Garwin Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 664 (N.L.R.B. 1965)

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing these employers to recognize or bargain with us as the representative of their
employees, or forcing such employees to accept us as their representative, where
these employers have lawfully recognized another labor organization and a
question concerning representation may not appropriately be raised.
INTERNATIONAL HOD CARRIERS' BUILDING & COMMON
LABORERS' UNION OF AMERICA, ROAD & HEAVY
CONSTRUCTION, LOCAL 1298, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
Employees may communicate directly with the Board's Regional Office, 16 Court
Street, Brooklyn, New York, Telephone No. 596-3751, if they have any questions
concerning this notice or compliance with its provisions.
Garwin Corporation ; S'Agaro, Inc ., a New York Corporation;
S'Agaro, Inc ., a Florida Corporation ; Joseph Winkelman;
Milton Mirsky and Local 57, International Ladies' Garment
Workers' Union , AFL-CIO. Case No. 29-CA-45 (formerly
2-CA-9791). June 28,1965
DECISION AND ORDER
On December 31,1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents and the Charging Party filed
exceptions to the Trial Examiner's Decision with supporting briefs.
The National Labor Relations Board has reviewed the rulings of the
Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the entire record in this case, including the Trial Exam-
iner's Decision, the exceptions, and briefs,' and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations, with
the modifications indicated below.
For the reasons fully set forth in his Decision, we agree with the
Trial Examiner's conclusions that Respondents violated Section 8 (a)
(1), (3), and (5) of the National Labor Relations Act, as amended,
by closing their New York facility, discharging their employees, and
removing their operations to Miami, Florida, for the purpose of
depriving said employees of rights guaranteed by Section 7 of the Act
and to avoid dealing with the Union as majority representative of
1 The Respondents ' request for oral argument Is hereby denied because the record, the
exceptions , and briefs adequately present the issues and positions of the parties.
153 NLRB No. 59.
GARWIN CORPORATION; S'AGARO, INC., ETC. 665
said employees.2 We also agree with his further finding that Respond-
ents independently violated Section 8(a) (5) and (1) of the Act by
failing to consult and bargain with the Union with respect to their
decision to move its operations to Miami, Florida.
In recommending a remedy for the violations, the Trial Examiner
rejected the Charging Union's request that Respondents be directed to
close their Florida plant and resume operations in New York. Instead,
he followed the Board's customary practice and recommended alterna-
tive remedies depending upon Respondents' own election either to
return to the former area of operation or to remain at the new location.3
The Union excepts to the Recommended Order, urging the Board
to reexamine its remedial policy in discriminatory plant removal cases
and to modify its standard order in a manner which will effectively
restrain runaway employers from defeating employee rights and
evading statutory bargaining obligations. Among its objections to
the present remedial scheme, the Union points specifically to the lim-
ited bargaining order which is operable if the Employer elects to
remain at the runaway location and contingent "only upon proof" that
the Union represents a majority of employees at that facility. In this
connection, the Union argues that the improbability that many dis-
criminatees will accept reinstatement at the distant Florida plant ren-
ders it unlikely that the Union will attain majority support at that
location, and that Respondents will therefore retain the fruits of their
unlawful conduct; namely, an unorganized plant. To avoid this con-
sequence, the Board is asked to compel Respondents to restore their
New York operations, or, in the alternative, to require Respondents
to bargain at either location, without further requiring the Union to
reestablish its representative status.
While it is clear that Respondents closed the New York facility,
discharged their employees, and reopened in Florida to avoid bargain-
ing with the Union, and that such conduct was in deliberate violation
of statutory obligations, we nevertheless do not believe that it is appro-
priate, or necessary, to issue an order requiring a return to New York
in the instant case. The violations, however, are of serious nature, and
we agree with the Union that an appropriate remedy should, to the
extent possible, remove any consequences of the unfair labor practices
which enable the Respondents to benefit from their unlawful course of
conduct. Upon reexamination of our remedial policy in this area, it
2 As the instant case involves the traditional runaway-shop situation, the decision of
the U S Supreme Court in Textile TVorke,s v Darlington Co, 380 U S. 263, 272-273, does
not affect the conclusions of the Trial Examiner adopted herein
3In the Trial Examiner's Decision, the violations are redressed through conventional
8(a)(1), (3 ), and (5) remedies if the Respondents decide to return to New York. How-
ever, if Respondents elect to remain in Florida, they are obligated to offer reinstatement
and reimburse discriminatees for costs entailed in moving themselves, their families, and
household effects. Discriminatees are also entitled to backpay from the date of discharge
to the date they secure substantially equivalent employment But the bargaining order
is conditioned upon the Union's acquisition of actual majority support at the Florida plant.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is our opinion that this objective may be accomplished without imposi-
tion of a disproportionate financial hardship upon the Respondents by
modifications within the framework of the existing remedial scheme.
As has been indicated, in cases where an employer relocates a plant
at a distant site in order to avoid statutory bargaining obligations,
the Board has not imposed an obligation to bargain at the new location
until the statutory representative could reestablish its representative
status at the new location.-' We are now persuaded, however, that an
effective bargaining order at the runaway facility should be issued if
the purposes of the Act are to be served in this type of case. The fact
that discriminatees will probably not accept reinstatement at the Flor-
ida plant, coupled with the continuing coercive effects of Respondents'
unfair labor practices, renders it highly probable that issuance of a
conditional bargaining order that will enable Respondents to achieve
their primary illegal objective; i.e., to escape bargaining. In the cir-
cumstances , the interests of newly hired employees whose very jobs,
and hence statutory protection,5 exists by virtue of: (1) Respondents'
unfair labor practices, (2) the Board's unwillingness to order the
return of the plant to its original location, and (3) the failure of dis-
criminatees to displace them by accepting reinstatement,6 should not
be preferred at the expense of a bargaining order which will dissipate 7
and remove the consequences of a deliberate violation of statutory
obligations." On balance, therefore, their interests must yield to the
statutory objective of fashioning a meaningful remedy for the unfair
labor practices found.
For the foregoing reasons, we shall modify the Trial Examiner's
Recommended Order to require Respondents to recognize and bar-
gain with the Union, on request, wherever Respondents ultimately
decide to locate.9
Although we have found that the freedom of choice of new hires at
the Florida plant should not take precedence over the need for an effec-
4 See , e g., Mount Hope Finishing Company, et al., 106 NLRB 480, 501 ; Industrial
Fabricating , Inc.; et al. , 119 NLRB 162 , 173; Sidele Fashions , Inc.; et al, 133 NLRB
547, 555-556.
5 Respondents in the instant case did not merely transfer operations to an existing
facility, manned by an existing work force , but closed its plant , discharged its employees,
and then reopened an entirely new facility which it operated with new hires
8 The standard 8(a) (3) remedy requires discharge of replacements if necessary to rein-
state discriminatees.
7 Franks Bros Company v. N L R B , 321 U S. 702, 704
8 Consolidated Edison Co. of New York, Inc. v. N L R B., 305 US 197, 236
6 An order herein that Respondents bargain , without requiring the Union to reestablish
majority support , is in accord with precedent in related contexts Thus, the Board as
a matter of established policy, issues broad bargaining orders , despite actual rejection of
a bargaining agent , if loss of majority is attributable to the employer 's unfair labor prac-
tices. Joy Silk Mills , Inc , 85 NLRB 1263, enfd 185 F 2d 732, 744 ( C.A D C ) ; Delight
Bakery, Inc , 145 NLRB 893 , 908-909. Pursuant to this policy, bargaining orders have
not been rendered inappropriate by a subsequent expansion of the bargaining unit,
Tishomingo County Electric Power Association , 74 NLRB 864 , 866-868, or as a result of
normal plant turnover , Franks Bros . Company, 44 NLRB 898 , affd. 321 U . S 702; Western
Aluminum of Oregon Incorporated , et al., 144 NLRB 1191, 1192.
GARWIN CORPORATION; S'AGARO, INC., ETC. 667
tive bargaining order, we are nevertheless mindful that these employ-
ees have a continuing interest in both terms and conditions of employ-
ment and effective representation for collective-bargaining purposes.
We believe that these interests may, and should, be given effect through
a minor relaxation of the Board's normal contract-bar rules, which
will provide employees at the Florida plant an opportunity to observe
and thereafter determine whether they wish continued representation
by the Union. Accordingly, if upon compliance with our Order herein,
the Union can reestablish its majority at the Florida plant, the normal
contract-bar rules shall apply.10 If, on the other hand, the Union is
unable to reestablish its majority, we shall deem any collective-bar-
gaining agreement resulting from our Order to bargain herein as a bar
to a timely petition, filed pursuant to Section 9(c) (1) (A) of the Act,
for a period of only 1 year from the date of execution of any such
contract.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondents Garwin Corporation; S'Agaro,
Inc., a New York corporation ; S'Agaro, Inc., a Florida corporation;
their officers, agents, successors, and assigns; and Respondents Joseph
Winkelman and Milton Mirsky, their agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Delete paragraph 1(a) , substituting the following therefor :
"(a) Refusing to bargain collectively, upon request, with Local 57,
International Ladies' Garment Workers' Union, AFL-CIO, as the
exclusive representative of all production and maintenance, packing,
and shipping employees, excluding office clerical employees, guards,
and supervisors."
2. Delete paragraph 2(e), substituting the following therefor:
"(e) Bargain collectively, upon request, with Local 57, International
Ladies' Garment Workers' Union, AFL-CIO, as the exclusive repre-
sentative of all production and maintenance, packing, and shipping
employees, excluding office clerical employees, guards, and supervisors,
with respect to rates of pay, wages, hours of employment, and other
working conditions, and, if any understanding is reached, embody such
understanding in a signed agreement."
10 For the above purposes , the Union will be taken to represent an actual majority at
the Florida plant, only if, upon compliance with the order of reinstatement herein, the
total number of the former New York employees who have accepted employment at the
Miami plant , plus the other employees at that plant who have in the meantime voluntarily
joined the above -named Union , constitute a majority of all the employees in the ap-
propriate unit at that plant.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Delete the first two paragraphs that begin with the words "WE
wni" from the Appendix attached to the Trial Examiner's Decision,
substituting the following therefor :
WE WILL bargain collectively, upon request, with Local 57, Inter-
national Ladies' Garment Workers' Union, AFL-CIO, as the bar-
gaining representative of our employees in the appropriate unit
described below, with respect to rates of pay, wages, hours of
employment, and other conditions of work, and, if an understand-
ing is reached, embody it in a signed agreement.
4. Delete the fourth paragraph, which begins with the words "The
appropriate bargaining unit . . .," from the Appendix attached to the
Trial Examiner's Decision, substituting the following therefor:
The appropriate bargaining unit is:
All our production, maintenance, packing, and shipping employ-
ees, excluding office clerical employees, guards, and supervisors as
defined in the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by the Charging Party, herein called the Union, the General
Counsel on May 25, 1964, issued a complaint against Respondents. In general, the
complaint alleges that Garwin Corporation, through its agents Winkelman and Mir-
sky, violated Section 8(a)(1), (3), and (5) of the Act by terminating its New York
operations, discharging its employees, and removing to Miami, Florida, where it
resumed those operations as a successor or alter ego under the name of S'Agaro,
Inc., in order to avoid dealing with the Union as the majority representative of the
Garwin employees. The complaint also alleges that Respondents further violated
Section 8(a) (5) and (1) by failing to give advance notice to the Union and affording
it opportunity to bargain with Respondents concerning the discontinuance of their
operations in New York and the removal thereof to Miami. Respondents denied all
of the unfair labor practices charged.
Pursuant to notice, a hearing was held before Trial Examiner Samuel M. Singer
in New York City on July 7 through 9, 1964, and in Miami, Florida, on July 21
through 27, 1964. All parties appeared and were afforded full opportunity to be
heard and to examine and cross-examine witnesses. Briefs have been received from
all parties.l
Upon the entire record in the case, the briefs, and my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENTS
Garwin Corporation, herein called Garwin, is a New York corporation which,
until approximately August 1963, was engaged in the manufacture and sale of ladies
and junior swimsuits at its place of business, 147-32 Jamaica Avenue, Queens, New
York. S'Agaro, Inc., herein called S'Agaro of Florida or S'Agaro, is a Florida cor-
poration, formally organized in July 1963 which, since about September 1963, has
likewise manufactured and sold ladies and junior swimsuits at its principal place of
business, 6700 NW. 37th Court, Miami, Florida.
S'Agaro, Inc., a New York corporation, herein called S'Agaro of New York, was
organized in April 1963. As hereafter found, S'Agaro of New York had not manu-
factured or sold products of any nature but was an instrumentality in Respondents'
plan to remove its New York operations to S'Agaro in Florida. At all times mate-
rial herein, Joseph Winkelman has been an officer of Garwin. At all times material
herein, Milton Mirsky has been an officer of S'Agaro of Florida and also during a
portion of the period herein involved, an officer of Garwin.
1 One brief, signed by Roy M. Schenerlein, Esq., was filed on behalf of all Respondents.
GARWIN CORPORATION; S'AGARO, INC., ETC. 669
Within the last 12 months of its operations in New York, Garwin manufactured
and shipped from its Jamaica Avenue plant products valued in excess of $50,000 to
points outside New York, and also purchased and received at its said plant mate-
rials from points outside of New York. Commencing around September 1963,
S'Agaro of Florida manufactured and distributed at its Hialeah plant, products val-
ued at an annual rate in excess of $400,000, of which products valued at an annual
rate in excess of $50,000 were shipped from said plant to points outside of Florida.
During the same period it also purchased and received at its Miami plant, directly
from points outside of Florida, goods and materials valued at an annual rate of
$50,000.
I find that at all times material herein Respondents have been employers engaged
in commerce within the meaning of the Act. Charles T. Reynolds, Sr., doing busi-
ness as Charles T. Reynolds Box Company, et al., 139 NLRB 519, 520, enfd. 324
F. 2d 883 (C.A. 6); Sidele Fashions, Inc., et al., 133 NLRB 547, 561, enfd. sub. nom.
Philadelphia Dress Joint Boat d, International Ladies' Garment Workers' Union, AFL-
CIO v. N.L.R.B., 305 F. 2d 825 (C.A. 3).
U. THE LABOR ORGANIZATION INVOLVED
Local 57, International Ladies' Garment Workers' Union, AFL-CIO, is a labor
organization within the meaning of the Act.
IIl. THE UNFAIR LABOR PRACTICES
A. Garwin's opei ations in New Yot k
Garwin commenced operations in 1953 or 1954. Joseph ("Red") Winkelman was
president and sole stockholder during its operative existence and Sam Winkelman,
his father, vice president until his death in 1959. Milton Mirsky, Joseph's brother-
in-law, became associated with Garwin around 1959, succeeding Sam Winkelman as
vice president .2
Garwm's top, active officials were Winkelman, Mirsky, and Vera (Vita) Maniaci.
Belle Okrent, Garwin's bookkeeper, credibly testified that Winkelman primarily han-
dled administrative matters and Mirsky production matters, although there was never
any precise demarcation between these functions. Winkelman also handled sales.
Mirsky's chief job was to order piece goods and to schedule orders into production,
seeing to it that orders were filled in accordance with customer requirements. Prior
to termination of Garwin's operations, Mirsky received $175 per week for his services.3
Vera Maniaci, originally employed in 1953, was Garwin's head designer and pro-
duction manager. She was also in charge of hiring and firing, and fixed (and when
necessary negotiated) the employees' piece-good rates. Maniaci's weekly salary was
$125.
Garwin's swimwear business was seasonal. In June of each year the production
workers would be laid off until recalled in October and November when the season
got under way; only the pattern or sample workers (sewing machine operators skilled
in these operations) worked in the summer months-and then only until they made
up samples of garments to be used during the ensuing season. In the season ending
June 1963, Garwin employed around 50 to 60 employees.
During the 1963 season Garwin produced garments under its own name, as well
as under the labels Nettie Rosenstein, Tall Girls, and Costa Del Sol. It also manu-
factured a "Winky Jr." line of bathing suits in accordance with a sales agreement
entered into by it with Juniorite in 1960. Finally, it produced garments as a con-
tractor for Modern Juniors, under an agreement first entered into with Modern in
October 1961.4
2 Winkelman testified that Mirsky was made vice president to enable him to sign checks
in Winkelman's absence on sales trips Mirsky remained vice president until sometime
in 1962 when he resigned Mirsky admitted there were no changes in his duties or func-
tions after he ceased being an officer.
3 Mirsky credibly testified that he had started with $85 or $100 a week when he started
with Garwin in 1959, stating that business did not warrant full-season employment at that
time. He later worked full time for Garwin, although retaining ownership of a retail
sports shop which he attended on evenings and Saturdays.
* Under this agreement, Winkelman received a normal contractor profit on garments
manufactured according to Modern's specifications, and an additional $ 400 per week for
advice and services rendered to Modern
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Garwin's contractual relations with the Union
On June 26, 1961 , Garwin ( through Winkelman ) signed a collective -bargaining
agreement with the Union , recognizing the Union as majority representative of its
production employees , providing for a union -security clause requiring Garwin em-
ployees to join the Union after 30 days of employment , and containing conventional
provisions on wages and other conditions of employment .-9 On December 3, 1962,
the parties renewed this contract with modifications , extending its termination date
from December 31, 1962, until December 31, 1963. It is clear , as Respondents'
counsel aptly puts it in their brief , that relations between the parties were "something
less than mutual admiration" during the life of the contracts . Thus, at the very in-
ception ( around July 1961 ), a dispute arose between Winkelman and the Union over
the latter's refusal to permit unit employees to work on garments of a contractor
(Mort ) unless Winkelman agreed to j oin a dress association , the membership fee in
which was apparently $ 1,000. In January 1963 , Winkelman and Maniaci disputed
restrictions imposed by the Union on overtime work.6 And in March or April 1963,
a further dispute arose between Winkelman and the Union 's accountant (Feldman)
as to whether Garwin (as contractor for Modern ) or Modern ( as manufacturer) was
required to make the health and welfare payments to the Union under the collective
agreement ,7 the Union insisting that Garwin was responsible therefor and Winkel-
man that Modern should pay them ( as Modern theretofore had done by prior
arrangement) .s
C. Events leading to establishment of S'Agaro of Florida
In April 1963 , Winkelman or Mirsky , or both, caused a new apparel manufacturing
company to be incorporated in New York under the name of S'Agaro , Inc.9 Shortly
5 The appropriate unit was described as consisting of all nonsupervisory production,
maintenance , packing, and shipping employees At the hearing , I rejected a proffer of
testimony by Respondents to show ( through Winkelman ) that at the time of execution
of its contract ( June 1961 ) the Union did not represent a majority of Garwin employees
in the unit . Not only did Gaiwin through Winkelman sign the agreement acknowledging
the Union 's majority status , but Garwin and Winkelman expressly stipulated at the outset
of the hearing session in New York that the Union was the majority representative of the
Garwin employees "during the existence of Garwin ," and "the life of this [bargaining]
agreement ." Counsel for S'Agaro and Mirsky did not attend the hearing sessions in New
York although duly served notice thereof
8 The collective agreement provided that overtime work "may be performed only upon
Union approval ." Maniaci testified she was unaware of this
7Article 15 ( schedule A ) of the contract provided that the signatory employer (Gar-
win) "shall pay" 7 percent of the total gross weekly payroll to the Union ' s health and
welfare fund , this figure was increased to 71/. percent on February 1, 1963. Under
article 17 , Garwin was also responsible for the health and welfare payments to employees
of an "outside shop" "with respect to any work done by such outside shop on garments
for the employer [Garwin]."
8 As will be shown, Respondents contend that loss of the Modern account in July 1963-
as a result of Modern ' s unwillingness to continue making the health and welfare pay-
ments to the Union-was one of the motivating factors for the ultimate discontinuance of
the New York operations
The foregoing findings ( regarding the Mort, overtime , and Modern incidents ) are based
primarily on the testimony of Winkelman and partly on that of Maniaci. For reasons
which will hereafter appear , I have discredited much of Winkelman ' s testimony in this
proceeding because I found Winkelman to be a generally unreliable witness. Winkel-
man's descriptions of the described incidents were undoubtedly highly exaggerated and
colored by what appears to be his obsessive animus against the Union . Nevertheless, I
am convinced that to the extent above summarized the described incidents in fact took
place. The suggestion of counsel for Respondents that Winkelman's accounts must be
credited because General Counsel failed to adduce controverting evidence , must be rejected
It is well settled that testimony by an interested witness need not be accepted even though
uncontradicted N L R.B. v. Walton Manufacturing Company d Loganville Pants Co.,
369 U S 404 , 407-408.
0 Bookkeeper Belle Okrent testified that Winkelman formed the corporation and that,
pursuant to his instructions , she communicated with an attorney about the matter.
Mirsky testified that it was he (Mirsky ) who brought about the incorporation . The cer-
tificate of incorporation , executed April 5, was filed April 12, 1963 Mirsky was its
president. The legal fees for the incorporation were later paid by Mirsky out of the
funds of S 'Agaro of Florida , subsequently incorporated by Mirsky.
GARWIN CORPORATION; S'AGARO, INC., ETC. 671
before then, Winkelman and Mirsky (brothers-in-law) met with Renato Levi and
his wife Daisy in Miami, to discuss opening of a shop there to manufacture a reversi-
ble bathing suit patented by the Levis. Mirsky was introduced as the president of
the new company to be formed under the name of S'Agaro and they discussed the
execution of a license agreement to permit the new company to produce the patented
article as one of its lines. Also discussed was a suitable location for the new factory.
On May 14, 1963, Winkelman wrote Mrs. Levi, acknowledging receipt of the
license agreement draft previously sent him, and discussing the royalty payments and
other proposed contract terms, the methods and means of styling, selling and dis-
tributing the garments, and arranging for his designer to visit the Levis shortly
thereafter. Winkelman went on to say, "I am very interested in finding a factory as
you suggested in Hialeah or any other part of the area," and asked Mrs. Levi to
contact several real estate brokers. The next day (May 15), Winkelman wrote Mrs.
Levi accepting the terms of the contract and informing her that he and his designer
would see her a week later. The license agreement was signed on May 22 by the
Levis and Mirsky (and his niece Sheila Winkelman) on behalf of S'Agaro of New
York.io Mrs. Levi then instructed Maniaci, Garwin's head designer and production
manager, how to use the patented process.
Renato Levi testified that in one of his discussions with Winkelman shortly before
the signing of the license agreement, he raised the question of whether Winkelman
intended to continue manufacturing as a union shop. Levi pointed out that although
his own company (Daisy Originals, Inc.) was unionized, it was not necessary for
Winkelman to remain unionized . Winkelman conceded discussing the subject with
Levi (in the presence of Mirsky), but went on to quote Levi as advising him to "stay
away from the union" and as telling him that "Mr. Metz [business agent of Local 415
of ILGWU in Miami, a sister local of the Union here] was a strong arm racket boy"
and that the manufacturers in Miami (who were shortly to commence negotiating
a new contract with Local 415) "were going to fight the union's contract." Levi
denied making the remarks attributed to him by Winkelman. I do not find it neces-
sary to resolve the conflicting details in the testimony of Levi and Winkelman,
although I find that Levi did advise Winkelman (as the latter testified) to "stay
away from the Union."
Winkelman testified that immediately after the above discussion with Levi, he
discussed the union problem with Mirsky and advised him to keep away from the
Union and employ "a labor lawyer" before setting up shop in Miami. Winkelman
testified:
I enumerated all the list of labor difficulties with the union, that they come at
you like a strong arm boy, there is no sense to this, no reasoning behind the
union, and anything that you did with the union is wrong because they are
nothing but strong arm boys, they do nothing for the workers and they do
nothing for the manufacturer, and if it's possible down here to stay out of their
clutches, to stay out of their clutches as long as possible, I strongly recommend
that you get a [labor] lawyer and that is what I told him.
In the same month (May 1963), Salvatore Giardina, the Union's business agent,
asked Vera Maniaci, Garwin's production manager, about rumors he had heard
regarding Garwin's intention to move its plant. Maniaci replied that the Company
was "trying to look for another location . . . in the area" (New York), and asked
Giardina to help find a place.11
10 Mirsky testified that it was at this time that he first learned of the New York in-
corporation of S'Agaro ; that he had at all times intended to incoiporate it in Florida,
and that he thereupon instructed his attorney to cause the formation of S'Agaro of
Florida. Mirsky further testified that except for the execution of the license agreement
in the name of the New York corporation, nothing was transacted in its name , however,
the New York corporation has never been dissolved. As hereafter noted, S'Agaro of
Florida was incorporated in July 1963 and the Levis thereafter dealt with that corpora-
tion. But, the license agreement was never transferred from the New York to the Florida
corporation
n Maniacs did not controvert Giardina's testimony. She testified that pursuant to
Winkelman's instructions she started looking for a new location in Jamaica as early as
February in anticipation of the expiration of the existing lease in September 1963.
Winkelman testified that he had informed R. R Cerbone, the Union's Jamaica manager
as far back as February, of his intention to relocate in Queens, New York, as soon as the
lease expired, asking Cerbone's assistance in locating a suitable plant. According to
Winkelman, he told Cerbone of the "trouble" he had with his landlord, who insisted on
charging him $13,000 for installing sprinklers in the building Cerbone referred to a
conversation along these lines with Winkelman in July 1963.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In June, Mrs. Daisy Levi, one of the Florida licensors of the patented swimsuit,
visited the Garwin plant in Jamaica, to check the samples Maniacs had made utiliz-
ing the patented process. Mrs. Levi was met at the airport by Winkelman and
Maniaci.
Rumors about the relocation of the New York plant continued. In July, Giardina,
the Union's business agent, again spoke to Maniaci about the matter. Maniaci com-
mented that they were currently making samples and rhetorically asked, "Does it
look as though we're moving?" About the same time, a Garwin employee (Mar-
garet Sinacore) also inquired about the rumor. Maniaci replied that relocation was
"a possibility," that the Company was looking for another place, and that it would
not move out of town but only "around the neighborhood." Maniacs said the same
thing to the Union's shop chairman at the plant (Jean Panzarella), specifically
denying that the shop would move to Florida.12
D. The formation of S'Agaro of Florida
In the meantime, Mirsky proceeded to reincorporate the New York S'Agaro corpo-
ration as a Florida corporation. The articles of incorporation were filed on June 19,
1963, and the certificate of incorporation was issued in Florida on July 8, 1963.13
Officers and directors of the corporation included Mirsky (president) and his wife
Claire (vice president); Winkelman was not named an officer.
On July 10, Winkelman placed a help-wanted advertisement on behalf of S'Agaro
of Florida in the Miami Herald for a patternmaker, foreman, and cutters.14 Prior
'a Maniaci did not controvert the foregoing statements attributed to her by Giardina,
Sinacore, and Panzarella. She did dispute Panzarella's further testimony that she had
told Panzarella in September (the Labor Day weekend) that "the place had moved to
Florida and that she was going along with them." She likewise disputed Panzarella's
testimony that Maniaci later (around the Christmas holidays) told her that "the main
reason" for the move to Florida "was that Mr. Winkelman wanted to get out of the
union" Maniaci admitted having a "friendly" telephone conversation with Panzarella
around Christmas, in which they discussed "family affairs" and her stay in Florida. On
the basis of the entire record, including the inherent probabilities, I credit Panzarella's
testimony. In this connection, I note that Maniaci was extremely evasive and equivocal
about the circumstances surrounding her first trip to Florida in May 1963 to discuss the
patented reversible garment with Mrs Levi, including whether she took this trip at the
behest of Winkelman or Mirsky personally. At one point she testified that she did not
even consult Winkelman about making the trip, although claiming that Winkelman "was
my only boss" and she "never" took instructions from Mirsky.
'aThe lease for the building occupied by S'Agaro of Florida (6700 NW. 37th Court,
Miami) was signed on May 23, 1963, for the term September 1, 1963, to August 30, 1968.
The lessor was Flomil , incorporated on May 28 , 1963, by the same individuals as S'Agaro,
with the same officers , directors, and stockholders
14 The letter placing the advertisement was on "S'Agaro" stationery, listing Garwin's
New York address (147-32 Jamaica Avenue). The advertisement stated, "Contact Mr.
Mirsky, Hotel Seville on Thursday, July 18th." Harry Metz, Local 415's business agent
in Miami, testified that in accordance with his practice of checking for "runaway shops"
in the Miami area, he called the hotel in answer to the advertisement on July 18 and
asked for Mirsky ; that when a girl stated that Mirsky was "not in," he gave her a
fictitious name (Stewart) and his home telephone number ; that later that night an in-
dividual calling himself Winkelman telephoned him back and interviewed him about his
work background; and that when in the course of the conversation he (Metz) indicated
that he was not interested in the job because it was nonunion , Winkelman said, "I am
sorry, we came down here and we are not going to have a union shop." In an attempt
to corroborate Metz' testimony , counsel for the Union introduced a letter dated July 18,
1963, signed by Local 415's manager (and Metz' superior) to the ILGWU research de-
partment director in New York, informing the latter that a "new firm" had opened up at
6700 NW. 37th Court in Miami, producing bathing suits, with Mirsky and Winkelman as
owners, and requesting him "to check with the appropriate local [in New York] as it
seems these two gentlemen are running away from the Union in New York " Winkelman
denied having the telephone conversation. I reserved decision on Respondent's motion
to exclude Metz' testimony about his telephone conversation with "Winkelman" on the
ground that Metz failed to identify the telephone voice as that of Winkelman-Metz hav-
ing admitted that he never spoke to Winkelman. In view of other evidence of record
establishing Winkelman's discriminatory motive in moving the Garwin operations to
Florida, Metz' testimony on this point appears to be cumulative and it is unessential to
GARWIN CORPORATION; S'AGARO, INC., ETC. 673
thereto, on June 24, 1963, he informed Juniorite, Inc. (Garwin's sales agent and
its exclusive distributor of the Winky Jr. bathing suits) of "the Florida program,"
including the availability of the Winky, Jr., line in that area. Winkelman in his
letter stated in part:
Because of my new factory set up in Florida, I have joined the Florida Fash-
ion Council and will be showing in the Deauville Hotel mid-Sept., and we would
like to have the [Juniorite] salesman working in our showroom at that time.
We feel that by Labor Day he should have a minimum of 20 accounts sold
to give us a rough idea of what styles we are to start with.
The Florida salesman will now have an advantage over the rest of the gen-
eral swimsuit field as our factory will now be in the Florida area and there will
be no F.O.B. charges and delivery will be over night. He cannot beat this
combination.
Please contact your Florida salesman so that he will be ready.
We cannot afford another Florida fiasco such as last year.
In August, Winkelman also arranged to merchandise the reversible swimsuit pat-
ented by the Levis (Daisy Originals). For this purpose, Winkelman hired Jules
Beck, son-in-law of the Levis and sales manager of Daisy Originals. However, Beck
left S'Agaro after about 6 weeks, telling Winkelman that he was not earning enough
commissions due to the Company's failure to fill customers' orders. Beck also com-
plained that Winkelman wanted him to spend all of his time on the road out-of-town,
which he could not afford to do. After his decision to leave, Beck also talked the
matter over with Mirsky.15
During the same month (August ) one of the Garwin employees ( Sinacore) vis-
ited the plant in Jamaica to collect a check due her. When she saw no machines
there, she asked Maniaci "what 's going on?" Maniaci replied the shop was "still
working." Sinacore then asked Mirsky, who was also there, about the matter. Mir-
sky said, "We're still around." Around the same time, Union Business Agent Giar-
dina also visited the plant pursuant to instruction of his superior ( the manager of
Local 57) to check whether the shop was moving. Giardina also discovered that
the sewing machines had been removed. When he asked Belle Okrent, Garwin's
bookkeeper, what had happened, she told him he would have to speak to Winkelman,
who was out of town. Giardina left a message for Winkelman to call him, but
Winkelman never did.16 He also telephoned the shop on several occasions, but
there was no answer.
E. Operations of S'Agaro in Florida
As already noted, S'Agaro underwent formal incorporation in Florida in July 1963.
According to S'Agaro's records, Mirsky, its president and sole stockholder, paid
$10,950 for S'Agaro stock in installments of $7,300 and $3,650, on August 21 and 29.
Garwin's records show that Winkelman drew $7,300 ($10,000 gross less deductions
for taxes, etc.) and Mirsky $3,650 ($5,000 less deductions) on August 19 from Gar-
win. Based upon the entire record, including the facts found and to be found , estab-
lishing Winkelman's active interest and participation in S'Agaro, the inescapable
pass on Respondents ' motion. But see Jarvis v. United States , 90 F. 2d 243 , 245 (C.A.
1). ("The law is now well settled with respect to telephone calls, that , if the person
testifying does not recognize the voice, the surrounding circumstances may show suf-
ficient probability that the person talking at the other end was one whose statements
would be admissible to warrant admitting the conversation .") ; United States v. Fleming,
134 F. 2d 776, 777 ( C.A. 2) ; United States v. Lo Bus, 180 F. Supp . 955, 956 ( S.D.N.Y.)
Wigmore, Evidence, 2155(1).
16 The foregoing findings are based on the credited testimony of Beck. I do not credit
Winkelman 's testimony that he "didn ' t have anything to do with" Beck's hiring or "firing."
Nor do I credit Mirsky ' s testimony that it was he that hired and fired Beck. Mirsky
testified that he had told Beck that he could not "use" him because Beck had refused to
devote more time to S'Agaro than to his old Daisy Originals job (which Beck had retained
on a part-ti a basis ). As it turned out, S'Agaro never went into production of the
patented garment, the Company having discontinued the item after paying the Levis the
$1,500 minimum required by the license agreement . By a letter dated April 29, 1964,
Mfrsky canceled that agreement on behalf of S'Agaro.
16 Okrent recalled Giardina's visit in the summer but could not remember "exactly when
it was." She testified that she worked in the Garwin office until the end of August, by
which time none of the Garwin employees ( including the sample workers ) were around.
796-027-6 6-v of 153-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference is, and I so find, that the $10,950 Mirsky ostensibly paid for S 'Agaro stock
came from Winkelman 's and his (Mirsky 's) withdrawals from Garwin in that precise
total amount a few days earlier. I further find that at least to the extent of $7,300, the
$10,950 S'Agaro stock invested in Mirsky 's name was in fact paid for and owned by
Winkelman-Winkelman 's mvestment.17
As already noted, Mirsky is S'Agaro 's titular president . Although Winkelman was
never named as an officer , there is no doubt that he takes an active part in the business,
both in selling its garments and in administering its corporate affairs, just as he for-
merly had in Garwin. Reference has already been made to Winkelman 's role in
acquiring the license agreement for the patented reversible garment for S'Agaro from
the Levis ( Daisy Originals ), his hiring of Jules Beck to sell that garment , his adver-
tisement in the Miami Herald to recruit workers for S'Agaro, and his correspondence
with Juniorite , Inc, about programming the Winky , Jr., line in Florida. Winkelman
allegedly sold the Winky, Jr., label to Mirsky on July 2, 1963, for $7,500 plus a per-
centage return on future sales. Additionally , Winkelman had an oral agreement to
receive 6 percent commission on other sales for S'Agaro . 18 Despite the alleged trans-
fer of his interest in Winky, Jr., the record shows a continuing interest in the item
by Winkelman more consistent with that of an owner than a salesman . Thus con-
tinuing memorandums and letters from Winkelman to Juniorite between the sum-
mers of 1963 and 1964 provided Juniorite with progress reports with regard to pro-
duction, sales , and merchandising of the garment ; contained directions and comments
on styles and style pricing ; instructed Juniorite salesmen as to tax charges to custom-
ers; and discussed matters of advertising and S'Agaro expense items. One of these
early (August 30 , 1963 ) memorandums speaks of acquisition of new equipment and
"trading in the old," the arrival of "our old cutter" in Miami, and the readying of
the factory and showroom for business. A letter from Winkelman, dated October 18.
1963, states , "I believe we will do a great job here and am very happy about
the move." 19
Seymour Bag , president of Juniorite , testified , and Mirsky admitted , that Juniorite
was never given notice of any transfer of ownership of the Winky, Jr., label from
Garwin (or Winkelman ) to S'Agaro . Bag indicated that he had little knowledge
about S'Agaro as such, but that his dealings were with Winkelman and Mirsky He
also stated that while stylings of swimsuits for the 1963 and 1964 seasons were dis-
cussed equally with Winkelman and Mirsky , those for the most recent season (1965)
were discussed mostly with the latter.
Vera Maniaci was the third member of the management team at S 'Agaro, just as
she had been at Garwin . Just as at Garwin, she designed garments and was in charge
of production . However, her weekly salary was increased from $125 to $200. As
already noted , she made a special trip to Miami at the end of May 1963 to consult
with Daisy Originals on the patented reversible swimsuit After the phaseout of
her work for Garwin in New York on August 20, she picked up at S'Agaro in Miami
on September 8, and in the brief interim she was continued on Garwin 's payroll.
According to Garwin 's records , in the previous June she received $ 1,000 for "moving
and relocation expense." 20
171n view of these findings , I do not credit Mirsky's testimony that the $10,950
invested was solely his , that Winkelman invested nothing in S'Agaro, and that the $3,650
Mirsky withdrew on August 19 was only a year-end "bonus " There is no credible
evidence that Mirsky had received bonuses in prior years ; he admittedly received none
in 1962.
Is The sale was made by Winkelman as an individual , although it was Garwin which
owned the Winky , Jr, name by virtue of the Juniorite -Garwin contract . Mirsky 's testi-
mony that he brought the Winky , Jr., label without knowledge that it was Garwin property
Is not credited
i0 The letters and memorandums in question were produced by an official of Juniorite
In response to subpena . Some of the earlier communications are on Garwin or Winky
stationery , with Garwin 's Jamaica address thereon . Several communications are signed
Mirsky rather than Winkelman I do not credit Winkelman 's explanation that in em-
ploying such terms as "we" , "our", "my factory", etc . In his correspondence with
Juniorite ( and also Daisy Originals ), Winkelman had "in mind" his brother - in-law
(Mirsky ) for whom he was acting . It is clear that Winkelman was acting in his own in-
terest as well as Mlrsky's.
20 In view of the foregoing , I do not credit Maniaci's testimony that the $1 000 was
a year-end or season -end "bonus" previously promised her by Winkelman ( Nor does
her further testimony that she received a $500 bonus the year before find support in
Garwin records )
GARWIN CORPORATION; S'AGARO, INC., ETC. 675
The evidence further establishes that Garwin's bookkeeper in New York, Belle
,Okrent, helped set up S'Agaro's' books and "worked very closely" with S'Agaro's
local Miami bookkeeper, Jacquelyn Lee. S'Agaro's books show entries of various
payment to Okrent, including items for her Miami travel and hotel expenses. Gar-
win's disbursement ledger under date July 9, 1963 lists a general lump sum $500
"moving and relocation " expense incurred by that company.
The record further shows that some of the sewing machines and office equipment
used by S'Agaro had also been used by Garwin. Mirsky testified that he purchased
office equipment from Winkelman . It appears that some of the sewing machines sold
by Garwin to a Miami sewing machine company were later installed by that Com-
pany at S'Agaro.21
Finally, the undisputed evidence shows that S'Agaro has continued to manufacture
some of the same lines of swimsuits which Garwin had. As already noted, S'Agaro
sells and manufactures the Winky, Jr., line. It also carries the Nettie Rosenstein and
Costa Del Sol lines.22 The "S'Agaro line" (produced by S'Agaro) is designed by
Maniaci who had also designed the "Garwin line."
F. Respondents ' contentions
Respondents contend that Garwin discontinued its New York operations in 1963
for economic reasons. Winkelman testified that the Company showed a "cumulative
loss" of approximately $147,000 in the fiscal year ending July 31, 1961.23 He further
testified that it was not until he acquired the Modern Juniors account in October 1961
that this operating deficit began to diminish.24 For the fiscal year ending July 31,
1962, Garwin showed a net profit of $46,450. In the final year of its operations (the
year ending July 31, 1963), Garwin reported a net profit of $10,259.25 In addition,
Garwin paid out "bonuses" or backpay in the amount of $15,000 to Mirsky and Wink-
elman in August 1963; and repaid (in the fiscal year ending July 1965) a $15,000
"loan" to Mirsky and a $19,000 bank loan.26
n Mirsky testified that the machines first installed ( in September ) came from this source.
22 Mirsky testified that he formed a new Costa Del Sol corporation in Florida, having no
connection with the New York corporation. And Winkelman testified that with the dis-
continuance of Garwin, he "abandoned" the New York corporation. While flatly stating
as a witness for General Counsel that S'Agaro did not put out the Costa Del Sol line,
Winkelman as a witness for Respondents admitted selling this line for S 'Agaro and also
to some customers of Garwin
za This is the approximate figure listed on Garwin 's 1961 tax return According to
Winkelman, the losses were accumulated over several years-from about 1958 through 1961.
Garwin's income tax return for the year ending July 1961 shows a net operating loss of
only $7 , 194 for that year; and losses of $5,200 and $42,616 for the fiscal years ending
July 1960 and 1959 A net profit of $33,573 is shown for the fiscal year ending July 31,
1958 Garwin's financial problems around 1959 (shortly after the death of Winkelman's
father ) are illustrated by Winkelman 's appeal to Garwin ' s "older" employees to advance
the Company $150 apiece to help purchase the necessary piecegoods to start the season.
24 As already noted, under his agreement with Modern, Winkelman was paid $400 a
week for acting as consultant plus a normal contracting profit for manufacturing Modern
garments. According to Winkelman , he kept "dumping" the $400 weekly income into
Garwin "to keep it from going busted." Respondents ' suggestion that Winkelman's $400
weekly income was "personal" income while the contracting income was Garwin income,
is unsupported by the record . I note that both as to contracting work and personal serv-
ices, this contract was entered into as an individual Moreover , the contract states that
"in consideration " of the contracting agreement "and to induce Winkelman to make the
necessary production facilities available," Modern "employs" him to perform services at
a $400 weekly salary. Finally , Winkelman himself indicated that he did not know whether
his accountants had treated the $400 Income as personal , as distinguished from Garwin,
income.
2e The 1963 return shows gross sales of $601,694 and total gross income of $227,857,
as compared to $420,546 and $151,594 the year before; and as compared to $321,517
and $142 , 280, 2 years before ( 1961).
za Further , the 1963 income tax return lists disbursements of $2,516 as "moving and
relocation" expenses and $6 , 000 as "termination payroll." Winkelman is shown to have
received a salary of $27,138 that year ; although his specific salary is not shown for 1962,
total officer salaries reported for that year were $15,360. Winkelman's reported salary
for the year ending July 1961 had been $5,500.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winkelman testified that he decided to move to Florida around the end of July 1963.
He stated that he had "no idea" of moving to Miami until after July 15 when Modern
Juniors declined to renew its contract . As previously noted ( supra, section B), in
March or April 1963, a dispute arose between Winkelman and the Union's accountant
(Feldman) as to whether Garwin (as the contractor-employer) or Modern (as the
manufacturer) should make the health and welfare payments to the Union on gar-
ments produced by Garwin's employees for Modem; Winkelman insisting that Mod-
ern was obligated to do this (in accordance with past practice) and the Union insist-
ing that it was Garwin's contractual obligation to do so. Thereafter (April 1963),
Winkelman discussed this matter with Bill Paul of Modern in an attempt to raise
the prices so as to cover the additional health and welfare costs, but Paul asked him to
hold the matter in abeyance until the end of the season. According to Winkelman,
at the end of June or beginning of July 1963, Modern informed him that it would not
absorb the additional costs, and the contract, which by its terms expired July 15, 1963,
was never renewed. Further according to Winkelman, he then (July or August)
met with the Union's accountant, Feldman, and told him that the Union had put him
out of business by causing him to lose his "main source of revenue." Winkelman also
referred to the problem he had with his landlord,27 stating, "I told him I lost my lease,
that I was darned well fed up with the Union terrorism and activities that had
been going on and that I no longer intended to go along with it any more because I
had lost my main source of revenue from Modern Jr.'s only because of them ......
Winkelman testified that in addition to notifying the Union's accountant of his
intention to liquidate, he notified the Union's manager, Cerbone, to this effect in a
telephone conversation around July.28
G. Conclusions
A
The legal principles here applicable are clear. It is unlawful for an employer to,
close down a plant in one locality and move it to another in order to deprive his
employees of their statutory rights, including their right to representation and bar--
gaining through the union of their choice. Sidele Fashions, Inc., et al., 133 NLRB.
547, 552-554, enfd. sub nom. Philadelphia Dress Joint Board, International Ladies'
Garment Workers' Union, AFL-CIO v. N.L.R.B., 305 F. 2d 825 (C.A. 3); Indus-
trial Fabricating, Inc., et al., 119 NLRB 162, 163-172, enfd. sub nom. N.L.R.B. v.
Frank Mackneish Industrial Fabricating, Inc., 272 F. 2d 184 (C.A. 6); N.L.R.B. v.
Winchester Electronics, Inc., et al., 295 F. 2d 288, 290, 291-292 (C.A. 2). Cf.
N.L.R.B. v. Savoy Laundry, Inc., 327 F. 2d 370, 371-372 (C.A. 2). The fact that
the operation at the new location is in another name is in itself of no legal consequence
n As noted supra, footnote 11, Winkelman 's landlord had demanded that he contribute-
$13,000 to install sprinklers in the building . Although at the outset of the New York
hearing session , Winkelman 's counsel there indicated that the landlord had instituted,
dispossess proceedings "as a result of which Garwin had to make or try to make arrange-
ments to move elsewhere ," Winkelman made no reference to any such proceeding in his
testimony and there is no evidence to support counsel 's remark. Winkelman 's New York
bookkeeper, Belle Okrent , also referred to alleged company difficulty in paying rent, as
well as to a conversation with Winkelman at the end of June or beginning of July when,
Winkelman gave this as one of his reasons for going out of business. Again , however,
Winkelman made no reference to such problem . Moreover , Okrent herself testified at one
point that at no time was the Company in default in rent.
as Cerbone , who testified on the second day of the New York hearing sessions, did not
testify on this point . At the conclusion of the Miami hearing sessions , General
Counsel, in order to "dispense with the actual appearance " of Cerbone in Miami,
solicited and obtained a stipulation from counsel for Winkelman and Garwin to the
effect that if called as a rebuttal witness, Cerbone would deny receiving notice of
Winkelman 's intention to close the plant as testified by Winkelman . On the basis of
the entire record , I do not credit Winkelman ' s testimony that he gave Cerbone notice of
his intention to discontinue operations in New York . I have already commented upon,
Winkelman 's unreliability as a witness . Apart from Winkelman 's unremitting union,,
animus suggestive of vendetta -like proportions , which colored much of his testimony, his
testimonial demeanor did not redound to his credit . He frequently engaged in arguments,
sometimes heated, with counsel for General Counsel and the Union , provided what he
admitted were "facetious" and "silly" answers , and sought refuge in vague generalizations.
GARWIN CORPORATION; S'AGARO, INC., ETC. 677
so far as liability for unfair labor practices is concerned, if the other name or the
"new" employer constitutes an alter ego or "a disguised continuance of the old
employer." (Southport Petroleum Company v. N.L.R.B., 315 U.S. 100, 106.) 29
Moreover, the fact that the employer may have legitimate economic reasons for the
transfer or liquidation does not absolve him of his conduct if violation of his employ-
ees' statutory rights was also a motivating reason. Cf. N.L.R.B. v. Whitin Machine
Works, 204 F. 2d 883, 885 (C.A. 1). ("In order to supply a basis of inferring dis-
crimination, it is necessary to show that one reason for the [action] is that the employ-
ee[s were] engaging in protected activity. It need not be the only reason but it is
sufficient if it is a substantial motivating reason, despite the fact that other reasons
may exist.") See also N.L.R.B. v. Great Eastern Color Lithographic Corp., 309
F. 2d 352, 355 (C.A. 2).
The factual issue posed in this case is whether Garwin discontinued its New York
operations for discriminatory reasons and continued them in Florida as a successor
or alter ego under the name of S'Agaro. In determining this question, I have care-
fully weighed the factors militating for and against a finding that S'Agaro was a bona
fide new business, unrelated to Garwin, as contended by Respondents. As in perhaps
almost all cases of this nature, there are some circumstances which, if considered in
isolation, might tend to support a finding of nondiscriminatory purpose, at least on
surface. Thus, for example, Garwin had been in financial difficulty in earlier years
and, prior to actual liquidation, it lost Modern Juniors, one of its good accounts.
Mirsky, titular head of S'Agaro, ostensibly had a financial investment in the new cor-
poration (he had none in Garwin) and undoubtedly was more active in it than he had
been in Garwin. And while S'Agaro utilized Garwin equipment, manufactured prod-
ucts the same as or similar to Garwin's, and dealt with former Garwin customers, it
also acquired new equipment, products, and customers. Nevertheless, giving due
weight to these circumstances, I have no hesitancy in concluding that the record as a
whole-much of it documentary and uncontradicted-overwhelmingly supports Gen-
eral Counsel's position that S'Agaro was but a continuation of Garwin under another
name and a device utilized by Respondents to escape the Union and to avoid continued
dealings with it. In reaching this conclusion I rely principally upon the considerations
about to be enumerated.
B
1. At the hearing, Winkelman, the controling force of Garwin, did not even con-
ceal his bitter antiunion bias and hostility. He admittedly told his brother-in-law,
Mirsky (nominal head of S'Agaro), "to stay out of their [Union] clutches as long as
possible," suggesting that he retain a "labor" lawyer to help him. Winkelmen's obses-
sive animus against the Union was undoubtedly due, as he testified, to his "difficulties"
in New York. Clearly, Winkelman resented what he regarded as the Union's unwar-
ranted interference in the operation of his business by, for example, insisting on
advance permission for overtime work, requiring costly contributions to the Union's
health and welfare fund, and otherwise encroaching upon what he deemed to be
inviolate management prerogatives. However, apart from the fact that the collective
agreement between Garwin and the Union specifically sanctioned much of the
Union's "objectionable" conduct,30 Respondents were not justified in taking antiunion
2' See N L.R.B. v. D C Brown Co., and Production Line Manufacturers, Inc, 184 F.
2d 829 (C A. 2) ; N.L.R B. V. Herman Brothers Pet Supply, Inc., et al., 325 F. 2d 68, 69
(C.A. 6) ; N.L.R.B. v. Jack Lewis and Joe Leritan, d/b/a California Footwear Company
f Trina Shoe Company, a Corporation, 246 F. 2d 886 (C.A. 9) ; Howard Rome, an individ-
ual, d/b/a Rome Products Company and Kenton Plastics Corporation, 77 NLRB 1217.
Accord: Darlington Mfg. Co. v. NL.R.B., 325 F. 2d 682, 685-686 (CA. 4), cert. granted
377 U.S 903.
ii As already noted, the collective agreement stipulated that overtime work "may be
performed only upon Union approval." The agreement likewise required Garwin (defined
in the contract as the Employer) to pay health and welfare contributions As also noted
previously, Winkelman relied on the "Mort" incident in which the Union allegedly re-
quired him to join a dress association before permitting the employees to work on an order ;
the record does not indicate the basis, if any, for the Union's action but, according to
Winkelman, the incident took place over 2 years before Garwin's shutdown. Maniac!,
Garwin's production manager, cited other incidents in which the Union "interfered with
the way we ran the shop," specifically pointing out one in which the Union disputed the
manner in which she set employees' piecework rates It is noted that although the col-
lective agreement provided for the resolution of differences between the parties by
grievance-arbitration, Winkelman never saw fit to avail himself thereof
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisals simply because the Union's actions impinged upon their freedom to conduct
business. Antiunion conduct is not immunized merely because it is economically
motivated. Such motivations is one of the stock arguments advanced to explain away
unlawfully discriminatory conduct. Furthermore, experience shows that union ani-
mus springs more often than not from economic considerations and resentments for
intrusions upon managerial "prerogatives." Nevertheless "an employer may not dis-
criminate against an employee . . even though the employer believes that he has
good business reasons to justify his discrimination. Republic Aviation Corp. v.
N.L.R.B., 324 U.S. 793." Allis-Chalmers Manufacturing Company v. N.L.R B, 162
F. 2d 435, 440 (C.A. 7). As the Board succinctly expressed it in Industrial Fabri-
cating, Inc., et al., 119 NLRB 162, 170, enfd. sub nom., N.L.R B. v. Frank Mack-
neish Industrial Fabricating, Inc., 272 F. 2d 184 (C.A. 6)):
The basic purpose and design of Congress in the Act was to protect employees
in their right to organize collectively in an attempt to better their working con-
ditions. Although the employees' decision to organize may result in economic
expense to their employer, Congress cannot have intended to permit the
employer for that reason to take anticipatory action to nip such organization in
the bud. To hold otherwise would be to strip all meaning from the Act and nul-
lify the congressional objective of protecting the right of employees to organize
for collective bargaining.31
2. Winkelman's active role and participation in S'Agaro persuasively demonstrates
the alter ego nature of S'Agaro vis-a-vis Garwin As found, Winkelman, although
not a named officer of S'Agaro, continued to perform substantially the same duties
for the new corporation as he had for Garwin; namely, selling and administrative
functions. He played the leading role in negotiating acquisition of the patented
Daisy reversible garment. He arranged for merchandising that garment and hired
Jules Beck to sell it. He placed a help-wanted advertisement in the Miami Herald to
obtain Florida employees His correspondence with Juniorite establishes that he
also acted for S'Agaro in planning, programming, and selling the Winky, Jr., line.
He kept Juniorite informed of his progress in setting up the machines and the plant,
he instructed and commented on styles and style pricing, he directed activities of
salesmen, he handled advertising, and he complained about Juniorite actions. Wink-
elman's conduct refutes his claim that he was acting merely as a paid salesman and
brotherly adviser. To the contrary, his actions are far more consistent with that of
an owner with a substantial financial stake in the enterprise.
3. Further demonstrating the uninterrupted flow of Garwin's operations via
S'Agaro, is the substantial identity of the merchandise and even some of the label.,
(Winky, Jr., Nettie Rosenstein, Costa Del Sol) of these two businesses. Furthermore,
their prime moving personnel are the same. Winkelman and Mirsky continue to per-
form functions formerly performed for Garwin. Garwin's head designer and pro-
duction manager (Maniaci) performs similar functions for S'Agaro. Garwin's book-
keeper helped set up S'Agaro's books. Some of the Garlvin machines and equipment
found their way at S'Agaro. Some of Garwin's customers were taken over by
S'Agaro; indeed, the very sales contract executed by Garwin with Juniorite (Garwin's
distributor of the Winky, Jr., line) is now performed by S'Agaro without modifica-
tion or novation. Juniorite was wholly unaware of any "transfer" of the contract
to S'Agaro. Dealings between S'Agaro and Juniorite have continued so smoothly
and uninterruptedly that Juniorite did not learn "what transpired in relation to Gar-
win Corporation staying in or out of business."
4. Furthermore, as already found, the $10,950 paid by Mirsky for S'Agaro's stock
was withdrawn from Garwin 32 Maniaci's $1,000 "moving and relocation" expense
was likewise financed out of Garwin's corporate treasury. A lump sum of $2,516 is
listed on Garwin's 1963 tax returns as "moving and relocation expenses." These
entries additionally tend to negate Respondent' s contention that Garwin had neither
moved nor relocated from New York.
81 Compare cases holding that economic exigencies do not justify employer action in-
fringing employees' statutory rights See, e g., N L R B v. National Broadcasting Com-
pany, Inc, et al., 150 F. 2d 895 , 900 (C .A. 2) ; N.L.R.B. v. Hudson Motor Car company,
128 F. 2d 528, 532-533 (C.A. 6) See also Wiley v Livingston, 376 U S. 543, 549 ("The
objectives of national policies, reflected in established principles of federal law, require
that the rightful prerogative of owners independently to rearrange their businesses and
even eliminate themselves as employers be balanced by some protection to the employees
from a sudden change in the employment relationship ")
As noted , Garwin's books showed net drawings of $10 , 950 ($15,000 gross) by Winkel-
man and Mirsky ( in the form of bonuses or backpay ). This is the precise amount paid
by Mirsky for the S'Agaro stock a few days later-a most extraordinary coincidence.
GARWIN CORPORATION; S'AGARO, INC., ETC. 679
5. The apparent concealment from- the Union of the move from New York to
Florida is another significant circumstance. The record shows that Winkelman and
Mirsky had discussed the decision to locate in Florida with the Levis (owners of the
patented Daisy reversible garment) as early as February or March 1963. This deci-
sion was crystalized in early April when, according to Mirsky, he caused the formal
incorporation of S'Agaro.33 By May 14, Winkelman had advised Daisy of his
interest in locating a factory in the Miami area and on May 23 a lease was executed
for the premises occupied by S'Agaro. Garwin's records show payment of Mani-
aci's moving expenses in June. On June 24, Winkelman wrote to Juniorite about the
"Florida program." By an agreement dated July 2, he assigned to Mirsky his right
to produce the Winky, Jr., garment And on July 10 he placed the S'Agaro help-
wanted advertisement in the Miami Herald. Yet, according to Winkelman's testi-
mony, during all of this time, he gave no notice to any union official of his intention
to discontinue his operations in New York until late July or early August. On the
contrary, while all of this was going on, his production manager, Maniaci, sought to
allay the union business agent's concern over rumors of a plant removal, by telling
him that Garwin was only seeking other quarters in New York and actually solicited
the business agent to assist in such an effort. In July, Maniaci specifically disavowed
any intention on Garwin's part to move to Florida when questioned about the mat-
ter by the business agent and the Union's shop chairman. The sequence of events,
considered in the light of other evidence in the record would appear to support the
assertion in the Union's brief, that Respondents' conduct "reveals a plan of subter-
fuge and deceit to hide the impending move," in an effort to conceal discriminatory
motive. Cf. Industrial Fabricating, Inc., at al., 119 NLRB 162, 172.34
6. The inference that Garwin's shutdown was discriminatorily motivated is further
buttressed by the inadequacy of the explanations advanced for Respondents' actions.
Cf. N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5) While Garwin
had been in financial straits in earlier years, it is clear that the enterprise showed
profits-to say nothing of salaries and other returns to its principal personnel and
employees-for the last 2 years of its operations. Thus, although Garwin reported a
loss of $7,194 for the fiscal year ending July 1961, it showed a profit of $46,450 for
the year ending July 1962. Although Garwin reported only $10,259 profit for the
final year of its operations ending July 1963, to gauge the true financial picture for
that year one cannot ignore the circumstances that in August 1963 Mirsky drew a
bonus of $5,000 and Winkelman $10,000; that the Company repaid during the year
loans of $19,000 to a bank and $15,000 to Mirsky, that it expended at least $2,516
for "moving and relocation"; and that it set up a $6,000 "termination payroll" reserve.
While it may be, as Respondents contend, that Gar-win's financial situation might have
changed in ensuing years because of the loss of one of its accounts (Modern Juniors)
in July 1963, this is largely speculative. Respondents did not adduce any credible
evidence showing the significance of Modern production in Garwin's total operations.
Thus, no figures were submitted comparing past sales of and profits from Modern
lines, for comparison and consideration with those of other lines produced by Garwin.
"The evidence was vital and it was clearly within Respondents' power to produce it."
N.L R B. v. Sam Wallick, et al, d/b/a Wallick and Schwahn Company, at al., 198
F. 2d 477, 483 (C.A. 3). Particularly in view of Winkelman's general unreliability
as a witness, I cannot accept his sweeping conclusionary and self-serving assertion
that Modern was his "only money making" account, absent objective supporting evi-
dence Furthermore, it appears that Gar-win realized a substantial profit of $33,573
in at least 1 year (1958) before acquiring the Modern account in 1961 (supra, foot-
note 23). Moreover, the fact that under the July 2, 1963, assignment of the Winky,
Jr., line to Mirsky, the latter agreed to pay a substantial sum ($7,500 plus 2 percent
on future sales) for the privilege of producing the Winky, Jr., garments, would in
itself seem to negate Winkelman's claim that that item was unprofitable. Finally,
since the record shows that Respondents had already firmly decided to function as
S'Agaro in Florida by April 1963 (they actually leased premises for it there in May),
the decision to liquidate Garwin could hardly have been motivated by loss of the
Modern account in the following July.
As noted (supra, footnote 10) the Company was first inadvertently or mistakenly
incorporated in New York rather than Florida, a matter subsequently rectified by rein-
corporation in Florida.
a4 As noted supra, footnote 12, it was not until the end of December 1963 , long after
the move , that Maniacs admitted to the Union 's shop chairman that the "main reason"
for the move was Winkelman's desire "to get out of the Union."
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C
For all of the foregoing reasons and upon the entire record, I find that Garwin
closed its plant in New York and thereby terminated its employees because of its
opposition to the exercise by its employees of their organizational and other statu-
tory rights and because of its animosity against their collective-bargaining represent-
ative, the Union; and that Respondents thereafter continued Garwin's operations in
Miami under the name of S'Agaro, as alter ego or disguised continuance of Garwin
in order to avoid and defeat the exercise by the employees of said rights and to avoid
continued bargaining with the Union as their statutory representative. I find and
conclude that Respondents' actions constituted discrimination to discourage union
membership and an unlawful evasion of the duty to bargain, in violation of Section
8(a)(1), (3), and (5) of the Act. See cases cited in section A, supra.
I further find that even apart from such discriminatory motivation, Respondents'
discontinuance of the New York operations and removal thereof to Florida-without
prior notice and consultation with the Union-constituted a circumvention of the
statutory obligation to bargain, even assuming Respondents' actions were economi-
cally motivated. See Industrial Fabricating, Inc., et al., 119 NLRB 162, 168, 189-
190, enfd. 272 F. 2d 185 (C.A. 6); Sidele Fashions, Inc., et al., 133 NLRB 547, enfd.
305 F. 2d 825 (C A. 3). Cf. Fibreboard Paper Pioducts Corp. v. N.L.R.B., 379 U.S.
203, enfg. 138 NLRB 550; Town & Country Manufacturing Company, Inc., et al.,
136 NLRB 1022, 1026-1028, enfd. 316 F. 2d 846 (C.A. 5). At the very least,
Respondents were under a statutory duty to bargain with the Union about the effect
of the shutdown on the tenure of the employees, including their possible termination
pay or transfer to the new location. Ibid. and N.L.R B. v. Rapid Bindery Inc. &
Franklin Bindery Corp., 293 F. 2d 170, 176 (C.A. 2).35
IV. THE REMEDY
1. Having found that S'Agaro of Florida is the alter ego of Garwin and that all
Respondents were involved and participated in the commission of the unfair labor
practices, I shall recommend that all Respondents be held jointly and severally respon-
sible for effectuation of the remedial provisions of the order herein recommended.
See Mount Hope Finishing Company, et al., 106 NLRB 480, 499, reversed on other
grounds 211 F. 2d 365 (C.A. 4); Charles T. Reynolds, Sr., doing business as Charles
T. Reynolds Box Company, et al., 139 NLRB 519, 525, enfd. 324 F. 2d 833 (C.A. 6);
N.L.R B. v. Herman Brothers Pet Supply, Inc., et al., 325 F. 2d 68, 69-70 (C.A. 6).
2. I shall recommend the customary cease-and-desist order and the affirmative
relief conventionally ordered in cases of this nature to rectify the effects of the vio-
lations.36 Respondents shall offer all employees discriminated against as a result of
the removal of the Garwin (New York City) plant to Florida, reinstatement to their
former or substantially equivalent positions at a plant in the New York City area,
if Respondents resume operations there, or at their Miami Florida plant,37 without
prejudice to the employees' seniority and other rights and privileges, dismissing, if
necessary, all employees at the Miami plant. If there is not sufficient employment
available for the former Garwin employees, all available positions shall be distributed
among them in accordance with Respondents' usual method of operation under cur-
tailed production, without discrimination against any employee because of union
affiliation or activities, following the system of seniority, if any, customarily applied
in the conduct of Respondent's business. Any employees remaining after such distri-
bution, for whom no work is immediately available, shall be placed upon a preferen-
tial hiring list prepared in accordance with the above principles, and shall thereafter
in accordance with such list, be offered employment in their former or in substantially
equivalent positions as such employment becomes available and before other persons
are hired for such work.
ss The collective agreement ( article 31 ) specifically provides for "severance pay" to
employees losing employment "in the event the Employer closes its business or gives up
his shop during the term of this agreement ." No employee was given such pay. Article
17 (section 3) provides that the Employer shall not move during the contract period
beyond a specified distance from the Employer 's existing location without prior union
approval.
80 Sidele Fashions, Inc., et al., 133 NLRB 547 , 554-555 , enfd ., 805 F. 2d 825 (C A 3) ;
Industrial Fabricating , Inc., at al., 119 NLRB 162 , 172-173, enfd . 272 F. 2d 184 (C.A. 6).
7 In the event any such employees are already working at such place, the offer need
not, of course, be made. The "Miami" plant as used herein shall include any and all of
Respondents ' plants in the Miami area. The record identifies one of their plants in the
Miami area as the "Hialeah" plant.
GARWIN CORPORATION; S'AGARO, INC., ETC. 681
Respondents shall also offer to pay employees the travel and moving expenses
entailed in moving themselves and their families and household effects, in the event
they do not reopen in the New York City area.
Further, Respondents shall make whole the employees referred to above for any
loss of pay they may have suffered by reason of Respondents' discrimination, by pay-
ment to them of a sum of money equal to the amount each would normally have
earned from the date he was terminated as a result of the decision to relocate the Gar-
win plant to the date of a valid offer of reinstatement at any plant that Respondents
may open in the New York City area (or placement on a preferential hiring list at
such plant) or, if no such plant is opened, to the date that he secures substantially
equivalent employment, less his net earnings during such period, to be computed in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Finally, in order to remedy Respondents' Section 8(a) (5) violation, I shall recom-
mend that Respondents, in accordance with the Board's usual practice, be required to
bargain with the Union as the representative of their employees at the New York
plant, if they resume operations in the New York City area. In the alternative, if
they do not resume operations there, Respondents shall bargain with the Union as
the representative of the employees in Miami, Florida, upon proof that, upon com-
pliance by Respondents with the order of reinstatement recommended herein, the
total number of former Garwin (New York) employees who have accepted employ-
ment at Miami plus other employees (if any) at Miami who have in the meantime
joined the Union constitute a majority of the employees in the appropriate unit in
Miami.
3. The Union requests in its brief a more stringent remedy; namely, that Respond-
ents be directed to reopen the New York plant and reinstate the former employees at
that location. It states: "An offer of reinstatement at the Florida plant will obvi-
ously not redress the injury caused by the Respondents' unfair labor practices It
is most unlikely that any significant number of New York workers will uproot them-
selves and move their families more than a 1,000 miles away to a new and distant
area with an economic and social climate so different from that to which they have
been accustomed. Thus it is largely meaningless to suggest reinstatement at the
Florida plant as a remedy." I shall consider the Union's request separately as to the
8(a)(3) and (5) remedies.
(a) The purpose of a remedial order is to effect "restoration of the situation, as
nearly as possible, to that which would have obtained but for [the unfair labor prac-
tices]." Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194. In conventional cases
involving unlawful discharges, the Board requires the employer to reinstate the dis-
criminatee to his former or substantially equivalent position in the plant in which he
was employed. The problem is more complicated where the employer discriminator-
ily discontinues operations or moves his plant. In such cases, the Board considers
such questions as the extent to which the employer divested himself of his assets and
machinery, whether he permanently discontinued or merely subcontracted his opera-
tions, whether he operates a related plant and, if so, the geographical distance of that
plant from the old one, and the feasibility of and hardship entailed in requiring
resumption of operations. See, e.g., Bonnie Lass Knitting Mills, Inc., 126 NLRB
1398; Town & Country Manufacturing Company, Inc., et al., 136 NLRB 1022, 1028-
1031, enfd. 316 F. 2d 846 (C A. 5); Brown-Dunkin Company, Inc., 125 NLRB 1379,
1386-1387, enfd. 287 F. 2d 17 (C.A. 10). See also Fibreboard Paper Products
Corp., 379 U.S. 203: Jack Lewis and Joe Levitan d/b/a California Footwear Com-
pany, 114 NLRB 765, 768-769, enfd. 246 F. 2d 886 (C.A. 9); Carl Rochet and
Charles Rund, partners, doing business as The Renton News Record, et al., 136 NLRB
1294, 1297-1298. In short, the Board.as usual fashions its remedy to fit the circum-
stances in each case, taking into consideration the practicalities of the situation as well
as the equities.
Here, as in cases like Sidele Fashions, supra, the employer moved its plant a con-
siderable distance away-from New York to Miami. An order directing Respond-
ents to reopen in New York would require them to locate new space (Garwin's lease
expired in October 1963), to move their machinery back to the old location, to inter-
rupt current production, and, perhaps, to rearrange their financial, administrative,
selling , and purchasing structure. On the other hand, the 8(a)(3) order recom-
mended herein does require Respondents to compensate the discriminatees for all
monetary losses suffered as a result of the discrimination against them, even if
Respondents do not reopen in New York. In short, the order seeks to restore as
nearly as reasonably feasible the status quo ante so far as employees' jobs and earn-
ings are concerned-the primary objective of such order. In the circumstances, a
requirement which would compel Respondents to move back to New York would
682 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
result not only in financial hardship to Respondents out of proportion to such hard-
ship to the employees, but might possibly result in deprivation of financial relief to the
employees.
(b) Manifestly, the usual 8(a)(5) remedy in discriminatory relocation cases is
less effective in restoring the status quo ante. The usual order in cases of this type
requires the employer to bargain with the union if it reopens in the area of former
operations; and if it does not, to bargain "only upon proof" that the union has a
majority of all unit employees in the relocated plant, from among former employees
who have elected to move plus new employees who have joined the union in the new
location. Sidele Fashions, Inc., et al., 133 NLRB 547, 555-556; Industrial Fabricat-
ing, Inc., et al., 119 NLRB 162, 173-176. I am constrained to agree with the Charging
Party that this type of order leaves much to be desired in a case such as this. To
begin with, apart from the expense and bother involved, it is not likely that a "run-
away" employer will return to the old location and deal with the union from which
he deliberately escaped; on the contrary, if at all possible, he will seek to retain the
primary objective of his move-union-free operation-even at a price; namely, back-
pay. Indeed, backpay may be minimal in a tight labor market or in an industry involv-
ing skilled and hard-to-obtain employees, since in such cases discriminatees may read-
ily obtain other employment; and if they do, the employer's backpay liability is cut off
even though the dislodged employees' seniority and other rights have been washed
away.
Further, as the Board has recognized, "in view of the great distance" between the
old and new plants, it is not reasonable to expect "that any considerable number of
the [old] employees will accept an offer of reinstatement to jobs" in the new plant
(Sidele Fashions, Inc, et al, 133 NLRB 547, 556, footnote 18). Particularly is this
true in an industry like the one here (ladies garments), employing many married
women. It is unlikely that any appreciable number of former employees will relo-
cate themselves to a new economic and social climate in a distant area. The net
result is that the "runaway" employer accomplishes and retains the fruits of his pri-
mary illegal objective: an unorganized plant.
To be sure, an effective remedial bargaining order is not easy to devise to fit these
circumstances and their numerous variants. An order flatly directing the employer to
bargain with the union for the employees in the relocated plant-irrespective of
whether the union has a majority there-could impinge upon the rights of new employ-
ees innocent of wrongdoing, to refrain from self-organization. Another complicated
factor might be the locus and territorial jurisdiction of the union and its unwillingness
to represent employees at a distant location Cf. Mount Hope Finishing Company, et
al, 106 NLRB 480, 501.38 The problem here, as in other situations, invites design
of an effective yet fair remedial order which while depriving a violator of the fruits
of his wrongdoing, would at the same time (and as a byproduct) not injure the inno-
cent, while also at the same time afford administratively practical enforcement. See
Phelps Dodge Corp. v N.L.R B., 313 U.S. 177, 197-198; N.L.R B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U S. 344, 358-349 39
Until the Board decides to fashion a bargaining order different from that which it
has traditionally applied in unlawful plant relocation cases, I deem myself bound by
existing precedent. It is for this reason that I am constrained to limit the recom-
mended order to the usual Section 8(a) (5) remedies.
4. In accordance with the Board's customary practice, I further recommend that
the Board expressly reserve the right to modify the backpay and reinstatement pro-
visions of the remedial order if made necessary by a change of circumstances. It is
further recommended that the order include the usual posting and mailing require-
ments in cases of this nature.
5. In view of the nature of the unfair labor practices committed, the commission
by Respondents of similar and other unfair labor practices may be anticipated. I
shall, therefore, recommend that Respondents cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
°° The problem would be minimized If the union that represented the employees in the
old plant was an International with broad geographical jurisdiction or if the union could
delegate its bargaining rights to an agent in the relocated area.
39 One writer has proposed that the employer In these relocated plant cases be required
to allow the union (if it cannot otherwise establish a majority at the new location), or
any other union with substantial employee support , " temporarily to seek members by
methods the employer need not ordinarily tolerate , for example , by making speeches on
company time or soliciting members on company property ." Flannery, Dennis M., The
Need for Creative Orders under Section 10 ( c) of the National Labor Relations Act, 112
Un. of Pa. L.R. 69 (November 1963).
GARWIN CORPORATION; S'AGARO, INC., ETC. 683
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce within the meaning of the
Act
2. All production , maintenance , packing, and shipping employees at Respondents'
New York City ( Garwin ) plant, or at their Miami , Florida ( S'Agaro ) plant, exclud-
ing office clerical employees , guards, and supervisors as defined in the Act , constitute
a unit appropriate for collective bargaining within the meaning of the Act.
3. At all times relevant herein, the Union has been the exclusive representative, for
the purpose of collective bargaining within the meaning of Section 9 ( a) of the Act,
of the employees in the aforesaid unit at Respondents ' New York plant.
4. Respondents have violated Section 8 ( a)(5) and (1) of the Act by unilaterally,
and without prior notice and consultation with the Union , closing down the New
York ( Garwin ) location and removing the same to Miami, Florida , where they were
continued under the name of S'Agaro ; said removal and transfer having been under-
taken in order to deprive their employees of their rights guaranteed by Section 7 of
the Act and to avoid bargaining and otherwise dealing with the Union as the collec-
tive-bargaining representative of said employees.
5. Respondents have violated Section 8 ( a)(3) and ( 1) of the Act by closing down
and removing the location of the Garwin plant and thereby terminating the employ-
ment of the employees under the circumstances found.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case , and pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended , I recommend that Respondents , Garwin Corporation ; S'Agaro,
Inc. a New York corporation , S'Agaro, Inc. a Florida corporation ; Joseph Winkelman;
and Milton Mirsky , their officers , agents, successors , and assigns , shall.
1. Cease and desist from:
(a) Refusing to bargain collectively , upon request, with Local 57, International
Ladies' Garment Workers' Union , AFL-CIO. as the exclusive representative of all
production and maintenance, packing, and shipping employees , excluding office cleri-
cal employees , guards, and supervisors employed at their Jamaica Avenue, New York,
New York, plant.
(b) Discouraging membership in the aforesaid labor organization, or in any other
such organization of their employees , by terminating the employment of, and refus-
ing to reinstate , any of their employees or by discriminating in any other manner in
regard to their hire and tenure of employment or any other term or condition of
employment.
(c) In any other manner interfering with , restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join, or assist the above-
named Union , or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from any and
all such activities.
2. Take the following affirmative action which it is found will effectuate the policies
,of the Act:
(a) Offer to all employees who were deprived of work by the removal of Respond-
ents' New York plant immediate and full reinstatement to their former or substantially
equivalent positions (with necessary traveling and moving expenses for them and
their families and their household effects), without prejudice to their seniority or other
rights and privileges and in accordance with the other conditions set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Make whole such employees for any loss of earnings they may have suffered
as a result of the discrimination against them , as provided in the section of this Deci-
sion entitled "The Remedy."
(c) Notify the employees herein found to have been discriminated against if
presently serving in the Armed Forces of the United States of their right to reinstate-
ment as provided herein in accordance with the Selective Service Act and the Univer-
sal Military Training and Service Act of 1948, as amended , after discharge from the
Armed Forces.
(d) Preserve and upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) If Respondents resume, in the New York City area, their discontinued op
tion , bargain collectively, upon request, with Local 57, International Ladies' Gar
Workers' Union, AFL-CIO, as the exclusive representative of all production
maintenance, packing, and shipping employees, excluding office clerical empl(
guards, and supervisors employed in such operations, and, if an agreement is rea
embody such understanding in a signed agreement. If Respondents do not so rc
such operations, but continue at Miami, Florida, to perform the operations for
carried on in New York, bargain, upon request, with the above-named Union
exclusive representative of their employees at Miami in the unit hereinabove
appropriate, if, upon compliance with the order of reinstatement herein, the
number of the former New York employees who have accepted employment i
Miami plant plus the other employees at that plant who have in the meantime jo
the above-named Union constitute a majority of all the employees in the approp
unit at that plant.
(f) Send to each of the employees referred to in paragraph 2(a) above, by i
tered or certified mail, a letter offering him reinstatement and setting forth the
Respondents' election as to where they will effect such reinstatement, and include
in such letter a copy of the attached notice marked "Appendix." 40
(g) Post at their plant in Miami, Florida, copies of the attached notice marked
"Appendix." 41 Copies of said notice, to be furnished by the Regional Director for
Region 2, shall, after being duly signed by Respondents, be posted by Respondents
immediately upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondents to insure that
said notices are not altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 2, in writing, within 20 days from
the receipt of this Decision , what steps Respondents have taken to comply herewith 4Z
40 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words "a Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board ' s Order be enforced by a decree of a United
States Court of Appeals , the notice shall be amended by substituting for "a Decision and
Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order."
'i However , If Respondents elect to resume in the New York area their former New York
operations , such notice shall be posted at such new location.
'a In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
After a hearing duly held, it was determined that Garwin Corporation unlaw-
fully moved its New York City operations to Miami, Florida, where it resumed
operations under the name of S'Agaro, Inc., in order to defeat the rights of its
employees to bargain and deal with a union of their choice (Local 57, Inter-
national Ladies' Garment Workers' Union, AFL-CIO). In order to remedy this
conduct, we have been required to take the following steps:
WE WILL bargain collectively, upon request, with Local 57, International
Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of
all our New York, New York, employees in the appropriate unit described
below, with respect to rates of pay, wages, hours of employment, and other con-
ditions of work, and, if an understanding is reached, embody it in a signed
agreement.
WE WILL bargain collectively, upon request, with said labor organization as
the exclusive representative of our employees at our Miami, Florida, plant, in
the appropriate unit described below, provided that we do not reopen our New
York City plant, and provided further that, upon our compliance with the pre-
scribed order of reinstatement, the total number of the New York City employees
who have accepted employment at the Miami plant and the other employees at
Miami who have in the meantime joined the above-named labor organization
constitute a majority of all the employees in the appropriate unit.
BREITLING BROTHERS CONSTRUCTION CO. 685
The appropriate bargaining unit in each plant is:
All production, maintenance , packing, and shipping employees, exclud-
ing office clerical employees, guards, and supervisors as defined in the Act.
WE WILL NOT discourage membership of our employees in the above-named
or any other labor organization by discontinuing operations or by discriminating
in any other manner in regard to their hire and tenure of employment, or any
term or condition of employment.
WE WILL offer all employees who were deprived of employment as a result
of the removal of our New York City plant immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed. Such reinstatement
will be offered at any plant we may open in the New York City area. If no such
plant is opened, we will offer such reinstatement at our Miami, Florida, plant,
together with the necessary traveling and moving expenses.
WE WILL make all said employees whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist the above-named or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid and protection, or to refrain from any or all of such
activities.
GARwiN CORPORATION; S'AGARO, INC., A NEW YORK CORPORATION;
S'AGARO, INC., A FLORIDA CORPORATION; JOSEPH WINKELMAN;
MILTON MIRSKY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If any of our former New York City employees are currently serving in
the Armed Forces of the United States, we will notify them of their right to reinstate-
ment or transfer upon application as provided herein after discharge from the Armed
Forces, in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office at Squibb Building, Fifth Floor, 745 Fifth Avenue, New York, New York,
Telephone No. 751-5500.
Harold W. Breitling and Robert L. Breitling , Partners, d/b/a
Breitling Brothers Construction Co.; and/or Breitling Broth-
ers Construction , Inc. and Teamsters, Chauffeurs , Warehouse-
men and Helpers Local No. 222, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 27-CA-1653. June 28,1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
153 NLRB No. 55.