Garwin Corp.

National Labor Relations Board - Board DecisionsFeb 21, 1968

169 N.L.R.B. 1030 (N.L.R.B. 1968)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garwin Corporation ; S'Agaro , Inc., a New York Corporation ; S'Agaro, Inc., a Florida Corpora- tion ; Joseph Winkelman ; Milton Mirsky and Local 57, International Ladies' Garment Workers' Union , AFL-CIO. Case 29-CA-45 (formerly 2-CA-9791) February 21, 1968 SUPPLEMENTAL DECISION AND ORDER On June 28, 1965, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' finding, inter alia, that Respondents violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by closing their plant in New York City, discharging their employees, and moving their operations to Miami, Florida, for the purpose of depriving em- ployees of rights guaranteed by Section 7 of the Act and to avoid bargaining with the Union. Thereafter, the Board filed a petition with the United States Court of Appeals for the District of Columbia for enforcement of its Order. The court, while enforc- ing the Board's Order in all other respects, rejected the remedial requirement that Respondents recog- nize and bargain with the Union for employees at the Florida location, irrespective of the Union's representative status among those employees.2 Accordingly, the court remanded the record to the Board for "further consideration of this aspect of the remedy . . . ." Thereafter, the Board petitioned the Supreme Court of the United States for writ of certiorari. On June 5, 1967, the Supreme Court de- nied the Board's petition.3 Subsequently, the Board granted permission to all parties to file briefs, and the Charging Party and General Counsel did so. Having reconsidered our Decision and Order in the light of the Court's rejection of the bargaining order operative at the Florida location, we find that other remedial measures are proper and necessary to effectuate statutory policies at that facility. It may be said, at the outset, that the difficulty of the task of devising effective remedies in this, and other cases involving the unlawful removal of a plant to a distant site, stems from the Board's not having required any employer to restore its operations, reinstate discharged employees, and bargain at the original location. While such a remedy would fully redress the unfair labor practices, the Board has, in- stead, sought to fashion remedial alternatives calcu- lated to lessen the Employer's opportunities for realizing any immediate or future benefit from its unlawful course of conduct if it elects to continue operating at the runaway location. ' 153 NLRB 664. 2 374 F.2d 295. 9 387 U.S. 942. Prior to our initial decision in this case, the Board's "runaway shop" remedy merely required the Employer to bargain at the new location if the statutory representative could reestablish its majority status among the work force at that loca- tion. The burden placed on the Union in order to be able to meet that condition prompted the Board to reconsider the conditional bargaining order. Although fully mindful of the various conflicting in- terests involved herein, the Board concluded that the rights of the Florida work force "should not be preferred at the expense of a bargaining order which will dissipate and remove the consequences of a deliberate violation of statutory obligations."4 In disagreeing, the Court acknowledged that the un- conditional bargaining order would be effective to prevent Respondents from achieving "their primary illegal objective, i.e., to escape bargaining,"5 but it did not regard this as sufficient "justification for a remedy which deprives Florida workers of a basic right. "6 Therefore, the question before us on remand is whether a remedy can be adapted to the Florida operation which will preclude Respondents from achieving the fruits of their unfair labor practices, .yet do so in a manner accommodating the freedom of choice of employees at that location. In our opinion, this objective may be achieved consistent with the Court's decision, by remedies affirmatively assuring Florida employees an opportunity to exer- cise their organizational interests in an atmosphere free from any lingering effects of their Employers' unfair labor practice history. There can be no question that the manifest opposition to collective bargaining by an employer who in the past has resorted to wholesale discharges and plant removal to defeat employee organization will not be taken lightly by employees confronted with a present op- portunity to organize collectively. Since the possibility exists that employees at the Florida location will be influenced by the Respond- ents' unlawful conduct, appropriate remedies are available to insure that they have an opportunity to formulate their desires with regard to representa- tion in an atmosphere free of the fears generated by their Employers' demonstrated propensity to vio- late the Act. To this end we shall apply various remedies invoked by the Board to offset the effects of massive unfair labor practices in other cases where issuance of a bargaining order was denied. First, we shall order the Respondents to furnish the International Ladies' Garment Workers' Union, upon request made within 1 year, with the names and addresses of all employees at its Florida plant 4 153 NLRB 664, 666. 5 374 F .2d 295, 302. 6 /bid. 169 NLRB No. 154 GARWIN CORPORATION, ET AL. 1031 and to keep that list current for a 1-year period.7 Second, we shall require that, upon request of the International Ladies' Garment Workers' Union made within 1 month of this Supplemental Deci- sion, the Respondents shall immediately grant said Union and its representatives reasonable access to its bulletin boards, and all places where notices are customarily posted, for a period of 1 year." Third, we shall order the Respondents to permit em- ployees to have access to union organizers on plant parking lots and plant approaches during nonwork- ing hours.9 Finally, in accord with our long- established practice, we shall order Respondents to bargain with International Ladies' Garment Wor- kers' Union upon proof that a majority of em- ployees in the appropriate unit at Miami , Florida, have designated the Union as their representative.10 As indicated above, we view these remedial revi- sions as consistent with the Court's remand and, in our opinion, they will dissipate any possible exten- sion of the coercive effects of Respondents' unfair labor practices upon the Florida employees by opening channels of communication between the Union and employees closed by Respondents' flagrant violations of the Act, and by requiring im- mediate resumption of the bargaining relationship upon proof of majority. Finally, to the extent that they are designed to eradicate any organizational imbalances created by the unfair labor practices and to facilitate an opportunity for the Florida workers freely to select a bargaining representative, these remedies will diminish Respondents' opportunity to achieve the benefits of their unlawful conduct." AMENDED ORDER 12 Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ents, Garwin Corporation ; S'Agaro, Inc., a New York Corporation; S'Agaro, Inc., a Florida Cor- poration ; their officers , agents, successors , and as- signs; and Respondents Joseph Winkelman and Milton Mirsky , their agents, successors , and as- signs, shall: 1. Cease and desist from: ' The present case is distinguishable from Textile Workers Union v. N.L.R B. [J P. Stevens & Co.], 388 F.2d 896 (C.A. 2), where the court denied enforcement of a name and address requirement . In Stevens, the employer had engaged in extensive 8(a)(1), (3), and (4) violations during an initial organization campaign The court reasoned that a proper remedy in such context need go no further than "dissipate the fear in the at- mosphere within the Company's plants generated by its antiunion cam- paign " However , in the runaway shop situation statutory policies will not be effectuated merely by a "change in atmosphere " at the , runaway loca- tion , particularly where , as here , the Board did not require Respondent's return to its original location and the court has refused to enforce an im- mediate bargaining order . As an effective remedy in these circumstances, we believe that the names-and-addresses requirement is particularly ap- propriate for employee-umon communications at the runaway location where , as a result of the unlawful move there are few if any union ad- herents employed . Such a provision in our affirmative Order is also neces- (a) Refusing to bargain collectively, upon request, with Local 57, International Ladies' Gar- ment Workers' Union, AFL-CIO, as the exclusive representative of all production and maintenance, packing and shipping employees, excluding office clerical employees, guards, and supervisors em- ployed at their Jamaica Avenue, 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 refusing 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 their employees in the exer- cise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, 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 Respondents' 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 con- ditions set forth in the section of the Trial Ex- aminer's 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 sec- tion of the Trial Examiner's Decision 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 full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. sary to diminish the offending Employers ' opportunity to profit from their unlawful refusal to bargain at the original location. 8 H. W. Elson Bottling Company, 155 NLRB 714, 715, enfd. with modification not here material 379 F 2d 223 (C A. 6). 9 Marlene Industries Corp, 166 NLRB 703,711 10 See, e.g, Mount Hope Finishing Co., 106 NLRB 480, 501; Industrial Fabricating , Inc., 119 NLRB 162, 173, Sidele Fashions, Inc, 133 NLRB 547,555-556 ' enfd 305 F 2d 825 (C.A. 3). 11 Upon a showing of cause, the Board, in the event of a change in cir- cumstances, will reconsider the appropriateness of any segment of the Amended Order herein affected thereby 12 So that all of the Respondents ' obligations hereunder may be con- tained in one instrument, we have decided to issue an Amended Order containing not only those provisions of our previous Order which we have reconsidered , but also the provisions which have already been enforced by the Court 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) If Respondents resume their discontinued operation in the New York City area, bargain col- lectively, upon request, with Local 57, Interna- tional 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 employed in such opera- tions, and, if an agreement is reached, embody such understanding in a signed agreement. If Respond- ents do not resume such operations , but continue at Miami, Florida, to perform the operations for- merly carried on in New York, bargain, upon request, with the International Ladies' Garment Workers' Union upon proof that a majority of em- ployees in the appropriate unit at Miami, Florida, have designated the Union as their exclusive representative. (f) Upon request made within 1 year of the is- suance of this Decision, immediately supply the In- ternational Ladies' Garment Workers' Union a list of the names and addresses of all employees at their Miami, Florida, plant, and keep that list current for a 1-year period. (g) Upon request, immediately grant the Interna- tional Ladies' Garment Workers' Union and its representatives reasonable access, for a 1-year period, to plant bulletin boards and all places where notices to employees are customarily posted at the Miami, Florida, plant. (h) Permit employees at the Florida plant to have unrestricted access to union organizers during nonworking time on plant approaches and parking lots for a period of 1 year from the issuance date of this Decision, subject only to such reasonable and nondiscriminatory regulations as Respondents may find it necessary to impose, in the interest of plant efficiency and discipline, provided, however, that said regulations do not serve to thwart the em- ployees in the exercise of the right guaranteed them herein. (i) Send to each of the employees referred to in paragraph 2(a), above, by registered or certified mail, a letter offering reinstatement and setting forth the Respondents' election as to where they will ef- fect such reinstatement, and include in such letter a copy of the notice attached hereto marked "Appendix."13 (j) Post at their plant in Miami, Florida, copies of the attached notice marked "Appendix."14 Copies of said notice, on forms provided by the Re- gional Director for Region 29, after being duly signed by Respondents' representative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, includ- ing 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. (k) Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 13 In the event that this Amended Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 14 However , if Respondents elect to resume in the New York area their former New York operations, such notice shall be posted at such new lo- cation. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Supplemental Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a hearing duly held, it was determined that Garwin Corporation unlawfully 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. 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 condi- tions of work, and, if an understanding is reached, embody it in a signed agreement. WE WILL bargain collectively, upon request, with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive represent- ative 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 prescribed Order of rein- statement, a majority of the employees in the appropriate unit at the Miami plant have designated the Union as their representative. The appropriate bargaining unit in each plant is: All production, maintenance, packing, and shipping employees, excluding office cleri- GARWIN CORPORATION, ET AL. 1033 cal 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 re- gard 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, im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed. Such reinstate- ment 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 neces- sary traveling and moving expenses. WE WILL make all said employees whole for any loss of pay suffered as a result of the dis- crimination against them. WE WILL, upon request made within 1 year of the issuance of the National Labor Relations Board's Supplemental Decision, immediately supply the International Ladies' Garment Wor- kers" Union a list of the names and addresses of all employees at our Miami, Florida, plant and keep that list current for a I-year period. WE WILL, upon request, immediately grant the International Ladies' Garment Workers' Union and its representatives reasonable ac- cess, for a 1-year period, to plant bulletin boards and all places where notices to em- ployees are customarily posted at our Miami, Florida, plant. WE WILL permit employees at our Florida plant to have unrestricted access to union or- ganizers during nonworking time on plant ap- proaches and parking lots for a period of 1 year from the issuance date of the Board's Supple- menial Decision, subject only to such reasona- ble and nondiscriminatory regulations as we may find it necessary to impose in the interest of plant efficiency and discipline, provided, however, that said regulations do not serve to thwart the employees in the exercise of the right guaranteed 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 organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion, or to refrain from any or all such activi- ties. Dated By GARWIN CORPORATION; S'AGARO, INC., A NEW YORK CORPORATION; S'AGARO, INC., A FLORIDA CORPORATION; JOSEPH WINKELMAN; MILTON MIRSKY (Employers) (Representative) (Title) Note: We will notify any of our former New York City employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Regional Office 29, 16 Court Street, 4th Floor, Brooklyn, New York 11201, Telephone 596-3535; or Regional Office 12, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.