Parisian Manicure Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 203 (N.L.R.B. 1981)

PARISIAN MANICURE MFG. CO.
Parisian Manicure Mfg. Co., Inc. and its alter ego
Allure Marketing Corp., and James V. Nucito
and Roseanne Nucito, Individuals and Plastic
Moulders' and Novelty Workers Union, Local
132, I.L.G.W.U. Case 2-CA-17593
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JNKINS, AND
ZIMMERMAN
Upon a charge and amended charges filed on
October 14 and 28 and November 14, 1980, respec-
tively, by Plastic Moulders' and Novelty Workers
Union, Local 132, I.L.G.W.U., herein called the
Union, and duly served on Parisian Manicure Mfg.
Co., Inc. and its alter ego Allure Marketing Corp.,
and James V. Nucito and Roseanne Nucito, indi-
viduals, herein collectively called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 2,
issued a complaint and notice of hearing on De-
cember 9, 1980, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Sections 8(a)(5) and (1) and 8(d)
and Section 2(6) and (7) of the National Labor Re-
lations Act, as amended. Copies of the charges and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent is
now and has been at all material times a member of
the Plastic & Metal Products Manufacturers Asso-
ciation, Inc. (herein the Association), and that by
virtue of such membership the Union is the exclu-
sive representative of certain of Respondent's em-
ployees in a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act,' and that Respondent violated Sec-
tions 8(a)(1) and (5) and 8(d) by repudiating the
current collective-bargaining agreement between
the Union and the Association, withdrawing recog-
nition of the Union, and unilaterally changing exist-
ing terms and conditions of employment of its em-
ployees in the appropriate unit by refusing to abide
by the collective-bargaining agreement regarding
payment of health, welfare, and retirement contri-
butions, remittance of union dues and initiation
fees, and payment of wage increases. By letter
dated December 13, 1980, Roseanne Nucito, on
behalf of Respondent Allure, stated: "We Deny the
I The unit, as stated in the complaint, is:
All workers employed b members of the Association .. excepting
only office help, salesmen. supervisor employees and watchmen
258 NLRB No. 24
allegations stated in the notice you sent us. Please
set the date for the hearing."
On May 21, 1981, counsel for the General Coun-
sel filed directly with the Board a "Motion for
Summary Judgment and Issuance of Decision and
Order" based on Respondent's failure to file a suffi-
cient answer as required by Section 102.20 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended. Subsequently, on June
1, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint specifically states that unless an
answer is filed within 10 days of service thereof
"all of the allegations in the Complaint shall be
deemed to be admitted to be true and shall be so
found by the Board." Further, according to the un-
controverted allegations of the Motion for Sum-
mary Judgment, Board agents notified Respondent
on several occasions that Nucito's December 13
letter was not an adequate answer, that Respondent
has specifically to admit or deny each allegation in
the complaint, and that, if Respondent did not file
an answer or request an extension of time to do so,
counsel for the General Counsel would file a
Motion for Summary Judgment. Respondent has
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not filed any further answer, nor has it requested
an extension of time within which to do so.
Respondent's December 13 letter, stating that
"We Deny the allegations stated in the notice you
sent us," does not constitute a sufficient answer
under Section 102.20.2 In view of Respondent's
failure to file an answer which comports with the
Board's Rules and Regulations, and as no other
good cause has been shown therefor, the allega-
tions of the complaint are deemed to be admitted
to be true and are so found by the Board, and the
General Counsel's Motion for Summary Judgment
is granted.
On the basis of the entire record. the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Parisian Manicure Mfg. Co., Inc., a New York
corporation with an office and place of business in
New York City, was at all material times herein
until on or about September 4, 1980, engaged in
the manufacture and nonretail sale of ladies' emory
boards, manicure sticks, and related products. An-
nually, in the course and conduct of its business op-
erations, Parisian sold directly to firms located out-
side the State of New York finished products and
materials valued in excess of $50,000.
Since on or about September 4, 1980, Allure
Marketing Corp., a New York corporation with an
office and place of business in New York City, has
been and is now engaged in the manufacture and
nonretail sale of ladies' emory boards, manicure
sticks, and related products. Based on its operations
since September 4, 1980, Allure, in the course and
conduct of its business operations, will annually sell
and distribute directly to firms located outside the
State of New York finished products and materials
valued in excess of $50,000. At all times material
herein, Parisian and Allure have been affiliated
business enterprises with common officers, direc-
tors, management, and supervision, have formulat-
ed and administered a common labor policy affect-
ing the employees of said operations, have shared
common premises and facilities, and have inter-
changed personnel with each other. At all material
times, Respondents James and Roseanne Nucito
have been sole stockholders and principals of Pari-
sian and Allure, respectively, and have exercised
substantial day-to-day control over the labor rela-
tions and business operations of the respective cor-
porate Respondents.
2 See 40 and 7 United Super. Inc. d/b/a United Super, 256 NLRB 1186
(1981); Lloyd Laundry & Dry Ceaning, 250 NLRI 1369 (1980)
We find, on the basis of the foregoing, that
Allure is, and has been since September 4, 1980, an
alter ego to Parisian, that Parisian and Allure con-
stitute a single employer within the meaning of the
Act, and that Respondent is and has been at all
times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Plastic Moulders' and Novelty Workers Union,
Local 132, I.L.G.W.U., is a labor organization
within the meaning of Section 2(5) of the Act.
iI1. THE UNFAIR LABOR PRACTICES
A. The Unit
The Plastic & Metal Products Manufacturers As-
sociation, Inc., is an association composed of em-
ployers located in the city and State of New York
which are engaged in the business of manufactur-
ing and selling, inter alia, ladies' manicure items
and related products. The Association exists for the
purpose, inter alia, of representing its employer-
members in negotiating and administering collec-
tive-bargaining agreements with the Union. Re-
spondent, at all material times has been, and is
now, an employer-member of the Association.
The following employees constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All workers employed by members of the As-
sociation . . . excepting only office help, sales-
men, supervisory employees and watchmen.
B. The Representative Status of the Union
The Union is now, and has been at all material
times, the exclusive bargaining representative of
the employees in the above-described unit within
the meaning of Section 9(a) of the Act and the
Union has been recognized as such representative
by Respondent. Such recognition has been em-
bodied in successive collective-bargaining agree-
ments, the most recent of which is effective by its
terms for the period July 1, 1979, through June 30,
1982.
C. The Violations
Respondent has unilaterally changed existing
terms and conditions of employment of its employ-
ees in the unit described above, has repudiated the
collective-bargaining process, and has unilaterally
withdrawn recognition of the Union by: Since on
or about April 16, 1980, failing and refusing to
204
PARISIAN MANICURE MFG. CO.
make health, welfare, and retirement fund contribu-
tions; since on or about July 1, 1980, failing and re-
fusing to pay wage increases; and since on or about
September 4, 1980, failing to withhold union dues
and initiation fees from the wages of its employees,
all as required by the collective-bargaining agree-
ment described above; and since in or about Sep-
tember 1980 notifying its employees that they were
no longer represented by the Union.
Accordingly, we find that by the aforesaid con-
duct Respondent has failed and refused, and is now
failing and refusing, to bargain collectively with
the Union as the exclusive representative of its em-
ployees in the appropriate unit. By such conduct,
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Sec-
tions 8(a)(1) and (5) and 8(d) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and (1) and 8(d) of the
Act, we shall order that it cease and desist there-
from and take certain affirmative action designed
to effectuate the policies of the Act.
Such affirmative action shall include that Re-
spondent recognize and deal with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit by honoring the collective-
bargaining agreement executed on July 1, 1979, in
all its terms.
Additionally, we have found that Respondent
has made unilateral changes in certain terms and
conditions of employment in violation of Section
8(a)(5) and (1) of the Act. In order to dissipate the
effect of those unfair labor practices, we shall
order Respondent to make whole its employees by
making the required health, welfare, and retirement
fund contributions that it has failed to pay since
April 16, 1980,3 paying the wage increases it has
3 Contributions owing the Union's employee benefit funds shall be
computed in the manner set forth in Merryweather Optical Company. 240
NLRB 1213, 1216, fn. 7 (1979)
failed to pay since July 1, 1980, and remitting to
the Union the dues and initiation fees it has failed
to withhold from its employees' paychecks since
September 4, 1980, plus interest on the wage in-
creases and dues and initiation fees as prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). 4
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Parisian Manicure Mfg. Co., Inc. and its alter
ego Allure Marketing Corp. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Plastic Moulders' and Novelty Workers
Union, Local 132, I.L.G.W.U., is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Plastic & Metal Products Manufacturers
Association, Inc., an association composed of em-
ployers located in the city and State of New York
which are engaged in the business of manufactur-
ing and selling ladies' manicure items and related
products, exists for the purpose, inter alia, of repre-
senting its employer-members in negotiating and
administering collective-bargaining agreements
with the Union.
4. Respondent at all material times has been, and
is now, an employer-member of the Association.
5. All workers employed by members of the As-
sociation . . . excepting only office help, salesmen,
supervisory employees and watchmen, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
6. At all times material herein, the above-named
labor organization has been and now is the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
7. By unilaterally failing and refusing: To make
health, welfare, and retirement fund contributions
since on or about April 16, 1980; to pay wage in-
creases to its employees since on or about July 1,
1980; and to withhold union dues and initiation fees
from its employees' wages since on or about Sep-
tember 4, 1980, all as required by its collective-bar-
gaining agreement with the Union, and by notify-
ing its employees, in or about September 1980, that
they were no longer represented by the Union, Re-
spondent has engaged in and is engaging in unfair
I See Ogle Protection Service. Inc.. and Jamc. L. Ogle, 183 NLRB 682.
683 (1970); and ee, generally. Isis Plumbing & ellating Co., 138 NLRB
716 (1962).
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices within the meaning of Sections
8(a)(l) and (5) and 8(d) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Parisian Manicure Mfg. Co., Inc. and its alter ego
Allure Marketing Corp., New York, New York, its
officers, agents, successors, and assigns, and James
V. Nucito and Roseanne Nucito, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the
Union as the exclusive bargaining representative of
its employees in the following appropriate unit:
All workers employed by members of the As-
sociation . . . excepting only office help, sales-
men, supervisory employees and watchmen.
(b) Failing and refusing to make health, welfare,
and retirement fund contributions, to pay wage in-
creases, and to withhold union dues and initiation
fees from its employees' wages, all as required by
its collective-bargaining agreement with the Union.
(c) Notifying its employees that they are no
longer represented by the Union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Recognize and bargain with the Union as the
exclusive representative of its employees in the
aforesaid appropriate unit and honor the collective-
bargaining agreement executed on July 1, 1979, in
all its terms.
(b) Make whole its employees, in the manner set
forth in the section of this Decision entitled "The
Remedy," by making the required health, welfare,
and retirement fund contributions it has failed to
pay since April 16, 1980, by paying to employees
any wage increases it has failed to pay since July 1,
1980, plus interest, and by remitting to the Union
the dues and initiation fees it has failed to withhold
from its employees' pay since September 4, 1980,
plus interest, all as required by its collective-bar-
gaining agreement with the Union.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its New York, New York, place of
business copies of the attached notice marked "Ap-
pendix." 5 Copies of said notice, on forms provided
by the Regional Director for Region 2, after being
duly signed by Respondent's representative, shall
be posted by Respondent 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 by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Plastic Moulders' and Novelty Workers
Union, Local 132, I.L.G.W.U., as the exclusive
representative of our employees in the follow-
ing bargaining unit:
All workers employed by members of the
Association . . . excepting only office help,
salesmen, supervisory employees and watch-
men.
WE WILL NOT unilaterally change existing
terms and conditions of employment of our
employees in the above-described unit by fail-
ing and refusing to make health, welfare, and
retirement fund contributions; pay our employ-
ees wage increases; and withhold union dues
and initiation fees from our employees' wages,
all as required by our collective-bargaining
agreement with the Union.
WE WILL NOT notify our employees that
they are no longer represented by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
206
PARISIAN MANICURE MFG. CO.
WE WILL recognize and bargain with the
Union as the exclusive representative of our
employees in the above-described unit and
honor the collective-bargaining agreement ex-
ecuted on July 1, 1979, in all its terms.
WE WILL make whole our employees by
making the health, welfare, and retirement
fund contributions we have failed to pay since
April 16, 1980; paying our employees any
wage increases that we have failed to pay
since July 1, 1980, plus interest; and remitting
to the Union the dues and initiation fees we
have failed to withhold from our employees'
pay since September 4, 1980, plus interest, all
as required by our collective-bargaining agree-
ment with the Union.
PARISIAN MANICURE MFG. CO., INC.
AND ITS ALTER EGO ALLURE MAR-
KETING CORP., AND JAMES V.
NUCITO AND ROSEANNE NUCITO, IN-
DIVIDUALS
207