Flame of Miami, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1966

159 N.L.R.B. 1103 (N.L.R.B. 1966)

FLAME OF MIAMI, INC. 1103
Flame of Miami, Inc., Cohen Brothers Dress Corporation, Nor-
man Cohen and Phillip Benanti and International Ladies' Gar-
ment Workers ' Union, AFL-CIO. Case 12-CA-3187. June 23,
1966
DECISION AND ORDER
On December 23, 1965, Trial Examiner Stanley N. Ohlbaum
issued his Decision in the above-entitled proceeding, finding that
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, Respondents filed exceptions to the Trial Examiner's Decision
and supporting briefs,'- and the Charging Party filed an answering
brief.
Pursuant to Section 3 (b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed for reasons to be discussed below.
The Board has considered the Trial Examiner's Decision, the excep-
tions and the briefs, and the entire record in this case, and hereby
adopts the findings z conclusions, and recommendations 3 of the Trial
Examiner.
Respondents Norman Cohen and Cohen Brothers Dress Corpora-
tion, both of New York, argue that the Trial Examiner committed
prejudicial error in refusing to grant their motions on the first two,
days of the hearing either to transfer the 'hearing from Miami to
1 Respondents Cohen Brothers Dress Corporation and Norman Cohen have requested
oral argument . This request is-hereby denied because the record , the exceptions , and the
briefs adequately set forth the issues and the positions of the parties
21n affirming the Trial Examiner 's finding that Respondents Flame of Miami , Inc., and
Cohen Brothers Dress Corporation are a "single employer" under the Act, we do not rely
upon his 11th factor listed in section II, D, that Respondent Norman 'Cohen threatened to
close Flame in the event of its unionization , nor upon his second factor , that Cohen hired
Netti to replace Terkletaub , because the testimony underlying these findings is of a
hearsay nature and is, in view of the circumstances of this case , of insufficient probative
value to support the findings.
S While we agree with the Trial Examiner that the Order in this case should encompass
all Respondents , we do not adopt his comments about the pattern among New
York garment manufacturers of using corporate structures in other States , as evasive
instrumentalities.
159 NLRB No. 101.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York City or to continue the hearing in Miami for several
weeks, since they were thereby precluded from introducing any testi-
mony in their own behalf. They request that the hearing be
reopened, and make an offer of proof as to what Respondent Cohen's
testimony would establish. Respondents' Flame of Miami, Inc., and
Phillip Benanti, contend that the Trial Examiner's denial of their
similar request prevented them from obtaining evidence essential to
their defense which Cohen's testimony would have provided.
Respondents were given more than a month's notice that the hear-
ing would take place in Miami and that one of the issues to be liti=
gated was the single employer status of Respondent Cohen Corpo-
ration and Respondent Flame. The New York Respondents made
no attempt during this period to have the hearing transferred to
New York City, and did not advise anyone other than Mr. Perkins,
the attorney for the Miami Respondents, that they would not be pres-
ent at the hearing in Miami. When it opened on June 28, 1965,
Perkins made an oral application on behalf of the absent Respond-
ents I that the hearing be moved to New York City at the close of
proceedings in Miami. This was opposed by the General Counsel
and the Charging Party. Perkins did not offer any reason for the
request and was careful to explain that he was making it as an
accommodation to Respondents' attorney in New York who had made
the request of Perkins in a telephone conversation the previous
week.5 The Trial Examiner denied the motion.
On the second day of the hearing, Perkins again moved for a
transfer or, in the alternative, requested that the hearing be contin-
ued in Miami until the beginning of August. He emphasized that
he was acting on that occasion solely on behalf of his own clients,
* We do agree with Respondents that the Trial Examiner ' s characterization of their non-
appearance at the hearing as a "default " is inaccurate insofar as the term suggests that
the General Counsel's burden of establishing a prima facie case supporting the allegations
of the complaint was any less under the circumstances.
The transcript shows the following colloquy :
TRIAL EXAMINER: Mr. Perkins , is there any particular reason why , If you did not,
why you did not inform the General Counsel that this application would be made
at the outset of the hearing?
Mr. PERKINS : I had good reason. I talked to New York last Wednesday , I believe
it was, in connection with this matter and I left on Wednesday night and I returned
on Saturday or I guess It was Saturday , yes, it was , and I ani not arguing this matter
in behalf of Mr . Cohen and Cohen Brothers , I am simply making a motion as I was
requested to do, nothing further . But I do say in equity and In good conscience and
justice that it should be permitted and I say that on the basis of the people I represent.
I have nothing further to do with Cohen Brothers Dress Corporation or Norman
Cohen. I have simply done a perfunctory thing as requested to do.
TRIAL EXAMINER: The Trial Examiner is interested in ascertaining when it be-
came apparent that Mr. Tick wanted to litigate this case partially In New York. Are
you able to help me on that, Mr. Perkins?
Mr. PERKINS : I think some time In the middle of last week.
TRIAL EXAMINER : You have not been in touch with General Counsel prior to this
morning, I take It, with regard to this matter.
Mr. PERKINS : No, I have not
FLAME OF MIAMI, INC. 1105
and not on behalf of the absent New York Respondents. Perkins
claimed that Cohen was an essential witness to rebut the surprise
testimony of the General Counsel's witnesses about the absent
Respondents' ownership and control of Respondent Flaine. He
added that Cohen, whom he had called that morning, had told him
that he would be unable to come to Miami for several weeks;
although he could give testimony in New York if given sufficient
notice. Perkins stated that he did not know why Cohen could not
come to -Florida. Both the General Counsel and the Charging
Party opposed the motion, and the Trial Examiner denied it.
We find the Trial Examiner to, have been clearly reasonable in
his ruling at the beginning of the hearing to deny the motion to
transfer the hearing to New York 'City. The New York Respond2
ents did not contend, and do not now contend, that holding the hear'
ing in Miami, where the unlawful conduct took place, was unrea-
sonable or burdensome ; 6 their decision not to appear at the hearing
was based upon other considerations.' Respondents concede in their
brief that i
... the allegations of the complaint were .so far removed from
reality that Cohen Bros. and Norman Cohen believed that their
interests were adequately protected by a' formal denial ....
In other words,, the New York 'Respondents decided prior to- the
hearing that their appearance was not essential because they did-not
think the allegations of the comphtint•could be substantiated at the
hearing. Had they been serious about assuring ,their right to, be
heard, they would hardly have waited until the morning of the
hearing to request, on the most perfunctory 'showing, a, 'change of
venue to New York. Respondents Cohen and Cohen Brothers appear
to attack primarily the Trial Examiner's ruling on the motion made
the second day of the hearing for a transfer or a continuance in
Miami for several weeks until it was• convenient for Cohen to
appear. In so doing, Respondents treat the motion as one made on
their behalf. We reject the arguments of the New York Respond-
ents regarding this motion because the record unequivocally,, shows
that the motion by Perkins on the second day of the hearing was
made solely on behalf of his clients, Flame and Benanti.
Respondents Flame and Benanti argue that Cohen's failure to
testify was prejudicial to them and therefore the Trial Examiner
erred on the second day of the hearing in not continuing or trans-
ferring the proceedings. We can hardly give weight to the claim of
unfair "surprise" raised by Respondents,. since it presumes. that a
6 N.L:R .B. v. Southwestern Greyhound Line8, •. Inc., 126 F.2d 883 (C.A. 8), enfg as
modified 22 NLRB 1.
243-084-67-vol . 159-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint does not provide notice to a Respondent that evidence in
respect to its allegations may be introduced at the hearing. Further-
more, we must assume that these Respondents knew that Cohen
would not testify since their attorney was in communication with
his attorney prior to the hearing. They elected not to make any
efforts to secure Cohen as a witness, however, until the second day
of the hearing when they informed the Trial Examiner that Cohen
had said he would only be available in several weeks in Miami or,
upon sufficient notice, in New York City. No reason for Cohen's
inability to attend the hearing was given. Such an effort to secure
Cohen as a witness, belated and modest as it was, hardly provided a
basis for the relief, they,sought. In short, we find it plain that the
developments complained of by Respondents resulted from their
chosen trial tactics.
Thus, upon consideration of the circumstances relevant to the
Trial Examiner's denial of the several motions to transfer and/or
continue the proceedings, we find that his rulings did not consti-
tute an abuse of the discretion vested in the Trial Examiner'7 ' We
deny the request to now reopen the hearing, for the evidence sought
to be introduced is precisely the evidence that Respondents could
have, but did not, introduce at the hearing."
[The Board adopted the Trial Examiner's Recommended Order.]
7Tavicab Drivers Union, Local 777, IBTCWHA (Crown Metal Manufacturing Company),
145 NLRB 197,'enfd. 340 F.2d 905 (C.A. 7) ; Borg-Warner Corporation, 113 NLRB 152,
enfd . 231 F.2d 237 (C.A. 7) ; Roure-Dupont Mfg., Inc., 93 NLRB 1240, enfd. in relevant
part, 199 F.2d 631 (C.A. 2) ; A. J. Siri8 Products Corporation of Virginia, 90 NLRB 132,
enfd . 186 F.2d 502 (C.A. 4) ; Mission Oil Company, 88 NLRB 743.
e National Paper Companvy, 103 NLRB 744.
TRIAL EXAMINER 'S DECISION .
STATEMENT OF THE CASE
Based upon a charge and amended charge filed on March 25 and April 22, 1965,
by International Ladies' Garment Workers ' Union , AFL-CIO ("Union"), General
Counsel of the National Labor Relations Board through the Twelfth Regional
Director on May 48 1 issued a complaint against Respondents Flame of Miami, Inc.
("Flame" ), Phillip Benanti ("Benanti"), Cohen Brothers Dress Corporation
("Cohen ' Corp."), and Norman Cohen ("Cohen"), alleging violations of Section
8(a)(1)•through interference with , restraint , and coercion of employees in the exer-
cise of their rights under Section 7, of the National Labor Relations Act as amended
("Act"). All Respondents appeared and answered through counsel , denying the
allegations of the complaint. Although Respondents Flame and Benanti appeared
and participated throughout the hearing by counsel , Respondents Cohen Corp. and
Cohen failed to appear at the hearing , held before Trial Examiner Stanley N. Ohl-
baum , in eMiami, Florida, on June 28 through July 1 , or to participate therein in
person or through counsel? I
i Unspecified 'yeai•s are 1965 'throughout.
The complaint (May 18) included a notice of hearing for July 6 in Miami.--On May-21,
the Regional Director upon due notice rescheduled the hearing for June 28 at the same
time and place. On May 24 Respondents appeared and answered through counsel-Re-
spondents Flame and Benanti through Florida counsel Joseph A. Perkins, and Respond-
FLAME OF MIAMI, INC. 1107
Upon the entire record 3 4 and my observations of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. RESPONDENTS ' BUSINESS ; LABOR ORGANIZATION INVOLVED
At all material times, Respondent Cohen Corp., a New York corporation with its
principal office and place of business in New York City, New York, was and is a
dress manufacturer and jobber which, in the usual course and conduct of its busi-
ness, has annually shipped or caused to be shipped directly in interstate commerce
from the State of New York to points in other States , goods and materials worth
over $50,000.5
As to commerce facts regarding Respondent Flame, it is noted that its answer
does not deny the commerce allegation of the complaint , but merely states "That
the [$50 ,000 annual business ] projection suggested in Paragraph 1 of the Amend-
ment [to the Complaint ] is a mathematical possibility." At the hearing , counsel for
Respondents Flame and Benanti pointed out that those Respondents "neither admit
ents Cohen Corp. and Cohen through New York counsel Jerome H. Tick. Together with
their answers, said counsel also filed a motion to dismiss the complaint upon various
grounds including the contention that the Board was without jurisdiction. On June 2,
the Regional Director issued an amendment to the complaint and referred Respondents'
motion to dismiss to a Trial Examiner of the Board for ruling. On June 8, Respondents,
through the same attorneys, answered the Regional Director's June 2 amendment to the
complaint. On June 14, the Regional Director issued a second amendment to the com-
plaint. On June 15, Respondents' motion to dismiss the complaint was denied by Trial
Examiner Thomas N. Kessel. On June 17, Respondents, through the same attorneys,
answered the Regional Director's second (June 14) amendment to the complaint. All
answers and motion papers filed in this proceeding consisted of the same single document
for all Respondents, jointly subscribed by both attorneys (i e., Messrs. Perkins and Tick),
with the following explanatory note to Perkins' signature by proxy thereon for Tick :-
"The signature of Jerome H. Tick, as attorney for Cohen Brothers Dress Corporation and
Norman Cohen, was affixed hereto by Joseph A. Perkins at the instance and direction of
Jerome H. Tick, in his absence."
When the case came on for hearing before me in Miami on June 28, although Respond-
ents Flame and Benanti appeared through their attorney Joseph A. Perkins, there was no
appearance by Cohen Corp. or Cohen or their attorney, as required by the May notice and
amended notice of hearing. No application had been made, nor notice given by any of
the parties of intention to apply for a continuance or other relief, nor had any indica-
tion been given prior to the hearing (which I traveled, from Washington to Miami to hold)
that any Respondent would not be, present there or would ask that the date or locale
thereof be changed. At the outset of the hearing, Perkins stated that at the request of
Tick he (Perkins). was making a motion on behalf of Respondents Cohen Corp. and Cohen
to transfer the proceeding from Miami to New York City upon the conclusion of testimony
in Miami, "for the taking of testimony in regard to any matters that may affect them."
While indicating that his application on Tick's behalf for.removal to or ultimate con-
tinuance of the hearing in part in New York should be granted, Perkins stated that "I
am not arguing this matter in behalf of Mr. Cohen and Cohen Brothers. I am simply
making a motion as I was requested to do, nothing further . . . . I have simply done a
perfunctory thing as,requested to do." Under, the circumstances the application, being
without merit, was,,denied. Although the hearing continued thereafter in Miami for
.4 days, at no time did the defaulting Respondents or their attorney appear, nor has
any application or communication been received since then to open this default.
8 Hearing transcript corrected in accordance with' order on my notice dated Decem-
ber 13, 1965.
* Although afforded opportunity at the conclusion of the hearing, and further opportunity
by time extension thereafter, to file briefs and proposed findings and conclusions, counsel
for Respondents Flame and Benanti, as well as counsel ,for the Charging Party, at the
beginning of September ihformed me by letters which have been incorporated into the
procedural record as Trial Examiner's Exhibits 5 and 6 for identification, that they were
submitting the case for decision without suchl. No, brief, proposed findings, conclusions,
or communication has been received from General Counsel
5Admitted by Respondents in answer and in answer to amendment to-complaint; again
by Respondents Flame and Benanti at hearing and also elsewhere by Respondents Cohen
Corp. and Cohen ( General Counsel's Exhibit 5). ,
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or deny" these commerce allegations, since they allegedly "don't know the value of
these goods." However, counsel for those Respondents stipulated at the hearing
that by the end of June 1965, Flame's payroll had been at least $50,000, but declined
to stipulate that the value of the merchandise produced by Flame was at least the
amount of its payroll. With regard to the value of services performed by Flame for
-Cohen Corp., on goods shipped interstate by Flame from Florida to Cohen Corp.
in New York, the same counsel stipulated or stated that "the value of the services
insofar as payment by Cohen Brothers Dress Corporation to Flame of Miami [is
concerned] . . . is in excess of $60,000 for this year [1965], and I am referring to
the amount of the payroll, plus.35 percent on top of that, which is the normal con-
tractor's price for the services in connection with any factory." Counsel for Flame
and Benanti also stipulated that Flame's payroll has been $2,000 per week. In
response to my invitation as to whether Respondents "wish a reasonable opportunity
in order to provide the Board with information as to the value of the merchandise
produced by Flame of Miami, Inc. and its destination," the same counsel stated, "I
don't think that is our responsibility and the answer is no." Respondents also there-
after refused to comply with a subpenia issued by me requiring production of com-
merce data, notwithstanding my denial of. their motion to vacate the same. Cred-
ited testimony of General Counsel's witness Terkeltaub, Flame's former executive
and manager, establishes that during his 2-month tenure with Flame from the end
of November 1964, to the end of January 1965, 7,000 to 8,000 garments, each val-
ued $6.75 or $8.75 (and some possibly $10.75), were shipped from Flame in Flor-
ida on direct interstate bill of lading consignments to Cohen Corp. in New York,
utilizing cloth and goods received directly, by Flame in Florida.from Cohen Corp. in
New York; and that the only source of Flame's payrolls was moneys paid to Flame
in New York by Cohen Corp. into a bank account in Flame's name in New York.
Even over the indicated 2-month period, 7,000 dresses at $6.75 amounts to $47,250,
and 7,000 dresses at $8.75 amounts to $61,250; since, according to Terkeltaub's
credited testimony, about 50 percent of each variety were shipped during this 2-
month period, the resultant value would be $54,250, or, on a monthly basis, $27,125
per month. Also according to Terkeltaub's credited testimony, during the same 2-
month period, Flame's weekly payrolls were around $1,500 to $2,200, or possibly as
low as $1,200 to $2,000.
Called by General Counsel as an adverse witness, Flame's President Phillip Ben-
anti testified that from inception of its operations at the end of November 1964,.to
hearing date at the end of June 1965, Flame's payroll has been around $50,000 or
$60,000, to which was added a 35-percent override for other-costs and expenses, in
determining the amount of billings to manufacturer for dresses made at Flame.
Benanti also testified that the value of these dresses exceded what Flame,,received
for making them; and that the retail sales price of such dresses includes the cost of
material, cost of labor, and middlemen's profits. Benanti further testified that since
its inception, Flame has made up ' no less than 2,000 to 3,000 dresses per week
shipped by it to Cohen Corp. in New York, charged at $2.25 to $2.50 each by
Flame. There was proof apart from Benanti's testimony (e.g., testimony of
employee Nunez) indicating that the quantity of work at the Flame plant continued
even after Terkeltaub left at the end of January.
In a letter dated February 26, 1965, the New York attorney for Cohen Corp.
informed the Board's Miami office: "With respect to the dollar value of the services
performed by Cohen Bros. Dress Corp., we do not have specific figures, but there is
no question in our mind that if Cohen Bros. Dress Corp; continued to give work to
this contractor [Flame], the dollar value of this work and/or the products involved
will exceed the sum of $50,000 shortly, if it has not already done so. The volume of
goods shipped by Cohen Bros. Dress Corp. in interstate commerce during the period
involved, greatly exceeds the sum of $50,000." (General Counsel's Exhibit 5.)
In a representation case hearing (Case 12-RC-2131) held by Region 12 of the
Board, in Miami, in February and March, the Hearing Officer for Region 12
appears to have encountered similar resistance by Flame in furnishing pertinent
commerce data, notwithstanding his denial of a motion by its counsel to quash
a subpena requiring production of the same. After litigation of the commerce
issue, the Regional Director there found and determined, in his Decision and Direc-
tion of Election dated March 22, 1965, of which ( as well as the entire proceeding)
I have'taken official notice at the request of the parties, that Flame was in commerce
within the meaning of the Act.'
FLAME OF MIAMI; INC. 1109
Upon the record presented, I likewise find that Flame has been and is in com-
merce within the meaning of the Act, and that assertion of jurisdiction herein is jus-
tified, as set forth above. The Board asserts jurisdiction over nonretail operations,
such as herein, having a minimum annual interstate, inflow or outflow of $50,000,
direct or indirect. Stemons Mailing Service, 122 NLRB 81, 85. In applying its
jurisdictional standards, the Board considers the total operations of the employer, in
terms of inflow or outflow as defined in Sieinons, supra. When the employer has
been in business for less than a year, the Board will project or estimate his com-
merce data for an appropriate annual period (Major Service Co., 129 NLRB 794,
796; Mercury Mining and, Construction Corporation (United Mine Woikeis of
America, District 2), 96 NLRB 1389, 1390, 1391, enfd. 202 F.2d 177 (C.A 3),
provided that (as herein) available projected figures create a " `reasonable expecta-
tion' that the yearly minima would be met" (Fairmount Construction Company
(Essex County and Vicinity District Council of Carpenters, AFL), 95 NLRB 969,
971). The Board will also assert jurisdiction where legally justified, regardless of a
showing that its applicable gross volume business operational standard has been met,
where (as herein) the employer fails to cooperate in the production of necessary
commerce information after proper opportunity to do so has been afforded. Tropi-
cana Products, Inc., 122 NLRB 121, 123. Further, "it is the established policy of
the Board not to allow a party to relitigate in a complaint proceeding . the legal
effect of matters which the party has already litigated and Board has decided in a
prior representation proceeding." Ken Lee, Inc., 137 NLRB 1642, enfd. 325 F.2d
435 (C.A. 5).6
Upon the record presented, I find that Respondent Flame, a Florida corporation
with its principal office and place of business in Miami, Florida, was and is a dress
manufacturer and contractor which, in the usual course and conduct of its business,
caused to be shiped directly in interstate commerce from Respondent Flame in Flor-
ida to Respondent Cohen Corp. in New York, goods and materials worth over
$50,000 annually on a projected annual basis.
I find that at all material times Respondents Cohen Corp. and Flame each has
been and now is an employer (and, as hereinafter found, collectively constitute a
"single employer") within the meaning of Section 2(6) and (7) of the Act; that
at all such times the Union has been and is a labor organization within the meaning
of Section 2(5) of the Act; and that assertion of jurisdiction in this case is proper.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The issues presented are whether Respondent Flame is engaged in commerce
within the meaning of the Act, whether Respondents may be deemed to be a "single
employer" engaged in commerce for purposes of the Act, and whether Respondents
violated Section 8(a)(1) of the Act through interrogation and economic threats.
B. Background; relationship between Respondents
In the early fall of 1964, Abraham Terkeltaub, formerly a New York City dress
manufacturer, jobber, or contractor, heading for Florida where he apparently desired
to relocate, visited Norman Cohen of Cohen Corp., a large New York City dress
manufacturer, designer and jobber, at 501 7th Avenue, New York City, in order to
see if he could make a connection there since he knew that Cohen Corp. had "enter-
prises through the south." Cohen offered Terkeltaub a job in Georgia, which he
declined, expressing interest in Miami. Cohen told him he would be hearing from
him. Terkeltaub left for Miami, where a few weeks later he was taken by a busi-
ness broker to see a dress plant known as Miss Josie, being run by Tony Benanti,
but was unable to make a deal with Tony's brother Phillip Benanti , who was there
and who told Terkeltaub that Tony was in New York. During their negotiations,
Phillip Benanti told Terkeltaub that he (Phillip) "is a production man for Cohen
Brothers . . . the quality man for Cohen Brothers."
R Accord: United Dairies, Inc. 144 NLRB 133, 154• enfd 337 F 2d 283 (C A 10) ;
Seine and Line Fishermen's Union of San Pedro (William J. Horner), 136 NLRB 1, foot-
note 4; National Electric Products Corporation, 87 NLRB 1536, footnote 2; Gulf Building
"Corporation, 159 NLRB 1621.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Just before Thanksgiving, Terkeltaub received a telephone call in Miami from
Cohen, who asked him if he would work for him for $5,000 a year if Cohen bought
the Josie plant. When Terkeltaub indicated unwillingness to work for that amount,
Cohen promised "a bonus here and there," so Terkeltaub accepted and went to
work the following Monday (still in November), as manager in full charge of the
entire plant, including work production, shipping, and hiring and firing of employ-
ees. He also signed paychecks, being appointed as corporate secretary or treasurer
for that purpose. In Terkeltaub's words, "My boss [at Flame] was Norman
Cohen." When he first reported for duty, Terkeltaub was oriented on plant opera-
tions by Phillip Benanti, who was then and who thereafter continued to be the
"quality man" for Cohen Corp. and Cohen, traveling on the road much if not most
of the time "wherever Mr. Cohen sent him" to see that work in various plants
throughout the South conformed to "home office" specifications. Benanti likewise
carried out this function with respect to the work produced at the Flame plant, but
according to Terkeltaub Benanti gave him no orders and did not direct him in his
work.
Employing about 40 operators, Flame made dresses for Cohen Corp. exclusively,
out of cloth and other materials shipped to Flame by Cohen Corp., under a proce-
dure apparently not reflected or evidenced in any written agreement. According to
Terkeltaub; there'were no billings to Cohen Corp. by Flame for the services ren-
dered by the latter-only "Payrolls came in [from Cohen Corp.]," which were then
deposited in Flame's local Miami bank account, whence payroll checks signed by
Terkeltaub (and occasionally by Phillip Benanti) were drawn. Flame maintained
2 bank accounts-one in New York City in the garment center area, and a local
account in Miami. Although apparently Terkeltaub at first signed checks for inci-
dental merchandise on the local account, he discontinued this upon receiving "Mr.
Cohen's orders . not to issue any checks out of this [Miami] account." The
only moneys deposited into Flame's Miami account were the payroll checks received
from Cohen Corp., there being no other source of funds. The payroll checks were
made up in New York upon the basis of figures and records sent to Cohen Corp. in
New York by Flame's part-time bookkeeper Berman. Bills received by Flame for
rent, trucking, supplies, servicing and repairs to sewing machines, etc., were sent by
Flame to Cohen Corp. in New York, whence they were paid out of Flame's New
York bank account. Taxes due by Flame were also paid out of this New York
account.
While Terkeltaub was managing Flame, Cohen visited its Miami premises around
mid-January with an accountant, "to see how I [Terkeltaub] am doing and whether
the work is coming out right." "Because he [Cohen] was the owner and I thought
that he can give the people a little more of security than I could because I was only
an employee," Terkeltaub suggested that Cohen speak to the employees, to "give
them a little bit of peace of mind, of security." Cohen acceded and the employ-
ees were thereupon assembled in the plant and he addressed them there through an
interpreter since many or most of them were Spanish-speaking. Benanti was not
there. Cohen told the assembled employees:
. .. girls, I can assure you with a lot of work. This is not Miami that you
work three months in the year and then the rest of the year you loaf and he
will have plenty of work and you will make a nice living and as far as manage-
ment is concerned I couldn't give you a finer man with more knowledge than
Mr. Terkeltaub. He has got years of experience behind him and he knows what
he is doing and he is not going to try to hurt you and I hope that you will cooper-
ate with him.
A number of present and former Flame employees, testifying as General Coun-
sel's witnesses and as Respondents' witnesses, also described Cohen's mid-January
speech to the assembled plant employees. Their testimony, as credited in com-
posite, establishes that, in addition to what Terkeltaub recalled as recounted
above, Cohen also told them that Tony Benanti was no longer there (testimony of
Martos and Nunez); that he (Cohen) was the owner (testimony of Martos, Nunez,
and Daelhousen); that Philip Benanti was his employee (testimony of Martos and
Nunez); that he (Cohen) "was a very rich man"; (testimony of Martos); "that he
was going to put a cutting room in" (testimony of Marcos and Nunez); "that he had
plenty of work" (testimony of Martos and Daelhousen); that "he could offer us
work or plenty of work for 52 weeks a year" (testimony of Nunez and Daelhousen);
that "we were going to earn plenty of money" (testimony of Martos); and "that all
FLAME OF MIAMI, INC.
of us were going to be very happy" 7 (testimony of Martos and Nunez). The
uncontradicted, credited testimony of former Flame operator Nunez further estab-
lishes that prior to this talk to the assembled Flame employees, Cohen on the same
day told her and another employee (Garcia) substantially the same thing, includ-
ing the fact that he was "the owner" and Phillip Benanti an employee.
Operations thereafter proceeded as previously at Flame, with Flame receiving
shipments of cloth from Cohen Corp. and making about 3 shipments of completed
dresses per week-its entire output-to Cohen Corp.
When Terkeltaub quit his employment with Flame at the end of January to go
into business for himself, he was succeeded by Mary Netti (also known as Mary
Stackowitz), whom he had interviewed and hired in December as a floorlady to
assist him, but whose hiring had been countermanded by Cohen "to keep expenses
down." After Netti replaced Terkeltaub, she told him that "Mr. Cohen called me
and he has given me an inducement [i.e., part interest for investment, apparently]
and I went in and I took the job."
An old-timer of many years' experience in dress manufacturing, Terkeltaub une-
quivocally characterized Flame as "an inside factory" of Cohen Corp., which he was
hired by Cohen to run.
Terkeltaub's testimony, as recounted above, was in no way contradicted by Cohen,
Berman, or Netti, none of whom testified. Inasmuch as I was on the whole favor-
ably impressed with Terkeltaub's testimonial demeanor, and since his account of his
hiring and Netti's hiring were wholly uncontradicted by Cohen or Netti and are not
inherently improbable, I credit his testimony in those as well as the other aspects
recounted above.
Called as an adverse witness by General Counsel, Phillip Benanti testified that he
is the president and sole stockholder of the three issued shares of Flame.8 He con-
firmed that Flame works exclusively for Cohen Corp. receiving materials from the
latter directly from New York for this purpose via truck carrier which also trans-
ports the finished dresses back to Cohen Corp. from Flame. He also confirmed the
two bank accounts described by Terkeltaub, and added that except for payroll,
compensation, and purchases and bills, all of Flame's records are kept in New York
in the office of an accountant who he "think[s]" came to Florida to Flame with
Cohen "once." Benanti also confirmed that Flame's rent is paid out of its New
York bank account, from funds deposited there by the accountant or "sometimes I
have to use Cohen Brothers to do me that favor." According to Benanti, Flame's
New York bank account was opened when it started its operations, after he was told
by New York "people" that this bank was "pretty good and I had to do business
with them," and because "I liked the bank, it was, in New York and when I go up
there, I like to have it in New York." Although Benanti testified it is more con-
venient to have Cohen Corp. merely deposit money in Flame's bank account in New
York rather than to mail checks to Flame from New York, when it was called to
his attention that checks drawn on Flame's New York account are also mailed to
Flame from New York, Benanti's explanation for this procedure was, "Well, when I
need money. the firm up there [i.e., Cohen Corp.] would give me what I need and
then just deposit the rest for me and I just tell them you don't have to mail it to me,
just send me what I need to keep up with all my bills." Asked, "Is there any par-
7 Respondents' employee witnesses testified in general that Cohen told them Benanti
owned the plant or that Cohen "said that he didn 't own the plant" (Mason)-an account
which I reject not only because of testimonial demeanor observations but because it im-
presses me as highly unlikely in the total atmosphere of the case that Cohen of New
York would visit a plant in Florida and make a speech telling the employees there that
the owner of the plant was somebody else (who, if really the owner, was unnecessary to
be identified to the employees by Cohen as such) In general, the employee witnesses put
forward by General Counsel impressed me favorably while testifying, whereas the testi-
mony of Respondents' employee witnesses was punctuated with evasion and a high degree
of inconsistency and self-contradiction, as well as plain prevarication. In accordingly ac-
cepting the testimony of General Counsel's employee witnesses as recounted above, in
preference to that of Respondents" employee witnesses, I have taken into consideration
and have carefully weighed apparent surface inconsistencies, confusion as to some dates,
and similar insubstantial errors on the part of some witnesses, which in certain cases I
ascribe to language difficulties and other factors not inconsistent with veracity.
$ The stock certificate for these shares does not'have'any canceled transfer tax stamp
affixed thereto evidencing date of issuance
1112 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
.ticular reason for having a checking account in New York rather than in Miami,"
Benanti's reply was, "No, there is no particular reason, no reason at all." And Ben-
.anti's explanation for the, use of a New York accountant since . the inception of
,Flame's, operations is that Cohen of "Cohen Brothers told me to use him or I just
wanted to use him " According to Benanti , Flame's Miami bookkeeper Berman
works "hand in hand" over a 1,300 mile distance with its New York accountant
Blattman, since "there are telephones, you know."
Insisting that he is president and sole stockholder and principal of Flame, an
,independent "contractor" for Cohen Corp., Benanti was nevertheless wholly unable
,to give any indication of how much money Flame-his own alleged business-has
,been making, but merely that "every month or two, I call my accountant up [in
New Yorks and see how I stand . . . . My accountant is keeping up with it all
... that is why I have a New York accountant and so he takes care of all that, for
me, and of course like I say, I have faith in him."
According to Benanti , supplemented by Flame's counsel herein who. also testified
as its witness,9 the circumstances under which he acquired Flame were that his
brother Tony Benanti owned a dress contracting business in Miami known as Miss
Josie, Inc., located in the premises now occupied by Flame, and engaged in dress
contracting for Cohen Corp. as well as others. When Josie became insolvent,
Benanti was told by his brother that he should buy or could "have it." At Benanti's
behest, Cohen or Cohen Corp. thereupon acquired an $8,500 chattel mortgage due
or overdue upon Josie's sewing machines, and Benanti through the corporate struc-
ture Flame acquired Josie's lease or a new lease on its premises. Benanti invested
"Nothing, just my ability," in Flame, but Flame received a loan of about $2,000 from
Cohen or Cohen Corp , apparently as a sort of advance against future payrolls 10
Although Benanti thereafter continued working and traveling around from factory to
factory for Cohen Corp. as its "quality control man" as before, he first testified that he
is paying Cohen Corp. or Cohen off on the mortgage covering Flame 's sewing
machines. Although Benanti had sworn at a previous (representation case ) hearing
before the Board that he is making these payments on the promissory notes as they
come due, he testified at the instant hearing (even after his previous testimony was
called to his attention) that there are no promissory notes and that he is making
the payments under an oral arrangement. However, notwithstanding all of the
foregoing, he later testified, and reiterated on cross-examination by the Charging
Party, that he has not made payments on account of the mortgage and has not
reduced this obligation at all; and also, that he has not reduced the other loan
indebtedness to Cohen Corp. and has drawn no money at all out of Flame.
Benanti 's account of the hirings of Terkeltaub and Netti is somewhat at variance
with that of Terkeltaub. According to Benanti, who testified, incidentally, that
Terkeltaub told him that Cohen wanted to give him (Terkeltaub) a job, when
Terkeltaub looked at Miss Josie he asked Benanti if he would go into partnership
with him, and Benanti asked Terkeltaub if he would work there if Benanti bought
it, and Terkeltaub agreed. This, at any rate, was Benanti's initial version, which
he rapidly-in apparently characteristic fashion-revised so as to state that Terkel-
taub "said he didn't want to [go into partnership with me], he said I'd rather work
if you can put me to work, and I agreed and said good enough, I'll buy it alone."
A few moments later, however, again shifting ground, Benanti testified that it was
he who told Terkeltaub to "forget about . buying, would you want to work
here . . ." and that he then and there fixed $100 a week as his starting salary.
However, he also testified that he discussed Terkeltaub with Cohen, who told him,
"Phil, he [Terkeltaub] has a lot of talent, put him to work if you want to . . "
Benanti 's account of the hiring of Netti is also characteristically vague. Accord-
ing to Benanti, after Terkeltaub told him he needed a forelady and had found Netti,
Benanti was told by Netti, "I want to be in charge for you while you are gone.
I [Benanti ] said, good deal and in the meantime when I came back and Terkeltaub
told me that he was going to quit the Job it worked out that way." Benanti soon
thereafter testified, however, when asked whether Terkeltaub quit, "Never that I
0 The motions of the Charging Party, joined in by General Counsel, to strike out por-
tions of the testimony of Perkins, counsel for Respondents Flame and Benanti, upon which
decision was reserved, are hereby denied
10 Benanti appears to have testified to the contrary at the representation case hearing
before the Hearing Officer for Region 12, where he denied that Flame borrowed money
from Cohen Corp or Cohen.
FLAME OF MIAMI, INC. 1113
know of; I don't remember . And after first testifying that "I will swear
on a Bible" that he never interviewed New with Terkeltaub there, Benanti retracted
this and conceded he did, also conceding-after first denying it-that he discussed
the hiring of Netti with Cohen, who asked him about her qualifications.
Benanti did not on the whole exhibit the degree of intimacy with financial, labor
relations, and other significant aspects of his own alleged business that is ordinarily
found among entrepreneurs. This is aside from evaluation of his veracity, as to
which I cannot shake off the gravest misgivings, based upon impressions strongly
received while observing his testimonial yield, of which some examples have been
provided. For these reasons, • strengthened by Respondents, totally unexplained
failure to produce New and their failure to produce Cohen or other presumably
available witnesses to assist in the resolution of testimonial conflicts between the
testimony of Benanti and Terkeltaub, as well as my overall favorable reaction to
the testimonial demeanor of the latter, I prefer and accept the testimony of Terkel-
taub and of General Counsel's other.employee witnesses, as recounted above, in
the respects at variance with that of Benanti and Respondent's other employee
witnesses.
C The alleged unfair labor practices
On February 5, the Union requested that Flame recognize and bargain with it.
This request was made at the Flame plant by Union Representatives Lozano and
Cross to Flame Floorlady Netti, admittedly its supervisor in charge; and is undis-
puted On the same day, the Union request was repeated by registered letter to
Flame, which has failed and refused to accede thereto.
Various former Flame employees testified as to actions by its Floorlady-
Supervisor Netti (Mrs Stackowitz) and its Officer-Supervisor Phillip Benanti fol-
lowing the Union request for recognition. According to former Flame employee
Martos, in February she observed Netti going from girl to girl in the plant asking
each if she had "sign[edl for the union " When Netti asked Martos this, Martos
replied that "several of the girls had signed up for the union already," including
herself. Thereupon Netti told Martos and the others "that those who wanted the
union they could not stay working there because the owner will shut down the
plant . . That the owner was going to shut the plant, that she [Netti] was in
favor of the girls, but that if the owner shut down the plant, she will have to leave
. . . that they would shut down the plant . . the owner didn't. want the union
.. . . That if we don't sign up we stay there working . . . that by not signing the
union cards everything will be all right." Martos was away from work for a few
days, with Netti's permission, in March, because,of illness, but when she sought to
return Netti sent word to her not to. Martos further testified that also in Febru-
ary, after the Union had started its organizational activities at the plant, Phillip
Benanti said to her and other employees:
That the ones who want to belong to the union they could, and that the ones
who want to stay working there that they could not belong to the union, that
the owner didn't want the union, that he was going to shut down the plant,
that he had plenty of money, that he was going to shut down the factory and
leave it without the employees . that this is a free country, that anyone
could join the union, but those who joined the union would be out of a job.
Floorlady Netti apparently "was also explaining" to the employees in the. same
vein.
Corroborating Martos' testimony, former Flame employee Nunez testified that
on or about February 5-the same day as the union representatives were at the
plant, according to what Netti told her-she observed Netti going from machine
to machine in the plant asking girls whether they had signed a union card, and that
some,said yes and some no. When Netti approached Nunez at her machine and
asked her if she "knew all the girls had signed with the union and I [Nunez] told
her I didn't know. I only know about me. And at that time I asked her why
she was asking me that and she told me that a man from the union was at the
office and told her that most of the girls had signed union cards." Netti did not
tell Nunez why she' was asking her this, although Netti said, "You don't have to,
tell me if you don't want to because I don't care," but apparently not until' after
Nunez had answered her question by telling her that "I had signed with the union
and that's all." During the same conversation, Netti also told Nunez that "maybe
next Monday the place will be closed because Mr. Norman Cohen was in Jackson-
ville and will be delayed for about three or four months to sign the papers." A
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
few days later, around February 10 or 11,-acting as interpreter- for Netti, Nunez
told all the plant employees:
that she [i.e., Netti] wished that that factory, that plant, were for us like a,
home. for 8 hours and she want if any girl' has any trouble with her work to
ask her and she will try to help in any way . . And she told us if the union
comes I will be with all of you under contract, the place will be closed and
I wouldn't be here . ., . She says if she have to leave that is what it was, if
she have to leave Mr. Norman Cohen will give her back her [investment]
check and she wouldn't be in the factory anymore . . . . She told us that she
had work for 'us' because Norm,an Cohen will give us all the work we need
for about 52 weeks a year.
The next day (i.e., around February 11 or 12), Netti asked Nunez into the office,
where, in the presence of bookkeeper Berman, Netti told Nunez, "Don't be silly
... don't vote for the union. You know Mr. Norman Cohen is a multimillionaire
and he doesn't, care 'about the girls or the shop. I was talking to him a few
minutes ago by the phone and Mr. Berman there verified this. And he told me
there wasn't going to be any union here, that if the union wins an election this
place will be closed." Netti also said that Cohen would find a place for Netti
elsewhere and that even if Flame had to keep open "it was not going to be any
place for us and I will have to go out up and down with the sign and the whole
thing will be for nothing." Sorter Daelhousen then walked in on the conversation.
After Netti left, Berman told Nunez to think about it, that if the place were
closed down there would be no more work, and that nobody would know if she
voted against the Union.
Also on the same day that the union representatives visited Flame (February 5),
Phillip Benanti told Nunez (one of the few employees speaking English as well as
Spanish), "Tell these girls that there is not going to be any union here and if
they go with the union they can do it because this is a free country, but if they
stay here they can't belong to the union even if I have to keep the place open, I
have plenty of money to do this." Benanti added that although there was "plenty
of work" for the girls, that "if the girls want to go with the union there is not
going to be any work for them in that place and . . . it was a free country and
we can make whatever choice we want to make." Nunez thereupon, in accordance
with Benanti's instructions, told this to the other girls in the plant, in Benanti's
presence. Later in the day Benanti told her, "Tell these girls if they change their
minds they can come back Monday and start to work Monday like always because
I have no hard feelings for them." Nunez passed this on, also, to the other girls,
in Benanti's presence. When Nunez' mother, who continued to work at Flame
after Nunez left in mid-March, missed a few days from work because of illness
and sought to return, she was told that Netti did not want mother or daughter
working there.
Also corroborating the foregoing, former Flame employee Daelhousen testified
that she, too, observed Netti going around among the other operators in the plant
in February, asking them whether they had signed with the Union; and that when
Netti asked her "if I [Daelhousen] had signed up for the union, and I denied, I
denied this, and I told, her no, and then she said to me, are you sure, and then I
said , well, of course I am sure." In point of fact, Daelhousen had already signed
up for the Union. About a week later, Netti again approached Daelhousen at
work and again pressed her, as before, for a reply, with the same response on
Daelhousen's part, again without reassurance from Netti. At around the same
time, Phillip Benanti in a talk to the plant employees through an interpreter, in
the presence of Netti, told the employees "that it was ' a free country and that we
could do as we pleased, he understood that they was wanting to get' a union in
there and that we could do as we pleased, but if a union came in he felt sure .. .
that Mr. Cohen wouldn't stand for it"; that "Mr. Cohen was, in Jamaica and . .
that he wouldn't' be back for several months and that if the union ' came in that
we' would probably 'all be looking,fdr jobs"; that "Mr. Cohen could pay the rent
on the building,for a couple of years and close the door, that he didn't have to
worry, that he'had plenty of money"; and that "if the union came in that we
would all 'be looking for jobs because Mr. Cohen didn't want a union in there."
Daelhousen'also corroborated Nunez' testimony dealing with Daelhousen's walking
into the office around mid-February and hearing Netti tell Nunez, in the presence
of Berman that if she "wanted to join the union, if you did . . . you won't have
any job, none of you ... will have any jobs."
FLAME OF MIAMI, INC. 1115
Netti was not produced to testify in contradiction to any of this testimony, nor
was Respondents' failure to produce her accounted for or in any way explained.
The same is true of Berman. It cannot be assumed that, had Netti or Berman
been produced, their testimony would have contradicted that of these employees.
Since I was entirely, favorably impressed with the testimonial demeanor of these
employees,11 I credit their testimony as recounted above, insofar as it deals with
Netti. So far, as it, involves Benanti, I likewise credit it in preference to that of
Benanti (who merely denied in general terms that he discussed union with the
employees, allegedly. telling them only that "this is America, it is a free country,
girls, do whatever you want to do"), upon whose qualities as a witness I have
already had occasion to comment and whose testimonial performance impressed
me adversely.12
Crediting the testimony of General Counsel's employee witnesses as described,
I accordingly find that Respondents through Supervisors Netti and Phillip Benanti
threatened employees in connection with their protected union organizational activ-
ities, and also that Respondents through Supervisor Netti coercively interrogated
employees, in violation of Section 8(a)(1) of the Act, substantially' as alleged in
the complaint. I further find that the evidence fails to establish that Respondents
interrogated employees through Supervisor Phillip Benanti as alleged in the
complaint.
D. Concluding findings
Evaluation of the credited testimony persuades me that there was and is adequate
community of industrial relations interest, policy, and activity between Respond-
ents Cohen Corp. and Flame to justify regarding them as sufficiently integrated
and affiliated in business to warrant their being treated as a single employer
engaged in commerce or in an activity affecting commerce for purposes of the
Act, and I accordingly so find.
In making this finding, I have carefully weighed all facts established by the
credible evidence, and have relied inter alia upon the following facts and considera-
tions which I deem to be significant, particularly in the aggregate: (1) it was
Cohen who hired Terkeltaub as manager of Flame; (2) it was Cohen who hired
Netti to replace Terkeltaub at Flame; (3) Cohen told the assembled employees of
Flame that he was the owner; (4) Cohen's effective ownership of all chattels of
Flame under a chattel mortgage not being foreclosed by him although the indebted-
ness thereon, has not been reduced by Flame; (5) Phillip Benanti's continued
status as an employee of Cohen Corp., as its "quality control man" traveling from
plant to plant (including Flame) throughout the South at Cohen's behest to check
the quality of merchandise being produced for Cohen Corp.; (6) Benanti's lack of
testimonial knowledge as to details of the financial picture and other important
aspects of Flame's operations; (7) the circumstances of Flame's opening, mainte-
nance, and utilization of a bank account and an accountant in New York City at
or near the locus of'Cohen Corp. and in relation to the latter as described; (8)
the fact that the entire output of Flame has at all times been exclusively for
Cohen Corp. and for no other; (9) Cohen's failure to enforce, and Flame's failure
to reduce, another loan obligation of Flame (in addition to the chattel- mortgage)
financed by Cohen; (10) Cohen and Cohen Corp.'s in practical effect total control
over the destinies and all phases of the operations and activities of Flame, virtually
in command of its corporate life-and death; (11) Cohen's threat to 'close Flame
in the event of its unionization; (12) Netti's and Benanti's threats that Cohen
would close Flame in the event of unionization; (13) Netti's indication that if the
Flame plant were closed because of unionization, Cohen would simply move it
elsewhere; (14) Cohen's unwarranted and unexcused failure to testify at the hear-
ing; (15) Netti's totally unexplained failure to testify at the hearing; (16) Flame
Bookkeeper Berman's totally' unexplained failure to testify at the hearing; (17)
Flame's alleged Accountant, Blattman's totally- unexplained failure to testify at the,
"Even considering possible surface inconsistencies therein, ascribable in part to lan-
guage comprehension difficulties , emotional lability , and modest intellectual level, not
reflecting adversely on basic credibility, notably in 'the case of General Counsel's witness
Martos.
' The testimony 'of several employee witnesses of Respondents' that they were not in-
terrogated or threatened ( and 'did not recall or in their presence 'observe others ), even if
credited, ` does 'not establish' that others were not. - In, any event, I+ expressly find that
General Counsel's witnesses ' were interrogated and threatened as here recounted.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing; (18) Flame's failure to produce copies of its officially filed penalty
returns and reports in substantiation of its contentions;13 (19) the default of
Respondents Cohen Corp. and Cohen in appearing at the hearing-scheduled on'
ample notice to them-to defend in any way against the allegations of the com-
plaint, and their total failure at any time since the hearing to explain or to move
to be relieved of their default.14
Under comparable circumstances, the Board and courts have treated two or more
such corporate structures as integrated or affiliated or as a single employer in com-
merce within the intendment and purposes of the Act (or for similar purposes), in
order to effectuate public policy.15
Flame and Cohen Corp. are thus sufficiently allied in ownership and control of
all Flame sewing machines and other assets, in finances and financial management,
in manufacturing operations, in production and distribution, in hiring and control
of key managerial-supervisory personnel, and in labor policy, among other things,
to warrant regarding them as an integrated or affiliated enterprise and "single
employer" in commerce for purposes of Section 2(6) and (7) of the Act. I have
already found that Respondents through Supervisors Netti and Phillip Benanti
engaged in economic threats to employees, and in the case of Netti also interroga-
tion of employees, substantially as set forth in the complaint (with the proviso
already noted as to Benanti not having been established to have engaged in interro-
gation), in violation of Section 8(a)(1) of the Act.
Upon the foregoing findings and the entire record I state the following:
CONCLUSIONS OF LAW
1. Respondents Flame of Miami, Inc., and Cohen Brothers Dress Corporation
are affiliated businesses and a single employer engaged in commerce or in an
industry affecting commerce within the meaning of Section 2(6) and ( 7) of the
Act.
2. International Ladies' Garment Workers' Union , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By the conduct set forth in section II which has been found to constitute
unfair labor practices , Respondents have interfered with , restrained , and coerced
employees in the exercise of rights guaranteed to them by Section 7 of the Act,
and have thereby engaged and are engaging in unfair labor practices within the
meaning of Section 8 ( a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend the customary cease-and-desist order and the affirmative relief
conventionally ordered in cases of this nature, involving interference, restraint, and
coercion. In view-of findings and conclusions herein made, my Recommended
Order will not be limited to Respondent Flame but, so as to carry out the policies
13 "This evidence was vital and it was clearly within respondents' power to produce it."
N.L.R.B. v. Wallick and Schwalm Company , 198 F 2d 477, 483 (C.A. 3).
14 Cf. N L.R.B. v. Modern Optics, 201 F.2d 513 (C.A. 5) ; Fruit Industries, Inc., 114
NLRB 516.
is Cf . Textile Workers Union v. Darlington Mfg Co., 380 U S. 263, 272-273; N.L R.B. v.
Deena Artware, Inc., 361 U.S. 398, 402, 404; N.L.R.B. v. Stowe Spinning Company, 336
U.S. 226, 227; N.L.R.B. v. City Yellow Cab Co., 344 F 2d 575, 577, 578 (C.A. 6) ; N L.R B.
v. Winn-Dixie Stores, Inc., 341 F.2d 750, 752 (C.A. 6), cert. denied 382 U.S. 830, 60 LRRM
2234; N.L.R B. v Elias Bros. Big Boy , Inc., 325 F 2d 360, 362 (C A. 6) ; N L R.B. v.
Royal Oak Tool & Machine Company, 320 F.2d 77 , 80, 81 (C.A. 6) ; N.L.R.B. v. Gibraltar
Industries, Inc, 307 F.2d 428, 431 (C.A. 4), cert. denied 372 U.S. 911 ; N.L R R v. Con-
crete Haulers, Inc., 212 F 2d 477, 479 (C.A. 5) ; N.L.R.B. v. National Shoes, Inc., 208
F 2d 688, 691 (C A. 2) ; California Zinc Co. v. U.S., 72 F. Supp. 591, 593 (Ct. Cl., 1947) ;
St. Louis Harbor Service Company, 150 NLRB 636, 58 LRRM 1145. An inadequately
financed corporation may be a mere shell or useful instrumentality for another corpora-
tion holding the purse strings while seeking escape from statutory public policy obliga-
tions. Cf. Deena Artware, supra at 403 and cases there cited ; Douglas & Shanks, Insula-
tion from Liability through Subsidiary Corporations , 39 Yale L.S. 193 ( 1929 ) ; Rohrlich,
Organizing Corporate and Other Enterprises 408 (1953 rev. ed. ) ; Wormser, Disregard of
the Corporate Fiction and Allied Corporation Problems 23-24, 35, and passim (1927).
FLAME OF MIAMI,,INC. 1117
and purposes of the Act in a realistic, practical, and effective manner, it will be
extended so as to apply to all respondents. The utilization of corporate structures
as evasive instrumentalities, in ways so numerous as almost to defy cataloging, is
well known; nor is the pattern of New York garment manufacturers with corporate
subsidiaries or wholly controlled affiliates, dummies, or satellites in other States
novel to the Board, as its case reports show. In its administration of the Act so as
to effectuate legislatively declared purposes and policies, the Board has not hesitated
to fashion effective remedies to reach persons participating with the actual employ-
ing respondent in conduct proscribed by the Act.16 In view of the fact that the
unfair labor practices committed are of a character striking at the roots of employee
rights guaranteed by the Act, I shall recommend that Respondents cease and desist
from infringing in like or related manner upon rights secured to employees by
Section 7 of the Act. I shall further recommend that Respondents be required to
post an appropriate notice.
The motion of Respondents Flame and Benanti to dismiss the complaint upon
the conclusion of the entire case is hereby denied. Upon the basis of the foregoing
findings of fact and conclusions of law and upon the entire record, and pursuant
to Section 10(c) of the Act, I hereby make the following:
RECOMMENDED ORDER
Flame of Miami, Inc., Cohen Brothers Dress Corporation, and their officers,
agents, successors, and assigns, including Norman Cohen and Phillip Benanti, shall:
1 Cease and desist from directly or indirectly-
(a) Interrogating any employee of Flame of Miami, Inc., with regard to his or
any other employee's union affiliations, desires, sympathies, or activities, so as to
interfere with, restrain, or coerce any of them in the exercise of the right of self-
organization or any other right under the National Labor Relations Act, as
amended.
(b) Threatening any employee of Flame of Miami, Inc, with plant closure or
no work in the event of unionization, or with any other economic or other loss,
harm, detriment, or reprisal to himself or other employee, for exercising his right
of self-organization or any other right under the National Labor Relations Act as
amended; or indicating that measures would be taken to see to it that there would
be no union at the Flame plant.
(c) Interfering in like or related manner with, or restraining or coercing, any
employee of Flame of Miami, Inc., in the exercise of his right to self-organization;
to form, join, or assist any labor organization; to bargain collectively through rep-
resentatives of his own choosing; to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection; or to refrain from any
and all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post in the plant of Respondent Flame of Miami, Inc., in Miami, Florida,
copies of the attached notice marked "Appendix." 17 Copies of said notice, to be
1e Remedies have thus been applied to respondents who, while not employers in the com-
mon law sense , manifested such conduct in regard to the employment relationship as in
effect to indicate control thereof ( Red Top Cab & Baggage Co., 145 NLRB 1433, 1434; cf.
N L.R B. v. West Texas Utilities Company, Inc.. 218 F 2d 824 (C A. 5), cert denied 349
U.S. 953, enfg. per curiam 108 NLRB 407, 412-414; Operating Engineers Local No 3
(Stewart and Nuss, Inc.) v N.L R.B , 266 F 2d 905, 909 (C.A.D C.), cert. denied 361
U.S. 834; and may be bottomed upon or even be applicable to local police officials (cf.
N.L.R.B. v. Bibb Manufacturing Company, 188 F.2d 825 (CA. 5) ; Thunderbird Hotel Com-
pany, 152 NLRB 1416, 59 LRRM 1312) and businessmen (The Colson Corporation, 148
NLRB 827, enfd. 347 F.2d 128 (C.A. 8)) participating in promotion of unfair labor prac-
tices. More recently, the Board fashioned an effective remedy to deal with corporate inter-
state flight and relocation for the purpose of avoiding the consequencies of exercise by
employees of rights guaranteed by the Act. Cf. Garwin Corporation, 153 NLRB 664. See
also cases cited supra, footnote 18.
17 In the event that this Recommended Order is adopted by the Board, the words "a.
Decision and Order" shall be substituted for the words " a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision.
and Order."
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for Region 12, shall, after being duly signed by
-the authorized representatives of- said Respondents, be. posted by Respondents
immediately upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by said Respondents
to insure that said notices are not altered, defaced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision and Recommended Order, what steps have been taken to comply
therewith.18 -
I FURTHER RECOMMEND that the complaint be and the same is hereby dismissed
as to all violations alleged but not herein found.
'B In the event that •'this Recommended Order is adopted - by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps-said Respondents have 'taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify all employees of Flame of Miami,
Inc. that:
WE WILL NOT directly or indirectly interrogate.you regarding your or any
other employee's union affiliations, desires, sympathies, or activities in Inter-
national Ladies' Garment' Workers' Union, AFL-CIO, or other union,'so as
to interfere with, restrain, or coerce you or other employee in the exercise of
your or his right of self-organization or any other right under the Act.
WE WILL NOT directly or indirectly threaten you, nor will we carry out any
threat, that we would close the plant or that there would be no work in the
event the plant is unionized by International Ladies' Garment Workers' Union,
AFL-CIO, or other union;, WE WILL NOT threaten you with any economic or
other loss, harm, detriment, or reprisal, for joining International Ladies' Gar-
ment Workers' Union, AFL-CIO, or other union, or otherwise exercising your
right of self-organization under the Act or any other right under the Act; and
WE WILL NOT threaten to see to it that there will be no union,at the plant. ,
WE WILL NOT in like or related manner interfere with, restrain, or coerce
you in the exercise of your rights, guaranteed to you by Congress, to self-
organization, to form labor organizations, to join or assist any labor organiza-
tion,•to bargain collectively through representatives of your own choosing; to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection; or to, refrain from engaging in any or all such
activities.
All of you are free to be or'not to be members of International Ladies' Garment
Workers' Union, AFL-CIO, or any other union.
'FLAME OF MIAMI, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
COHEN BROTHERS DRESS CORPORATION; .
Employer:
Dated------------------- -By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive' days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may 'communicate directly with the Board's Regional Office, 706
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone 228-7711.