M. Lowensten & Sons, Inc., 737 (1964)

DECISION AND ORDER

On May 26, 1964, Trial Examiner. C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in tnd were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recommending that they cease and desist therefrom and take certain affirmative action, as-set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor charges alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondents filed exceptions to the Decision and a supporting brief.' Pursuant to the provisions of Section-3(b) of -the Act, the Board has delegated its powers in' connection'with, this case to a threemember panel. [Members Fanning, Brown, and Jenkins].

The Board has considered the ' Trial, Ekami, er's Decision, the exceptions, and the entire record in the case, and hereby adopts the 'The motion of the Charging Party to strike certain exceptions filed by Respondent,

Lyman Printing & Finishing Co., Inc, is hereby denied 150 NLRB No. 66.

findings, conclusions, and recommendations of the Trial Examiner, except as noted hereinafter 2 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts, as its Order, the Order recommended by the Trial Examiner and orders that the Respondent, Lyman Printing & Finishing Co., Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifibation :

Paragraphs 2(b), 2(c), and 2(d) are redesignated 2(c), 2(d), and 2(e), respectively, and a new paragraph 2(b) is included as follows:

'Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordanc with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces.' 2 Respondents except to the Trial Examiner ' s conclusion that Lowenstein and Lyman constitute a single employer and are therefore jointly liable for the violations found herein.

Lyman, doing business in South Carolina , is one of the wholly owned subsidiaries of Lowenstein , which is located in New York Its chief executive officer is a vice president and the general manager who holds no positions with Lowenstein Theie is no common board of directors or integration of operations They do not have a centrally controlled or common labor relations policy and Lowenstein is not involved in the day -to-day operations of Lyman or otherwise involved in setting wages , hours, working conditions, or any other terms of employment of Lyman ' s employees, nor was it involved in any way in the commission of the unfair labor practices found herein . Upon the entire record, we find merit in Respondents ' exception and shall dismiss the complaint as to Lowenstein. The Trial Examiner ' s Recommended Order and notice shall be modified accordingly.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES

Upon an original and three amended charges, filed by the above -named labor organization on various dates between October 18 and November 29, 1963, the General Counsel of the National Labor Relations Board on March 13, 1964, issued his complaint and notice of hearing in the above-entitled case. An answer thereto was thereafter duly filed by Respondent Lyman Printing, but no answer has been filed by the Respondent M. Lowenstein.' The complaint alleges that both Respondents have engaged in unfair labor practices in violation of Section 8(a) (1) and ( 3) of the National Labor Relations Act, as amended. The answer of Respondent Lyman Printing denies the commission of the alleged unfair labor practices . Pursuant to notice, a hearing was held in Spartanburg, South Carolina, on April 13, 14, and 15, 1964, before Trial Examiner C. W. Whittemore.

At the hearing all parties except M. Lowenstein were represented . All were accorded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. No briefs have been received, except a memorandum from General Counsel bearing upon his motion for 'summary judgment' against the Respondent Lowenstein, upon which ruling was reserved at the conclusion of the hearing. Disi At the opening of the hearing the Trial Examiner granted a request made by Attorney Alexander to permit entry of an appearance for Attorney Rappoport. The latter, however, did not appear at the hearing, and the record reveals no communication from hint since his filing a motion for dismissal , undated, with the Regional Director prior to the hearing.

M. LOWENSTEIN & SONS, INC. 739 position of said motion, as well as that of a motion by the Respondent Lyman Printing for dismissal of the complaint, is made by the following findings, conclusions, and recommendations.

After the close of the hearing General Counsel submitted a motion, bearing upon its face the consent of counsel for the Respondent Lyman Printing, for the inclusion among the formal documents in evidence of a registered mail receipt and service.

The motion is granted and the document made a part of the record as requested.

Upon the record thus made, and from his observation of the witnesses, I make the following:

FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENTS Lyman Printing & Finishing Co., Inc., is a South Carolina corporation, and is a wholly owned subsidiary of M. Lowenstein & Sons, Inc., a New York corporation.

   This finding rests upon the admission of the answer filed by Respondent Lyman Printing, despite the claim made by counsel for Respondent M. Lowenstein in his prehearing motion referred to in footnote 1, above, that his client neither owned nor operated Lyman Printing. It is also supported by the testimony of Vice President and General Manager Magarahan of Lyman Printing. Magarahan also testified that W. H. Grier, president of Lyman, is a director of M. Lowenstein, and that Robert Benhaim is the executive vice president of both corporations. Magarahan further testified the M. Lowenstein issues a 'consolidated income statement-income tax return-and consolidated balance sheets are shown' for all its 'related corporations,' including Lyman Printing.

   Although the complaint does not specifically allege that Respondent Lowenstein and Lyman Printing constitute a single, integrated enterprise and employer, I am convinced that a conclusion to this effect is fully warranted by the evidence in the record, and it is here made.2 Unless there be evidence to the contrary, it is reasonably to be presumed that the words 'wholly owned' mean 'wholly controlled.' And here, as noted, the executive vice president of both corporations is the same individual. It would clearly be unreasonable to conclude that either labor or management policies of a wholly owned company should function counter to the open or tacit approval of the owner.3

   It is admitted and found that Lyman Printing is engaged in the processing, finishing,' and manufacturing of cotton and synthetic textile products at a plant located in Lyman, South Carolina, and that during the year preceding issuance of the complaint it (1) purchased raw materials from points outside the State of South Carolina valued at more than $100,000, and (2) during the same period sold and shipped to points outside South Carolina products valued at more than $100,000.

   It is concluded and found that the Respondents are engaged in commerce within the meaning of the Act.

   2. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization admitting to membership employees at the Lyman plant , the only plant here involved.

   3. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief issues raised by the complaint arise from the admitted fact that the Respondent Lyman discharged five employees on or about August 20, 1963, Campbell, Farmer, Foster, Johnson, and Shelton, one employee, Fuller, on August 14, and another, Barnett, on September 12. General Counsel alleges and the answer denies that these employees were dismissed to discourage union membership and activity.

   There is no dispute, and it is found, that all the above discharges occurred during the Union's organizational campaign at the Lyman plant. Nor does the Respondent 3

   The complaint does allege that the 'Respondents' engage in commerce within the meaning of the Act, and that the 'Respondents' engaged in certain unfair labor practices.

   3 See Scott Manufacturing Company, et at , 133 NLRB 1012 Also rule 15(b) Federal Rules of Civil Procedure 'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings ' Lyman deny its open opposition to the attempt to organize its some 2,000 plant employees. It concedes that it both posted and mailed to all employees a notice containing the following language:

   (1) Whether this Union shall come in at Lyman is, of course, a subject of concern to this Company. It is equally, however, a matter of serious concern to you, and our sincere belief is that if this Union were to get in here, it would not work to your benefit but, in the long run, would itself operate to your serious harm.

   In his covering letter, accompanying the mailed 'Notice,' General Manager Magarahan stated to employees that 'this Notice is of vital importance to everybody who works at Lyman.' In addition to the discharges and the above-quoted notice, the complaint alleges and the answer denies the commission of other management conduct of interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act.

   B. Other conduct of interference, restraint, and coercion Competent and credible testimony shows...