P. C. Sportswear Co.

APRIL SPORTSWEAR CO 853 April Sportswear Co., Inc. and Edson R. Duquette, d/b/a P. C. Sportswear Company and Interna- tional Ladies' Garment Workers' Union Local No. 242, AFL-CIO. Case 1-CA-24372 September 26, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIAIT On November 18, 1987, the National Labor Re- lations Board issued an Order (not included in bound volumes) adopting, in the absence of excep- tions, the decision of the administrative law judge directing April Sportswear Co, Inc , inter aim, to take certain affirmative action necessary to effectu- ate the policies of the Act On May 12, 1988, the United States Court of Appeals for the First Cir- cuit entered its judgment enforcing in full the Board's Order 1 A controversy having arisen over the amounts of money owed under the terms of the Board's Order as enforced, and over whether Edson R Duquette, d/b/a P C Sportswear Company is an alter ego of and/or a successor to April Sportswear Co, Inc , the Acting Regional Director for Region 1 on De- cember 1, 1989, issued a compliance specification and notice of hearing alleging the amount of back- pay due employees and the amount of fringe bene- fits fund contributions due, and further alleging that Edson R Duquette, d/b/a P C Sportswear Company is an alter ego of and/Or a successor to Apnl Sportswear Co, Inc (collectively the Re- spondent) In addition, the compliance specification prescribes that the Respondent shall honor and apply all the terms in the collective-bargaining agreement with the Union effective June 15, 1985, and restore and place in effect all terms and condi- tions of employment in the collective-bargaining agreement that were unilaterally changed and abandoned by the Respondent Although copies of the compliance specification and notice of hearing were duly served on the Respondent, the Respond- ent has failed to file an answer By letter of Janu- ary 23, 1990, the General Counsel reminded the Respondent of its obligation to file an answer to the compliance specification and of the counsel for the General Counsel's intent to file a Motion for Summary Judgment if an answer were not received by January 26, 1990 The Respondent failed to file an answer The Respondent subsequently signed an agree- ment to postpone the compliance specification hearing indefinitely The agreement stated that the 'No 88-1324 (unpublished) Respondent understood that the General Counsel would file a Motion for Summary Judgment and that the granting of such a motion would result in a finding that Edson Duquette, d/b/a P C Sports- wear Company is an alter ego of and/or successor to April Sportswear Co, Inc and that Edson R Duquette would be held personally and individual- ly liable along with April Sportswear Co, Inc and P C Sportswear Company for the amounts alleged in the compliance specification On July 18, 1990, the General Counsel filed with the 'Board a Motion for Summary Judgment, with exhibits attached On July 20, 1990, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Gen- eral Counsel's motion should not be granted The Respondent has failed to file a response The alle- gations in the motion are therefore undisputed The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment Section 102 56 of the National Labor Relations Board's Rules and Regulations, in pertinent part, states (a) Filing and service of answer, form —Each respondent alleged in the specification to have compliance obligations shall, within 21 days from the service of the specification, file an original and four copies of an answer thereto with the Regional Director issuing the specifi- cation, and shall immediately serve a copy thereof on the other parties (c) Effect of failure to answer or to plead spe- cifically and in detail to backpay allegations of specification —If the respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in sup- port of the allegations of the specification and without further notice to the respondent, find the specification to be true and enter such order as may be appropriate According to the uncontroverted allegations of the Motion for Summary Judgment, the Respond- ent, despite having been advised of the filmg re- quirements, has failed to file an answer to the com- pliance specification We therefore deem the allega- tions in the compliance specification to be admitted as true, and grant the General Counsel's Motion for Summary Judgment 299 NLRB No 128 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT At all material times until about November 14, 1986, Respondent April Sportswear Co, Inc (Re- spondent April) had an office and place of business in Whitman, Massachusetts, where it engaged in the manufacture of ladies' garments Since about September 1, 1987, Edson R Du- quette, as a sole proprietor doing business as and trading under the name of P C Sportswear Com- pany, initially with an office and place of business in Whitman, Massachusetts, and subsequently with his present office and place of business in Brock- ton, Massachusetts, has been engaged in the manu- facture of ladies' garments On about September 1, 1987, P C Sportswear Company was established by Respondent Duquette as a subordinate instrument to, and a disguised con- tinuation of, Respondent April By virtue of the acts and conduct described above, Respondent April and Respondent Duquette are, and have been at all times material here, alter egos and a single employer within the meaning of the Act Since about September 1, 1987, and continuing to date, Respondent Duquette has continued to op- erate the business of Respondent April under the name of P C Sportswear Company in basically unchanged form Since about September 1, 1987, and continuing for a substantial time thereafter, Re- spondent Duquette had, as a majority of his em- ployees and supervisors, individuals who were pre- viously employees and supervisors of Respondent April Prior to engaging in this conduct, Respond- ent Duquette was put on notice of the potential li- ability of Respondent Apnl in Case 1-CA-24372 by reason of the fact that Respondent Duquette was, at all times material, in overall charge and control of the operations of Respondent April By virtue of the conduct and operations de- scribed above, Respondent Duquette has continued the employing entity with notice of Respondent April's potential liability to remedy its unfair labor practices, and is a successor to Respondent April Since about September 1, 1987, and continuing to date, Respondent Duquette has failed and re- fused to apply all the terms of Respondent April's collective-bargaining agreement with the Union ef- fective June 15, 1985, including those provisions re- lating to wage rates, overtime pay, holiday pay, and contributions on behalf of bargaining unit em- ployees to the fringe benefits fund Respondent Du- quette engaged in these acts and this conduct with- out prior notice to the Union and without affording the Union an opportunity to negotiate and bargain with respect to these acts and this conduct ORDER The National Labor Relations Board orders that the Respondent, April Sportswear Co, Inc , Whit- man, Massachusetts, and its successor and alter ego, Edson R Duquette, d/b/a P C Sportswear Company, Brockton, Massachusetts, its officers, agents, successors, and assigns, jointly and several- ly, shall make whole the employees named below by paying them the wages indicated opposite their names, plus interest in the manner prescribed in New Horizons for the Retarded, 2 less tax withhold- ings required by Federal and state law The Re- spondent shall also pay the total amount for fringe benefits fund contributions set forth below plus any necessary additional amount as prescribed in Merryweather Optical Co 3 IT IS FURTHER ORDERED that the Respondent shall honor the terms of the collective-bargaining agreement with the Union effective June 15, 1985, and shall restore and place in effect all terms and conditions of the collective-bargaining agreement which the Respondent unilaterally changed and abandoned Employees Total Owed4 Alves, M $504 75 Amanlla, L 62 13 Andrade, G 266 32 Andrade, R 662 28 Andrade, S 385 40 Balboni, R 00 Barbosa, E 326 45 Barbosa, R 100 60 Baretto, M 489 51 Bigness, B 00 Brands°, M 407 06 Brae, I 69 95 Buckley, C 1,123 75 Cardoso, M 213 00 Carrozza, H 461 26 Cataldo, L 309 38 Chaves, M 63 00 Chiros, H 168 75 Cruz, M 40 25 L 49 00 DeFlavis, I 209 00 2 283 NLRB 1173 (1987) 3 240 NLRB 1213 (1979) 4 Because the Respondent failed to furnish payroll records for 1987 and because payroll records for September 2-29, 1989, were unavailable, the amounts owing to individual employees for these periods are not known The General Counsel retains the right to amend the compliance specifica- tion to Include these additional amounts and accrual of backpay and ben- efits for any additional weeks and quarters beyond those for which com- putation has been made 5 Payroll records for September 2-29, 1989, were not available The General Counsel retains the right to amend the compliance specification to include fringe benefits fund contributions for this period and for any additional weeks and quarters beyond those for which computation has been made APRIL SPORTSWEAR CO 855 DePins, M 269 50 Paean, E 621 00 Dudley, F 87 10 Papadopolous, P 00 Duquette, E 82 06 Parmale, P 52 50 Duquette, R Co Passias, Z 631 76 Evora, Y 188 06 Penha, D 863 70 Fernandes, A 378 00 Pma, F 275 00 Fernandes, E 555 00 Pina, M 558 86 Figueroa, R 2,758 89 Plasse, J 1,879 50 --. Garcia, M 832 65 Ramos, M 943 12 Gomes, J 57 20 Ramos, N 00 Gomes, Luis 00 Reis, L 00 Gomes, Lihana 53 08 Reyes, M 600 Goncalves, M 27 00 Rodrigues, H 495 25 Goncalves, R 1,031 00 Rosarios, R 57 20 Goncalves-Semedz, A 39 50 Roukas, K 419 25 Hoyt, G 441 31 Salamove, M 1500 Kendzia, B 339 62 Santos, M 218 75 Kendzia, M 287 63 Sena, D 569 25 Kmppenberg, E 712 06 Swift, F 00 Kollis, N 60 75 Tann, M 157 50 Kwon, Y 1,322 15 Texiera, M 00 Lopes, A 27 30 Therrien, R 18 38 Lopes, C 365 63 Williams, L 146 25 Lopes, M oo Williams, M L 340 38 Lopestonseca, Irlanda 12 00 Zarrella, C 115 50 Margaritas, T 1,039 75 Zygmunt, Edwiga 223 44 Milian, L 126 00 $25,964 06 Morais, L 55 35 Morales, A 157 50 Fringe Benefits Fund Contributions Nssarella, C 00 May 20, 1986-Nov 14, 1986---$36,697 62 Olivera, A 138 54 Sept 1, 1987-Sept 1, 1989—$93,676 215