Gitano Distribution Center

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1172 (N.L.R.B. 1992)

1172
308 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although we are reversing certain of the judge’s unfair labor
practice findings, we agree with him that a broad cease-and-desist
order is warranted because of the Respondent’s history of ‘‘frequent
and flagrant violations of the Act.’’ In this regard, we note that the
Union filed a petition in 1986 to represent all of the full-time and
part-time warehouse employees employed by the Respondent (at that
time, Orit) at its Edison, New Jersey warehouse. Following an elec-
tion held June 5, 1987, and a rerun election held August 31, 1987,
the Union was certified on September 8, 1987 (the judge stated in-
correctly that the Union was certified on September 7). Thereafter,
the Board found that the Respondent violated Sec. 8(a)(5) by failing
and refusing to bargain with the Union. Gitano Distribution Center,
288 NLRB 12 (1988). To protest the Respondent’s failure to bar-
gain, the employees struck in November 1987, but unconditionally
offered to return to work in December 1987. The Board subse-
quently found that the Respondent violated Sec. 8(a)(3) by refusing
to reinstate the strikers on their unconditional offer to return to work.
Orit Corp., 294 NLRB 695 (1989), enfd. mem. 918 F.2d 225 (D.C.
Cir. 1990). Finally, as noted by the judge, the Respondent was the
subject of a contempt proceeding before the U.S. district court be-
cause of its continuing refusal to comply with the court’s order to
reinstate the strikers. As a result of that proceeding, the court issued
a consent order on November 26, 1990, in which the Respondent ad-
mitted that it had failed and refused to comply with the court’s order
and had failed and refused to properly reinstate the unfair labor prac-
tice strikers.
We also agree with the judge that in the circumstances of this
case, where the Respondent has failed to bargain with the Union as
the exclusive collective-bargaining representative of the employees
in the certified unit, the initial period of certification should be con-
strued to begin on the date that the Respondent begins to bargain
in good faith with the Union.
2 We agree with the judge that in the circumstances of this case,
2 weeks’ notice was not timely. In this regard, we note that the
Union first requested bargaining in August 1988 about the effects of
the relocation and that the Respondent failed to respond to this re-
quest. Although the Respondent continued to plan for the relocation
over the next several months and knew at the latest by November
that the relocation would occur in late December, the Respondent
did not inform the Union of the layoffs and relocation until Decem-
ber 16, 1988, a time when it would be difficult to schedule bargain-
ing meetings because of the upcoming holidays. Thus, the parties did
not meet until December 29, only 1 day before the layoff and reloca-
tion were scheduled and only 1 week before they actually occurred.
Because the Respondent offered no evidence of ‘‘particularly un-
usual or emergency circumstances’’ justifying its delay in notifying
the Union of its relocation decision, Member Oviatt agrees with his
colleagues that 2 weeks’ advance notice was insufficient. See gen-
erally Willamette Tug & Barge Co., 300 NLRB 282 (1990); Los An-
geles Soap Co., 300 NLRB 289 (1990).
Gitano Group, Inc. and United States Outerwear,
single and joint employers, d/b/a Gitano Dis-
tribution Center and United Automobile, Aero-
space and Agricultural Implement Workers of
America, AFL–CIO. Cases 22–CA–16127 and
22–CA–16151
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On February 23, 1990, Administrative Law Judge
Julius Cohn issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief.
On January 24, 1992, the Board scheduled oral argu-
ment in this case because the analysis of whether the
Respondent’s United States Outerwear, North Amer-
ican Underwear, and P.S. Gitano employees should be
included in the certified bargaining unit and the appli-
cation of the Board’s accretion, relocation, and/or
‘‘spinoff’’ theories to that analysis present important
issues. On February 26, 1992, the Respondent and the
General Counsel presented oral argument before the
Board.
The Board has considered the decision in light of
the exceptions, briefs, and oral argument and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) of the Act by laying
off its North American Underwear (NAU) warehouse
employees working at its Edison, New Jersey ware-
house and by refusing to transfer them to its North
Brunswick, New Jersey warehouse when it relocated
its NAU operation to that facility. The judge also
found, and we agree, that the Respondent violated Sec-
tion 8(a)(5) by failing to provide the Union with infor-
mation it requested that was relevant and necessary for
meaningful effects bargaining regarding the relocation
and the layoff of the NAU employees. The judge fur-
ther found, and we agree, that the Respondent violated
Section 8(a)(5) by failing to bargain with the Union in
good faith over the effects of its decision to relocate
the NAU work and by failing to notify the Union in
a timely manner of this decision.2 In addition, the
judge found, and we agree, that the Respondent vio-
lated Section 8(a)(5) by refusing to bargain with the
Union regarding the effects of its decision to relocate
the P.S. Gitano work from Edison to North Brunswick.
Finally, the judge found that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to bargain
with the Union as the representative of all its ware-
house employees employed at both its Edison and
North Brunswick warehouses. Although we agree with
the judge that the Respondent violated Section 8(a)(5)
by refusing to bargain with the Union as the exclusive
bargaining representative of the unit employees, for the
reasons stated below we find that the certified bargain-
ing unit is limited to the Orit employees working at the
Edison facility. We also find, as explained below, that
the NAU warehouse employees working at the North
Brunswick facility constitute a separate bargaining
unit, that the Respondent was obligated to recognize
and bargain with the Union as the representative of
those employees, and that it violated Section 8(a)(5) by
failing and refusing to do so. Finally, we find that the
Respondent did not have a duty to bargain with the
1173GITANO DISTRIBUTION CENTER
3 Because the petition was filed prior to the creation of the Gitano
Group in late 1988, Orit was the employer of record when the origi-
nal petition was filed. We agree with the judge, for the reasons stat-
ed by him, that the Respondent and Orit are alter egos.
4 The judge found that NAU and the Respondent constitute a sin-
gle employer. There are no exceptions as to this finding and hence
we adopt it pro forma.
5 Although USO’s operation at the Edison facility commenced
prior to the date of the second election, its employees did not vote
in that election. In this regard, it is uncontroverted that at the time
of the second election the Union did not know of the USO employ-
ees’ presence at the Edison facility and did not seek their inclusion
in the unit. Consequently, the issue of their inclusion in the unit has
not been previously litigated before the Board.
6 Also in July 1987, the Respondent rented warehouse space at the
Crazy Eddie warehouse down the street from its Edison facility. The
Respondent housed its P.S. Gitano operation at the Crazy Eddie
warehouse until the end of 1988, when it relocated its P.S. Gitano
operation to the North Brunswick facility.
7 None of the warehouse employees who had worked at the Crazy
Eddie warehouse was laid off or transferred to the North Brunswick
warehouse as a result of the relocation of the P.S. Gitano operation.
8 The traditional community-of-interest criteria include ‘‘distinc-
tions in skills and functions of particular employee groups, their sep-
arate supervision, the employer’s organizational structure, and dif-
ferences in wages and hours, as well as integration of operations,
employee transfer, interchange, and contacts.’’ Dinah’s Hotel &
Apartments, 295 NLRB 1100, 1101 fn. 3 (1989).
9 Because he agrees with his colleagues that the USO employees
would not constitute an accretion to the bargaining unit, Member
Devaney finds it unnecessary to pass on whether the Respondent and
USO are a single employer.
Union regarding the United States Outerwear (USO)
warehouse employees working at the Edison facility
and its P.S. Gitano warehouse employees at North
Brunswick and thus did not violate the Act by failing
to do so.
The Respondent is a public corporation controlled
by the Dabah family, which owns 85 percent of its
stock. To the extent relevant here, the Respondent is
engaged in the importation and wholesale distribution
of wearing apparel. The Respondent is the sole owner
of all the stock in Orit Corporation, which distributes,
inter alia, women’s jeans under the ‘‘Gitano’’ label.3
One of Orit’s subdivisions, P.S. Gitano, distributes
proportionally sized jeans for women. In addition to
Orit, the Respondent is the sole owner of NAU, a sub-
sidiary that distributes men’s and women’s intimate
apparel.4 Finally, members of the Dabah family own
100 percent of USO’s outstanding stock and control
that organization. Although USO is not a subsidiary of
the Respondent, it uses the Gitano label under a licens-
ing agreement with the Respondent.
At the time of its formation in 1986, USO imported
and distributed coats and outerwear at a public ware-
house in Jersey City, New Jersey. Originally, USO em-
ployed none of its own warehouse employees. In May
1987, USO moved its operation to the Edison ware-
house. By July of that year, USO had hired approxi-
mately 20 of its own employees who worked at the
Edison warehouse.5 Also in July 1987, Orit moved its
operation to the Edison facility from its Linden, New
Jersey warehouse. NAU, which had also operated out
of the Linden warehouse, was relocated to the Edison
warehouse at the same time. Thus, by the end of July
1987, the Orit, NAU, and USO operations were lo-
cated in the Edison warehouse.6
Prior to USO’s move to the Edison warehouse, the
Respondent took certain steps to ensure that the USO
operation would be separate from its Orit and NAU
operations. In this regard, the Respondent erected a
fence between the area in which USO was located and
the rest of the facility. In addition, there were separate
entrances to the warehouse for the USO employees and
they used separate timeclocks and loading docks.
In June 1988, the Respondent leased part of a ware-
house in North Brunswick, New Jersey, approximately
12 miles from the Edison facility. The Respondent
hired approximately 20 warehouse employees to work
at that facility. Over the next several months, the Re-
spondent gradually transferred its P.S. Gitano operation
from the Crazy Eddie warehouse to the North Bruns-
wick facility. Because the Orit operation at the Edison
warehouse was expanding, the Respondent transferred
the employees who had worked at Crazy Eddie’s to the
Edison facility and hired new employees to perform
the P.S. Gitano work at North Brunswick.7 Finally, in
January 1989, the Respondent relocated its NAU oper-
ation from the Edison facility to the North Brunswick
warehouse. Thus, at all times since January 1989, the
Orit and USO warehouse employees have been work-
ing at the Edison warehouse and the P.S. Gitano and
NAU warehouse employees have been working at the
North Brunswick warehouse.
The judge found that the Respondent and USO were
a single employer and that the USO employees should
be included in the currently certified unit under a tradi-
tional community-of-interest analysis.8 Accordingly,
the judge found that the Respondent had a duty to bar-
gain with the Union as the exclusive bargaining rep-
resentative of the USO employees and that it violated
the Act by failing and refusing to do so. We agree
with the judge that the Respondent and USO are a sin-
gle employer,9 but for the following reasons we dis-
agree with his conclusion that the USO employees
should be included in the bargaining unit.
Initially, in order to establish that the Respondent
unlawfully refused to bargain as to the USO employ-
ees, the General Counsel must first establish that the
USO employees are properly included in the certified
unit. Thus, the General Counsel is seeking by means
of an unfair labor practice complaint to have the
Board, in effect, clarify the bargaining unit to include
the USO employees. It is well established, however,
that when parties to a bargaining relationship, even by
mistake, have excluded a group of employees from an
established bargaining unit, the Board will not clarify
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Union Electric Co., 217 NLRB 666, 667 (1975). See also A-1
Fire Protection, 250 NLRB 217, 221 fn. 23 (1980), in which the
Board stated that ‘‘[i]t is well established that the Board will not
clarify an established bargaining unit by including employees who
might otherwise be appropriately included in the unit if their job
classifications were in existence at the time of the certification, rec-
ognition, or execution of a collective-bargaining agreement and if
their duties have not undergone recent, substantial changes which
create real doubt as to their unit replacement.’’ See further
Copperweld Specialty Steel Co., 204 NLRB 46 (1973) (classifica-
tions not accreted to the certified unit where, although the disputed
classifications were in existence at the time of an election, the em-
ployees in those classifications were not included on the Excelsior
list and did not vote in the election, even if their exclusion was by
mistake).
11 Member Raudabaugh does not pass on the issue of whether it
is inappropriate to decide this unit issue in an unfair labor practice
case. Assuming arguendo that it is appropriate to do so, he agrees
with the conclusion, set forth infra, that the USO employees are not
a part of the represented unit at Edison.
12 See Melbet Jewelry Co., 180 NLRB 107, 110 (1969), in which
the Board stated that it would not ‘‘under the guise of accretion,
compel a group of employees, who may constitute a separate appro-
priate unit, to be included in an overall unit without allowing those
employees the opportunity of expressing their preference in a secret
election.’’ See also United Parcel Service, 303 NLRB 326 (1991).
13 Super Valu Stores, 283 NLRB 134, 136 (1987), citing Safeway
Stores, 256 NLRB 918 (1981). See also Save Mart of Modesto, 293
NLRB 1190, 1191 (1989).
14 For the most part, Orit stored merchandise from its Revista and
Linea operations in the USO area. When Revista went out of oper-
ation in December 1988, its merchandise was stored in the USO
area. The Linea operation commenced in July 1989. Some of its
merchandise came into the warehouse on hangers and was stored in
the USO area. As to the hi-lo, Rosenthal, USO’s warehouse man-
ager, testified that USO used Orit’s hi-lo approximately once every
2 weeks for an hour to move cartons onto pallets.
15 See, e.g., Towne Ford Sales, 270 NLRB 311, 311–312 (1984),
affd. 759 F.2d 1477 (9th Cir. 1985).
16 As the judge correctly found, Rosenthal reports to both Beida,
Orit’s head of operations, and Holman, USO’s president. While
Beida did play a significant role in establishing USO’s initial oper-
ation, Rosenthal testified without contradiction that he (Rosenthal)
now hires employees, determines merit wage increases, disciplines
the unit to include those employees unless substantial
changes have occurred, creating a real doubt as to
whether the excluded employees should now be in-
cluded in the unit.10 In the present case, the USO em-
ployee group was in existence at the time of the sec-
ond election, the parties did not include them in the
bargaining unit, and no ‘‘substantial changes’’ have
occurred in the duties and responsibilities of the bar-
gaining unit employees or of the USO employees since
the election. In these circumstances, we find that it
would be inappropriate to enlarge the unit to include
the USO employees.11
Further, even if ‘‘unit clarification,’’ by analogy,
were otherwise appropriate here, we would dismiss this
unfair labor practice allegation because any community
of interest the USO employees share with the bargain-
ing unit employees is not so overwhelming as to re-
quire their accretion to the bargaining unit. In this re-
gard, we emphasize that the Board has followed a re-
strictive policy in finding accretion because it is reluc-
tant to deprive employees of their basic right to select
their own bargaining representative.12 Consequently,
we will find a valid accretion ‘‘only when the addi-
tional employees have little or no separate group iden-
tity . . . and when the additional employees share an
overwhelming community of interest with the preexist-
ing unit to which they are accreted [footnotes omit-
ted].’’13
In the present case, the judge found it particularly
significant that the USO employees ‘‘worked fairly
closely together’’ with the unit employees and that
‘‘they were all doing the same kind of work.’’ We
note, however, that the USO employees do not work
closely together with the Orit warehouse employees at
Edison. As noted above, the area of the Edison ware-
house occupied by the USO operation is fenced off
from the rest of the warehouse. USO employees have
separate entrances to the facility and use separate time-
clocks and loading docks. Consequently, the USO em-
ployees are physically isolated from the Orit employ-
ees at Edison. Although the judge correctly found that
there were some contacts between the USO and Orit
employees, the record indicates that these contacts
were for the most part limited to the storage of some
of Orit’s merchandise in the USO area and the use by
USO of Orit’s hi-lo on an occasional basis.14
As to the second factor relied on by the judge, we
find that the USO employees perform work different
from that of the unit employees. In this regard, USO
employees unpack coats and outerwear received at the
warehouse and run them through a hanger operation
prior to their reshipment. The USO employees use spe-
cial equipment to perform this operation, for which
they are specially trained. The unit employees, by con-
trast, unpack the apparel that arrives at the warehouse
in cartons and repack it in other cartons according to
customer orders. They use no special equipment or
skills in the performance of this operation. Although
the judge found it significant that the USO employees
now perform less hanger work than they previously
did, we find that this factor, standing alone, does not
require the USO employees’ inclusion in the bargain-
ing unit.
Finally, we note that two other factors that the
Board has identified as ‘‘especially important in a find-
ing of accretion,’’ i.e., employee interchange and com-
mon day-to-day supervision, are absent in the present
case.15 In this regard, it is uncontroverted that there is
no interchange or transfer between the USO employees
and unit employees. In addition, Rosenthal, USO’s
warehouse manager, is in overall charge of day-to-day
operations and labor relations for USO while the Orit
employees at the Edison warehouse are under the over-
all direction and supervision of other officials of the
Respondent.16 Thus, as noted above, we conclude that
1175GITANO DISTRIBUTION CENTER
and discharges employees, assigns work, and hears employee griev-
ances.
17 In this regard, we note, as stated above, that the petitioned-for
unit originally included ‘‘[A]ll full-time and part-time warehouse
employees employed by the employer at its Edison, New Jersey
warehouse’’ and that the NAU employees voted in both elections.
There is no dispute that these employees were included in the unit
when they worked at the Edison facility.
18 See, e.g., Haag Drug Co., 169 NLRB 877 (1968).
19 See generally Fall River Dyeing Corp. v. NLRB, 482 U.S. 27,
37–38 (1987).
20 If, as here, with respect to the NAU employees, former bargain-
ing unit employees would constitute a majority of the employees at
the new facility but for the employer’s unlawful refusal to transfer
those employees to the new facility, or where an employer unlaw-
fully refuses to hire them at the new facility, we will find that the
union’s majority status presumptively would have continued at the
new facility. See, e.g., State Distributing Co., 282 NLRB 1048, 1048
(1987).
21 Because the new facility is presumptively a separate unit, we
would view as irrelevant to the analysis the question of whether or
to what extent the employees at the new facility are performing work
that previously was performed by the unit employees at the old facil-
ity.
The issue of whether an existing contract would be applicable to
the new facility is not before us in the present case. However, if the
new facility is a separate unit, it would appear that the contract
would not apply, without an agreement that it would apply. See
Kroger Co., 219 NLRB 388 (1975).
22 This is especially true of the term ‘‘spinoff.’’ In Coca-Cola Bot-
tling Co. of Buffalo, 299 NLRB 989 (1990), enfd. 936 F.2d 122 (2d
Cir. 1991), for example, the Board found that the respondent’s Or-
chard Park facility was a spinoff from its Tonawanda warehouse op-
eration although only one of the four employees at Orchard Park
transferred from a unit position at Tonawanda to a unit position at
Orchard Park. Further, in Overnite Transportation Co., 306 NLRB
237 (1992), the Board found that the respondent’s new Palatine fa-
cility was ‘‘an extension of, or a spinoff from’’ its Bedford Park
truck terminal when only 16 of the 33 drivers at the new facility,
or less than a majority, were transferees from the Bedford Park ter-
minal. In reaching these conclusions, the Board relied on other fac-
tors besides the number of employee transfers to find spinoff. In
finding that the employee transfer analysis should center only on
whether the transferees form a majority of the new unit, we today
overrule Coca-Cola and Overnite Transportation to the extent that
they are inconsistent with this decision. Finally, we consider that the
present case represents the reductio ad absurdum of the spinoff anal-
ysis espoused in Coca-Cola and Overnite because here the judge has
found that the P.S. Gitano employees, none of whom were ever in
the bargaining unit, constitute a spinoff from it.
23 As the Board explained in the context of accretion, ‘‘The
Board’s fundamental concern . . . is to insure that in cases where
such an issue is raised the right of interested employees to determine
their own bargaining representative will not be thwarted.’’ Safeway
Stores, 256 NLRB 918 (1981). Under the old analysis, undue em-
phasis on the continuity between the ‘‘old’’ and ‘‘new’’ units led to
a misplaced emphasis on the transferees’ Sec. 7 rights to the exclu-
sion of the rights of the new employees. Thus, as explained above,
the Board found that new units were ‘‘extensions’’ or ‘‘spinoffs’’
Continued
the USO employees would not constitute an accretion
to the bargaining unit.
As to the NAU employees, we agree with the judge
that those employees were originally included in the
certified bargaining unit at Edison17 and that, but for
their unlawful layoff, the NAU employees would have
been transferred to the facility at North Brunswick. We
disagree, however, with the judge’s conclusion that the
NAU North Brunswick employees continue to be a
part of the certified Edison bargaining unit as a partial
‘‘relocation’’ or ‘‘spinoff’’ from it. Rather, we find
that the Respondent has an obligation to recognize the
Union as the representative of a separate unit of NAU
employees at North Brunswick for the reasons ex-
plained below. As to the P.S. Gitano employees at
North Brunswick, the judge found that they also ‘‘con-
tinued’’ to be part of the originally certified bargaining
unit because the P.S. Gitano operation was ‘‘more of
a spinoff’’ from the existing unit than a discrete com-
plement added to it. We disagree.
As an initial matter, we announce today that when
an employer transfers a portion of its employees at one
location to a new location, we will no longer define
the nature of the transfer in terms of the relationship
between the ‘‘new’’ unit and the ‘‘old’’ unit (i.e.,
whether one is a ‘‘spinoff’’ or ‘‘partial relocation’’
from the other). Rather, we will begin with the Board’s
long-held rebuttable presumption that the unit at the
new facility is a separate appropriate unit.18 Assuming
that that presumption is not rebutted, we will then
apply a simple fact-based majority test to determine
whether the respondent is obligated to recognize and
bargain with the union as the representative of the unit
at the new facility. If a majority of the employees in
the unit at the new facility are transferees from the
original bargaining unit, we will presume that those
employees continue to support the union19 and find
that the employer is obligated to recognize and bargain
with the union as the exclusive collective-bargaining
representative of the employees in the new unit. Ab-
sent this majority showing,20 no such presumption
arises and no bargaining obligation exists.21
We have decided to abandon the ‘‘partial reloca-
tion’’ and ‘‘spinoff’’ analyses in favor of this ‘‘major-
ity’’ test for two reasons. First, we believe that the
terms ‘‘partial relocation’’ and ‘‘spinoff’’ have been
applied with such increasing elasticity in the employee
transfer context that they have lost any specific mean-
ing and are therefore no longer precise and useful ana-
lytical terms.22 Second, we find that the use of these
terms has resulted in an analytical framework focusing
on the continuity between the ‘‘old’’ and ‘‘new’’ units
rather than on the correct focus, balancing the rights
of the new employees against those of transferees to
the new location.23 Thus, we believe that the test
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from the original units even when less than a majority of the em-
ployees at the new facility were transferees.
24 Indeed, there is evidence that affirmatively supports the sepa-
rateness of the North Brunswick facility. In this regard, we note that
the North Brunswick facility is some 12 miles from the Edison
warehouse and that the day-to-day operations at the two facilities are
totally separate. Further, there is no interchange or day-to-day con-
tact between the Edison unit employees and the North Brunswick
employees and they are separately managed and supervised.
which we announce today will both restore the em-
ployee transfer analysis to its proper focus and serve
as a more workable and precise analytical tool to guide
employers, unions, and employees to an understanding
of their rights and obligations in this difficult area of
the law.
Applying this test to the facts of the present case,
we find first that the presumption of the separate ap-
propriateness of the North Brunswick facility has not
been rebutted.24
Further, we find that the NAU employees at North
Brunswick constitute a separate unit from the P.S.
Gitano employees there. In this regard, we note that
the two employee groups have always been separate
and distinct, that the existence of the P.S. Gitano em-
ployee group at North Brunswick predated the arrival
of the NAU employees there by some 6 months, and
that after the arrival of the NAU employees the two
groups remained separated by a wall, had no day-to-
day contact, and retained separate supervision.
Finally, we find that the Union had majority status
in the NAU unit. As noted above, but for the Respond-
ent’s unlawful layoff of the NAU employees working
at Edison, those employees would have constituted a
majority of the employees in the NAU North Bruns-
wick bargaining unit and presumptively would con-
tinue to support the Union. Accordingly, under the ma-
jority test announced above, we agree with the judge,
albeit for different reasons, that the Respondent was
obligated to recognize and bargain with the Union as
the exclusive collective-bargaining representative of
the NAU employees working at the North Brunswick
facility and that it violated Section 8(a)(5) by failing
and refusing to do so.
With regard to the P.S. Gitano employees at North
Brunswick, we found, supra, that this employee group
also constitutes an appropriate unit, separate and dis-
tinct from the certified Edison unit and from the NAU
unit. In determining whether the Respondent is obli-
gated to recognize and bargain with the Union as the
representative of the P.S. Gitano unit, we find it deter-
minative that none of the employees at issue are trans-
fers from the Edison bargaining unit; rather, they are
all new employees hired to work at North Brunswick.
Consequently, we find that under the majority test the
Respondent has no obligation to recognize the Union
as the representative of the P.S. Gitano North Bruns-
wick employees.
In sum, applying the new majority test, we find that
the NAU employee group at North Brunswick con-
stitutes a separate appropriate unit, that the Respondent
was obligated to bargain with the Union as their rep-
resentative, and that the Respondent violated Section
8(a)(5) by failing and refusing to do so. We also find,
for the reasons explained above, that the Respondent
had no obligation to recognize and bargain with the
Union as the representative of the USO employees at
Edison or the P.S. Gitano employees at North Bruns-
wick, and that it did not violate the Act by refusing
to bargain with the Union concerning those employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Gitano Group, Inc. and United States Out-
erwear, Single and Joint Employers, d/b/a Gitano Dis-
tribution Center, Edison and North Brunswick, New
Jersey, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in United Automobile,
Aerospace, and Agricultural Implement Workers of
America, AFL–CIO, or any other labor organization,
by laying off or refusing to transfer any of its employ-
ees, or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or
condition of employment.
(b) Refusing to bargain collectively, on request, with
the Union as the exclusive representative of employees
in the following appropriate units:
All full-time and regular part-time Orit warehouse
employees employed by the employer at its Edi-
son, New Jersey warehouse, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
All full-time and regular part-time NAU ware-
house employees employed by the employer at its
North Brunswick, New Jersey warehouse, exclud-
ing all office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
(c) Failing to bargain with the Union over the ef-
fects on unit employees of its decision to relocate the
NAU and P.S. Gitano operations, and its decision to
lay off NAU employees and to refuse transfer of them
from its warehouse at Edison to its warehouse at North
Brunswick, New Jersey.
(d) Failing to comply in a timely and adequate man-
ner with the Union’s request for information relevant
and necessary to the Union’s functioning as the collec-
tive-bargaining representative of the unit employees,
concerning the effects of its decision to transfer bar-
gaining unit work.
1177GITANO DISTRIBUTION CENTER
25 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to all employees who were laid off from
its NAU Division at Edison, New Jersey, on or after
January 6, 1989, and refused transfer to North Bruns-
wick, New Jersey, immediate and full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions at either the
Edison or North Brunswick, New Jersey warehouses,
without prejudice to their seniority or other rights and
privileges, and make them whole for lost earnings and
other benefits in the manner set forth in the remedy
section of this decision.
(b) On request, recognize and bargain with the
Union as the exclusive representative of the employees
in the appropriate units described above, excluding
USO employees at Edison, New Jersey, and P.S.
Gitano employees at North Brunswick, New Jersey, on
terms and conditions of employment and, if under-
standings are reached, embody those understandings in
signed agreements.
(c) On request, bargain with the Union over the ef-
fects on unit employees of Respondent’s decision to
relocate to North Brunswick, New Jersey, the NAU
and P.S. Gitano operations, and its decision to lay off
NAU employees and to refuse transfer of them from
the Edison, New Jersey warehouse.
(d) Furnish the Union in a timely and adequate man-
ner with the information it requested concerning the ef-
fects of the Respondent’s decision to transfer bargain-
ing unit work.
(e) Preserve and, on 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 to analyze the amount of backpay and other
sums due under the terms of this Order.
(f) Post at its principal office and at its Edison and
North Brunswick warehouses copies of the attached
notice marked ‘‘Appendix.’’25 Copies of the notice, on
forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that all said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership in United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, or any other labor organi-
zation, by discriminating against our employees in re-
gard to their hire and tenure of employment or any
other term or condition of employment.
WE WILL NOT refuse to bargain, on request, with the
Union as the exclusive representative of employees at
our warehouses at Edison and North Brunswick, New
Jersey in the following appropriate units:
All full-time and regular part-time Orit warehouse
employees employed by the employer at its Edi-
son, New Jersey warehouse, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
All full-time and regular part-time NAU ware-
house employees employed by the employer at its
North Brunswick, New Jersey warehouse, exclud-
ing all office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT fail to bargain with the Union over
our decision to lay off and not transfer the NAU em-
ployees at Edison, New Jersey, and over the effects of
our decision to transfer the bargaining unit work of
NAU and P.S. Gitano from Edison, New Jersey, to our
North Brunswick warehouse.
WE WILL NOT fail to comply in a timely and ade-
quate manner with the Union’s request for information
relevant and necessary for the Union’s functioning as
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the hearing on October 2, 1989, the parties executed an infor-
mal settlement agreement in Case 22–CA–16083 approved by the
administrative law judge, and that case was severed from this pro-
ceeding.
2 The Board has taken jurisdiction over Orit, as noted above, a
wholly owned subsidiary of Gitano Group, Inc., in prior cases re-
ported at 288 NLRB 12 (1988), and 294 NLRB 695 (1989).
the collective-bargaining representative of the unit em-
ployees concerning the effects of our decision to trans-
fer NAU bargaining unit work and to lay off NAU em-
ployees at Edison, New Jersey.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer all employees who were laid off
from our NAU Division at Edison, New Jersey and re-
fused transfer to North Brunswick, New Jersey, imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions at either the Edison or North
Brunswick, New Jersey warehouse, without prejudice
to their seniority or other rights or privileges pre-
viously enjoyed.
WE WILL make whole those employees for any loss
of pay or other benefits suffered as a result of dis-
crimination against them, with interest.
WE WILL bargain, on request, with the Union as the
exclusive representative of the employees in the appro-
priate units and put in writing any agreements reached
on terms and conditions of employment.
WE WILL, on request, bargain with the Union con-
cerning the effects of our decision to relocate the NAU
and P.S. Gitano operations from Edison to North
Brunswick, New Jersey, and our decision to lay off the
NAU employees and refuse transfer of them to North
Brunswick.
WE WILL furnish the Union with the information it
requested concerning the effects of our decision to
transfer bargaining unit work.
GITANO GROUP, INC., AND UNITED
STATES OUTERWEAR, SINGLE AND JOINT
EMPLOYERS, D/B/A GITANO DISTRIBU-
TION CENTER
Marguerite R. Greenfield, Esq. and Wayne Eastman, Esq.,
for the General Counsel.
Adin C. Goldberg, Esq. (Spengler, Carlson, Gubar, Brodsky
and Frichling), of New York, New York, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. This proceeding
was tried in Newark, New Jersey, from October 2 through
5 and 13, 1989. Upon charges filed in Case 22–CA–16083
by United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL–CIO (the Union), the Re-
gional Director for Region 22 issued a complaint on January
30, 1989. Thereafter upon charges filed by the Union in
Cases 22–CA–16127 and 22–CA–16151, the Regional Direc-
tor issued an order consolidating cases and consolidated
complaint on June 27, 1989, alleging that Gitano Group, Inc.,
and United States Outerwear Corp. (Respondent and USO),
respectively, as single and joint employers, had violated Sec-
tion 8(a)(1), (3), and (5) of the Act.1 Basically the complaint
alleges that Respondent violated Section 8(a)(3) of the Act
by laying off employees, supporters of the Union, in one of
its divisions and then refusing to transfer them to a new
warehouse to which this division had relocated. It is also al-
leged that Respondent violated Section 8(a)(5) by failing and
refusing to bargain with the Union concerning the effects of
the transfer of that particular division, and further, by failing
to provide information relative to effects bargaining. It also
alleged Respondent’s failure to recognize the Union as rep-
resentative of employees in its new facility at North Bruns-
wick, New Jersey. Finally it is alleged that the Union refused
and failed to recognize the Union as representative of em-
ployees of USO. Respondent filed an answer generally deny-
ing the commission of unfair labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel
and Respondent submitted briefs which have been carefully
considered.
On the entire record in the case and from my observation
of witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Gitano Group, Inc. is a public corporation with a principal
place of business in New York, New York, which operates
and controls through wholly owned divisions and subsidi-
aries, various showrooms in New York, New York, and
warehouses in New Jersey. At the latter it is engaged in the
business of warehousing and distributing ladies jeans, under-
wear, outerwear, and other apparel from its Edison, New Jer-
sey warehouse. During the last 12 months Respondent,
through its subsidiaries, particularly Orit Corporation, distrib-
uted apparel from both Edison and North Brunswick, New
Jersey to States outside the State of New Jersey. The com-
plaint alleges, Respondent admits, and I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, Gitano Group, Inc., a public corporation, is
controlled by the Dabash family who collectively owns 85
percent of its stock. The principal officers and directors of
this corporation are all members of the Dabah family. Ac-
cording to its annual corporate report, Gitano Group, Inc. is
1179GITANO DISTRIBUTION CENTER
3 288 NLRB 12 (1988).
a marketer, designer, manufacturer, distributor of ‘‘branded
apparel sold under the Gitano trademark.’’ The aspect of its
operation principally involved in this proceeding is the
wholesale distribution of apparel. Respondent is the sole
owner of all of the stock of Orit Corporation which distrib-
utes mostly women’s jeans and other related clothing bearing
the ‘‘Gitano’’ label. Orit and other subsidiaries have a central
distribution warehouse located in Edison, New Jersey. Since
June 1988 Orit and other divisions of Respondent also began
operation of another warehouse facility in North Brunswick,
New Jersey.
Besides Orit, the subsidiaries and divisions of Respondent
principally involved in this proceeding are North American
Underwear Company (NAU) and United States Outerwear
Company (USO). NAU is a wholly owned subsidiary cor-
poration of Respondent. On the other hand, USO is con-
trolled by members of the Dabah family who own 100 per-
cent of its outstanding capital stock. USO, which manufac-
tures and distributes outerwear, operates out of Edison ware-
house, and is licensed by Respondent to use the ‘‘Gitano’’
trademark with respect to the outerwear it distributes. Li-
cense agreements provide that USO pay Gitano a royalty on
the basis of net sales of its products. Pursuant to a service
agreement between Gitano and USO, the former provides
data processing, collection, warehousing, shipping, and relat-
ed services to USO who pays Gitano a percentage of its net
sales.
Almost all of the finished goods which are made in Asia
and other places around the world are sent by either ship or
plane to the main warehouse in Edison. For almost 2 years
up to December 1988 the Respondent had space at a Crazy
Eddie warehouse which was located very close to the Edison
warehouse; and since June 1988 new warehouse space was
leased at North Brunswick. From Edison the merchandise
would be shipped to Respondent’s retail customers. The Edi-
son warehouse is also the administrative center for Respond-
ent and all of its subsidiaries and divisions. The administra-
tive services were largely performed by Orit personnel at
Edison and that office took care of personnel matters, pay-
rolls, receiving of goods, shipment of goods and accounting,
all of which were entered in a large mainframe computer at
Edison. Thus, the leasing of the North Brunswick facility in
June 1988 was mainly for the purpose of obtaining additional
warehouse space, which would not be too far from Edison.
In addition, relevant to this proceeding, is a history of
Board and court proceedings involving Respondent, usually
under the name of Orit Corp., which occurred prior to the
formation of the holding company and the public stock issue.
After the filing of a petition by the Union in 1986, and a
Decision and Direction of Election in a unit of all Edison
warehouse employees, an election and a rerun, the Union
was certified on September 7, 1987. Respondent, in order to
contest the certification, refused to bargain with the Union.
The Board thereafter found that the respondent (Orit) had
violated Section 8(a)(5) of the Act. (288 NLRB 12 (1988).)
While this matter was pending, the employees engaged in a
strike in November 1987. In December of that year Respond-
ent refused to reinstate the strikers who had made an uncon-
ditional offer to return to work. Charges respecting this re-
fusal to reinstate were filed, a complaint issued on that mat-
ter, as well as others, and a hearing was scheduled before an
administrative law judge. In the interim the General Counsel
applied for an injunction in the U.S. District Court pursuant
to Section 10(j) of the Act, and the court ordered reinstate-
ment of the strikers pending a final Board Order. Pascarell
v. Orit Corp., 705 F.Supp. 200 (D.N.J.1988). This injunctive
order was affirmed by the Third Circuit, 866 F.2d 1412 (3d
Cir. 1988). Thereafter Respondent apparently refused to
properly reinstate these unfair labor practice strikers, and
contempt proceedings were initiated by the Board before the
U.S. District Court which again ordered Respondent to rein-
state. With regard to the complaint alleging unlawful refusal
to reinstate the unfair labor practice strikers, the Board issued
its Decision ordering Orit to take this action. Orit Corp., 294
NLRB 695 (1989). Enforcement of this order is presently
pending before the Third Circuit.
B. Unit Issues
Basic to the finding of an unlawful refusal to bargain,
there must be a determination of an appropriate unit. The
Board has done this in the representation proceedings and the
subsequent refusal to bargain referred to above, finding the
appropriate unit as follows:
All full-time and regular part-time warehouse employ-
ees employed by the employer at its Edison, New Jer-
sey warehouse, excluding all office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.3
At the time of the filing of the first representation petition,
the employer was Orit Corporation, inasmuch as the public
holding company had not yet been formed, and it maintained
a warehouse at Linden, New Jersey. In the course of the
processing of this petition, Respondent moved to the Edison
warehouse. Both at Linden and continuing in Edison, NAU
was assigned one of the areas. It is undisputed that NAU, a
separate corporation, is 100-percent owned and controlled by
Respondent, and prior to Respondent’s origination, by Orit.
Moreover NAU employees voted in both elections conducted
in 1987. There is really no question that the NAU employees
were part of and included in the unit of all warehouse em-
ployees at Edison.
The other unit issue concerns the USO employees which
the General Counsel contends should also be part of the Edi-
son warehouse unit. USO is a wholly separate corporation.
However the same members of the Dabah family who con-
trol Respondent, own 100 percent of the stock of USO and
are officers and directors just as they are in Orit and Re-
spondent. USO was formed in May 1986 and has been in the
business of importing and selling coats and other outerwear.
For a period of time it operated from a public warehouse in
Jersey City but employed none of its own warehouse work-
ers. According to Albert Beida, currently vice president of
operations of Respondent, who formerly held the same posi-
tion for Orit Imports, USO commenced its move to the Edi-
son warehouse in May 1987 and became fully operational in
July of that year, having hired approximately 20 employees.
Fred Rosenthal, the warehouse manager for USO, was hired
by Beida and worked with him in preparing a budget, install-
ing equipment, and setting up the distribution system. USO
had at the outset, a complete hanging operation, so that the
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
outerwear was received and then shipped to customers on
hangers and special equipment was needed for that purpose.
Although Respondent has urged that this makes the USO op-
eration greatly different from that of Orit and other divisions
of Respondent, all of whom received and shipped goods in
cartons, it was later conceded that as USO’s business ex-
panded and evolved, it is now approximately done with 80
percent in cartons and only 20 percent on hangers. With re-
gard to shipments whether by hanger or in carton, it should
also be noted at this point that USO, apart from having the
same stockholders, officers and directors as Respondent, also
does its selling and shipping to the same customers.
USO has a licensing agreement with Gitano Licensing
Ltd., a wholly owned subsidiary of Orit Corporation, by
which it is enabled to use the Gitano trade name in return
for which, among other things, Orit has rights of approval
over products and items such as advertising. In addition there
is a service agreement between USO and Respondent where-
by the latter provides ‘‘electronic data processing, collection,
warehousing, shipping and related services.’’ Besides the
royalty USO pays on the licensing agreement, it also pays
7 percent of its net sales to Respondent for these additional
services.
According to Rosenthal, he reports to both Beida and the
USO president, William Holman. It appears that the latter
whose office is in the New York showroom, is basically re-
sponsible for sales and production of the merchandise. There
is no indication in the record that Holman has anything to
do with the warehouse operation of receiving and shipping
of merchandise. As to this, Rosenthal reports strictly to
Beida who approves all of the hiring, setting of wages and
the budget. Beida himself states that the USO budget, which
he works out with Rosenthal, is ultimately given to Stan
Greenstein, the chief financial officer of Respondent.
USO began operations to a full extent in July 1987 at Edi-
son, occupying approximately 40,000 square feet. It was set
up in a portion of the warehouse, and a wall and fence was
erected which separated the USO employees from the Orit
employees at the warehouse. The operation began between
the first and second of the elections in 1987. In this connec-
tion Rosenthal claimed that he was not aware of the elections
going on but later contradicted his own testimony and admit-
ted that he knew and was at the warehouse during the second
election in August. Of course the USO employees did not
vote in the election and the Union was not aware of their
presence. Since the Excelsior list was increased during the
interval between the elections, the Union was not advised
that there were still some new employees, such as the USO
crew, besides those added to the list.
Almost all of the warehouse employees did similar work
whether they worked for Orit, USO, NAU or some of the
other divisions located there. Basically they worked as
ticketers, order pickers, packers, and shippers. While Re-
spondent claims that the USO employees were especially
trained in the hanger operation and the bagging machines
used for it, it appears that other divisions such as NAU,
Linea, and Revista also shipped garments on hangers. It is
clear that the NAU and Linea employees were concededly
part of the bargaining unit. Nevertheless, Respondent not
only separated the USO employees by the wall and fence,
but gave them different working, lunch and break hours. In
addition the USO employees were granted a better package
of benefits, which normally was given only to the office cler-
ical employees.
While obviously Respondent was attempting to keep USO
and Orit employees apart, there was in any case, some con-
tact. For a period of time NAU had its returns department,
and Linea stored merchandise, in the USO AREA. NAU em-
ployees use the USO bagging machine and were trained by
Rosenthal to do so. Also for a period of time USO employ-
ees handled skirts and blouses prior to the beginning of the
Linea line. At the request of USO, a hi-lo operator of Orit
would move USO merchandise as needed.
Rosenthal testified that prior to the August election he met
with Orit’s personnel manager, Kolko, and Beida, and was
told that USO employees were not part of Gitano and would
not vote in the upcoming election. Beida told him that USO
started as a separate entity and operated as such and its em-
ployees would therefore not participate in the vote. Rosenthal
also stated that during some discussions he had with USO
employees he tried to show them that they were getting ben-
efits different and better than Orit employees.
Based on the foregoing I find first that Respondent and
USO constitute a single employer. Clearly the Dabah family
owns and operates not only Orit, but also USO. They con-
stitute the officers, directors, and of course, stockholders. Re-
spondent’s vice president Beida completely supervises the
USO operation. Although Rosenthal was designated as man-
ager of the USO, Beida reviews his budget, sets starting
wage rates and benefits for all warehouse employees, includ-
ing USO. It is quite apparent in the instant case there is not
only common management, but also central control of labor
relations and common ownership, practices that are consid-
ered crucial in a finding of a single employer. See Radio
Union Local 1264 v. Broadcast Service, 380 U.S. 255
(1965). Respondent relies heavily on the fact that there is lit-
tle or no employee interchange between USO and Orit. In
such a situation, however, the Board has found that 90-per-
cent stock ownership plus the same officers and directors,
and centralized control of ‘‘general labor policy’’ and oper-
ations result in a single employer holding. VIP Radio, 128
NLRB 113 (1960).
Having found single employer, it must still be determined
whether USO employees should be considered part of the ap-
propriate unit at Edison. In this regard, centralized manage-
ment, supervision and centralized control of labor relations
and hiring, as well as community of interest, are the impor-
tant factors. Central management of USO as well as the other
subsidiaries of Respondent is quite clear since in all cases the
Dabah family is at the top of the ladder and in firm control.
Moreover on the scene at Edison, Beida, vice president of
Respondent appears to have ultimately controlled the labor
relations of the employees of all the companies and divisions
operating there. As vice president for operations of Respond-
ent, Beida provided the centralized control of labor relations
with respect to hiring, wages, and other matters regarding the
employees. As noted, Rosenthal, the warehouse manager of
USO, reported to Beida. In addition the personnel managers
of Orit at the warehouse frequently provided employees as
needed, for USO. Moreover the payroll, computer, and var-
ious other administrative services were all provided by
Gitano for USO, for which Orit charged USO.
Of course community of interest is in addition very impor-
tant. Respondent relies principally on the fact that there was
1181GITANO DISTRIBUTION CENTER
little or no interchange of employees between USO and Orit
or other divisions at Edison. On the other hand despite the
existence of a fence or wall, the employees worked fairly
closely together. Most important was that they were all doing
the same kind of work. This included the ticketers, pickers,
packers, and shippers who were the vast majority of the em-
ployees together with a few other specialized workers. As
shown above the difference due to the hanger operation has
been minimized by the gradual change in USO operation to
carton shipments. If an employee then is packing a carton
there is very little difference in the operation when that em-
ployee includes a hanger or does not.
Finally it appears from the record that prior to the election
in 1987 Respondent made a special effort to separate USO
employees from the other warehouse employees. Thus it
erected the fence, established the superior clerical benefit
plan for USO employees, and invited USO employees to at-
tend a picnic for the clerical workers. It is difficult to per-
ceive that the relatively unskilled USO warehouse employees
would have the same interest as the office clerical employ-
ees. As evidence of Respondent’s intent in this regard, it
used these benefit factors as a means of demonstrating to
USO employees, during the preelection campaign, that they
were better off than the rest of the employees in the ware-
house. Then management was able to tell the voters that, by
defeating the Union, they too could receive benefits now
being given to USO employees. Apparently this ploy did not
succeed inasmuch as the Union won the election by a huge
majority, so that the 20 USO employees, even if they had
voted would not have been decisive. In sum I find that USO
employees working in Edison would have sufficient commu-
nity of interest with the other warehouse employees so as to
be included in the unit. See South Prairie Construction Co.
v. Operating Engineering Local 627, 425 U.S. 800, 803–805
(1976). Accordingly, I find that all warehouse employees of
USO shall be included in the Edison unit.
C. The Layoff of NAU Employees and Refusal to
Transfer Them to North Brunswick
As previously noted, Respondent commenced operations in
the new facility at North Brunswick approximately in June
1988. Shortly thereafter, NAU Warehouse Manager Gabay,
having determined that his operation required more space
than available at Edison, and a move should be made by
NAU to new and more adequate space at North Brunswick.
In August, Gabay met with and told the NAU employees that
the operation was to be transferred to North Brunswick. He
asked them whether they would be willing to work in that
location. It appears, and according to employee Collado, who
testified credibly, that the employees were not particularly
happy with the prospect of the move because of the possible
transportation problem, but no one indicated that they would
not work there. During the discussion with Gabay there was
some talk about obtaining a bus that would take them to
North Brunswick such as Respondent provided for some em-
ployees coming from Brooklyn, New York. The bus trans-
portation never did materialize but, on the other hand, there
is no evidence that employees said they would not travel to
North Brunswick.
During the same month, the Union, having been informed
by the NAU employees of the prospective move, wrote a let-
ter, dated August 11, in which it requested bargaining with
Respondent concerning the effects of this relocation. At this
point in time Respondent was not engaged in any bargaining
regarding any of the unit employees at Edison and did not
respond to this letter. Frank Hoefert, the union organizer, tes-
tified that after a telephone call in early December, he met
on December 12 with Respondent’s counsel to discuss the
negotiation procedures for the Orit employees at Edison.
Nothing was mentioned at this meeting of any change with
respect to NAU employees. Then by letter dated December
16, Respondent’s counsel informed the Union that it intended
to close NAU at Edison on or about December 30, 1988, and
lay off all ‘‘unit employees’’ at that time. It further states
that NAU would relocate to a larger facility in North Bruns-
wick, and concluded by stating that it would discuss the ef-
fects of the closing, should the Union wish it. This being the
holiday season, a meeting was not arranged until December
29, at which the Respondent again advised that it was mov-
ing NAU to North Brunswick and would lay off all NAU
employees at Edison. The Union’s position was that it rep-
resented NAU employees and requested Respondent to rec-
ognize and bargain with it at North Brunswick. Respondent
merely replied that its position was that it would not recog-
nize the Union or transfer the employees to North Bruns-
wick, but would discuss the effects of the layoff at Edison.
During this meeting, Respondent told the Union that it had
been operating in North Brunswick since June and that there
were about 25 employees there at present, and this would
probably increase to 60 or 65. It also indicated that there was
a possibility that some of the laid-off employees would be
hired at North Brunswick. Actually the 25 employees re-
ferred to as currently working at North Brunswick were Orit
or Gitano employees, some of whom had actually been trans-
ferred from Edison and the rest were new hires. At the De-
cember 29 meeting Respondent did not mention that in North
Brunswick approximately six new NAU employees were
hired on December 28, the day before the meeting, in addi-
tion to eight previously. This appears from lists of NAU em-
ployees hired at North Brunswick furnished later by Re-
spondent. According to Attorney Giblin, who represented the
Union and was present at the December 29 meeting, the
Company confirmed that work being performed in Edison
was also being done in North Brunswick since June, that it
was the same work, the same company. This was undoubt-
edly P.S. Gitano work by Orit employees. However the state-
ment by Giblin regarding a shut down at Edison and transfer
to North Brunswick, referred to NAU. Respondent also stat-
ed that it expected the NAU operation to grow to 60 or 65
employees and that it may entertain a request for transfer of
laid-off employees to take some of those additional positions
at North Brunswick. It was also determined that there would
be another meeting on January 5 or 6.
Attorney Giblin also testified to the effect that he had a
telephone conversation on January 4 with Respondent’s attor-
ney who stated that he would entertain a preferential hiring
application by Edison people for 30 North Brunswick jobs.
However this was coupled with a statement that there was
no way Respondent was going to recognize the Union in
North Brunswick.
There was another meeting on January 5, 1989. Despite
the statement about rehire, the lists of new employees re-
ceived in evidence indicate that a number of NAU employees
were hired at North Brunswick on January 3 and 4, 1 or 2
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days prior to this meeting, as also occurred before the De-
cember 29 meeting. At the January 5 meeting the Union re-
quested information as to the names and addresses, etc. of
employees at North Brunswick which Respondent promptly
refused. The Union gave Respondent an application, in writ-
ing, for employment for all laid-off employees at Edison but
the Company said while it would give them priority, it would
not give them hiring rights. Beida, who was present at this
meeting, mentioned that North Brunswick had commenced
its operations in June because the Company needed more
room at Edison for USO. This being the first time the Union
heard of USO, Hoefert asked for a list in writing of all divi-
sions besides Orit located in Edison. Respondent never sent
such a list, but it did concede that USO was there, although
not part of a bargaining unit, and that USO employees had
not voted in the election.
Beida then said that a large order was received in early
October which created a lot of work for NAU, and its em-
ployees both at Edison and North Brunswick were working
on this order. He then stated that shipment on this order was
winding down, and there would be a reduction in the work
force. According to Hoefert, Beida said they would lay off
Edison employees but retain the ones in North Brunswick,
although perhaps 20 or 25 employees at Edison would be of-
fered jobs at North Brunswick.
With regard to the total application for employment and
Respondent’s supposed grant of hiring rights, the Union in-
quired if Respondent would use seniority. but the reply was
that the factors for transfer or rehire would be productivity
and ability. If all things were otherwise equal, it may con-
sider seniority. Respondent also rejected the Union’s conten-
tion that senior employees at Edison had demonstrated their
ability and should presumably be more qualified than those
who may have just started at North Brunswick. The January
5 meeting ended with Respondent telling the Union that the
layoff would commence the following day.
NAU laid off most of its Edison employees on January 6,
1989. According to lists furnished by Respondent and re-
ceived in evidence, NAU employed 74 at Edison just prior
to the layoff. Sixty-four were laid off on January 6 and the
rest were retained for a short period of time to complete the
large Wal-Mart order. As soon as it was finished, NAU was
completely closed down at Edison, and its operations trans-
ferred to North Brunswick. As of January 16, 1 NAU em-
ployee was recalled to work at North Brunswick, and 11
were given jobs to work in special projects of Orit at Edison.
By February 3, NAU recalled seven others to work at North
Brunswick. The records further show that as of March 27,
1989 there were 45 new employees hired at New Brunswick
between January 3 and March 17. Curiously, none of the
transferred employees from Edison to North Brunswick took
part in the November 1987 strike, which had been found by
the Board to be an unfair labor practice strike. Since the
strikers had been employed at least since 1987 and had a
good deal of seniority, it would seem that some of them
should have been competent enough, in accordance with the
Respondent’s asserted policy of productivity, to work at
North Brunswick prior to the hiring of new people off the
street.
Joseph Gabay, warehouse manager of NAU, testified that
early in his tenure at Edison he had determined that the
space there was insufficient. Soon after becoming aware of
the North Brunswick facility, he spoke to Beida about it and
eventually obtained authorization from Beida to proceed with
construction of the space set aside in North Brunswick.
Gabay states that in September he met with employees, and
discussed with them the move to North Brunswick which he
indicated was a certainty. Although he said that some of the
employees expressed concern with the transportation prob-
lem, he conceded that others at the meeting said they were
interested in the move. There is no evidence that employees
said they absolutely would not move to North Brunswick.
Final approval from top management to this move was de-
layed because they were busy with the details respecting Re-
spondent going public as a corporation. However approval
did come through and the contractor began working on the
North Brunswick space in mid-November and concluded in
late December.
Gabay said that the first employees he hired for North
Brunswick were former employees of his at his prior position
with another company. He hired 12 of these people in De-
cember, claiming they were needed because of the volume
of work he had at the time. I find that Gabay’s testimony
with regard to the hiring of new employees and layoff of the
old employees to be incredible. He talks about hiring new
people at North Brunswick as early as December 27 and into
early January because of the volume of work. On the other
hand he stated that the ticketing for the big Wal-Mart order
was completed by January 3. At another point he said that
in December when he hired a lot of people, he had no idea
that there was going to have to be a layoff. Yet he had no
explanation as to the December 16 notice sent by Respondent
to the Union that there was going to be a layoff at the end
of December. Finally if one were to include the number of
new employees hired and then fired for incompetence or
other reasons, the total reached over 100 by June 1989. Dur-
ing this entire period of time Respondent only recalled 15 of
the laid-off employees from Edison most of whom were not
only experienced but obviously capable enough since they
had not been discharged for lack of ability.
In sum I find no credibility in Respondent’s position in re-
gard to this failure and refusal to transfer the NAU employ-
ees from Edison to North Brunswick. In addition one must
consider the prior history of litigation during which various
violations were found by the Board as well as court injunc-
tions and pending contempt proceedings with regard to this
unit of employees. The December 16 notice of possible lay-
off of NAU employees came just prior to a first meeting
with the Union pursuant to a court order to bargain almost
2 years after certification of the Union. Moreover, despite the
injunctions and contempt proceedings with respect to rein-
statement of the unfair labor practice strikers, as noted above,
it still failed to transfer any of these unfair labor practice
strikers in the NAU portion of the unit to North Brunswick.
In discussions with the Union concerning the transfer of Edi-
son NAU employees, Respondent consistently refused to
apply any doctrine of seniority and insisted that hiring or em-
ployment at North Brunswick would be based mainly on pro-
ductivity and competence. Yet the records and lists of em-
ployees furnished by Respondent and received in evidence
here indicated that many of the new employees hired at
North Brunswick were dismissed shortly thereafter for lack
of competence. It can be concluded that its refusal to employ
NAU Edison employees at North Brunswick was part of a
1183GITANO DISTRIBUTION CENTER
plan on the part of Respondent to keep the new warehouse
free of the Union. I find, therefore, that Respondent’s failure
and refusal to transfer the NAU employees to North Bruns-
wick, resulted from the fact that the NAU warehouse em-
ployees were part of the unit which voted overwhelmingly in
favor of the Union in the 1987 election. By its conduct in
this regard, Respondent violated Section 8(a)(3) and (1) of
the Act. See Joseph Magnin Co., 257 NLRB 656 (1981).
D. The Alleged Refusal to Recognize and Bargain
with the Union as to the North Brunswick
Warehouse Employees
At the Edison warehouse, besides the NAU employees, the
major group were those employed by Orit. The latter were
involved in the receipt and shipping of goods of the P.S.
Gitano Division and other Gitano lines of merchandise. As
noted previously, when Respondent went public as a corpora-
tion, the stock of Orit Corporation was transferred by the
Dabah family to Respondent. Despite the public offering, the
Dabah’s still controlled 85 percent of Respondent’s stock. In
short Orit remained the operating arm of Respondent with
the latter continuing its ownership, management and oper-
ation as it did before going public. It is well established that
there is ‘‘no change of employers,’’ by a mere purchase or
transfer of stock from one corporation to another corporation
particularly, as in the instant case, where there was abso-
lutely no change in the operation of Orit. See EPE v. NLRB,
845 F.2d 483 (4th Cir. 1988). Accordingly Respondent and
Orit can be considered as alter egos.
Respondent admittedly has refused to recognize and bar-
gain with the Union at North Brunswick contending that
there is no valid accretion to the existing unit at Edison. As
to the NAU employees at Edison, it has been found that they
were unlawfully laid off and only a few of them were rein-
stated and transferred to positions at North Brunswick. The
operation of NAU at Edison was concluded on January 5,
1989, and continued at North Brunswick having started sev-
eral weeks prior to that date. As Judge Welles aptly put it
in a Board approved decision in Rice Food Markets, 255
NLRB 884, 887 (1981), the NAU move to North Brunswick
was ‘‘more of a spinoff,’’ rather than an addition to an exist-
ing operation at Edison. Thus as to NAU there clearly was
no accretion, but merely a relocation of a portion of an exist-
ing unit involving, at least, indefinite layoff of employees, al-
ready found violative of the Act.
With respect to the Orit employees at North Brunswick, it
appears that Respondent transferred the work of the P.S.
Gitano line from Edison to North Brunswick, and inasmuch
as Orit was in a period of expansion, hired new employees
to do the P.S. Gitano work at North Brunswick. However the
duties of the employees on the P.S. Gitano line in North
Brunswick is the same as that performed by the remaining
Orit employees at Edison. Indeed some of the supervisors at
Edison were transferred to North Brunswick in order to man-
age the operation there. The work as stated is the same, as
are the job classifications, wages, and benefits received by
Orit employees. The distance between Edison and North
Brunswick is 12 miles. All the work performed at North
Brunswick is entered into the same computer located in Edi-
son. Although the Orit employees are managed by a ware-
house director at North Brunswick, the overall labor relations
policies and management is the same, and are actually per-
formed by Beida, the head of operations for Orit. In these
circumstances I find that the Orit employees at North Bruns-
wick also continue as part of the overall unit at Edison. Rice
Food Markets, supra. On the basis of the same facts found
above, I would also find that the employees at North Bruns-
wick of Orit and NAU would also constitute a valid accre-
tion to the existing unit at Edison. See Universal Security In-
struments, 250 NLRB 661 (1980). According by its refusal
to recognize and bargain with the Union as representative of
the North Brunswick employees, including Orit and NAU,
Respondent violated Section 8(a)(5) and (1) of the Act.
Apart from the accretion issue, Respondent’s layoff of the
NAU employees at Edison and the continuation of the same
operation of NAU at New Brunswick followed by its failure
to recall or reinstate these employees, which conduct has al-
ready been found to be violative of Section 8(a)(3), addition-
ally violated Section 8(a)(5) of the Act when Respondent re-
fused to recognize and bargain with the Union for the NAU
employees at North Brunswick. Interstate Material Corp.,
290 NLRB 362 (1988).
E. The Alleged Violation of Section 8(a)(5) by
Respondent’s Refusal to Bargain with the Union
Regarding the USO Employees
I have already found that Respondent and USO are a sin-
gle employer, and, moreover, that USO and Orit employees
have a sufficient community of interest to warrant inclusion
of the USO employees in the Edison bargaining unit. Re-
spondent has admittedly refused to recognize and bargain
with the Union as to the USO employees, and as I have
found no merit to its contention that USO and Respondent
are completely separate corporations lacking a community of
interest, I find further that it additionally violated Section
8(a)(5).
F. The Alleged Unlawful Refusal to Furnish Information
The complaint alleges and Respondent admits that on Jan-
uary 5, 1989, the Union made a written request of Respond-
ent to furnish information concerning employees at Edison
and North Brunswick. It further alleges that Respondent
failed and refused to furnish information regarding employ-
ees at North Brunswick. The record reveals that almost im-
mediately Respondent did furnish requested information to
the Union, but regarding solely employees at Edison. In addi-
tion Respondent in writing also advised the Union that it
would not furnish the same information as to the North
Brunswick employees, because it did not believe it was obli-
gated to do so. Nevertheless the record does contain docu-
ments submitted sometime thereafter providing various types
of lists of employees both as to NAU and ORIT at North
Brunswick. These lists are basically with reference to the hir-
ing and/or termination of the North Brunswick employees
and, perhaps does not completely fulfill the requests made of
Respondent concerning North Brunswick.
In view of the finding I have made to the effect that the
North Brunswick employees are in the same unit with the
Edison employees, I find that the items of information re-
quested by Respondent for North Brunswick are clearly rel-
evant and necessary for the Union’s ability to carry out its
bargaining duties and responsibilities. See Dahl Fish Co.,
279 NLRB 1084, 1101 (1986). Assuming arguendo that I
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent’s answer contains an affirmative defense to the effect
that allegations regarding USO and also as to Gitano and Orit’s
North Brunswick facility are barred by Sec. 10(b) of the Act. In its
brief Respondent contends that USO’s existence in Edison was
‘‘well known, and the Union never demanded recognition until 18
months later.’’ The record in fact reveals that insofar as the Union
was concerned, it had no knowledge of USO’s existence as a sepa-
rate unit in Edison. To the contrary it appears that Respondent did
everything possible during the time of the election campaign and the
election itself to shield USO employees from the rest of the unit.
In any case I have found that USO and Respondent are single em-
ployers and that its employees at Edison are appropriately in the unit
certified there. As to Gitano and Orit at North Brunswick, it is con-
ceded that the two corporations are alter egos and since the original
charge filed against Respondent was clearly timely, it follows that
allegations with respect to the North Brunswick facility are not
barred by Sec. 10(b).
had found that the North Brunswick employees were not ap-
propriately part of the Edison bargaining unit, the informa-
tion would still be relevant to the Union’s efforts to bargain
about transferring the laid-off employees. Accordingly I find
that by refusing to timely furnish the information requested
by the Union concerning the employees at North Brunswick,
Respondent further violated Section 8(a)(5) of the Act. FMC
Corp., 290 NLRB 483 (1988).
G. The Alleged Refusal to Bargain Concerning
the Effects of the NAU and Gitano Move to
North Brunswick
Failure to bargain about the effects of Respondent’s deci-
sion and actual move of the NAU operation from Edison to
North Brunswick had the most obvious effect on NAU em-
ployees who were laid off from Edison. The Supreme Court
has held that an employer is obliged to bargain ‘‘in a mean-
ingful manner and at a meaningful time’’ concerning the ef-
fects on its employees of a decision to close and relocate.
First National Maintenance Corp. v. NLRB, 452 U.S. 666,
681 (1981). The Board has stated ‘‘an element of ’meaning-
ful’ bargaining is ’timely notice to the Union’ of the deci-
sion. Penntech Papers, 263 NLRB 264, 275 (1982), enfd.
706 F.2d 18 (1st Cir. 1983).
In this case the record reveals that some time in early Au-
gust, Gabay, NAU warehouse manager, held a meeting of the
employees and informed them that the operation would be
closed down in Edison and moved to North Brunswick. Hav-
ing learned of this statement, the Union, on August 11, 1988,
wrote to Respondent requesting it to negotiate ‘‘the impact
and effect this move will have on the employees.’’ Respond-
ent made no reply to this request until December 16, 1988,
when it advised the Union by letter that it intended to close
Edison on or about December 30, 1988. Moreover it stated
Respondent’s intention to lay off all NAU unit employees at
that time and relocate to a larger facility in North Brunswick.
Thereafter arrangements were made by counsel to meet on
December 29. It should be noted that this meeting was ap-
parently arranged so that Respondent could comply with an
order of the Board, enforced by the Court, to bargain with
the Union generally concerning the unit employees in the
Edison warehouse. In any event the issue here is whether Re-
spondent gave the Union some timely notice of its decision
to terminate the NAU operation at Edison and move NAU
to North Brunswick. Gabay and Beida who testified for Re-
spondent on this issue gave various types of testimony. First
Gabay admits that he spoke to the employees in August.
They conceded that Beida told Gabay to solicit bids for con-
struction in September in the space to be allocated to NAU.
At another point Gabay said that the final decision was made
in November when construction orders were already given.
It is clear that construction began early in December, at
which time Beida stated that a decision by upper manage-
ment had been made, claiming that the delay and final deci-
sion was due to top officials being occupied with Respond-
ent’s going public on the stock market. The only actual no-
tice given was December 16. Taking into account the belat-
edness of this offer, the time of the year, usually the holiday
season, clearly the notice was not adequate. Respondent’s
lack of good-faith in this regard is further evidenced by the
actions that took place later. At a meeting as late as January
5, Respondent indicated that the Edison shutdown of NAU
would occur within a few weeks, yet on, the next day Janu-
ary 6, 1989, all but 10 NAU employees were laid off. Ac-
cordingly I find that Respondent failed to bargain in good-
faith concerning the effects of the decision to close the NAU
operation at Edison and relocate it to North Brunswick. Fur-
ther, by reason of its failure to give timely notice of its deci-
sion to the Union, Respondent additionally violated Section
8(a)(5). See Metropolitan Teletronics Corp., 279 NLRB 957
(1986).
As to the move of the P.S. Gitano line from Edison to
North Brunswick, Respondent contends that P.S. Gitano is
neither a separate corporation nor division of Orit. In any
case P.S. Gitano is a line of apparel and its merchandise was
received and shipped by Orit employees in Edison. While it
appears from the record that no Orit Edison employees lost
their positions or were laid off because of the move to North
Brunswick, it is also clear that Respondent did hire new em-
ployees to work the P.S. Gitano line at North Brunswick, and
moreover refused to recognize and bargain with the Union
concerning these employees at North Brunswick. Certainly
the Union was entitled to notice of Respondent’s decision to
move unit work from Edison to new space in North Bruns-
wick so that it could be afforded an opportunity to bargain
or to request bargaining of the effect of this move on its Edi-
son unit employees. There is no question of the timeliness
of a notice by Respondent of its decision, since no notice
was ever given to the Union, as far as this record indicates.
The December 16, 1988 letter to the Union is only concerned
with the NAU operation. Therefore Respondent further vio-
lated Section 8(a)(5) by refusing to bargain as to the effects
of the P.S. Gitano line being moved to North Brunswick.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes, burden-
ing and obstructing commerce and the free flow of com-
merce.
1185GITANO DISTRIBUTION CENTER
CONCLUSIONS OF LAW
1. Respondent, Gitano Group, Inc. and United States Out-
erwear constitute a single employer, and are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Automobile, Aerospace and Agricultural and Im-
plement Workers of America, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, Gitano Group, Inc., having obtained the
stock of Orit Corporation, Inc., for the purpose of going pub-
lic, and having continued, with the same ownership and con-
trol, the operations of Orit, is an alter ego of Orit.
4. Respondent and North American Underwear (NAU) are
single employers.
5. All full-time and regular part-time warehouse employees
by Respondent at its Edison and North Brunswick, New Jer-
sey warehouses, excluding all office clerical employees, pro-
fessional employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
6. By laying off NAU employees at Edison and refusing
to transfer them to the NAU operation at North Brunswick,
because those employees are members of the Union, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
7. By refusing to recognize and bargain with the Union as
the exclusive bargaining representative of all employees in
the above-described bargaining unit, including the North
Brunswick warehouse, Respondent has engaged in and con-
tinues to engage in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
8. By refusing to recognize and bargain with the Union as
the exclusive bargaining representative of USO employees,
Respondent further violated Section 8(a)(5) and (1) of the
Act.
9. By failing to notify the Union in a timely manner of
its decision to relocate the P.S. Gitano line and the NAU op-
eration to North Brunswick, New Jersey, Respondent failed
to bargain in good faith about the effect of that decision on
unit employees and thereby violated Section 8(a)(5) and (1)
of the Act.
10. By refusing to provide relevant, timely, and adequate
information requested by the Union, Respondent further vio-
lated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I have found that Respondent unlawfully laid off and re-
fused to transfer the NAU employees to North Brunswick in
violation of Section 8(a)(3) and (1) of the Act by reason of
their membership in the Union and other protected activities.
Accordingly I recommend that Respondent be ordered to re-
instate them to their former positions, or if no longer avail-
able, to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges; and make
them whole for any loss of earnings or other monetary loss
they may have suffered as a result of the discrimination
against them, less interim earnings, if any. The backpay shall
be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). It ap-
pears from the record that certain of the laid-off employees
have, in the interim, been reinstated and, as to those employ-
ees, they should be made whole for any loss of earnings or
other monetary loss as described above. Although the record
is not clear on this point, the same remedy would apply to
Orit employees who may have been laid off as a result of
the transfer of the P.S. Gitano line from Edison to North
Brunswick.
As I have found that Respondent has failed and refused to
recognize and bargain with the Union for those employees
located in North Brunswick, I shall recommend that Re-
spondent be ordered to recognize the Union as the represent-
ative of the employees in the unit found appropriate herein,
which shall include the warehouse employees at both the
Edison and North Brunswick warehouses, and bargain con-
cerning both locations.
It is further recommended that Respondent be ordered to
recognize and bargain with the Union as the collective-bar-
gaining representative of the USO employees in Edison
whom I have found to be part of the warehouse unit in that
location.
Having found that the Respondent had violated Section
8(a)(5) of the Act by failing and refusing to bargain concern-
ing the effects of the transfer of the NAU operation to North
Brunswick, the usual remedy concerning backpay as a result
of the failure to bargain concerning effects is not necessary
here. I have already provided a full backpay and reinstate-
ment remedy as a result of the Respondent’s violation of
Section 8(a)(3) of the Act by the layoff and refusal to trans-
fer NAU employees to North Brunswick.
In order to ensure that the employees will be accorded the
statutorily prescribed services of their elected bargaining
agent for the period provided by law, I shall recommend that
the initial year of certification begin on the date that Re-
spondent commences to bargain in good faith with the Union
as the bargaining representative in the appropriate unit.
Southern Paper Box Co., 193 NLRB 881, 883 (1971).
[Recommended Order omitted from publication.]