Co-Ed Garment Co.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 848 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co-Ed Garment Company and its Alter Ego Delta
Manufacturing Corporation and Eastern Missouri
District Council, International Ladies Garment
Workers Union, AFL-CIO. Case 14-CA-9279
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On May 19, 1977, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the Employer filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Delta
Manufacturing Corporation is the alter ego of Co-Ed
Garment Company, and that as a single entity the
Respondent violated Section 8(a)(5) and (1) of the
Act by an untimely withdrawal from Associated
Garment Industry (AGI), a multiemployer associa-
tion, and an attempt to repudiate the agreement, and
by a failure to notify and bargain with the Union
over the moving of its operations from Festus,
Missouri, to Greenwood, Mississippi.
The Administrative Law Judge also found that the
Respondent's removal to another location was
discriminatory ipso facto, and therefore in violation
of Section 8(a)(3) as well. The Administrative Law
Judge found that, while there was no evidence
pointing specifically towards any union animus as
such, the nature of the move was "inherently
destructive of employee interests." 2 Furthermore, he
found that the Respondent failed to meet its burden
in proving that its removal to Greenwood was
justified by economic circumstances. 3
We agree that the Respondent's unilateral action
violated Section 8(a)(5), but do not agree that it also
violated Section 8(a)(3). The Respondent had volun-
tarily bargained with the Union for nearly 20 years.
By early 1976, it had suffered substantial financial
losses for at least 2 years, and its liabilities exceeded
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
231 NLRB No. 147
its assets. The Respondent unsuccessfully sought an
understanding with the Union so that it could
continue operations, and also sought higher piece
rates from the Girl Scouts, its principal customer, in
excess of the 3-percent increase offered, but was
turned down. Rather than suggesting a discriminato-
ry motive, the record indicates that the Respondent
sought to continue its operation in Festus and that its
relocation was for legitimate reasons unconnected to
any intention to discourage or chill union activity.
Accordingly, we conclude that Respondent did not
violate Section 8(a)(3) and (1) of the Act by moving
its business from Missouri to Mississippi, but did
violate Section 8(a)(5) and (1) of the Act by its
untimely withdrawal from AGI, its failure to notify
the Union about its intention to relocate, and its
refusal to bargain over the relocation.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall adopt the
recommended remedy of the Administrative Law
Judge to the extent consistent herewith.
Although the Board attempts to reestablish the
status quo ante following an unfair labor practice
insofar as possible, an order to require the Respon-
dent to reopen its operations at Festus, Missouri,
would not be practicable. Walter Pape, Inc., 205
NLRB 719 (1973). We shall, therefore, adopt a
backpay remedy similar to that ordered in Van's
Packing Plant, 211 NLRB 692 (1974), in lieu of the
backpay remedy recommended by the Administra-
tive Law Judge. Since we have found that the
Employer's relocation was not discriminatorily moti-
vated, a remedy ordering backpay from the date of
the termination of the Employer's employees would
be onerous and unjust. Our purpose here is to require
the Employer to bargain with the Union over the
effects of its decision to relocate in Mississippi.
Accordingly, we shall order the Employer to pay
employees backpay at the rate of their normal wages
when last in the Employer's employ from 5 days after
the date of this Decision and Order until the
occurrence of the earliest of the following conditions:
(1) the date the Employer bargains to agreement with
the Union on the effects on its employees of the plant
shutdown at Festus, Missouri, and the relocation at
Greenwood, Mississippi; (2) a bona fide impasse in
bargaining; (3) the failure of the Union to request
2 N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967).
3 Since we disagree with the Administrative Law Judge's finding that the
Respondent did not sufficiently explain away or justify its actions, it is
unnecessary to decide whether the Respondent's move was innately
discriminatory under the rationale of Great Dane, supra
848
CO-ED GARMENT CO.
bargaining within 5 days of this Decision, or
commence negotiations within 5 days of the Employ-
er's notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in
good faith; but in no event shall the sum paid to any
of these employees exceed the amount he would have
earned as wages from April 9, 1976, the date on
which the Employer terminated its facility at Festus,
to the time he secured equivalent employment
elsewhere, or the date on which the Employer shall
have offered to bargain, whichever occurs sooner.
Backpay shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed as provid-
ed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB
(1977).4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Co-Ed Garment Company and its Alter Ego Delta
Manufacturing Corporation, Festus, Missouri, and
Greenwood, Mississippi, its officers, agents, succes-
sors, and assigns, shall jointly and severally:
I. Cease and desist from:
(a) Refusing to bargain collectively over the effects
of Respondent's relocation to Greenwood, Mississip-
pi, upon request, with Eastern Missouri District
Council, International Ladies Garment Workers
Union, AFL-CIO, as the exclusive representative of
all nonsupervisory production, maintenance, packing
and shipping workers, excluding officers, executives,
designers, assistant designers, superintendents, super-
visory personnel, instructors, pattern makers, assis-
tant pattern makers, mechanics, office workers,
billers and clerical employees who do not handle any
garments, parts thereof, or any raw materials at its
Festus, Missouri, plant.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights to self-organization, to form, join, or
assist the above-named labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Pay the terminated employees their normal
wages as set forth in the section of this Decision
entitled "The Remedy."
(b) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect to the effects on its
employees of its relocation to Greenwood, Mississip-
pi, and reduce to writing any agreement reached as a
result of such bargaining. If Respondents resume
their discontinued operation in the Festus, Missouri,
area, bargain collectively, upon request, with the
above-named labor organization as the exclusive
bargaining representative of all employees in the
aforesaid appropriate unit, and, if an agreement is
reached, embody such understanding in a signed
agreement.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Mail an exact copy of the attached notice
marked "Appendix" 5 to Eastern Missouri District
Council, International Ladies Garment Workers
Union, AFL-CIO, and to all employees who were
employed at its former Festus, Missouri, place of
business. Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly
signed by Respondents' representative, shall be
mailed immediately upon receipt thereof, as herein
directed.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
5 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain upon request
over the effects of our relocation with the
representative of our employees in the appropri-
ate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 collective
bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
WE WILL pay said employees backpay as
required by the decision of the National Labor
Relations Board.
WE WILL bargain collectively, on request, with
Eastern Missouri District Council, International
Ladies Garment Workers Union, AFL-CIO, as
the exclusive representative of all our Festus,
Missouri, employees in the appropriate unit
described below, with respect to the effects of our
relocation, and, if an understanding is reached,
embody it in a signed agreement. The appropriate
bargaining unit is:
All nonsupervisory production, mainte-
nance, packing and shipping workers, ex-
cluding officers, executives, designers, assis-
tant designers, superintendents, supervisory
personnel, instructors, pattern makers, assis-
tant pattern makers, mechanics, office work-
ers, billers and clerical workers who do not
handle any garments, parts thereof, or any
raw materials.
Co-ED GARMENT
COMPANY AND ITS ALTER
EGO DELTA
MANUFACTURING
CORPORATION
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
original charge in this case was filed by Eastern Missouri
District Council, International Ladies Garment Workers
Union, AFL-CIO, hereinafter referred to as the Union, on
April 22, 1976, and was served upon Co-Ed Garment
Company, hereinafter referred to as Co-Ed. An amended
charge was filed by the Union on August 6, 1976, and was
served upon Co-Ed and Delta Manufacturing Corporation,
hereinafter referred to as Delta. On August 9, 1976, the
complaint issued, alleging that Co-Ed and Delta are alter
egos and that they violated Section 8(a)(1), (3), and (5) of
the Act by Co-Ed's refusal to execute and abide by an
association contract by which it was bound because it
failed to withdraw from the association at an appropriate
time, by terminating all operations and employees at their
original Festus, Missouri, location, and by transferring
their operations to Greenwood, Mississippi, without notify-
ing or giving the Union an opportunity to bargain over the
decision to relocate their operations or the effects of the
decision. Co-Ed and Delta filed separate answers denying
that they were alter egos and denying the commission of
any unfair labor practices.
A hearing was held before Administrative Law Judge
Wellington A. Gillis in St. Louis, Missouri, on September
15 and 16, 1976. At the conclusion of the hearing, the
parties waived oral argument and were given leave to file
briefs which were received from the General Counsel and
Respondent.' Following the hearing, Administrative Law
Judge Gillis died before he was able to write his decision.
Upon notification of his death, all parties consented to the
issuance of a decision by another Administrative Law
Judge based on the record made before Administrative
Law Judge Gillis pursuant to Section 102.36 of the Board's
Rules and Regulations, Series 8, as amended. On March
31, 1977, the Chief Administrative Law Judge designated
me to prepare and issue a decision on the basis of said
record.
Upon consideration of the entire record in this case, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Co-Ed is a Missouri corporation at Festus, Missouri,
engaged in the manufacture and sale of women's and
children's garments until April 1976. During the calendar
year 1975, Co-Ed manufactured and sold products valued
in excess of $50,000 which are shipped directly to points
outside the State of Missouri.
Delta is a Mississippi corporation at Greenwood,
Mississippi, engaged in the manufacture and sale of
women's and children's garments beginning in April 1976.
During the calendar year 1976, Delta manufactured and
sold products valued in excess of $50,000 which it shipped
directly to points outside Mississippi.
I find that Co-Ed and Delta are both employers engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein. The allegation of the complaint that Co-Ed and
Delta are alter egos is deferred for consideration and
resolution below.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
I. Bargaining history
For many years Co-Ed had a bargaining relationship
with the Union and until the events at issue herein that
relationship was amicable. In 1958, Co-Ed became a
member of the Associated Garment Industry, hereinafter
I Errors in the transcript have been noted and corrected.
850
CO-ED GARMENT CO.
referred to as AGI, an association of manufacturers in the
ladies' garment industry in the greater St. Louis area which
negotiated collective-bargaining agreements with the
Union on behalf of its members. Upon its acceptance as a
member of AGI, Co-Ed became bound by the terms and
conditions of a collective-bargaining agreement then in
effect between AGI and the Union, and, upon expiration
of that agreement, AGI and the Union negotiated a series
of successor agreements, the most recent of which bore an
expiration date of February 15, 1976, by which Co-Ed was
concededly bound.
2. The negotiation of the renewal agreement
between AGI and the Union
On November 17, 1975, the Union gave notice to AGI of
its desire to negotiate a new agreement pursuant to the
terms of the expiring agreement. Thereafter, AGI and the
Union held negotiating meetings on January 29 and 30 and
February 4, 9, 11, and 13, 1976. Agreement was reached on
the latter date for a new contract to be effective from
February 16, 1976, through June 15, 1979.
Joe Moore, chairman of the AGI board of directors,
represented AGI in the negotiations along with AGI's
attorney, but all members of AGI were invited to attend
negotiating meetings as observers. During the 1976 negoti-
ations Co-Ed President Albert Finn attended one meeting,
and Howard Sax, Finn's son-in-law and manager of Co-
Ed, attended several of them.2
After the new agreement became effective on February
16, 1976, Co-Ed made payments to the Union's health and
welfare fund at the rate set forth in the new agreement and
gave its employees the wage increase provided therein. Co-
Ed also continued to pay dues to AGI.
After the negotiations were completed, Moore sent
authorization slips to the manufacturers covered by the
agreement and asked them to sign them so as to be listed in
an appendix to the agreement. Co-Ed and one other
manufacturer did not return signed authorizations, and
Moore delayed sending the list for the appendix to the
Union for quite some time. Finally, when the Union
pressed for the list, Moore gave the two firms deadlines but
still received nothing back from Co-Ed. Sometime in April
when Moore told Clay that Co-Ed would not be listed,
Clay asked why, noting that Co-Ed representatives had
attended the negotiating meetings. Moore replied that Co-
Ed had said it was not going to be bound by the contract
now.
3. Respondent's operating problems
In the fiscal year ending March 31, 1975, Co-Ed lost
approximately $70,000. Early in the next fiscal year Finn
unsuccessfully sought aid from Co-Ed stockholders 3 to
2 Finn testified that he did not believe he attended any sessions, but
Moore, Union Manager Pearlstein, and Union Assistant Regional Director
Clay all testified that they saw him at one meeting. Sax testified that he
attended two or three meetings. Pearlstein and Clay testified that they
believed Sax was at all the meetings, Moore testified that Sax attended
several, and Shop Chairperson Turley testified that she saw Sax at all but
one of the meetings. I have credited Moore who had no apparent reason to
distort the facts.
:' Earl Fishgall. Garrison Fishgall, and Richard Boguslaw. Earl Fishgall
obtain collateral so that Co-Ed could borrow additional
money. Finn also unsuccessfully sought bank loans but was
refused because of Co-Ed's losses. Finally, Finn and his
wife pledged their own home and personal stock as
collateral and obtained a $150,000 line of credit for Co-Ed.
Co-Ed's major customer was the Girl Scouts of America
for whom it made uniforms. In October 1975, Finn sought
a price increase from the Scouts to obtain financial relief.
The Scouts told Finn that the most they could give him was
a 3-percent increase. At that time there were indications
that garment industry negotiations in New York would
result in a substantial increase. As the New York
settlement usually set a pattern for St. Louis negotiations,
Finn told the Scouts that he could not manage with a 3-
percent increase, but gained no further concession. In early
January, Finn again told the Scouts that he could not
manage with a 3-percent increase, but was still unable to
obtain any further increase. In January 1976, Finn began
to seek another garment company to take over the plant
which Co-Ed leased in Festus, Missouri.
4. Communications between Co-Ed officials and
the Union in early 1976
In early January 1976, Howard Sax, son-in-law of Finn
and a manager of Co-Ed, told Junette Turley, shop
chairperson for the Union, that Co-Ed was in a very
difficult position and had substantial losses. Sax told her
that they had a new contract coming up and that Co-Ed
would like to cut the piece rates on the Scout uniforms,
which he believed were excessive, but not on sportswear
made for other customers. Turley told Sax that she could
do nothing about it and that he would have to take the
matter to Union Manager Jerry Pearlstein. Sax asked if he
could meet with the shop executive committee. Sax told
Turley what Co-Ed was being paid by the Scouts and said
that he did not feel he could meet the new contract when it
went into effect. Sax said that, if Co-Ed did not get some
kind of accommodation from the Union, it would be
forced to close.4
On the next day, Sax met with the shop committee and
told it of Co-Ed's financial problems. Sax said that, if the
rumors about the New York settlement were correct, Co-
Ed could not stand such an increase and stay in business.
Sax asked the committee for either a moratorium on the
wage increase expected in the new contract or an
adjustment in piece rates paid by Co-Ed on Scout garments
so that employee earnings would remain at current levels.
The committee responded that its members were not
interested in a rollback of piece rates. They indicated
possible interest in a freeze on a wage increase, but told Sax
was not identified as a stockholder but apparently represented his wife who
was a stockholder.
4 These findings are based on a composite of the testimony of Sax and
Turley. Although Turley did not testify that Sax said that Co-Ed would be
forced to close, she did not deny Sax's testimony to that effect and, under
her version, the possibility of shutdown was implicit. I find it likely that Sax
voiced that possibility as an argument to gain favorable attention to Co-Ed's
request for piece rate relief. I have credited Sax in this regard.
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they would have to speak to Union Manager
Pearlstein before they could comment on the request.5
On the next day Sax told Turley that Finn would like to
meet with the committee to explain Co-Ed's position.
Turley told him that she would have to speak with
Pearlstein, and later told him that Pearlstein had said that
the committee could not meet with Finn.
Thereafter, in early January, Finn met with Pearlstein
and asked for a moratorium to relieve Co-Ed from the
obligation to pay any increases required by a new contract.
Finn said that he could not continue to operate the
business under the terms of a new contract and that some
relief had to be given. Pearlstein expressed doubt of Finn's
sincerity, and Finn offered to let Pearlstein inspect his
books to confirm Co-Ed's losses. Pearlstein told Finn that
he had an association and should take the matter up with
AGI. According to Finn, he also told Pearlstein that he
could not be a party to a new contract, but Pearlstein
denied that he received any notice of Co-Ed's withdrawal
from AGI. 6
According to Finn, a few days after he met with
Pearlstein, he telephoned Moore, told him about his
meeting with Pearlstein, advised Moore that he could not
be part of the new contract, and said that he was "under
the circumstances of closing the operation." Finn testified
that Moore told him that it was his decision to make and
that AGI would not include him in the list of manufactur-
ers bound by the contract. Moore denied that he received
any notice of withdrawal from AGI before or during the
1976 negotiations. Moore also denied that he had any
conversation with Finn in early January concerning Finn's
conversation with Pearlstein. Finn concededly gave no
written notice of withdrawal to the Union or AGI.
Apart from the conversation described above between
Finn and Pearlstein, in January, Finn also spoke to
Pearlstein about finding another manufacturer to take over
Co-Ed's lease in Festus, and Pearlstein suggested some
manufacturers for Finn to contact.
In late January or early February Turley stopped Sax in
the factory on one occasion and asked him to please tell
her when the Company was closing. On either that
occasion or another, after the AGI contract negotiations
were completed, Turley asked Sax what was going on and
whether Co-Ed had any work. Sax told her that Co-Ed had
a lot of work if they could get a price increase from the
Scouts and that they would know after March 31 whether
Co-Ed could continue to operate.
5. The termination of Co-Ed operations, the
startup of Delta, and the relationship of the two
corporations
All manufacturing operations at Co-Ed ended on April 9,
1976. According to Shop Chairperson Turley, she had no
advance notice of the closing until that afternoon when the
I These findings are based on the testimony of Sax. Turley's version was
not in conflict and she conceded that Sax might have said that Co-Ed could
not stay in business without some kind of relief.
6 In my findings as to this conversation except as to the alleged notice of
withdrawal from AGI, discussed below, I have relied on Finn's version
where in conflict with Pearlstein. Although Pearlstein denied expressing
disbelief of Finn's claim of hardship, he conceded that Finn offered to show
Pearlstein his books, and I find Finn's version that Pearlstein first
employees were told not to start a bundle they could not
finish and that they would be laid off. At approximately the
same time, manufacturing operations began at a plant
leased by Delta in Greenwood, Mississippi.
Co-Ed was a family-held corporation. As of April 9,
there were 6,000 shares of common stock outstanding in
Co-Ed. June Finn, her husband, their daughters, and a son-
in-law held 3,001 as follows: June Finn - 2,263, Albert
Finn (husband of June) - I, Patricia Sax (daughter of
June) - 368, Howard Sax (husband of Patricia) - 1, and
Deborah Saphin (daughter of June) - 368. The remaining
2,999 shares of Co-Ed stock were held as follows: Esther
Doischman (mother of June Finn and Sylvia Fishgall) -
10, Sylvia Fishgall - 2,251, Richard Boguslaw (son of
Sylvia) - 369, and Garrison Fishgall (son of Sylvia) -
369. The directors of Co-Ed were Albert Finn, June Finn,
Sylvia Fishgall, and Earl Fishgall (husband of Sylvia). The
officers of Co-Ed were Albert Finn, president; June Finn,
vice president; and Howard Sax, treasurer. Howard Sax
was a manager of Co-Ed, and he and Albert Finn made the
decisions for Co-Ed, dealt with the Union, and handled the
administration of the collective-bargaining agreements
between the Union and AGI. Buford Govero was mechan-
ic and assistant manager for Co-Ed, and James Pinkney
was Co-Ed's only cutter. The Fishgall family never took an
active role in running Co-Ed.
Until it ceased operations, Co-Ed's principal customer
was the Girl Scouts of America but it also had other
customers for whom it manufactured sportswear.
As of April 9 Co-Ed had approximately 60 employees,
and the maximum number it employed at the Festus plant
in 1976 was 90.
Delta was formed in 1976. 7 June Finn was its sole
stockholder. Its directors were Albert Finn, June Finn, and
Howard Sax. Its officers from March 31 through June 1,
1976, were Albert Finn, president; June Finn, vice
president; and Howard Sax, secretary-treasurer. After June
I, Howard Sax became executive vice president and
Patricia Sax became secretary-treasurer. Howard Sax was
the general manager of Delta. Buford Govero was head
mechanic and a manager for Delta. James Pinkney was the
sole cutter of Delta. Delta hired its remaining employees
locally, and at the time of the hearing had slightly more
than 100 employees.
Delta's sole customer from the time it began operations
until the time of the hearing was the Girl Scouts of
America. The Scout uniforms and trim made by Delta were
identical to the uniforms and trim made for the Scouts
previously by Co-Ed.
At the time of the hearing, there were approximately 130
machines on the factory floor at Delta. Delta purchased 43
of them at a cost of $27,000 from a Jackson, Mississippi,
supplier not previously used by Co-Ed. Delta bought the
remainder of the machines from Co-Ed for which it paid
challenged his sincerity more plausible. Also I find it likely that Finn
expressed inability to continue operations without relief to add urgency to
his plea as Sax had done previously in speaking with Turley and the shop
committee. The conflict in testimony as to withdrawal from AGI is
discussed in the concluding findings below.
I Although the date of Delta's incorporation is not in the record, it
appears from the stipulation as to officers and the entries for capital
payments that Delta came into existence around March 31.
852
CO-ED GARMENT CO.
$28,755. To establish a price for Co-Ed's machines, Finn
submitted a list of Co-Ed's equipment to another sewing
machine supply company and obtained two offers. One
was for $22,000 for all Co-Ed's equipment as a bulk sale.
An offer with a higher total figure was based upon
individual pricing and sale of each machine. Delta paid the
higher figure to Co-Ed.8 Delta bought Co-Ed's office and
cafeteria equipment and its company car. Delta also
bought Co-Ed's work in progress, finished goods, and trim,
and Co-Ed billed Delta in the amount of $52,765 for that
work. Finn testified that the work in progress was valued at
one half of its billing price in accord with a 30-year practice
in the industry. Finished goods and trim were valued at
their billing price.
The decisions to close Co-Ed, to open Delta, to sell Co-
Ed's machinery, work in progress, and company car, and to
buy these things for Delta were all made by Finn on behalf
of both corporations.
Delta's capital account shows payments for common
stock totaling $54,000. The source of all but $4,500 was
described on the record. Two payments totaling $7,500
were made from bank accounts of Albert and June Finn
containing money which Albert received from a pension
and which both received from dividends and other sources.
The biggest single payment, $27,000, came about after Co-
Ed's repayment to the Finns for loans they had made to
Co-Ed in that amount.9 A final payment of $15,000
credited to the capital account on June 30 appears
attributable to a check for $15,000 which Finn drew on the
account of Co-Ed payable to Delta. Finn could not explain
the basis for that payment.
When Co-Ed closed it had an outstanding loan from the
Commerce Bank of St. Louis for about $150,000. Part of
the loan was paid off from Co-Ed's receipts on its accounts
receivable from the Scouts. The remainder, $84,000, was
paid from the proceeds of the sale of Finn's home in St.
Louis.
Starting in May, Delta made periodic payments to Co-
Ed for the equipment and materials it purchased from Co-
Ed. At the time of the hearing it still owed approximately
$20,000 on a total obligation of $74,000, and at the time
Co-Ed's $15,000 check was paid to Delta on June 8, Delta
was indebted to Co-Ed.
At the time of the hearing Sax anticipated that work on
Scout uniforms would continue only for about 2 more
weeks because Scouts had notified Delta that they could
not continue to do business with Delta because of a
threatened boycott. Sax testified that starting about
October 1, 1976, Delta would no longer manufacture Scout
uniforms.
6. The reasons for closing Co-Ed and starting
Delta
Finn testified that he decided to close Co-Ed's operation
in mid-January because he could not afford to pay the
I Delta bought all of Co-Ed's machines. approximately 150, but
apparently did not utilize all of them.
' It appears from canceled checks that Co-Ed first received a payment
from Delta in that amount and that Co-Ed then repaid Mrs. Finn who
deposited Co-Ed's check in Delta's account. Although the canceled checks
rates under the AGI contract and because of the financial
condition of the Company.
For the fiscal year ending March 31, 1975, Co-Ed had an
operating loss of approximately $70,000. On that date it
had liabilities of $33,000 against current assets of only
$11,000. Its total net worth was approximately $15,000.
During the fiscal year ending March 31, 1976, Co-Ed lost
an additional $67,000. On that date its net worth showed a
deficit of approximately $51,000, without regard to its
future obligation under its lease. Co-Ed's accountant
testified that Co-Ed was insolvent and that the "main thing
that really drove the last nail into the coffin" for Co-Ed
was its "continuing squeeze on its labor costs." He testified
that because the piece goods on which Co-Ed worked were
owned by Scouts the basic thing which Co-Ed sold to
Scouts was labor.
Finn testified that, when he decided to close Co-Ed, he
also decided that he wanted to start another operation for
his immediate family at a place where he could find
adequate financing, adequate living quarters, a building to
operate in, and adequate help. He testified that he did not
include the Fishgall family in his plans because they would
not give collateral for Co-Ed and there was no reason to
think that they would be interested in giving collateral for a
new operation.
Finn testified that he chose to locate in Greenwood
because its bank agreed to discount Scout purchase orders
to enable him to obtain working capital. Finn testified that
the arrangement was extraordinary and was the only way
he could get proper financing.
7. The evidence as to the notice given by Finn
of the intention to start operations at Greenwood
According to Finn, in late March or early April he told
Shop Chairperson Turley that he was going to open a plant
and offered a job to her or anyone else who wanted to
come down. Finn also testified, however, that he did not
advise the Union specifically that he was moving to
Greenwood, that he did not say that he was moving, and
that he said that he was starting a new company. Finn
denied that he would not discuss the move with the Union
or the effects of the move on the people at Festus. Turley
denied having any conversation with Finn about a job in
Greenwood.
Howard Sax testified that one morning in February he
discovered that the drawers of Finn's desk had been
opened and contents which had been put away the night
before were on top of the desk. Sax testified that
correspondence which Finn had with different possible
locations for the new operation, including Greenwood, was
left on the desk. Sax testified that the same morning the
shop secretary for the Union stopped him in the plant,
asked him how he was going to like Greenwood, and made
a further derogatory comment about how many people it
would take to replace her there.10
contradict Albert Finn's testimony as to the source of Co-Ed's funds and the
sequence of payment. there is no evidence to contradict Finn's testimony
that Co-Ed owed the Finns the money.
to Sax's testimony in this regard was not contradicted.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Manager Pearlstein testified that he first learned
of the closing of the plant and the move to Greenwood on
April 14 when he went to the plant to attend a regular
meeting of the shop executive committee. He saw a trailer
backed up to the plant, entered the plant, and discovered
that it was virtually empty. When the truck left, he
attempted to follow it but the driver noticed him and the
driver returned to the plant. Pearlstein then arranged to
have the truck followed by someone else who followed it to
Greenwood.
Turley testified that the employees did not hear rumors
about the plant closing, but they could see material and
machines being moved out of the plant a couple of weeks
before they were told they would be laid off on April 9.
B. Concluding Findings
1. Co-Ed's obligation with respect to the AGI
contract
The first question to be decided is whether Co-Ed
became bound by the terms and conditions of the
agreement between the Union and AGI which became
effective on February 16, 1976. Co-Ed contends that it did
not because it gave timely notice of withdrawal from
negotiations or in the alternative because its withdrawal
was justified by unusual circumstances.
In Retail Associates, Inc., 120 NLRB 388, 395 (1958), the
Board set forth rules, which it continues to follow,
governing withdrawal from multiemployer bargaining. It
held:
We would accordingly refuse to permit the withdrawal
of an employer or a union from a duly established
multiemployer bargaining unit, except upon adequate
written notice given prior to the date set by the contract
for modification, or to the agreed-upon date to begin
the multiemployer negotiations. Where actual bargain-
ing negotiations based on the existing multiemployer
unit have begun, we would not permit, except on
mutual consent, an abandonment of the unit upon
which each side has committed itself to the other,
absent unusual circumstances.
Here, the evidence is disputed as to whether Co-Ed
communicated any intention to withdraw from muitiem-
ployer bargaining before negotiations commenced. Al-
though it seems clear that Finn and Sax told union
representatives that Co-Ed might have to go out of business
if it did not get relief from its financial problems, I am not
persuaded that Finn told Pearlstein or Moore in January
that he could not be a party to a new contract. I have
indicated above that Finn's version of his January
conversation with Pearlstein is more plausible than Pearl-
stein's in other respects, but the evidence overall persuades
me that Finn sought only to convey that without relief he
might be forced to go out of business and otherwise sought
to avoid any confrontation with the Union while he
pursued his investigation of the business alternatives
available to him. Moore, who denied participating in the
i Hi-WaY Billboards, Inc., 206 NLRB 22, 23 (1973), enforcement denied
500 F.2d 181 (C.A. 5. 1974).
conversation which Finn described, had no reason to
misrepresent his dealings with Finn, and the conduct of
Finn and Sax otherwise from January through early April
was not consistent with any expressed intent to withdraw
from multiemployer bargaining. Thus, Co-Ed was repre-
sented at most of the bargaining sessions by Finn or Sax.
When the new AGI agreement was reached, Co-Ed
promptly put into effect the changes that were negotiated,
and Co-Ed continued to pay dues to AGI. After the
agreement was reached, Moore sent Co-Ed an authoriza-
tion form consistent with his denial that Finn had told him
he wanted to withdraw, and Co-Ed avoided the issue by
failing to reply in any way. According to Finn, he put the
contract terms into effect to avoid any stoppages while
finishing up Co-Ed's remaining orders, and he continued to
pay dues to AGI to continue his personal health insurance
as part of the AGI group. As for the former, the threat of a
work stoppage which Finn sought to avoid also would have
followed from notice by Co-Ed of an intent not to be
bound by the new agreement. As for the latter, Finn
conceded that he was able to obtain individual coverage
when he resigned from AGI in April at the time of the
shutdown of Co-Ed, and no reason appears why he could
not have done so earlier. I conclude that it was Finn's
purpose to conceal as long as possible his intent not to
become bound by the new agreement while finishing up the
work of Co-Ed and completing arrangements for Delta's
operations to start in Greenwood. I find that Co-Ed did not
attempt to withdraw from the multiemployer unit until
substantially after February 16 when following Co-Ed's
failure to return an authorization to Moore he ascertained
that Co-Ed did not intend to be bound by the agreement.
The question remains whether there were "unusual
circumstances" to justify Respondent's later attempt to
avoid any obligation under the AGI contract. The term
"unusual circumstances" as used in Retail Associates has
been interpreted by the Board in U.S. Lingerie Corporation
and U.S. Lingerie Corporation, Debtor in Possession, 170
NLRB 750 (1968), and later cases to include "those cases in
which the withdrawing employer has been faced with dire
economic circumstances, i.e., circumstances in which the
very existence of an employer as a viable business entity
has ceased or is about to cease."" Here, assuming the
economic circumstances Co-Ed was faced with and which
existed before the start of bargaining were dire and
doomed its continued existence, Co-Ed did not attempt to
withdraw from multiemployer bargaining until after the
new agreement had been reached and became effective.
"Unusual circumstances" may justify withdrawal from
bargaining for a multiemployer agreement but not from an
agreement already reached. For, once an agreement is
reached, the employer who refuses to sign or abide by the
multiemployer contract is in no different position from any
individual employer who has bargained to a contract and
later seeks to renounce its terms.i2 Accordingly, I find that
Co-Ed did not seek to withdraw from multiemployer
bargaining until after negotiations were completed at a
time when it had already become bound by the AGI
agreement. I find further that its attempt to repudiate the
12 But see Atlas Electrical Service Co., 176 NLRB 827, 830(1969).
854
agreement at an indeterminate later date violated Section
8(a)(5) and (1) of the Act.
2. The relationship between Delta and Co-Ed
Resolution of the remaining allegations of unfair labor
practices depends upon whether Delta is an alter ego of
Co-Ed. The answer to that question depends in turn upon
whether "the two enterprises have 'substantially identical'
management business purpose, operation, equipment,
customers and supervision, as well as ownership," 13 so that
the "new" employer may be said to constitute "merely a
disguised continuance of the old employer."' 14 I am
persuaded from the evidence that Delta is Co-Ed's alter
ego.
a. Although Co-Ed and Delta point to the differences
in the ownership of their stock as evidence that they are
separate, I find that the ownership of both is in fact
substantially the same. It is true that the immediate Finn
family owned only one share more than half the stock in
Co-Ed, while Mrs. Finn owns all the stock in Delta. But the
numbers of shares tell only part of the story. By April, Co-
Ed was insolvent. It had stayed afloat only as a result of
loans made to it by Mr. and Mrs. Finn. Thus, by April the
beneficial ownership of Co-Ed was entirely in Mr. and
Mrs. Finn, and the interest of the remaining stockholders
was reduced to a paper ownership interest. That Mrs. Finn
alone held all the Delta stock also reflects no real change in
ownership. It was the loans of Mr. and Mrs. Finn which
kept Co-Ed afloat, and it was repayment of those loans
coupled with some additional infusion of capital by Mr.
Finn which capitalized Delta.'s I find in these circumstanc-
es that the ownership of Delta is substantially the same as
that of Co-Ed prior to its closing.
b. I further find that the managements of Co-Ed and
Delta are substantially identical. Initially the officers of the
two corporations were identical, and two of the four
directors, the Finns, remained the same. Direction and
management of the day-to-day affairs of Co-Ed, including
labor relations, had been in the hands of Albert Finn and
Howard Sax, and these two served in the same capacity in
Delta. Most graphic illustration of the identity of manage-
ment of the two corporations comes from the evidence as
to the transactions between them as Co-Ed terminated its
operations and Delta started up. Albert Finn made all the
decisions for both corporations as to what Delta would buy
and how much it would pay and as to what Co-Ed would
sell and for what price. Although Respondents contend
these were arms-length transactions, it is impossible to
conceive of any meaningful definition of that term which
would describe the transactions between Albert Finn, on
behalf of Delta, and Albert Finn, on behalf of Co-Ed.
t:' Craaford Door Sales Company. Inc.. 226 NLRB 1144 (1976).
i Southpori Petroleum Compan), v. N. L.R.B., 315 U.S. I00, 106 (1942).
u The General Counsel contends that Co-Ed capitalized Greenwood by
transfer of funds to Greenwood, pointing to the entries in the Greenwood
capital account for $27,000 and $15,100, which appear closely related to
pay ments by Co-Ed to Mrs. Finn and Delta. As set forth above, there is no
reason to reject Finn's explanation that the $27,000 payment by Co-Ed to
Mrs. Finn was repayment of a loan. The $15,000 payment from Co-Ed to
Delta was never explained, and at best can only represent a further payment
bh C(o-Ed for the benefit of the Finns on account of their loans to Co-Ed.
"i Finn testified that initially Delta intended to purchase no equipment
CO-ED GARMENT CO.
There were in fact no transactions between separate
managements but a series of decisions made by one
individual acting simultaneously for both corporations.
c. The evidence also shows substantial identity in the
business purposes, operation, equipment, customers, and
supervision of the two organizations. Both corporations
operated as contractors in the garment industry, taking
materials furnished by customers, cutting, sewing, and
performing certain finishing operations. Although Delta
purchased some equipment from outside suppliers, the
bulk of its equipment was purchased from Co-Ed, 16 and
the kinds of equipment it utilized were identical to what
Co-Ed had used. Although Co-Ed also had other custom-
ers, the Scouts were its major customer and it was Co-Ed's
inability to work out a better price from the Scouts which
led to its decision to close. While the Scouts were Delta's
only customer and entered separate contracts with Delta, it
presumably was no more able than Co-Ed to obtain a
higher price for its work, and apparently with the
acquiescence of the Scouts took over and completed Co-
Ed's work in progress. While the vast majority of Delta's
employees were new hires, four key persons remained the
same as at Co-Ed. Finn and Sax, who made the significant
management decisions for both corporations, Govero,
mechanic and assistant manager for Co-Ed who became
head mechanic and a manager for Delta,'7 and Pinkney
who was the sole cutter for both.
I find in all the circumstances that Delta is the alter ego
of Co-Ed.
3. The obligation of Co-Ed and Delta to bargain
over relocation of the plant
Co-Ed and Delta contend that any bargaining obligation
they might have had was met because the Union was aware
that the operation was going to move and made no effort to
seek bargaining over the move.
The evidence is in some dispute, but it is clear that Co-
Ed never gave any notice to the Union or its employees
that the operations were to be moved to Greenwood in
mid-April. Indeed, consistent with the position taken in
this case that Co-Ed was closing and that the Finns were
starting an entirely new enterprise in Mississippi, Sax and
Finn in January told Turley, Pearlstein, and the shop
committee that if Co-Ed could not resolve its financial
problems it would be forced to close and go out of
business. There is no evidence, however, that Sax or Finn
ever gave any notice that Co-Ed was in fact closing until
the day it stopped operating or that it gave any notice that
its operations were being moved to Greenwood. Even
according to Finn's disputed testimony that he told Turley
he was starting a new company, he did not state that Co-Ed
from Co-Ed but did so after problems arose concerning Co-Ed's lease which
placed the secunty of Co-Ed's equipment in doubt. Whatever the motive for
Delta's purchase, it remains clear that Delta's equipment is substantially
identical to that of Co-Ed. Indeed, if Finn is believed, Delta changed its
plans because of Co-Ed's problem, further showing that the management of
the two corporations was identical. Also supporting that conclusion is
Finn's testimony as to how the price Delta paid Co-Ed for the machines was
arrived at, with Delta paying a price based on individual pricing of the
machines despite the fact that it made a bulk purchase.
i' The record does not show how many other managerial or supervisory
employees either corporation had.
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was moving and did not tell Turley where or when he was
opening a new plant. The only other evidence relating to
notice of the move is Sax's testimony that an unidentified
person or persons went through Finn's desk leaving
correspondence concerning different possible new plant
sites, including Greenwood, on the desk, after which the
shop secretary for the Union made a remark to him about
going to Greenwood. While notice by the employer to his
employees' representative of his plans may not be neces-
sary if the Union gains knowledge of the employer's plans
and fails to seek bargaining, here the evidence as to
knowledge gained by the shop secretary and Finn's
disputed conversation with Turley establishes knowledge
of nothing more than the position taken by Respondent
throughout, i.e., that Co-Ed was closing and that Finn was
starting a new company somewhere else. There is no
evidence that the Union gained knowledge through the
shop secretary or anyone else that Co-Ed was moving its
plant to Greenwood to continue operation in the guise of
an alter ego, and the evidence points strongly to the
opposite conclusion that not only did the Union fail to gain
that knowledge but also that Co-Ed sought to create a
different impression and to conceal the fact of the move
and the new location from the Union.
While the Union in this case showed little interest in
pursuing Co-Ed's predictions that it would be forced to go
out of business and did not ever request bargaining over
the effects of a shutdown, it does not follow that it would
not have sought to bargain over removal of the plant had it
known of Co-Ed's intentions to continue operations
elsewhere in the guise of an alter ego. Accordingly, I find
that Co-Ed and its alter ego Delta independently violated
Section 8(a)(5) of the Act by relocating their operations
without giving the Union notice of the move and an
opportunity to bargain with respect to the move or its
effects on bargaining unit employees. This conclusion
follows whether or not Co-Ed effectively withdrew from
the AGI unit for, even if its withdrawal were effective, the
Union continued to represent Co-Ed's employees,' and
Co-Ed was obligated to bargain with it over the move.
4. The alleged discrimination against Co-Ed's
employees
The remaining question is whether, by moving their
operations from Missouri to Mississippi and terminating all
Co-Ed employees at Festus, Co-Ed and Delta also violated
Section 8(a)(3) and (1) of the Act. The General Counsel
does not contend that Co-Ed had a specific antiunion
motive, and there is no evidence of hostility to the Union as
such. The General Counsel contends, however, that proof
of such hostility is unnecessary here because Co-Ed
relocated its plant to escape the Union and its contract and
its conduct was "inherently destructive of employee
interests" within the meaning of N.LR.B. v. Great Dane
Trailers, Inc., 388 U.S. 26, 33 (1967).
The evidence supports the contention that Co-Ed
relocated its plant to escape the Union and more
specifically its contract. When Co-Ed was unsuccessful in
"' Tahoe Nugget, Inc., d/b/a Jim Kelley's Tahoe Nugget, 227 NLRB 357
(1976).
l N.L.R.B. v. Great Dane Trailers, Inc., supra.
its efforts to obtain rate relief from the Union, Finn and
Sax told union officials that it could not continue to
operate with the wage increases it anticipated under a new
agreement. However, rather than withdraw from AGI and
face separate negotiations, a possible strike, and attendant
disruption of its operations in Festus before it was ready to
make its move, Co-Ed bided its time, remained in the
association, and promptly put into effect the new terms
negotiated by AGI despite its not unfounded claim of
inability to pay. When it completed arrangements for
moving to Greenwood, it terminated all its Festus person-
nel except its cutter and managerial personnel, and it made
the move without notice to or bargaining with the Union. It
began operations in Greenwood with new employees, no
contract, and no union. I find that the reasons given by
Finn in his testimony for closing the Festus plant, as well as
the testimony of Co-Ed's accountant, leave no doubt that
avoidance of contract rates was the reason for the move.
I find further that termination of all employees and a
move for that reason falls in the category of conduct
"inherently destructive" of employee rights, for no conduct
can be any more discouraging of union membership and
activity than loss of employment caused by successful
union representation. In these circumstances, the burden
shifts to the employer to justify his conduct and, notwith-
standing the employer's explanation, the Board may
nonetheless draw an inference of improper motive from the
conduct itself and strike a balance between the proffered
justification and the infringement of employee rights.'9
Co-Ed's asserted justification for its conduct was the
serious financial problem which faced it in January when
in the face of continuing losses it failed to get desired
increases from its principal customer and failed to get
requested relief from the Union on its piece or contract
rates. Nonetheless, by January when negotiations were
about to commence on a new AGI agreement Co-Ed had
options other than the course it chose to follow. It could
have gone out of business, it could have withdrawn from
AGI and faced the Union in separate negotiations, and, in
or out of AGI, it could have given the Union notice of its
intent to relocate and operate in a lower cost area. The first
alternative, although destructive of employee interests,
would not have violated the Act.20 The others, which
would have undoubtedly led to confrontation with the
Union, might have well have led to the same ultimate
result, but only after an attempt through negotiations to
reconcile Co-Ed's needs with its employees' interests. I find
that as Co-Ed purported to go out of business and sought
to evade its obligations through the guise of an alter ego, its
problems however pressing cannot justify the infringement
of employee rights which flowed from the conduct of Co-
Ed and Delta. Accordingly, I find that Co-Ed and its alter
ego Delta also violated Section 8(a)(3) and (1) of the Act by
terminating Co-Ed's Missouri employees and moving its
20 Textile Workers Union of America v. Darlington Manufacturing
Company, et al., 380 U.S. 263 (1965).
856
CO-ED GARMENT CO.
plant to Mississippi where it continued to operate as
Delta. 2'
IV. THE REMEDY
Having found that Delta is the alter ego of Co-Ed and
that they have engaged in violations of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that they be ordered
jointly and severally to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
The Board has customarily not required an employer
who has unlawfully removed his plant to restore its
operations at the original location, to reinstate its employ-
ees, and to bargain, but it has sought to fashion remedial
alternatives should the employer elect to continue operat-
ing at the new location.2 2 Accordingly, I shall recommend
that Co-Ed and Delta be ordered to offer all employees
discriminated against as a result of the relocation of the
Co-Ed plant reinstatement to their former jobs or, if those
jobs are no longer available, to substantially equivalent
jobs at a plant in the Festus, Missouri, area, if Co-Ed or
Delta resumes operations there, or at Delta's Greenwood
plant, without prejudice to the employees' seniority and
other rights and privileges, dismissing newly hired employ-
ees if necessary to make room for them. If there are not
sufficient jobs for all former Co-Ed employees, Co-Ed and
Delta shall be required to place the names of all of the
remaining employees on a preferential hiring list and to
offer employment to them as and when positions for which
they are qualified become available and before other
persons are hired for such work. Co-Ed and Delta shall
also offer to pay employees travel and moving expenses
entailed in moving themselves and their families and
household effects to Greenwood in the event that they do
not reopen their plant in the Festus area.
In addition, Co-Ed and Delta shall make whole those
employees who were terminated by Delta as a result of the
decision to relocate the plant for any loss of earnings they
may have suffered by reason of the discrimination against
them by payment to each of them a sum of money equal to
the amount he would have normally earned from the date
he was terminated as a result of the decision to relocate the
Festus plant to the date of a valid offer of reinstatement at
any plant that Co-Ed and/or Delta may open in the Festus
area, or if no such plant is opened to the date that he
secures substantially equivalent employment, less his net
earnings during such period to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
I shall further recommend that Co-Ed and Delta be
required to bargain with the Union as the representative of
their employees at any plant in the Festus, Missouri, area if
they resume operations in that area. In the alternative, if
they do not resume such operations they shall be required
to bargain with International Ladies Garment Workers
Union, AFL-CIO, as a representative of the employees at
their Greenwood, Mississippi, plant upon proof that a
21 Helrose Binder', Inc. and Graphic Arts Finishing, Inc., 204 NLRB 499
(1973).
majority of the employees in the appropriate unit at
Greenwood have designated said union as their exclusive
representative.
In order to dissipate the effects of the unfair labor
practices upon the employees at the Greenwood, Mississip-
pi, location in the event that Co-Ed and Delta determine to
continue operations at that location I shall recommend
that they be ordered to furnish International Ladies
Garment Workers Union, AFL-CIO, upon request made
within 1 year the names and addresses of all employees at
the Greenwood plant and to keep that list current for a 1-
year period. I shall further recommend that they be
required upon request of said Union within 1 month of this
Decision to grant it and its representatives reasonable
access to their bulletin boards and to all places where
notices are customarily posted for a period of I year and to
permit employees to have access to its organizers on plant
parking lots and plant approaches during nonworking
hours.23
CONCLUSIONS OF LAW
I. Respondents Co-Ed Garment Company and Delta
Manufacturing Corporation are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Eastern Missouri District Council, International
Ladies Garment Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All nonsupervisory production, maintenance, pack-
ing and shipping workers employed by Respondents at
their Festus, Missouri, plant or at their Greenwood,
Mississippi, plant excluding officers or executives, design-
ers, assistant designers, superintendents, supervisory
personnel, instructors, pattern makers, assistant pattern
makers, mechanics, office workers, billers and clerical
workers who do not handle any garments, parts thereof, or
any raw materials constitute a unit appropriate for
purposes of collective bargaining within the meaning of the
Act.
4. At all times material herein the Union has been the
exclusive representative for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act of
the employees in the aforesaid unit at Respondent's Festus,
Missouri, plant.
5. By attempting to withdraw from a multiemployer
unit at an inappropriate time and refusing to accept and be
bound by a multiemployer agreement previously reached,
and by unilaterally and without prior notice and consulta-
tion with the Union terminating Co-Ed's employees,
closing down its Festus, Missouri, plant, and removing the
same to Greenwood, Mississippi, where Co-Ed's operations
continued under the name of Delta, an alter ego, in order
to deprive employees of their rights guaranteed by Section
7 of the Act and to avoid bargaining and otherwise dealing
with the Union as the collective-bargaining representative
of said employees, Respondents have violated Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
22 Gar'win Corporation. etc., 169 NLRB 1030(1968).
23 Gar'win Corporation, etc supra.
857