G.M. Trimming, Inc.

National Labor Relations Board - Board Decisions

May 9, 1986

279 N.L.R.B. 890 (N.L.R.B. 1986)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G.M. Trimming, Inc., R.M. Triks Ltd., HRM
Sportswear , Inc., J .S. Trimming Co., Jodie
Sportswear Inc., Jodie Sportswear Inc., Debtor-
in-Possession, and George Marks and Washable
Clothing, Sportswear and Novelty Workers,
Local 169 affiliated with Amalgamated Clothing
and Textile Workers Union (ACTWU), AFL-
CIO and Journeymen and Production Allied
Services of America and Canada International
Union Local 157, Party to the Contract. Cases
29-CA-10206, 29-CA-10206-2, and 29-CA-
10315
9 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 7 March 1985 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, G.M. Trim-
ming, Inc., R.M. Triks Ltd., HRM Sportswear,
Inc., J.S. Trimming Co., Jodie Sportswear Inc.,
Jodie Sportswear Inc., Debtor-in-Possession, and
George Marks, Brooklyn, New York, their officers,
agents, successors, and assigns , shall take the action
set forth in the Order, except that the attached
notice is substituted 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 discharge, lay off, or discriminate
against any employee for supporting Washable
Clothing, Sportswear and Novelty Workers, Local
169 affiliated with Amalgamated Clothing and Tex-
tile Workers Union (ACTWU), AFL-CIO, or any
other union.
WE WILL NOT deny Local 169 representatives
access to our premises for the transaction of au-
thorized union business.
WE WILL NOT harass union representatives when
they are on the premises to conduct union business.
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 make Miguel Jaramillo, Juan Linval,
and Zoila Miranda whole for any loss of earnings
and other benefits suffered by them during the pe-
riods of their respective layoffs and discharge as a
result of our discrimination.
WE WILL remove from our records any refer-
ences to the unlawful discharge of Zoila Miranda
and to the unlawful layoffs of Miguel Jaramillo and
Juan Linval, and notify them in writing that this
has been done and that their discharge and layoffs,
' The Charging Party implicitly has excepted to some of the judge's
credibility findings The Board 's established policy is not to overrule an
administrative law fudge 's credibility resolutions unless the clear prepon-
derance 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
reversing the findings
2 No exceptions were filed to the violations found by the judge
8 In view of the fudge 's finding that Respondent George Marks is per-
sonally liable , which we adopt, we shall amend the notice to employees
to include Respondent George Marks, whom the judge inadvertently
omitted from the notice
279 NLRB No. 121
G.M. TRIMMING , INC. 891
respectively, will not be used as a basis of future
action against them.
G.M. TRIMMING, INC.
R.M. TRIKS LTD.
HRM SPORTSWEAR, INC.
GEORGE MARKS
J.S. TRIMMING CO.
JODIE SPORTSWEAR INC.
JODIE SPORTSWEAR INC. DEBTOR-IN-
POSSESSION
Beatrice Kornbluh, Esq., for the General Counsel.
Leon Schulzinger, Esq., of New York, New York, for
Local 169.
Avrom R. Vann, Esq. (Vann & Borenstein, Esgs.), of New
York, New York, for G.M. Trimming, Inc., R.M.
Tnks Ltd., HRM Sportswear, Inc., J S. Trimming Co.,
Jodie Sportswear Inc., Jodie Sportswear Inc., Debtor-
in-Possession.
Nicholas Maltese, Esq., of Brooklyn, New York, for
George Marks.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was tried before me on January 19, 27, 30, 31;
February 1, 2, 3; and March 12 and 14, 1984, in Brook-
lyn, New York. The charges were filed by Washable
Clothing, Sportswear and Novelty Workers, Local 169,
affiliated with Amalgamated Clothing and Textile Work-
ers Union (ACTWU), AFL-CIO (Local 169) on January
20, February 4, and March 11 and 14, 1983, and in each
instance served on the named Respondents by certified
mail on the same day. The complaints issued thereon, in
Cases 29-CA- 10206, 29-CA- 10206-2, and 29-CA- 10315,
were consolidated by order consolidating cases, amended
complaint and notice of hearing dated September 20,
1983. Each of the corporate Respondents is alleged to
have been "a contractor in the manufacture of clothing
and related products." Jodie Sportswear, Inc., Debtor-in-
Possession, is alleged to have been the alter ego of Re-
spondents , which are alleged to have been affiliated busi-
nesses constituting a single-integrated business enterprise
operated through common offficers, with common own-
ership , directors , and operators who formulated and ad-
ministered a common labor policy for , and affecting the
employees of, the Companies. These Respondents are al-
leged to have violated Section 8(a)(1), (2), (3 ), (4), and
(5) of the National Labor Relations Act (the Act).
The attorney representing the corporate Respondents
and J.S. Trimming Co. interposed a formal answer to the
original complaint and was permitted to read an answer
into the record at the commencement of the hearing on
behalf of Respondents G.M. Trimming , Inc., R .M. Triks,
Ltd., HRM Sportswear , Inc., J.S. Trimming Co., Jodie
Sportswear , Inc. and Jodie Sportswear , Inc., Debtor-in-
Possession . In substance , he denied the allegations of
wrongdoing and violation of the Act, the alleged con-
nection or relationship between the various Respondents,
and the jurisdiction over some of Respondents.
The attorney representing George Marks appeared
only at the outset of the hearing , on the first day. He en-
tered a denial on Marks ' behalf of any personal liability,
in the following terms:
MR. MALTESE: I've been asked by Mr. Marks to
appear on his behalf to make a statement . And I've
only been authorized by him to make the statement
and no further. He has asked me to tell the Court
that he is not personally liable. He has not signed
any contracts nor has he accepted any judgments,
nor has he done any act personally to violate any
regulation that he 's being charged with. We ask that
be considered by the Court.
Marks ' attorney prepared to leave at that point , but re-
mained in the court room at the express request of the
General Counsel , who indicated that it was the position
of the General Counsel that Marks had defaulted in an-
swering . Marks' counsel then made an additional state-
ment , as follows:
MR. MALTESE: You prove it to the satisfaction of
the Court. I don't have the obligation to cross ex-
amine your witnesses . I don 't have the obligation to
put witnesses . I'm just resting on that statement.
Now you have the proof, if the Judge feels that you
have made the proof, then he can enter whatever
order he feels necessary under the law.
After a discussion of subpoenas which were admitted
into evidence and which had been served on Marks, his
attorney left the hearing and did not return. I consider
his appearance at the opening of the hearing to have
constituted an appearance on behalf of Marks and the in-
terposition of an answer on his behalf, consisting of deni-
als of Marks ' personal liability . Marks testified on March
12, 1984.
The parties were afforded full opportunity to be heard;
to call , examine, and cross -examine witnesses ; and to in-
troduce relevant evidence . Posthearing briefs have been
filed on behalf of the General Counsel, the Charging
Party, and Respondents with the exception of Marks.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed on behalf of the General Counsel, the Charg-
ing Party , and Respondents (except Marks), I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondents Jodie Sportswear , Inc. (Jodie), G.M.
Trimming , Inc. (GM), and HRM Sportswear, Inc.
(HRM) admitted that in the course of their operations
they performed services for firms located outside the
State of New York of a value in excess of $50,000 per
annum , and Jodie Sportswear, Inc., Debtor-in-Possession
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(DIP), projected similar operations in comparable
volume. All admitted to being employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and admitted to being corporations orga-
nized under the laws of the State of New York. Re-
spondents R.M. Triks, Ltd. (RM), admittedly a New
York corporation, and J.S. Trimming Co. (JS), which
denied being a New York corporation, denied perform-
ing services valued in excess of $50,000 for firms located
outside the State of New York and denied being employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It was clear from the evidence adduced at the hearing
that RM was not an operating corporation with a payroll
and that JS was an individual proprietorship by George
Marks which was succeeded by GM in 1982. It suffices
at this point to note that I have found below that all the
corporate entities through which Marks operated and JS
were part of a single-integrated business enterprise for-
mulating and administering a common labor policy af-
fecting employees on the payrolls of GM and Jodie, and
that an alter ego relationship existed between Marks and
the corporations, inasmuch as the employees "perform-
[ed] the same work, in the same places, under generally
the same conditions of employment, and under the direc-
tion and control of the same manager" of the Respond-
ent corporations. This subjects them all to the jurisdic-
tion of this tribunal, because the jurisdiction acquired
over one corporation necessarily attaches to an alter ego.
J. E. Cote, 101 NLRB 1486, 1487 (1952).
Accordingly, I find that Respondents R.M. Triks,
Ltd., HRM Sportswear, Inc., J.S. Trimming Co. and its
successor, G.M. Trimming, Inc., and Jodie Sportswear,
Inc. and its successor, Jodie Sportswear, Inc., Debtor-in-
Possession, were, at pertinent times herein, employers en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondents admitted, and I accordingly find, that
Local 169 and Journeymen and Production Allied Serv-
ices of America and Canada International Union, Local
157 (Local 157) are and were at all material times labor
organizations within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED AND PROVEN RELATIONSHIP
BETWEEN RESPONDENTS
The allegation that Respondents were affiliated busi-
nesses which constituted a single -integrated business en-
terprise whose operator formulated and administered a
common labor policy affecting all the employees of the
Companies is flatly denied by all the corporate Respond-
ents. In response to other allegations respecting Re-
spondents' interrelationships, the answers admitted that
until February 1983 Marks was an executive officer of
Jodie and DIP; responsible for hiring and firing of per-
sonnel, purchase of materials, and contacts with custom-
ers; and was the owner of JS and of the corporate Re-
spondents, and that GM, Jodie, and DIP employed the
same person, Roy Brooks, as bookkeeper for the respec-
tive companies. The answers deny that Marks had re-
sponsibility for discontinuing and forming various corpo-
rate entities, as alleged in the complaint; that he was a
executive officer of any of the corporations after Febru-
ary 1983 (and alleged affirmatively that he was not
acting on their behalf or as their agent after February
1983); that DIP was the alter ego of Jodie (but admitted
that since October 26, 1982, it had been the successor of
Jodie); and that Brooks acted as an agent or on behalf of
any of the corporations for which he worked as a book-
keeper.
Though admissions and denials are, in some instances,
made only in the names of some of Respondents, all the
entities involved-GM, RM, HRM, JS, Jodie, and
DIP-admitted the allegations that "respondent Marks
has responsibility for hiring and firing of personnel, pur-
chase of materials and contacts with customers" of Re-
spondents.
The basic facts of the case, as established by the evi-
dence in the record, are that over a period of time Marks
owned and operated a sportswear factory through the
named corporate entities and sole proprietorship; that his
financial situation made it necessary for him to file a peti-
tion under Chapter XI of the Bankruptcy Act in October
1982 on behalf of Jodie, which was designated debtor-in-
possession; and that the debtor-in-possession continued
operation of the business under the management of
Marks until late February or early March 1983, when
Lee J. Unger, a repesentative of a secured creditor, as-
sumed control of the business. The violations of the Act
are all alleged to have occurred during the period of
Marks' control.
The evidence that the various entities constituted a
unified, integrated operation under Marks' control is
overwhelming. His own testimony detailed his method of
operation and, though he attempted to stress those as-
pects of it which tended to show the individuality and
distinctness of the various entities, he never contradicted
any of the testimony given by any of his employees and
corroborated their description of the operation as an in-
tegrated enterprise.
According to Marks, the entities consisted of RM, all
of whose stock was owned by him and which in turn
owned the stock of HRM, Jodie, and GM; HRM, a man-
ufacturing corporation which procured orders, delivered
cut goods to its contractors for assembly and then made
delivery of the finished product to its customers, and
Jodie and GM, which were the contractors. (GM suc-
ceeded JS, a proprietorship, in 1982.) Marks set the
prices, adding a fixed percentage as markup on the cost
of production. Jodie and GM produced solely for HRM
and were the only corporations with payroll. The tele-
phone book listing was solely in the name of HRM and
they were on separate telephone lines for the other com-
panies. Marks first testified that HRM paid the telephone
bill; later he stated that Jodie paid it and HRM paid no
part of it He also asserted at one point that Jodie alone
paid the Consolidated Edison and Brooklyn Union Gas
Company bills. The lease was in the name of HRM, but
rent was apportioned between it and Jodie and GM.
The integrated nature of the operation is apparent
from the manner in which personnel were assigned to
work, the manner in which payroll was handled, and the
manner in which the business operations were carried on.
G.M TRIMMING, INC. 893
Payroll was completely mixed up. Juan Linval was hired
on July 21, 1981, to work as a cutter for Jodie. He was
paid from JS and later from GM payroll accounts. Zoila
Miranda was hired as an operator by Vincent Renzo, the
plant manager, who gave her his business card imprinted
with the name of "Jodie," went on the GM payroll.
Renzo himself received sums of money from more than
one entity. Marks testified that Renzo was the plant man-
ager only for Jodie, and that somebody named Louis
Soto was the plant manager for GM, but the GM
records show that in 1981 Renzo received cash payments
from GM in the fixed amount of $125 on January 19 and
29; on February 5, 18, and 26; and on March 5, 11, 18,
and 24. In addition, he received $145.68 from GM on
February 5. The regularity of the dates and amounts of
the payments suggest the existence of an arrangement for
fixed compensation. I do not credit Marks' testimony
that the payments represent reimbursement for expenses
incurred by Renzo on periodic visits to factories in Penn-
sylvania on behalf of HRM, an explanation which, in any
event, does not explain the reimbursement of HRM's ex-
penses from the GM account. Patently, Renzo's activities
were on behalf of the integrated enterprise and it was ir-
relevant to Marks which account he was paid from.
Besides Renzo, 14 other Jodies employees received
cash payments from the GM account. Five employees
received cash payments from the JS account. One em-
ployee received payments on a weekly basis from the JS
account from January through December 1981 and from
the GM account for a period of 8 months thereafter.
Marks asserted that he paid each company's bills from
its own checking account, but readily admitted that
when a particular account was short, he transferred
funds between the firms to pay bills; that "crossovers"
occurred when bills of one company were mistakenly
paid by another; and that he tapped the financial re-
sources of the various entities as need arose, for when-
ever the Jodie and GM payroll accounts needed money,
he transferred funds from the account of HRM, which
had no payroll. He did not trouble himself with fine dis-
tinctions:
Mr. Katz's payroll is the foggiest thing from my
mind as to which firm paid him, and at that time
when I testified that it was Jodie . . . . He could
have been getting paid from Jodie. I could have
paid him from any one of the firms, it was my pre-
rogative as an owner of all these firms to pay any-
body from any firm that I wanted.
JUDGE LAWRENCE: Was that the practice you
followed in 1981 and 1982?
THE WITNESS: Yes, from the day I went into
business. It was my money in any firm and I paid
anybody that I wanted out of any firm I had. It was
my money. Is that against the law to pay anybody
out of any of the firms I want?
Payroll checks were thus drawn on whichever ac-
count suited Marks' convenience. At various times Juan
Linval, a cutter, received paychecks drawn against ac-
counts of JS, GM (its successor), and Jodie, without ex-
planation. Zoila Miranda received Jodie paychecks
before she was fired; after her reinstatement, she was
paid from the GM account. Miguel Jaramillo, a cutter,
was paid by GM paychecks both before he was fired and
after his reinstatement but his invitation to return to
work, by letter from Respondents' counsel dated Febru-
ary 1, 1983,1 recalled him to work for Jodie.
Lee J. Unger testified that when he first visited the
premises, in February, he discovered that bookkeeper
Roy Brooks handled all the books of all the entities, and
that the manner in which records were kept "would
shock anybody whoever was exposed to any business."
He could not tell what was going on, from the records.
The extent to which procedures were governed by the
whims of Marks was indicated by Unger:
JUDGE LAWRENCE: What was the system? What
books did they have?
THE WITNESS: Oh, they didn't have any books of
original entry for cash disbursements or cash re-
ceipts. Those books would be the check book itself.
The checks were written in the check book, but
never-would not be sent out. Mr. Marks worked
on a system that when he would get a bill he would
have the checks written out and then put the checks
in his desk drawer. And at his prerogative, if he felt
like mailing it he would. If he didn't, he didn't. So
the checkbook had no bearing onto the reality of
what monies were or were not in the bank.
There were no purchase order books. There was
literally no books of original entries for any element
of the business. Needless to say, if there were no
originals, there were no subsidiary ledgers. Nothing
was posted. Accounts receivable were kept in a
method that you-he-there was no way to be able
to reconcile what he would have on an account re-
ceivable card to a sales record because there were
no books.
The work was handled the same way, notwithstanding
Marks' attempt to convey the impression that there was
a division of the work between the corporations:
The jobber was HRM and HRM supplied Jodie,
J.S., G.M. and all the other different corporations
that we had and different specific things. We made
complete sportswear which consisted of blouses,
skirts, pants, jackets, separates and coordinates.
Now each one specialized in one particular field. So
we made different divisions and opened up different
setups to produce these particular things.
Marks asserted that Jodie made skirts and jackets
while GM made pants, and he decided what work each
would do: "I decided what work would go to any one of
the factories." Marks failed to explain why, with such a
rigid separation of products, there was any call upon his
decision-making responsibility. The explanation was sup-
plied by other evidence which showed that qualified
workers were "put into a different category" and were
moved around to different sewing machines and that as
1 All dates are in 1983 except as specifically stated otherwise
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the end of 1982 and the beginning of 1983 union cut-
ters , who "were in the Jodie operations " were cutting
pants, which was the GM operation.
The physical plant in which Respondents operated re-
flected the highly integrated nature of their operation.
The plant floor was an open space. All the sewing ma-
chines were grouped together in one area of the floor.
The entire operation being conducted in the premises,
across the entire floor, was supervised by Vincent
Renzo . There were two cutting tables located in an area
separate from the machines , in which three cutters
worked on all the material in the place without distin-
guishing Jodie work from GM work and helping each
other whenever assistance was needed , despite Marks'
contention that they worked for different companies.
The two cutting tables were each utilized by all three of
the cutters. The cutters took orders from the same fore-
man. This was the experience of Miguel Jaramillo, re-
ferred by an employment agency to work for GM and
hired by Marks for GM, and of Juan Linval, hired to
work for Jodie. Marya Grajales, an operator on the JS
and later the GM payrolls, testified that the plant had
one machine which made belts; one machine which made
hems ; one employee who worked on zippers ; and that all
the operators on the floor worked on one batch of work
at a time . They all punched in on one timeclock. Gra-
jales' function was to sew pockets , and she sewed them
on skirts, pants, and jackets, and when she was short of
that type of work she was switched to work on a ma-
chine which cleaned garment edges.
Zoila Miranda, a GM employee, was fired and then re-
instated as a Jodie employee. Nevertheless , she found
herself assigned to the same machine she had operated as
a GM employee.
The evidence is uncontroverted, and the pleadings
admit , that Marks hired and fired the personnel . He con-
trolled labor relations policies governing all employees in
the loft, and that is a particularly important factor in de-
termining if there was common control. Parklane Hosiery
Co., 203 NLRB 597, 613 (1973), affd. on motion for re-
consideration 207 NLRB 991 (1973).
The testimony of Lee J. Unger is also significant. He
observed operations in the premises as they existed in
mid-February and in late February or the beginning of
March 1983, when he assumed management. Unger testi-
fied that he found materials stockpiled in common areas
and that common areas were used for shipping merchan-
dise out; that there was only one receiving clerk; that
there was a common telephone ; and that Vincent Renzo
was acting as the overall manager of all the operations in
the loft.
In the face of Marks ' admissions, the credible testimo-
ny of Lee J. Unger, and the credible testimony of the
employees, most of which was not controverted, I am
not persuaded by the efforts made to demonstrate the
separateness and independence of the Respondent corpo-
rations . For example , it was argued that the corporations
filed separate New York State and New York City tax
returns for franchise taxes and occupancy taxes. That,
however , was required because of the nature of the taxes
themselves . Marks conceded that RM and its subsidiaries,
HRM, Jodie, and GM, filed a consolidated Federal
income tax return . Marks ' observation that Jodie and
GM each owned some of the machines in the premises
means nothing in the context of this case , in which the
issue is the manner in which they were actually used.
Respondents have argued that a wall which divided
the loft demonstrates that the entities were separate oper-
ations . However, it was not constructed until January
1983, was of flimsy construction, and did not extend the
full length of the loft , having gaps between its ends and
the walls of the loft through which work and personnel
continued to circulate . As the Local 169 business agent
observed on a visit to the premises on January 17, Jodie
employees who were members of Local 169 were work-
ing on both sides of the wall.
Respondents cited portions of Unger's testimony, such
as his reference to the use of separate timeclocks for
Jodie and GM employees, to establish the distinctness of
the enterprises . However , Unger was there for a limited
time and for a specific purpose, and his description of the
operation as it existed under his supervision relates to the
period after Marks left. Unger is a Honolulu-based con-
sultant who was retained on January 1 , 1983, by a se-
cured creditor of Marks and Marks' corporations to take
over management and squeeze out payment of the in-
debtedness . He inspected the plant site in February and
took over active management at the end of February or
early in March after insisting that Marks withdraw from
active management , which Marks did on February 18 in
exchange for an extension of credit. Unger's mode of op-
eration thereafter is irrelevant to the charges in this pro-
ceeding, although his observations of conditions in Feb-
ruary and at the time he took over are pertinent to the
issue of the operations as a single enterprise.
The preponderance of the credible evidence establishes
common ownership , ultimately vesting in Marks; the
control of day-to -day operations by Marks and Renzo
and the common supervision of personnel ; the interspers-
ing of work among employees of GM and Jodie or GM
and DIP; the common source of business , HRM and
Marks; the common use of rental space, telephone, and
other business utilities; and the movement of funds be-
tween accounts, rendering the formal separation of bank
accounts , financial records, and payrolls less significant
then they might otherwise have been . See United Con-
structors & Goodwin Co., 233 NLRB 904, 912-913 (1977).
The test of interrelation of operations, common manage-
ment , centralized control of labor relations , and common
ownership has been met. Radio Union 1264 v. Broadcast
Service, 380 U.S. 255, 256 (1965). The evidence is conclu-
sive that Marks controlled labor relations in the entire
operation , thus meeting the most significant of these cri-
teria. See Parklane Hosiery Co., supra. The present case
presents a classic illustration of an integrated operation in
which business entities are conducted as a single enter-
prise. In this instance , the enterprise was the production
and sale of sportswear; it was run by and for George
Marks . The fragmentation of legal title to the enterprise
into several corporate entities may have had significance
from legal, accounting , and taxation standpoints, but it
was of no consequence insofar as liability under the Act
is concerned. For purposes of the Act, the entities consti-
G.M TRIMMING, INC.
tuted an integrated enterprise wholly devoid of the arm's
length relationship characteristic of unintegrated compa-
nies . See NLRB v. Al Bryant, Inc., 711 F.2d 543, 551 (3d
Cir. 1983), enfg. 260 NLRB 128 (1982), cert. denied 464
U.S. 1039 (1984).
Though Marks was entitled to conduct his business in
corporate form if he so wished, he will not thereby
avoid personal liability under the Act. The corporate en-
tities were merely his alter ego, which is sufficient to
render him liable with them, for violations of the Act. J.
E. Cote, supra. New Madrid Mfg. Co., 104 NLRB 117
(1953), enfd. sub nom . NLRB v. Madrid Mfg. Co., 215
F.2d 908 (8th Cir. 1954). (His liability, insofar as JS is
concerned, would be unaffected by the fact that the pro-
prietorship was succeeded by GM, a corporation. L.B.
Hosiery Co., 88 NLRB 1000 (1950), enfd. 187 F.2d 335
(3d Cir. 1951).)
Deceit, subterfuge, and concealment are, of course, of
the essence in an alter ego situation. What is involved is
disguised continuance of a business operation to avoid
collective-bargaining obligations . Carpenters Local 1846 v.
Pratt-Farnsworth, Inc., 690 F.2d 489, 508 (5th Cir. 1982),
cert. denied 464 U.S. 932 (1983); NLRB v. Al Bryant,
Inc., supra. On the whole record, it is impossible to view
Marks' conduct as anything other than deceitful, and the
hasty construction of the wall in January was the culmi-
nation of the long-continuing process of concealment,
which is not negated by posting placards with corporate
names on the building walls.
Quite aside from the finding of alter ego, however,
personal liability on the part of Marks can be predicated
on the proposition that the corporate forms were paper
arrangements that did not reflect the business realities,
and there existed between them such a pervasive unity of
interest that their separate personalities no longer existed.
See Parklane Hosiery Co., supra. That is manifestly the
situation which has been proven to exist in the present
case.
A determination that two affiliated firms constitute a
single employer does not, of course, necessarily establish
that an employerwide unit is appropriate. South Prairie
Construction Co. Y. Operating Engineers Local 627, 425
U.S. 800 (1976). The factors "relevant in identifying the
breadth of an employer's operation are not conclusively
determinative of the scope of an appropriate unit"; fac-
tors which must be considered include separateness of
supervision of employees, separateness of location, lack
of employee interchange, evidence of functional integra-
tion, and whether labor policies in the different compa-
nies involved are dependent on their own needs or on
common needs . Central New Mexico Chapter, NECA, 152
NLRB 1604, 1608 (1965).
The evidence in the record, however, establishes that
the employees of Jodie and GM worked on common
products, worked in close proximity to each other, and
had an identity of interest in working conditions, wages,
and benefits. The operations run by Marks were func-
tionally integrated. The employees, having common
skills, performed similar work. Employees were inter-
changed between the two companies. After Marks had
the wall constructed, employees, at least of Jodie, were
to be found on both sides of the wall though the two
895
areas were nominally occupied by different companies.
The evidence of centralized management , centralized su-
pervision, and centralized control of labor relations,
hiring, and assignment of employees between jobs and
firms and their community of interest is conclusive. See
NLRB v. Al Bryant, Inc., supra; NLRB v. Lantz, 607 F.2d
290, 297 (9th Cir. 1979); South Prairie Construction Co. v.
Operating Engineers Local 627, 425 U.S. 800 at 803-805
(1976). The evidence in the record thus clearly estab-
lishes the propriety of any employerwide unit for collec-
tive bargaining.
In any event, it having been established that Marks
was the alter ego of the corporate Respondents , the ap-
propriateness of the employerwide bargaining unit does
not have to be passed on at all . NLRB v. Al Bryant, Inc.,
supra.
Respondents argue, however, that Local 169 acqui-
esced in the division of the employee group and the ex-
clusion of a portion of it from the bargaining unit. It is
an argument I find meritorious in the light of the evi-
dence in the record, which establishes that over a
lengthy period of time Local 169 was aware of Marks'
propensity for securing corporate insulation against in-
debtedness by operating through as many distinct and
separate business entities as his needs required.
The record is replete with evidence of such knowl-
edge . The collective-bargaining agreements between
Jodie and Local 169 go back many years. They were ne-
gotiated between Local 169 and the Infant and Juvenile
Manufacturers Association and ratified by Jodie. The last
agreement was effective from October 1981 to October
1984. Jodie became a party to the agreements by execut-
ing certificates of ratification and adoption. Certificates
executed on May 31, 1967; April 14, 1970; May 24, 1976;
and December 14, 1978, are in evidence. Also in evi-
dence are similar certificates executed by HRM on De-
cember 16, 1965; May 31, 1967; and September 2, 1970.
Local 169 therefore had a long-standing familiarity with
Marks' business methods.
Local 169 was also well aware, over a long period of
time , that it was making no claim against a large un-
tapped source of contributions to its pension and other
funds by reason of its failure to include GM employees
in the bargaining unit . The size of that potential fund
was confirmed when the auditor, in 1984, conducted a
retroactive audit of the several entities involved. He au-
dited JS for the period January 8, 1981, through January
31, 1982 (finding $20,043 owing); GM for the period Jan-
uary 1982 through November 5, 1983 (finding $81,329
owing); and Jodie for the period February 5 through
March 31, 1983 (finding $36,450 owing). Yet the first
demand for an audit of JS and GM books was not made
until a meeting between Local 169 and Marks at the
office of Marks' attorney on December 23, 1982, and
even then a letter sent by its counsel on January 4 re-
ferred to it as "an additional audit of Jodie's books." The
theory that JS, HRM, RM, and GM together constituted
a single employer was set forth for the first time only on
January 27, when Local 169 made a written demand for
inspection of their books on that basis, asserting that that
was a repetition of the demand made on December 23,
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1982. That it was actually a new demand, made on the
basis of a new theory , is evident from a letter sent by
Local 169 to Marks' attorney on September 1, 1982,
citing the delinquency in fund payments, in which no
such inspection is demanded.
The nature of Marks' corporate setup was known to
the auditor, of course, at least as early as August 15,
1979, when he came across the name of HRM in a Jodie
audit . He explored the relationship of Jodie to HRM, is,
and RM at that time . He not only then requested and re-
ceived the HRM books for examination , but made ex-
tracts from the information contained in the books and
included the data in his report to his superiors in Local
169. In a statement rendered by Local 169 to Jodie on
November 30 , 1981, covering the period from January 3
to September 19, 1981, information on the gross sales of
HRM was included . In spite of this , Local 169 did not
direct an audit of HRM until substantially later , if ever.
The auditor testified he was instructed to conduct such
an audit , but could not say when he received such in-
structions . In any case he never audited HRM.
Besides references to HRM in Jodie 's books, the audi-
tor found references to JS , GM's predecessor . Nothing
was done about that either . In other words , though the
auditor saw payroll records covering all the employees,
of whom 56 were employed by GM , and about 30 by
Jodie , and reported his fmdings to Local 169, no claim
was made which at this time can be interpreted as being
consistent with a claim that prior to these proceedings it
was the position of Local 169 that the GM employees
were included in the bargaining unit covered by the
Jodie contract.
The argument of the General Counsel that anyone
looking at the premises saw only one operation founders
upon the simple fact that the reality of Marks' method of
operation was apparent to Local 169 , so much so that
the listing of the various corporate names outside the
building and at the entrance to the loft merely confirmed
what was already known . What was not known was the
extent of cross-utilization of employees and integration of
operation , the concealment of which supplied the ele-
ment of deceit which underlies my finding of an alter
ego relationship . Even when Marks was candid with the
union representatives , the circumstances demontrated the
common assumption of a limited bargaining unit. Thus,
Eula Stephen , the Local 169 business agent , was aware
of the use of the GM name from the time the corpora-
tion succeeded JS. She asked Marks what GM was and,
according to her own testimony , he candidly told her
that he was having trouble meeting payroll, checks were
bouncing , and "he was paying a certain group of work-
ers under this name ." It is impossible to reconcile her
calm acceptance of this news with any conclusion other
than that she recognized the separateness of the GM
unit, for he was clearly making known to her his inten-
tion to insulate their payroll from attachment by credi-
tors . If sums were due to Local 169 with respect to those
GM employees , the patent evasion of the obligation re-
quired that she make some statement or take some
action . She said nothing , and Local 169 did not become
concerned until the name of GM appeared on authoriza-
tion cards being distributed on behalf of Local 157.
Stephen also remained silent after her discovery of the
intermingling of work and employees . Having observed
the placement of Jodie employees in areas supposedly re-
served for GM operations, she did nothing. I do not see
how, if she thought GM employees should be included
in the bargaining unit , she could have maintained silence
at that time about the failure of Marks to collect their
union dues and contribute to the pension funds for those
employees . The crossovers between the two areas were
numerous and obvious, and the construction of the wall
was so late in the timeframe of the parties ' dealings with
each other (January 1983) that it cannot have misled the
Union, though that was undoubtedly Marks' intention, a
factor I considered in finding an alter ego relationship.
The apparent withdrawal of Local 169 's acquiescence in
Marks' method of operation appears to have motivated
the construction of the wall. I do not find , as contended
by the Charging Party, in its posthearing brief, that
"Marks continued to obscure the fact that his various en-
terprises constituted a single businesss enterprise." I do
find that he attempted to obscure the fact. He did not
succeed . His attempt to separate GM from Jodie at the
time he built the wall, expressly to avoid liability to the
Union, occurred in January when the Union was already
shifting from its long -held position that it would not seek
to collect contributions on the basis of inclusion of the
GM employees in the bargaining unit.
The argument that Local 169 cannot be deemed to
have waived its rights , because a waiver must be express,
is inapplicable in this situation. The question for determi-
nation is what the parties had originally intended and
what they contracted for. The General Counsel must
prove by a preponderance of the credible evidence that
the collective-bargaining agreement between Local 169
and Jodie was intended to cover the employees of GM.
B & B Industies, 162 NLRB 832, 835 (1967).
The Board held, in B & B Industries , that the General
Counsel failed to prove that collective -bargaining agree-
ments between the union and B & B were meant to and
did cover employees of an affiliated company. Among
the factors which underlay this conclusion were many
which in the present case would militate against the Re-
spondents : the degree to which operations were inter-
twined ; the degree to which projects (or work of the
two groups of employees) were indistinguishable; the
degree to which employees were under equal jurisdiction
both of the firms involved ; the degree to which there ex-
isted predominantly separate arrangements for day-to-
day supervision of employees; and the degree to which
work forces were interchangeable.
B & B Industries involved construction crews at two
different sites , in an industry in which it was not unusual
for a company to run union and nonunion jobs at differ-
ent sites simultaneously . In the instant case , the factors
mentioned were among those considered by me in find-
ing that there existed an integrated operation . Neverthe-
less, on the issue of contractual intent, the weight of the
evidence compels the conclusion that the intent was to
exclude the GM employees from the bargaining unit. See
A-1 Fire Protection , 250 NLRB 217 (1980).
G.M. TRIMMING , INC. 897
The collective-bargaining agreement was made be-
tween Jodie and Local 169 and refers solely to employ-
ees of Jodie . It was thereafter renewed on a substantial
number of occasions , with full knowledge on the part of
Local 169 representatives for a period of several years
preceding 1983, that other companies controlled by
Marks operated out of the same premises and that there
were a large number of sewing machine operators work-
ing in the premises who were not members of the bar-
gaining unit. JS and later GM were never asked to ratify
these agreements . Not only did business representatives
of Local 169 walk in and out of the premises past signs
listing the other companies , and not only did they have a
clear view of the operation going on in the third floor
loft at 70 Wyckoff Avenue, Brooklyn , New York, but
the union auditor had access to and examined tax, pay-
roll, and other records of all the business entities owned
and controlled by Marks. Not until January 1983, how-
ever , did Local 169 advance the proposition that all the
employees in the loft could be included in the bargaining
unit . By then it was too late . There had existed circum-
stances which placed an onus on Local 169 to speak up;
it could not sit by and ignore what was going on.
Humble Oil & Refining, 161 NLRB 714, 722 ( 1966).
Thus, Local 169 failed to insist on payment into its funds
to cover the GM employees , an obvious area in which
an employer, by operating through the medium of inde-
pendent corporations , would seek to insulate himself
from or minimize financial liability . Over a lengthy
period of time, Local 169 was aware of Marks' propensi-
ty for securing corporate insulation against indebtedness
by operating through as many distinct and separate busi-
ness entities as his needs required . The failure of Local
169 to insist , until an extremely late date , that employees
of JS and GM were included in the bargaining unit cov-
ered by its contract with Jodie compels me to conclude
that such inclusion had not been intended and that Local
169 acquiesced in the exclusion of such employees from
the bargaining unit . Local 169 cannot now base a claim
of violation of Section 8(a)(5) of the Act on Marks' fail-
ure to pay into the funds on the basis of inclusion of em-
ployees of the noncontracting corporations.
I therefore find that Marks operated a single -integrated
business enterprise for the production of sportswear at 70
Wyckoff Avenue, Brooklyn , New York, at the pertinent
times mentioned in the complaint, which was his alter
ego. I find that Local 169 acquiesced in the exclusion of
employees of GM from the collective-bargaining unit
covered by its contract with Jodie . The consequences of
my finding are that all the entities named in the com-
plaint are subject to the jurisdiction of the Board, being
part of a single operation , and all are amenable to the
remedies which are herein invoked to rectify the unfair
labor practices herein found to have been committed.
My fording requires , however, the dismissal of any
charge of an unfair labor practice predicated upon the
assumption that persons on the GM payroll were mem-
bers of the bargaining unit referred to in the collective-
bargaining agreement between Local 169 and Jodie, i.e.,
those allegations that Section 8(a)(5) was violated by the
failure of any of Respondents to make contributions for
them to the Local 169 funds and by entry into a collec-
tive-bargaining agreement covering them with Local
157.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contract with Local 157
Respondents ' answer admits that Respondent GM en-
tered into a contract with Local 157 in January or Feb-
ruary , recognized it as the collective -bargaining agent of
its production employees , and performed the obligations
required of it by such agreement . It denied allegations
that the agreement was entered into notwithstanding that
Local 169 was the exclusive collective -bargaining agent
of the employees covered by the agreement , that Local
157 did not represent a majority of GM' s employees, and
that the contract covered an inappropriate unit.
My conclusion that Local 169 acquiesced in the exclu-
sion of GM employees from the unit covered by its con-
tract with Jodie mandates a fording that GM did not vio-
late Section 8(a)(5) of the Act by entering into a collec-
tive-bargaining agreement with Local 157 covering em-
ployees represented by Local 169. The employees were
not represented by Local 169. (Ironically, though the
GM agreement with Local 157 was entered into directly
by the parties involved, while the agreement between
Jodie and Local 169 was negotiated by the Infant and
Juvenile Manufacturers Association , Inc., on October 16,
1981, and thereafter "authorized and adopted" by Jodie
on October 20, 1982, both contracts contain identical
unit descriptions and terminology defining employees.)
There was, therefore, no violation of the Act by
reason of the entry by GM into an agreement with Local
157 as alleged in the complaint and admitted in the
answer.
B. Alleged Failure and Refusal to Bargain with Local
169
It is contended that Section 8(b)(5) was violated in
four respects:
1. By refusal to recognize and bargain with Local 169
as representative of a unit consisting of all production
employees working at the Brooklyn plant.
2. By a general refusal to abide by the collective-bar-
gaining agreement with Local 169, since July 21, 1982.
3. By refusal to make required payments to Local 169
Welfare, Pension and Scholarship Funds.
4. By refusal of access to the plant for Local 169 rep-
resentatives.
Central to the case against Respondents is the allegation
that ,
All employees engaged in the cutting , making, cart-
ing and/or shipping of garments and office employ-
ees of Respondents , employed at the Brooklyn
plant, exclusive of executives , managers , confiden-
tial secretaries, professional employees, guards and
all supervisors as defined in Section 2(11) of the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material herein, Local 169 has been the
representative for the purposes of collective bar-
gaining of the employees in the unit described . . .
and by virtue of Section 9(a) of the Act . . . the ex-
clusive representative of all employees in said unit
This is the definition contained in the collective-bar-
gaining agreements between Jodie and Local 169 and
GM and Local 157 , just referred to, the unit in each case
necessarily embracing only the employees of the signato-
ry employer . Respondents ' answer denies the description
of the unit and the scope of Local 169 's representation,
admitting only that Local 169 represented employees of
Jodie and DIP. I have found the facts to be as contended
by Respondents . Because the evidence shows that Local
169 had not until extremely late in 1983 or early in 1984
considered GM employees to be within the Jodie bar-
gaining unit which it represented , it does not sustain the
contention set forth in paragraph 27 of the complaint
that the refusal to recognize and bargain with Local 169
as the exclusive bargaining representative of the employ-
ees in the unit described in paragraph 14, i.e., "all such
employees at the Brooklyn plant," violated the Act.
There is no evidence of failure or refusal on the part
of Jodie or DIP to recognize and deal with Local 169
with reference to matters of concern to employees of
Jodie or DIP. There is no evidence of any refusal on the
part of Jodie or DIP to abide by any of the terms of the
collective-bargaining agreement between Jodie and
Local 169, insofar as they relate to employees of Jodie
and DIP.
The same reasoning governs the disposition of the alle-
gation that since July 21, 1982, Respondents refused to
make payments to the Local 169 Welfare, Pension and
Scholarship Funds , as provided for in that agreement.
Only Jodie and later DIP were committed thereby to
make payments into the funds , and there is no logic by
which Local 169 can reasonably claim that the sums of
money its auditor calculated would have been owed if
GM employees were taken into account and should have
been forwarded to it by GM . That does not mean, of
course , that GM , as a component of an integrated oper-
ation , is not liable for the sums required to be paid under
a remedial order issued at the conclusion of this proceed-
ing requiring payment to the Local 169 funds on account
of Jodie employees , but merely that payments were not
required to be forwarded by it to Local 169 on account
of its own employees in the ordinary course of its busi-
ness in fulfillment of then existing obligations. My find-
ing that the GM employees are not members of the bar-
gaining unit provided for in the Jodie contract , because
it was never intended that they should be , precludes any
possibility that the General Counsel can prevail on this
aspect of the case.
I reject Respondents ' contention that the 6 -month stat-
ute of limitations set forth in Section 10(b) of the Act
shields GM from liability in any event . This is an affirm-
ative defense which was not actively or properly assert-
ed, having been raised for the first time in the posthear-
ing brief filed on behalf of the corporate Respondents.
The defense was not affirmatively pleaded in Respond-
ents ' formal answer to the complaint . Respondents did
not file an answer to the amended complaint . In the in-
terests of justice , their counsel was permitted to read his
answer to it into the record at the hearing . Even on this
occasion , no defense under Section 10(b) was asserted. In
an effort to interpose the defense after the hearing has
been concluded, it is contended in Respondents' post-
hearing brief that under Board rulings , the defense need
not be affirmatively pleaded but that it "is sufficient that
the matter be raised in timely fashion. . . . Respondents
in the instant case raised the 10(b) defense at the hearing
(Tr. 9412-9415)." By that criteria , the asserted defense
must be rejected because it was not raised at the hearing
until March 14, 1984 , which was the ninth day of the
hearing. Had it been raised at that time , it would have
been rejected as untimely . The record shows , however,
that the question of the applicability of Section 10(b)
arose solely in connection with an evidentiary question.
The charge of failure to make fund payments having
been filed on January 20, 1983, counsel for Respondent
corporations sought to exclude any offer of evidence of
failure to make fund payments which were required to
be made before July 21 , 1982, even as evidence of a con-
tinuing violation . The objection to evidence of failures
antedating the 6 -month period was overruled by me, be-
cause the gravamen of the complaint was fast shuffling
between related corporate entities and the prior failures
constituted a part of the relevant history of corporate be-
havior bearing on the commission of an offense within
the 6-month period . The hearing then proceeded. At no
point , either in that discussion or later in the hearing, did
counsel assert Section 10(b) of the Act as an affirmative
defense to the maintenance of the proceeding or any
aspect of it.
Finally, it is alleged that in several instances in Janu-
ary representatives of Local 169 were unlawfully denied
access to the plant. The uncontroverted testimony of
Eula Stephen , the Local 169 representative, established
that difficulty arose respecting the question of access in
November and December 1982 . She testified that on one
occasion Marks came to the door and refused her admit-
tance and on another occasion late in November 1982
when she visited the plant about noontime with two
other union officials, Marks literally threw them out, ac-
tually shoving one of the officials.
On December 23, 1982, a conference was held at the
office of Jodie 's attorney. Stephen suggests in her testi-
mony that it resulted from the need to straighten out the
question of access, but a number of other questions were
also discussed at the meeting . Besides Marks and the at-
torney who represented him and the corporations, the
meeting was attended by Stephen , a union manager, a
union attorney , and the union auditor. Marks wanted
Stephen to limit her visits to the lunchbreak , which was
from 12 to 12:30 p.m., and he also wanted a week's
notice of scheduled union meetings so that he could ar-
range overtime and avoid production losses. They
worked out an agreement which was summarized as fol-
lows in a letter dated January 4 from the Union's attor-
ney to Jodie's attorney:
G.M. TRIMMING, INC.
We were unable to agree on the limits of the right
of the union representative to have access to the
plant and the employees . However , you did agree
that if the union representative appeared at the
plant during the employees ' lunch hour , she would
have free and unfettered access to the employees.
Nevertheless , Stephen had difficulty with Marks as
early as January 5 , when she went to the plant during
the permitted time to post a notice of a union meeting
scheduled for January 12 and distribute copies in English
and Spanish . In conformity with her usual practice, she
first stopped at Marks ' office to speak to him. He de-
manded to know what she was doing there and, when
she told him , announced , "I don 't want you here." He
offered to put up the notice for her. When she insisted
upon doing it herself, he said , "I don't want you here,
get out of here, I don 't like your face ." He ordered her
off the premises , employing increasingly abusive lan-
guage . She challenged him to call the police and pro-
ceeded to distribute the notices . He followed her around
the plant , making comments . He even picked up a notice
she had placed on the machine of an absent worker.
When she entered the cutter's area , he ran in after her,
ordered her out of the cutting department , and followed
her as far as the door . An employee named Grajales wit-
nessed the incident in which he escorted her out of the
loft.
Stephen next visited the premises on January 17, By
this time , Marks had constructed a wall which parti-
tioned the factory floor into two areas . Marks tried to re-
strict Stephen to one side of the wall on the ground that
the Local 169 members , who would have been Jodie em-
ployees , were all on one side of it. However , this was
patently untrue . The Jodie shop steward , for example,
was on the side which Marks would not let Stephen
enter , and when Stephen insisted on her obvious right to
confer with the shop steward, Marks brought the shop
steward out to see her . Stephen finally gained entry into
the forbidden area and found employees whom she had
signed up as members of Local 169 working there.
Marks was supposed to be deducting and forwarding
their union dues , but had not been doing so.
Stephen 's testimony was neither controverted by
Marks nor diminished in its effectiveness on cross-exami-
nation by Respondents' counsel , who obtained conces-
sions from her that Marks had excluded her from the loft
floor , not from the building , and that when she changed
a meeting date from the afternoon of January 12 to the
afternoon of January 13, when the shop was busy, Marks
did not interfere . Those concessions do not affect her
credibility or excuse Marks ' patently illegal interference
with Stephen 's right to conduct her business in the plant
at the agreed times. His extremely unpleasant conduct
amounted to denial of access , notwithstanding her initial
admittance to the premises , because the purpose of her
visit was frustrated by Marks ' harassment and she was
ordered to leave before the expiration of her allotted
time . The interference with her work was a violation of
the Act which Marks made no attempt to explain or jus-
tify.
899
C. The Actions of Roy Brooks
There are three respects in which it is alleged that Re-
spondents , acting through Roy Brooks , "DIP's book-
keeper and agent ," violated the Act in January and Feb-
ruary 1983 : by soliciting employees to sign authorization
cards for Local 157; by interrogating employees concern-
ing their membership in, activities on behalf of , and sym-
pathy for Local 157; and by threatening employees with
discharge and other reprisals if they did not sign authori-
zation cards for Local 157 . None of the evidence ad-
duced supports the second of these charges , which is not
surprising , because proof of coercive interrogation re-
garding membership in Local 157 would have been in-
consistent with the first and third allegations.
Rodney Freeman , an 18-year old employee who
worked for GM from September 1982 to April 1983, tes-
tified that Brooks was known to the employees as the
firm's accountant . He himself regarded Brooks as a
friend and referred to Brooks in his testimony by his first
name, Roy. As the firm 's accountant , Brooks was patent-
ly not a supervisor . The only way , therefore, that
Brooks ' actions can be held to be binding on any of Re-
spondents is by proof either that he was their agent with
respect to the alleged actions or that he occupied such a
position that the employees could reasonably believe that
he spoke for Respondents.
In order to establish agency , the General Counsel
relied on testimony by Eula Stephen that she dealt with
Brooks when she had union matters to handle with
Jodie . However , her testimony makes it clear that the
type of union matters she took up with him were the
type which a union business agent would ordinarily take
up with a firm 's bookkeeper. Her review of the problems
relating to employee paychecks , dues checkoffs , and con-
tributions to union funds with Brooks does not warrant
an inference that Brooks was a spokesman for Respond-
ents, or any of them, either generally or with reference
to any specific subject matter . Stephen did not assert that
she had ever discussed any other matters with Brooks. In
fact, I have noted that when the matter of union access
to the employees had to be discussed , it was taken up di-
rectly with Marks.
Moreover , Stephen 's testimony contained no sugges-
tion that Brooks ever addressed the employees directly.
The contention that Brooks ' utterances could have been
deemed by the employees to reflect the views of man-
agement rests entirely on Freeman's testimony that the
employees recognized him as the firm 's accountant and
that Brooks called him into the office to act as a witness
when Marks executed the collective -bargaining agree-
ment between GM and Local 157. There is no evidence
that this ministerial act conferred any special status on
Brooks in the employees ' eyes , nor can it be inferred
merely from the very circumstance that he was a book-
keeper working in an office.
The evidence of wrongdoing is itself extremely murky.
The only testimony respecting these alleged transgres-
sions is Freeman 's testimony that two employees , Frank,
a grader , and Joe , a cutter , solicited his signature on an
authorization card for Local 157 and told him that if he
did not fill out the card , he would be terminated. The
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel offered no evidence that Frank and Joe
were acting on behalf of Respondents . Instead , further
testimony was elicited from Freeman to the effect that
after Frank and Joe spoke to him , he consulted with
Brooks, who told him to fill out the card or he would be
fired . However , it is not at all clear that Brooks ' state-
ment was a threat . Freeman testified that he consulted
Brooks as a friend, not as a company official . Brooks did
not seek out Freeman . Thus, although Brooks ' statement
may be read as a threat , the background circumstances
equally permit it to be read as Brooks ' realistic appraisal
of the probable consequences of Freeman 's failure to sign
the card , made known to Freeman at Freeman 's own re-
quest, and based on Brooks ' knowledge of Marks' tem-
perament , attitude , and current conduct . The proof is in-
adequate to show which way it should be construed and
speculation , surmise , and suspicion cannot take the place
of evidence.
The only instances in which the evidence clearly es-
tablished that Freeman had been asked to sign anything
were completely innocent situations . Freeman was asked
to sign health insurance documents by a person named
Gerald Wirtz , who was not alleged to be an agent of Re-
spondents . Brooks asked Freeman to sign as a witness
when Marks executed the collective-bargaining agree-
ment which GM entered into with Local 157. Neither of
these instances involve violations of the Act.
D. Discharges and Layoffs
1. Miguel Jaramillo
Miguel Jaramillo testified that on January 7 during the
noon lunchbreak , Eula Stephen approached him and
asked him if he was a member of Local 169 . When he
replied that he was not, she invited him to attend a union
meeting . Jaramillo said he would . Marks , who had been
following her (according to Jaramillo), approached and
ordered her to leave . Then he asked Jaramillo how he
had answered her and Jaramillo told him he had said he
would go to the meeting . Marks then said , "Okay, you
punch out." When Jaramillo asked him what was wrong,
Marks replied, "I don't want you , I never liked
you. . . . get the hell out of here , I don't like you. I
don't want you here no more."
Jaramillo denied having seen a letter from counsel for
Jodie , dated February 1, inviting him back to work at
Jodie. In any event , he did return to work and, though
the chronology presented in the course of his testimony
is not entirely clear , I find that he returned on February
10. Juan Linval confirmed his version of the incident
with Stephen, but their testimony differed in some re-
spects . According to Linval , Stephen actually gave some
papers to Jaramillo . Jaramillo testified that he argued
with Marks , complaining about the salary and lack of
holiday pay. Marks took the paper from Jaramillo and
there was an argument:
Q. I want you to tell me what you saw with your
eyes and what you heard with your ears , all right.
You said Eula came over and then what happened?
A. Eula gave Miguel the papers about the meet-
ing of the union and George Marks told Eula to
leave , walk out . So, Miguel told him, you will see
and then George Marks told Miguel , if you don't
like it go home . Then Miguel told him that he
didn't pay the benefits or the vacations to the
people and then George told hm again that if he
didn't like it walk out. And, then Miguel left.
Though Linval testified that Marks took the paper from
Jaramillo , he could not remember whether Marks took it
out of his hands or whether it was on the machine and
Marks took it from there.
Subsequently , Linval testified,
Q. And , where did you next then see the papers?
A. I don't remember . But, I do remember what
happened to Miguel , they told Miguel to go home,
I don 't want you here and Miguel left.
This prompted my inquiry of the witness whether
those were the exact words:
JUDGE LAWRENCE : Do you remember exactly
what he said?
THE WITNESS : Yes. Miguel told, him , "You will
see" and then George told Miguel , "If you don't
like it, go home."
Linval was then asked to repeat the whole conversa-
tion between Marks and Jaramillo. He recited the noon-
time visit by Stephen , which occurred during the lunch-
break , Marks' order to her to leave , and the argument:
JUDGE LAWRENCE: Did you hear what he
[Marks] said to Miguel?
THE WITNESS : Exactly I don 't remember what
he said before to Miguel.
JUDGE LAWRENCE: Do you remember exactly
what Miguel said to Mr . Marks?
THE WITNESS : Yes, I remember that . He said,
"You will see." And, then George said , "If you
don't like it go home ." And, then Miguel told him,
"Why don't you pay the benefits to the people, why
don't you pay the people for their vacations," and
then he told Miguel again , "to go home, leave
now." So then Miguel left. That's all I know, I
don't know nothing else.
Much of Linval's testimony makes Marks ' language
sound like mere argumentative rhetoric between Marks
and Jaramillo, rather than an order to stop working and
leave . However , on the whole record , it is plain that the
latter interpretation is the correct one. Jaramillo's own
testimony is to the effect that he received a flatbrder to
leave . His departure did not surprise Marks nor elicit any
request to return to work until considerably later. The
parties ' own conduct shows that they themselves inter-
preted the situation as a layoff.
On February 1, Respondents ' attorney sent Jaramillo a
letter directing him to report back to work . Jaramillo
testified that he was out of work for 3 weeks. On all the
evidence in the record , I conclude that he returned to
work on February 7.
G M. TRIMMING, INC.
A prima facie case was thus established that Jaramillo,
having indicated his intention to attend a union meeting,
was laid off by Marks.
2. Juan Linval
Juan Linval was laid off several days after Jaramillo,
according to his testimony. He testified that Marks called
him into his office and asked him why he had given
some of his pay stubs to the Union. Linval told him that
everybody had done so. Marks showed him photocopies
of the pay stubs which Linval had made available to
Eula Stephen. The Union was using them in the Jodie
bankruptcy proceedings. What Marks had in his posses-
sion were a photocopy of a paycheck and photocopies of
paycheck stubs from the GM, Jodie, and JS accounts.
These consisted of a paycheck to Linval drawn on the
GM account, dated October 21, 1982; a paycheck stub
for a check drawn on the JS account on August 8, 1981;
and a paycheck stub for a check drawn on the Jodie
payroll account on July 10, 1982. Linval quoted Marks
as saying , "Juan, look at what you gave the Union,
you're getting me in trouble." Marks then sent Linval
back to work
Later in his testimony, Linval quoted further remarks
by Marks: "He told me this plant is going to be closed,
and the Union will take the job."
Linval testified that later Marks laid him off, telling
him that the place was slow and he should call Marks on
Monday, but that the place was not slow and the volume
of work was normal . Linval had his wife call Marks the
following Monday. Then he received a letter from Re-
spondents' lawyer, dated January 13, telling him to
report for work to Jodie on Monday, January 17. He
telephoned Marks, who told him to come back to work.
When Linval attempted to thank him, Marks responded
that he should not thank him, he was being taken back
only because the Union insisted and he did not want him
there. Linval testified that he returned to work on Janu-
ary 19 A prima facie violation of the Act was estab-
lished.
3. Zoila Miranda
Zoila Miranda was fired on January 10. She was a
member of Local 169 and dues were being deducted
from her salary. She gave the Union the stub of her pay-
check of June 12, 1982, showing payment to her of
wages from the GM account, despite the fact that she
had been hired by Jodie. Because Miranda speaks only
Spanish, Marks spoke to her through an interpreter, an
employee named Margarita:
Q. Will you please tell us now exactly what Mar-
guerita interpreted for George on that occasion and
just what happened?
A. I went to work in the morning and Marguer-
ita was waiting for me at the front door and when I
was about to punch in, Marguerita had told me
don't punch in, because George wanted to speak to
me and other people.
I waited for him until he came because he was
talking to someone. When he came over, he
brought a paper and said to me , "Do you know
901
what this is, who gave you orders to give this, don't
you know this gives me problems." He told me to
go away and to ask the Union for a job and that he
didn 't need me any longer.
Ms. KORNBLUH: May the record indicate that
while the witness was testifying, when she said a
paper like this, she was pointing to General Coun-
sel's Exhibit 11 for identification.
Miranda asked Marks for some kind of paper which
would enable her to collect unemployment insurance
benefits, but he was so angry that he refused, asking her
again why she gave the check stub to the Union. Miran-
da testified that she returned to work on February 11.
4. Respondents' explanation of the discharges and
layoffs
In each of the foregoing cases , the alleged discrimina-
tees testified to termination of their employment under
circumstances which constitute prima facie violations of
Section 8(a)(3) of the Act. Furthermore, Linval testified
that when he returned to work on Wednesday, January
19, he found that Marks had hired two other cutters. He
laid off one immediately on Linval's return, but did not
lay off the other cutter until several weeks later. These
circumstances indicate that work was not slow. Another
factor worthy of note is that Marks laid off or dis-
charged Jaramillo and Linval, two of his three cutters, at
a time when work was in the shop at normal volume, a
circumstance which suggests that his actions were taken
for a reason unconnected with the normal business oper-
ation. In the case of Miranda, counsel for Respondents
unsuccessfully attempted to impeach her credibility on
cross-examination, but did not produce Margarita, the
employee who acted as interpreter for Marks, as a wit-
ness, nor did he explain the failure to do so.
The witnesses having established a prima facie case of
discharge in violation of the Act, the burden was on Re-
spondents to establish that the actual reason for their dis-
charge or layoff was a lawful business reason or a reason
altogether unconnected with their assistance to Local
169 or their willingness to attend a meeting of Local 169.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). No evi-
dence was adduced which either controverted the testi-
mony of the discriminatees or explained their termina-
tions, which are accordingly held to have been in viola-
tion of the Act as alleged.
E. Closer Supervision Because Employee Filed Charge
and Testified
The complaint alleges that on January 28 and 31 and
on February 2 Juan Linval was subjected to closer su-
pervision because he had filed a charge against the Em-
ployer and had given testimony. Linval testified that
after he returned to work on January 19 he was treated
differently from the manner in which he had been treat-
ed before the layoff. He was no longer permitted to have
his morning coffee and doughnut at the cutting table
before the start of his shift, as he had formerly done.
Marks complained that he did not start working immedi-
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ately, complained about the quality of his work, and used
abusive language.
Linval's testimony , however, is barren of details.
There is no evidence in the record that Marks made
complaints which were not justified; as a matter of fact,
the nature of the complaints which Marks made about
Linval's work is not even stated . The abusive language
which Marks is claimed to have used toward Linval was
not quoted . Even assuming that Marks ' behavior toward
Linval was not pleasant, the evidence does not establish
that Marks subjected Linval to closer supervision or im-
posed more onerous working conditions on him.
F. Threats of Physical Harm by Marks
There is no substantial credible evidence of any threat
made by Marks to any employee which may , on its own
terms or by reason of the circumstances in which it was
made , be interpreted as made for the purpose of curtail-
ing employees' exercise of their rights guaranteed by
Section 7 of the Act or activities related to their union
membership or in support of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The violations of the Act herein found to have been
committed by Respondents have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondents George Marks, G.M. Trimming, Inc.,
R.M. Triks, Ltd., HRM Sportswear, Inc., J.S. Trimming
Co., Jodie Sportswear, Inc. and Jodie Sportswear, Inc.,
Debtor-in-Possession, are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Washable Clothing, Sportswear and Novelty Work-
ers Local 169, affiliated with Amalgamated Clothing and
Textile Workers Union (ACTWU), AFL-CIO, and Jour-
neymen and Production Allied Services of America and
Canada International Union, Local 157, are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. Respondents violated Section 8(aX3) and (1) of the
Act by laying off Miguel Jaramillo on January 7, 1983,
after he indicated his intention to attend a union meeting,
and by failing to reinstate him until February 10, 1983.
4. Respondents violated Section 8(a)(1), (3), and (4) of
the Act by laying off Juan Linval and Zoila Miranda on
January 10, 1983, because they furnished information and
documentary evidence to the Union respecting payroll
practices of Respondents, and by failing to reinstate Juan
Linval until January 19, 1983, and Zoila Miranda until
February 11, 1983.
5. Respondents violated Section 8(a)(5) of the Act
about January 1983 by denying Local 169 representatives
access to the premises of Respondents for the conduct of
union business and by harassing the union representative
while she attempted to perform her duties on the prem-
ises.
6. Respondents did not commit any other violations of
the Act except as herein found.
7. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondents engaged in unfair
labor practices, I recommend that Respondents be direct-
ed to cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the policies of the
Act. I shall recommend that the Respondents be directed
to make Zoila Miranda whole for any loss of earnings
and other benefits which she may have suffered by
reason of her discharge on January 10 , 1983, and the fail-
ure of Respondents to reinstate her until February 11,
1983; to make Miguel Jaramillo whole for any loss of
earnings and other benefits which he may have suffered
by reason of his layoff from January 7 until February 10,
1983; and to make Juan Linval whole for any loss of
earnings and other benefits which he may have suffered
by reason of his layoff from January 10 until 19 , 1983. In
all cases , backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977), and
Isis Plumbing Co., 138 NLRB 716 (1962). I further rec-
ommend that Respondents be required to remove from
their records any references to the unlawful discharge of
Zoila Miranda and the unlawful layoffs of Juan Linval
and Miguel Jaramillo and provide them with written
notice of such removal and that their unlawful discharge
and layoffs, respectively, will not be the basis of any
future personnel action against them.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondents, G.M. Trimming, Inc., R.M. Triks
Ltd., HRM Sportswear, Inc., J.S. Trimming Co., Jodie
Sportswear, Inc., Jodie Sportswear, Inc., Debtor-in-Pos-
session , and George Marks , Broodlyn , New York, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or discriminating against
any employee for supporting Washable Clothing, Sports-
wear and Novelty Workers, Local 169, affiliated with
Amalgamated Clothing and Textile Workers Union
(ACTWU), AFL-CIO, or any other union.
(b) Denying Local 169 representatives access to Re-
spondents' premises for the transaction of authorized
union business and harassing union representatives when
they are in the premises at authorized times for the pur-
pose of conducting union business.
2 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
G.M. TRIMMING, INC.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Miguel Jaramillo, Juan Linval, and Zoila Mi-
randa whole for any loss of earnings and other benefits
suffered by them during the periods of their layoffs and
discharge, respectively, in the manner set forth in the
remedy section of the decision.
(b) 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.
(c) Remove from their records any references to the
unlawful discharge of Zoila Miranda and to the unlawful
layoffs of Miguel Jaramillo and Juan Linval, and notify
them in writing that this has been done and that their
discharge and layoffs, respectively, will not be used as a
basis of future personnel actions against them.
(d) Post at the factory premises occupied by the Re-
spondents at Brooklyn, New York, copies of the at-
903
tached notice marked "Appendix."3 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
0 In accordance with our decision in New Horizons for the Retarded,
283 NLRB No 181 (May 28 , 1987), interest on and after 1 January 1987
shall be computed at the "short-term Federal rate" for the underpayment
of taxes as set out in the 1986 amendment to 26 U S.C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).