Senco, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 882 (N.L.R.B. 1969)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Senco, Inc. and Henry Senese , individually and as
officer and agent of Senco , Inc. and Maco
Clothing Corporation and Phyllis Bocchino,
individually and as officer and agent of Maco
Clothing Corporation and H.M.S. Sportswear,
Incorporated and Henry Senese , individually and
as officer and agent of H.M.S. Sportswear,
Incorporated and Bonnie Jaye Sportswear Co.,
Inc. (also sometimes known as Maco Clothing
Corporation) and Phyllis Bocchino , individually
and as officer and agent of Bonnie Jaye
Sportswear Co., Inc. and Henry Senese,
individually and as officer and agent of Maco
Clothing Corporation and Henry Senese,
individually and as officer and agent of Bonnie
Jaye Sportswear Co., Inc. and Phyllis Bocchino,
individually and as officer and agent of Senco, Inc.
and Phyllis Bocchino, individually and as officer
and agent of H.M.S. Sportswear, Incorporated and
Boston Joint Board , International Ladies' Garment
Workers Union, AFL-CIO and Local 841,
International Brotherhood of Teamsters,
Chauffeurs Warehousemen and Helpers of
America , Party to the Contract
Local 841, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Senco, Inc. and Henry Senese,
individually and as officer and agent of Senco, Inc.
and H.M.S. Sportswear , Incorporated and Henry
Senese, individually and as officer and agent of
H.M.S. Sportswear , Incorporated and Bonnie Jaye
Sportswear Co., Inc. (also sometimes known as
Maco Clothing Corporation ) and Phyllis Bocchino,
individually and as officer and agent of Bonnie
Jaye Sportswear Co., Inc. and Henry Senese,
individually and as officer and agent of Maco
Clothing Corporation and Henry Senese,
individually and as officer and agent of Bonnie
Jaye Sportswear Co., Inc. and Phyllis Bocchino,
individually and as officer and agent of Senco, Inc.
and Phyllis Bocchino, individually and as officer
and agent of H.M.S. Sportswear , Incorporated and
Boston Joint Board , International Ladies' Garment
Workers Union, AFL-CIO and Maco Clothing
Corporation , Party to the Contract, and Phyllis
Bocchino, individually and as officer and agent of
Maco Clothing Corporation, Party to the
Contract. Cases 1-CA-5738 and 1-CB-12114
June 30, 1969
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 11, 1968, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondents filed
exceptions to the Trial Examiner's Decision and
supporting briefs.' The General Counsel filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of 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.
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. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations' of
the Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondents, Senco, Inc.; Maco
Clothing Corporation; H.M.S. Sportswear,
Incorporated; Bonnie Jaye Sportswear Co., Inc.,
and Henry Senese and Phyllis Bocchino, individually
and as agents of said corporations, and Local 841,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, their officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner 's Recommended Order.
MEMBER ZAGORIA, concurring:
I agree with the Trial Examiner that Respondent
Senco, Inc., through its agent and alter ego
Respondent Henry Senese, did not make a timely or
effective withdrawal from multiemployer bargaining
negotiations, because as the Trial Examiner found,
Senese's letter attempting withdrawal was served on
Associated Garment Contractors, Inc. on December
9, 1966, after the ILGWU had served notice of
intent to reopen the contract and after negotiations
between the Association and the ILGWU had in
fact begun. I rely also, however, on the fact that the
As the record , exceptions , and briefs , in our opinion , adequately present
the issues and the positions of the parties, the Respondents' request for
oral argument is hereby denied
'The Trial Examiner in the "Remedy" section of his Decision appears to
have ordered the Respondent Corporations, Senese and Bocchino "to
maintain in full force and effect the terms and conditions . . /of/ any
renewal contract negotiated" between the Association and ILG
"retroactive to February 15, 1967 ." Inasmuch as the record does not
disclose any agreement between the Association and the ILG containing
any such retroactivity , the remedy is hereby revised by deleting from p 31,
11 49 and 50 of the Trail Examiner' s Decision the words "retroactive to
February 15, 1967 "
177 NLRB No. 102
SENCO, INC.
activities of Senese during the several months
preceding December 9, 1966, warrant the conclusion
that the attempted withdrawal was not dictated by
any legitimate desire to abandon multiemployer
bargaining and to pursue individual bargaining, but,
on the contrary, was another facet of Senese's illicit
scheme to oust the ILGWU as the bargaining
representative of Senco's employees and to supplant
that labor organization with Respondent Teamsters
Local 841.
I agree also with the Trial Examiner's conclusion
that Respondents Maco Clothing Corporation,
H.M.S. Sportswear, Incorporated, and Bonnie Jaye
Sportswear Co., Inc., are integrated with
Respondent Senco through the common ownership
and control of Respondent Senese, so that the four
Respondent corporations constitute a single
integrated enterprise and a single employer within
the meaning of the Act.
Further, I am persuaded on the basis of evidence
credited by the Trial Examiner, that Respondents
Senese and Senco created and manipulated
Respondents Maco, H.M.S., and Bonnie Jaye for
the express purpose of undermining and destroying
the ILGWU as the bargaining agent of the
employees of Senco.
Respondent Senco was obligated at all times
material to these proceedings to bargain with the
ILGWU for the employees of its Frankfort and
Meridian shops, and was obligated to abide by the
terms of the collective-bargaining agreement
between that labor organization and the Association.
The record reflects that during the period from
January 1966 through September 1967, Respondents
Senco and Senese, through the aegis of persons
found by the Trial Examiner to be their alter egos
and agents, created or obtained sole ownership and
control of Respondents H.M.S., Maco, and Bonnie
Jaye. The transfer of production equipment and
employees from Respondent Senco to Respondent
Maco during the fall of 1966 gave rise to a
grievance filed by the ILGWU against Senco, the
discussion of which on November 21, 1966, appears
to have triggered Senese's abortive attempt to
withdraw from multiemployer bargaining.
Moreover, long before the attempted withdrawal
from multiemployer bargaining , Senese made clear
to Senco's customers, its supervisors and employees
that the new operations were intended to replace
those of Senco, that the employees of Senco could
either accept employment in the new operations or
be discharged, and that the new operations would be
subject to a contract with Respondent Teamsters.
Commencing immediately after the transfer of some
of Senco's employees to Maco's operations, Senese
arranged for Respondent Teamsters to obtain
authorization cards from a majority of the less than
representative complement of employees then
employed. As found by the Trial Examiner, the
cards were obtained from the employees through the
active intervention of supervisory and managerial
883
officials of Maco, and the solicitation of the cards
was attended by threats of retribution and promises
of benefit by both Respondent Maco and
Respondent Teamsters. Employees who indicated
intent to maintain their allegiance to the ILGWU
were summarily discharged. On November 14, 1966,
while still purporting to bargain with the ILGWU,
Senese caused Maco to sign a collective-bargaining
agreement with Respondent Teamsters, having
previously granted recognition to that Respondent
on the basis of tainted authorization cards. This was
followed in December 1966, by Senese's
announcement to the employees of Senco's Meridian
shop that those operations would henceforth operate
as Maco and that the employees would be out of the
ILGWU. On December 15, 1966, Senese filed a
petition with the Board's Regional Office on the
basis of the bogus claim that the ILGWU and
Respondent Teamsters had made conflicting claims
to represent Senco's Meridian employees. Senco's
Meridian shop was closed in April 1967, and its
employees discharged in violation of the Act. These
additional factors persuade me that Respondent
H.M.S., to the extent it has any employees in
classifications encompassed within the
multiemployer bargaining unit, and Respondents
Maco and Bonnie Jaye, are obligated to the same
extent as Respondent Senco to recognize and
bargain with the ILGWU, and to execute and
retroactively apply the terms, if any, of any contract
agreed to by the ILGWU and the Association since
February 15, 1967.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
WILLIAM W. KAPELL, Trial Examiner: This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act was
heard at Boston, Massachuetts, beginning on June 12,
1967,2 and thereafter on various days until February 1,
1968, when the hearing closed, with all parties
participating pursuant to due notice upon an amended
consolidated complaint issued by the General Counsel on
May 2.'
The amended consolidated complaint, in substance,
alleges that Respondents, Henry Senese, Phyllis Bocchino,
Senco, Inc. (Senco), Maco Clothing Corporation (Maco),
H.M.S. Sportswear, Incorporated (HMS), and Bonnie
Jaye Sportswear Co., Inc. (Bonnie Jaye), in Case
I-CA-5738 have engaged in and are engaging in unfair
labor practices in violation of Section 8(a)(1), (2), (3), and
(5) of the Act; and that Respondent Local 841,
International Brotherhood of Teamsters, Chauffeurs,
The above caption has been amended to conform to the unopposed
motion of the General Counsel
'All dates hereafter refer to the year 1967 unless otherwise noted
'Based upon an original charge filed in Case 1-CA-5738 on December 2,
1966, and five amended charges, by the Boston Joint Board, International
Ladies' Garment Workers Union , AFL-CIO, hereafter referred to as ILG,
and upon an original charge filed by ILG in Case 1-CB-1214 on January
18, and an amended charge. Said cases were consolidated for hearing by
an order dated February 12 of the Regional Director for Region l
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen and Helpers of America, hereafter called
Teamsters, has engaged in and is engaging in unfair labor
practices in violation of Section 8(b)(1) and (2) of the Act.4
Respondents by written answer and/or oral pleading at
the hearing, entered general denials to all allegations of
the complaint, except to allegations of commerce and the
filing and service of all documents as alleged in the
amended consolidated complaint, which were admitted.
All parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. The General Counsel, and counsel for
Respondent Corporations and Henry Senese and Phyllis
Bocchino filed briefs which have been duly considered.
Upon the entire record' in the cases, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. COMMERCE
At all times material herein , Senco, HMS, Maco, and
Bonnie Jaye,' corporations organized pursuant to the laws
of Massachuetts , have been engaged as contractors in the
manufacture of ladies ' garments . Each of them in the
course and conduct of their businesses has caused fabrics
and related materials valued in excess of $50,000, which
were used by them in the manufacture of dresses and
ladies' sportswear to be transported in interstate business
from and through various States other than Massachuetts.
I find, at all times material herein , that Senco, HMS,
Maco, and Bonnie Jaye, collectively and individually, have
been engaged in commerce within the meaning of Section
2(6) and (7) of the Act.'
11. THE LABOR ORGANIZATIONS INVOLVED
Based on all the evidence , and in particular the
collective-bargaining contracts involving ILG and
Teamsters,' I find, at all times material herein, that they
have been labor organizations within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Contentions of the
Parties
It is undisputed that beginning in 1963, Senco' became
a member of Associated Garment Contractors, Inc., a
multiemployer association, hereafter called the
Association , which at all times material herein represented
its members, and on their behalf negotiated and entered
'The complaint was further amended at the hearing pursuant to the
General Counsel 's unopposed notice of intention to amend , dated June 7,
1967, by including additional violations of Sec. 8(a)(3) and (5) of the Act
in Case I -CA-5738
'Pursuant to General Counsel ' s motion in his brief, pars. 44(b), 45(e),
46(e), and 46(f) of the complaint, alleging certain violations of Sec . 8(axl),
are hereby dismissed for failure of proof.
'Referred to herein collectively as Respondent Corporations.
`The record reveals that Counsel for the Respondent Corporations orally
conceded that these Respondents were engaged in commerce within the
meaning of the Act, and that there was no question as to the facts alleged
in the amended consolidated complaint concerning their commerce.
Thereafter a written stipulation was admitted in evidence indicating that
Senco, Maco, and HMS were each engaged in interstate commerce within
the meaning of the Act.
Teamsters also stipulated that it was a labor organization within the
meaning of Sec . 2(5) of the Act.
into collective-bargaining contracts with ILG , the last of
which was executed on January 4, 1965, and expired on
February 15.
The General Counsel contends that Senco continued as
a member of the Association until at least sometime after
bargaining negotiations were started on a renewal contract
between the Association and ILG , and, therefore , is bound
by the agreement in effect between the Association and
ILG, pending resolution of their negotiations , and will be
bound by the new contract upon its execution . General
Counsel contends further that HMS,10 Maco" and Bonnie
Jaye" are integrated with Senco by common control and
ownership so as to constitute one enterprise within the
meaning of the Act; that, accordingly, these Corporations
are bound to the same extent as Senco is , vis-a-vis the
ILG; and that they as well as Senco , in violation of
Section 8 (a)(5) and (1) of the Act, have refused to
recognize ILG as the exclusive bargaining representative
of a unit comprising all of their production and
maintenance employees , and to maintain in full force and
effect the terms and conditions of the bargaining
agreement between ILG and the Association . Respondent
Corporations claim that Senco timely and properly
withdrew from the Association, thereby relieving it of any
obligations with respect to the contractual status existing
between ILG and the Association. They assert further that
they are not integrated and are separate and independent
companies , and that therefore , regardless of Senco's
membership in the Association , the other corporations are
not bound by any collective-bargaining negotiations
carried on by the Association with ILG.
General Counsel also alleges that Senese , Bocchino,
and Respondent Corporations discriminatorily discharged
employees Carmelino Amato and Mafalda Marsh,
discriminatorily closed Senco's Meridian shop and laid off
its employees, and entered into and implemented a
contract with Teamsters containing a union -security
provision when said Union did not represent an uncoerced
majority of their employees and no substantial or
representative complement of employees was working at
Maco , in violation of Section 8(a)(3) and (1) of the Act;
and that said Respondents in violation of Section 8(a)(2)
and (1) of the Act by specified acts interfered with,
restrained, and coerced their employees in the exercise of
rights guaranteed by Section 7 and unlawfully assisted
Teamsters in organizing their employees.
The General Counsel also charges that Respondent
Teamsters caused or attempted to cause Respondent
Maco to discriminate in regard to the hire or terms or
conditions of employment of employees , made threats of
discharge and promises of benefits conditioned upon
membership in Teamsters for the purpose of encouraging
such membership and discouraging membership in ILG,
executed an unlawful collective-bargaining agreement with
Maco, at a time when it did not represent an uncoerced
majority of the employees, and implemented the
union-security and checkoff provisions of said contract, in
violation of Section 8(b)(1)(A) and (2) of the Act.
'At times material herein Senco operated two plants, one of which was
located at 10 Frankfort Street , Boston, hereafter called the Frankfort shop,
and the other located at 104 Meridian Street, Boston , hereafter called the
Meridian shop.
"At all times material herein , HMS operated a plant located at 104
Meridian Street on the floor above Senco 's Meridian shop.
"At all times material herein , Maco operated a plant at 421 Broadway,
Revere, Massachusetts.
"At all times material herein, Bonnie Jaye operated a plant at
Middleboro, Massachusetts.
SENCO, INC.
All Respondents denied engaging in any violative
conduct.
B. Senco 's Alleged Disaffiliation from the
Association
Before either Senco and/or the other Respondent
Corporations can be found in violation of Section 8(a)(5)
for refusing to recognize and bargain through the
Association with ILG, it must first be established that at
all times material herein Senco was and continued to be a
member of the Association . Senco, admittedly a member
of the Association and bound by its contracts with ILG
for several years prior to the onset of the dispute herein,
contends that by its letter of December 9, 1966, it served
timely notice of its withdrawal from the Association,
effective as of that date. Accordingly it becomes
incumbent upon Senco to establish its timely disaffection
from the Association.
The undisputed evidence shows that the rules of the
Association provide that upon a member ' s failure to pay
its dues, the membership committe was empowered to
expel and so advise the defaulting member . Donald S.
Jacobs , a member of the Association and its secretary,
sent a letter dated October 18, 1966 , to Senco stating that
in accordance with the Association bylaws it was being
suspended for failure to pay its dues, and that in order to
be reinstated past dues would have to be paid by October
31, 1966. However , thereafter Jacobs continued to send
notices to Henry Senese " pertaining to Association
business and meetings . On November 14, 1966, ILG
notified the Association that pursuant to terms of its
collective-bargaining contract" with the Association, it
was terminating said contract upon its expiration on
February 15. Meanwhile, in anticipation of the
termination of the contract and negotiations for a renewal,
David Lavien, attorney for the Association, by letter of
November 10 requested the Association members
(including Senco) to state their positions to him with
respect to the wage rate provisions to be negotiated in the
forthcoming renewal contract. On November 14, 1966,
Senese gave a check for $250 to Samuel Laken, the
Association president , to cover Senco ' s Association dues.
The check was returned unpaid by the bank because of an
incorrect account number placed on it by Senese. On
November 21, 1966, Lavien and Senese attended a
meeting with ILG Representatives Kramer and Kaplan at
which they discussed Kramer's claim that Senese or Senco
owned or controlled a plant in Revere being operated by
some girl on behalf of Senese and/or Senco."
On December 8, 1966 , Lavien, Laken , and Levine (an
Association member ) met with Kramer and Jesse Durcker
(an administrator of ILG) to negotiate a new
collective-bargaining contract , at which Kramer presented
ILG's proposals for a new contract." Kramer also
brought up the matter of Senco's failure to award holiday
pay to three employees, and that he was going to take it
"Henry Senese admittedly acted on behalf of Senco with respect to
Association matters . As related and found , infra, he also managed and
controlled the Respondent Corporations.
The contract provided that at least 60 days prior to its expiration,
either party could serve notice of its intention to terminate the contract
upon its expiration.
"Shortly prior to this date , a question had been raised with respect to
Senco's continued membership in the Association , and on that date , Lavien
wrote to ILG as follows :, "You are herewith advised that Senco is a
member in good standing of the Association of Garment Contractors,
Inc"
885
up to an impartial chairman for decision . Lavien
requested him to hold off for a week during which he
would speak to Senese. By letter of December 9, 1966,
Senco advised Lavien that as of that date it was
withdrawing from the Association and no longer wished to
be represented by it in any matter, including
collective-bargaining negotiations."
Within 2 or 3 days, at most, of December 13, 1966,
Senese visited Laken at his office and corrected the
account number on the unpaid check previously given by
him in payment of Association dues. The check then was
redeposited and again returned, this time for lack of
sufficient funds.
On December 30, 1966, ILG wrote to Senco, Mako
(Maco), Senese, and the Association stating that there was
an unresolved dispute between Senco, its subsidiary Mako,
and ILG concerning Senco's discontinuance of production
at its Frankfort and Meridian shops, its lockout,
discharge, and transfer of its employees , its opening of a
new shop at 421 Broadway, Revere, under the name of
Mako where it has refused to apply the
collective-bargaining agreement (between ILG and the
Association), its performance of work for a nonunion
jobber named John Meyer, and the performance of work
in nonunion shops , and that unless these violations of the
collective-bargaining agreement were discontinued, ILG
would refer the entire matter to arbitration to obtain
damages. In reply to this letter, the Association wrote to
Senco on January 4, stating that it had been dropped
from the Association.
C. Conclusions Regarding Senco's Alleged
Disaffection from the Association
Senco contends that it withdrew timely from the
Association, and that, accordingly, neither it nor any
companies with which it may be found to be integrated,
are obligated to continue recognizing ILG or are bound
by any negotiations carried on by the Association
purportedly on its behalf. To establish effective
withdrawal from the Association, Senco has the burden of
demonstrating that it complied with the applicable
requirements formulated by the Board to achieve that
result. The law is well settled that a multiemployer
bargaining relationship can be terminated only upon
mutual consent, express or implied, or by a timely
withdrawal prior to commencement of negotiations for a
future contract. After bargaining has commenced a
withdrawal is effective only if acquiesced in by the union
or justified by unusual circumstances . Retail Associates,
Inc., 120 NLRB 388, 395. The policy behind these
requirements is to promote stability in collective
bargaining . Or, as the court held in N.L.R.B. v. Sheridan
Creations, Inc.," to permit a shift in membership of a
multiemployer association after negotiations on a new
contract have begun "has lively possibilities for disrupting
the bargaining process.... the potential for disruption is
"The ILG proposals discussed included a 20-percent wage increase,
minimums 40 cents above the Federal minimum , a 32-1/2-hour week, two
more paid holidays , a 20-percent piecework increase, the same rate of pay
for pressers in both the dress and sportswear lines, and making the
contract retroactive to February 15, 1967, the date of expiration of the old
contract. Lavien counterproposed that no union meeting should be held
during working hours, that holiday pay be paid by manufacturers or the
sobers through an arrangement of fringe benefits , and that the contractors
have the right to enforce registration on contractors.
''Thereafter, Senco's attorney sent a copy of that letter to ILG with a
transmittal letter dated December 19, 1966.
"357 F.2d 245 (C.A. 2), cert denied 385 U.S. 1005, enfg. 148 NLRB
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to justify the Board in adopting a uniform rule
for all cases that withdrawal is not timely once bargaining
has begun ." See also Mor Paskesz, NLRB No. 20; Tower
Iron Works, Inc., 150 NLRB 298, enfd. 366 F.2d 189
(C.A. 1); and Spun-Jee Corp. and The James Textile
Corp., 152 NLRB 943, 945. 19 Based on the following
findings I conclude that Senco failed to establish that it
effectively withdrew from the Association.
By letter of November 10, 1966, the Association
advised its members of the forthcoming bargaining
negotiations and requested them to state their positions
with respect to wage rate. Although Senco had been put
on notice of these forthcoming bargaining negotiations, it
took no action to disaffiliate itself from the Association
prior to the time that such negotiations formally began
between the Association and ILG representatives on
December 8, 1966,20 on the various proposals and
counterproposals which were considered and discussed. It
was only on the following day, December 9, that Senco
sent its letter to the Association severing its membership.
Such late notice failed to satisfy the applicable
requirements prescribed by the Board. Senco, therefore,
continued to be bound by the representation of the
Association with respect to a renewal contract, and,
pursuant to agreement reached by the contracting parties
at that time, remained bound by the terms of the expiring
contract until a new one was executed, which would be
retroactive to the date of the expired contract. 21 It is also
clear that ILG did not acquiesce in Senco's belated
attempt to withdraw and notified Senco to that effect
when it became aware of the attempted withdrawal.
In support of its contention of a timely withdrawal
from the Association, Senco asserts that the Association
contract provided for automatic renewal unless either
party gave 60 days' notice of termination prior to its
expiration on February 15, 1967, and that, therefore, an
Association member could withdraw timely by sending a
withdrawal notice to the Association prior to December
18, 1966, which, in fact, it did on December 9. However,
it appears that the contract provided that notice of
termination was to be given "at least sixty (60) days"
prior to February 15, 1967, and not 60 days as claimed by
Senco, that ILG gave such notice on November 14, 1966,
and that prior to that time the Association notified its
members about the forthcoming contract negotiations.22
Thus, the November 14 notice of termination was
properly given in conformance with the contract.
Accordingly, Senco's withdrawal letter of December 9 was
untimely. 2J
1503.
"On petition for enforcement , the court (385 F 2d 379 (C A 2))
remanded this case to the Board for further consideration of the issue as to
whether Respondents had effectively withdrawn from the multiemployer
association The Board thereafter (171 NLRB No. 64) found unusual
circumstances which warranted a valid and effective withdrawal in those
circumstances See also U S Lingerie Corporation, 170 NLRB No 77, for
other unusual circumstances justifying a late withdrawal from an employer
association
"There is also some evidence to the effect that informal negotiations
took place prior to that time.
"Moreover , in view of the pending contract between ILG and the
Association , which did not expire until February 15, it is obvious that
regardless of the effectiveness of Senco's attempted withdrawal by its letter
of December 9, it remained bound by the provisions of the existing
collective-bargaining agreement between ILG and the Association until its
expiration
"It is also significant to note that no claim was made by Senco that it
was unaware of ILG' s notice of termination of contract prior to its
The rationale behind the Board's rule, which has been
applied by the courts,2d was to prevent disruption of the
bargaining process by foreclosing attempts by
employer-members of an association to withdraw once the
parties indicated an intention to commence bargaining or
had already begun bargaining. In the instant case not only
had the date for modification passed but serious
bargaining had already begun. Respondents' reliance of
N.L.R.B. v. Southwestern Colorado Contractors Assn.,
379 F.2d 360 (C.A. 10), enfg. 153 NLRB 1141, is
misplaced. The Board in that case held that the
dissolution of a multiemployer association within the
certification year was in effect an attempted withdrawal at
an inapporpriate time and did not release the individual
employer-members in the bargaining unit of their
obligation to bargain jointly for a year. The Board's
decision rests primarily on the obligation to bargain
stemming from a certification during the first year,
circumstances wholly different from those in the instant
case. The court, however, did state a general rule
inapplicable in either that or the instant case to the effect
that the appropriate time for withdrawal from a
multiemployer bargaining unit is after the expiration of an
existing contract and/or prior to the start of negotiations
on a new contract.
Similarly, Senco' s reliance on Board language, citing
Retail Associates, supra, and The Evening News
Association, 154 NLRB 1494, that withdrawal is
permissible when notice is given before the date set by the
contract for modification is misplaced. As noted above,
notice was not given prior to the date set for modification
in the existing contract. Also, the Board in each of these
cases2S stated that, where bargaining has already begun,
withdrawal would not be permitted, except on mutual
consent or in unusual circumstances.
Nor do I find any "unusual circumstances" justifying
an effective withdrawal despite Senco's belated notice. Its
contention that its default in paying Association dues on
time caused its suspension and thereby created "unusual
circumstances" is without merit. Not only was nothing
ever done by the Association concerning Senco's dues
default, but it appears that the Association continued to
send notices of its meetings to Senco, that on November
21, 1966, Lavien, its attorney, wrote to ILG that Senco
was a member in good standing, and that he,
accompanied by Senese, met with ILG representatives on
that day to discuss the alleged contract violation by Senco
in the operation of Maco. These circumstances not only
contraindicate any severance of Senco's relationship with
the Association, but actually demonstrated a clear intent
on the part of each of them that Senco's membership in
the Association should continue in full force and effect.
Senco also claims that ILG's knowledge of its
assistance to Teamsters in organizing Maco's employees,
alleged as an 8(a)(2) violation in ILG's amended charge
filed on December 7, 1966, before the bargaining
negotiations began, was a clear manifestation of Senco's
intent to withdraw from the Association of which ILG
was aware, and that such circumstances per se were
sufficient to effect a valid withdrawal. I find no merit in
attempted withdrawal from the Association
"Sense failed to contradict or explain why he visited Laken's office
after December 9, to correct the account number on the check previously
given the Association for payment of Senco's dues if Senco had already
withdrawn from the Association.
"See N.L R B v . Sheridan Creations , Inc , supra
"Retail Associates , supra , 395, and Evening News Association , supra,
1509.
SENCO, INC. 887
this contention. Such an alleged withdrawal before
bargaining negotiations commenced did not comply with
the Board's established requirements. In the
policy-making case of Retail Associates , 1° the Board said,
"[w]e would accordingly refuse to permit the withdrawal
of an employer or a union from a duly established
multiemployer bargaining unit, except upon adequate
written notice . ." (Emphasis supplied.) As related
above, Senco's written notice of withdrawal was not given
until after negotiations had begun , dispite its
foreknowledge of the planned bargaining sessions.
Moreover, the policy of promoting stability in collective
bargaining precludes indulging withdrawals to be lightly
made; they must be unequivocal. Senco also cites
N.L.R.B. v. Sklar and Goldman, d/b/a Michigan
Advertising Distributing Company" and Piping Rock
Farms, Inc.," to support its claim of an effective
withdrawal prior to the inception of bargaining
negotiations. In Sklar, the Board relied upon the Ray
Brooks rule24 that a certification based on an NLRB
election must be honored for a reasonable time in finding
an alleged withdrawal ineffective because the attempt had
been made less than 3 weeks after certification and before
a contract had been negotiated. The Sixth Circuit
reversed, saying that "[T]he Board has recognized that an
employer may withdraw from a multiemployer unit
provided that it clearly evinces at an appropriate time its
intentions of pursuingan individual course in bargaining."1°
The court then ruled that the Employer's intent to
withdraw was sufficiently manifested by the negotiation of
agreements with the Union on its own and a telegram sent
to the NLRB explaining its position. Such clarity of intent
clearly was not manifested by Senco prior to its letter of
withdrawal. Moreover, Sklar is inextricably involved with
representation issues foreign to Senco ' s circumstances and
thus has little value as a precedent for the instant case.
In the Piping Rock Farm case, the Board found a
successful withdrawal from a bargaining unit based on
findings that it was common practice for the employers to
file written statements authorizing the committee to
bargain for them and that none was filed by the employers
(dealers) whose discontent with the bargaining setup was
well known by both the industry and the unions; and that
respondent clearly manifested several times to both
industry and union people its intention to withdraw before
the negotiations for a new contract began. Such a clear
manifestation before negotiations began was not made by
Senco.
I accordingly find that Senco's attempted withdrawal
from the Association was ineffective in that it was
untimely and unjustified by unusual circumstances, and
that there is no evidence of union consent or acquiescence
in the withdrawal.
D. The Alleged Integration of the Four Respondent
Corporations
In order to establish that HMS, Maco, and Bonnie
Jaye, as well as Senco, are obligated to bargain through
the Association with ILG as the exclusive bargaining
representative of their production and maintenance
employees, and are subject to the contractual terms and
11120 NLRB at 395.
"316 F.2d 145, 150 (C.A. 6), denying enforcement of 134 NLRB 1289.
"139 NLRB 879
"Ray Brooks v. N.L.R.B., 348 U.S. 96.
11316 F.2d at 150.
conditions agreed upon between the Association and ILG,
it is incumbent upon the General Counsel to demonstrate
that these corporations with Senco constitute one
integrated enterprise within the meaning of the Act. Proof
of such integration is primarily dependent upon such
factors as the nature and extent of intercompany
relationships and operations, common control and
management, centralized labor relations, and common
ownership. The General Counsel asserts that the
Respondent Corporations were operating departments for,
and extensions of, Henry Senese. The origin, operation,
control, and ownership of each of the four corporations
are as follows.
1. Senco
The Boston city records show that on December 11,
1956, Henry Senese conducted a business as sole
proprietor under name of Paula Sportswear. Paula
Sportswear, Inc., a garment manufacturer, was
incorporated on October 28, 1957, by Henry Senese,
Antonio Anzalone, and John T. Dello Russo, Jr. In the
Articles of Incorporation Senese was named as president
and a director and subscribed for 51 percent of the stock.
John T. Dello Russo, Jr., who did the accounting work
for Paula Sportswear, testified credibly that the Company
was operated by Senese. Michael Viarella, an
acknowledged foreman at Senco's Frankfort shop, also
testified credibly that prior to being hired by Senese at
Senco, he had worked at Paula Sportswear at 10
Frankfort Street as a presser, and that Senese was the
boss at that shop. Senese's denial of stock ownership or
that he operated that company is not credited."
Senco was incorporated on September 28, 1960, with a
business address at 10 Frankfort Street, East Boston (the
same address as Paula Sportswear, Inc.). The
incorporators were Mary B. DeSimone, Phyllis
Baldarsarri, and Kenneth C. Senese, the wife, mother, and
brother of Henry Senese, respectively, all of whom gave
the same home address. Mrs. Senese, also known by her
maiden name of Mary B. DeSimone, testified that she
received all the stock (100 shares) but was unable to
produce any stock certificates." During the summer of
1963, Senco opened its Meridian shop.
"Sense was called by the General Counsel as a witness under Rule
43(b) of the Rules of Civil Procedure for the U S District Courts His
testimony for the most part was impertinently incredible. He constantly
feigned inability to comprehend the most elementary and simple questions
and displayed naivete and unsophistication to the point of ridiculousness.
Thus, e g., although admittedly the president and sole stockholder and
operator of HMS , he professed ignorance as to whether there was any
other officer besides himself who engaged in that company's business, and
denied knowing what a payroll , unemployment compensation , or a social
security record is despite 15 years of experience in the garment trade. He
even claimed the necessity to check his records to ascertain his age or how
long he had been marned . His utter disdain generally for the truth was
pointedly evidenced when he blandly testified that, when he signed an
HMS check to the order of a company named Management and Labor
Relations Consultants , he was using a fictitious company to obtain cash
for himself, but later admitted when presented with the check that the
payee was an existing company which he paid for services performed at his
request . It would serve no purpose to itemize the countless incidents
reflecting his lack of veracity . the record is replete with them.
"Practically all the records of Senco were allegedly destroyed in floods
caused by rain and sewer backups at the home of the Seneses where the
records were generally kept, and that other records of the Company were
destroyed in a fire which occurred at the Frankfort shop on November 4,
1966. The lack of such records, especially those indicating intercompany
transactions with Maco and HMS caused General Counsel to resort to
indirect evidence to prove their interrelationship and thereby greatly
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Senese , he began working for Senco at
the request of his wife about 3 or 4 years ago as a
salesman and to help out in any way he could, and was
given the title of general manager . His duties also
included representing Senco in the Association, and at
times operating a machine in the shop. He claimed that
sometime ago he began curtailing his work at Senco, and
for the past couple of years was divested of his title and
work as general manager and , in fact, stopped working
for Senco at the end of 1966. However, he admitted that
in December 1965 he signed a conditional bill of sale for
the purchase of machines by Senco from Singer Sewing
Machine Company, and that in the last part of 1966 he
requested Gerald Rubin , an accountant , to straighten out
Senco's books and to install an accounting system which
would show a cost breakdown and other information that
could be of use to management . In an effort to show that
during the past few years Senese no longer controlled or
ran Senco , his wife, the president of the company since its
inception , testified that she made frequent appearances at
the shop and ran the business through some of the
rank-and-file employees , and that her husband had less
and less to do with Senco operations and did practically
nothing other than contacting customers for work and
representing Senco in its relations with the Association.
The credited evidence, however, shows that Senese
actually ran the business, and indicates that his wife made
infrequent short appearances at Senco 's shops, usually
accompanied by her small children."
The Frankfort shop was destroyed by a fire on
November 4, 1966. Senco, however, continued to operate
the Meridian shop until the end of April 1967. On
December 15, 1966, Senese appeared at the Board offices
and filed an RM petition, which he signed on behalf of
Senco' s Meridian shop, stating that ILG and the
Teamsters were each claiming to represent the production
and maintenance employees, and requesting the Board to
process the petition to determine the lawful bargaining
representative of the employees. The petition also
indicates that Senese' s title is general manager of the
Company."
Based on the above findings and the totality of the
evidence, I find and conclude , contrary to the contentions
of Respondents and despite the designation of Mrs.
Senese as president of Senco and her claim of ownership
of its stock, that Senco was a successor to Paula
Sportswear, which Senese had operated and owned in
part, if not entirely, and that he had a controlling interest
in, and operated and managed , Senco at all times material
herein. His testimony concerning his activities and interest
in the Company was obviously evasive and intended to be
misleading.
augmented the record.
"Employee Rose Beninati , an employee at the Meridian shop , testified
that Mrs. Sense with her children visited that shop about twice a month
during lunch hour for a short time, whereas she frequently saw Senese at
the shop where he talked to Irene Rotondi , who was in charge. Employee
Viarella , the foreman at the Frankfort shop, testified that he rarely saw
Mrs. Senese at that shop , that she never supervised him, and that Senese
was there daily for a few hours during which time he supervised his work
wrote out shipping books , and made telephone calls. Furthermore, it
appears that Mrs. Senese has four children , the youngest three being 1, 2,
and 3 years old, respectively , which would tend to indicate that during the
period in question the time necessarily devoted to bearing and taking care
of her children must have greatly curtailed her business activities
"I discredit Senese's testimony that he was signing the petition only as a
favor for his wife, and that the Board agent , despite being advised by
Senese that he used to be the general manager , thereafter without his
knowledge indicated his title on the petition as general manager.
2. HMS
Articles of Incorporated for HMS were executed on
January 10, 1966, and were filed on May 11, 1966, with
Senese as president , his wife as treasurer and clerk, and
both of them with Barry M. Levin, their attorney, as
directors. The Company leased the lower floor at 104
Meridian Street; the upper floor was then occupied by
Senco ' s Meridian shop . Senese , admittedly , has been the
owner, general manager and operator of HMS since its
inception. The Company has no telephone of its own at
the premises but there is a telephone in the Meridian
shop . Senese and his wife own the building but neither
HMS nor Senco has ever paid rent for the use of their
premises, nor have they ever paid anything on the bank's
mortgage on the premises in lieu of rent . Senese
personally paid the bank on the mortagage. The bulk of
HMS's work came from John Meyer of Norwich,
Connecticut, a garment manufacturer, and was
subcontracted by HMS to Senco , Maco and to Bonnie
Jaye during part of its existence . " In its operations, HMS
neither required nor received invoices from Senco or
Maco for work done by them. Such invoices, however,
were received from other companies with whom it did
business . When organized in January 1966, HMS leased
stitching and finishing machines to Senco at a rental of
$500 a month but no payments were ever made.
As further proof of the manner in which Senese
exercised his control and operation of both Senco and
HMS, the General Counsel called Elizabeth McCarthy, a
highly qualified handwriting expert with 30 years of broad
experience , to make comparisons of the handwriting
appearing on certain HMS and Senco checks , which were
used in the normal operations of these Companies. She
testified credibly that in comparing the handwriting on
certain HMS checks admittedly signed by Senese (G. C.
Exhs. 55, 56, and 57), and used as standards , with the
handwriting on certain Senco checks (G. C. Exhs. 102,
103, 105, 144 , and 146) purportedly bearing the signature
of Mary B. DeSimone, who alone was authorized to sign
Senco checks, she found that all the handwriting,
including the signatures , on these checks was the same.
She was also of the opinion that the handwriting, except
for the signatures on Senco checks , General Counsel's
Exhibits 104 and 112, was the same as on the standards."
Based on the foregoing findings and the entire record, I
conclude that Senese controlled , operated, and
manipulated Senco and HMS for the purpose of
producing women ' s apparel.
3. Maco
Maco was incorporated on September 2, 1966, with its
principal place of business at 421 Broadway , Revere,
Massachusetts . Julia Bocchino , Phyllis Bocchino (her
"It was admitted that HMS has had no operating employees besides
Senese from at least July 18 , 1966, through March 7.
"Other evidence indicating the close and integrated relationship of
Senese, Senco, and HMS are: payment by an HMS check to Dr Rips, for
medical services rendered to an injured employee of Senco 's Meridian
shop; payment by an HMS check for liquor sold and billed to Senco;
payment by an HMS check for a help -wanted ad placed in the East Boston
Times for stitchers needed at Senco ' s Meridian shop , payment by various
HMS checks for installments on the purchase of Singer sewing machines
by Senco ; and payment by an HMS check to an oil company containing
the notation "Senco," presumably for oil purchased by Senco. No
persuasive evidence was presented to refute the adverse inferences raised by
any of these incidents.
SENCO, INC.
sister), and Irene Rotondi were made president , treasurer,
and clerks , respectively , and they also constituted the
board of directors. The Bocchinos were former employees
of Senco, while Rotondi, as related infra, was a forelady
at Senco's Meridian shop until it closed down. Although
Senese does not appear on the record to have been
connected with the organization or control of Maco, the
General Counsel contends that, in fact, he was responsible
for its financing and organizing, using the Bocchinos and
Rotondi as figureheads , and that he actually controls and
operates the Company. In support he presented the
following evidence:
Since October or November 1966 about 60 machines
have been leased to Maco by HMS for which Maco has
never paid any of the alleged stipulated rental of $750 a
month. After operations began at Maco, Senese obtained
work for it and supplied it with cut goods. Viarella"
testified without contradiction that, in August 1966,
Senese told him that he was going to open up a new shop
and get the Teamsters in. About a week later Senese told
him he had selected a place in Revere on Broadway and
wanted him to look at it . Viarella agreed, and with Senese
visited the premises , where he was asked his opinion
regarding the placement of machines . At that time he saw
Phyllis Bocchino there. Later , he again visited the
premises at Senese ' s request with a steamfitter whom he
told where to set up the steam machines . In September,
Senese told him that they were going to move seven
machines to Revere and that he should call Nathan Hill,
the mover , and obtain an estimate for moving the shop.
Viarella received an estimate of $200 or $250, and a few
days later arranged for a moving date . Senese, however,
canceled that date and a new date was set, this one about
2 weeks before the fire at Senco's Frankfort shop. Thus,
about 2 weeks prior to the fire, seven machines and
stitchers were transferred from Senco ' s Frankfort shop to
the Revere shop of Maco . Pursuant to Senese ' s orders a
pressing machine was also moved to Maco about a week
before the Frankfort shop fire and Viarella alternated
working between the Frankfort and Revere shops until the
fire . On the night of the fire , Senese told him to salvage
whatever machines were available and to contact the girl
employees and instruct them to report to Maco in Revere
on Monday . JB On Monday the girls, contacted through
Viarella , reported to Maco where Phyllis Bocchino
directed their work as stitchers . Viarella remained there
full time to supervise the pressers.
Solomon Nash, a partner of Senese in a plant operated
by them as contractors of women's apparel at
Middleboro , Massachusetts , under the name of Bonnie
Jaye, testified without contradiction that in June 1966 he
accompanied Senese to Norwich, Connecticut, for the
purpose of being introduced as his partner to John Meyer,
the manufacturer of women ' s apparel from whom Senese
obtained the bulk of his work . In Norwich , they met with
John Meyer , Vice President Blackman , and Controller
Kalman at the John Meyer Company. Senese told Meyer
he was opening a shop in Revere , Massachusetts, and
wanted to have its employees covered by a contract with
the Teamsters . After Meyer unsuccessfully attempted to
contact Dominic Zenga (a representative of Teamsters),
'The foreman at Senco ' s Frankfort shop.
"According to Senese , he obtained Phyllis Bocchino 's consent to store
his salvaged machines at Maco , and the following morning pursuant to his
request she also agreed to finish some of Senco ' s work at her plant with
Senco's employees, who remained on Senco's payroll until the work was
completed , at which time some of them left while others remained to work
for Maco.
889
Blackman told Senese he would have a Teamster form
contract that evening before he and Nash left Norwich.
That evening at or about 7 p.m., Cuozzo, a quality
inspector for John Meyer, met Senese and Nash at a local
hotel where he gave a Teamsters form contract to Senese.
Nash glanced at it and commented to Senese that it
provided for 10 paid holidays."
Nash testified further that about a week or two later he
visited Senco's Frankfort shop to pick up some markers
from John Meyer, and while there was invited by Senese
to accompany him to a shop which was being set up in
Revere in accordance with his plans. In the conversation
between them at the time, Senese also told Nash that
Phyllis Bocchino would be president and her sister, Julia,
vice president, that Rocco Senese (his brother and an
attorney) was going to set up the Company, that the girls
at the Frankfort shop would either go with him or look
elsewhere for jobs, and that the same would apply to the
girls at the Meridian shop."
Other evidence supporting the General Counsel's
contention that Senese financed and controlled Maco
shows that Senese gave an HMS check to Phyllis
Bocchino for $789.52 dated November 9, 1966, which
exactly equals the sum of the following two entries made
in Maco's general ledger (G. C. Exh. 30); one for $589.52,
dated November 8, 1966, designated "initial investment,"
and the other for $200 dated November 9, 1966,
designated as "Alinardi Fragino - carpentry." °' The record
also shows that two Senco checks (one for $500 and the
other for $1,000) were issued to Revere Crescent Realty,
the landlord of the premises occupied by Maco, whose
rent was $500 a month. Mrs. Senese, however, disclaimed
knowledge of any dealings between Senco and Revere
Crescent Realty, and was otherwise unable to explain the
transaction. Both of the foregoing transactions strongly
suggest the overall control and manipulations of Senese.
Elizabeth McCarthy, the handwriting expert whose
testimony appears supra in connection with Senese's
handwriting on certain Senco and HMS checks, also
testified that in comparing further the handwriting of
Senese used as standards with the handwriting, exclusive
of the signatures, on certain Maco checks (G. C. Exhs. 89,
90, 91, and 92), she found that said handwriting was the
same as appears on the standards , and she was also of the
opinion that it was highly probable that the signatures
appearing on these Maco checks were in the same
handwriting which appears on the standards. She testified
further that using the handwriting of Phyllis Bocchino on
General Counsel's Exhibit 88 (a speciman of her
handwriting , including her signature , made during the
hearing) as a standard and comparing it to the signatures
appearing on the aforementioned Maco checks , she was of
the opinion that it was highly improbable that Bocchino
'These findings are based upon the credited testimony of Nash, despite
Cuozzo' s denial of having given such a contract to Senese, or of having
ever seen Nash at any place other than at Middleboro , Massachusetts,
where Bonnie Jaye was located . He, however, admitted that at that time
his home was located in New Jersey and he was residing at a hotel in
Norwich, Connecticut, while working for John Meyer as a quality
inspector.
"Apropos of Sense' s control of Senco , Nash also testified without
contradiction that Senese gave Bonnie Jaye two Senco checks in March
1966, one for $1,800 for its payroll and another for $1,000, both of which
he made out and signed with the name of Mary B. DeSimone.
"Although Phyllis Bocchino claimed that she invested $ 11,000 in Maco,
she was unable to substantiate it with any documentary proof from Maco's
records.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed those checks." I find that Senese's handwritingon
Maco checks clearly tended to indicate his close affiliation
with, and the extent of his control over, that Company.
Murray Adelman, a garment cutter, testified credibly
and without contradiction that during December 1966,
Senese hired him to do the cutting on certain dresses, and
it was agreed that the work would be done at the Empire
Sportswear Company in Lynn, Massachusetts. Pursuant
to their arrangement, Senese arrived at the Empire
Sportswear Company but forgot to bring the marker (the
patent) and asked Adelman to follow him to his Revere
(Maco) plant to pick it up. While at that plant, Senese
informed him that it was his plant, and offered Adelman a
job there as a cutter. Adelman declined the offer and
returned to the Empire Sportswear Company in Lynn
where he performed the cutting as requested.
As further proof of the interrelationship between Senco
and Maco under the guidance of Senese, the General
Counsel presented evidence to show that Maco was staffed
by a number of former employees of Senco, including,
admittedly, six out of the first seven employees hired by
Maco. Respondents, in rejecting the charge, claimed that
the employees who left Senco to work for Maco did so of
their own volition and were not transferred by Senese, and
in support thereof presented testimony of Elizabeth
Hickey. She stated that while working at Senco's
Meridian shop during November 1966 she declined the
offer of a job by Phyllis Bocchino to work for Maco, that
during the following week she changed her mind and
accepted the job because Sol Wallace, an ILG
representative, had in the meantime visited the Meridian
shop and had cut employee piecework rates on various
operations, and that as a result she and other girls left.
Wallace, however, credibly testified that when he visited
the Meridian shop to fix prices he found that Hickey, who
worked in a section on linings , was being overpaid , that he
thereupon subtracted part of what she was receiving and
divided it among the other girls whom he found were
being underpaid, and that this was the only change made.
In an effort to show that Maco was completely
independent of Senese or Senco, Phyllis Bocchino testified
that sometime in June 1966, she and her sister Julia (both
employees of Senco at the time) met with Attorney Rocco
Senese and discussed the formation and organization of
Maco, and that her friend, Irene Rotondi, who also
worked at Senco, was subsequently invited to join them
and to become a director of the Company. She testified
further that during that month while Leo Karesky, an
ILG representative, was present at Senco for the purpose
of fixing prices on certain piecework operations, she told
him about her plans to open up her own shop and join
ILG, and that he encouraged her to do so and gave
assurances that he would take care of her. Karesky,
however, credibly denied that he ever held such a
conversation or was ever told by Phyllis that she was
going to open up her own shop and asked to arrange some
sort of deal with ILG on her behalf.
Based on the above findings, I find that the General
Counsel made out an unrebutted prima facie case to the
effect that Senese was responsible for the organizing and
financing of Maco , and that he personally and/or through
Senco controlled and operated that Company for his own
"Based on her broad experience and acknowledged competency I credit
the above findings of McCarthy I attach no weight to the partly contrary
testimony of John Donahue , who was called as a handwriting expert by
Respondents to make comparisons of the handwriting appearing on the
checks referred to above His credentials as a handwriting expert were
woefully weak in comparison with those of McCarthy.
business purposes despite the ostensible front of the
Bocchinos and Rotondi.
4. Bonnie Jaye
Bonnie Jaye was incorporated during January 1966 by
Solomon Nash, Francis Nash, and Doris Getman."
During that month Senese arranged to buy a one-half
interest in the Company for about $2,500. In payment of
his contribution, Senese contributed 12 sewing machines
plus $1,300. He became the company salesman, and in
that capacity from February 1966 to January 1967, he
obtained work from John Meyer, which constituted 90
percent of Bonnie Jaye's production. In January 1967
Nash agreed and arranged to sell Senese his one-half
interest in the Company consisting of 100 shares. On the
day of sale, however, Nash for the first time learned that
the purchaser of his interest was going to be Maco and
not Senese as he had expected, and that Maco was also
buying Senese 's half interest. In the agreement of sale
which was handled by Senese 's attorney, Nash and Senese
each agreed to satisfy certain obligations of Bonnie Jaye,
and to hold each other harmless with respect to certain
claims or potential claims against the Company. Senese,
in addition, also guaranteed the performance of certain of
the contract terms by Maco, which inured to the benefit
of Nash. Phyllis Bocchino testified that Senese told her to
buy Bonnie Jaye, that Nash was paid $1,000 by check for
his interest , while Senese received only $100 in cash, and
that Senese assured her that he would supply her with all
the work she could handle.
Based on the foregoing findings I conclude that upon
the sale of Bonnie Jaye to Maco, Senese , through his
control of Maco, assumed complete direction of Bonnie
Jaye, which he operated as an adjunct of HMS, Maco,
and Senco.
E. The Interdependence Among the Respondent
Corporations, Their Operation and Control
It is undisputed that each of the Respondent
Corporations was established for and engaged in the
production of women's wearing apparel. Each Company
performed one or more manufacturing operations, such as
cutting, stitching, finishing, and pressing." Moreover, their
work could be and was functionally integrated, and Senese
not only was instrumental in obtaining the subcontracting
work for all the Corporations, but he also distributed that
work directly to each Corporation or channeled it through
HMS as the jobber. Senese also participated in and
helped set up Maco's plant layout, advised his associates
of his interest in forming that Company, and even had his
wife cooperate by gratuitously rendering bookkeeping
services in setting up Maco ' s payroll records."
On the financial side of the picture, it appears that
although Senese was not authorized to sign checks of
Senco or Maco, he nevertheless, according to the credited
"The General Counsel concedes that Senese played no part in the
formation of Bonnie Jaye
"As related above , HMS discontinued its manufacturing operations and
became a jobber.
"It is also significant to note that Respondent Corporations to a large
extent utilized the accounting services of the same accountant, John Dello
Russo, that Attorney Barry Levin represented Senese, Senco, and HMS,
while at the same time Senese ' s brother, Rocco, represented Maco and
Phyllis Bocchino . Also, the conference room of Attorney Levin's suite was
used to examine the union authorization cards to determine the recognition
of Teamsters by Maco (See infra )
SENCO, INC. 891
testimony of the handwriting expert and Nash , signed his
wife' s name to some Senco checks and also made out the
body of certain Maco checks , on which , and in all
probability , he signed Phyllis Bocchino ' s name . It is also
significant to note that upon the sale of Bonnie Jaye's
stock to Maco , Senese allegedly received only $100 in
cash (which could not be identified as paid for that
purpose on Maco ' s records) for his one -half interest while
Nash received a check for $ 1,000 for his half interest, and
that no explanation was offered for the disparity in the
sales price of the stock . It appears further that the
monthly indebtedness for the lease of machines and
equipment between the Corporations was never paid, that
HMS paid the rent on occasion for Maco ' s premises, that
cars owned and serviced by HMS were used as needed by
the other Corporations without charge , that HMS checks
were used to pay for medical services rendered to Senco
employees and for newspaper job ads on behalf of Senco,
and that HMS did not require invoices from Senco or
Maco for work done by them , but did receive such
invoices from other companies with which it did business.
Also, as indicated infra, Senese took an active interest in
promoting the affiliation of Senco and Maco employees to
Teamsters rather than to ILG.
F. Conclusions as to the Integration of the
Respondent Corporations and Their Bargaining
Obligations
Based on the foregoing findings, which establish the
interrelationship of the Respondent Corporations, their
common management, ownership (in fact if not in name),
and control, I find that they are integrated and constitute
one enterprise within the meaning of the Act and that for
all purposes material to this case, the Corporations are a
single employer. See Radio and Television Broadcast
Technicians, Local Union 1264 v. Broadcast Service of
Mobile, Inc., 380 U.S. 255; Sakrete of Northern
California, Inc. v. N.L.R.B., 332 F.2d 902, 907 (C.A. 9),
cert. denied 379 U.S. 961, enfg . 137 NLRB 1220;
N.L.R.B. v. Gibralter Industries, Inc., 307 F.2d 428, 431
(C.A. 4); N.L.R.B. v. Schnell Tool & Die Corporation,
359 F.2d 39, 43 (C.A. 6), enfg. in relevant part 144
NLRB 385; and cf. N.L.R.B. v. Condenser Corporation
of America, 128 F.2d 67, 71 (C.A. 3). In reaching this
conclusion I also find that their production and
maintenance employees comprise an appropriate unit for
collective-bargaining purposes. These employees
performed work on the same types of garments, used
similar machines and equipment, operated in the same
geographical area, and their work was obtained primarily
through Senese, who thereby controlled their production
and resultant employment.
Inasmuch as I have found that the corporate
Respondents constitute one enterprise, it follows, and I
conclude, that HMS, Maco, and Bonnie Jaye are bound
to the same extent and in the same manner as Senco with
respect to their bargaining obligations to ILG through the
Association.
G. The Alleged Violations in Organizing Maco's
Employees and Recognizing Teamsters as Their
Bargaining Agent
The General Counsel asserts that Respondents (except
Teamsters) violated Section 8(a)(3), (2), and (1) of the Act
by rendering unlawful assistance to Teamsters in
organizing Maco's employees , granting it recognition as
the exclusive bargaining representative of Maco's
production and maintenance employees, executing a
collective-bargaining agreement with it, and implementing
the union-security and checkoff provisions of that
agreement , all at a time when Teamsters not only did not
represent an uncoerced majority of said employees, but
also when no substantial or representative complement of
employees was working at Maco. The General Counsel
asserts further that Teamsters violated Section 8(b)(1)(A)
and (2) of the Act by unlawfully discriminating against
Maco employees and interfering with them in the exercise
of their statutory rights by threatening them with
economic reprisals unless they joined the Teamsters,
promising them economic benefits to obtain their
affiliation, entering into a collective-bargaining contract
with Maco when it did not represent an uncoerced
majority of Maco's employees, and enforcing its contract
provisions for checkoff and union security. In support he
claims that, although Senco was bound by the existing
contract between ILG and the Association, Senese made
plans during the summer of 1966 to terminate Senco's
bargaining relations with ILG by closing out Senco
operations and transfering them to a new plant in Revere
to be called Maco, which would recognize Teamsters as
the bargaining agent of its employees. Thereafter, in
implementing his plan, Maco was formally organized as a
corporation with the Bocchino sisters and Irene Rotondi
as a front, whereas, in fact, he actually made the
arrangements for Maco's physical setup, transferred
stitchers and moved machinery from Senco's Frankfort
shop to Maco both before and after the fire at that shop,
transferred Foreman Viarella from the Frankfort shop to
Maco to supervise the pressers, issued an HMS check to
cover the carpentry work performed for Maco and his
initial investment in that company, issued Senco checks
for 3 months rent for Maco's premises, and revealed his
plans to open a new shop in Revere to Viarella,46 Nash,
Adelman, and John Meyer.
With.respect to the union organizing activities carried on
at Maco, the credited testimony of Viarella shows as
follows: About a week after he began working at Maco,
Senese told him that Teamsters' Representative Dominic
Zenga was going to visit the Maco shop for the purpose
of organizing its employees. Shortly thereafter, Zenga
visited Maco where Senese introduced him to Viarella.
Zenga again visited Maco during the early part of
November, arriving at the shop sometime before lunch,
and directing Viarella to have the employees07 gather at a
corner of the shop for a meeting. The machines were then
turned off and Zenga addressed the employees. He told
them Maco was a Teamsters shop and related the benefits
in joining his union . Phyllis Bocchino and her sister, Julia,
were also present at the meeting. Then, at the request of
Zenga, Viarella distributed Teamsters union authorization
cards to the employees.
Employee Carmelino Amato, one of the
employee-stitchers whom Zenga addressed on his second
visit to the shop, testified credibly that Julia Bocchino
placed an authorization card on her machine and told her
to sign it or she would have to get out. When Amato
declined to sign , Phyllis Bocchino intervened and told her
sister to leave Amato alone. Julia thereupon picked up the
card and left. Thereafter, Zenga visited the shop for the
"Viarella also testified that Senese told him that the new shop would be
organized under the Teamsters.
"At that time Maco had only seven stitchers, six of whom previously
worked for Senco.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
third time , accompanied by an insurance man from John
Hancock Insurance Company, who described the benefits
of a proposed insurance plan, which would cover the
employees . On this trip Zenga reiterated his previous
warning to the employees that those who refused to sign
would have to get out, and stated that those who signed
the Teamsters cards would be given holiday pay for the
following day , Armistice Day." Company records verify
that the employees were paid for Armistice Day as a
holiday.
On November 8, Zenga, Roumeliotis , and Phyllis
Bocchino met with her lawyer, Rocco Senese, at the
offices of Attorney Barry Levin where a card check
allegedly verified that the Teamsters had obtained
authorization cards from the seven employees referred to
above." A formal letter of recognition was then signed
and negotiations for a collective -bargaining contract were
started , which culminated in signing such an agreement on
November 14, 1966 . The contract included a
union-security provision , requiring all covered employees
to become members of Teamsters after 30 days ' service,
and a checkoff provision by which Teamsters' dues would
be collected by Maco through payroll deductions upon
authorization by the employees."
H. Conclusions Regarding the Organizing of Maco's
Employees and its Contract With Teamsters
It appears, as related above, that almost as soon as
Maco began operating , Senese advised Viarella that
Teamsters through Zenga was going to organize Maco's
employees and would visit that shop for that purpose.
When Zenga visited Maco he was assisted by the
Bocchinos and Viarella in soliciting the employees and
having them sign union cards . Threats of discharge were
made by Zenga and also by Julia Bocchino to at least one
employee to sign up or get out . Finally, Maco
precipitously recognized Teamsters and entered into a
collective -bargaining agreement with it.S1 I find that such
participation and assistance of Maco's supervisors and/or
officers demonstrate that pursuant to Senese's plan
complete freedom of choice on the part of Maco's
employees to choose a bargaining representative was
effectively forestalled and denied . It has been clearly
established that such interference with the freedom of
choice on the part of employees to choose a bargaining
representative is proscribed by the Act. Thus, in N.L.R.B.
v. Link-Belt Company, 311 U.S. 584 , 588, the Court
stated : "Normally, the conclusion that their choice [of
"Zenga was not called to testify Nicholas Roumeliotis , a Teamsters
organizer who accompanied Zenga on his visit to the Maco plant , testified
on behalf of Respondents that on their visit to Maco they solicited the
employees to join their Union , obtaining approximately five signed union
authorization cards before Phyllis Bocchino came by and ordered them to
leave, that, accompanied by the seven girls, they left and visited a nearby
coffeeshop where additional authorization cards were signed , that they then
returned to the shop and asked Phyllis Bocchino whether she was
convinced that her employees had signed up, and that she asked them to
call her attorney . Phyllis Bocchino testified on behalf of Respondents that
the Teamsters representatives told her that they had signed up her
employees and would take them out on strike unless she recognized
Teamsters as their bargaining representative, and that she told them to
contact her attorney . Significantly, there was no testimony refuting the
distribution of authorization cards by Viarella or Julia Bocchino.
"Maco' s payroll summary shows that there were 24 production and
maintenance employees working at Maco and on its payroll for the week
ending November 4, 33 for the week ending November 11, and that the
number rapidly increased thereafter for each week , reaching 99 for the
week ending February 4, 1967.
selecting a bargaining representative] was restrained by
the employer ' s interference must of necessity be based on
the existence of conditions or circumstances which the
employer created or for which he was fairly responsible
and as a result of which may reasonably be inferred that
the employees did not have that complete and unfettered
freedom of choice which the Act contemplates." I
accordingly conclude that the activity of Maco's
supervisors on behalf of Teamsters interfered with,
restrained , and coerced its employees in violation of
Section 8(a)(1) and (2) of the Act. See also N.L.R.B. v.
Revere Metal Art Co., Inc., and Amalgamated Union
Local 5, UAW, 280 F .2d 96 (C.A. 6), cert. denied 364
U.S. 894; and Hughes & Hatcher Inc. v. N.L.R.B., 393
F.2d 557 (C.A. 6). I also find that Maco ' s precipitous
recognition of Teamsters and its execution of a
collective-bargaining contract containing a union-security
clause at a time when Teamsters did not represent an
uncoerced majority of its employees also violated Section
8(a)(3), (2), and (1).62
Furthermore, even assuming that the seven employees
who signed Teamsters authorization cards were uncoerced,
Maco, nevertheless , violated Section 8 (a)(3), (2), and (1).
As related above , Maco's complement of employees at the
time the authorization cards were signed was substantially
increased by November 8, 1966, when recognition was
granted to Teamsters , and then rapidly expanded week by
week to almost 100 in February 1967. I find that at the
time Teamsters was recognized, Senese intended and
expected to substantially expand the production and
maintenance unit at Maco in conformance with his
preconceived plan. It is well established that a
collective-bargaining agreement entered into at a time
when the number of employees is not representative of the
employer's anticipated work force is premature and
ineffective. Thus, the execution and enforcement of such a
contract containing union-security and checkoff violated
Section 8(a)(2), (3 ), and (1) of the Act. Nor would it avail
Maco that its employees ratified the contract negotiated
on their behalf by Teamsters . The unlawful genesis of the
contract precludes its validity despite a subsequent
ratification by a majority of the employees . " Conversely,
Teamsters, by threatening to have employees discharged
for refusing to sign its authorization cards , promising
them that they would be paid for Armistice Day as a
holiday if they signed cards, and entering into and
enforcing a collective-bargaining contract containing
security and checkoff provisions when it was not the
employees' lawful representative , violated Section 8(b)(2)
and (1)(A) of the Act. Young & Greenawalt Co., 157
NLRB 408, 411.
"These provisions were thereafter implemented by the parties.
"It also appears that HMS gave up its production work and acted as a
jobber (a contractor), that Senco gradually was phased out of existence
(see infra), and that Bonnie Jaye was absorbed by Maco . As a result,
Maco became the only production unit and , accordingly , all the production
and maintenance employees working in the Companies controlled by
Senese thereby became covered by the Teamsters contract.
"See N L.R B v. Revere Metal Art Company, supra; Lunardi-Central
Distributing Co. Inc., 161 NLRB 1443; and Sinko Manufacturing and
Tool Company , 149 NLRB 201, 202.
"It is also significant to note that inasmuch as Maco has been found to
be integrated with Senco, it was thereby bound by the Association's
contract with ILG, and therefore could neither recognize nor enter into a
contract with Teamsters.
SENCO, INC.
I. The Alleged Unlawful Discharges of Carmelino
Amato and Mafaldo Marsh
The complaint alleged that on or about November 15,
1966, in violation of Section 8(a)(3) of the Act,
Respondents (other than Teamsters) discharged employees
CarmelinoAmato and Mafaldo Marsh and have since
refused to reinstate them because they failed or refused to
assit the Teamsters , or engaged in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
Amato and Marsh were special machine operators at
Senco's Frankfort shop when a fire destroyed that shop
and they were instructed by Viarella to report to work the
following Monday at Maco 's shop . They began working
there on November 7, 1966 , and continued on November
8, 9, and 10 during which time Zenga visited the plant, as
related above , for the purpose of soliciting employees to
join Teamsters. The shop was closed on November II
(Armistice Day) and also on November 12 and 13 (the
weekend ). On November 14, ILG held a meeting at its
union hall, which was attended by Amato, Marsh, other
Maco employees and also some employees from Senco's
Meridian shop , including Senese' s sister , Rosemary. At
the meeting Kramer, a representative of ILG, discussed
the organizing tactics being carried on by the Teamsters
and asked whether any of them had joined. Marsh openly
expressed her opposition to the Teamsters . The next
morning when Amato and Marsh reported for work, Julia
Bocchino told them not to punch their timecards but did
not say why . Another employee standing nearby asked
Viarella why they could not punch in and he replied that
they were being fired because they had gone to a union
meeting where there were 16 "stool pigeons ."" A little
later Julia Bocchino told Amato and Marsh to go to
Senco ' s Meridian shop . When they asked why, she replied
that she did not know. Upon their arrival at the Meridian
shop , Irene Rotondi told them, "I knew you were coming
but I have no work for you." As they were leaving
Rotondi offered them work as "dividers" (a dress
operation different from their usual work and in which
they had had no experience ). They declined and left.
J. Conclusions as to the Alleged Unlawful Discharges
of Amato and Marsh
Respondents contend that Amato and Marsh were
actually employees of Senco, working temporarily at
Maco in order to complete certain work brought there
because of the fire at the Frankfort shop, that upon the
completion of that work they were reassigned to work at
Senco ' s Meridian shop where they declined to accept the
work offered to them, and that , therefore, they were never
discharged . However , Respondents failed to refute
Viarella ' s testimony that Bocchino told him earlier that
morning to fire Amato and Marsh . Nor did Bocchino give
any reason for refusing to permit them to punch in and,
apparently, neither denied nor commented when Viarella
explained aloud to another employee that they were being
fired for attending an ILG meeting . Her silence under the
circumstances strongly indicated her acquiescence in
Viarella ' s comment . If Amato and Marsh were merely
being reassigned to Senco, as asserted , surely they could
have been so advised , unless it was an afterthought.
"Viarella also testified without contradiction that earlier that morning
Julia Bocchino had told him to fire Amato and Marsh when they reported,
and that he refused stating : "You fire them . They're your employees."
Viarella at that time supervised the pressers.
893
Viewing their discharge in all the attending
circumstances, especially Senese ' s plan to replace ILG
with Teamsters and the timing oftheirdischarge - theday
following their presence at an ILG meeting where Marsh
openly expressed hostility to Teamsters in the presence of
Senese's sister," I find that their discharge was motivated
by their opposition to Teamsters in violation of Section
8(a)(3) of the Act. In reaching this conclusion I find that
whether or not Amato and Marsh were technically in the
employ of Senco, as claimed by Respondents, or in the
employ of Maco is immaterial, both Companies, as noted
above, were integrated and controlled by Senese, the real
party in interest. Moreover, even assuming that they were
being transferred to jobs with which they were wholly
unfamiliar, and, therefore, opted to quit, it would
nevertheless constitute a violation of Section 8(a)(3). "An
employee who is forced to leave his employment as the
only alternative to accepting discriminatory action relating
to his conditions of employment is constructively
discharged in violation of the Act [footnote omitted]."
American Auto-Felt Corporation, 158 NLRB 1628, 1631.
K. The Alleged Unlawful Closing of Senco
It is alleged that the closing of Senco ' s Meridian shop
was discriminatorily motivated for the purpose of relieving
Respondents (other than Teamsters) of their obligation to
recognize and/or bargain with ILG, in violation of
Section 8(a)(1), (3), and (5) of the Act. As related above,
Senese began moving machines and transferring
employees to Maco from the Frankfort shop prior to the
fire at the latter shop, and that following the fire, Senco
continued to operate only the Meridian shop until the end
of April 1967 when the shop ceased operating and the
employees were laid off. Respondents contend that it was
closed for economic reasons.
Theresa Santarpio, an employee at the Meridian shop,
testified without contradiction that during December 1966,
Sense told a group of about 12 employees at that shop
that beginning in 1967 the shop was "not going to be
Senco any more . It's going to be known as Maco . And all
the girls will be out of the ILGW.... I'm terminating my
business with them," and that he did not intend to deduct
any ILG dues from their paychecks." She also testified
credibly that upon the closing of the shop, Irene Rotondi17
told the girls (about 18 to 20 of them ) not to come in until
they were called because there was no work, whereas at
that time the employees were doing the finishing work on
garments brought in from Maco, upon which work
remained to be done.
"In addition to any inference suggesting that Senese could have been
informed by his sister as to what occurred at the ILG meeting, Bocchino's
silence when Viarella exclaimed that they were being fired for attending
an ILG meeting strongly suggests that such knowledge had already been
conveyed to her.
"It is also significant to note the following evidence which also reflects
on Senese 's plan to get rid of the ILG: The filing of an RM petition on
December 15 , 1966, by Senese on behalf of the Meridian shop , claiming
that Teamsters and ILG were each asserting to be the exclusive bargaining
representative of the employees , although nothing in the record indicates
Teamsters interest in representing any of those employees ; and the
uncontradicted testimony of employee Rose Beninati that while working
she was approached by Senese in October 1966 and asked whether the girls
had thought of changing unions. When she answered : "The Amalgamated
Clothing Workers?," he said : "No, the Teamsters," to which she
laughingly replied that she never thought that was a stitcher 's union.
"Contrary to Respondents , I find that at all times material herein
Rotondi was a supervisor at the Meridian shop within the meaning of the
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. Conclusions Regarding the Closing of Senco's
Meridian Shop
I find no merit in Respondents' contention that
production and financial problems, including the filing of
a lien against its bank account by Internal Revenue, were
the sole factors which made it impossible to continue
operations at the Meridian shop. As related above, it
appears that Senese's plans comprehended the phasing out
of Senco and a transfer of its operations to Maco. Thus,
machinery and employees were transferred from the
Frankfort shop to Maco even before the fire at the
Frankfort shop. Senese also publicized his plans to
Viarella and others that he contemplated closing down
Senco and operating at Maco. He also advised the
employees at that shop to the effect that it was going to
become known as Maco, and he would no longer deal
with ILG.
Any assertion that a lack of work prompted the closing
of the Meridian shop is wholly without merit. Senese was
the prime source of obtaining work for both Senco and
Maco, and he controlled the amount of work which he
assigned to each of them. He apparently greatly increased
the amount of work given to Maco, judging by the
considerable weekly increase in its complement of
employees while Senco was being gradually phased out.
Other reasons, which allegedly developed such as the
attachment of Senco's bank account, may have
accelerated Senco's closing but do not detract from
Senese's initial motivation to follow through with his
preconceived plan of breaking away from ILG. I therefore
conclude that his ILG animus was the motivating cause
for closing Senco down.
However, even conceding that Senco's closing was
motivated solely by economic considerations, the law is
well settled that a partial closing of a business by
eliminating one of its plants without notice to and/or
bargaining with the lawful representative of the employees
about the decision to close and the effect on the
employees violates Section 8 (a)(1), (3), and (5) of the
Act. See Royal Plating and Publishing Co." I,
accordingly, find and conclude that the closing of Senco
violated Section 8(a)(1), (3) and (5) of the Act. The 8(a)(3)
violation is based upon the discriminatory layoff of
Meridian 's employees when the plant was closed down.'°
The Defense of Section 10(b) of the Act with Respect
to any Violations of HMS and Bonnie Jaye
Respondents contend that Section 10(b) precludes any
Act Her testimony shows that she handed out work to the employees, that
when people called at the shop she would receive them , that she discussed
the work with Senese, that she had authority to send employees to the
doctor when injured on the job, that she offered "dividers" jobs to Amato
and Marsh , and that she laid off the employees at the Meridian shop when
it closed down Viarella testified that her work at the Meridian shop was
similar to his supervisory work at the Frankfort shop, where he admittedly
was a supervisor Employee Rose Beninati testified that Rotondi was
regarded by the employees as the one in charge of the Meridian shop.
Furthermore , if she were not in charge then the shop would have been
operating without the presence of any supervisor.
"152 NLRB 619, enfd . 350 F.2d 191 (C A 3), as modified to exclude
only the obligation to bargain about the decision itself to effect the partial
shutdown The Board , thereafter , reaffirmed its position in Ozark Trailers,
Incorporated, 161 NLRB 561. See also Garwin Corporation. 153 NLRB
664, enfd . 374 F 2d 295 (C.A D C.), cert. denied 387 U.S. 942
"See Royal Plating , supra at 622 for the Board ' s comments concerning
the finding of an 8 (a)(3) violation under similar circumstances.
violative finding against Bonnie Jaye or HMS prior to
November 18, 1967 [sic], because no charge was filed
against either one within the 6-month limitation period
following the date of the alleged violations. Respondents
point out that the charges (the fifth amended charge)
against these Respondents were filed on May 18, 1967,
whereas the complaint alleged that the first refusal to
bargain by them took place on or about October 15, 1966,
and that the alleged unlawful recognition of the Teamsters
occurred on November 8, 1966, followed by the signing of
its contract on November 14, 1966. 1 find no merit in
these contentions. As indicated by the General Counsel,
this defense was raised for the first time in Respondents'
brief long after the conclusion of the hearing. He asserts
that, according to the record, the alleged
refusal-to-bargain violation by HMS and Bonnie Jaye
occurred on December 9, 1966, when Senco advised the
Association that it was withdrawing as a member, and
that this was well within the 6-month limitation period
prior to May 18, 1967, when the fifth amended charge
was filed. I find that regardless of whether this violation
occurred on that date, the refusal to bargain was a
continuing one and therefore well within the 10(b) period.
Furthermore, in view of the foregoing findings of
integration of the four corporate Respondents, the fifth
amended charge did no more than add two closely related
(integrated) parties to the parties previously named in the
fourth amended charge, which was filed on March 3,
1967, and to which no 10(b) defense has been raised by
Respondents. Thus, the addition of HMS and Bonnie Jaye
made no real charge in the parties, and the charges in all
respects remained predicated upon the same grounds as
set forth in the prior charge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
1. At all times material herein ILG and Teamsters have
been labor organizations within the meaning of Section
2(5) of the Act.
2. At all times material herein the Association has been
an association of employers existing for the purpose, inter
alia , of representing employer-members in multiemployer
collective bargaining with ILG.
3. At all times material herein Respondent Senco has
been a member of the Association, and its letter of
withdrawal from the Association, dated November 9,
1966, was untimely and ineffective.
4. At all times material herein Respondent
Corporations have been integrated employers engaged in
commerce and constituted a single enterprise within the
meaning of the Act.
5. At all times material herein Respondent
Corporations , as a single enterprise, have been obligated
to adhere to the terms and conditions of the
SENCO, INC.
collective-bargaining agreement in effect between the
Association and ILG.
6. All production and maintenance employees of Senco,
Maco, HMS, and Bonnie Jaye, excluding office clerical
employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 of the Act.
7. At all times relevant herein, ILG has been the
exclusive representative of the employees in the aforesaid
unit for the purpose of collective bargaining within the
meaning of Section 9 of the Act.
8. By unilaterally and without prior notice and
consultation with ILG closing down Senco's Meridian
shop, laying off its employees, and refusing to maintain in
full force and effect the terms and conditions of the
collective-bargaining agreement in effect between the
Association and ILG, Respondent Corporations have
engaged in unfair labor practices in violation of Section
8(a)(5) and (3) of the Act.
9. By assisting Teamsters in organizing Maco's
employees, executing a contract with Teamsters containing
a union-security agreement at a time when said Union did
not represent an uncoerced majority of those employees
and the number of employees was not representative of
Maco's anticipated work force, maintaining and enforcing
said agreement, and by discharging employees Amato and
Marsh, Respondent Corporations have engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(2) of the Act.
10. By interfering with , restraining , and coercing their
employees in the exercise of rights guaranteed in Section 7
of the Act, to the extent found herein, Respondent
Corporations have engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
11. By conceiving and implementing his plan in the
manner found herein to supplant ILG as the bargaining
representative of the employees of the Respondent
Corporations which he controlled and dominated, Henry
Senese, individually and as agent, engaged in unfair labor
practices in violation of Section 8(a)(5), (3), (2), and (1) of
the Act.
12. By assisting Teamsters in organizing Maco's
employees , recognizing and entering into a
collective-bargaining contract with Teamsters containing a
union-security provision, at a time when said Union did
not represent an uncoerced majority of the employees, and
by discharging Amato and Marsh, Phyllis Bocchino,
individually and as agent , engaged in unfair labor
practices in violation of Section 8(a)(3), (2), and (1) of the
Act.
13. By threatening Maco employees with discharge and
promising them benefits in order to obtain their union
affiliation, and by entering into and enforcing a contract
with Maco containing a union-security provision when it
did not represent an uncoerced majority of said
employees , Respondent Teamsters engaged in unfair labor
practices in violations of Section 8(b)(l)(A) and (2) of the
Act.
14. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
It is clear from the findings made herein that Senese
was, in fact , the real party in interest in conceiving and
implementing his plan to supplant ILG with Teamsters as
895
the bargaining representative of the employees of the
Corporations which he controlled and directed. In
designing an appropriate remedy it would defeat the
purposes of the Act to permit him to avoid full personal
responsibility for the violations committed directly by him
or through his Corporations. I, accordingly, shall
recommend that he, individually and jointly with
Respondent Corporations, be ordered to reimburse
employees for union dues unlawfully deducted from their
wages and to make whole discriminatorily discharged
employees for loss of pay. Although Phyllis Bocchino
participated in the violations charged to Maco, she, in
fact, was only a cog in the wheel carrying out Senese's
plan and was not involved as a principal. I shall,
therefore, make no recommendation holding her
individually liable for backpay or reimbursement of
unlawfully collected union dues.
Having found that Respondents engaged in certain
unfair labor practices in violation of the Act, I shall
recommend that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the
purposes of the Act.
Having found that Senco's Meridian shop was closed
down and its employees laid off without prior notice to or
consultation with ILG in order to avoid dealing with ILG,
I shall recommend that Senese and Respondent
Corporations offer to the laid-off employees immediate
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges which they severally theretofore
enjoyed, dismissing , if necessary, any employees hired by
said Respondent Corporations after their layoff at Senco,
and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them by
payment to each of them of a sum equal to that which
each would have earned as wages from the date of their
layoff to the date of reinstatement less the net earnings
during such period, in accordance with the formula
prescribed in F W. Woolworth Company, 90 NLRB 289,
together with interest on said sums to be computed as
indicated in Isis Plumbing & Heating Co., 138 NLRB
716.
Having found that Maco employees Amato and Marsh
were discriminatorily discharged, I shall recommend that
Senese , Bocchino, and Respondent Corporations offer
them immediate reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority and other rights and privileges which they
severally theretofore enjoyed, dismissing , if necessary, any
employees hired after their discriminatory discharge. As a
consequence of said discharges, it is further recommended
that Senese and Respondent Corporations jointly and
severally make each of said employees whole for any loss
of pay they may have suffered as a result of the
discrimination against them by payment to each of them
of a sum equal to that which each would have earned as
wages from the date of their discharge to the date of their
reinstatement less the net earnings during such period in
accordance with the formula prescribed in F. W.
Woolworth Company, supra, together with interest on
said sums to be computed as indicated in Isis Plumbing &
Heating Co., supra.
Having found that Senese, Bocchino, and Respondent
Corporations unlawfully assisted Teamsters in organizing
Maco's employees , and entering into a contract with
Teamsters, at a time when (1) it did not represent an
uncoerced majority of Maco's employees, and (2) the
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of Maco's employees was not representative of its
anticipated work force, I shall recommend that said
Respondents cease and desist from giving effect to said
contract or to any modification, extension , renewal, or
supplement thereto, and withdraw and withhold all
recognition from Respondent Teamsters as the
representative of Maco's employees unless and until
Teamsters is certified by the Board as such representative.
Having found that Teamsters unlawfully solicited
membership of Maco's employees and entered into and
implemented a collective-bargaining contract with Maco
containg a union-security provision at a time when it did
not represent an uncoerced majority of Maco's employees
and the number of Maco's employees was not
representative of its anticipated work force, I shall
recommend that it cease and desist from giving effect to
said contract, or to any modification, extension, renewal,
or supplement thereto, and withdraw as representative of
said employees unless and until certified by the Board as
such representative.
Having found that union dues were unlawfully deducted
from the wages of Maco's employees on behalf of
Teamsters, I shall recommend that Senese, Respondent
Corporations, and Teamsters be ordered to jointly and
severally reimburse all union dues to employees who
joined Teamsters, with interest to be computed in the
manner set forth in Seafarers International Union of
North America, Great Lakes District, 138 NLRB 1142.
Having found that Senese, Bocchino, and Respondent
Corporations unlawfully ceased to recognize ILG as the
bargaining representative of their employees in an
appropriate unit, I shall recommend that they be ordered
to recognize ILG as such representative and to maintain
in. full force and effect the terms and conditions of the
pending bargaining relationship between the Association
and ILG and/or to any renewal contract negotiated,
retroactive to February 15, 1967.
In view of the nature and extent of Senese 's unfair
labor practices and his proclivity to engage in such
practices, the danger exists that he will commit similar or
other unlawful labor practices which will deprive
employees of rights guaranteed under the Act. I,
therefore, recommend that he and the Respondent
Corporations be ordered to cease and desist from in any
manner infringing upon the guaranteed rights of
employees, and that the Board retain jurisdiction of Case
1-CA-5738 for the purpose of dealing appropriately with
such possible eventualities.
Upon the basis of the foregoing findings of facts and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I issue the following:
RECOMMENDED ORDER
A. Senco, Inc., Maco Clothing Corporation, H.M.S.
Sportswear, Incorporated, and Bonnie Jaye Sportswear
Co., Inc., and Henry Senese and Phyllis Bocchino,
individually and as agents of said corporations, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership of their employees in
Local 841, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
discouraging their membership in any other labor
organization by discharging and/or refusing to reinstate
them because of their union activities or affiliation, or in
any other manner discriminating against their employees
with respect to their hire or tenure of employment or any
other term or condition of employment.
(b) Giving effect to the agreement signed on November
14, 1966, with Local 841, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or to any extension, renewal, modification, or
supplemental or superseding agreement entered into with
said Union.
(c) Recognizing or bargaining with Local 841,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
collective-bargaining representative of their employees
unless and until said Union has been duly certified by the
Board as such representative.
(d) Refusing to recognize the Boston Joint Board,
International Ladies' Garment Workers Union,
AFL-CIO, as the exclusive bargaining representative of
their employees in the following appropriate unit:
All production and maintenance employees, excluding
office clerical employees and supervisors as defined in
the Act,
and to maintain in full force and effect the terms and
conditions of the collective-bargaining agreement currently
in effect between the aforesaid Union and the Associated
Garment Contractors, Inc.
(e) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
required to effectuate the policies of the Act:
(a) Bargain collectively through Associated Garment
Contractors, Inc., with Boston Joint Board, International
Ladies' Garment Workers Union, AFL-CIO, as the
exclusive bargaining representative of their employees in
the above-described unit, and maintain in full force and
effect the terms and conditions negotiated between said
Union and the Associated Garment Contractors, Inc.
(b) Withdraw and withhold all recognition from Local
841, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the bargaining
representative of any of their employees, unless and until
such labor organization shall have been certified by the
Board as such representative.
(c) Offer immediate and full reinstatement to
Carmelino Amato, Mafalda Marsh, and the employees
laid off by the closing of Senco's Meridian shop, without
prejudice to their seniority or rights and privileges, and
jointly and severally make them whole for any loss of pay
each of them may have suffered because of their discharge
in the manner and to the extent set forth in the section of
this Decision entitled "The Remedy."
(d) Jointly and severally with Respondent Local 841,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, reimburse all
employees of Maco Clothing Corporation for union dues
deducted from their wages on behalf of said Union, in the
manner set forth in the section of the Decision entitled
"The Remedy."
(e) Notify the discriminatorily discharged employees if
presently serving in the Armed Forces of the United
States of their rights to full reinstatement upon
application in accordance with the provisions of the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary for the determination of backpay and
the reimbursement of union dues.
SENCO, INC.
(g) Post at each of their operating plants , copies of the
attached notice marked "Appendix A.""° Copies of said
notice, on forms provided by the Regional Director for
Region 1 , shall be posted by each Respondent or its
representative , after being duly signed by its
representative , immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
B. Local 841, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its
officers , agents, and representatives , shall:
1. Cease and desist from:
(a) Threatening employees of Maco Clothing
Corporation or of any other employer with discharge
and/or promising them benefits in order to obtain their
union affiliation.
(b) Representing the employees of Maco Corporation
as their exclusive bargaining representative unless and
until certified by the Board as such representative.
(c) Maintaining , enforcing , or otherwise giving effect to
the collective-bargaining agreement entered into with
Maco Clothing Corporation on November 14, 1966, 'or to
any extension , renewal , modification , or supplemental or
superseding agreement entered into with said Company.
(d) In any like or related manner restraining or
coercing employees of Maco Clothing Corporation or any
other employer in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondents Henry
Senese , Senco, Inc., Maco Clothing Corporation, H.M.S.
Sportswear , Incorporated , and Bonnie Jaye Sportswear,
Inc., reimburse all employees of Maco Clothing
Corporation for union dues deducted from their wages
pursuant to its collective -bargaining agreement in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Post at its office wherever maintained , and at its
meeting hall, copies of the attached notice marked
"Appendix B.""7 Copies of said notice, on forms provided
by the Regional Director for Region 1, shall be posted by
Respondent Union' s authorized representative , after being
duly signed by its representative , immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not found herein.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
897
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."
"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 Respondent
has taken to comply herewith "
"See fn . 60, supra.
"See fn 61, supra
APPENDIX A
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 our
employees that:
WE WILL NOT maintain in effect or enforce our
collective-bargaining agreement dated November 14,
1966, with Local 841, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT recognize or bargain with the aforesaid
Union as the collective-bargaining representative of our
employees unless and until said Union has been duly
certified by the Board as the exclusive representative of
our employees.
WE WILL offer Carmelino Amato, Mafalda Marsh,
and the employees of Senco, Inc.'s Meridian shop, who
were laid off when that shop was closed down,
immediate reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority and other rights and privileges, and make
each of them whole for any loss of pay they may have
suffered as the result of the discrimination against
them.
WE WILL jointly and severally with Local 841,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, reimburse the
employees of Maco Clothing Corporation for any union
dues which were deducted from their wages on behalf of
said Union.
WE WILL NOT encourage membership of any of our
employees in the aforesaid Union or discourage their
membership in any other labor organization by
discharging or in any other manner discriminating
against them in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL maintain in full force and effect the terms
and conditions of the collective-bargaining agreement
negotiated between the Associated Garment
Contractors, Inc., and Boston Joint Board,
International Ladies' Garment Workers Union,
AFL-CIO.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of any
labor organization.
SENCO, INC.
(Employer)
Dated By
Dated By
Dated By
Dated By
(Representative) (Title)
MACO CLOTHING
CORPORATION
(Employer)
(Representative) (Title)
H.M.S. SPORTSWEAR,
INCORPORATED
(Employer)
(Representative) (Title)
BONNIE JAYE SPORTSWEAR
Co., INC.
(Employer)
(Representative) (Title)
Dated Henry Senese
Dated Phyllis Bocchino
Note : Notify Carmelino Amato , Mafalda Marsh, and
any of the employees laid off at Senco ' s Meridian shop
upon its closing , if presently serving in the Armed Forces
of the United States of their rights to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended , after discharge from the Armed Forces.
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 , 20th Floor,
John F . Kennedy Federal Building , Cambridge and New
Sudbury Streets , Boston , Massachusetts 02203 , Telephone
223-3300.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 841, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
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 you that:
WE WILL NOT threaten employees of Maco Clothing
Corporation or any other employer with discharge
and/or promise them benefits in order to obtain their
union affiliation.
WE WILL NOT represent the employees of Maco
Clothing Corporation as their exclusive bargaining
representative unless and until certified by the Board as
such representative.
WE WILL NOT maintain, enforce , or otherwise give
effect to the collective-bargaining agreement entered
into with Maco Clothing Corporation on November 14,
1966.
WE WILL jointly and severally with Henry Senese,
Senco, Inc., Maco Clothing Corporation , H.M.S.
Sportswear , Incorporated , and Bonnie Jaye Sportswear
Co., Inc., reimburse all employees of Maco Clothing
Corporation for union dues deducted from their wages
on our behalf.
WE WILL NOT in any like or related manner restrain
or coerce employees of Maco Clothing Corporation or
any other employer in the exercise of their rights
guaranteed in Section 7 of the Act.
LOCAL 841,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS
OF AMERICA
(Labor Organization)
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 members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 20th Floor,
John F . Kennedy Federal Building , Cambridge and New
Sudbury Streets , Boston , Massachusetts 02203, Telephone
223-3300.