Ski Craft Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1978

237 N.L.R.B. 122 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ski Craft Sales Corp., the alter ego of or successor to
Horowitz Bros. Mfg. Corp. and Sol Horowitz and
Snow Suits, Skiwear, Leggings, Infants and Novelty
Sportswear Union, Local 105, International Ladies'
Garment Workers' Union. Case 2 CA 14552
July 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING xNI) MtIMBIRS PItNII.O
ANI) TRUt: SI)AI t
On March 31, 1978, Administrative Law Judge Al-
mira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge I and
to adopt her recommended Order, as modified
herein.
The Administrative Law Judge, citing H. S.
Brooks Electric, Inc., K &c F Electric Co., Inc.. and
Waldemar Nikolai, their (agent, 233 NL.RB 889 (1977),
recommended that Sol Horowitz not be held individ-
ually liable for any monetary remedy. We find merit
in the General Counsel's exception thereto. In H. S.
Brooks the individual was named in the complaint as
an agent of the corporations involved and not as a
separate respondent. Here, however, Sol Horowitz
was named individually as a Respondent. At the rele-
vant time Sol Horowitz solely owned, managed, and
controlled the corporations involved: he made the
decision to deactivate Horowitz Bros. Mfg. Corp.
and to start manufacturing by Ski Craft Sales Corp.:
and he personally refused to bargain with the Union.
In these circumstances, we find that it is appropriate
to hold Sol Horowitz individually responsible, to-
gether with the corporation, to comply with all the
provisions of our Order remedying the unfair labor
practices found herein. See Ogle Protection Service.
Inc., and James L. Ogle, 149 NLRB 545, fn. 1 (1964),
enfd. in relevant part 375 F.2d 497 (C.A. 6, 1967):
and the supplemental backpay decision, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (C'.A. 6, 1971). We
shall, accordingly, modify the recommended Order
of the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondents, Ski
Craft Sales Corp.. New York, New York, its officers,
agents, successors, and assigns, and Sol Horowitz,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is sub-
stituted for that of the Administrative Law Judge.
W'hile ue Igrce .ith ilhe ldmninistrative Law Judge's statement that Ski
(irafl Sales ( erp is hound hb the Ma', 28. 1976, Association local 105
agreillelcit if it is Ihe aiter eg of litror) itz Bros. Mfg (Corp. we disagree
with her Iiatement that Ski ( raft uould he hound bh that agreement if it
,ere the s\iiyC o.er of I Tor1ull1
APPENDIX
Nol il i To EMPI.OYit-iS
Pos I tD BY ORI)ER 0: TItf
N IIONxI LABOR Ri.iI.AI IONS BOARD
An Agency of the United States Government
Wt xwil N[oi refuse to recognize and bargain
with Snow Suits, Skiwear, Leggings, Infants and
Novelty Sportswear Union, Local 105, Interna-
tional Ladies' Garment Workers' Union, as the
exclusive collective-bargaining representative of
our employees in the following appropriate unit:
All full-time and regular part-time operators,
machine pressors, under pressors, finishers,
cutters, markers, graders, floor workers and
shipping clerks, excluding office clerical em-
ployees, guards, and supervisors as defined in
Section 2(11) of the Act.
Wt wii.i Noi refuse or fail to honor and apply
the terms and conditions of the 1976 79 collec-
tive-bargaining agreement between the aforesaid
Union and Infants, Children's and Sportswear
Association, Inc.
WtF WILIt NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the National Labor Relations Act, as amended.
Wii wi.l, immediately recognize and, upon re-
quest, bargain collectively in good faith with
Snow Suits. Skiwear, Leggings, Infants and
Novelty Sportswear Union, Local 105, Interna-
tional Ladies' Garment Workers' Union, as the
exclusive collective-bargaining representative of
all our employees in the above-described appro-
priate unit.
Wli wl.l. honor and apply all the terms and
237 NLRB No. 15
122
SKI CRAFT SALES CORP.
conditions of the 1976-79 collective-bargaining
agreement between Infants. Children's and
Sportswear Association. Inc.. and the aforesaid
Union, retroactive to June 1, 1976.
Wte wll.L pay to the Union any and all
amounts due in health and welfare. pension, an-
nuity, and vacation fund. and all other fund
payments required by the aforesaid collective-
bargaining agreement for all unit emplos ees em-
ployed since June I, 1976, with interest.
WFe Wt.i. pay to all employees working the ap-
propriate unit since June 1, 1976, and who re-
ceived less pay than provided by the aforesaid
collective-bargaining agreement. the difference
in pay each such employee actuallh received and
that which each would have been paid if we had
complied with the provisions of said collective-
bargaining agreement, with interest.
SKI CRAFI SAItS CO()I'
DECISION
STATEMENT OF iHi C ASt
AtMIRA ABHOR STEVF-NSsOi. Administrative Law JudCe:
This case was heard in New York, New York. on October
26 and 27. 1977. The charge was filed October 14, and
served on the Respondent October 15. 1976: the complaint
was issued June 29, 1977. The Respondent dulN filed an
answer to the complaint. The complaint and the answer
were amended at the hearing.
The issues are whether or not Ski Craft Sales Corp. is the
alter ego, or, in the alternative, the successor, of Horowitz
Bros. Mfg. Corp.; and whether or not Ski Craft Sales Corp.
violated Section 8(a)(5) of the National Labor Relations
Act, as amended, by refusing, since October 1. 1976, to
recognize the Union as the exclusive representative of its
employees in an appropriate unit, and by refusing to be
bound by a collective-bargaining agreement entered into
May 28. 1976. by the Union and Infants, Children's and
Sportswear Association, Inc., of which Horowitz Bros.
Mfg. Corp. was a member.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the oral arguments presented by all the parties and the
briefs filed by the Respondent and the General Counsel. I
make the following:
FINDINGS F0 FACt 4)ND C()N('I SIONS OF L 4
I J RISDIC L ION
Ski Craft Sales Corp. and Horowitz Bros. Mfg. Corp. are
separate New York corporations engaged. at 152 West 25th
Street, New York City, in the manufacture, sale, and distri-
bution of children's apparel and related products. During
the past year, Ski Craft Sales Corp. and Horowitz Bros.
Mfg. Corp. sold products valued in excess of $50,(000 which
were shipped directly to States other than New York. The
answer admits. and I find, that Ski ('raft Sales Corp. and
Hotrowitz Bros. Mfg. Corp.. and each of them, are em-
plocirs cnfgaged in commerce within the meaning of Sec-
tion 2(2). (6), and (7) of the Act.
II i HRK ()OR(iANIZAI ION
TIhe Union is a labor organization within the meaning of
Section 2(5) of the Act.
I1I I Ni IR L.B()R O 'Ra P tli( S
A. Seq'uene of ELvents
Horowitz Bros. Mfg. C'orp. was incorporated in New
York State in 1956. Two brothers. Sol and Bernard 1loro-
witz, were the sole stockholders, each owning 50 percent of
the stock. Ilhey were also the sole officers and directors of
the corporation. In 1965. Ski C'raft Sales Corp. was orga-
nized b\ the two brothers and they shared equally the
stock, offices, and directorships. Both corporations are still
in existence.
Horowitz Bros. was located in three adjacent connected
lofts at 138X. 146. and 152 West 25th Street, New York CitN,
where it manufactured popular-priced children's pants and
skirts under the trade name Ski Craft Mfg. CompanN (a
copartnership consisting of Sol and Bernard Hlorowitz);
Bernard Horowitz was in charge of that operation. Ski
(Craft Sales ('orp. occupied a showroom at 112 West 34th
Street, where it engaged in selling the garments manufac-
tured bN Horowitz Bros.; Sol Horowitz was in charge of
the sales operation. 'he two corporations used the same
accountant. lawer, and bank. Ski ('raft Sales Corp. re-
ceived the revenues from all sales, and Horowitz Bros. paid
for all production labor and materials. At the peak of their
operations, 135 to 145 einploxees were engaged in produc-
ing 30 to 40 different st5les of garments, and gross sales
amounted to approximately $4 million from department
stores and kiddie and specialty shops.
Although Ski Craft Sales Corp. has never been a member
of Infants. Children's and Sportswear Association, Inc..
and its showroom employees were never covered by a col-
lective-bargaining agreement. Horowitz Bros. has been a
member of the Association since before its incorporation in
1956. The Association represented Horowitz Bros. in bar-
gaining with the Charging Party Union for its production
emploNees.' The complaint alleges, and the answer admits,
that on September 19. 1973. the Association, on behalf of
its members, entered into a collective-bargaining agree-
ment with Local 105. effective from June 1, 1973, until
May 31, 1976, and that Horowitz Bros.' production em-
plovees were covered by that agreement.' Horowitz Bros.
and Local 1(5 had a stable bargaining history of more than
I c mp c nlii .ailc eI t,2 ; cr dm itIes fnd [ finda tha Ih, e filliv.l ing
hsil .n,] Cl Il l.lcl unit s .ppr.prllle A11 full- imn .ind regular parl-tlime
pcr.ltr. (ll.a c lill preC.lt ulldcl pre scll . finishers. cutters. mlarker.
.radet,. [l,-,,l ~wkep., aind hippmn clerks . ekludiny olfice clericall emploc
cc>. lird., andi uIcris-r. i, defined in Sc, 211 1l of the Acl
' Allhougqh AAnwl. l la[ lcl2dL aes (Jdrtlclll Cu'ters' t nlo>n. Local 10.
I (, \\ t , ippc.ar. ,.,. t, ha..c hccn ., parts to that aircemerne.l IL O 10
C,.rifymie.]
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 years, during which only one grievance went as far as
arbitration, and all fringe-benefit contribution arrears were
paid in time to avoid penalties.
In February 1974, Bernard Horowitz died and his wife
succeeded to his interest in the corporations. Sol Horowitz
was unsuccessful in his attempts to acquire a competent
director of manufacturing to replace his brother, and he
had to direct both sales and production. As Sol Horowitz
was inexperienced and ineffective in the latter role, and as
performing both jobs put too great a burden on him, busi-
ness began to decline, particularly with the department
stores, because he was unable to spend the necessary
amount of time in the showroom. By September 1975 the
complement dropped to 44-48 employees. Sol Horowitz
credibly testified that he decided, in December 1975, to
give up the business because he was not able physically
and mentally to stand the strain. Unable to find a buyer for
the operation as a going concern, he reluctantly began to
manufacture garments for the spring season from piece
goods and cut material on hand.
On December 30. 1975. Local 105 notified the Associa-
tion that the collective-bargaining agreement was due to
expire May 31, 1976, and requested negotiation of a new
agreement. Shortly thereafter, Local 105 informed the As-
sociation that its demands "would be based on what the
dress union was requesting, that we would watch the nego-
tiations of the dress union to see what their demands were,
so that our demands could be on the same basis." The new
Dress Joint Board agreement went into effect in February
1976.
On March 10, 1976, there was on the Ski Craft Sales
Corp. payroll (in addition to Sol Horowitz and his wife,
Selma, and Bernard Horowitz' widow, Ruth), one employ-
ee, a bookkeeper, Anna Gultz. The showroom was then
closed down. As of March 31, 1976, there were a total of 28
employees on the Horowitz Bros. payroll, including the
three Horowitzes. Horowitz Bros. terminated manufactur-
ing operations, and thereafter engaged chiefly in selling off
its inventory of finished products and piece goods. Al-
though notified by the Association of membership meet-
ings to discuss forthcoming negotiations with the Union,
Sol Horowitz did not attend. Around this same time, Local
105 Business Agent Israel Schoenwald visited Sol Horowitz
and discussed the upcoming negotiations with him, and Sol
Horowitz testified that he was well aware that substantial
increases would be demanded, and that w ages and benefits
would be higher in the new contract.
Local 105's first proposals were formally presented to
the Association in writing on April 5. 1976.3 The same day,
April 5, the Association addressed a letter to Local 105,
which received it a day or two later, informing the Union
that Horowitz Bros. was out of business. On April 8. 1976,
Sol Horowitz dispatched a written message to Local 105,
with a copy to the Association, from Horowitz Bros. Mfg.
Corp. stating:
is not referred to in the complaint and took no part i this proceedilil No
issue is presented with respect to that UInion
I find it was these proposals to which l.,oca.l 11)5's nmanaiger. lien Ors Prl-
stein, referred when he testified that the t nion's first formall demiands . re
made in March 1976.
We are closing down our operations and ceasing to
function. Most of our employees were laid off March
19. 1976. There are a few who are still with us to wind
up the operation and they will be finished Friday
April 9. 1976. Thank you.
In April. Sol Horowitz purchased Ruth Horowitz' share of
the business.
On April 21, 1976. there were seven employees on the
Horowitz Bros. payroll: cutter John Adamo: floorworker
C(arlos Gutierrez; former Ski Craft Sales Corp. employees
Andria Evans and Anna Gultz: all-around handyman St.
Julian Hardy: salesman Morris Dworkin, apparently also a
former Ski Craft Sales Corp. employee; and Selma Horo-
witz. There were five employees, cutter John Adamo, one
James DeRosa, floorworker Gutierrez, bookkeeper Anna
Gultz. and Selma Horowitz. on the May 5, 12, 15, and 26
Horowitz Bros. payrolls.
On Mav 7. 1976. Sol Horowitz addressed a written mes-
sage to the Association from Horowitz Bros. Mfg. Corp., as
follows:
We hope that you have considered us as a member
who has resigned as per our letter to you of April 8,
1976. We have stopped operating as of about March
19. 1976. Copies of this letter were sent to Local 105,
ILIGWIU and the association on April 8, 1976.
The April 8 letter referred to apparently was the one of that
date addressed to Local 105 with a copy of the Assocation,
set forth above.
On May 28. 1976. the Union and the Association en-
tered into a new collective-bargaining agreement effective
from June 1. 1976. until May 31, 1979.
On June 1, 1976. Madewell Sportswear Contractors, Inc.
took over Horowitz Bros.' leases of 138 and 146 West 25th
Street, and purchased over 90 pieces of its machinery and
also other equipment. Sol Horowitz renewed the lease on
152 West 25th Street for 2-1/2 years in the name of Ski
Craft Sales Corp., in the hope that Madewell would even-
tually take that space also. and with the intent of going out
of business completely. On June 1, Ski Craft Sales Corp.
took over 152 West 25th Street, and moved all the remain-
ing Horowitz Bros. inventory into that location. About this
time, cutter John Adamo went into business for himself as
a contractor, and Ski Craft Sales Corp. paid him to sew
some of its fabric into garments which Ski Craft added to
its inventory and eventually sold.
On June 2. there were three people listed as employed by
Horowitz Bros.: Anna Gultz. Carlos Gutierrez, and Selma
Horowitz. From June 9 until the end of August, there were
two employees, Gutierrez and Selma Horowitz, who were
engaged in liquidating inventory. Horowitz Bros. Mfg.
Corp. has not transacted any business since August 31,
1976. although. as stated, it is still in existence.
Meanwhile, Madewell Sportswear Contractors, Inc., was
never able to get into production, and during late July it
closed down.
Toward the end of August or the beginning of Septem-
ber, Sol Horowitz "activated" Ski Craft Sales Corp. and
began producing one single type of garment at the 152
West 25th location, just to be occupied and have some-
124
SKI ('RAFT SALES CORP
thing to do. He bought back approximaltel nine sew xing
machines. a spreading machine. a cutting table. work-
bench, and miscellaneous hampers and workbaskets from
Madewell, and he placed orders for additional sewing ma-
chines, cutting machines, and strip cutters with other
sources, all of which were comparable to the machines for-
merly used by Horowitz Bros. Mfg. C'orp. lie also pur-
chased more fabric to add to that remaining from the Ilor-
owitz Bros. inventory. By September 8, 1976. Ski ('raft
Sales Corp. had nine employees. consisting of cutters, sew-
ing-machine operators, and floorworkers. all of whorm had
worked for Horowitz Bros. Mfg. Corp.
On October I. 1976, Local 105 Business Agent Israel
Schoenwald and two other business agents sisited Sol Ito-
rowitz at 152 West 25th Street, and Shoenwald demanded
recognition: Horowitz replied that his brother had died
and Schoenwald should make believe Sol Horowitz had
died also. Schoenwald told Horowitz. "as lone as you're in
the apparel industry. you belong to a union.'' or words to
that effect.4 By June 22. 1977. Ski Craft Sales Corp. had 10
employees. and by September 21. 1977, there vere II cem-
ployees. including Selma Horowitz. All had previoustl
been employed by Horowitz Bros. Mfg. ('orp.. but under
Ski Craft they do not receive the wages and benefits pro-
vided in the current Local 105 Association Contract. Ski
Craft Sales Corp. produces 10 or 11 different sitles of
children's pants, which are sold to kiddie and specialth
shops, some of which were customers of Horowitz Bros.
No department store accounts have been recovered. Its
gross annual sales are approximately $250,000. Both lIor-
owitz Bros. Mfg. Corp. and Ski Craft Sales Corp. are cur-
rently listed in the telephone hboks, with the same tele-
phone number.
B. Cornclusioins
The facts show, and I find, that negotiations between the
Association and Local 105 for a new agreement began
April 5. 1976. when Local 105 presented its first proposals
in writing to the Association. It is settled law that }lorowitz
Bros. Mfg. Corp. was bound by the agreement subsequent-
ly reached, on May 28, 1976, unless before the beginning of
negotiations, withdrawal was effected b) an unequivocal
written notice expressing a sincere intent to abandon the
multiemployer unit and to pursue negotiations on an indi-
vidual-employer basis.5
That the rule was applicable to Horowitz Bros. is clear.
It had been a member of the Association for over 20 \:ears
during which time the Association was its authorized bar-
gaining representative in the multiemployer unit, and its
production employees were included in that unit and cov-
ered by all collective-bargaining agreements entered into
by the Association and Local 105. including their most re-
cent agreement which expired May 31, 1976. At the time
4 Ski <(raft Sales (orp filed a petillon for a Board cletlon I.inl g it
employees in Case 2-RM 1779; 1n ha, noil been processed hccatLC if the
pendency of this proceeding.
(Ci/} RRotfing Co . 222 NL RB 786 11976). enfd
5
sh 1 2d 13711 119771:
Beck Engraving Co. Inc.. 213 NL RB 53 (I1974, enfd. '22 i 2d 47' 1( \ 3
1975)1 Sheridan (Crtrisn. Inc. 148 N.RB 151 )3 ( 1954). cnfd 357 1 2dt 245
((.A. A 2, 1965): Retoil A4sn...latei, I,. 121 NI.RB 388 ( 1958)
negotiations besgan for the new agreement, April 5, 1976,
Sol Horowitz had increased. or ,als on the point of increas-
ing, his ownership interest in Horowitz Bros. from 50 to
100 percent and had become the sole owner, officer. and
director. Although he had ceased manufacturing opera-
tions and \was engaged chieflI: in selling off his inventory,
and had reduced his complement from up to 145 employ-
ees to between 7 and 28 employees. those employees were
still covered bh the Association and agreement. and the
Union's mnajormt! status among them is presumed.'
Fhat the notice given was untimely and inadequate is
equall, clear. I he Association letter of April 5, 1976. and
the Horowitz Bros. message of April 8 to the LUnion, to the
effect that Horowitz Bros. was going out of business and
that all employees would be off the payroll by April 9,
1976. were untimelx received after negotiations had begun.
Moreover. tlorosuitl Bros. was not out of business on ans
of those dates, as it continued to have at least two emplos-
ees (cutter and floorworker) covered by the contract until
May 26, and at least one until August 31. 1976. Horowitz
Bros.' Ma', 7 message to the Association, which purported
to construe its April 8 letter as a resignation from the Asso-
ciation. w\as also untimel, and it is not clear that a cops
was served on the tnion. None of these messages indi-
cated that Hlorovuitz Bros. was prepared to bargain on an
individual-emploser basis which. in view of its continued
emplos ment of employees covered by the contract, it was
required under the rule to do.
I find, therefore. that Horowitz Bros. Mfg. Corp. was
bound b\ the agreement entered into by the Association
and l.ocal 105 on NMax 28. 1976.
It is also settled law that Ski ('raft Sales Corp. is hound
bh the MaN 28. 1976. Association Local 105 agreement if it
is the slctr cgo or successor of Horowitz Bros. Mfg. Corp.*
In (',raI: srcl Door Sales ('omrpalen, Inc., supra, the Board
affirmed that alter 'ego status is found where "the two en-
terprises have 'substantially identical' management, busi-
ness purpose. operation. equipment. customers, and super-
vision. as well as ownership.-
In m\ opinion. Ski ('raft Sales Corp. meets this test.
Thus. it is owned. managed. and ultimately supervised " by
Sol tlorowitz. who had been the sole manager and ultimate
supervisor of Horowitz Bros. for 2 years and the sole owner
since April 1976. It is true that most of Ski Craft's machin-
errn and equipment was not Horowitz Bros.' machinery and
equipment. that it operates on a reduced scale, and that it
does not service some of Horowitz Bros.' biggest custom-
ers. However. those factors do not signify in view of the
fact that it is engaged in substantially the same business.
the manufacture of children's pants. under the same trade
name. Ski ('raft: that it occupies one of the same locations;
and that its machinery and equipment is substantially iden-
tical in kind. " ' In addition. there was a hiatus of little more
I m' Bt'tgh> It: t,i,i Si r Lr ns.ni, In, . i]S NI RB 462 11971). enfd 471)
1 2d (i9
9 s( \ 9. 1?72)
BI, A litg ,isn ( 5 . In , prra r/n (C r l t i( t .ins inl n . upra
( /,i,, Id -,, SI, d c/ (,,/ln i. In, 226 Nl RB 1144 ( 1761): lhe BeIt
,. ,,p . 1,, .I'I , .1 1, ., ts i ,tIiimtIl P i,i s. 22i N l RB 474 (1C976t: ,. A
I here I, no e sdence s ai o thie idenlit of 4I0,er-r.anking superisors,, if
ili.s ceithe r IIilsoro' tlars [r Ski ( rall
T,1,.wip, Pt'ltn'li ( ,; ,,t,,,:.' 213 Nt RB 194 I19741
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 5 months between the end of Horowitz Bros.' manu-
facturing operations and the beginning of Ski C(raft Sales'
manufacturing operations, and less than 2 weeks between
Horowitz Bros.' last and Ski Craft's first production pay-
rolls; and all of Ski Craft's production employees had been
employed by Horowitz Bros. and included in the unit cov-
ered by the Association Local 105 contracts. I agree with
the Respondent that the credible evidence fails to support
the General Counsel's contention that Sol Horowitz was
motivated to any significant extent by desire to escape
from dealing with the Union in phasing Horowitz Bros. out
and phasing Ski Craft in,'I but motivation is not a criterion
of alter ego status. Nor does it seem relevant that Sol Hor-
owitz originally intended to go out of business completely.
It is plain that he changed his mind sometime in late Au-
gust or early September, and that he, in fact, was never
completely out of business.
Summarizing, in April 1976 when Sol Horowitz pur-
chased his deceased brother's 50-percent interest in the two
corporations, at the latest, Horowitz Bros. and Ski Craft
Sales became a completely integrated enterprise, with a
single owner and operating manager in complete charge.
operating in a single location, and with a single payroll.
From June I on, Ski Craft Sales Corp. was the dominant
organization, as the lessee of the mutual premises, the con-
tractor, with John Adamo for production, and the seller of
products and inventory. Thereafter, coincidental in time
with the last payroll in Horowitz Bros.' name, Ski Craft
Sales Corp. emerged as the sole entity, performing the pro-
duction and sales functions originally performed by Hor-
owitz Bros. and Ski Craft Sales Corp. separately: buying
back some of the original production machinery and
equipment and purchasing other similar machinery and
equipment from outside sources; producing and selling
similar type garments under the same trade name; at the
same location, with employees who had been employed by
Horowitz Bros. under the preceding Union contract. The
revived operation has continued to flourish and expand,
adding more styles and recalling more previously em-
ployed production employees.
In all the circumstances, I find that Ski Craft Sales is the
disguised continuance and alter ego of Horowitz Bros. Mfg.
Corp. As the historical appropriate unit has not changed,
and as Ski Craft's employees have been and are included in
that unit which is still represented by the Union, the con-
tinuing majority-status of Local 105 is presumed.' 2 I con-
clude that Ski Craft Sales Corp. is bound, as Horowitz
Bros. Mfg. Corp. was, by the June 1, 1976, agreement cov-
ering that unit, and that Ski Craft Sales Corp. violated Sec-
tion 8(a)(5) of the Act by refusing to be so bound, and by
refusing to recognize Local 105 as the exclusive bargaining
representative of its employees in the appropriate unit, as
alleged in the complaint.
I Although Sol Horowitz conceded he could have told Local 105 Busi-
ness Agent Israel Shoensald, in mid-April, that he would not be able Ito
afford any wage increases, in view of Horowitz Bros. past histori of peace-
ful relations with the Union and successful operations under union con-
tracts, and the obvious sincerity of Sol Horoitz' testimony, I credit Hioro-
witz that physical and mental exhaustionl were the motivaling factors in his
closedown of Horowitz Bros
m' Marqui, Printing (orporation. *upra
IV. THE REMEDY
Having found that Ski Craft Sales Corp. engaged in cer-
tain unfair labor practices, I recommend that it cease and
desist therefrom and from in any like or related manner
interfering with its employees' Section 7 rights.
Having found that the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to recognize and, upon request, to
bargain with the Union as the exclusive collective-bargain-
ing representative of its employees in the appropriate unit,
and honor the commitments covering the terms and condi-
tions of their employment set forth in the 1976-79 Associa-
tion-Local 105 contract, effective June 1., 1976, retroac-
tively. The appropriate unit is:
All full time and regular part-time operators, machine
pressors, under pressors, finishers, cutters, markers,
graders, floor workers and shipping clerks, excluding
office clerical employees, guards, and supervisors as
defined in Section 2(1 1) of the Act.
I shall also recommend that the Respondent make whole
all its unit employees for any losses they may have sus-
tained by reason of the Respondent's failure to honor and
apply the terms of the aforesaid collective-bargaining
agreement: and make contribution on behalf of those em-
ployees for all fringe benefits, such as health and welfare,
pension, annuity and vacation fund, and other benefits as
may be required under the terms of the aforesaid labor
agreement, with interest. 3
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 14
The Respondent. Ski Craft Sales Corp., New York, New
York, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain with Snow Suits,
Skiwear, Leggings, Infants and Novelty Sportswear Union,
Local 105, International Ladies' Garment Workers' Union,
as the exclusive collective-bargaining representative of its
employees in the appropriate unit described in The Rem-
edy section above.
(b) Refusing and failing to honor and apply the terms
and conditions of the 1976-79 collective-bargaining agree-
ment between the aforesaid Union and Infants, Children's
and Sportswear Association, Inc.
(c) In any like or related manner interfering with, re-
J See H .S Brooks Electric, Inc. et al. 233 NLRB 889 (1977); Florida
Steel ( orporation, 231 NL RB 651 (1977), Isis Plumbing & Heating Co. 138
NI.RB 716 (1962). I recommend that Sol Horowitz not he held personally
liable for ans monetary remedies. H S. Brooks Electric, Inc.. supra.
4 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulaiions of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules anid Regulations. be adopted by the Board and become
its findings, cotnclusions. and Order. and all objections thereto shall be
deemed waijed for all purposes.
126
SKI CRAFT SALES CORP.
straining, or coercing employees in the exercise of their
rights under Section 7 of the National Labor Relations
Act, as amended.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Immediately recognize and, upon request, bargain
collectively in good faith with Snow Suits. Skiwear, Leg-
gings, Infants and Novelty Sportswear Union, Local 105,
International Ladies' Garment Workers' Union as the ex-
clusive collective bargaining representative of all its em-
ployees in the appropriate unit.
(b) Honor and apply all the terms and conditions of the
1976-79 collective-bargaining agreement between Infants.
Children's and Sportswear Association. Inc. and the afore-
said Union, retroactive to June 1, 1976.
(c) Pay to the Union any and all amounts due in health
and welfare, pension, annuity and vacation fund, and all
other fund payments required by the aforesaid collective-
bargaining agreement for all unit employees employed
since June 1, 1976, with interest.
(d) Pay to all its employees in the appropriate unit work-
ing since June 1, 1976, who have received less pay than
provided by the aforesaid collective-bargaining agreement,
the difference between the pay each such employee actual-
Iv received and that which each would have been paid if
the Respondent had complied with the provisions of said
collective-bargaining agreement, with interest.
(e) Post at its New York. New York, location, copies of
the attached notice marked "Appendix." "1 Copies of the
notice to be provided by the Regional Director of Region
2. after being signed by a duly designated representative of
the Respondent. shall be posted by the Respondent imme-
diatelN upon receipt thereof and shall be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees custom-
arily are posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, de-
faced. 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 Respon-
dent has taken to comply herewith.
i In the evenit hai thil Order is enforced hs a judgment of the L nited
States ( ourt of Appeal, the sords in the rnotrle reading "Posted bI oirder .of
the Nation al I .hor Rel.atinr Board" shall read "Posted Pursuant to a
Judgment if the l nrtted States ( ourt .of ppeals Enforcing an Order of the
Naional I abor Relatiorns Board
127