Dynasty Fashions

National Labor Relations Board - Board Decisions

Feb 12, 1985

273 N.L.R.B. 1858 (N.L.R.B. 1985)

1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BDJ Contracting Co., Inc.; BDJ Contracting Co.,
Inc., Debtor-in-Possession; Modestine Ward,
Bianco Abrego, and Maria Aristud, d/b/a Dy-
nasty Fashions and Local 169, Amalgamated
Clothing & Textile Workers Union, AFL-CIO,
CLC. Case 22-CA-12792
12 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 3 November
1983' and amended 29 December, the General
Counsel of the National Labor Relations Board
issued a complaint 30 December, amended 6 July
1984, against BDJ Contracting Co., Inc.; BDJ Con-
tracting Co., Inc., Debtor-in-Possession; and Dy-
nasty Fashions; collectively the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Although prop-
erly served copies of the charge, amended charge,
complaint, and amended complaint, the Respondent
has failed to file an answer.
On 20 August 1984 the General Counsel filed a
Motion for Summary Judgment. On 28 August
1984 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed no response. The allegations in the
motion are therefore undisputed.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board." Further, the undisputed
allegations in the memorandum supporting the
Motion for Summary Judgment state that the Gen-
eral Counsel sent a mailgram to the Respondent 8
February 1984 advising that failure to file an
answer to the complaint by 14 February 1984
would result in a Motion for Summary Judgment.
On 1 August 1984 the General Counsel sent an-
other mailgram to the Respondent stating that its
failure to file an answer to the amended complaint
by 3 August 1984 would result in a Motion for
Summary Judgment.
1 All dates are in 1983 unless otherwise indicated
In the absence of good cause being shown for
the failure to file a timely answer, to the complaint
or the amended complaint, we grant the General
Counsel's Motion for Summary Judgment.2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent BDJ Contracting Co., Inc. (BDJ)
has been engaged as a sewing contractor for cloth-
ing manufacturers at its facility in Hoboken, New
Jersey. During the 12-month period ending 6 July
1984, Respondent BDJ, in the course and conduct
of its business operations, provided services valued
in excess of $50,000 for Gwen Sportswear, a cor-
poration with an office and place of business in
North Bergen, New Jersey, which, during the same
period, purchased goods and materials valued in
excess of $50,000 directly from points outside the
State. We find that Respondent BDJ is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Since about 22 July, Modestine Ward, Bianca
Abrego, and Maria Aristud have been partners
doing business as Dynasty Fashions (Dynasty) with
an office and place of business at Respondent
BDJ's Hoboken, New Jersey facility. Dynasty has
been engaged as a sewing contractor for clothing
manufacturers. Based on a projection of its oper-
ations, since about 22 July, the date Dynasty com-
menced its operations, Respondent Dynasty, in the
course and conduct of its business operations, will
annually perform services valued in excess of
$50,000 directly for Gwen Sportswear. We find
that Respondent Dynasty is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
Since about 12 September, Respondent BDJ
Contracting Co., Inc., Debtor-in-Possession, has
been duly designated by the United States Bank-
ruptcy Court, District of New Jersey, as the
debtor-in-possession, of Respondent BDJ and Dy-
nasty with full authority to continue operations and
exercise all powers necessary to the administration
of the business of Respondents BDJ and Dynasty,
and has been a successor in bankruptcy to Re-
spondents BDJ and Dynasty at all material times.
Since 12 September Respondent BDJ, Debtor-in-
Possession, with an office and place of business at
2 In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to respond to the allegations of the General Counsel's complaint and
amended complaint Thus, the Chairman regards this proceeding as being
essentially a default judgment which is without precedential value
273 NLRB No. 202
BDJ CONTRACTING CO 1859
Respondent BDJ's Hoboken, New Jersey facility,
has been engaged as a sewing contractor for cloth-
ing manufacturers. Based on a projection of its op-
erations since about 12 September, Respondent
BDJ, Debtor-in-Possession, in the course and con-
duct of its business operations, will annually per-
form services valued in excess of $50,000 directly
for Gwen Sportswear. We find that Respondent
BDJ, Debtor-in-Possession, is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
We find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Alter Ego Relationship and the Successor
Relationship
On 25 July Respondent BDJ established Re-
spondent Dynasty as a subordinate instrument and
disguised continuation of BET BDJ, Dynasty, and
BDJ, Debtor-in-Possession, have been affiliated
business enterprises with common ownership, man-
agement, operators, and supervision. They have
formulated and administered a common labor rela-
tions policy affecting the employees of those enter-
prises, and they have shared common premises and
facilities. They have employed substantially the
same employees and have held themselves out to
the public as a single integrated business enterprise.
Based on these facts, we find that BDJ, Dynasty,
and BDJ, Debtor-in-Possession, are alter egos and
a single employer within the meaning of the Act.
On 22 July Respondent Dynasty leased equip-
ment and purchased assets from Respondent BDJ.
Since that date Dynasty has been engaged in the
same business operations at the same location, and
has sold the same services or products to substan-
tially the same customers as BDJ. In addition, Dy-
nasty has as a majority of its employees individuals
who were previously employed by BDJ in the unit
set forth below.
Based on these facts, we find that Respondent
Dynasty and Respondent BDJ, Debtor-in-Posses-
sion, is a continuing employing entity of and a suc-
cessor to Respondent BDJ.
B. The Unit and the Union's Representative
Status
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All of the employees employed by the Em-
ployer or all Contractors employed by the
Employer in any and all capacities including,
but not limited to cutters, markers, operators,
pressers, carters, and/or shippers of garments,
office or clerical workers, miscellaneous or
auxiliary workers, but excluding executives,
supervisors, managers, and guards within the
meaning of the National Labor Relations Act.
The Respondent has recognized the Union as the
exclusive collective-bargaining representative of
the employees in the unit. Such recognition has
been embodied in collective-bargaining agreements
between the Respondent and the Union, the most
recent of which was effective for the period 16 Oc-
tober 1981 to 15 October 1984.
C. The 8(a)(5) and (1) Violation
Since about May 1983 the Respondent has failed
to comply with the provisions of its collective-bar-
gaining agreement with the Union, including the
provisions regarding wages, vacations, holiday pay,
union security, checkoff, and welfare funds. On 22
July the Respondent withdrew recognition of the
Union as the exclusive representative of the em-
ployees in the unit described above. About 28 July
the Union requested, by letter, information relating
to the alleged transfer of business between Re-
spondents BDJ and Dynasty, as well as the Re-
spondent's books and records for purposes of an
audit. Since that date, the Respondent has refused
to furnish this information, which is necessary for
and relevant to the Union's performance of its
function as the exclusive collective-bargaining rep-
resentative of the employees in the unit described
above. Accordingly, we find that the Respondent,
by this conduct, has violated Section 8(a)(5) and (1)
of the Act.
D. The Independent 8(a)(1) Violation
About 25 July the Respondent's owner William
DiResta and a supervisor and agent of the Re-
spondent, and Modestine Ward, also a supervisor
and agent, interrogated employees about their
union membership, activities, and sympathies. We
find the Respondent violated Section 8(a)(1) of the
Act by this conduct.
CONCLUSIONS OF LAW
1. By failing and refusing to comply with the
provisions of its collective-bargaining agreement
with the Union since May 1983, by withdrawing
recognition of the Union on and after 22 July 1983,
and by refusing to furnish the Union with relevant
and necessary information it had requested 28 July
1983, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
1
1860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
2. By interrogating its employees regarding their
union membership, activities, and sympathies on 25
July 1983, the Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
Having found that the Respondent unlawfully
withdrew recognition from the Union, and failed
and refused to comply with the terms of its collec-
tive-bargaining agreement, we shall order the Re-
spondent to recognize and bargain on request with
the Union, and to give effect to the terms of the
agreement. We shall further order the Respondent
to comply with the dues-checkoff provision of the
contract and remit to the Union the dues due and
owing for each employee who executed a dues-de-
duction authorization, with interest computed in
the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co.,
138 NLRB 716 (1962). We shall further order the
Respondent to make whole unit employees for any
loss of wages or other benefits caused by its failure
to adhere to the terms of the contract until 12 Sep-
tember 1983, 3 including making the required pay-
ments to the welfare funds. 4 The Respondent shall
3 Consistent with the Supreme Court's recent opinion in NLRB v B,!-
disco ct Bt!disco, 104 S Ct 1188 (1984), our remedy extends only to 12
September 1983, the date the Respondent filed its Chapter 11 bankruptcy
petition Bi!disco held, in relevant part, that an employer does not violate
Sec 8(a)(5) and (1) by changing the terms and conditions of a collective-
bargaining agreement during the period between the filing of a bankrupt-
cy petition and the bankruptcy court's determination whether the collec-
tive-bargaining agreement may be rejected
Member Hunter, for the reasons fully set forth in Edward Cooper Paint-
ing, 273 NLRB 224, issued today, disagrees with terminating the remedy
as of 12 September 1983, the date the Respondent filed its bankruptcy
petition, because all of the violations found preceded the filing of the pe-
tition
We are mindful that the Bankruptcy Amendments and Federal Judge-
ship Act of 1984, enacted by Congress 10 July 1984, modifies Biawe° and
governs a debtor-in-possession's rejection of a collective-bargaining
agreement The statute does not apply, however, to cases such as this
where the bankruptcy petition was filed prior to its enactment Pub L
98-353 § 541, 98 Stat 333, 390-391 (1984)
4 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for the addition of a fixed
rate of interest on ulawfully withheld fund payments at the adjudicatory
stage of a proceeding We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy Depending on the
circumstances of each case, these additional amounts may be determined
by reference to provisions in the documents governing the funds at issue
and, where there are no governing provisions, by evidence of any losses
directly attributable to the unlawful withholding, which might include
also reimburse its employees for any expenses ensu-
ing from the Respondent's unlawful failure to make
payments to the welfare funds, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981). Backpay shall
be made in a manner consistent with Board policy
as stated in Ogle Protection Service, 183 NLRB 682
(1970), with interest as prescribed in Florida Steel
Corp., supra.
Having also found that the Respondent unlawful-
ly failed and refused to furnish the Union with the
relevant and necessary information it requested 28
July 1983, we shall order the Respondent to fur-
nish such information to the Union on request.
ORDER
The National Labor Relations Board orders that
the Respondent, BDJ Contracting Co., Inc., BDJ
Contracting Co., Inc.; Debtor-in-Possession; Mo-
destine Ward, Bianca Abrego, and Maria Aristud,
d/b/a Dynasty Fashions, Hoboken, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing
to bargain with Local 169, Amalgamated Clothing
& Textile Workers Union, AFL-CIO, CLC as the
exclusive representative of the employees in the
bargaining unit.
(b) Failing and refusing to adhere to the terms of
its collective-bargaining agreement with the Union
until 12 September 1983, including the terms relat-
ing to wages, vacations, holiday pay, union securi-
ty, checkoff, and welfare funds.
(c) Coercively interrogating any employee about
union support or union activities.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, recognize and bargain with the
Union as the exclusive representative of the em-
ployees in the following appropriate unit on terms
and conditions of employment:
All of the employees employed by the Em-
ployer or all Contractors employed by the
Employer in any and all capacities including,
but not limited to cutters, markers, operators,
pressers, carters, and/or shippers of garments,
office or clerical workers, miscellaneous or
auxiliary workers, but excluding executives,
the loss of return on investment of the portion of funds withheld, addi-
tional administrative costs, etc, but not collateral losses Merryweather
Optical Co, 240 NLRB 1213, 1216 fn 7 (1979)
BDJ CONTRACTING CO 1861
supervisors, managers, and guards within the
meaning of the National Labor Relations Act.
(b) Adhere to the terms and conditions of its col-
lective-bargaining agreement with the Union until
12 September 1983, including its provisions regard-
ing wages, vacations, holiday pay, union security,
checkoff, and welfare funds.
(c) Make whole unit employees for any loss of
wages or other benefits suffered as a result of the
Respondent's failure to abide by the terms of its
collective-bargaining agreement with the Union, in
the manner set forth in the remedy section of this
decision.
(d) Reimburse the Union for all membership dues
that the Respondent has failed to withhold and
transmit to the Union pursuant to signed dues-de-
duction authorizations and in accordance with the
checkoff provision of the collective-bargaining
agreement, with interest, in the manner set forth in
the remedy section of this decision.
(e) Furnish the Union with the information it re-
quested by letter 28 July 1983 regarding the al-
leged transfer of business between Respondent BDJ
and Respondent Dynasty, as well as the Respond-
ent's books and records for purposes of an audit.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its facility in Hoboken, New Jersey,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices 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.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted By Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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.
WE WILL NOT withdraw recognition from and
refuse to bargain with Local 169, Amalgamated
Clothing & Textile Workers Union, AFL-CIO,
CLC as the exclusive representative of the employ-
ees in the bargaining unit.
WE WILL NOT fail and refuse to adhere to the
terms of our collective-bargaining agreement with
the Union, until 12 September 1983, including the
terms relating to wages, vacations, holiday pay,
union security, checkoff, and welfare funds.
WE WILL NOT coercively question you about
your union support or activities.
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, on request, recognize and bargain
with the Union as the exclusive representative of
the employees in the following appropriate unit on
terms and conditions of employment:
All of the employees employed by the Em-
ployer or all Contractors employed by the
Employer in any and all capacities including,
but not limited to cutters, markers, operators,
pressers, carters, and/or shippers of garments,
office or clerical workers, miscellaneous or
auxiliary workers, but excluding executives,
supervisors, managers, and guards within the
meaning of the National Labor Relations Act.
WE WILL adhere to the terms and conditions of
our collective-bargaining agreement with the
Union until 12 September 1983, including its provi-
sions regarding wages, vacations, holiday pay,
union security, checkoff, and welfare funds.
WE WILL make whole the unit employees for
any loss of wages or other benefits suffered as a
result of our failure to abide by the terms of our
collective-bargaining agreement with the Union,
with interest.
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse the Union for all member-
ship dues that our employees authorized to be de-
ducted but we failed to deduct and transmit to the
Union.
WE WILL furnish the Union with the information
it requested by letter 28 July 1983 regarding the al-
leged transfer of business between BDJ Contract-
ing Co., Inc., and Dynasty Fashions, as well as our
books and records, for purposes of an audit.
BDJ CONTRACTING CO., INC.; BDJ
CONTRACTING CO., INC., DEBTOR-IN-
POSSESSION; MODESTINE WARD,
BIANCA ABREGO, AND MARIA ARIS-
TUD, D/B/A DYNASTY FASHIONS