Il Progresso Italo Americano Publishing Co., Inc.

270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II Progresso Italo Amencano Publishing Company, Inc. and Sedint S.P.A., a Single Employer, and its alter ego Sedint U.S.A., and American Multi Media, and Giovanni Pinto and Maria Theresa Mercurio Pinto and Newspaper Guild of New York, Local No. 3 of The Newspaper Guild, AFL-CIO and New York Italian Typographical Union No. 261. Cases 22-CA-15571 and 22- CA-15635 July 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On July 12, 1989, Administrative Law Judge Joel P Biblowitz issued the attached decision Re- spondent Il Progresso Italo Amencano Publishing Company, Inc (II Progresso) filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions 1 and bnef and has decided to affirm the judge's rulings, findings, 2 and conclusions as modified and to adopt the recom- mended Order as modified and set forth in full below 1 We find no ment to Ii Progresso's exception that the judge improperly asserted jurisdiction over Sedmt S P A (SPA), an Italian corporation It is well established that the Board's statutory jurisdic- tion encompasses foreign employers doing business ' No exceptions were filed to the following findings of the judge (1) the Respondents violated Sec 8(a)(1) of the Act by threatening employ- ees with job loss and plant closure because of their union membership and support, (2) the Respondents violated Sec 8(a)(3) and (1) of the Act by (a) transferring employee Javorsky to a lower paying position and laying off employees Cluom, Mian, Pam', and Vito Taormina because of their union and protected concerted activities, and (b) closing its Emer- son, New Jersey operation and terminating its employees who were union members, and reopening and refusing to hire the former employees at its new location because of their union membership, (3) the Respond- ents violated Sec 8(a)(5) and (1) of the Act by (a) closing the Emerson facility and reopening as a nonunion facility in Long Island City, (b) fail- ing to transmit to the Unions membership dues and pension and benefit fund contributions, (c) refusing to provide information, and (d) bypassing the Unions by soliciting employees to abandon the Unions' bargaining de- mands and to enter into individual employment contracts, and (4) neither Giovanni Pinto nor Maria Theresa Mercurio Pinto are alter egos of the other Respondents, nor are they individually liable for the unfair labor practices committed 2 The Respondent II Progresso has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In particular we have examined the judge's dis- crediting of the testimony of Victor Pmeyro and find that the judge's de- termination in this regard as documented in his decision is amply support- ed by the record within the territorial United States Great Lakes Dredge & Dock Go, 240 NLRB 197, 199 (1979), State Bank of India, 229 NLRB 838, 841 (1977), affd 808 F 2d 526 (7th Or 1986) Such a finding is established as to SPA based on the judge's finding that SPA and Il Progresso constitute a single em- , ployer The Board's jurisdiction as to II Progresso is not in dispute The Board's jurisdiction is proper- ly asserted over two corporate entities found to be a single employer, where one of the entities meets the Board's jurisdictional criteria 3 See Marysville Travelodge, 233 NLRB 527, 529 (1977), enfd sub nom NLRB v Cofer, 637 F 2d 1309 (9th Cir 1981), HDC, Inc, 218 NLRB 316 (1975) 4 2 We agree with the judge that Il Progresso and SPA constitute a single employer In so conclud- ing, we note, in addition to the factors relied on by the judge, the critical role played by Giovanni Pinto, SPA's consultant to Ii Progresso The evi- dence establishes that Pinto effectively controlled Ii Progresso's operations Pinto controlled editorial policy, dispensed assignments to journalists, direct- ed the hiring of employees, proposed changes in the format of the newspaper, held meetings with all employees in which he requested wage reductions, made a similar request in a private meeting with union officials, was introduced to employees as the boss, and was viewed as such by the employees 5 Additionally, Pinto was cited in a meeting with union officials as the guarantor that required pay- ments would be made, and he appears to have been the original architect of closing II Progresso's oper- ation in Emerson, New Jersey, and moving it to Long Island City Pmto discussed such an eventu- ality commencing in 1986 and directed Leopoldo DeRosa, the assistant general manager of Ii Progresso, to visit several locations in Long Island City and to report to Pinto on the results of the visit The direct control exercised by Pinto, SPA's representative, over Ii Progresso's operations tran- scends any mere consultative role 6 and establishes ' In finding that jurisdiction was properly asserted over SPA, we do not rely on the judge's finding that SPA has an Independent physical presence in the United States sufficient to Invoke the Board's jurisdiction 4 We also find mentless II Progresso's exception that proper service of process was not made on SPA As the judge noted, valid service of proc- ess was made on the other Respondents found to constitute a single em- ployer with, and alter ego of, SPA Mid-Hudson Leather Goods Co. 291 NLRB 449, 453 (1988), G W Truck, 240 NLRB 333, 334-335 (1979) 5 We note also that Pinto stayed in regular telephone contact with II Progresso dunng the periods he spent in Italy 6 This is clearly expressed in a letter written to the chairman of SPA by II Progresso's vice president and general manager, which states in per- tinent part If the present system of management is to continue, where Prof Pinto is giving company directives and is implementing decisions that have a financial effect on II Progresso, he will have to be ap- pointed by the Board to a role that officially assumes responsibility for the company 299 NLRB No 33 IL PROGRESSO ITALO AMERICANO PUBLISHING CO 271 the lack of the arm's-length relationship found among unintegrated companies See Emsing's Su- permarket, 284 NLRB 302 (1987), enfd 872 F 2d 1279 (7th Cir 1989) (the fundamental inquiry in de- termining single-employer status is whether there exists overall control of cntical matters at the policy level) 3 In agreeing with the judge that SPA, Sedmt U S A (USA), and American Multi Media (AMM) constitute a single employer, we note, in addition to the factors cited by the judge, the following fac- tors, which indicate the lack of an arm's-length re- lationship among these companies (1) USA made numerous payments on behalf of AMM and billed SPA for these amounts, (2) Pinto played a focal role at USA as SPA's "consultant" and shaped edi- torial policy at AMM,7 and (3) at the suggestion of Victor Pmeyro, the president of USA, SPA trans- ferred to USA the composing work previously per- formed by AMM, and AMM's composing room su- pervisor and several employees in that department became employees of USA 8 4 We also agree with the judge that USA and AMM are alter egos of Ii Progresso and SPA In so concluding, we note, m addition to the factors relied on by the judge, that (1) the customers of the newspaper remained the same, in that SPA re- tained the paper's subscription list when it began publishing from Long Island City, (2) furniture, computers, and archives were moved from Il Progresso's Emerson location to the Long Island City offices of USA, with the approval of SPA, (3) the several instances of overlapping management among these compames, 9 and (4) the numerous ex- penditures by USA on behalf of both Ii Progresso and AMM, which were billed to SPA Further, we find that the numerous antiunion statements made by Pinto and Pmeyro, and their statements that the paper would close and reopen elsewhere, are clear evidence of union animus 7 We note that DeLuca, who was in charge at AMM, testified that he would call Pinto when AMM had financial difficulties 9 We do not rely, however, on the judge's assumption that (1) Pinto played an active role in labor relations at AMM because "there appears to be a vacuum at AMM regarding labor relations," and (2) the fact that AMM was incorporated by Nancy Dell'Oho (counsel to SPA and a member of the law firm of the chairman of SPA) indicates that AMM is either owned or controlled by SPA 9 Pmeyro, the executive vice president of H Progresso, became the president of USA Francisco DeLuca, the promotions manager of II Progresso, was employed by USA and was active in setting up the initial operation in Long Island City, and thereafter was named treasurer of AMM and put in charge of day-to-day operations at AMM by SPA's chairman, Lupoi Salvatore Taormina, managing editor of II Progresso, became the first editor-in-chief for AMM Additionally, Pinto played his pivotal role as SPA's consultant first to II Progresso and thereafter to USA " For example, the judge credited testimony that Pmeyro stated sever- al times that the Union was going too far and it could be deadly for them, that they could shut down and move some place else, and that This animus supports the judge's finding that the establishment of USA and AMM and the publica- tion of "Il Progresso Italo Amencano" from Long Island City as a nonunion operation was a mere technical change in the structure and identity of the employing entity to evade responsibilities under the Act Mid-Hudson Leather Goods, supra at 453 Additionally, although the evidence does not es- tablish SPA owned AMM, we are persuaded that SPA maintained substantial control over AMM In this regard, we note first that DeLuca was put in overall charge of AMM, and was asked to serve as treasurer of AMM, by the chairman of SPA, Lupo', and by Dell'Oho, Lupoi's legal associate and counsel to SPA 1 " Second, DeLuca testified that SPA was the sole source of AMM's income Third, Lupoi transferred the composing work pre- viously performed by AMM to USA and concomi- tantly transferred AMM's composing room super- visor and several employees to USA Fourth, AMM existed m essence to provide editonal serv- ices for SPA 12 The appointment by SPA's chair- man of DeLuca as head of AMM, AMM's total fi- nancial dependence on SPA, and SPA's unilateral transfer to its wholly owned subsidiary of a portion of AMM's operation clearly establish that AMM "virtually exists at the sufferance" of SPA See McAllister Bros, 278 NLRB 601, 616-617 (1986), enfd 819 F 2d 439 (4th Cir 1987), Fugazy Conti- nental Corp, 265 NLRB 1301, 1302-1303 (1982), enfd 725 F 2d 1416 (D C Cir 1984) ORDER' 3 The National Labor Relations Board adopts the recommended Order of the administrative law pretty soon things would change Pinto's policy regarding the Unions was described as "attack, attack, attack" DeLuca testified that he has never met or dealt with the titular president of AMM, Michael Horne 72 The record indicates that AMM had no clients other than SPA IS We shall modify the remedy set forth by the judge to require the Respondents to execute a collective-bargaining agreement with Local No 3 of the Newspaper Guild of New York, AFL-CIO, containing the terms and conditions agreed to at a negotiating session on February 2, 1988, and to apply retroactively the terms and conditions of that agree- ment, and to make employees whole for any loss of earnings and other benefits suffered as a result of the failure to execute and abide by that agreement, in the manner described in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cif 1971), with Interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) We shall fur- ther modify the remedy to provide that the Respondents transmit to the Guild the dues payments they unlawfully failed to make, with Interest in accordance with New Horizons for the Retarded, supra We shall also re- quire that the Respondents make pension and benefit fund payments in the manner prescribed in Merryweather Optical Co, 240 NLRB 1213 fn 7 (1979), and reimburse employees for any expenses ensuing from the un- lawful failure to make those payments as set forth in Kraft Plumbing d Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981) We shall also order the Respondents to remove from their records any reference to the unlawful layoffs and transfer and to notify the em- ployees in writing that this had been done and that these actions will not be used against them in any way 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD judge as modified and set forth in full below and orders that the Respondents, Ii Progresso Italo Amencano Publishing Company, Inc , Emerson, New Jersey, Sedmt S P A, Rome, Italy, and their alter egos, Respondents Sedmt U S A and Ameri- can Multi Media, Long Island City, New York, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees with job loss or plant closure because of their union membership and ac- tivities (b) Transferring, demoting, laying off, terminat- ing, or otherwise discriminating against employees due to their actions in support of the Unions, or other protected concerted activity (c) Closing its business operation and reopening the same business elsewhere and refusing to employ its former employees at the new location because of their union membership (d) Failing and refusing to supply the Unions with requested information that is necessary and relevant to their function as collective-bargaining representatives of Respondents' employees (e) Failing and refusing to transmit dues pay- ments, pension payments, and other fund payments, that it is obligated to pay pursuant to its collective- bargaining agreements with the Unions (0 Failing and refusing to execute a collective- bargaining agreement after it had reached full agreement with the Guild on the terms and condi- tions of such agreement (g) Bypassing the Unions by soliciting its em- ployees to abandon the Unions' bargaining de- mands (h) Bypassing the Unions by soliciting its em- ployees to enter into individual employment con- tracts and to abandon the Unions (0 In any like or related manner mterfenng with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer all employees who were terminated when the Respondents closed their Emerson, New Jersey facility about June 30, 1988, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other nghts or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, in the manner set forth in the remedy section of the judge's decision (b) Recognize and, on request, bargain with the Newspaper Guild of New York, Local No 3 of the Newspaper Guild, AFL-CIO (Guild) and the New York Italian Typographical Union No 261 (Typo- graphical Union) as the collective-bargaining repre- sentatives of its employees (c) Execute, on request, a collective-bargaining agreement with the Guild containing the terms and conditions agreed to at a negotiating session with the Guild on February 2, 1988 (d) Apply retroactively, the terms and conditions of the collective-bargaining agreement to which the Respondents and the Guild agreed, and make employees whole for any loss of earnings and other benefits suffered as a result of their failure to exe- cute and abide by that agreement in the manner set forth in the remedy section of the judge's decision as modified (e) Offer Riccardo Chiom, Vito Taormina, Marzio Mian, and Antonio Volpe Pasim immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision (0 Make whole Amalia Javorsky for any loss of earnings and other benefits she may have suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge's decision (g) Remove from its files any reference to the unlawful lay off of Riccardo Chioni, Vito Taor- mina, Marzio Mian, and Antonio Volpe Pasim and the unlawful transfer of Amalia Javorsky, and notify these employees in writing that this has been done and that these actions will not be used against them in any way (h) Transmit to the Guild the dues that it deduct- ed and failed to transmit since about September 25, 1987, plus interest (i) Make all required pension fund payments pur- suant to the terms of the collective-bargaining agreement with the Guild that the Respondents un- lawfully failed to make since about October 1, 1987, in the manner set forth in the remedy as modified (j) Make all required fund payments pursuant to the terms of the collective-bargaining agreement with the Typographical Union that the Respond- ents unlawfully failed to make since about August 1987, in the manner set forth in the remedy as modified (k) Make whole employees for any losses suf- fered as a result of the Respondents' failure to make required pension fund and other fund pay- IL PROGRESSO ITALO AMERICANO PUBLISHING CO 273 ments, in the manner set forth in the remedy as modified (1) Furnish the Unions, on request, information that is necessary and relevant to their function as collective-bargaining representatives of Respond- ents' employees (m) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (n) Post at its Long Island City, New York facil- ity copies of the attached notice marked "Appen- dix " 14 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondents' authorized representa- tive, shall be posted by the Respondents immedi- ately upon receipt and mamtamed for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material (o) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted By Order of The Na- tional Labor Relations Board" shall read "Posted Pursuant To a Judg- ment of The United States Court of Appeals Enforcing An Order of The National Labor Relations Board" APPENDIX NOTICE To EmpLoyEESS POSTED By ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT threaten our employees with job loss or plant closure due to their membership in or activities on behalf of the Newspaper Guild of New York, Local No 3 of the Newspaper Guild, AFL-CIO (Guild), or the New York Italian Typo- graphical Union No 261 (Typographical Union) or any other labor organization WE WILL NOT transfer, demote, lay off, termi- nate, or otherwise discriminate against our employ- ees in retaliation for their activities on behalf of the Guild or the Typographical Union, or any other labor organization WE WILL NOT close our operations at one loca- tion and reopen them at another location in retalia- tion for our employees' membership in or activities on behalf of the Guild or the Typographical Union, or any other labor organization WE WILL NOT refuse to bargain in good faith with the Guild or the Typographical Union by fail- ing and refusing to make all required dues and fund payments WE WILL NOT refuse to bargain in good faith with the Guild or the Typographical Union by so- liciting our employees to abandon the Unions' bar- gaining demands or by soliciting our employees to enter into individual employment contracts, con- taining new terms and conditions of employment, thereby bypassing the Unions WE WILL NOT fail to execute a collective-bar- gaining agreement with a collective-bargaining rep- resentative of our employees at a time when we have agreed to all the terms and conditions of the agreement WE WILL NOT fail and refuse to provide to the Unions requested information that is necessary and relevant to their role as collective-bargaining repre- sentatives of our employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Riccardo Chiom, Marzio Mian, Vito Taormina, Antonio Volpe Pasim, and all em- ployees who were terminated when we ceased pub- lishing and closed our Emerson, New Jersey facili- ty about June 30, 1988, immediate and full rein- statement to their former jobs or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their terminations, less any net interim earnings, plus interest WE WILL make Amalia Javorsky whole for any loss of earnings and other benefits, plus interest, she suffered as a result of our discrimination against her 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL notify Riccardo Chiom, Marzio Mian, Vito Taormina, Antonio Volpe Pasim, and Amalia Javorsky that we have removed from our files any reference to our actions against them which have been found to be unfair labor practices, and that these actions will not be used against them in any way WE WILL recognize and bargain with the Guild and the Typographical Union as the collective-bar- gaining representatives of our employees at our Long Island City, New York facility WE WILL remit to the Guild the dues we deduct- ed from our employees' pay but failed to transmit to the Guild since about September 25, 1987, plus interest WE WILL make all required pension fund pay- ments pursuant to the terms of our collective-bar- gaining agreement with the Guild that we unlaw- fully failed to pay since about October 1, 1987 WE WILL make all required fund payments pur- suant to the terms of our collective-bargaining agreement with the Typographical Union that we failed to pay since about August 1987 WE WILL make employees whole for any losses suffered as a result of our failure to make required pension fund and other fund payments, plus inter- est WE WILL, on request, execute a collective-bar- gaining agreement with the Guild containing the terms and conditions agreed to at a negotiating ses- sion with the Guild on February 2, 1988 WE WILL apply retroactively the terms and con- ditions of the collective-bargaining agreement to which we and the Guild agreed, and WE will make you whole with mterest for any loss of earnings and other benefits resulting from our failure to exe- cute and abide by that agreement WE WILL, on request, furnish the Unions infor- mation that is necessary and relevant to their func- tion as collective-bargaining representatives of our employees IL PROGRESSO ITALO AMERICANO PUBLISHING COMPANY, INC , SEDINT S PA, SEDINT US A, AND AMERI- CAN MULTI MEDIA William F Grant, Esq , for the General Counsel Elliot J Mandel, Esq (Kaufman, Franlc, Naness, Schnei- der & Rosenswezg), for Respondent Sedmt SPA, Sedint U S A, Giovanni Pinto, Maria Theresa, Mercuno Pinto and American Multi Media Peter M Napohtano, Esq , for II Progresso Italo Ameri- can° Publishing Company, Inc Irwin Bluestein, Esq (Vladeck, Waldman, Elias & Engel- hard, P C ), for Newspaper Guild Andrew S Hoffman, Esq (Wiseman, Hoffman & Walzer, Esqs ), for Typographical Union DECISION STATEMENT OF THE CASE JOEL P BIBLOWITZ, Administrative Law Judge This case involved 11 days of hearing in Newark, New Jersey, and New York, New York, commencing Decem- ber 8, 1988 1 and concluding February 6, 1989 The unfair labor practice charge, and the first, second, and third amended charges in Case 22-CA-15571 were filed on February 25, March 18, July 14, and October 6 by Newspaper Guild of New York, Local No 3 of the Newspaper Guild, AFL-CIO (the Guild) The unfair labor practice charge, and the first and second amended charges in Case 22-CA-15635 were filed on March 29, August 9, and October 11 by New York Italian Typo- graphical Union No 261 (the Typographical Union) The amended consolidated complaint, which issued Oc- tober 19, was further amended pursuant to a motion to amend complaint, dated January 4, 1989, alleges (a) That Respondent, Il Progresso halo Amencano Publishing Company, Inc (II Progresso), and Respond- ent Sedint SPA (SPA), constitute a single-integrated business enterprise and a single employer within the meaning of the Act (b) Respondents Giovanni Pinto (Pinto) and Mana Theresa Mercurio Pinto (Maria Pinto) are alter egos of Ii Progresso, USA and SPA and are individually liable for their unfair labor practices (c) SPA, Respondent Sedmt USA (USA), and Re- spondent American Multi Media (AMM), constitute a single-integrated business enterprise and a single employ- er within the meaning of the Act (d) AMM, and USA are alter egos of II Progresso and SPA The substantive allegations of the amended complaint are as follows (a) In about April or May, at its Emerson, New Jersey facility, II Progresso, by Victor Pmeyro, its executive vice president, threatened its employees with job loss and plant closure because of their membership in, and ac- tivities on behalf of, the Guild and the Typographical Union (b) In about November 1987, II Progresso transferred employee Amalia Javorsky to a lower paying position, and on about January 11, Il Progresso laid off employees Riccardo Chiom, Vito Taormina, Marzio Mian, and An- tonio Volpe Pasim because these employees joined or supported the Guild, or because they engaged in other protected concerted activities (c) Since on or about September 25, 1987, Il Progresso has failed to remit to the Guild dues payments deducted from the pay of its employees who were members of the Guild and had authorized said deductions (d) Since about September 25, 1987 (for the Guild) and about September 29, 1987 (for the Typographical Union), II Progresso has unilaterally ceased making all benefit fund contributions (a mandatory subject of bargaining) to 'Unless indicated otherwise, all dates referred to here relate to the year 1988 IL PROGRESSO ITALO AMERICANO PUBLISHING CO 275 the Guild and the Typographical Union on behalf of their members/employees (e) Since about February 2, Il Progresso has failed to execute a written contract embodying the terms and con- ditions of employment agreed to between it and the Guild (f) On about March 14, Il Progresso repudiated its col- lective-bargammg agreements with the Guild and the Typographical Union (g) Since about March 14, Il Progresso has withdrawn its recognition of the Guild and the Typographical Union as the representative of certain of its employees and has refused to abide by the terms and conditions of employment of its contract with the Guild and the Typo- graphical Union (h) On about June 30, Il Progresso ceased publishing at its Emerson facility and terminated all its employees who were represented by the Guild and the Typographi- cal Union, because the employees joined and supported the Unions and engaged in other protected concerted ac- tivities (i) Since about July 1, USA has refused to hire the em- ployees referred to above at its new Long Island City fa- cility because they joined or supported the Unions or en- gaged in other protected concerted activities (0 In about April or May, II Progresso, by Pmeyro and Louis Dab, its advertising director, bypassed the unions by soliciting its employees to abandon the Union's bargaining demands, thereby engaging in conduct de- signed to undermine the status of the Unions as their col- lective-bargaining representative (k) On about July 1 and 3, USA, by Pmeyro, and on about July 9 and 10, by Dab, bypassed the Unions by soliciting its employees to enter into individual employ- ment contracts containing new terms and conditions of employment, and by soliciting its employees to abandon their union membership (1) From January through June, II Progresso, by Pin- eyro, at meetings and negotiations, intentionally misrep- resented information concerning the ownership and con- trol of II Progresso to the Unions, thereby failing and re- fusing to bargain in good faith with them (m) Since about July 5, Il Progresso has failed and re- fused to provide the Unions with information they re- quested, information which is necessary for, and relevant to, the Union's performance of its function as collective- bargaining representative for certain of II Progresso's employees It is alleged that by the above activity, the Respond- ents have violated Section 8(a)(1), (3), and (5) of the Act I BACKGROUND For many years (and until June 20) Il Progresso, a New Jersey corporation, was the only Italian language daily newspaper in the United States Until that date, it was published at the Emerson, New Jersey facility and distributed primarily in the New York and New Jersey area In 1981 the family/foundation that owned the newspaper sold it to a group of Italian investors In 1985 all of these investors except for one (Dominick Scag- hone, 2 the president, who owned 5 percent of the stock) sold their interest in the newspaper to SPA, an Italian corporation For many years, the Guild has represented employees of Ii Progresso in the following unit office clerical em- ployees, translators, proofreaders, 1 photographers, jour- nalists, and managing editors The most recent written agreement between the parties was for the period Janu- ary 1, 1985, through December 31, 1986 At the expira- tion of that agreement, II Progresso continued to apply it to these employees' terms and conditions of employment No further written agreement was entered into between the parties, however, as stated supra, one of the allega- tions is that on February 2, the parties reached full and complete agreement, but Respondent refused to execute a contract containing these terms and conditions For many years, the Typographical Union has repre- sented the typesetters and composing room employees employed by Ii Progresso, the most recent agreement be- tween the parties is for the period January 1, 1985, to December 31, 1986 Subsequent attempts to negotiate a successor agreement were unsuccessful Scaglione was the president of II Progresso until 1986, at that time he was replaced by Giannantomo Rom who spent most of his time m Italy Pmeyro was originally the circulation director for Ii Progresso, in about March 1987 he was promoted to executive vice president At about this time, Andrea Mantmeo and Salvatore Taor- mina were managing editors, Francesco DeLuca was promotions manager, Louis Dabo was advertising direc- tor, and John Lee, of Lee Sexton & Company was the accountant Pinto was, officially, a consultant who spent about one-third of his time in this country at II Progresso His permanent residence was in Italy As dis- cussed more fully, supra, there was substantial testimony that his responsibilities at the paper were more significant than simply as a "consultant" Javorsky, a bargaining unit employee until the paper closed in July, was origi- nally assistant controller and became controller in 1987 In 1985 SPA purchased 95 percent of the stock of Il Progresso, in about 1987 the paper's masthead was trans- ferred to SPA, this was due to the Italian law that pro- vides for grants to Italian newspapers published abroad The amount of this grant is substantially greater when an Italian company, such as SPA, owns the paper's mast- head At that time, Rom became "Editor Responsible" for the paper, this is a position apparently dictated by Italian laws Maunzio Lupo', an attorney, is a sharehold- er and chairman of SPA, Maria Pinto, the wife of Nit% is also a shareholder and general administrator of SPA After the transfer of the masthead to SPA, II Progresso was published under printing and distribution agreements with SPA Allegedly, SPA was unhappy with the publication and had been threatening to end the agreement since late 1987 Finally, SPA cancelled the agreement on about June 30, 10 days after the paper's employees went out on strike On July 27, Il Progresso reappeared (II Progresso II), this time publishing from a 2 In about January, Scaglione sold his interest in the paper and relin- quished his position in the paper s operation 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Long Island City, County of Queens, State of New York location, as compared to the Emerson, New Jersey loca- tion it had previously published from In addition, the new operation was nonunion with Ii Progresso II sub- contracting the editorial work to AMM and the advertis- ing work to Advertising Venture International (AVI) Pregresso II was published by USA, wholly owned by SPA Maria Pinto was the original president and only di- rector of USA, Nancy Dell Oho, who is a member of Lupoes law firm in Italy and maintains an office at the New York law firm of Eaton & Van Winkle, was secre- tary-treasurer and Pinto was a consultant At the request of Lupoi, Pmeyro became president in July Salvatore Taormina, formerly the editor-in-Chief at Il Progresso, was the original editor of AMM, he was later replaced by Guiseppe Fumagalli Michael Horne was the presi- dent of AMM, Dell Oho was secretary, and Sherry Ritter of Lee Sexton & Company (also called the Office of John Lee) was the assistant treasurer Francisco Deluca, who was in overall charge of the operation, was also the treasurer, he had previously been employed at II Progresso Lee is, or was, the president of AVI and Louis Dab, who was in charge of advertising for Ii Progresso is presently employed by AVI in a similar ca- pacity II JURISDICTION Il Progresso admits that during the 12 months preced- ing July 1, it derived gross revenues in excess of $200,000, held membership in or subscribed to various interstate and international news services and advertised various nationally sold products I therefore find that it is an employer engaged m commerce within the meaning of Section 2(2), (6), and (7) of the Act Belleville Employ- ing Printers, 122 NLRB 350 (1958) III LABOR ORGANIZATION STATUS There being no dispute, I find that the Guild and the Typographical Union are each labor organizations within the meaning of Section 2(5) of the Act IV PINTO Professor Pinto, who did not testify, 3 is a key element in this matter, he was a consultant to both Ii Progresso and Il Progresso II through USA, and spent approxi- mately 30 percent of his time in the United States Re- spondent alleges that he was consultant solely for editori- al matters General Counsel alleges that Pinto played a major part m II Progresso's labor relations policies and The requests of counsel for Sedint, dated February 8 and 27, 1989, that the January 19, 1989 letter from Jacobsen to Lupo' and the Decem- ber 15 letter from Lupo' to Jacobsen be received Into evidence is granted and said exhibits shall be numbered Respondent Sedmt I9a and 19b Coun- sel for Sedmt's request, dated March 31, 1989, that the July 14 letter from Attorney Conneely to Attorney Bluestein be received is denied Apparently, the only service on Pinto occurred in November at a meeting between the parties to attempt to resolve their many differences Barry Lipton, president of the Guild was one of the union representatives present Pinto, Lupo' (Pinto's Italian attorney), Dell Olio and others were present on behalf of the different employers At the commencement of this meeting, Lipton handed Pinto a copy of the consolidated amended complaint because he "understood that he denied any knowledge that any complaint had been Issued even if he only spent 30 percent of his time in the United States, he was on the telephone on almost a daily basis with management representatives at the Emerson facility Numerous witnesses testified about Pinto, Mantmeo, editor of Ii Progresso, testified that Pinto initially came to the facility in 1985 and identified himself as General Consultant for SPA, he had his own office (the largest at the facility) Pinto spoke to Mantmeo about increasing the number of pages in the paper (which they did) cov- ering more stories involving Italians (individuals or com- panies), giving prizes to Italian Americans and other ideas to promote the paper among its constituency He participated in most of the editorial meetings when he was present and discussed which reporters to assign to particular stories as well as discussing the work being performed by the reporters He occasionally wrote edito- rials for the paper or designated articles that would appear in the paper In addition, Pinto spoke at meetings attended by all of Il Progresso's employees, but Man- tmeo never heard him discussing labor relations at those meetings On other occasions, he heard Pinto comment that the employees' salaries were too high and he expect- ed lower salaries and greater productivity in the next contract He did not see Pinto at the Emerson facility from January through June, but he continued to have regular phone conversationg with Taormma during this period Riccardo Chioni, who was employed by Ii Progresso as a reporter, testified that Pinto told him that he was the owner of the newspaper and gave him some assign- ments when he was present at the facility Antonio Volpe-Pasim, who was employed by Ii Progresso as a re- porter, testified that Pinto gave him some special assign- ments, such as interviewing foreign dignitaries and told him what questions to ask On some of these occasions, Pinto accompanied him on the interview On occasion, Pinto changed his articles Pas= testified "For me, he was my boss" Martino Rizzotti, a Guild chairman and reporter for II Progresso since 1981, testified that in about late December 1987, Pinto had a meeting with "everybody" at which he said that the company that handled their advertising had stolen their money and so they had a cash-flow problem He asked the employees to agree to a 5-percent reduction in salary or to waive the overtime premium rate Rizzotti told him that he would have to discuss such topics with Guild officials On January 7, Pinto asked Rizzotti, Massimo Jaus, as- signment editor, and Joseph Pantano, who was employed by Il Progresso and was president of the Typographical Union, to attend a private meeting with him At this meeting, Pinto again asked them if they would relinquish 5 percent of their pay or agree to waive premiums for overtime work They answered that they would not, that he should discuss that with the union representatives Jaus testified that Pinto gave him job assignments, Jaus felt uncomfortable with these assignments because Man- tmeo was the editor and Pinto was giving him assign- ments On occasion, Jaus explained this difficulty to Pinto and asked Pinto to first discuss it with Mantmeo, Pinto said "Listen, I am the owner of this company, so I do whatever I want If Mantmeo doesn't like it, it's too IL PROGRESSO ITALO AMERICAN° PUBLISHING CO 277 bad for him" Silvio Zucca, production manager and general foreman for Ii Progresso, testified that Guido Gaghano, who was vice president and general manager of Ii Progresso, introduced him to Pinto as "Come with me, I'm going to introduce you to the new boss" Leo- poldo DeRosa, whoge last position at II Progresso was assistant general manager, testified that Gagliano first in- troduced Pinto to him as "the one that will be running the company" Subsequently, he heard Pinto introduced as the consultant general and the publisher Pinto direct- ed DeRosa in hiring employees and played a major part in the paper's labor relations with the umons He in- formed DeRosa and others that he wanted givebacks from the unions, he expressed his strategy as "attack, attack, attack" He wanted givebacks on maternity leave, wages, vacation, and health benefits In about mid-1986, the paper's health insurance policy was cancelled for nonpayment, Pinto commented "Don't worry about it Maybe they'll walk off the job and shut down" Begin- ning in 1986, Pinto discussed the possibility of closing the paper in New Jersey and reopening operations in Long Island City and New York City, and DeRosa vis- ited different locations in that areas on behalf of II Progresso and reported the results of the visits to Pinto Scaglione testified that he first met Pinto about a year before SPA purchased Il Progresso At that time, Pinto asked him (then the president of II Progresso) whether the paper was for sale Subsequent to the sale, he was in- formed that Pinto was an advisor, representative or dele- gate of SPA At a shareholders' meeting of Ii Progresgo held in February 1987, Pinto was present with the proxy of SPA Pmeyro testified that Pinto was general consultant to Ii Progresso Pinto advised on editorial policy, for exam- ple what position the paper should take on a certain issue, and the layout of the paper, but not financial as- pects of the newspaper If he and Pinto disagreed on an issue, Pmeyro made the final decision Pinto never at- tended or played a role in collective-bargaining negotia- tions and never consulted with him on the subject Pm- eyro, who appeared very cooperative and forthright on direct examination, was argumentative and, often, unre- sponsive when questioned by General Counsel General Counsel referred to Pinto as the main contact between SPA and Ii Progresso, Pmeyro disagreed General Coun- sel then asked Q My question is, who from S P A Sedmt S P A, had responsibility to oversee the operations at Ii Progresso? I asked if you could name a person from Sedmt S P A who was in charge of looking after II Progresso? A I'm sorry, that question you should ask of someone else As Pmeyro was the top person running the everyday affairs at the paper, I interpret that answer as a refusal, rather than inability, to answer In answer to a subse- quent question on the same subject, Pmeyro testified "Evidently you are not aware of what my position was "Finally, Pmeyro testified that he mentioned some financial matters to Pinto and that Pinto would ask him, "in general," how the situation was Pinto attended man- agement meetings, but never gave directions on the edi- torial policy of the paper He testified "He never gave direct instructions to nobody All of his instructions were given through me" Pinto expressed to Pmeyro his dis- pleasure about the poor quality of the newspaper and the high absenteeism of the employees He testified that he doesn't know of SPA's financial arrangements with Pinto, but he does know that Pinto was paid no salary by II Progresso, rather the paper paid for his expenses while in the United States In this regard, they paid his bills for an apartment and a leased Mercedes Benz, which were used almost exclusively for him In 1988, the monthly rent Ii Progresso paid for Pinto's apartment was $3500, the monthly leasing charge for the automobile was $1023 By letter dated July 31, 1986, Gagliano wrote to Lupo', inter alia Since there is no direct link between Prof Pinto and Ii Progresso, I would find it very hard, in light of our financial predicament, to justify to an exam- ining party, the expenditure of well over $50 thou- sand in goods and services supplied to Prof Pinto during the last seven months As far as any auditor would be concerned, apartments and automobiles and Amex card charges would amount to personal income At the moment, I could be held personally responsible for un-paid income tax If the present system of management is to contin- ue, where Prof Pinto is giving company directives and is implementing decisions that have a financial effect on II Progresso, he will have to be appointed by the board to a role that officially assumes re- sponsibility for the company If Prof Pinto returns in such a capacity, and I receive official notification from you that such will be the case, the above problems are somewhat alleviated V THE CLOSING AND OTHER ALLEGATIONS The last collective-bargaining agreements between II Progresso and the Guild and the Typographical Union expired December 31, 1986, subsequent intermittent ne- gotiations were unsuccessful at arriving at new agree- ments It is undisputed that II Progresso has made no pension contribution to the Guild (as it is contractually obligated to do) since it made a payment to the Guild in May for the month of September 1987 No payments were therefore made for any portion of the period Octo- ber 1, 1987, through June 20 The parties stipulated that II Progresso made no payments to the Typographical Union's funds (as it was obligated to do) from August 1987 through June 20 The parties also stipulated that II Progresso failed to remit union dues to the Guild for the period September 25, 1987, through June 20 although said dues were deducted from active Guild employee- members As stated, supra, the last collective-bargaining agree- ment between II Progresso and the Guild and II Progresso and the Typographical Union expired on De- cember 31, 1986, although II Progresso continued to 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD abide by most of the provisions of these agreements, except for its refusal to remit dues or pay to the union funds as discussed, supra On November 18, 1987, the Guild employees of II Progresso had a meeting where they discussed the fact that they had gone almost a year without a new contract and other problems they were encountenng At this meeting, the members voted unani- mously to authonze a stnke against the paper Amaha Javorsky was in charge of Ii Progresso's ac- counting department from about April through Novem- ber 1987 Dunng this period, Pmeyro repeatedly asked her to resign from the Guild, but she refused She was one of the employees who voted on November 18, 1987, to authorize a strike against the paper 4 A few days later, Pmeyro called her into his office and told her that she would be transferred to the advertising department and Mananna Pisan() would take over her position 5 She was asked by General Counsel whether Pmeyro gave her a reason for the change and she answered, "no" When General Counsel asked Q In fact, he told you that he was doing it be- cause you voted to strike, didn't he'? A No I asked him, because I vote for the strike, and he told me, "No, I need somebody else in the accounting department" Q Mr Pmeyro informed you that due to your actions at the union meeting he was removing you from the accounting department and transfernng you to advertising Didn't he tell you that? A No, I asked him and he said, "Not for your action Because I need somebody else" But believe at that time it was for my action because I vote for the union, yes Javorsky was then shown a letter she wrote to the Guild on February 24, in the letter she states A few days after the meeting, Mr Pmeyro called me into his office and informed me that due to my actions at the union meeting, he was removing me from the accounting department and transferring me to the advertising department Javorsky testified that Pmeyro never specifically said that the change was due to her actions at the union meeting, but she "presumed" that was the reason, be- cause when she asked whether it was because of her vote at the union meeting, Pineyro simply shrugged his shoul- ders The next allegation, chronologically, is that Ii Progresso and the Guild reached full agreement on a new contract at a meeting held on February 2, but Ii Progresso subsequently reneged on the agreement About 15 negotiating sessions, beginning in early 1987, preceded this meeting Attorney John Canom, labor counsel for Ii Progresso since about 1981, was its pnncipal spokesman 4 Javorsky, who has been employed by II Progesso II as a bookkepper, was subpoenaed by General Counsel and was a somewhat uncooperative witness 5 In January, Pmeyro told her that she would be returned to her pnor position because Pisano couldn't handle It in these negotiations, also present for the paper at this meeting were Dabo and Pineyro Present for the Guild was Bill Montes (who did not testify), business agent for the Guild, together with employees Rizzotti and Jaus There were approximately six open issues at the begin- ning of this session, admittedly, agreement was reached on, at least, all but one of these issues The only issue in controversy was wages the General Counsel alleges that there was agreement on that issue, as well, at this meet- ing, and therefore full agreement was reached Pmeyro (and Ii Progresso) allege that there was a misunderstand- ing about the terms, and therefore no agreement was reached Sometime during this meeting, Pmeyro and Montes met separately from the rest of the participants After they returned, Canom proposed a 6-percent in- crease with only 3 percent of that retroactive to January 1, 1987, then a 5-percent increase on January 1, 1988, and another 5-percent increase January 1, 1989 Canom said that this proposal "compounded to 16 87 percent over the term of the contract and that I thought my client was giving far more money than he should but, the union, if they were wise, should accept the proposal "6 He testified, as well, that "at the end the union really didn't dispute the wage issue After I made the proposal, we concentrated on the other items" As to whether the Guild accepted his wage offer, he testified "They did not indicate disagreement" and, at the conclusion of the meeting, Montes, Jaus, and Rizzotti shook hands with Canom, Pmeyro and Dabo and said that they were happy that it was over Canom testified "I shook hands because it seemed to me that the negotiations had been initially concluded" He also testified "I had made an offer on behalf of the Company and at the end of the day the offer as revised had been accepted by the union" On the following day, Canom received a phone call from the mediator who told him that Pmeyro had called him and said that there was a serious misunderstanding He had never agreed to 16 87 percent, the paper only meant to offer 13 percent He said at subsequent meetings and dis- cussions with the Guild regarding this situation "Mr Montes' position was that he was willing to sit down and discuss further the difference between the 13 percent that the company said was the wage offer, and the 6, 5 and 5 that the union was saying was the wage offer" Howev- er, Montes "did say that it was Mr Lipton's (Barry Lipton, President of the Guild) position that there was an agreement on wages and there was nothing more to discuss with respect to that issue" He testified "Mr Lipton was consistent throughout, he never vaned from that position Pmeyro was questioned about this meeting by counsel for Ii Progresso He testified that Montes told him that unless they agreed upon a contract he would "be literal- ly fired from my job " On cross-examination, he testified "Not exactly fired he was going to be taken out of the negotiations" At their pnvate meeting on February 2, Montes asked him for 15 percent over 3 years-5 percent, 5 percent, and 5 percent Montes told Pmeyro "You know where I'm going to be sent after 6 He testified that he had previously discussed this offer with Pmegro IL PROGRESSO ITALO AMERICANO PUBLISHING CO 279 this meeting if I don't get something" Pmeyro said "I said, okay The only thing we can do is 3% for the year that went by, 5% and 5% That would make a gross 13 percent increase" Montes said that he wanted 15 per- cent—"to save his neck" Pmeyro said that he couldn't do that Montes then proposed that they receive 6 per- cent, 5 percent and 5 percent, but "instead of 6%, it's going to be three because we're going to take only half of the year" Pmeyro testified that he misunderstood Montes believing that "it was 3%, 5% and 5% It was like that So, when I left the room, said we had a deal between Mr Montes and myself, not with the union, by my understanding was 3, 5 and 5" he told Canom of their agreement and Canon' told him that something was wrong Pmeyro told him that he didn't want to hear about it and Canom made the 6 percent, 5 percent, and 5 percent offer with only 3 percent retroactive, to the Union At the conclusion of the meeting, the parties shook hands While driving back to his office at the con- clusion of the meeting, he told Dabo "Something's wrong around here Something doesn't sound good" When he arnved at his office, he called Montes and told him that he made a mistake, he then called the mediator and told him the same thing Mantmeo testified that on the evening of February 2, after Pmeyro returned to the facility, he met with Man- tmeo, Taormina, Pisano, and others At this meeting Pm- eyro told them that it was a very expensive agreement, but because of it, labor difficulties would disappear and working relations would improve In March, a further negotiating meeting took place be- tween Il Progresso and the Typographical Union Present on behalf of Il Progresso were Canom and Pm- eyro, for the Typographical Union were Andrew Hoff- man, its attorney, George McDonald, president of New York Mailers' Union, No 6, Pantano and other Ii Progresso employees As II Progresso was talking of pos- sibly closing, Hoffman asked about security for the possi- ble severance pay and unpaid fund and pension pay- ments Pineyro said that his client "had no reason for any concern," that he was a man of his honor, and ev- erything would be paid Hoffman then asked Pmeyro who owned Ii Progresso, and he said that 95 percent was owned by SPA, Hoffman then asked Pmeyro who owned SPA and Pmeyro said that Pinto owned it Hoff- man then asked him who was guaranteeing the severance pay and Pmeyro said that SPA would guarantee the pay- ments Hoffman asked him if he was authorized to speak for SPA and Pmeyro said that he was Hoffman asked him numerous times if he had spoken to Pinto about it and each time he answered that he had McDonald testi- fied that at this meeting, in answer to Hoffman's ques- tions, Pmeyro said that 95 percent of Il Progresso was owned by SPA who would stand behind making the payments, and that he had spoken to Pinto about it and Pinto was a man of his word and said that all payments would be made Pantano testified that at a meeting in either February or March, when Hoffman questioned Pmeyro about the ownership of II Progresso, Pmeyro said that it was owned by SPA, one of whose sharehold- ers was Pinto The sole testimony by Pmeyro regarding this conversation was that in answer to Hoffman's ques- tions he told him that 95 percent of , 'the stock of II Progresso was owned by SPA s By late 1987 labor relations at the paper had become less than harmonious In December 1987, a number of the Guild members prepared a leaflet to be distributed at a dinner held at the Waldorf Astoria in mid-December by II Progresso for the Italian Prime Minister and promi- nent Italian-Americans in the area The leaflet referred to their being without a contract, and that the subsidy the government gave to Ii Progresso was misdirected and should be frozen until they agreed upon a new contract It referred to intimidations and violations of civil rules, stated that they had to go to the Labor Board and re- quested a meeting with the prime minister Reporters Riccardo Chiom, Tony DeSantore, Martino Rizzotti, and Marzio Mian distributed these leaflets that evening at the Waldorf Astoria Chioni handed a leaflet to the Italian Ambassador that evening, Pmeyro observed him for a while without saying anything In addition, he observed Mian giving a leaflet to Pinto In all, about 100 leaflets were distributed over a 2-hour period Pas= gave a leaf- let to the Prime Minister's press secretary that evening and arranged to meet with him the following morning together with Mian and Rizzotti Rizzotti testified that Pinto, as well, was handed a leaflet that evening On about January 12, Il Progresso laid off reporters Chioni, Mian, Pasim, and Vito Taormina (son of Salvatore Taor- mina), General Counsel alleges that the layoffs were mo- tivated by the leaflettmg a month earlier at the Waldorf Astoria Ii Progresso defends that these layoffs were by seniority and were therefore lawful (At the time, Chioni and Mian had more seniority than Pasmi and Vito Taor- mina) Chioni testified that a few days after the leaflet- tmg, Taormina (his editor) told him to remain seated at his desk while others covered his assignments On Janu- ary 12 he was sent to Pmeyro's office and given a letter informing him of his layoff In addition, Pmeyro told him "From now on, I don't want to see you anymore in this place" Rizzotti testified that after the four were laid off he had numerous discussions with Pmeyro in an at- tempt to get them reinstated Pmeyro repeatedly told him that he didn't care about Vito Taormina and Pawn', "but he didn't want to see the other two guys around particularly Riccardo Chioni, because he really hates him" Rizzotti told Pmeyro that it was clearly re- taliation, Pmeyro said that he didn't want Cluom around Pmeyro referred to the leaflettmg as "disgusting" and said "After what they did, I don't want them back" When Rizzotti continued his efforts to settle the matter, Pmeyro said that he would do it if he could avoid having Chiom, and to a lesser extent, Mian, return Jaus testified that prior to the layoffs, overtime work among the editorial staff was minimal, after the layoffs, overtime among the staff averaged 20 hours a week Rizzotti testi- fied that after the layoffs, he was repeatedly asked to work overtime In addition, after the layoffs, the paper could not produce 24 pages on a regular basis Mantmeo testified that after the layoff of the 4 reporters, only 11 journalists (including himself and Taormina) remained, necessitating an average of 1 day a week of overtime 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work for each journalist Under the Guild contract, the journalists are paid time and a half for overtime Pineyro testified that on January 7, he determined that economic conditions necessitated that four journalists had to be laid off "I went to the contract with the Guild, those were Guild employees and I did as per the contract said" [layoff by seniority] That was how he chose Chioni, Mian, Vito Taormina, and Pasuu (in order of most to least senior) On that day, he wrote to Montes about this decision "He agreed with me, 1,000% And I got the union's blessing through Mr Montes " The choice of individuals was based solely on seniority, it had nothing to do with atumus due to their union activi- ty or with the distnbation of the leaflets at the Waldorf Astoria, although, he testified, it showed "a disgusting attitude" on their part and hurt Il Progresso's chances of continuing the contract with SPA to publish the paper He never told anyone that he would rehire Vito Taor- mina and Pasim if he didn't have to take back Chiom and Mian A number of employees testified to statements Pmeyro and Pinto made to them regarding closing and later re- opening the paper at a different location Mantmeo testi- fied that on six or seven occasions between January and May, Pmeyro told him that the Union was going too far and it could be "deadly" for them That they could shut down the paper and move some place else He also told Mantmeo "Pretty soon things will change" He also told Mantmeo that "the paper would close but that does not mean the paper will die" Enzo DeBlasio, who was employed by Ii Progresso in the advertising department, testified that in about March, Pineyro told him that unless the union lowered its demands, "there was a strong possibility that Ii Progresso would close" There was no mention of the paper reopening at another loca- tion Pmeyro testified that he never had such a conversa- tion with Mantmeo where he discussed the papers diffi- cult financial condition and what he considered to be the Guild's excessive demands He told him that unless the paper's operation improved, their contract to publish the paper would be terminated He never told Mantmeo that the paper would move to a different location "we never had senously the idea of moving" In addition, he was never aware of any plan to close the paper in New Jersey and to reopen in Long Island City with new em- ployees DeRosa, assistant general manager at Il Progresso until 1987, testified that on a number of occasions when some- body mentioned the Unions, Pinto answered "To hell with them If they stop working, we'll close down" Be- ginning in 1986, Pinto spoke to him about moving the editorial department of the paper to Long Island City Pineyro testified that beginning in late 1987, SPA was threatening to terminate its agreement with Il Progresso to publish the paper,7 but through numerous telephone calls and vigits to Italy and discussions with Pinto and Lupo', he was able to convince them to delay their deci- sion During this period, he also Informed the unions of 7 Pmeyro's testimony of the relationship between SPA and II Progresso "SPA was the publisher of the paper We were the Company that made up the production of the paper" the serious situation facing the newspaper and that unless they agreed to moderate their demands and obtain coop- eration from their members, the paper could close In fact, on a few occasions, SPA had decided to end the contract and close the paper, but Pineyro convinced them (until June 29) to delay that decision On one of these occasions when Pineyro believed that the contract was to be cancelled, Canon' wrote the following letter, dated March 14, to the Guild We are writing on behalf of II Progresso to notify the Guild as follows (1) this letter is to terminate the collective bar- gaining agreement between the Guild and Il Progresso entered into on August 8, 1985 for a term from January 1, 1985 through December 31, 1986 to the extent the terms and conditions of said Agree- ment have remained in effect after December 31, 1986 until this notice of termination, (2) this letter is also to advise that Ii Progesso is planning to close its operations effective April 1, 1988 We would like to meet with representatives from the Guild to discuss this matter fully includ- ing, without limitation, the effects of this closing on the employees represented by the Guild Please contact the undersigned to arrange for a meeting at your earliest convenience The notice and offer to meet stated in the second numbered paragraph above was also delivered orally to Guild Local Representative Bill Montes at a meeting at our office this morning Between November 1987 and June, the Guild held nu- merous meetings with its members to keep them in- formed of the situation at II Progresso The employees struck on June 20 and Ii Progresso never published again from New Jersey Rizzotti and Jaus testified that the em- ployees voted to strike for numerous reasons the fact that no new agreement had been reached for 18 months, that after an agreement was reached on February 2, the paper reneged on the agreement, and the fact that the paper had not made the required pension and fund pay- ments, nor had it remitted to the Guild the dues deduct- ed from the employees' pay Another factor was the Jan- uary layoff of the four employees Joseph Pantano, an employee of Il Progresso and president of the Typo- graphical Union, testified that his members also author- ized a strike in 1987 His union followed the Guild on strike because of the lack of a contract over 18 months, the failure of the paper to pay the required pension funds to the Union since about mid-1987 and bounced checks to the employees • By letter dated June 29, new counsel for II Progresso wrote to the Unions We have been retained by II Progresso Publish- ing Company, Inc , to represent the Corporation As you were previously advised, the contract to produce "Ii Progresso Italo-Amencano," between Il Progresso Publishing Co, Inc and Sedmt S P A expired December 31, 1987 The contract was thereafter extended several times, but the quality of IL PROGRESSO ITALO AMERICANO PUBLISHING CO 281 the newspaper has not improved Sedmt S P A has decided not to extend its contract with Il Progresso Publishing Co, Inc beyond June 30, 1988 Consequently, as of that date II Progresso Pub- lishing Co, Inc will cease publication of "II Progresso Italo-Amencano," and all personnel are free to make other arrangements for employment As you are also aware, the stock of II Progresso Publishing Co, Inc was sold at the end of 1987 to new owners The Corporation intends to remain in business performing non-publishing activities I am available at your convenience to discuss the effect of this development on your umon members Please contact me to arrange for a meeting On the following day, II Progresso formally notified each of its union employees that it would not publish Il Progresso after that date and that the employees were free to make other arrangements Subsequently, the Guild sent the following letter, dated July 6, to new counsel for II Progresso, which forms the basis of the allegation that Il Progresso violat- ed Section 8(a)(5) of the Act by failing to provide the Guild with requested information which was relevant to its position as representative of the employees Following up on our meeting of yesterday after- noon in connection with the above matter, please send me copies of the following documents immedi- ately 1 All documents evidencing ownership of the shares of Copyright International Trading Organiza- tion Limited (Copyright International) 2 All documents relating to the sale to Copy- right International of the shares of Ii Progresso Publishing Co, Inc ("II Progresso") 3 The contract between Sedmt S P A (Sedmt) and Il Progresso for the production by Il Progresso of II Progresso-Italo Amencano 4 All communications relating to the cancellation by Sedmt of the contract between Sedmt and Ii Progresso for the production of Ii Progresso Italo- Amencano 5 A list of all the assets and liabilities of Ii Progresso By letter dated July 25, to counsel for the Guild, counsel for II Progresso stated, inter aim your broad document request appears to be a discovery request related to the pending litigation Negotiations are further hindered by your contin- ued refusal to provide II Progresso with the infor- mation it previously requested about the present value of accrued vested pension benefits and with- drawal liability and your outright refusal to agree to any confidentiality safeguards We reiterate our offer to provide you with financial information and other relevant information provided that you agree to our legitimate request for confidentiality safe- guards Counsel for the Guild responded by letter dated August 4 as follows, inter aim 2 So far as the documents I have requested are concerned, your refusal to provide them frustrates negotiations over the outstanding issues between the parties and violates the National Labor Relations Act Given the various representations you have made, it is impossible for the Guild to negotiate with you without the document which would sup- port or disprove those representations Every docu- ment which I have requested has been requested in response to a matenal representation made by you as to the ownership of Il Progresso, the alleged loss of the contract to publish Ii Progresso Italo-Amen- cano, or some other fact material to the negotia- tions 5 Finally, since your view of confidentiality ap- pears to require the Guild to abandon its efforts to enforce its contractual and legal rights at the Board, or in any other forum it may choose, the Guild cannot agree to this illegal precondition to the re- ceipt of information which you are mandated by law to provide Please provide me with the mformation requested immediately In addition to the alleged threats to close the New Jersey facility and reopen elsewhere, some of General Counsel's witnesses testified to being offered or given jobs at Ii Progresso II after being employed at II Progresso in New Jersey DeBlasio testified that on about July 10, he received a call from Dabo (advertising manager8 of Ii Progresso, and his supervisor since about 1985) asking to meet with him When they met, Dabo told him that Pinto said that he was willing to hire DeB- lasio on a straight commission basis, no salary and no union, it was for Ii Progresso in Long Island City DeB- lasio said that he would not accept such an arrangement and Dabo said that he wasn't surprised, but he felt that he should tell him anyway He told DeBlasio not to mention the conversation to anybody Dabo (a witness called by General Counsel) testified that at the meeting he never transmitted a job offer from Pinto to DeBlasio, when DeBlasio asked hun what was new at the paper, he said nothing was new, but he understood that the paper would resume publication, but with a different company Tina Sasso, who was employed by Il Progresso as a receptionist and, later, in the circulation department, tes- tified that in about January 1987, Pmeyro told her "that he had intentions of possibly publishing in Long Island City If that should happen, would I be interested in going there in the circulation department?" About 3 months prior to the stnke, Pmeyro said the same thing and asked her if she would go there, she said that she would think about it, but she didn't think so On about 8 DeBlasio testified that Dab directed the work of the employees in the department "He took charge of us and his duties were those of supervising our operation, making sure that we would do the proper thing " Dab was present at the negotiations, on behalf of II Progresso, at the final three or four sessions, although he did not say any- thing 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD June 29, Pmeyro's secretary, Rita Scaravalli, called Sasso and said that Pineyro would like to meet her at his house, at the time, he was recuperating from surgery A day or two later she met him at his house At that time, Pmeyro said that they would be reopening the paper in Long Island City in about 15 days and would she be in- terested in working there with him He said that she would keep her seniority, sick days and vacation days, and her salary would be increased, but he did not say by how much She said that she would have to think about it some more She asked him if he had spoken to other employees and he said that he hadn't, but intended to do so Later, Sasso told Pmeyro that she wasn't interested, and did not return to work for Ii Progresso II Guista Licausi who was employed by II Progresso as assistant foreman in the composing room from about 1980 until the closing, testified that on about July 1, Scaravalli called her and said that Pmeyro would like to speak to her and her husband (also employed at the paper) at his home That afternoon they met with Pin- eyro at his home Pmeyro told them that they were moving to Long Island City and he asked them if they wanted to go back to work with Ii Progresso Licausi asked Pmeyro what his intentions were with the other people who were fired, he said that they intended to pay everybody Licausi said that she and her husband would think about it and call the next day The next day she called Pmeyro (she speaks better English than her hus- band) and asked if they would receive the same benefits as before At first, he answered no, but he called back later that day and told Licausi that they would be given contracts with the same benefits they previously enjoyed Licausi told Pmeyro that they would consider it, she then called Pantano who told her that the paper had no intention of settling with the unions After that, she called Pmeyro and told him that they could not accept the job Gramlla Bivona began her employ with Ii Progresso in August 1987 as a receptionist She testified that in about January, Pmeyro called her into his office and said that in the future II Progresso was going to move to Long Island City and he offered her a job there as editorial coordinator He said that it was a manage- ment position so she would have to resign from the Guild She said that she would think about it That was the last time she discussed the job with Pmeyro Silvio Zucca was employed by Ii Progresso as produc- tion manager, he testified that in May, he told Pmeyro that he was over 65 and wanted to retire Pmeyro asked him why and Zucca said that he was tired of the travel- ing and the aggravation Pmeyro told him to postpone his retirement "because I'm going to need you" In July, Pmeyro called him and asked him if he would return to work for II Progresso Zucca said he would, the only reason he did so, was that he felt that it could assist the unions in locating II Progresso II Pmeyro told Zucca that there would be no union and he would assist to format and program the computers Zucca simply report- ed the address to the union and Mantmeo and never re- ported to work there Javorsky testified that when the strike began, she joined the strike Sometime in July, she received permis- sion from the Unions to report to work for some book- keeping work regarding vacation pay and severance pay At about that time, she spoke to Pmeyro, who told her that "Sedint" was looking for a bookkeeper and if she was interested, she should go to Interfore, an employ- ment agency and fill out an application, "he told me it's a new company and you have to fill out an application like everybody else" Pmeyro told her that he would be president of the company She filled out the application with Interfore and shortly thereafter she was told that the bookkeeper position was hers, if she wanted it She did Pineyro testified that pnor to June 30, he never of- fered anybody a job with Il Progresso II and, at any time, never offered anybody a contract for services with that company More particularly, he never offered jobs to DeBlasio or Sasso As to Sasso, he testified that at about the beginning of July, she came to his house and "seemed concerned about losing her job And so I prom- ised her to mention her name, even recommend her to the people that was hiring employees at Sedmt Yes, that I did" He testified that he did call Zucca I called him And being that he had resigned9 from the Company a couple of months before, so he had nothing with any claim or any union or him personally He was in retirement, so I understood and absolutely free to work for anybody if he de- cided to do so And we might have been able to use someone with his background He said that he ac- cepted [as a consultant] but he never showed up Pmeyro testified further that "our lawyers" made the arrangements with Interfore," "an employment agency, a consultant company"—for hiring employees for USA The issue of employment for Javorsky with USA arose when She came over to visit me at my house I men- tioned that these people were hiring and if she decided to do something on that direction, and if I had a chance to, I would be more than happy to re- comend her for the job However, on cross-examination, Pmeyro testified that while Interfore did the interviewing, he made the final decision on who would be hired Pmeyro's son Martin, circulation manager, Francisco DeLuca, sales promotion manager, and Enzo Scaravalli, distribution manager, each began with USA after II Progresso ceased publish- ing Pmeyro testified that he told Interfore to contact 9 Zucca testified that he was production manager at the paper until It closed, on July 5, when he received the call from Pmeyro 'I was apply- ing for retirement" By letter dated June 17, Zucca told Pmeyro that, as per their prior discussion, he would resign and retire on July I Pmeyro's testimony as to when Zucca's retirement was to begin is unclear, at one point he testified that Zucca resigned while he was still vice president of II Progresso, two questions still vice president 10 At another point, he was asked Q And who told you that this consultant agency would be em- ployed for this purpose—or did you make that decision' A Yes Nobody told me I made that decision alone with the gen- eral consultant Sedmt, USA, with Mr Pinto Q So the two of you made the decision' A I made a decision IL PROGRESSO ITALO AMERICANO PUBLISHING CO 283 them and if they were interested in working for USA, to interview them In early to mid-July, furniture, computers, and ar- chives were moved from the Emerson, New Jersey facil- ity to the new facility rented by the paper in Long Island City Pmeyro testified that he knew he could take these items because they belonged to SPA which was now a 100-percent owner of the stock of USA Pmeyro was asked Q Who informed you you could use it A Professor Lupo' Q When did he inform you of that? A That that belonged to Sedmt, S P A and I could use whatever I need Q My question was, when did Mr Lupoi tell you that? A I don't recall Q Well, when did you have— A Before I made the move sometime in July A few moments later Pineyro was asked Q Now, are you sure it was Mr Lupo' who you talked to about moving the furniture out of Emer- son? A I didn't talk to Lupo' about moving the furni- ture Q Who did you talk to about moving the furni- ture? A I said before, to nobody After these items were shipped to the new Long Island City facility, and other items were put in storage, the Emerson facility was empty Francesco DeLuca, who had been employed by Il Progresso as a photographer until it closed, and was sub- sequently employed at AMM as an administrator, testi- fied that in early July, Martin Pmeyro (Pineyro's son) asked him if he would help them move the furniture and equipment from New Jersey to Long Island City After they physically moved the equipment and furniture, Taormina, the original editor at AMM, asked him to stay and assist him to setting up the operation Pmeyro testified that he chose Long Island City as the new location for II Progresso II to be close to the pnnter of the paper—Stellar Printing He located the space and negotiated with the landlord for the space He discussed some aspects of the new operation with Pinto The initial issue of Ii Progresso II appeared on July 27, it included an article extremely critical of the unions and employees of its past operation The masthead of Ii Progresso had changed very little from October 1987, until the final issue on June 20, for the initial issue of Ii Progresso H there were substantial changes Instead of "published by II Progresso Italo Amencano Publishing Co, Inc for Sedmt SPA," it stated that SPA was the editor, Guin- mantono Rom was still the "Direttore Responsabile " Co- ordinating the editorial and distnbution work was USA, whose president was Pmeyro Stellar Printing was listed as the printer (it had been the printer at the conclusion of the operation in New Jersey, but was not listed on the masthead) and AVI, whose president was listed as John Lee, was in charge of advertising It is next alleged that in the operation of Ii Progresso II, subsequent to July, USA and AMM are alter egos of the prior operation of Il Progresso and SPA Respond- ents defend that in the operation of Ii Progresso II, USA'S sole function was to coordinate all the activities Stellar for the printing, AMM for the editorial and cre- ative functions of the paper, and AVI for advertising 11 Pmeyro testified that the first time he heard of USA was on June 12 in a phone call from Lupo' who told him that he (Pmeyro) would be the president of USA and that its purpose was to coordinate the production of the paper He was also informed that Maria Pinto was the original president of USA He originally testified that this phone call from Lupoi was the first he knew of USA, subsequently, he testified that Lupoi did not tell him of the creation of USA in this call 12 He testified that Lupoi did not give him a specific date when he would be president of USA or that USA would begin producing the paper, he said that it depended upon when, and if, SPA cancelled the existing agreement with Ii Progresso During this conversation, Lupo' did not tell Pmeyro what his compensation would be as president of USA, nor did Pmeyro ask In about July, he met with Pinto who told him that Ii Progressgo II would be pub- lished through contracting firms, Pmeyro would be the president of USA" which would be a liaison between SPA and the subcontracting companies Pinto said that AMM (whom Pineyro had never previously heard of) would be doing the editorial work, AVI for advertising, Stellar for printing, and USA for distribution Pinto told him that the operation would be located as Long Island City, where Stellar was located, and instructed him to find space there for USA Stellar located temporary space for USA next door to their facility and they moved there in July By letter dated May 30 from "Maria Teresa Mercurio" (as "Sole Administrator") to USA ao Eaton & Van Winkle, Ms Pinto wrote, inter slut Subject Coordination of production operations of "Ii- Progresso Italo-Americano" Gentlemen This is to confirm to you that by the end of June we expect to have in operation the new structure for the production of the daily, "Ii Progresso Italo- Amencano," for which you will be handling the technical and financial coordmation in addition to " In his brief, General Counsel alleged AVI as an alter ego for the first time Unlike AMM, which was added to the complaint as an alter ego by amendment of General Counsel, no such amendment was made for AVI No such finding will therefore be made as to AVI BMD Sports- wear Corp, 283 NLRB 142 (1987), cited by General Counsel in his brief in this regard, is inapposite 12 Also confusing and unclear is Pmeyro's testimony of who told him this (Lupo' or Pinto) and when he first heard It (June or July) 13 A Consent of Sole Stockholder in Lieu of Annual Meeting of USA dated in 1988 (no month) list "Marla Teresa Mercurio" as sole director Other formal documents of USA list Dell'Olio as secretary, effective in March and Pmeyro as president and Rita Scaravalli, assistant secretary, effective July 1 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the operations as distributor, as governed by a sepa- rate contract For clarity's sake, the new structure is based on the following points (1) We, as publishers of the newspaper contract directly with all the suppliers of goods and services, such as, for example, with the printer, the paper suppliers, the press agencies, the advertising agen- cies, the journalists, etc The letter continued that USA would provide its own facilities, means and staff, would commence services on June 1 and would receive monthly compensation in the amount of $92,000 By letter dated July 15, Maria Teresa Mercurio, again as sole administrator, wrote to USA c/o Eaton & Van Winkle Gentlemen In accordance with the agreements reached, we hereby confirm the assignment to distribute the newspaper we publish, "Il Progresso Italo-Amen- cano " The relationship shall be governed by the follow- ing GENERAL CONDITIONS 1 It is understood that the assignment you are undertaking is on an ABSOLUTELY EXCLU- SIVE basis and covers the distribution and sale of the newspaper in all outlets in terntones outside Italy 2 Under the terms of the assignment conferred upon you, the relations with the subdistnbutors are entirely your responsibility, and you undertake to handle the distribution with the utmost diligence in order to guarantee the widest possible dissemination of the newspaper 3 We shall keep you informed in a timely manner of any possible modifications or changes that might be made during our relationship with re- spect to the SALE PRICE, FORMAT or WEIGHT of the newspaper and of whatever might necessitate changes to the preparation of the print- out of subscribers 4 The initial run and subsequent runs will be de- cided by mutual agreement based on the trends of the sales and taking into account any requests for changes you may receive from the sub-distributors The letter went on to state that USA would be paid 3- 1/3 cents per copy distributed and that the term of the agreement would be for 1 year The Certificate of Incorporation of AMM (a New York State Corporation) was filed by - Dell'Olio on March 24, the purpose of the corporation is stated to be, inter alia to print, publish and distribute daily newspaper, magazines, books and periodicals of all types, to purchase, license, sell, write and generally deal in and with any and all types of literacy works Also received into evidence is a Contract of Purchase of Journalistic Services, dated June 9, 1988, between SPA and AMM, however, it contains no signatures nor places for signatures This contract, basically, provides that AMM will provide articles, columns, and photographs to USA and SPA will pay AMM $30,000 a week As stated supra, USA originally moved into the build- ing next to Stellar in Long Island City, Pmeyro testified that after obtaining this temporary space (half of a floor) he recommended to the then president of AMM, Tom Montemarano, to contact the landlord of the building to attempt to find space close to U S A He apparently did so because AMM rented the other half of USA's floor in that building and moved in shortly afterward Apparent- ly, the space was less than ideal and was always consid- ered to be temporary Almost immediately, Pmeyro began looking for permanent space to lease He "dis- cussed" and "consulted" about the move with Monte- marano Pmeyro testified that he didn't coordinate this latter move with AMM and did not purposely look for space with adjacent space available for AMM He was asked Q So it was just coincidence that the other end of the hall happened to be empty? A I said before—you don't remember what I said I said that I leased half of the floor because I didn't even—yes the half of the floor and then re- modeled that, and I thought that it was an ideal sit- uation That's exactly what I said I mentioned it to Mr Montemarano Q And he thought it was an ideal situation too? A It was Q And did he sign a lease for that property? A Yes Q And you signed a lease for that property' A I signed my lease, he signed his Pmeyro signed a lease on behalf of USA on August 5 for premises of 42-15 Crescent Street, Long Island City, hereinafter referred to as the L I C facility The lease was for a period of 10 years commencing October 1 at a rental of $5000 a month for the first 4 years The first page of the lease states that it is for one-half of the third floor, a subsequent page states it it is for the entire third floor, however, a diagram of the entire third floor at- tached to the lease has half of the floor crossed out Pm- eyro testified that he negotiated the lease on behalf of USA and the designation in the lease that USA was rent- ing the entire floor was a mistake, USA rented about 5000 square feet, about half of the third floor After meeting with the landlord on a few occasions, Pmeyro told Montemarano about the location and recommended that he contact the landlord because "we need to be close to each other" Montemarano did not testify, but AMM did lease the other half of the third floor at the LIC facility AMM moved into their half of the third floor at the LIC facility a few weeks after USA Prior to an extensive discussion of the interaction betwen USA and AMM (both of employees and finan- cial) I quote a long segment of Pmeyro's testimony on IL PROGRESSO ITALO AMERICANO PUBLISHING CO 285 the operation of the two companies to illustrate what a difficult and uncooperative witness he was Q You coordinate with who at American Multi Media? A No I don't coordinate with American Multi Media I coordinate with all the companies that provide a service for Sedmt, S P A And my job is not [to] make them do their job, it's to make sure that the job is properly done—to inform my parent company in Italy how things are going, and recom- mend changes and that kind of thing I'm not sup- posed to be in a police position to look for the people doing their jobs It's not that exactly Q Do you coordinate American Multi Media or don't you? A I don't coordinate American Multi Media I coordinate works done by three different companies that are so constructed in my parent company in Italy I don't coordinate them Q So who does coordinate American Multi Media with the other companies—the advertising, the printing, the distribution? Those the three com- panies you're alluding to that you coordinate A It's not that simple American Multi Media has nothing to do with distribution of the paper So they have nothing to coordinate Q They have nothing to do with what? . A With the distribution of the paper They have nothing to do with advertising the paper Q Right A So they have nothing to coordinate Q Right A I don't know what— Q So you coordinate those things You don't co- ordinate the editorial content of the newspaper? A No Q Who does from Sedmt, USA? A Nobody Q So, Sedint, USA publishes Ii Progresso News- paper, right? A No, Sedmt, S P A does Q And it is designated Sedmt, USA to coordi- nate the publication of the newspaper right? A Only the operations that are demanded to produce the publication of the paper You're trying to imply that I'm a coordinator— [At this point, I instructed Pmeyro to answer yes or no whenever possible] Q In connection with your responsibilities with—with your duties according to Sedmt, S P A, do you know who is responsible for what articles are printed in the newspaper Il Progresso? A Not all the time Q I'm not asking you all the time Do you know? Do you know some of the time? A I know some of the time Q Okay Any who is in charge from S P A to see what articles are appearing m its newspaper A That I don't know You're talking about polit- ical editorial policy, or you talking—what ? I under- stand your question Q I'm talking about a newspaper hits the stands and its got stories in it A Yes Q And I'm saying who from S P A or Sedmt, USA has any role, whatsoever, deciding what sto- ries they're going to be? Do you know? A The Managing Editor Q Who is that'? A At this point is Mr Fumagalli Q And before him who was it A Mr Taormina Q And who did Mr Fumagalli or Mr Taormina report to at those Sedmt, USA, or S P A, if you know? A Sedint, S P A Q They reported directly to Sedmt, S P A? A Yes Q In Italy? A Yeah Q How do they do that, by telephone? A Yes Q And Sedint, S P A would call them by tele- phone? A Yes A So you have no role in that aspect of it Q The only role that I have is to make sure that the editorial policy that was set up by the owners is being accomplished so far as my understanding is I don't dictate editorial policy in S P A Q They tell you what the editorial policy is, right? A I have an idea Q And then you're supposed to make sure they follow that editorial policy? A Yes A And what do you do in connection with that job? A I -read the paper—that's something I do Q Do you ever talk to anybody at the paper about that? A Sure Q Who did you talk to? A The Managing Editor Q Fumagalli or Mr Taormina? A The editors Q So you do talk to them about what article is going to go in the newspaper? A No Q Well, what kind of policy are you referring to then? A General policy of the paper General policy Q No [sic] can you give us an example of that general policy? A Yes, for example, we wouldn't like in the paper any apology for Communism because we have the understanding that ours is a conservative publication That's an example Received in evidence was an invoice, dated October 13, of numerous items of office furniture and equipment allegedly sold by USA to AMM, the total of the invoice is $11 502- Javorsky (the USA bookkeeper) testified that 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this has not been paid by AMM, Pmeyro testified that it was paid for, sometime in 1988 Neither General Counsel nor counsel for USA or AMM introduced documentary evidence to establish whether this bill had, in fact, been paid As stated, supra, Javorsky, who had been the book- keeper for II Progresso, became the bookkeeper for USA in about August, Martin Pineyro, DeLuca, and Enzo Scaravalli (the husband of Rita Scaravalli, secretary at II Progresso, who was appointed assistant secretary of USA), all former II Progresso employees, became em- ployed by USA when it commenced operations in July In fact, these three men actually moved the furniture and equipment from Emerson to Long Island City The first editor-in-chief for AMM was Taormina, who had been the editor at Ii Progresso Montemarano was the first president of AMM Subsequently, DeLuca (who had been employed by, and was active in setting up the initial operation for USA in Long Island City) was told that Montemarano had resigned and Lupoi and Dell'Oho asked DeLuca to be in charge of AMM," to oversee the operation of AMM and "to be sure that the Compa- ny, American Multi Media, to be physically and legally separate from any other interference with Mr Pm- eyro " When Montemarano ceased being the president of AMM, DeLuca became treasurer and Michael Horne (who DeLuca has never met or dealt with) became presi- dent Guiseppe Fumagalli, who at the time of the hearing had replaced Taormina as the editor of AMM," testified that while living in Italy he was interested in working for Il Progresso In early 1988, he spoke to both Man- tmeo and Pinto about this interest, but they were non- committal By early July, Fumagalli had learned that the paper was not publishing, but was still interested in coming to the United States, he called Pinto who told him that the paper would probably be published again and that he could work there if it did resume publication He purchased his own plane ticket and came to the United States He went to the first facility at Long Island City where he was hired by Taormina as a journalist for AMM One aspect of General Counsel's allegations of alter ego and single-employer status is based on the financial interaction between these companies beginning July, apart from the contractual amounts that SPA paid USA and AMM USA's financial records and checkbooks es- tablish that since July, USA has made numerous pay- ments on behalf of AMM, AVI, and II Progresso As an example, in about a 1-week period in late July, USA paid over S5000 for expenses of AMM (computer technician, carpet Installer, carpenters, air conditioners, and a moped), about $10,000 for AVI (rent and telephones) and $4300 for II Progresso's attorneys Additional examples of the interchange between the companies is set forth in the USA's check register for 14 At a Board of director's meeting of AMM, on October 7, when DeLuca was appointed treasurer of AMM, Sherry Ritter of Lee Sexton & Company (John Lee's company) was named assistant treasurer Ritter had been an auditor at II Progresso 15 DeLuca, who, at the time was running AMM learned from Taor- mma that he had been fired, but did not know by whom August On August 5, USA wrote a $275 check to an employee of AMM, made a S1330 loan to Taormina (of AMM) at Pineyro's direction, loaned II Progresso $11,000 on about August 9 and made a loan of $1190 to another AMM employee on August 12 The register also records additional loans of S19,000 in August to II Progresso that were never repaid On September 30, USA paid the salaries of Dab, Mariana Pisano, and Tony Aggimenb, all employees of AVI On September 30, USA also repaid a bank S3200 for a loan to Ii Progresso There are also checks written to AMM em- ployees by Javorsky, but they were voided pnor to being deposited or cashed when AMM located enough money in its account to cover the checks On November 4, USA wrote 16 checks in an amount totalling almost $10,000 to AMM employees, each states "personal loan" On December 13, USA paid $2000 to Taormina as a personal loan and, at about that time, paid approxi- mately $13,000 to New York Telephone for AMM's tele- phone system In November and December, USA wrote about 40 checks to AMM employees to cover its payroll Javorsky testified that AMM or AVI "Sometime they need a check in an emergency" and on those occasions, USA would use one of its checks and make payment for AMM or AVI USA then notified SPA of this payment and requests that SPA reimburse USA for these pay- ments She testified that SPA has reimbursed USA for some payments made for AVI, but not for the payments made for AMM At the time of the hearing, over $50,000 was owed from AMM, and $15,000-20,000 from AVI Received into evidence were loan receivable summaries for USA dated January 31, 1989, they show the follow- ing amounts due to USA on that date From Il Progresso $31,510 From SPA $212,868 From AVI $15,889 From AMM $67,699 Pmeyro testified that he is "aware of loans by Sedint USA on behalf of Sedint SPA to American Multimedia" The loans were made because, at the time, AMM did not have the cash to pay salaries and if the employees did not get their salaries, they would have quit working and the paper could not have been published The same is true of the payment by USA to the telephone company on behalf of AMM, if USA had not made the payment, the telephone would have been disconnected and no paper would have been produced USA billed SPA for these amounts On many occasions, he advanced Taor- mina money from his personal account and received a check from USA as reimbursement of this loan, he looked to AMM or SPA to repay these amounts He always assumed that SPA would reimburse USA for these amounts expended to AMM "I had all the reasons to believe that that money would be paid back I know the people, that I am dealing with " By late 1988, Pineyro had been dissatisfied with the composing work performed by the AMM employees He discussed this with Lupoi, and, commencing January 16, 1989, USA took this operation from AMM, and USA employ- ees performed the composing work for Ii Progresso II IL PROGRESSO ITALO AMERICANO PUBLISHING CO 287 The composing roon supervisor and "part" of the em- ployees working under him became employed by USA as of that date, Pmeyro testified that he doesn't recall how many employees work in the department Pinto is a consultant for Il Progresso II (or USA) as he was for Ii Progresso prior to July He receives the same perquisites of office that he had previously en- joyed—an apartment with maid service, an automobile and his expenses while in this country Since the main area of his interest at Ii Progresso was editorial policy, since July, when he visited II Progresso II, he also spent time at AMM 16 AVI's sole business is handling the advertising for II Progresso H, prior to July, AVI had been involved in ads from Italy for II Progresso John Lee was the presi- dent of AVI until about December, at that time, Guido Bach' became the president The accounting firm of Lee Sexton & Co is the accountant for AVI Dab o was the advertising manager at Ii Progresso and worked there until about July, after the strike, he continued to be paid although there was no work to do since there was no paper being published After the operation ended, Pm- eyro called him and told him that he would be "ab- sorbed by another company, AVI," and asked him to be in charge of the "business part not administration" of AVI and he accepted When AVI began operationg after July, the first three or four checks were from USA," since that time the checks have been from AVI Aggimente had been coordinator of the classified adver- tising section at Ii Progresso He testified that after being on stnke for a few weeks (he was a Guild member), in about early July, he received a phone call from Pmeyro, who asked him what he was doing, he said that he was looking for a job After a few more conversations, Pm- eyro offered him a job at AVI commencing about August 1 performing the same job that he had at Ii Progresso, and he began with AVI on about August 1 Pmeyro testified that he never hired anyone to work for AVI, all the hiring was done by Interfore He spoke to Dabo after the paper ceased publishing and "might have" suggested that he apply for a job with AVI Aggi- mente called him to say that he was interested in work- ing for AVI, "I told him to report to Interfore " He never urged anyone at AVI to hire either Dabo or Aggi- mente He testified that he "threw some names to Lee and Interfore " USA paid the first month's rent and de- posit for the space that AVI was renting Pmeyro testi- fied that AVI had "a tremendous deal" on the lease, but did not have the money available for the deposit or first month's rent Pmeyro called Lupoi and told him of the 1 ° This was another example of Pmeyro's lack of credibility Initially, he was asked if Pinto visits AMM to discuss editorial policy, he an- swered "I don't know what he does and where he goes" When It was pointed out that they're on the same floor, he testified "I don't follow the man, I have my work to do when he is there" Finally, he answered He goes over there Oh, yes, he goes I don't know what for and what he is going to do over there Many times he leaves his office and I see him going in that direction, but I have to say that the men's room is in that direction, too 17 Because AVI is not alleged to be a single employer or alter ego, I will not discuss more fully all the payments made by USA on behalf of AVI situation and Lupo' told him to pay the money for AVI and that he would be reimbursed by SPA The money has since been repaid to USA The record is somewhat confusing on the actual amount USA paid to the land- lord for AVI's space Apparently, USA paid a $5000 de- posit and 2 or 3 months' rent, at about $2500 a month The record establishes that $7500 was paid to the land- lord by USA on July 27, $1302 on August 17, $2756 on September 7 and $2798 on October 11 Lee Sexton & Co, of which John Lee was a senior partner, was the accountant firm for II Progresso Repre- sentatives of that firm are authorized to sign checks for AMM and AVI There is some indefinite testimony regarding a compa- ny named Copyright International (Copyright) Pmeyro testified that he understood (fron letters and documents that he had seen in about July) that the stock of Ii Progresso had been sold to Copyright, although he never met anyone from Copyright Scaglione testified that in about late 1987, he was told by Pinto that "Sedmt SPA had found a purchaser for the paper" The sale to Copy- right was to take place on about January 1 and Copy- right would have 6 months from that time to verify all statements and warranties He endorsed his shares of stock to Copyright and turned over his 5-percent owner- ship on about January 1 and received his compensation in July from SPA VI CREDIBILITY As stated, I found Pmeyro to be an extremely uncoop- erative and evasive witness, who was not being forth- right with the court I have only provided a few glaring examples of this attitude, supra, and would not generally credit his testimony Unless indicated otherwise, infra, I found most of General Counsel's witnesses to be rather direct and fair in their testimony, even though they must have harbored resentment toward their prior employer- Il Progresso VII SINGLE EMPLOYER AND ALTER EGO ALLEGATIONS It is initially alleged that Ii Progresso and SPA, and also that SPA, USA, and AMM constitute single inte- grated business enterprises and single employers within the meaning of the Act, as well as the fact that they are, and have been at all material times, alter egos It is by now well settled that in determining whether two or more employing entities constitute a single employer, the Board looks at the following factors (1) interrelation of operations, (2) common management, (3) centralized con- trol of labor relations, and (4) common ownership Radio Technicians Local 1264 v Broadcast Service of Mobile, 380 U S 255 (1965), NLRB v Burgess Construction, 596 F 2d 378 (9th Cir 1979), Blumenfeld Theatres Circuit, 240 NLRB 206 (1979) Not all of these criteria need be present to establish single-employer status and a signifi- cant factor is the absence of an "arms length relationship found among umntegrated companies" Operating Engi- neers Local 627 v NLRB, 518 F 2d 1040 (D C Cir 1975) 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There can be little question about the interrelation of operations among the companies SPA owned and oper- ated Ii Progresso until its closing in June," beginning in July, the Ii Progresso operation is coordinated by USA (which is owned by SPA), AMM, which was established by Dell'Oho, is in charge of the editorial work, and AVI, whose ownership is not clear, handles the advertis- ing The interrelationship is established not only in the day-to-day publication of the paper, but by the financial relationship which established numerous, fairly regular, payments by USA on behalf of Ii Progresso, AMM, and AVI for payroll, repayment of loans, rent, office equip- ment, workmen or other expenses Many of these pay- ments were never repaid, further establishing the connec- tion between these companies Common management is not as obviously present because each Company, at least on paper, had different officers Pmeyro ran USA and testified to no control of AMM and AVI, yet DeLuca, who appears to be the principal administrator at AMM (and who had been previously employed by USA in set- ting up their Long Island City operation) had never met the president of the Company and seemed to be unaware of some of the activities occurring at the top of the AMM hierarchy Additionally, the credible evidence es- tablishes that Pinto played a major role in the manage- ment of Il Progresso and USA and, at least, some role in the operation of AMM Finally, the accounting firm of Lee Sexton & Co, and its individual members are present at each of these companies Centralized control of labor relations at these companies can be described in one word—Pinto The credible evidence clearly estab- lishes that he had a lot to say about labor relations at II Progresso and the establishment of Il Progresso II and USA Although there is no record testimony that he was in charge of labor relations at AMM, it would not be un- reasonable to assume that he did play an active part in this regard, because there appears to be a vacuum at AMM regarding labor relations Common ownership is also fairly clear SPA owned Ii Progresso and subse- quently USA Although it is not clear who owns the stock of AMM, the fact that it was created by Dell'Oho indicates that it is either owned or controlled by SPA A review of all these factors establishes a lack of an arm's- length relationship among these companies, Local 627, supra I find that Ii Progresso and SPA constitute a single employer within the meaning of the Act and that SPA, USA, and AMM likewise constitute a single em- ployer within the meaning of the Act The complaint alleges that USA and AMM are alter egos of II Progresso and SPA The determinative factor for alter eqo status are somewhat different than those that are applicable for single-employer status In South- port Petroleum Co v NLRB, 315 U S 100 at 106 (1942), the Court stated that the ultimate question is whether there was a true change in ownership and management or "merely a disguised continuance of the old employ- er" Prior to examining these companies to determine 18 I do not believe what I would characterize as the "charade,"as testi- fied to by Pineyro, that SPA contracted with II Progresso to publish the newspaper and beginning in late 1987 threatened to end that contract and finally did so in June alter ego status, it should be noted that prior to July, both \ Pmto and Pmeyro were informing employees that the newspaper might cease operating in New Jersey and resume operations elsewhere In addition, in the period subsequent to the closing of the paper, Pineyro was active hiring people to work for USA, AMM, and AVI As stated, supra, in the discussion of single-employer status, during about the first 6 months of itg operation, USA made nuerous payments on behalf of Il Progresso, AMM, and AVI, and by January 31, 1989, AMM and II Progresso still owed almost $100,000 to USA This is not something that can be called an arm's-length relationship Through June, Il Progresso was owned by, and pub- lished for SPA After June, Il Progresso II resumed pub- lication, albeit from a different location This time the paper was produced by USA (owned entirely by SPA) and AMM, apparently also owned by SPA, with the same auditors and many of the same employees who had previously produced the paper Additionally, many of these employees had been personally solicited by Pmeyro to return to publish the paper In Howard Johnson Co v Detroit Local Joint Executive Board, 417 U S 249, 259 (1974), the Supreme Court stated that alter ego cases in- volve "a mere technical change in structure or identity of the employing entity, frequently to avoid the effect of the labor laws, without any substantial change in its ownership or management" This is a fair description of the instant matter, prior to July, SPA owned the paper and had it published by Ii Progresso, which it also owned Subsequently, it continued to own the paper and the companies that produced it, but this time without the unions that had previously represented the employees I therefore find that USA and AMM are alter egos of Ii Progresso and SPA At subsequent times m this decision, Il Progresso, SPA, USA, and AMM will be referred to, at times, collectively as Respondents It is next alleged that Pinto and Maria Pinto are also alter egos of II Progresso, SPA, and USA and jointly and individually liable for their unfair labor practices Pinto was a consultant (at the least) for Il Progresso and USA and played an active part in determining their edi- torial policy Because I generally found General Coun- sel's witnesses credible (together with the fact that Pinto did not testify and I found Pmeyro's testimony often in- credible), I find that he also played an active part in for- mulating Ii Progresso's labor relations policy and partici- pated in the plan to cease operations in New Jersey and reopen in Long Island City However, that does not make him an alter ego of the Respondents and liable to remedy the unfair labor practices to be discussed infra, and General Counsel has not provided me with any guidance for finding Pinto to be an alter ego of II Progresso, SPA, and USA, this allegation shall therefore be dismissed General Counsel does argue, however, that because of the "lavish life style" Pinto enjoyed while in the United States, he should be personally liable for the unfair labor practices herein, citing F & W Oldsmobile, 272 NLRB 1150 (1984) That case involved the two owners of a company who each took $37,000 from an escrow account meant for the company's expenses and creditors and misappropriated a company asset for their IL PROGRESSO ITALO AMERICANO PUBLISHING CO 289 personal use The administrative law judge (with the Board affirming) found that this "constituted a dissipa- tion of corporate assets and an attempt to evade backpay liability, so that the individuals should be liable for back- pay obligations" For that reason, the Board pierced the corporate veil and found the two owners personally liable for the backpay This case is distinguishable from the instant matter, the record fails to establish any com- pensation to Pinto (while in the United States) other than his expenses The total payments, on his behalf of, about $5000 a month for apartment rental, car lease, and other expenses are certainly not so outrageous as to be found to constitute the wrongful distribution of corporate assets General Counsel also alleges that Maria Pinto is an alter ego of II Progresso, SPA, and USA Suffice it to say that the record establishes very little activity on the part of Maria Pinto, and no evidence that she was ever in the United States This allegation will therefore be dis- missed Counsel for SPA alleges that the allegations as to it should be dismissed because the Board has no jurisdic- tion over it and because no valid service of the charges and complaints was made upon it Counsel alleges that the Board has no jurisdiction over SPA because It has no independent presence in the United States and conducts no business in the United States I reject this argument, SPA does have a physical presence in the United States through Dell'Oho and Lupoi and conducts business in the United States through Pinto and over the telephone I also reject counsel's argument that the complaint should be dismissed as to SPA because good service was not made upon SPA I reject this argument for two rea- sons valid service was made upon the other Respondents who, I have found, constitute an alter ego of (and single employer with) SPA, as well as the fact that SPA was represented by counsel during the entire hearing VII THE SUBSTANTIVE ALLEGATIONS I found Mantmeo to be an extremely credible and be- lievable witness and I have no problem crediting his tes- timony over that of Pmeyro I therefore find that on six or seven occasions between January and May, Pmeyro told him that the Guild was going too far and it could be "deadly" for them, that the paper could close and reopen elsewhere I find that these statements violate Section 8(a)(1) of the Act As regards the transfer of Javorsky, General Coungel has clearly sustained his burden under Wright Line, 251 NLRB 1083 (1980) The transfer occurred a few days after the Guild members, including Javorsky, voted unanimously to authorize a strike, prior to this vote Pm- eyro had asked her repeatedly to resign from the Guild, but she refused Finally, whether I believe her testimony (she was a less than totally cooperative witness, possibly because she was still employed by USA) that Pmeyro simply shrugged his shoulders when she asked him if the transfer was due to her vote authorizing a strike, or the contents of her February 24 letter to the Guild stating that Pmeyro told her that "due to my actions at the union meeting, he was removing me from the accounting department," I find little doubt that General Counsel has sustained his burden that the transfer was due to her Guild support and her vote supporting a strike Respond- ent presented no evidence to rebut this testimony and I therefore find that it has not sustained its burden I there- fore find that in November 1987, Il Progresso transferred Javorsky to a lower paying position due to her union ac- tivities, in violation of Section 8(a)(1) and (3) of the Act The next allegation is that on about January 11, II Progresso laid off employees Chiom, Vito Taormina, Mian, and Pasim because of their concerted or union ac- tivities, in violation of Section 8(a)(1) and (3) of the Act I find that General Counsel has clearly satisfied his initial burden under Wright Line, supra The leaflet distribution had occurred about 3 weeks prior to the layoff and Pm- eyro certainly knew about it and strongly disapproved of it, having referred to it as "disgusting" Three of the four laid off were involved in the leaflettmg (all but Vito Taormina) and since the Guild contract required the paper to lay off by seniority, in order to get to the two most active participants (Chioni and Mian), Pmeyro had to first lay off Vito Taormina and Pasim Additional evi- dence of this is the animus directed at Chiom subsequent to the Waldorf Astoria leaflettmg, as well as the state- ments made by Pmeyro to Rizzotti (which I credit) that he would reinstate Vito Taormina and Pasim but would not take back Chiom and Mian I find that Respondent has not satisfied its burden under Wright Line, as stated on numerous occasions, supra, I found Pmeyro to be a generally incredible witness and therefore give little cre- dence to his testimony that this layoff was solely moti- vated by economics Additionally undermining this argu- ment is the timing of the layoffs and the fact that after the layoffs, each journalist was working 1 day a week of overtime work (at time-and-a-half under the agreement) and, even with that, the paper could not publish the number of pages it had previously printed I therefore find that the layoff on about January 11 was discrimina- torily motivated, that Respondent really wanted to lay off Omni, Mian, and Pasim, but, as a smokescreen, and in order to comply with the Guild contract, laid off Vito Taormina as well It therefore violated Section 8(a)(1) and (3) of the Act It is undisputed, and I fiiid, that Respondents failed to make the pension contributions as required by its agree- ment with the Guild for the period October 1, 1987, through June 20 and that it likewise failed to make re- quired payments to the Typographical Union's funds for the period August 1987 through June 20 Respondents therefore violated Section 8(a)(1) and (5) of the Act Re- spondents also failed to remit to the Guild dues, which had been deducted from its employees wages, for the period September 25, 1987 through June 20 This also violates Section 8(a)(1)(5) of the Act It is next alleged that Respondents violated Section 8(a)(1) and (5) of the Act by failing to execute the agree- ment fully agreed to by the parties on February 2 Re- spondent defends that there was no violation because the agreement allegedly reached on that date was based upon a misunderstanding Counsel for Respondents, in his brief, states that the testimony of Pmeyro's "unrebut- ted conversation with Montes shows that the deal be- 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tween the parties, as agreed in the off-the-record discus- sion between the chief employer representative and the chief union representative, was different than that an- nounced at the table" and that it was curious that Gener- al Counsel failed to call Montes as a witness I agree that Montes may have been a helpful witness in determining what occurred on February 2 However, although Montes did not testify to rebut Pmeyro's testimony about their pnvate meeting on that day, because I found Pm- eyro to be a witness almost totally lacking credibility, I do not credit his testimony about the meeting Counsel in his brief, states that when there was a mutual mistake or misunderstanding, the employer is under no obligation to execute the agreement based upon the mistake or misun- derstanding I find no mistake or misunderstanding, rather, the parties knew exactly what they were agreeing to on February 2 Canom was, obviously, uncomfortable in his position as a witness called by General Counsel herein, he had represented Ii Progresso and continues to represent employers in his practice Regardless, he was a believable witness The alleged misunderstanding, as tes- tified to by Pmeyro, related solely to the first year's in- crease as finally agreed to, it was a 6-percent increase, with only 3 percent retroactive to January 1, 1987 Pm- eyro testified that his understanding was that the increase was simply 3 percent The difference, of course, is that in 1988 and 1989 that additional 3 percent would "kick in" The difficulty I have with Pineyro's testimony regarding this meeting is that there does not appear to be any mis- understanding during the meeting or during the hand- shakes Rather, it appears that no misunderstanding exist- ed until much later that day The evidence establishes that after Pmeyro's private meeting with Montes, Canom proposed a 6-percent increase the first year with only 3 percent retroactive to January 1, 1987, a 5-percent in- crease on January 1, 1988 and a 5-percent increase on January 1, 1989, this offer is a fairly simple one, not easily capable of being misunderstood The Guild accept- ed this offer and by the conclusion of the meeting, all the remaining issues were resolved and the parties shook hands at the conclusion of the meeting and said that they were happy that it was over Further, proof of a lack of misunderstanding is the testimony of Mantineo (a very credible witness) that on the evening of February 2, Pm- eyro told him and others that it was an expensive agree- ment, but because of it, labor relations would improve The ultimate issue in cases such as this is whether there was a meeting of the minds, a mutuality of understanding between the parties on February 2 Printing Industries of Northern California, 204 NLRB 329 (1973), Lincoln Hills Nursing Home, 257 NLRB 1145 (1981) I find that there was and that Respondent's refusal to execute the agree- ment subsequent to February 2 violates Section 8(a)(1) and (5) of the Act It is also alleged that on about March 14, Il Progresso repudiated its agreements with the Guild and the Typo- graphical Union, and since about March 14, it has with- drawn its recognition of the Guild and Typographical Union as the representative of certain of its employees The sole evidence in this regard is the March 14 letter of Canoru, which states that the letter is to terminate the agreement between the parties because the paper is plan- ning to close April 1, in the letter, Il Progresso offers to negotiate with the Union on the effects of the closing on the employees However, the paper did not close on Apnl 1 and, apparently, between April 1 and June 20, Il Progresso did continue to abide by the terms of the ex- pired agreements I therefore have difficulty perceiving this violation, and General Counsel's bnef does not refer to it This allegation is therefore dismissed It is next alleged that in about April or May, Il Progresso, by Pmeyro and Dab, violated Section 8(a)(1)(5) of the Act, by bypassing the Unions through soliciting its employees to abandon the Union's bargain- ing demands I have previously found that Pmeyro's statements to Mantmeo on six or seven occasions be- tween January and May, that the Guild was going too far and that it could be "deadly" for them, violated Sec- tion 8(a)(1) of the Act I also find that it violates Section 8(a)(1) and (5) of the Act as an attempt to solicit employ- ees to bypass the Guild I credit the testimony of DeBla- sio that in about March, Pmeyro told him that unless the Union lowered its demands, there was a strong possibili- ty that the paper would close This statement is also an attempt to convince an employee to abandon the Union's bargaining demands and therefore violates Section 8(a)(1) and (5) of the Act It is next alleged that in about July, Respondents, by Pmeyro and Dab, bypassed the Unions by soliciting its employees to enter into individual employment contracts, thereby abandoning the Unions, in violation of Section 8(a)(1) and (5) of the Act There is a credibility issue re- garding the Dabo allegation, because I found Dabo to be an articulate, believable, and impartial witness (he was a witness for General Counsel) I credit his testimony over that of DeBlasio regarding the alleged job offer, and this allegation will therefore be dismissed As to the allega- tions involving Pmeyro, I have little difficulty crediting the testimony of Sasso, Licausi, Zucca, and Javorsky over Pineyro I therefore find that, after the paper ceased operating, Pineyro offered each of these employees (and union members) jobs at Ii Progresso II, at a time when he was concealing the existence of this operation from the Unions These job offers by Pmeyro therefore violate Section 8(a)(1) and (5) of the Act It is next alleged that Respondents violated Section 8(a)(1)(5) of the Act by failing to provide the Unions with information they requested On June 29, counsel for Ii Progresso wrote to the Unions, informing them that effective immediately, II Progresso would cease publica- tion and employees were free to make arrangements for other employment The letter concluded by saying that he was "available to discuss the effect of this devel- opment on your union members" Shortly thereafter, the Guild wrote to counsel for Il Progresso requesting infor- mation regarding ownership of Copyright International and its purchase of the stock of Ii Progresso, the con- tract between SPA and II Progresso for the publication of the paper and all communications regarding the can- cellation of that agreement and a list of the assets and li- abilities of Ii Progresso Ii Progresso never supplied these documents IL PROGRESSO ITALO AMERICANO PUBLISHING CO ' 291 Under well-settled Board law an employer Must pro- vide a union with requested information "if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsi- bilities as the employees' exclusive bargaining representa- tive" Associated General Contractors of California, 242 NLRB 891, 893 (1979), NLRB v Acme Industrial Co, 385 U S 432 (1967) Bohemia, Inc , 272 NLRB 1128, 1129 (1984), stated The Board use a liberal, dicovery-type standard to determine whether information is relevant, or po- tentially relevant, to require its production NLRB v Truat Mfg Co, 351 U S 149 (1956) Information about terms and conditions of employment of em- ployees actually represented by a union is presump- tively relevant and necessary and is required to be produced Ohio Power Co, 216 NLRB 987 (1975), enfd 531 F 2d 1381 (6th Cir 1976) Information necessary for processing grievances under a collec- tive-bargaining agreement, including that necessary to decide whether to proceed with a grievance or arbitration, must be provided as it falls within the ambit of the parties' duty to bargain NLRB v Acme Industrial, supra, Bwkerstaff Clay Products, 266 NLRB 983 (1983) There can be no question that the information sought by the Guild was relevant to, and necessary for it as the representative of some of Ii Progresso's employees Here was an employer who had deducted Guild dues from his employees' pay, but had not transmitted these amounts to the Guild since September 1987 In addition, Ii Progresso had not made the required pension payments for about the same period The Guild and its funds were therefore owed a substantial sum of money by a company that had Just notified it that it had gone out of business It re- quires little analysis to conclude that the Guild is entitled to wide lattitude in seeking information and documents to assist it in locating and collecting this money Re- spondent's failure to provide the Guild with this informa- tion therefore violates Section 8(a)(1) and (5) of the Act The complaint also alleges that from January through June, Il Progresso, through Pmeyro, intentionally mis- represented information concerning the ownership and control of II Progresso to the Unions in violation of Sec- tion 8(a)(1) and (5) of the Act Although this issue was not supported by the brief of General Counsel, I assume that this allegation refers to Pmeyro's statements in the March meeting with the Typographical Union This vio- lation is not readily apparent and, even if it were, it would be cumulative I therefore recommend that this al- legation be dismissed Finally, it is alleged that on about June 30, Il Progresso ceased publishing at its Emerson facility and terminated all its employees who were represented by the Unions because they supported the Unions and en- gaged in other protected concerted activities This alle- gation also claims that since about July 1, USA has re- fused to hire these employees at its Long Island City fa- cility because they supported the Unions and engaged in other protected concerted activities 19 It is alleged that Respondent, by this activity, violated Section 8(a)(1), (3), and (5) of the Act The record establishes that for some time prior to' June 20, Respondent had planned to cease operations and become a nonunion operation else- where—principally in Long Island City DeRosa testified that in 1986, Pinto discussed closing the New Jersey op- eration and reopening in Long Island City, in fact, DeRosa visited a number of potential sites for Il Progresso on Long Island City In addition, when the paper's health insurance policy was canceled in 1986, Pinto told DeRosa not to worry about it— maybe the employees would strike and the paper could shut down During the first half of 1988, Pmeyro hinted to Mantmeo on numerous occasions that the paper could close and later reopen At or about this time, Pmeyro told DeBla- sio that unless the Unions lowered their demands, "there was a strong possibility" that the paper would close That testimony, together with my prior findings of single employer and alter ego status and the evidence of Pm- eyro's surreptitious method of offering jobs to a large number of II Progresso's employees for the USA, AMM, and AVI operation, leaves no doubt in my mind that Re- spondents planned to close its operation in New Jersey to move to a nonunion operation in Long Island City, and saw the June 20 strike as a good opportunity to ac- complish this purpose By closing the Emerson facility on about June 30 and reopening in July in Long Island City, while only offering employment to certain employ- ees in an attempt to be a nonunion operation, Respond- ents violated Section 8(a)(1), (3), and (5) of the Act IX THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondents set forth above, occur- ring in connection with the Respondents' operations de- scribed above, have a close, intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof CONCLUSIONS OF LAW 1 Il Progresso is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Guild and the Typographical Union are each labor organizations within the meaning of Section 2(5) of the Act 3 Il Progresso and SPA constitute a single-integrated business enterprise and a single employer within the meaning of the Act 19 complaint also alleges, and I so find, that the strike by the Guild and the Typographical Union, commencing on about June 20 was an unfair labor practice strike The employees had gone 18 months with- out a contract, had seen II Progresso renege on its February 2 agreement with the Guild, had learned that II Progresso had not transmitted to the Guild dues that It had deducted from their pay and had failed to make other required payments to the Unions since about September 1987, had terminated some of its employees due to their concerted activities and had bounced some checks This was certainly adequate to make It an unfair labor practice strike , 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 SPA, USA, and AMM constitute a single-integrated business enterprise and a single employer within the meaning of the Act 5 USA and AMM are alter egos of Ii Progresso and SPA 6 Pinto and Maria Pinto are not alter egos of these employers nor are they individually liable for the unfair labor practices committed 7 Respondents violated Section 8(a)(1) of the Act by threatening its employees with job loss and plant closure because of their membership in, and activities on behalf of, the Guild and the Typographical Union 8 Respondents violated Section 8(a)(1) and (3) of the Act by (a) Transferring Javorsky to a lower paying position, in about November 1987, because of her activities on behalf of the Guild and other protected concerted activi- ties (b) Laying off Chiom, Mian, Pam', and Taormina, on about January 11, because of their support for the Guild and other protected concerted activities (c) Closing its Emerson, New Jersey operation on or about June 30, thereby terminating its employees who were members of the Guild or the Typographical Union and reopening its operation in Long Island City on or about July 1, while, at the same time, refusing to hire its former employees because of their union membership 9 Respondents violated Section 8(a)(1) and (5) of the Act by (a) Closing its Emerson, New Jersey facility on about June 30 and reopening its Long Island City facility, on or about July 1 as a nonunion facility (b) Failing and refusing to transmit to the Guild since about September 25, 1987, dues that it had deducted from the wages of its employees who were members of the Guild and who had properly authorized such deduc- tions (c) Failing and refusing to transmit to the Guild, since about October 1, 1987, the pension contributions it was obligated to make under its agreement with the Guild (d) Failing and refusing to transmit to the Typographi- cal Union, smce about August 1987, the fund contribu- tions it was obligated to make under its agreement with the Typographical Union (e) Failing and refusing to execute a collective-bargain- ing agreement subsequent to February 2, although it had reached agreement with the Guild on that date on all the terms and conditions of employment for a new agree- ment (f) Bypassing the Unions, in about April or May, by soliciting its employees to abandon the Unions' bargain- ing demand (g) Bypassing the Unions in about July, by soliciting its employees to enter into individual employment con- tracts and to abandon the Unions (h) Failing and refusing, since about July 5, to provide, relevant, and necessary information to the unions, as re- quested THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they be required to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act I have found that Ii Progresso unlawfully transferred Javorsky to a less-favorable position on or about Novem- ber 1987, I shall recommend that she be reimbursed by Respondents for any loss she suffered for the period until she was reinstated to her prior position I have also found that Chtom, Mum, Pasim, and Vito Taormina were laid off in violation of Section 8(a)(1) and (3) of the Act on or about January 11 I shall recommend that Re- spondents be ordered to offer them reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, as the ter- minations were labeled as lay offs rather than discharges, an expunction order is not necessary It is also recom- mended that Respondent make them whole for all losses they suffered due to their termination As with Javorsky, backpay shall be computed in accordance with F W Woolworth Co, 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987) See generally Isis Plumbing & Co, 138 NLRB 716 (1962) As I have also found that Respondents discriminatorily closed its Emerson, New Jersey facility and reopened in Long Island City on a nonunion basis, I shall also recommend that Respondents offer reinstatement to all members of the Guild and Typographical Union who were employed by II Progresso on about June 20 Said reinstatement shall be to their former positions or, if said positions no longer exist, to a substantially equivalent position, with- out prejudice to their seniority or other rights and privi- leges It is also recommended that Respondent make these employees whole in the manner as discussed above, and to recognize the Unions as the collective-bargaining representative of these employees at the Long Island City facility As regards the 8(a)(1) and (5) violations, in addition to the usual cease-and-desist order, I shall recommend that Respondents be ordered to pay to the Guild the dues and pension payments it failed to pay to the Guild and to pay to the Typographical Union the fund payments it previ- ously failed to pay I shall also recommend that Re- spondents be ordered to provide the Unions with the in- formation they requested on or about July [Recommended Order omitted from publication ]