Goldin-Feldman, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 359 (N.L.R.B. 1989)

GOLDIN-FELDMAN, INC. 359
Goldin-Feldman , Inc. and its successor or alter ego
Goldin-Karabelas, Inc. and Local 1, FLM-FJC,
United Food and Commercial Workers Interna-
tional Union , AFL-CIO. Case 2-CA-20827
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 13, 1987, Administrative Law
Judge Winifred D. Morio issued the attached deci-
sion. The Respondents filed exceptions and a sup-
porting brief, and the General Counsel and Charg-
ing Party filed answering briefs.I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, 2 and
conclusions3 as modified , and to adopt the recom-
mended Order as modified.
i The General Counsel also filed a motion to strike part of the Re-
spondents ' brief, and the Respondents filed an opposition to the General
Counsel 's motion . In light of our modification , on other grounds, of a
portion of the remedy recommended by the judge, we find it unnecessary
to pass on the General Counsel 's motion.
2 The Respondents have excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings . Additionally, the Respondents assert that the judge's
findings are a result of bias . After a careful examination of the entire
record, we are satisfied that this allegation is without merit.
We correct the following inadvertent errors in the judge 's decision. the
names of Anne Dee Goldin and union representative Simadins are mis-
spelled ; in the "Statement of the Case ," July 9 , 1984, is the date 6 months
before the unfair labor practice charge was filed; at Conclusion of Law 6,
"July 3 , 1984" should read "July 9 , 1984"; in sec. I,D, par 3 , Simadins
placed the meeting with Goldin -Karabelas in May 1984 rather than May
1985; in sec . I,F, par . 4, Goldin-Feldman consigned rather than assigned
its inventory to Goldin -Karabelas , in sec . I,F, par . 5, the Respondents do
dispute whether there was a hiatus in operations , in "Discussion," sec. B,
par 1, the charge was filed on January 9 , 1985; in "Discussion ," sec. D,
par. 4, the record does not clearly indicate who introduced Evan Karabe-
las to the bank officer , and in par . II there, the arbitrator ruled that
Goldin could terminate 50 percent of the work force rather than seven
employees as the judge indicated.
a In adopting the judge 's conclusion that the complaint is not time
barred under Sec. 10 (b) of the Act , we agree with the judge that the Re-
spondents ' refusal to bargain with the Union, not the transfer of the fur
operations to Goldin -Karabelas , constituted the unfair labor practice and
that the Respondents have not shown that the Union had notice of the
alleged unfair labor practice more than 6 months before the charge was
filed We therefore do not rely on the judge 's application of the so-called
continuing violation theory at "Discussion ," sec. A, pars . 7-9, of her de-
cision . See generally Chambersburg County Market, 293 NLRB 654
(1989) We do note that in "Discussion," sec. A , par 5 , of her decision,
the judge erroneously reported the citation to Gerber & Hurley, Inc., 269
NLRB 856, 857-858 (1984), and misstated the Board 's holding in that
case, which was that the Union was put on notice that an employee was
no longer performing unit work more than 6 months before the charge
was filed , and that the employee 's ambiguous testimony about when his
duties changed was insufficient to rebut the employer 's 10(b) defense.
The judge found that Goldin-Feldman and
Goldin-Feldman International did not timely notify
the Union of their withdrawal from membership in
the Associated Fur Manufacturers , Inc. (Associa-
tion) prior to December 15, 1983, the date set for
the negotiation of the 1984-1987 collective-bargain-
ing agreement between the Association and the
Union. The judge therefore determined that
Goldin-Karabelas, as the alter ego of Goldin-Feld-
man and Goldin-Feldman International , remained a
member of the Association , and her recommended
Order required Goldin-Karabelas to comply with
the 1984-1987 agreement. The Respondents have
excepted , arguing that timely notice was given
when Goldin-Feldman International sent a letter to
the Association on November 30, 1983, with a
copy to the Union, stating that it was withdrawing
from the Association. The Respondents further
argue that while December 15, 1983, was the date
set by the contract to begin negotiations, the
record is silent as to when the negotiations actually
began and that this was the General Counsel's
burden in order to establish untimely withdrawal.
The Respondents further argue that there is a
dearth of evidence on this issue because, in fact,
the complaint had alleged that Goldin-Feldman
had timely withdrawn from the Association and it
did not allege any refusal to abide by the subse-
quent agreement , and thus the issue was not fully
litigated . We find merit in the Respondents ' excep-
tion . In view of the complaint allegation of timely
withdrawal from the Association and the scarcity
of evidence in the record on this matter , we cannot
conclude that the matter was fully litigated as an
issue in this proceeding . Therefore, in restoring the
status quo, we amend the recommended Order to
require compliance with the terms and conditions
This misstatement of the case does not affect our agreement with the
judge concerning the Union 's lack of notice in this particular case.
In agreeing with the judge that Goldin-Karabelas is an alter ego and a
successor, we do not rely on the judge 's finding of common supervision
at the two companies In addition , with respect of the alter ego relation-
ship of the Companies , Member Johansen does not agree with the judge's
finding of common ownership . He does agree with the judge , however,
that common ownership is not a sine qua non of alter ego status. Fugazy
Continental Corp., 265 NLRB 1301 (1982), enfd . 725 F.2d 1416 (D C Cir.
1984).
We find that under the circumstances of this case the two Companies
shared common ownership In particular we note that Fred Goldin exer-
cised fairly extensive financial control over the future of Goldin -Karabe-
las. Thus, had it not been for Fred Goldin 's assistance in obtaining loans
for Goldin-Karabelas and his willingness to accept late payments on the
outstanding loan that Goldin -Karabelas ostensibly owed to Goldin-Feld-
man during the period in question , it appears that the Company would
have had severe difficulties continuing in business. In this case, we note
that Fred Goldin continued to exercise considerable financial control
over Goldin-Karabelas and that , in fact , its very livelihood was depend-
ent on Fred Goldin 's ability and willingness to negotiate with the bank
and provide financial guarantees that allowed the bank to extend Goldin-
Karabelas' line of credit . Under these circumstances, we believe the find-
ing of common ownership is warranted.
295 NLRB No. 41
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the 1981-1984 collective-bargaining agreement
between the Association and the Union that sur-
vived expiration of the agreement.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 7 and 8 and substi-
tute the following and renumber the succeeding
Conclusion of Law:
"7. By failing and refusing to abide by the terms
and conditions set forth in the 1981-1984 collec-
tive-bargaining agreement between the Associated
Fur Manufacturers and the Union that survived the
agreement 's expiration , and by failing to recognize
and bargain with the Union , Respondent Goldin-
Karabelas has violated Section 8 (a)(5) and (1) of
the Act."
ORDER4
The National Labor Relations Board orders that
the Respondents , Goldin-Feldman , Inc., Goldin-
Feldman International , Inc., and Goldin-Karabelas,
Inc., New York , New York, their officers , agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and, on request, bar-
gain collectively concerning rates of pay , wages,
hours, and other terms and conditions of employ-
ment with Local 1, FLM-FJC , United Food and
Commercial Workers International Union, AFL-
CIO as the exclusive representative of the employ-
ees in the following appropriate unit:
All employees who do matching (for cutting
of garments or trimmings ), cutting , squaring,
operating, nailing , clipping, glazing , ironing,
handsewing , striping , finishing , examining,
taping , staying , stapling, stretching , steaming,
and inside sales personnel whose primary func-
tion is showroom selling , salesmen , designers,
patternmakers , shipping clerks, porters, pick-
up and deliverymen , and floor workers.
(b) Refusing to honor , implement , and apply the
terms and conditions set forth in the 1981 - 1984 col-
lective-bargaining agreement between the Associat-
ed Fur Manufacturers , Inc. and the Union.
(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request , bargain collec-
tively with the Union as the exclusive representa-
4 The judge's recommended Order includes a visitatorial clause. Under
the circumstances of this case , we find it unnecessary to include such a
clause. See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
tive of all the employees in the unit with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached , embody the understanding in a signed
agreement.
(b) Honor, implement , and apply the terms and
conditions set forth in the 1981-1984 collective-bar-
gaining agreement between the Associated Fur
Manufacturers , Inc. (Association) and the Union
that survived the agreement 's expiration until Re-
spondent Goldin-Karabelas and the Union reach a
good-faith impasse or execute a new collective-bar-
gaining agreement , or until the Union refuses to
bargain in good faith.
(c) Make whole its employees in the bargaining
unit for any loss of wages and benefits incurred as
a result of its refusal to honor and implement the
terms of the 1981-1984 collective-bargaining agree-
ment . Backpay is to be computed as set forth in
Ogle Protection Service, 183 NLRB 682 (1970), plus
interest accrued to the date of payment as pre-
scribed in New Horizons for the Retarded,5 minus
tax withholdings required by Federal and state
laws.
(d) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, 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.
(e) Post at its New York, New York location
copies of the attached notice marked "Appendix."6
Copies of the notice , on forms provided by the Re-
gional Director for Region 2, after being signed by
the Respondents' authorized representative , shall be
posted by the Respondents immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondents to
ensure that the notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
283 NLRB 1173 (1987)
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 Nation-
al 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."
GOLDIN-FELDMAN, INC. 361
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
may have suffered as a result of our unfair labor
practices, with interest.
GOLDIN-FELDMAN, INC., GOLDIN-
FELDMAN INTERNATIONAL, AND
THEIR SUCCESSOR OR ALTER EGO
GOLDIN-KARABELAS, INC.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and, on re-
quest, bargain collectively concerning rates of pay,
wages, hours, and other terms and conditions of
employment with Local 1, FLM-FJC, United
Food and Commercial Workers Union, AFL-CIO,
as the exclusive bargaining representative of the
employees in the following appropriate unit:
All employees who do matching (for cutting
of garments or trimmings), cutting , squaring,
operating , nailing, clipping , glazing , ironing,
handsewing, striping, finishing, examining,
taping, staying , stapling , stretching , steaming,
and inside sales personnel whose primary func-
tion is showroom selling , salesmen, designers,
patternmakers, shipping clerks, porters, pick-
up and delivery men, and floor workers.
WE WILL NOT refuse to honor, implement, and
apply the terms and conditions set forth in the
1981-1984 collective-bargaining agreement between
the Associated Fur Manufacturers, Inc. (the Asso-
ciation) and the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed by Section 7 of the
Act.
WE WILL recognize and, on request , bargain col-
lectively with the Union as the exclusive represent-
ative of all the employees in the unit with respect
to rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached , embody the understanding in a signed
agreement.
WE WILL honor, implement , and apply the terms
and conditions set forth in the 1981-1984 collec-
tive-bargaining agreement between the Association
and the Union that survived the agreement's expi-
ration until we and the Union reach a good-faith
impasse or execute a new collective -bargaining
agreement, or until the Union refuses to bargain in
good faith.
WE WILL make our employees in the bargaining
unit whole for any loss of wages and benefits they
Leonard Grumbach, Esq., for the General Counsel.
Peter J. Carre, Esq., of Washington, D.C., for Goldin-
Karabelas, Inc.
Solaman G. Lippman, Esq., of Washington, D.C., for
Goldin-Feldman, Inc.
Amy Gladstein, Esq. (Gladstein, Reif & Meginniss), of
Brooklyn, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WINIFRED D. MORIo, Administrative Law Judge. This
case was heard in New York, New York, on 29 July, 11
and 12 September, 20, 21, 22, 23, 28, 30, and 31 October,
and 10 November 1986. On 22 February 1985, the Re-
gional Director for Region 2 issued a complaint against
Goldin-Karabelas, Inc. (GK), in which he alleged that
GK purchased the assets, good will, and liabilities of
Goldin-Feldman International Corp. (GFI) and thereaf-
ter engaged in the same operations , with the same cus-
tomers and had a majority of CFI's employees and,
therefore, was its successor . I The complaint further al-
leged that since on or about 9 October 1984 GK failed
and refused to meet and bargain with the Furriers Joint
Council of New York, United Food and Commercial
Workers International Union, AFL-CIO (Union), the
collective-bargaining representative of certain employees
of GK, about the renewal of a collective -bargaining
agreement and the reinstatement of striking employees.
GK filed an answer in which it denied the commission of
the alleged unfair labor practices and asserted as an af-
firmative defense that the complaint was time barred by
Section 10(b) of the Act and that GK had a good-faith
doubt concerning the majority status of the Union. On
11 July 1986, the Regional Director issued an order
which amended the caption of the case to read Goldin-
Feldman, Inc. (GF) and its successor or alter ego
Goldin-Karabelas , Inc. and added the allegation that GK
was established by GF as a subordinate instrument to
and a disguised continuance of OF. GK apparently filed
an answer denying that it was an alter ego to OF. A
hearing was scheduled for 29 July 1986. On that date,
Solaman Lippman, counsel for OF, appeared and re-
quested that GF's name be stricken from the complaint
because GF had not been served . I denied that motion
and the General Counsel was given an opportunity to
serve GF with the complaint. On 6 August 1986, the Re-
gional Director for Region 2 issued an amended com
' The Regional Director referred to GFI as Goldin -Feldman in the
complaint . The two corporations are not exactly the same and the differ-
ences will be discussed below. At times , I have referred to OF, GFI, and
GK as the Companies.
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaint in which he alleged that GF and its successor and
alter ego GK, had refused to recognize and bargain with
the Union , the collective-bargaining representative of its
employees concerning a collective-bargaining agreement
and the reinstatement of striking employees. On 14
August 1986, GF filed an answer to the amended com-
plaint in which it denied that GK was a successor to GF
and further denied that GF had established GK as a dis-
guised continuance of GF's operations . GF also asserted
as an affirmative defense that it had terminated its oper-
ations for bona fide reasons and had sold its assets and
goodwill to GK, a totally separate entity. GF further as-
serted that the amended complaint was time barred by
Section 10(b) of the Act. During the hearing, counsel for
the General Counsel moved to further amend the com-
plaint to allege that since on or about 3 July 1984, a date
6 months prior to the filing of the charges, GF and GK
had refused to meet and bargain with the Union. I per-
mitted testimony with respect to this amendment but re-
served ruling . For reasons discussed below , that motion
to amend now is granted.
All the parties were afforded the opportunity to
present witnesses , to cross-examine witnesses , and to file
briefs . Briefs were filed by all counsel.
On the entire record , including my observation of the
demeanor of the witnesses and on my consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, GK, a New York corpo-
ration, with an office and place of business at 345 Sev-
enth Avenue, New York, New York, was engaged in
manufacture , sale, and distribution of furs and related
products. Annually, GK, in the course and conduct of its
business operations, sells and ships from its New York fa-
cility goods and materials valued in excess of $50,000 di-
rectly to points outside the State of New York. It is un-
disputed , and I find, that GK is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It is undisputed , and I find, that the Union
is a labor organization within the meaning of Section
2(5) of the Act.2
A. Background
In 1909, the father of Fred Goldin formed a firm, Bal-
loton and Goldin , to engage in the manufacture of fur
coats . Fred Goldin joined the firm in 1942 and the firm
name was changed to reflect that fact. When his father
died, Fred Goldin, with his father-in-law, formed a new
corporation Goldin -Feldman, Inc., and this firm contin-
ued in business , with some changes , until 1980. Fred
Goldin is a central character in the issues in this case.
During the period prior to 1980, Goldin-Feldman
(GF) basically manufactured its own garments, primarily
mink coats, on its premises at 345 Seventh Avenue, New
2 Subsequent to issuance of the complaint there was a merger and the
present name of the Union is the name set forth in the caption of this
case.
York, for both retail and wholesale customers. 3 There
were approximately 25 employees represented by the
Union, who were engaged in the manufacturing process
on the 11th floor at the 7th Avenue location. These em-
ployees were covered by a contract between the Union
and the Associated Fur Manufacturers, Inc. (Associa-
tion). The administrative offices and sales offices were
located on the 12th floor.
B. Goldin-Feldman International
In December 1980, Fred Goldin, William Feldman,4
Dan Baron , and Mike Hennessy formed a new company,
Goldin-Feldman International .5 This company , a subsidi-
ary of Goldin-Feldman, Inc. (GF), operated as a manu-
facturer in the fur industry,6 while GF continued in ex-
istence as an investment company. Fred Goldin was
president of GFI and was responsible for wholesale sales
and financial matters . Insofar as this record discloses,
Feldman continued to be responsible , as he had been at
OF, for the manufacturing aspects of the new corpora-
tion . The precise duties performed by Baron and Hennes-
sy are not clear but it appears that they were involved
with sales . When GFI commenced its operations, it did
so at the GF's premises and it continued to operate gen-
erally in the same fashion as GF had and to supply, gen-
erally, the same customers . GFI retained a substantial
number of the GF employees and it continued to recog-
nize and bargain with the Union and to abide by the
terms of the Association contract. Although GF and
GFI were different corporations, all parties at times
during the hearing referred to both corporations as
Goldin-Feldman. In February 1982, Baron and Hennessy
withdrew their money from GFI and left the corporation
and, thereafter, Fred Goldin became a 75-percent owner
and Feldman a 25-percent owner of GFI. When Baron
and Hennessy withdrew their money from GFI, Fred
Goldin, in accordance with the provisions of the Asso-
ciation agreement, filed for arbitration to reduce the
number of employees in the manufacturing unit by 50
percent because there had been a 50-percent reduction in
the capital of the corporation. On 25 January 1985, the
arbitrator granted the Company's request for a reduction
of the number of employees in the unit but the Union
commenced picketing to protest the reduction . GFI at-
tempted to have the picketing enjoined but its efforts
were unsuccessful . As a result of CFI's inability to limit
all picketing, Fred Goldin met with Arthur Kotoros,
president of the Union, on 9 June 1983, and the two re-
solved the matter and employees, who had been dis-
charged pursuant to the arbitration award , were reinstat-
ed with backpay.
In July 1980, Ann Dee Goldin, the younger daughter
of Fred Goldin, began her employment with OF. Ms.
Goldin, who had been a buyer for Associated Drygoods,
lacked experience in the fur industry. She was employed,
0 GF also used subcontractors to manufacture garments and it import-
ed some finished garments.
4 William Feldman was a brother-in-law of Fred Goldin
5 The shares held by Fred Goldin and William Feldman in GFI were
purchased by OF.
6 GFI was formed with the consent of the Union.
GOLDIN-FELDMAN, INC.
initially, as a clerical employee but in September 1980
she was promoted to a sales position , under the supervi-
sion of Mike Hennessy . Although Ms . Goldin testified
that her father "ran the whole company" before he
became incapacitated in 1983, Fred Goldin testified that
Hennessy was primarily responsible for running GFI
during the period between December 1980 and February
1982. In any case, after February 1982, according to Ms.
Goldin , she moved into the second level of management
responsible directly to her father ' and she assumed
greater control over sales , public relations , advertising,
and supervision of the clerical and showroom employees.
Feldman continued to supervise the manufacturing oper-
ations . In March 1983 , Fred Goldin suffered a heart
attack and was incapacitated for some time . Goldin testi-
fied that his daughter, Ann Dee, was able to run the
Company without his presence , as he had done when his
father died suddenly .8 However , Ms. Goldin testified
that except for the first few days after the attack, her
father remained in control of the business and that she
made no major decisions without his direction or ap-
proval . Further, she testified that her uncle, William
Feldman , "rose to the occasion" and helped her in the
daily operation of the business . Ms. Goldin did concede
that she had the responsibility to direct the daily func-
tions of the business , to supervise the clerical and show-
room employees, and to reprimand them but she claimed
that she did not have the authority to hire or fire em-
ployees.
Fred Goldin testified that while he was in the hospital
recuperating from his heart attack he decided to leave
the fur industry and he advised his daughter, Ann Dee,
of this fact and she agreed that it was best for him to
leave the business. Ms. Goldin claimed that it was in
September 1983 that her father told her that he could
not handle the pressure of the business and that he
wanted to leave the business . Notwithstanding whether it
was March , April, or September 1983 that Goldin had
these conversations with his daughter, he continued his
interest in the business . Thus, it was Goldin who contact-
ed Arthur Kotoros, the union president, in June 1983 to
resolve the problem which arose because of Goldin's ef-
forts to reduce the number of manufacturing employees.
It was also Goldin who hired his daughter , Leslie
Goldin, in September 1983 as a sales employee. Goldin
testified that he knew at the time that he planned to dis-
continue his interest in the fur industry but he hired his
daughter because she no longer wanted to teach and she
needed a job . Ann Dee Goldin stated that her sister
knew her father was discontinuing his business oper-
ations but she wanted a job and her father wanted to
help her and so he hired Leslie Goldin.
C. Events Prior to Formation of Goldin-Karabelas
It is undisputed that prior to Fred Goldin 's heart
attack William Feldman had expressed his desire to
r Her title was then executive vice president There were two execu-
tive offices on the 12th floor, Fred Goldin used one and Ms. Goldin used
the other.
8 A brief submitted to the Board on behalf of GFI contains the state-
ment , "During Fred's absence , Ann directed the upstairs operation on a
daily basis" (G.C. Exh. 2)
363
retire . According to Goldin, this desire of Feldman to
retire was an additional factor in his own decision to dis-
continue the business . According to both Fred and Ann
Dee Goldin , when Fred Goldin announced his decision
to leave the business , Ann Dee expresed her hope to
remain in the fur industry and to continue to use the
name OF. Ms . Goldin testified that to be able to use the
GF name was an advantage because "working at GF
and being a Goldin is the best credentials you can have
in the fur industry ." She further testified that GF was a
prestigious firm, the name was known throughout the in-
dustry . Despite her testimony about the value of the
name, Ms. Goldin claimed that the name would not be
valuable if someone who was not a Goldin attempted to
use it . Fred Goldin testified that he did not believe a
company would pay to use the Goldin-Feldman name
unless he was involved in the business.
It is admitted that Fred and Ann Dee Goldin were not
experienced in the manufacturing part of the fur business
and with the anticipated retirement of Feldman there
would be no one with manufacturing experience avail-
able in the existing corporation .9 If Ms . Goldin contin-
ued in the fur industry she would need a partner who
had manufacturing experience and, to this end at her fa-
ther's suggestion , she met with several manufacturers.
These meetings were unsuccessful until she was intro-
duced by her father to Evan Karabelas , in late Novem-
ber 1983 . Karabelas had done subcontracting work for
GF and Goldin thought that Karabelas was a competent
production person . It was known that Karabelas, then a
partner in Karabelas Furs, had personality conflicts with
his brother and that that partnership was about to termi-
nate . It is unclear whether the first meeting between Ms.
Goldin and Karabelas occurred before or after 30 No-
vember 1983, although probably before , but on 30 No-
vember 1983 Goldin advised the Association that he was
terminating the GFI's membership in that Association. i o
Goldin did not advise the Union of the termination of his
membership in the Association.
From the outset Fred Goldin was a participant in the
meetings which occurred between his daughter and Kar-
abelas about the formation of a new corporation. Goldin
was not only a participant but he actively encouraged
Karabelas to join his daughter as a partner in a new cor-
poration . Karabelas testified that he was reluctant at first
to form a new corporation with Ms. Goldin but, eventu-
ally, he decided to consider the possibility because GF
was a well-known firm , one of the finest in the indus-
try. i i However, he advised the Goldins that he would
9 Leo Nikides, the factory foreman at GFI, testified that he had a con-
versation with Fred and Ann Goldin in November or December 1983
during which Fred Goldin told him that he was going out of manufactur-
ing and that Nikides could take over the factory and do contract work
for GFI.
10 Goldin advised the Association that his daughter might go into busi-
ness but the nature of that business was uncertain and, therefore, she
could not assume a manufacturer's agreement in advance.
" Karabelas claimed that he had planned , after the partnership with
his brother ended , to start a retail fur business in a building he owned on
Long Island.
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not make a final determination until after he had an op-
portunity to evaluate GFI's manufacturing process.
Although Karabelas claimed that he did not make a
final determination about forming a corporation with Ms.
Goldin until sometime in January 1984, a certificate of
incorporation was filed on 15 December 1983 for
Goldin-Karabelas International , Inc.' 2 Also, on 19 De-
cember 1983 , Fred Goldin met with Arthur Kotoros to
discuss with him the fact that Karabelas was interested in
forming a corporation with his daughter to manufacture
furs but that Karabelas wanted to be able to select his
own employees . Kotoros stated that this could not be
done, Karabelas had to retain all the unit employees. Ac-
cording to Kotoros, during this meeting Goldin told him
he had to retire because of health problems but "he was
turning the business over to his daughter." Kotoros re-
sponded that Goldin was still part of the corporation,
that other arrangements were only a "front." Goldin
asked Kotoros to be reasonable and to help his daughter.
On cross -examination Kotoros testified that Goldin told
him during the meeting that he had to retire for health
reasons but that his daughter wanted to continue in the
business.
After Karabelas examined the production process at
GF he determined that it would be impossible for him to
operate the production part of the business without cer-
tain changes and he advised the Goldins that he would
not be party to a new corporation unless there was a re-
duction in the number of the manufacturing employees
and unless he could select the manufacturing employees.
Karabelas did not recall whether it was his decision or
that of the Goldins to meet with the union representa-
tives to discuss this problem . According to Ms . Goldin,
there had been no discussions about the monetary aspects
of the new corporation , but a decision had been made by
the two individuals to form a new corporation before
Karabelas met with Kotoros to discuss the employee
complement.
D. Meeting with the Union
Karabelas testified that at his request he met with Ko-
toros and other union representatives , including Simidiris
and Theoharris , on 10 January 1984. During the meeting,
Karabelas told the union representatives that he had ter-
minated his relationship with his brother, that he was
forming a new company with Ms . Goldin , and that he
wanted to reduce the number of employees in the facto-
ry. Karabelas further testified that he told the representa-
tives that he would be "happy" to be a union shop but
only if he was allowed to hire the employees of his
choice . According to Karabelas , Kotoros attempted to
dissuade him from an association with Ms . Goldin and
Kotoros refused to consider a reduction in the number of
employees . Kotoros could not recall the date of his first
meeting with Karabelas but he did recall that Karabelas
came down on a friendly basis to discuss his partnership
12 Ms . Goldin testified that because she was anxious to have the new
corporation formed she contacted Harold Pomerantz , who was the attor-
ney for Fred Goldin, and he advised her that she could file the certificate
of incorporation but it did not mean that she had to go into business with
Karabelas.
with Ms . Goldin and during the meeting Karabelas asked
Kotoros whether he could reduce the number of the fac-
tory employees from 25 to 10 and Kotoros rejected the
proposal because he could not agree to any proposal
which would cost the union employees their jobs. They
discussed the issue in detail but they could not resolve
the problem.
On or about 19 January 1984, Simidiris and Theohar-
ris, the union representatives, came to the premises of
GF to meet with Ms. Goldin and Karabelas . During this
meeting , the union representatives questioned the two
about their plans and Karabelas advised the representa-
tives that the new corporation would be a different oper-
ation than GF because Karabelas planned to become a
jobber rather than a manufacturer . The union representa-
tives expressed their doubts that Karabelas would
become a jobber. Karabelas replied that if he could start
on a small scale he would stay in manufacturing but he
did not want to start on a large scale . According to Simi-
diris, he told Ms . Goldin and Karabelas that the Union
considered the new corporation to be a successor to GF.
Karabelas claimed that this meeting occurred about 2
weeks after he met with Kotoros , and during the meet-
ing the union representatives told him that there would
be a job action if he did not retain all the employees who
they claimed to represent . He told them that if he could
select the employees he would go ahead with the plan to
continue manufacturing.
There was a third meeting with the union representa-
tives during which the issue of the number of employees
to be employed was discussed . The meeting was held in
the office of the impartial chairman of the Association.
When Karabelas was called as a witness by the General
Counsel, he testified that this meeting occurred in March
1984.13 Subsequently , he was called by counsel for GFI
and GK and he testified that after his initial testimony he
discussed the issue with his attorney and he discovered
that the meeting occurred on 18 January 1984.14 Ms.
Goldin testified that this meeting occurred sometime
before GK began its operations on 20 February 1984.
Lippman , counsel for GF and GFI in 1984, testified that
the meeting occurred in late January or early February
1984 because it was arranged to resolve a pending arbi-
tration hearing, which was set for early February 1984.
Kotoros claimed the meeting occurred in the summer of
1984 and Simidiris , another union representative , placed
the meeting sometime in May 1985 , after an industrywide
strike ended.
Although the parties did not agree about the date of
this meeting, they did agree that Ms. Goldin, her hus-
band , Jay Fensterstock , Karabelas, Kotoros, Simidiris,
and Theoharris were present . It appears that Jarblum, at-
torney for Karabelas, Lippman, and his associate, Ron
13 In an affidavit submitted by Karabelas on 15 March 1984 there is no
mention that such a meeting had occurred.
14 Karabelas based this conclusion on the fact that there was an entry
in the diary of his attorney about a meeting with Karabelas . In view of
the fact that there were several meetings between the two such an entry
does not establish that the entry in Jarblum 's diary for 28 January 1984
relates to this meeting Jarblum was not called to testify
GOLDIN-FELDMAN, INC.
Castle, and William Feldman were also present. 15 The
parties discussed Karabelas ' insistence that the number of
factory employees be reduced and his right to select his
own employees . The meeting did not resolve the basic
conflicts and, in fact, Karabelas and Kotoros almost had
a physical confrontation.
It is undisputed that there were additional meetings be-
tween February and September 1984 where the Union
continued to demand that GK recognize it as the repre-
sentative of its employees . Basically, the union witnesses
testified that they continued to demand recognition while
Lippman maintained that these meetings occurred in the
context of discussions about other cases and that he reit-
erated that GF had ceased its operations and that the ar-
rangements between the corporations were bona fide
transactions.
E. Agreement-16 January 1984
On 16 January 1984, an agreement was executed by
and between OF, GFI, Fred Goldin , and William Feld-
man in which GF and GFI agreed to cease their manu-
facturing operations , to liquidate the inventory of the
corporations , to collect the accounts receivable and pay
the liabilities of the corporation .' a The agreement also
provided that Feldman 's shares in GF would be acquired
by GF as of 31 August 1984, or sooner , at the option of
Fred Goldin at their book value . It further provided that
the machinery , equipment, the mark , "Goldin-Feldman,"
and the interest of GFI in designer agreements would be
sold to GK and that in computing book value the fixed
assets, machinery and equipment would be valued as
though they remained on the books as of the last day of
the month prior to the date of the closing and the selling
price would not be taken into account . According to the
agreement, the purchase price to be paid to Feldman for
his shares was to be 25 percent of the inventory with the
balance of the purchase price, if any, to be paid in cash.
The record reveals that Feldman received inventory, and
about $ 148,000 in cash for his 25-percent interest in GF
and, in addition about three quarters of a million dollars
in pension funds."
On 20 January 1984, Ms . Goldin announced to the em-
ployees that the Company had ceased its operations ef-
fective that day. According to the Goldins, between 20
January 1984 and 20 February 1984 the only work per-
formed by some of the remaining GFI employees was
the completion of work in progress.' a
16 Counsel for GK contends that the presence of Feldman establishes
that the meeting could not have occurred in the summer of 1984 because
Feldman was no longer associated with any company However, it
should be noted that Feldman had not received his money by the summer
of 1984 from the sale of the inventory of GFI In fact , Ms Goldin testi-
fied that Feldman came to the premises during the summer of 1984 to
check on the sale of the GFI inventory . Feldman had a very real concern
over the problems between the Union and GK . The money owed to him
could be affected by the conflicts between the Union and GK . Feldman
was not called to testify.
16 On 4 January 1984, Goldin notified the Union, by letter , that GFI
would terminate its operations effective 20 January 1984.
17 Goldin testified that, although he no longer would be involved in
manufacturing, he wanted to continue GF to avoid paying ' taxes and for
estate planning purposes.
18 The employees who had been terminated began to picket.
365
F. Agreements-16 February 1984
According to Karabelas , after the first meeting with
Katoros he was discouraged about the prospect of going
into business with Ms . Goldin, and he decided not to do
so. However, about a week thereafter he met with Fred
Goldin , Ms. Goldin and her husband at a restaurant and
when he advised them of his decision to open a retail
business, it was Fred Goldin who urged him to reconsid-
er because he was being offered the opportunity of a life-
time which he should not reject . It was at this point that
he finally decided to go ahead with the plan to start a
business with Ms . Goldin. This decision appears to have
been made after the meeting with Kotoros on 10 January
1984 and before the meeting with Simidiris on 19 Janu-
ary 1984.
On 16 February 1984, about a month after Karabelas
told the Goldins that he would go into business with Ms.
Goldin, Ms. Goldin and Karabelas entered into an agree-
ment to form Goldin-Karabelas International , Inc.' 9
According to the terms of that agreement , each party
was to acquire 50 percent of the outstanding shares of
the stock of the corporation, with each to pay $300,000
for their share . 20 The agreement also provided that in
the event of Ms. Goldin 's death her father had the option
to purchase her shares and she could dispose of her
shares to her father by her will. If Karabelas died his
shares could be purchased only by the corporation. Kar-
abelas testified that he was anxious to have the deal com-
pleted because he thought it was a good opportunity for
him. The agreement further provided that if Ms. Goldin
left the business the corporation had to remove Goldin
from its title and the mark , "Goldin-Feldman," would be
transferred to Ms . Goldin without charge . The same con-
dition would occur if the business was liquidated. Al-
though Karabelas had stated throughout his testimony of
the esteem in which the name GF was held, he claimed
that he did not object to this condition which gave the
name to Ms . Goldin without charge because without one
of the Goldins the name was not a valuable asset.
On that same day and , apparently during the same
meeting, an agreement was entered into between GF and
GFI as one of the parties and GK as the other party,
whereby GF and GFI agreed to cease the manufacture
of furs. At the time this agreement was entered into, GFI
had gross sales of approximately $ 10 million . Notwith-
standing that fact , the only moneys paid by GK to GF
and GFI was the sum of $ 126,000 payable on the basis of
monthly installments with interest at 9 percent.21 The
sum of $126,000 was paid for the fixed assets, machinery,
and equipment and that sum represented the book value
for those items . There was no money paid for the good-
will of the Goldin-Feldman Company nor was money
paid for the right to use the name . This agreement fur-
19 At this meeting Ms. Goldin was represented by Harold Pomerantz
who was also counsel for GF and Karabelas was represented by William
Jarblum.
20 Ms . Goldin testified that $150 ,000 of the money she paid for her
shares was secured through a loan from a bank and her father was a
guarantor for that loan. Karabelas secured his money from his interest in
Karabelas Furs and from a brother
21 The monthly payments were not to begin until the following year
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ther provided that GF would sublet its premises to GK
without any additional cost and would assign its designer
agreements to GK, also without cost . GF and GFI had
paid over $ 100,000 for some of these designer agree-
ments . GF also assigned its inventory of approximately 1
million to GK to sell on its behalf, for which GK would
receive a 15-percent commission fee. Fred Goldin testi-
fied that it was not important to him to make a profit by
either increasing the rent for the sublease or demanding
more than the book value for the machinery or equip-
ment . And although no installment payments were made
on the $126 ,000 during the first year and interest pay-
ments were late, Goldin testified that he was not con-
cerned because he was anxious to help his daughter suc-
ceed in her new business.
It is undisputed that there was no hiatus between when
GF finished its manufacturing operations and when GK
commenced its operations at the 7th Avenue location. It
is also undisputed that GF and GK were involved in ba-
sically the same type of operations , the manufacture of
fur coats . GK's operations on the 11th and 12th floor
were similar to the operations of GF in that the factory
was on the 11th floor and the offices , showroom, and
shipping facilities were on the 12th floor . In the week
ending 28 February 1984, GK had 15 employees work-
ing at the 7th Avenue location, 2 sales employees, 1 de-
signer, 8 clericals, 1 shipping clerk , 1 shipping foreman, 1
ironer, and 1 factory worker . 22 The record reveals that
14 of these employees had been employed by GFI and
that they were transferred to the payroll of GK without
any loss of work or pay. According to the Association
contract, the sales employees , designer , shipping employ-
ees, ironer and factory worker were part of the bargain-
ing unit . 23 GK used the GF's controller ' 24 advertising
agency, and telephone number . GK also purchased GF's
fire and liability insurance policies, which included a
"black policy" which Karabelas admitted a new corpora-
tion , generally, would be unable to obtain . The record
also reveals that the retail and wholesale customers are
substantially the same . GK advertises under the name of
Goldin-Feldman and as part of its advertisement holds
out to the public that it has been in business since
1909 . 25 Karabelas stated that GF has been in business
since 1909 and he can attract customers by using the
name GF in his advertisements.
G. Assistance by Fred Goldin to Goldin-Karabelas
Ms. Goldin and Karabelas decided that they needed a
line of credit and they approached William Slattery, a
vice president of Manufacturers Hanover Bank , in about
February 1984 to secure this line of credit. Slattery was
22 Only the factory employee was a new employee.
23 At GFI the sales employees and the designer were not included in
the unit.
24 GF customers continued to mail their payments to GF at the 7th
Ave. location and Sylvian Klein who became GK's bookkeeper posted
these payments.
25 Karabelas testified that he initially advertised under the name
Goldin-Feldman by Goldin-Karabelas but he was enjoined from the use
of that name by his brother in May 1984 The record reveals that a TRO
was granted 8 May 1984 and that there was no further action until Octo-
ber 1984 when Karabelas entered into an agreement with his brother not
to use the name Goldin -Karabelas in advertising.
located at the branch where Fred Goldin and GF ac-
counts were maintained and Slattery personally knew
Goldin and was familiar with his finances . When Ms.
Goldin and Karabelas requested a $1.4 million line of
credit, Slattery asked if Fred Goldin would be part of
this venture , and was advised that he would not be an
officer of the corporation but would be a consultant. Al-
though Slattery testified that he did not usually extend
credit to a new business, he recommended that credit be
extended to this new corporation , 26 based on his knowl-
edge of Karabelas' reputation , Ms. Goldin's association
with GF, the strength of the corporation's financial state-
ment ($600,000 advanced to start the corporation), 27 the
personal guarantees of the two principals and $200,000 in
collateral . 28 Karabelas provided $ 100,000 of that amount
but the $100,000 for Ms. Goldin was provided by bonds
hypothecated from Fred Goldin's account. Later in 1984,
the corporation needed to extend its line of credit from
$1.4 million to $2.4 million . Karabelas attempted to use a
building he owned as collateral but Slattery refused to
accept it as collateral and the extension was granted only
after Fred Goldin hypothecated $500,000 worth of bonds
from his portfolio at the bank. In December of that year,
GK was able to reduce its debt and Goldin's bonds were
returned . However, in 1985 GK again needed to increase
its line of credit and on this occasion the bank agreed to
extend the line of credit based on the profits of the cor-
poration in its first year of operation and the agreement
by GFI that $443,000 owed by GK to it for inventory it
had sold would be held by the bank until the debt was
paid . In July 1985, GK again needed to extend its line of
credit to $3 million and this time Goldin hypothecated
$300,000 from his bonds held by the bank and the exten-
sion to $3 million was granted.
In addition to the assistance provided by Goldin to
enable GK to secure lines of credit, he has also been a
consultant to the firm since August 1984, for which he
was paid $1,000 per week fee . He is paid $200 a week on
the payroll , to enable him to receive insurance bene-
fits.29 Goldin testified that he does not have a contract
with Ms. Goldin or Karabelas and he could be fired at
any time. The amount of time he is available for consul-
tation is determined by Goldin and he is not required to
be in the office for any specific amount of time, although
he generally is there a few hours a day. When he is
present he uses the same office that he did when he was
the president of GFI . "Goldin also testified that when
he began consulting he called several of GF's customers
and "told them he was back at work ." He apparently did
not disclose to these customers that he had returned as a
26 His recommendations with respect to the extension of credit to GK
were always followed.
27 The $600,000 was not diverted to the bank , Ms Goldin and Karabe-
las continued to be able to use it.
26 Although Slattery requested their personal guarantees, he did not
request financial statements from either party . Thus, the only real collat-
eral for the $ 1.4 million line of credit was the $200,000.
29 In 1985 , Fred Goldin received a $20,000 bonus and Leslie Goldin
received a $15,000 bonus . Ann Dee Goldin and Karabelas did not receive
a bonus.
so Goldin stated that he frequently conducted his personal business un-
related to GK when he is at the office . It does not appear that he pays
for the use of the office when he is involved with his personal business
GOLDIN-FELDMAN, INC.
consultant for GK. In his position as consultant, he has
helped with sales, designs, financial matters, and what-
ever other problems either Ms. Goldin or Karabelas may
have. He has introduced them to potential customers and
has traveled with Karabelas to the Far East to meet with
fur suppliers in these countries . Further, he has been
present at the GK booth at various fairs both in this
country and abroad. Karabelas testified that Goldin's
presence was significant , "he gives class to the show-
room." Goldin has taught Karabelas about styles and
how to handle prices in Korea . Ms. Goldin testified that
her father's presence at either the premises of GK or at
the fairs was a "good come on" because he is very well
known in the industry.
H. The Metropolitan Operation
It should be noted that the existence of the Metropoli-
tan operation was not made known until late in this pro-
ceeding . Nevertheless , it is the position of the Companies
that this operation so substantially changed the manner
in which GK conducted its business from the manner in
which GFI had conducted its business that it requires a
conclusion that GK is not a successor to GFI.
The record indicates that the bulk of GFI's manufac-
turing work was performed by its own employees at its
7th Avenue premises.31 If GFI had continued in busi-
ness, its manufacturing operations would not have been
performed at the 7th Avenue location because of an in-
dustrywide strike which began on or about 17 February
1984, continued through 15 May 1984, and which shut
down operations in the fur industry in New York. How-
ever, GK was able to have coats manufactured for it
during the strike because of certain arrangements which
were made by Karabelas . In 1982 , Karabelas, in anticipa-
tion of the termination of his relationship with his broth-
er and unknown to his brother, had formed a company,
Metropolitan Fur Storage Incorporated (Metropolitan)
with Emmanuel Frantcis (Manos), a former employee of
Karabelas Furs . Karabelas , because he was head of pro-
duction at Karabelas Furs, was able to subcontract cer-
tain of that firm 's manufacturing work to Metropolitan
and Metropolitan performed that work for about a
year . 32 In January 1984, after Karabelas had separated
from his brother, Metropolitan ceased to manufacture for
Karabelas Furs and in January 1984 it did some manufac-
turing for GFI for which it was paid in excess of
$17,000. Thus, by February 1984, when the industrywide
strike commenced , the Goldin and Karabelas were
aware that Karabelas had a manufacturing operation
which was nonunion and which was located on Long
Island, away from the strike and from the general area of
the fur manufacturers in New York City.
Karabelas, who was a partner in both Metropolitan
and GK at the relevant times , testified concerning the fi-
nancial arrangements between the two companies. Ac-
cording to that testimony , the arrangements were hap-
hazard . Thus, Karabelas testified that whenever Manos
indicated that Metropolitan needed money GK paid
31 GFI did use subcontractors to manufacture some of its coats.
32 Karabelas supervised the work at Metropolitan at night or on off
time from his work for Karabelas Furs.
367
what was requested . He also testified that Joanna Maden-
cis, his production assistant at GK, was paid in part by
Metropolitan and that, thereafter , Metropolitan billed
GK for the amount they had paid Madencis . Metropoli-
tan used some of the machinery which GK had pur-
chased from GFI and it used this machinery without
charge . Further , GK used the storage facilities of Metro-
politan without paying for the use of those facilities.
Joanna Madencis testified that in February and March
1984, while the premises of GK were in the process of
renovation , the production work for GK was performed
by Metropolitan at its premises on Long Island . She also
testified that in February and March 1984, she was fre-
quently at the Metropolitan premises to ensure that the
production work was being performed in accordance
with GK specifications . In fact, it appears that during
this period she supervised the work of all the employees,
including Manos . At the time that Metropolitan began to
manufacture for GK it had five employees, including
Manos . It does not appear that these employees had been
GFI employees. According to Karabelas, these five em-
ployees could not complete the production of any coat,
the final work had to be performed by finishers and
these finishers , in February and March 1984, were inde-
pendent contractors . aa However , about March 1984, Ma-
dencis, at the request of Ms. Goldin and/or Karabelas,
contacted Effie Piniat, Kanella Marcopoulos , and Agnes
Galanos, all of whom had been finishers for GFI, to in-
quire as to whether they would be interested in working
for GK. 34 According to Madencis , Piniat and Marco-
poulos replied that they would come to work after the
strike ended because they were afraid to cross the picket
line and Galanos responded only that she would come
after the strike ended . In fact, the three did not come
until the strike ended , Piniat on 22 May 1984, and Mar-
copoulos and Galanos on 3 July 1984.35
Karabelas testified that the operations of GK and GFI
were substantially different . However, Strimboulis, a
former employee of GFI now employed by GK, testified
that the entire operation is essentially the same. There
appears to be a change in the manner in which employ-
ees are compensated , because employees are not paid in
accordance with the provisions of the Association con-
tract, but the Companies concede that the employees are
performing essentially the same type of work.
1. The Good-Faith Doubt
Ms. Madencis testified that in May 1984, after she
came to work, Piniat told her that the Union had at-
tempted to collect dues while she was on strike. Ms. Ma-
dencis claimed that Piniat said she intended to terminate
her union membership because of this conduct . Madencis
S' It is not clear whether these independent contractors were former
OFI employees
S* Madencis claimed that at some point , either in this call or later, she
told the three that GK was a nonunion company.
8r, The payroll records disclose that between 28 February 1984 and 17
July the number of former GFI employees exceeded the number of new
hires On 22 May to 12 June 1984, GK had 7 employees in the bargaining
unit, in the week of 3 July 1984 it had 10 employees , and by 10 July 1984
it had I I employees. In all those weeks the number of former employees
exceeded the new hires.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also claimed that a few weeks after her conversation
with Piniat, Marcopoulos , another employee , told her
that she had received a letter from the Union in which
the Union had made threats to her because they claimed
that she had worked for GF during the strike . 36 Accord-
ing to Madencis , Marcopoulos , subsequently , told her
that she had resigned her union membership . 37 Maden-
cis, initially , testified that Marcopoulos showed her a pe-
tition in May 1984 which stated that the employees
.,were not happy with Mr . Kotoros' services and that the
signatures below are people that feel he should be ousted
from the Union ." Madencis claimed that she recognized
the names of Piniat , Marcopoulos , Galanos, and Strim-
boulis but she could not recall whether there were any
other names . Subsequently , when it became evident that
Marcopoulos and Galanos were not hired until July
1984, Madencis testified that the petition incident did not
occur until July or August 1984. Madencis further testi-
fied that she could not recall whether she told Ms.
Goldin or Karabelas about these conversations with the
employees . However, she did recall that she photocopied
this petition and, at his request, she gave the petition to
Lippman, counsel for GF sometime in August or Sep-
tember 1984. The petition was never produced and the
employees were not called to testify about the incident.
Kotoros denied that he or any other union representative
received such a petition . Madencis did not claim that she
showed the petition to Karabelas , but Karabelas claimed
that she did show it to him but he could not recall exact-
ly what it said , it was something about overthrowing
Kotoros.
J. The Arbitration Issue
After the termination of the GFI employees on 20 Jan-
uary 1984, the employees began picketing with signs
which alleged that they had been locked out. Lippman
as counsel for GF and GFI called Kotoros to advise him
that the picketing was in violation of the Association
agreement . The Company then sought emergency arbi-
tration and the issue before the arbitrator was whether
the termination of the employees was lawful . Lippman
testified that impartial chairman enjoined the picketing
and set a date for a hearing for 7 February 1984 on the
issue of the validity of the termination . The hearing was
not held as scheduled . Lippman testified that he commu-
nicated with Kotoros and arranged a meeting for 7 Feb-
ruary 1984 in order to convince Kotoros that a bona fide
transaction had occurred between GFI and GK . In addi-
tion to Lippman and Jarblum , attorney for Karabelas,
William Feldman , Ms. Goldin , Karabelas, Kotoros, Simi-
diris, and Cammer, the attorney for the Union, were
present . Lippman claimed that before the meeting could
begin Karabelas and Kotoros had a heated exchange and
the meeting then disintegrated . Lippman recalled that
there was one meeting with the arbitrator during which
counsel outlined their positions , the union counsel re-
quested certain documents which Lippman agreed to
supply and the arbitration then was adjourned. During
36 Marcopoulos did not begin to work at 7th Avenue until some 2
months after the strike ended.
37 Neither employee was called to testify
the hearing in this case , the parties stipulated that no
formal decision was issued by the impartial arbitrator on
the issues pending in the instant case . The parties also
stipulated that after the industrywide strike neither party
requested that the arbitration be rescheduled . It also ap-
pears that the Union sent a written request in March
1984 for the documents which Lippman had agreed to
supply but it does not appear that these documents were
given to the Union.
II. DISCUSSION
A. Section 10(b)
It is the position of the counsel for the General Coun-
sel and the charging party that the unfair labor practices
occurred on 9 October 1984 when representatives of GK
unequivocally refused to bargain with the Union and,
therefore , the charge which was filed on 9 January 1985
was timely . Moreover , counsel contends that even if
GK's refusal to bargain had occurred more than 6
months prior to filing of the charge on 9 January 1985,
this would not foreclose a finding of a violation based on
the refusal to bargain by GK representatives on 9 Octo-
ber 1985 because the "Board had consistently held that
each refusal to bargain in itself constitutes an actionable
unfair labor practice." The counsel for the General
Counsel also claims that the amendment to the complaint
is not time barred because he is not alleging a new unfair
labor practice but is making "an additional corporation
responsible for providing a remedy for the unlawful acts
in which it was enmeshed by virtue of its alter ego rela-
tionship with GK."
GF and GK argue that all the evidence in the case re-
lates to events which occurred in January and February
1984 when GF decided to terminate its operations in the
fur industry and GK commenced its operations. It was at
that time , almost a year before the charge was filed, that
the Union knew that the Companies would not bargain
and if there was a violation it occurred at that point.
Counsel alleges that "these events are not evidentiary
nor do they shed light on events which occurred during
the limitation period but themselves constitute alleged
unfair labor practices upon which reliance may not be
had to support subsequent events." Further, GF and GK
contend that the theory of continuing violation on which
the General Counsel relies has been rejected by the Su-
preme Court and several circuit courts, including the
Second Circuit.
Section 10(b) of the Act states that, "no complaint
shall issue based on an unfair labor practice occurring
more than six months prior to the filing of the charges."
The Board has held that it is crucial in resolving the ap-
plicability of Section 10(b) to determine what was the
unfair labor practice . Thus, the Board has held, "It is the
refusal to execute and apply the agreement negotiated by
the multiemployer Association , not the purported with-
drawal from group bargaining which triggers the Section
10(b) limitation period ." Elevator Sales and Service, 278
NLRB 627 (1986). The Board also has stated that notice
that an unfair labor practice has been committed,
"whether actual or constructive must be clear and un-
GOLDIN-FELDMAN, INC.
equivocal , and . . . the burden of showing such notice is
on the party raising the affirmative defense of Section
10(b)." Strick Corp., 241 NLRB 210 fn. 1 (1979). The
courts also have held that Section 10(b) begins to run
when the party filing the charge "knows or has reason to
know that an unfair labor practice has occurred ." Stone
Boat Yard v. NLRB, 715 F.2d 441 (9th Cir. 1983).
If these principles are applied to the facts of this case
it becomes apparent that the arguments by GF and GK
on the issue of Section 10(b) are without merit . Thus, the
crux of the unfair labor practice was not GFI's discon-
tinuance of its business operations and the incorporation
of GK in January and February 1984, as counsel con-
tends, the unfair labor practice was the refusal to recog-
nize and bargain with the Union. GF had discontinued
its operations in the fur industry in 1980 and GFI then
was formed but the Union did not allege that those ac-
tions constituted an unfair labor practice because GFI
continued to recognize and bargain with the Union.
Similarly, in the instant case had the recognition of the
Union as the collective-bargaining representative contin-
ued, the Union would not have filed the unfair labor
practice charge.
Further, the second principle set forth above was not
met. Counsel cannot contend that the Union received un-
equivocal notice that the Companies would no longer
recognize the Union as the collective-bargaining repre-
sentative because of the discussions which were held in
January or February 1984. In Gerber & Hurley, 269
NLRB 856, 888 (1984), there were numerous discussions
between the union and the employer about whether a
particular employee was a member of the bargaining
unit . These discussions occurred 7 or 8 months before
the employer unequivocally told the union that it was
withdrawing recognition from the union as the employ-
ee's bargaining representative . The Board concluded that
these early discussions were insufficient to constitute un-
equivocal notice to the union that the employer was
withdrawing its recognition of the union as the employ-
ee's bargaining representative . In this case , when Fred
Goldin approached Kotoros in December 1983 he did
not tell him that he was withdrawing recognition, rather
he requested Kotoros' assistance with respect to a new
corporation which was to be formed by his daughter.
Karabelas' discussion in January and February 1984 with
the union representatives did not deal with the issue of
the withdrawal of recognition , rather he asked these rep-
resentatives to allow him to reduce the number of em-
ployees in the unit.
In fact, Karabelas ' discussions with Kotoros indicated
that he recognized the Union's right to be involved with
the size of the work force. Karabelas claimed that he had
these discussions with the union representatives about the
size of the work force to help him resolve whether he
would be a manufacturer or merely a jobber in the new
operation with Ms . Goldin. I do not credit that testimo-
ny. From the outset , the discussions concerned Karabe-
las' determination to reduce the size of the existing work
force from 25 to 9 or 10 employees . These discussions
did not deal with the establishment of a new work force.
In these circumstances , I do not find that these discus-
sions gave the Union the type of unequivocal notice re-
369
quired by the Board . To the contrary, it was reasonable
for the Union to assume , from these discussions, that the
only issue was the size of the work force. Furthermore,
neither Company notified the Union, in writing, that
they were withdrawing recognition of the Union as the
collective-bargaining representative . This failure was not
a mere oversight . I am convinced , from the testimony
and my observation of the witnesses, that a written noti-
fication was not sent because Evan Karabelas and Ann
Dee Goldin preferred to leave open the possibility of
continued recognition of the Union if the size of the
work force could be resolved.38
GF and GK concede that the Board law supports the
theory of a continuing unfair labor practice but they
argue that the view cannot be sustained by virtue of the
court holdings in Machinists Local 1424 (Bryan Mfg.) v.
NLRB, 362 U.S. 411 (1960); General Marine Transport
Co. v. NLRB, 619 F.2d 1980 (2d Cir. 1980); and NLRB v.
Preston H. Haskell Co., 616 F.2d 136 (5th Cir. 1980).
In Strong Roofing Co., 152 NLRB 9 (1965), an employ-
er initially refused to execute a contract some 8 or 9
months before the charge was filed and continued to
refuse to sign within the 6-month period before the
charge was filed. The Trial Examiner found that the
charge was not time barred by Section 10(b) and stated
that Bryan Mfg. Co., cited by counsel, was not applicable
to the facts of that case . The Board affirmed the Trial
Examiner 's decision and the Ninth Circuit granted en-
forcement and ruled , specifically, that Bryan Mfg. Co.,
was not controlling and that each refusal to execute the
agreement within the 10(b) period " in and of itself con-
stitutes , as a substantive matter, an unfair labor prac-
tice."39 The Board has continued to adhere to that posi-
tion . Elevator Sales, supra; Al Bryant, Inc., 260 NLRB
128 (1982); McCready & Sons, Inc., 195 NLRB 28 (1972).
Moreover , it should be noted that in Preston H. Has-
kell, cited by counsel, the court stated the following:
By contrast, this court has held that Section 10(b)
does not bar legal action when an employer repeat-
edly refuses to bargain and a complaint is filed
within six months of one such refusal , notwithstand-
ing the fact that more than six months passed be-
tween the earlier refusals to bargain and the filing
of the charge.
Further, in NLRB v. Hartman , 774 F.2d 1376 ( 1985),
the Ninth Circuit held that an employer's obligation to
bargain and to execute the contract was a continuing ob-
ligation and, therefore , each refusal to sign the contract
constituted an unfair labor practice . I realize that there
have been contrary views held by courts but to date it is
the position of the Board that each refusal to recognize
and bargain constitutes a violation and I am bound to
follow Board law. McCready & Son, supra . Thus, I con-
clude that even if there had been a refusal to bargain in
se These discussions about the size of the work force were ongoing
from January through August 1984. The fact that the Union attempted to
resolve the conflict refutes the claim that the Union had abandoned the
unit Joe Carroll Orchestras, 254 NLRB 1158 (1981)
99 NLRB v Strong, 386 F.2d 929 (9th Cir. 1968), reversed on other
grounds 393 U.S. 357 (1969)
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January and February 1984 this would not preclude the
finding of a violation in view of the fact that a refusal to
bargain occurred on 9 October 1984 , 3 months prior to
when the charge was filed . Moreover , it should be noted
that although there may be disagreements about when
the provisions of Section 10(b) are applicable , there can
be no dispute that Board law requires that the notice to a
union that an employer is refusing to recognize and bar-
gain with it must be unequivocal . In this case , the record
fails to establish that there was any unequivocal notice
until after 9 October 1984.
B. GF Contends No Valid Charge Was Filed
Against It
It is GF's position that it has been named as a "princi-
pal respondent and directly responsible for the unfair
labor practices" because it established GK "as a subordi-
nate instrument and disguised continuation ," notwith-
standing the fact that no valid charge was filed against it
alleging such a violation . As noted above, the unfair
labor practice was not the formation of GK, if there was
an unfair labor practice that occurred when Karabelas
and Ms . Goldin unequivocally refused to bargain with
the Union on 9 October 1984. The charge which was
filed against GK on 9 January 1985 was timely in rela-
tion to that conduct . The counsel for the General Coun-
sel did not allege a new unfair labor practice in the
amendment, rather he added GF "as a corporation re-
sponsible for providing a remedy for the unlawful acts in
which it was enmeshed by virtue of its alter ego relation-
ship with GK." If an alter ego , or single-employer rela-
tionship exists with reference to GF and GK , then serv-
ice of the charge filed on 9 October 1984 on GK would
be considered timely service on OF . Further, timely
service on GK would permit an amendment outside the
10(b) period to include GF as a party responsible to
remedy the alleged violations . Volk & Huxley, 280
NLRB 219 (1986); Key Coal Co., 240 NLRB 1013 (1979).
C. The Arbitration Issue
GF and GK contend that in United Technologies, 268
NLRB 557 (1984), the Board stated that it would require
the parties to use the contractual grievance -arbitration
machinery established in their collective-bargaining
agreement and exhaust that machinery before it would
entertain a petition for relief. GF and GK contend that
the Union has refused to use the arbitral process to re-
solve the dispute.
A considerable amount of the evidence on the issue of
arbitration was supplied by GFI. When GFI terminated
its employees, they picketed to protest that termination.
Thereafter , representatives of the Companies and the
Union met with the impartial chairman of the Associa-
tion and, according to Lippman , the counsel for the
Companies and the Union outlined their positions rela-
tive to these terminations and to the relationship , if any,
among the various corporations . During the proceeding,
Lippman agreed to supply certain documents to the
Union to support his contention that there had been an
arm's-length transaction among the respective Compa-
nies . Lippman testified that, thereafter, he requested that
the scheduled arbitration be held in abeyance while he
arranged a meeting of the parties in order to resolve the
conflict . The meeting was held but it was not successful.
The only other documentation with respect to this arbi-
tration establishes that in March 1984 the union attorney,
in order to prepare for the rescheduled arbitration meet-
ing on 20 March 1984 , again requested certain docu-
ments from the Companies to support their contention
that there had been a bona fide transaction . The record
fails to disclose that any representative of GFI, OF, or
GK responded to that request . There is also no evidence
that any representative of the corporations requested that
a further arbitration meeting be scheduled . Nor is there
evidence that any union representative refused to attend
any arbitration meeting . Contrary to the assertion made
by GF and GK , that the Union flagrantly defied national
policy relative to arbitration , the record discloses that if
there was a reluctance to use the arbitral process it arose
because GF and GK refused to allow that process to go
forward with the necessary documentation to support
their position. In United Technologies Corp., the Board
reaffirmed the principle that a respondent seeking defer-
ral must be willing to arbitrate the dispute . In this case,
the Companies ' failure to supply the necessary docu-
ments establishes that they were not willing to proceed
with the arbitration of this matter . In view of this con-
duct by GF and GK , it is rather late for the Companies
to raise the arbitration issue during this proceeding.40
D. The Alter Ego Issue
It is the position of counsel for GFI and GK that the
corporations are neither single-integrated operations nor
are they alter egos . Rather, they contend that the oper-
ations of GFI ceased because of the ill health of Fred
Goldin and William Feldman 's desire to retire. They also
contend that GK was formed solely because of Ann Dee
Goldin's desire to remain in the fur industry. Counsel
concedes that Fred Goldin assisted GK but they contend
that whatever assistance he gave arose from his desire to
help his daughter to succeed in business and this type of
family assistance does not establish that GFI and GK are
single-integrated enterprises or that GK is an alter ego of
GFI.
Counsel for the General Counsel and the Union assert
that Fred Goldin was instrumental in establishing GK
and that he did so to avoid his bargaining obligation with
the Union . They further assert that Goldin 's continued
involvement with GK refutes the assertion that the ar-
rangements between the two corporations was a bona
fide transaction.
In deciding whether one corporation is the alter ego of
another, it is necessary to determine whether there was a
true change in ownership and management or "merely a
disguised continuance of the old employer." Southport
Petroleum Co. v. NLRB, 315 U.S. 100 (1942). The Board
has stated that in deciding whether two facially inde-
pendent employers are alter egos it will consider wheth-
40 As stated , I do not find that the Union abandoned the arbitration
proceeding Therefore , cases cited by counsel on the issues of abandon-
ment by a union are not relevant to this case.
GOLDIN-FELDMAN, INC.
er the two enterprises have substantially identical man-
agement, business purposes , operation , equipment, cus-
tomers, supervision , and ownership . Advance Electric, 268
NLRB 1001, 1002 (1984); Denzil S. Alkire, 259 NLRB
1323 (1982), enf. denied 716 F.2d 1014 (4th Cir. 1983). A
further factor the Board considers is whether the original
company continues to maintain substantial control over
the alleged new business . NLRB v. Scott Printing Corp.,
612 F.2d 783-786 (3d Cir . 1979). And the Board has held
that a factor to be considered is whether the new corpo-
ration was formed to avoid the bargaining obligation of
the prior corporation . Fugazy Continental Corp., 265
NLRB 1301 (1982).
An examination of the record in this case convinces
me that there was no true change in ownership , except in
the technical sense, the whole scenario which created
GK was set in motion by Goldin. When Feldman re-
tired, Fred Goldin needed someone to assume the re-
sponsibility for the manufacturing end of the business
which had been Feldman 's responsibility . He first ap-
proached GFI's factory foreman about taking over the
GFI factory space and machinery to do subcontracting
work for GFI. When that approach was rejected he con-
tacted Karabelas , who he knew had the required manu-
facturing experience and he urged Karabelas to join with
his daughter to form GK. Karabelas did not agree to
enter into this new venture because of Ms. Goldin. He
entered into the venture because he knew , from conver-
sations with Fred Goldin, that Goldin would be involved
in the new corporation , although his name would not
appear on the books . It was Goldin 's prestige and con-
tacts and not those of Ms . Goldin which convinced Kar-
abelas to become a partner . From the outset , Goldin
demonstrated the extent of his interest in the new firm.
First, he sold a $10 million business to GK for the sum
of $126,000, the book value of the GFI machinery. Al-
though the record is replete with references by the Gol-
dins and Karabelas to the importance of the Goldin-
Feldman name, Goldin did not require any payment by
GK either for the goodwill or use of the name. Designer
labels purchased by GFI for sums in excess of $100,000
were given without compensation to GK . Goldin contin-
ued this kindly interest in the fortunes of the new corpo-
ration . He introduced Karabelas to the bank official with
whom he did business both on his own behalf and on the
behalf of GFI . When GK needed a line of credit Goldin
not only advised the bank that he would be a consultant
to GK but he also pledged his stock without which GK
could not have secured a needed line of credit . He con-
tinued this type of assistance for at least 2 years in order
to enable GK to continue its operations. At one point,
GK was allowed to use moneys collected from the sale
of GFI inventory as collateral for a line of credit. And
Fred Goldin 's involvement was not limited to financial
matters . He contacted GFI customers, and solicited their
business without advising them , directly, that his solicita-
tion was on behalf of GK , he traveled with Karabelas to
the Far East and introduced him to the right people, he
gave advice on designs , and he was present in the GK
showroom and at fairs as a "come on" to customers. Al-
though , Goldin claims that he extended this generous
treatment to the new corporation because of his affection
371
for his daughter, the record reflects that GK paid Goldin
significantly more moneys than was paid to either Ms.
Goldin or Karabelas who were the record partners of
the firm. It is rather strange for a consultant to be paid
more than the president and vice president of the firm.
Based on the facts set forth above, I do not credit that
there was a bona fide transaction between the two cor-
porations. Nor do I credit that the largesse which was
bestowed by Goldin on GK was due to his affection for
his daughter. It is evident that Goldin's generosity was
due to the fact that GK was merely a disguised continu-
ance of GFI. The only actual change in the two corpora-
tions was that Karabelas became responsible for the man-
ufacturing aspects of the business, an aspect of the busi-
ness in which Goldin had never been involved. In all
other aspects, Goldin continued to maintain substantial
control of the new business and to perform the same
duties for it that he had performed for GFI. The extent
of Karabelas' control over GK as compared to the con-
trol of the Goldins, can be quickly determined by an ex-
amination of the agreement entered into by Ms. Goldin
and Karabelas. According to that agreement, Ms. Goldin
would be entitled to the sole use of the name of Goldin-
Feldman, without any compensation to Karabelas, in the
event of a termination of the partnership. In addition,
Fred Goldin has the option to purchase Ms. Goldin's
shares, an option which is not open to Karabelas.41
Counsel for GFI and GK contend that under Board
law in order for an alter ego status to be established the
General Counsel must prove that the two corporations
have common ownership, common management,
common customers and business purposes, common
premises, equipment, and supervision. Counsel contends
that the General Counsel has failed to establish that such
a relationship exists between the two corporations.
There is no dispute about the following facts: (1) GK
operates from GFI premises, (2) Fred and Ann Dee
Goldin occupy the same physical offices on these prem-
ises which they occupied in their respective positions
with GFI, (3) when GFI was in business the manufactur-
ing portion of the business was performed on the 11th
floor42 and in-house sales were conducted on the 12th
floor and the same procedure is follwed by GK, (4) GK
uses the same machinery and equipment which had been
used by GFI, (5) the insurance policies of GFI were
transferred to GK, (6) the GF name is used by GK for
all its advertising and promotional purposes. There is
also no dispute that Fred Goldin has solicited business
for GK from major GFI customers and that he has been
physically present, with Ms. Goldin and Karabelas, at ex-
hibitions and fairs where the name of GFI is prominently
displayed. The record further establishes that both firms
41 Although the Goldins and Karabelas attempted to downplay the sig-
nificance of this ability to use the Goldin -Feldman mark , all their adver-
tising is directed to that name. It should also be noted that Ms. Goldin
was quick to state which names in the industry she considered to be of a
comparable stature with Goldin-Feldman . Finally , a further indication of
the importance of an established name can be seen in the efforts of Kara-
belas' brother to prevent Karabelas from using the name , Karabelas Furs.
42 Although the Companies contend that the manufacturing is per-
formed at Metropolitan , the record establishes that at least some manu-
facturing is performed on the 11th floor
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are engaged in the manufacture of fur coats for retail and
wholesale customers . Although , counsel for the Compa-
nies maintains that the customers are substantially differ-
ent an examination of the record fails to support that as-
sertion . Counsel for GFI and GK also contend that the
supervision in the two corporations is different . Howev-
er, the record reveals that insofar as the sales, clerical
and shipping employees are concerned , Ms. Goldin con-
tinues to exercise supervisory authority over them as she
did at GFI. The supervision of the production employ-
ees, which had been the responsibility of Feldman at
GFI, is now the responsibility of Karabelas and his as-
sistant . Although the person has changed , because Feld-
man retired , the concept remains the same , the person re-
sponsible for production is the supervisor of the produc-
tion employees.
Although Fred Goldin does not own shares in GK
and Ms . Goldin is not a shareholder of GFI, I do not
consider that fact to be significant . The Board has held
that common ownership of stock is not necessary to es-
tablish that an alter ego relationship exists . Fugazy Conti-
nental Corp., supra . The Board considers that the owner-
ship test has been met if members of the same family
have stock in the two corporations . Crawford Door Sales,
226 NLRB 1144 (1976); Mar-Kay Cartage , 277 NLRB
1335 (1985 ); I.M. Tanka Construction , 249 NLRB 238,
241 fn . 29 (1980), enfd . 675 F.2d 1029 (9th Cir . 1982). In
the instant case, the record establishes that Fred Goldin
owned 75 percent of the stock of GFI and Ms . Goldin
owns 50 percent of the stock of GK.
There is no question that Goldin was the central force
in GFI . He was considered the "prince" in the industry.
He had over 40 years of experience in the business and it
was due to his reputation that major companies were
customers of GFI . It was his knowledge of what designs
would sell, what the customers wanted , and who to do
business with in the Far East that made GFI a successful
business. Although Ms. Goldin had some retail experi-
ence and Karabelas was knowledgeable about produc-
tion, they both lacked overall management experience. It
was this management knowledge and business experience
which Goldin supplied to GK and for which he was
paid a greater compensation than either of the partners
of the firm. Both Ms. Goldin and Karabelas admit that
they constantly requested Goldin's advice on all matters
pertaining to the GK operations and they continued to
do so at the time of the hearing . In these circumstances,
I conclude that Fred Goldin played a dominant role in
the management affairs of GK as he had in the manage-
ment affairs of GFI. Rogers Cleaning Contractors, 277
NLRB 482 (1985).
In support of the Companies' position that the corpo-
rations are not alter egos, counsel has cited several cases.
In Joe Costa Trucking Co., 238 NLRB 1516 (1979), enfd.
sub nom . NLRB v. Edjo, Inc., 631 F.2d 605 (9th Cir.
1980), an alter ego situation was not found by the Board,
although the Board did find that the new corporation
was a successor to the old corporation . In concluding
that an alter ego situation did not exist, the Board noted
that Joe Costa removed himself totally, not only from
the management of the company, but even from the
premises . It is obvious that such a situation does not exist
in this case . Rather, the presence of Goldin was high-
lighted because his presence was important to GK. In
Friederich Truck Service, 259 NLRB 1294 (1982), the
Board concluded that an alter ego situation did not exist
because it found that the moneys paid for leases and
equipment were reasonable and legitimate and there was
no indication that the payments were below the true
market value of the leases or equipment . In this case,
there was no payment, reasonable or otherwise , for the
designer leases, or for the goodwill or name of GFI.
Similarly, in Pinter Bros., 263 NLRB 723 (1980), the
Board did not find an alter ego situation for several rea-
sons including the fact that the management of the two
corporations was different and the further fact that the
sons who established the new business had years of expe-
rience in the trucking business . In this case , Fred Goldin
is a major figure in the management of GK as he had
been in GF and GFI and his daughter, unlike the sons in
Pinter had limited experience in the fur industry when
GK was formed . Finally , in L & J Equipment, 274
NLRB 20 (1985), the administrative law judge, whose
decision was adopted by the Board , did not find an alter
ego situation , although , he did find that there had been
debt forgiveness and other benefits extended between the
corporations . The administrative law judge reached this
conclusion because he found that after the initial forma-
tion the two corporations were physically and adminis-
tratively apart, there was no common supervision or
management , and no interchange of employees. These
facts are not present in this case.
The Board in determining whether an alter ego rela-
tionship exists, also takes into consideration whether the
new corporation was established to avoid the obligation
of the old corporation to bargain with the union . In this
case, the record discloses that after Baron and Hennessy
left GFI , Fred Goldin sought to reduce the number of
the employees employed in the manufacturing process
because there had been a 50-percent reduction of capital.
The arbitrator ruled that Goldin could terminate seven
employees. However, the Union commenced picketing
and Goldin 's effort to terminate this picketing was unsuc-
cessful and the seven employees were reinstated. Thus,
the Union , effectively , blocked Goldin's efforts to reduce
the number of manufacturing employees . In December
1983, Goldin explained to Leo Nikides that the costs of
manufacturing were too high due to the Union , that he
intended to go out of the manufacturing part of the busi-
ness and he asked if Nikides would be interested in doing
subcontracting work for GFI . Nikides rejected the offer.
Nikides testified that in January 1984 Goldin also told
him that his daughter was going into business but that
the new firm could not afford union labor . On 10 Janu-
ary 1984, Karabelas urged the president of the Union to
permit him to reduce the number of employees in the
unit and to allow him to select the employees he wanted.
These requests were rejected . Both Karabelas and Ma-
dencis repeatedly told prospective employees that the
new corporation would not be union . Further, both
Goldin and Karabelas expressed the opinion that the
union employees did not work and were paid too much
money . I am convinced from the above facts and the
GOLDIN-FELDMAN, INC. 373
sham agreement entered between the two corporations
that GK was formed to avoid Goldin's obligation to bar-
gain with the Union.43
Accordingly, I find that the corporations had common
purposes, premises, equipment, management , customers,
supervision and that GK was formed to avoid bargaining
with the Union. In these circumstances, I find that an
alter ego relationship exists.44
E. The Successor Issue
The counsel for the General Counsel contends that if
GK is not considered an alter ego of GF and GFI then
it should be considered a successor. GFI and GF con-
tend that GK is not a successor to GF and GFI because
it was formed by two entirely new owners and these
owners "incorporated such substantial changes in oper-
ations, methods and work force that it cannot be said
that there was a substantial continuity of identity of the
business enterprise."
The traditional test for determining successorship is
whether there is a substantial continuity in the employing
enterprise. NLRB v. Burns Security Services, 406 U.S. 272,
279-281 (1972). The factors used to make a successor de-
termination include: (1) the nature of the business oper-
ations, (2) whether the plant and work force are the
same, (3) the similarity of jobs, working conditions, and
supervisory personnel, (4) whether the machinery, equip-
ment and methods of production are the same and, (5)
whether the product is the same.45 Fall River Dyeing
Corp., 272 NLRB 839, 840 (1984); Grice Corp., 265
NLRB 1344, 1345 (1982). Although all circumstances are
considered in making a successorship determination, the
key factor is whether a majority of the new employer's
bargaining unit employees were members of the prede-
cessor's unit at or near the time it ceased its operations.
Pacific Hide & Fur Depot v. NLRB, 533 F.2d 609, 612
(9th Cir. 1977); Stewart Chevrolet, 262 NLRB 362 fn. 5
(1982).
Many of the factors that determine whether one cor-
poration is the alter ego of another are the same factors
which determine whether a new corporation is a succes-
sor to another corporation. As noted above in this case,
the two corporations have common management , equip-
ment , customers, supervision and business purposes. GFI
49 Although, I have found that union animus was the motivation for
the formation of GK, I note that the lack of such a motivation would not
mean that an alter ego situation did not exist . Hiysota Fuel Co., 280
NLRB 763 (1986).
44 The counsel for the General Counsel argues that the relationship of
the attorneys for the two corporations is also evidence of the alter ego
relationship . The record does disclose that Lippman was counsel for OF
and GFI for many years and that , thereafter, he became counsel for GK
His firm still represents GK. During the hearing, Carre appeared as coun-
sel for OK while Lippman represented GFI and OF. Although Carre
claimed that he was in his own practice , the record discloses that he has
the same business address as Lippman and that the correspondence that
he sent to Region 2 bears Lippman's letterhead . There did not seem to be
an arm 's-length relationship between counsel during the hearing.
45 Counsel for GFI and GK submitted a detailed analysis of various
decisions by the Supreme Court on the issue of successorship . After an
examination of that analysis it does not appear that there is any conflict
between the factors I have stated were important factors to consider and
what counsel contends are the important factors to decide the issue of
successorship.
and GK contend there has been a major change in the
operations of the two corporations because the retail
rather than wholesale sales, now constitutes a major por-
tion of the business of GK. However, Fred Goldin testi-
fied that Bullocks, a wholesale customer of GFI, was
also a major customer of GK and its purchases were a
significant part of GK's business. Assuming, however,
that a greater percentage of GK's business did come
from retail rather than wholesale sales, that difference is
not of such a magnitude to be given controlling effect.
Indianapolis Mack Sales, 272 NLRB 690, 694 (1984).
Counsel further contends that the manufacturing meth-
ods of the two corporations have been changed due to
certain innovations made by Karabelas. However, Mi-
chael Strimboulis, who worked for GFI and now works
for GK, credibly testified that there have been no
changes in the methods of production. It is true that
some employees now are paid on the basis of piece rate
and that employees do not have the same holidays or va-
cations that they had under the union contract. Howev-
er, these changes arose because GK refused to bargain
with the Union about the employees' conditions of em-
ployment and did not arise from any change in oper-
ations.
Counsel for GFI and GK also contend that its manu-
facturing work is now performed by Metropolitan at a
different location and this fact establishes that there has
been a significant change in the method of operation
used by GK from the method used by GFI. The record
fails to support that contention. The bulk of GFI' s manu-
facturing work was performed on GFI's premises at the
7th Ave. location. However, GFI did use subcontractors
for some of its production work, and in fact, Karabelas
was one of the subcontractors used by GFI. GFI and
GK do not contend that the employees of those subcon-
tractors were employees of GFI or part of CFI's bar-
gaining unit. Further, Karabelas admitted the Metropoli-
tan employees were not considered employees of Kara-
belas Furs during the year that Metropolitan performed
work for that company.46 Nor were Metropolitan em-
ployees considered part of GFI's bargaining unit in Janu-
ary 1984 when Metropolitan performed work for GFI.
As I noted previously, the existence of the Metropolitan
operation was not mentioned by counsel during his open-
ing statement , nor did any representative of GK mention
Metropolitan to a union representative during any meet-
ing. I am convinced that Metropolitan was not men-
tioned because it was not considered an integral part of
GK's operation. Metropolitan performed some manufac-
turing work for GK as did the other independent con-
tractors used by Karabelas during the period when the
industrywide strike was in progress. There was no con-
tention that these independent contractors or their em-
ployees were part of GK's bargaining unit. Moreover,
the Board has held that a single-plant unit is presump-
tively appropriate and the party who seeks to overcome
this presumption "must be able to show that the day-to-
day interests of the employees at the location have
46 During that year Karabelas was constantly at the Metropolitan
premises and was responsible for that operation.
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
merged with those of the employees at the other loca-
tion ." Penn Color, 249 NLRB 1117, 1119 (1980 ). In this
case there is no evidence that the interests of the em-
ployees of Metropolitan merged with the interests of the
employees of GK. The Metropolitan employees do not
appear on the GK payroll , and there is no evidence of
interchange between the two groups.
There was no hiatus between the cessation of business
by GFI and the commencement of business by GK.
Business continued at the old stand with all of the GFI
sales, clerical and shipping employees transferred to the
GK payroll . Thus, of the 15 employees on the payroll of
GK on 28 February 1984, the first week that GK was
officially in business , 14 of the employees were former
GFI employees and of the 15 employees , 4 were former
GFI unit employees and 1 employee was a new hire.
From 28 February through 17 July 1984 the number of
former unit employees substantially exceeded the number
of new hires and in fact by 17 July 1984 there were
seven former unit employees and three new hires. Coun-
sel for GK contends that it did not have a representative
complement of its employees until 24 July 1984 and on
that date there were six former unit employees and six
new hires and, therefore, the Union did not represent a
majority of the employees. On the issue of when an em-
ployer has a representative complement of its employees
the Board has stated that the correct test is whether the
jobs or job classification designated for the operation in-
volved are filled or substantially filled and the operation
is in normal or substantially normal production. Hayes
Coal Co., 197 NLRB 1162, 1163 (1972). The record re-
veals that from 22 May to 12 June 1984 GK had 7 em-
ployees, from 19 June 1984 to 26 June 1984 it had 8 em-
ployees, on 3 July 1984 it had 10 employees and by 10
July 1984 it had 11 employees , and that in each of those
weeks the number of former unit employees exceeded
the number of new hires . In view of the Board's test
stated above, I conclude that GK had a representative
complement of its employees from at least 19 June 1984
and that at all times the Union represented the majority
of those employees . Based on the above , I conclude that
GK is a successor to GFI and that it had an obligation
to recognize and bargain with the Union . Lockheed Engi-
neering Co., 271 NLRB 119 ( 1984).
F. The Good-Faith Doubt
Counsel for GK claims that Karabelas and Goldin had
a good-faith doubt as to the Union 's majority status. The
record fails to support that assertion.
The Board has held that is incumbent on an employer
to establish , affirmatively , either that the union actually
lost its majority status or that its alleged good-faith
doubt was based on objective considerations as distin-
guished from the alleged subjective reactions of manage-
ment . Lockheed Engineering Co., supra. In this case, GK
failed totally to establish either that the Union had lost
its majority status or that its alleged good -faith doubt
was based on objective considerations . Karabelas and
Goldin did not testify that they were told by any em-
ployee that they did not want to be represented by the
Union. The only testimony concerning the alleged atti-
tude of the employees toward the Union was given by
Madencis . An examination of that testimony establishes
that Ms. Madencis was a less than truthful witness. The
employees were not called to testify . Madencis first testi-
fied that in about May 1984 an employee , Marcopoulos,
showed her a petition and asked her to sign it. She
claimed that there were four names on that petition, in-
cluding Marcopoulos ' name and the name of an employ-
ee, Galanos . When it was called to her attention that
these employees were not hired until July 1984, Maden-
cis stated that the incident might have occurred in July
1984. According to Madencis , the petition did not state
that the employees wanted to resign from the Union.
Rather, it stated that the union members who signed the
petition were dissatisfied with Kotoros as president of
the Union . Madencis claimed that she did not tell either
Karabelas or Goldin about this incident . However, some-
time in August or September 1984,47 Lippman asked for
the petition and she gave it to him at that time . Karabe-
las recalled that the petition said something to the effect
that the employees wanted to overthrow Kotoros. Lipp-
man testified that Madencis gave him the petition some-
time around 9 October, after GK received the Union's
demand letter and that the petition stated that the em-
ployees were dissatisfied with the way Kotoros handled
the strike . The petition was not produced. Madencis also
testified that two employees told her that they had re-
signed from the Union but she could not recall specifical-
ly when this occurred and, therefore , the number of em-
ployees in the unit at the time of these alleged conversa-
tions is unknown . The employees were not called to tes-
tify. Based on this record, it is evident that GK had no
basis for its alleged good -faith doubt.
I find that GK is the alter ego of GF and GFI and a
successor to those corporations and that as such it was
obligated to recognize and bargain with the Union and
that it has failed to do so in violation of Section 8(a)(5)
and (1) of the Act. The evidence in this record also es-
tablishes that GF and GFI were part of the multiemploy-
er Association , that 15 December 1983 was the date set
for negotiations for a new collective-bargaining agree-
ment, and that GF and GFI did not notify the Union in
writing before that date that it was withdrawing from
the multiemployer employer Association.48 It appears, in
these circumstances , that GF and GFI did not withdraw
timely from the multiemployer Association and, there-
fore, GK as the alter ego remains a member of the Asso-
ciation and party to the Association contract . I.M. Tanka
Construction , Inc., supra.
CONCLUSIONS OF LAW
1. Goldin-Feldman , Inc., Goldin-Feldman Internation-
al, Inc. and its successor and alter ego Goldin -Karabelas,
Inc., hereinafter referred to as OF , GFI and GK, are
47 It is unclear from the record how Lippman heard about the petition
48 The unit described in the Association contract includes all employ-
ees who do matching (fur cutting of garments or trimming) cutting, nail-
ing, glazing , ironing , handsewing , stripping, finishing , examining , taping,
staying stapling , stretching , steaming, and inside sales personnel whose
primary function is showroom selling, salesman , designers , patternmakers,
shipping clerks , porters , pickup and deliverymen, and floor walkers.
GOLDIN-FELDMAN, INC. 375
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 1, FLM-FJC, United Food and Commercial
Workers International Union , AFL-CIO (Union) is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The appropriate unit for purposes of collective bar-
gaining is set out in the Associated Fur Manufacturers,
Inc. (Association) collective-bargaining agreement and in
footnote 48.
4. At all times material, and continuing to date, the
Union is, and has been the exclusive representative for
purposes of collective bargaining of the employees in the
unit described above.
5. At all times material herein , GK is and has been an
alter ego of GF and GFI and a successor to those corpo-
rations and since on or about 19 June 1984, has em-
ployed a representative complement of employees in the
unit described above in paragraph 3.
6. Since on or about 3 July 1984 , and continuing there-
after, the Union has made valid demands for bargaining
which GK rejected on 9 October 1984 and which it con-
tinues to reject.
7. At all times material herein, GK has been a member
of the Association and bound to the terms of the collec-
tive-bargaining agreement in existence between the Asso-
ciation and the Union covering the employees described
above in paragraph 3.
8. By failing and refusing to abide by the terms of the
collective-bargaining agreement described above in para-
graph 7, and by failing to recognize and bargain with the
Union , GK has violated Section 8(a)(5) and (1) of the
Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that OF, GFI, and GK engaged in the
unfair labor practices described above, I shall recom-
mend that they cease and desist therefrom and take cer-
tain affirmative actions designed to effectuate the policies
of the Act. I shall recommend that the corporations rec-
ognize and bargain with the Union upon request . I shall
further recommend that GFI, OF, and GK comply with
the terms and conditions of the collective-bargaining
agreement in existence between the Union and the Asso-
ciation and that they make whole the employees in the
unit described above for any loss of earnings or other
benefits which they may have suffered from 3 July 1984
and continuing thereafter with interest thereon in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
( 1950), and Florida Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication.]