of the agreement. Because Sewing Associates is alter
ego and single employer with D.I.C. Manufacturing, it is
also obligated to comply with the contract provision and
recall or offer employment to all laid-off D.I.C. unit em-
ployees before it hired any new employees. By failing to
abide by the contract, Respondent violated Sections
8(a)(1) and (5) and 8(d) of the Act. Watt Electric Co, 273
NLRB 655, 658 (1984). By violating the above-described
contract and Section 8(a)(5) of the Act, Respondents are
obligated to offer reemployment to all laid-off D.I.C
unit employees before employing new employees. Cf.
Holiday Inn of Benton, 237 NLRB 1042, 1052 (1978).
Additionally, because Respondents closed D.I.C. Man-
ufacturing and hired many new employees without re-
calling or offering employment to all laid-off D.I.C.
Manufacturing unit employees, Respondents violated
Section 8(a)(3) of the Act. All Kind Quilting, supra at
1195.
IV. THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I will recommend that they be
ordered to cease and desist therefrom and that they take
certain affirmative actions designed to effectuate the poli-
cies of the Act.
Having found that, as alter egos and single employer
within the meaning of the Act, Respondents D.I C Man-
ufacturing Company, 970 Ridge Corporation, and
Sewing Associates, Inc. have withdrawn recognition of
the Union as the exclusive representative of their em-
ployees in the unit; that since November 3, 1986, the Re-
spondents have failed and refused to recognize and bar-
gain collectively with the Union as the exclusive bargain-
ing representative of their employees in the unit; that
since on or about November 3, 1986, the Respondents
have failed and refused to abide by the collective-bar-
gaining agreement between the parties, in violation of
Sections 8(a)(1) and (5) and 8(d) of the Act; that since on
or about November 3, 1986, the Respondents have failed
and refused to employ or recall for employment all em-
ployees formerly employed by D.I.C. Manufacturing
Company, in order to avoid abiding by the collective-
bargaining agreement and to further avoid its collective-
bargaining obligations with the Union, as the exclusive
bargaining representative of the unit employees, in viola-
tion of Section 8(a)(3) of the Act, the recommended
Order will provide that Respondents cease and desist
from engaging in such unlawful conduct; that they be or-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dered to recognize and, on request , bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the appropriate unit;
that they offer to recall or offer employment to all
former D.I.C. Manufacturing unit employees ; and that
they make whole all such employees who have suffered
by reason of the Respondents ' discrimination against
-them in accordance with the Board 's decision in F. W.
Woolworth Co., 90 NLRB 289 (1950); and New Horizons
for the Retarded , 283 NLRB 1173 ( 1987), except as spe-
cifically modified by the wording of such recommended
Order.
CONCLUSIONS OF LAW
1. By withdrawing recognition of the Union as the ex-
clusive representative of their employees in the unit, the
Respondents have violated Section 8 (a)(1) and (5) of the
Act.
2. By failing and refusing since November 3, 1986, to
recognize and bargain collectively with the Union as the
exclusive bargaining representative of their employees in
the unit, the Respondents have violated Section 8(a)(1)
and (5).
3. By failing and refusing since about November 3,
1986, to abide by the collective-bargaining agreement be-
tween the parties , the Respondents have violated Sec-
tions 8(a)(l) and (5 ) and 8(d) of the Act.
4. By, failing and refusing since about November 3,
1986, to recall and offer employment to all employees
formerly employed by D.I.C. Manufacturing before
hiring new employees , in order to avoid abiding by the
collective-bargaining agreement and recognizing and bar-
gaining collectively with the Union as the exclusive bar-
gaining representative of the unit employees , the Re-
spondents have violated Section 8 (a)(3) of the Act.
5. All of the below-described employees employed by
D.I.C. Manufacturing Company on or before December
3, 1986, constitute an appropriate unit for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
1. The bargaining unit consists of all non -supervi-
sory production (excluding pattern makers), mainte-
nance, packing and shipping workers employed by
all employers under collective agreements with the
Union.
2. Packing and shipping workers shall be deemed
to include , but not be limited to , shipping clerks, re-
ceiving clerks , chargers, order pickers , checkers,
piece goods workers, packers, porters , and workers
engaged in errands or in the delivery of garments
by hand or similarly. With respect to such workers,
temporary workers shall be deemed within the bar-
gaining unit, but casual workers (those employed a
few hours a day ), students employed during vaca-
tion periods and heads of departments shall not be
deemed within the bargaining unit . Where an Em-
ployer employs one or two such workers, the right
of the Employer to promote a worker to head of
the department shall , if disputed by the Union, be
subject to final determination by the impartial
Chairman . The employment of casual workers in
excessive numbers or for extended periods shall not
be permitted.
6. At all times material , Local 109 , International
Ladies' Garment Workers' Union , AFL-CIO, has been
the exclusive collective-bargaining representative of the
employees in the above -described appropriate unit,
within the meaning of Section 9(a) of the Act.
7. At all times material, Northeast Apparel Associa-
tion , Inc., an organization of employer -members, has
been the collective-bargaining representative of employ-
er-members , including the alter ego/single-employer Re-
spondents.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondents, D.I.C. Manufacturing Company,
970 Ridge Corporation, and Sewing Associates, Inc., 970
Ridge Avenue, Scranton, Pennsylvania, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition of the Union as the exclu-
sive representative of their employees in the appropriate
unit.
(b) Failing and refusing to recognize and bargain col-
lectively with the Union as the exclusive bargaining rep-
resentative of their employees in the appropriate unit.
(c) Failing and refusing to abide by the collective-bar-
gaining agreement between the parties.
(d) Failing and refusing to employ or recall for em-
ployment, all employees formerly employed by D.I.C.
Manufacturing Company in order to avoid abiding by
the collective-bargaining agreement and recognizing and
bargaining collectively with the Union.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and upon request , bargain collectively in
good faith with Local 109, International Ladies' Gar-
ment Workers' Union, AFL-CIO, as the exclusive col-
lective-bargaining representative of all employees in the
following appropriate unit:
1. The bargaining unit consists of all non-supervi-
sory production (excluding pattern makers), mainte-
nance, packing and shipping workers employed by
all employers under collective ' agreements with the
Union.
2. Packing and shipping workers shall be deemed
to include, but not be limited to, shipping clerks, re-
ceiving clerks, chargers, order pickers, checkers,
piece goods workers, packers, porters, and workers
'If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
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 pur-
poses
D.I C MFG CO
engaged in errands or in the delivery of garments
by hand or similarly . With respect to such workers,
temporary workers shall be deemed within the bar-
gaining unit , but casual workers (those employed a
few hours a day), students employed during vaca-
tion periods and heads of departments shall not be
deemed within the bargaining unit . Where an Em-
ployer employs one or two such workers, the right
of the Employer to promote a worker to head of
the department shall, if disputed by the Union, be
subject to final determination by the impartial
Chairman . The employment of casual workers in
excessive numbers or for extended periods shall not
be permitted.
(b) Abide by the collective -bargaining agreement be-
tween the parties.
(c) Recall or offer employment to all former D.I.C.
Manufacturing unit employees to their former position or
a substantially equivalent one, without prejudice to their
seniority or other rights and privileges before employing
new employees.
(d) Make whole all employees who were not recalled
or offered employment at the time Respondent Sewing
Associates commenced hiring employees , with interest.
437
(e) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at Respondents ' 970 Ridge Avenue, Scranton,
Pennsylvania facility the attached notice marked "Ap-
pendix."4 Copies of said notices , on forms provided by
the Regional Director for Region 4, after being signed
by Respondents ' authorized representative , shall be
posted by it immediately upon receipt and maintained by
Respondents for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondents to ensure that said notices are not al-
tered , defaced , or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4If 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 Nation-
al 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 "