U.S. Lingerie Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1968

170 N.L.R.B. 750 (N.L.R.B. 1968)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Lingerie Corporation and U.S. Lingerie Cor-
poration , Debtor in Possession and Undergarment
and Negligee Workers' Union , Local 62 , Interna-
tional Ladies ' Garment Workers' Union,
AFL-CIO and Allied Underwear Association, Inc.
Case 2-CA-11095
March 26, 1968
DECISION AND ORDER
On July 19, 1967, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief. The General
Counsel and the Charging Party also filed excep-
tions and supporting briefs, and the Respondent
filed an answer to these cross-exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The complaint herein states in substance that
Respondent U.S. Lingerie violated Section 8(a)(5)
and (1) of the Act by untimely withdrawing from
Allied Underwear Association (hereinafter referred
to as the Association), and thereafter refusing to
accept and be bound by the results of multiem-
ployer bargaining, and, additionally, violated Sec-
tion 8(a)(1) and (5) by failing to notify Local 62
and to bargain with it concerning the shutdown of
Respondent's New York plant and the removal of
its operations to Donalsonville, Georgia.
Respondent contends, inter alia, that the
withdrawal from the Association was at an ap-
propriate time because of unusual circumstances,
and that the Union waived bargaining over the
removal, as the Union, in fact, had adequate notice
of the removal, yet made no attempt to bring the
employer to the bargaining table. The Trial Ex-
aminer found that Respondent's withdrawal from
multiemployer bargaining was untimely, and that
there were no unusual circumstances to excuse the
withdrawal; and found further, that the Respondent
independently violated its bargaining obligations by
relocating its operations without giving Local 62
notice of the move and an opportunity to bargain
with it with respect to the move. We find merit in
Respondent's contentions and therefore agree with
the Trial Examiner only to the extent of finding
Respondent's withdrawal from- the Association to
be untimely.'
On or about January 28, 1966, Respondent filed
a petition for an arrangement pursuant to chapter
XI of the Bankruptcy Act. Thereafter Respondent
operated its business as Debtor in Possession while
a plan of arrangement was to be established with a
committee of five of,Respondent's principal credi-
tors. Local 62 was not a member of the creditors'
committee but was one of Respondent's 10 largest
creditors. The Respondent's economic distress was
communicated to the Union in early February
1966, when its president, Arnold Swee, met with
Local 62 Manager Schoenwald and one Chernoff, a
manufacturer, to determine whether the Union
would agree to Swee and Chernoff entering into a
partnership. Schoenwald stated that a partnership
would not satisfy the terms of a settlement agree-
ment between Chernoff and the Union. At this
meeting Swee mentioned to Schoenwald his desire
to obtain work as a contractor, and asked Schoen-
wald if he could get some work for him. Schoen-
wald and his business agents attempted to help
Respondent get work, apparently without much
success.
In March or April, Swee sought permission from
the creditors' committee to move away from New
York. The committee would not agree to a move
until Respondent had confirmed a plan of arrange-
ment or, in lieu thereof, had deposited sufficient
money in a special account to confirm a plan. On
April 22, a plan of arrangement was filed in the
bankruptcy court, a copy of which was sent to the
Union. The plan provided, among other things,
upon its confirmation for payment in full of all pri-
ority creditors and for payment to unsecured credi-
tors in the amount of 50 percent of their claims in
full settlement thereof. At the time of the hearing,
the plan had not been judicially confirmed.
On April 29, an argeement was entered into
between the creditors' commitee and the Respon-
dent in which Respondent agreed to make deposits
in a special account totalling at least $60,000. The
respondent added a final paragraph that permitted
it, after making the required deposits, to relocate
anywhere.
On May 3, the court entered an order approving
the agreement and directing the Respondent to
comply with it. Local 62 was not served copies of
this agreement and the order and no notice of them
until July 11, 1966.
170 NLRB No. 77
U.S. LINGERIE CORPORATION 751
On May 11, the Respondent's attorney called the
Association Executive Director Rosenbaum to
inquire how Respondent could resign from the As-
sociation. When informed by Rosenbaum that
negotiations had commenced on a contract to
replace the one due to expire on June 30, Respon-
dent's attorney wrote Rosenbaum 'informing him
that U.S. Lingerie Corporation was withdrawing
from the Association as of January 28, 1966, the
date of filing of the bankruptcy petition. According
to the Respondent, May 11 was the first time it
became aware that negotiations had begun. Rosen-
baum conveyed this declaration of withdrawal to
Local 62 Manager Schoenwald, and the Union, on
May 13, wrote to Respondent's attorney stating
that since negotiations had already begun (bargain-
ing commenced on April 18, 1966), it was too late
for withdrawal, and that when a new agreement was
entered into between the Union and the Associa-
tion, they would hold U.S. Lingerie Corporation
bound by the new agreement.
The first issue presented is whether Respondent
effectuated a timely withdrawal and, if not, whether
the withdrawal was nevertheless justified because of
unusual circumstances.
A multiemployer bargaining relationship no
can be terminated only by mutual consent,
express or implied, or by a timely withdrawal prior
to the commencement of negotiations for a future
contract. Thus, an employer's withdrawal after bar-
gaining has commenced is effective only if
acquiesced in by the Union or if justified by
unusual circumstances , Retail Associates, 120
NLRB 388; Sheridan Creations, Inc., 148 NLRB
1503, enfd. 357, F.2d 245 (C.A. 2), cert. denied
388 U.S. 1008. The Trial Examiner found and we
agree, for the reasons set forth in the Trial Ex-
aminer's 'Decision, that Respondent's attempted
withdrawal from the multiemployer bargaining unit
was untimely.
We disagree, however, with the Trial Examiner's
conclusion that the withdrawal was not justified by
unusual circumstances because Respondent's
economic difficulties predated the commencement
of negotiations between the Association and the
Union and that the withdrawal stemmed from
Respondent''s desire to relocate away from the New
York area. Considering all the circumstances of the
case-including the facts that Respondent withdrew
from the Association i+n order to relocate outside of
the New York area; that Respondent unsuccessfully
sought help from the Union in its effort to over-
come the difficult economic straits it was in; that
Respondent's status was that of a Debtor in Posses-
sion under the bankruptcy laws; and that Respon-
dent's intention to relocate its plant outside the
New York area raised issues inherently more
amenable to resolution through collective bargain-
ing confined to the parties immediately involved in
the dispute than through collective bargaining car-
ried on on an associationwide basis-we find that
Respondent's withdrawal from association bargain-
ing was justified even though it occurred after the
commencement of the latest round of such bargain-
ing. Accordingly, we find that Respondent did not
violate Section 8(a)(5) and (1) of the Act by
withdrawing from the Association or by refusing to
adhere to the agreement thereafter negotiated by
the Association and the Union.
The second issue is whether Respondent violated
Section 8(a)(1) and (5) by failing to bargain with
Local 62 concerning the shutdown of Respondent's
New York plant and the removal of its operations
to Donalsonville, Georgia. Respondent contends
that the Union waived bargaining over removal, as
the Union had adequate notice of the removal, yet
made no attempt to bring the issues relating to the
planned removal to the bargaining table. On the
basis of the entire record herein, we agree with
Respondent's contentions.
The record as a whole and particularly the state-
ments that Arnold Swee made to Union Represen-
tative Torriani, attests to the fact that the Union
was aware by May 16, 1966, that U.S: Lingerie was
contemplating moving its operations to another lo-
cation. On that date, Swee told Torriani that he
could not survive under existing conditions and that
he was considering a number of alternatives. On
June 15, immediately after Swee returned from
Donalsonville, Georgia, Torriani asked him if he
was going to move south . Swee replied that "he had
never lied to Torriani, that he would not do so, and
that he would not answer the question," Torriani,
in an affidavit , stated , " I took this as an admission
by Mr. Swee that a removal of the factory was a
certainty or very nearly so." In addition, there is
other evidence that the Union was 'aware that
Respondent was going to move its operations. Thus,
as early as late May or early June, the Union, ac-
cording to Torriani, had heard rumors that Respon-
dent was going to move. Thereafter, on June 21,
Torriani saw machines being dismantled and a sign
in the shop that said Jasper, Alabama. Also, in late
June, a union accountant reported that he saw the
factory dismantled and many boxes marked for
shipment to Jasper, Alabama. On June 27, after
Swee, 5 days earlier, had told his operators that he
was going out of business, Torriani went to the
shop, and upon- seeing only five girls working,
called Schoenwald who instructed him to call a
strike. The strike lasted until all of Respondent's
property was removed from the premises. Although
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is true that Respondent was less than candid in
answering questions from union representatives and
from employees as to whether the plant was being
closed or moved, the foregoing evidence demon-
strates that, in fact, the Union had sufficient notice
of Respondent's intended move to place upon it the
burden of demanding bargaining if it wished to
preserve its rights to bargain about the decision to
move and the effect of such decision upon the em-
ployees' terms and conditions of employment.
Further, it is apparent that a more formal notice
from Respondent about the planned removal of its
operations would have been a futile action in con-
tributing to the likelihood of bargaining between
Respondent and the Union over these develope-
ments, for the Union's actions from the time it first
received notice of Respondent's withdrawal from
multiemployer bargaining and thereafter demon-
strated that it was insisting upon bargaining with
Respondent only through the Association. Thus the
day after the Union received notice of the
withdrawal, its attorney informed U.S. Lingerie by
letter that, "It is the intention of our client, when
the negotiations for the renewal of the agreement
are completed and a new agreement is entered into
between the Union and the Association, to hold
your client bound by the terms of said agreement
for the duration thereof." On May 16, Torriani told
Swee that "if he was thinking of moving not to try it
because the Union had broken others and it would
not take much to break him." In addition, when
Swee requested special treatment, explaining that
he could not manage under a new agreement, even
if the costs remained the same, Torriani denied the
request and told him Local 62 would hold him to
the new agreement. Finally, when the Union called
a, strike against Respondent, its apparent purpose
was to obtain Respondent's signature on the As-
sociation contract which had just been negotiated.
The intention of the Union was to enforce the new
contract and the Union was clearly not interested in
bargaining with Respondent on an individual basis.
Evaluating the foregoing circumstances in the light
of the recent decision in N.L.R.B. v. Spun-Jee Cor-
poration and the James Textile Corporation, 385
F.2d 379 (C.A. 2), decided October 30, 1967,
denying enforcement in pertinent part of 152
NLRB 943, we find that the Union did have notice
of Respondent's plans and that, in failing to request
bargaining over the removal, it waived its rights in
that matter.
On the basis of the foregoing, we find that
Respondent's conduct was not in violation, of the
Act, and we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of_the National Labor
Relations Act, as amended, the National Labor
Relations Board-adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
a charge filed on September 20, 1966, and
thereafter amended by Undergarment and Negligee
Workers' Union, Local 62, International Ladies'
Garment Workers' Union, AFL-CIO, hereinafter
referred to as Local 62, the Regional Director is-
sued a complaint against Respondent on November
29, 1966. The complaint alleges that Respondent
violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with Local 62 as
representative of its employees along with those of
other members of the Allied Underwear Associa-
tion, Inc., and to acknowledge its obligations pur-
suant to a contract negotiated between the Union
and the 'Association. The complaint also alleges
that Respondent violated the Act by terminating its
New York operations and relocating them in Geor-
gia without prior notice to Local 62 and without af-
fording Local 62 an opportunity to negotiate and
bargain with the Respondent. In its answer Respon-
dent denies the commission of any unfair labor
practices and affirmatively pleads several defenses.
This proceeding was heard before me in New
York, New York, on February 27 through March 2
and on March 9 and 10, 1967. At the, close of the
hearing oral argument was heard and the parties
were given leave _ to file briefs. Briefs have been
received from the General Counsel and Respon-
dent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I-
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Until sometime between August and October
1966, U.S. Lingerie Corporation was at all times
material hereto a corporation organized under the
laws of the State of New York. Since that time it
has been a corporation organized under the laws of
the State of Georgia.' On or about January 28,
' No contention is made that the change in the place of incorporation of
Respondent has any bearing on Respondent's status material to these
proceedings
U.S. LINGERIE CORPORATION 753
1966, U.S. Lingerie Corporation filed a petition in
the United States District Court for the Southern
District of New York for an arrangement pursuant
to chapter XI of the Bankruptcy Act, 11 USC § 701
et seq. From that time through the time of the hear-
ing in this case, U.S. Lingerie Corporation has con-
tinued in possession of its property and has con-
tinued to operate as Debtor in Possession pursuant
to an order of the court in that proceeding.' Until
on or about July 4, 1966, Respondent maintained
its, place of business in New York, New York,
where it was engaged in the business of manufac-
turing and/or contracting ladies' and children's un-
dergarments and related products. Since sometime
in July 1966, Respondent has maintained its place
of business in Donalsonville, Georgia, where it has
been engaged as a contractor in sewing and finish-
ing ladies' and children's undergarments, sports-
wear, and related products. During the year prior
to the issuance of the complaint, a representative
period, Respondent manufactured, sold, and dis-
tributed at its New York and Georgia plants,
products valued in excess of $50,000 which were
shipped from these plants in interstate commerce to
locations in other states. It is conceded, and I find,
that Respondent has been at all times material
herein an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Undergarment and Negligee Workers' Union,
Local 62, International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The multiemployer history of bargaining
Allied Underwear Association, Inc., hereinafter
referred to as Allied, was formed in 1933 for the
purpose, among others, of making and carrying out
collective-bargaining agreements with unions on
behalf of its members.3 Its bylaws provide that any
person, firm, or corporation engaged in the manu-
facture and sale of women's and children's un-
derwear shall be eligible for membership' The
management of Allied is vested in a 21-member
board of directors, officers selected by the board,
and an executive director. For at least the past 20
years, Allied has had 100 members or more. Mem-
bers of Allied are required to pay dues and to
remain in good standing. Under its bylaws resigna-
tions are permitted at any time, provided that a
resignation is not to be acted upon or become ef-
fective until all dues and other obligations owing
Allied have been paid in full. In applying for mem-
bership a standard application blank is signed by
each prospective member containing the following:
I-We further agree to be bound by and
comply with any agreement now existing and
any modifications or renewals thereof and any
new agreements that may be entered into
between the Allied Underwear Association,
Inc., and the International Ladies' Garment
Workers' Union or any of its locals.
At the time a new member joins the Allied, the as-
sociation notifies Local 62 and usually obtains for
Local 62, from the new members, a signed cer-
tificate of authorization and assumption. In it the
new member certifies that he is a member of Allied,
authorizes Allied to enter into the existing agree-
ment between Local 62 and Allied, agrees to be
bound by the terms of that agreement, and agrees
to be bound by any amendments thereto which may
be entered into between Local 62 and Allied.
For at least 20 years, Allied has negotiated con-
secutive collective-bargaining agreements with Lo-
cals 62 and 10 of the International Ladies' Garment
Workers' Union. These agreements have covered
all workers employed by the members of Allied in
connection with any and all operations in the
process of manufacturing and all workers aiding in
the processes of manufacturing, including all
graders, shipping clerks, assistant shipping clerks,
and all employees who perform work in connection
2 The complaint designates U S Lingerie Corporation and U S Lingerie
Corporation, Debtor in Possession , as Respondent These are not separate
coexisting entities, but represent alternative designations of a single entity
reflecting its special status during the proceeding brought under chapter X1
of the Bankruptcy Act See Paul Stevens, Receiver of Carolina Scenic
Stages, a Corporation et al, 109 NLRB 86, 11 USC Secs 742, 743 The
term Respondent will be used herein to refer to U S. Lingerie Corporation
and to U S Lingerie Corporation, Debtor in Possession, without distinc-
tion , as the time of the events will make clear whether the reference is to
the period before or after U.S Lingerie Corporation became debtor in pos-
session.
' Unless otherwise indicated, the facts found herein are based on sub-
stantially uncontradicted testimony which I have credited
4 Jacob Rosenbaum, executive director of Allied, testified that Allied
does not have contractors among its members. Matthew Schoenwald,
manager of Local 62, testified that most of the members of Allied were
manufacturers, but that some were both manufacturers and contractors
and others were exclusively contractors Schoenwald named several em-
ployers in Allied who fell in the latter categories He explained that histori-
cally as some manufacturers had shifted from manufacturing to contracting
or to a combination of both, they had remained members of Allied and had
continued to operate pursuant to the contract between Allied and Local
62 Schoenwald also testified that most contractors are not members of Al-
lied but belong to a separate contractors' association which has a separate
agreement with Local 62, the terms of which are the same as those of the
agreement between Allied and Local 62. There are approximately 130
members in the contractors' association Those contractors who have
remained in Allied have not become members of the contractors' associa-
tion The record indicates that the work performed by employees of manu-
facturers and contracors is substantially the same. Not all contractors cut
material while manufacturers usually do Contractors, unlike manufac-
turers, do not style and sell garments to customers, but otherwise perform
all or most of the operations that manufacturers perform
5In addition, Allied informs Local 62 whenever a member withdraws
and from time to time at Local 62's request forwards to it an up-to-date list
of its members
350-999 0 - 71 - 49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with receiving, assorting, packing, and order
picking, but excluding porters and errand boys.'
In practice, for some time, representatives of two
other employer associations, the Lingerie Manufac-
turers Association and the Negligee Manufacturers
Association, have participated in the negotiations
between Allied and the two locals, arriving at
separate, but similar, agreements with them.
At the conclusion of periodic contract negotia-
tions with Allied, Local 62 usually has asked Allied
to obtain certificates of authorization and assump-
tion from all memberslof the association pertaining
specifically to the period of the new agreement.
However, whether or not a member signs such a
certificate, Allied and the Locals administer the
agreement for all members and their employees.'
Respondent joined Allied in November 1959.' At
that time Respondent, by its president, Arnold
Swee, signed a membership application and a cer-
tificate of authorization and assumption relating to
the contract between the association and Local 62
then in effect. In 1963, when a new agreement was
negotiated to run from July 1, 1963, to June 30,
1966, Swee was a member of the Board of
Directors of Allied and was a backup man on its
negotiating committee. However, he did not par-
ticipate in any bargaining sessions. After these
negotiations were completed, on August 9, 1963,
Swee wrote to Allied stating that Respondent was
terminating its membership as of that date. Allied
sent notice of Respondent's withdrawal to Local
62, and sometime thereafter Ramirez, a representa-
tive of Local 62, visited Swee. Ramirez pointed out
to him that under the contract he would have to
post 2 weeks' wages as security if he were not a
member of Allied and indicated that Swee would
have trouble if he did not belong to the association.
Thereafter, Swee, on September 9, 1963, notified
Allied that it should disregard his letter of resigna-
tion and reinstate Respondent as a member. On
March 16, 1964, Swee signed a certificate of
authorization and assumption relating to the
1963-1966 contract. Thereafter, Respondent
remained a member of Allied until the events here
involved.
2. The 1966 negotiations between Local 62 and
the association
On March 28, 1966, Matthew Schoenwald,
manager of Local 62, sent a letter to Allied on be-
half of Locals 62 and 10 notifying the association
that the collective-bargaining • agreement was
scheduled to expire on June 30, 1966,9 that the
unions desired various modifications, and that they
requested a date for a conference to begin negotia-
tions. On March 30 the directors of the Allied
selected a bargaining committee, and a meeting
between the unions and the association committee
was scheduled and took place on April 18, 1966".1o
At this meeting Schoenwald and Falikman,
manager of Local 10, presented Allied with' the
unions' demands, and they were discussed by the
parties. Most, if not all, of the unions' demands
were rejected at this time.
On April 22, Rosenbaum, executive director of
Allied, sent identical letters to all members of the
Allied informing them that the first conference
between the unions and the association bargaining
committee had been held and that the unions had
presented their demands. A copy of the demands
was enclosed. The letter also informed the mem-
bers that negotiations would continue during the
next few weeks and that it was expected that there
would be a meeting of the members of Allied in the
near future to report on the negotiations."
The second meeting between Allied and unions
was held on May 4. At this meeting the association
presented its proposals for changes in the contract.
Both sets of proposals were discussed with few, if
any, agreements reached.
Further negotiating meetings were held on May
10, 16, 19 and June 2, 6, 10, 17, and 22. At the
June 22 meeting, agreement was reached on the
terms of a new collective-bargaining agreement,
and negotiations were concluded, although it
remained for the terms of the agreement to be
reduced to writing and contract language to be
agreed upon. On June 22, a meeting of the mem-
bers of Allied was held at which the terms of the
agreement were ratified. The agreement was
6 While not named specifically as exclusions from the contract coverage,
watchmen, guards, and supervisors have not been covered by the agree-
ment. Local 10 represents cutters employed by the members of Allied and
Local 62 represents the remaining employees covered by the agreements
' Agreements between Allied and the Locals have typically provided that
each member of the association may be required to sign such a certificate
at the option of the unions Following the execution of the 1963 agreement,
73 out of the 105 members of the Association signed such certificates
8 From 1956 to 1959 Respondent operated under a separate contract
with Local 62
s The contract contained no automatic renewal clause or other provision
with respect to negotiation of a successor agreement
10 The Lingerie and Negligee Associations also participated in the
negotiations as they had in the past
11 Rosenbaum testified that he did not personally mail the letters, but
that U S Lingerie was considered a member of the association at this time
and that the association had a carefully devised system for the purpose of
making mailings to all members Although his later testimony might be
construed as indicating that he personally prepared the letters for mailing, I
do not so construe it in the light of his testimony otherwise as to the
assistance given him in association affairs by its secretary Swee testified
that he did not recall receiving this letter and that he did not become aware
negotiations had started until May 11, 1966
U.S. LINGERIE CORPORATION
thereafter reduced to writing and was signed on
August 9, 1966.12
3. Respondent's condition in early 1966
On or about January 28, 1966, Respondent filed
its petition for an arrangement pursuant to chapter
XI of the Bankruptcy Act. Thereafter , a committee
of five of Respondent's principal creditors'3 was
established, and Respondent was permitted to con-
tinue to operate its business as Debtor in Possession
while a plan of arrangement was worked out.
Shortly after Respondent filed its petition, Maflo
Holding Corp., Respondent's landlord, to whom
Respondent owed back rent, brought an action to
evict Respondent from its premises.14 The eviction
action was stayed by action of the bankruptcy
court, and Respondent continued to occupy the
premises while the stay was in effect."
In February 1966, Respondent, which had previ-
ously operated only as a manufacturer, began to
seek work as a contractor, and thereafter until it
closed its New York factory, Respondent operated
either as a manufacturer or a contractor or both.
In February; Respondent began to investigate
various possibilities for improving its business con-
dition. In early February, its president, Arnold
Swee, met with Local 62 Manager Schoenwald and
one Chernoff, another manufacturer. Chernoff,
who had recently settled a matter with Local 62,
asked Schoenwald whether the terms of his settle-
ment with Local 62 would be satisfied if he were to
go into partnership with Swee. Schoenwald stated
that a partnership would not satisfy the terms of the
settlement, and Chernoff indicated that the partner-
ship therefore would be effectively precluded. Dur-
ing this meeting Swee mentioned to Schoenwald his
desire to obtain work as a contractor and asked
Schoenwald if he could get some work for him.
Schoenwald attempted to help Respondent get
work and instructed his business agents to do
likewise, which they did.
InMarch or April,'Swee discussed with the credi-
tors' committee the possibility of moving away from
New York, mentioning that he might enter a part-
nership in Puerto Rico or move south. Swee sought
permission from the committee to move. The com-
mittee took the position that it would not agree to a
move until Respondent had confirmed a plan of ar-
rangement or in lieu thereof had deposited suffi-
cient money in a special account to confirm a plan.
OnApril 22,a plan of arrangement was filed in the
12 My findings as to the negotiations between the unions and Allied are
based on a composite of the uncontradicted testimony of Rosenbaum and
Schoenwald Although both demonstrated some difficulty in recalling
specifics as to the events and attendance at the various meetings , there is
no reason to doubt the accuracy of their testimony concerning those mat-
ters which they did recall
1" Local 62 was one of Respondent's 10 largest creditors, but was not a
member of the creditors' committee
11 Respondent 's lease provided for its termination upon the filing of a
petition for an arrangement with creditors
755
bankruptcy court, a copy of which was sent to the
Union. The plan provided, among other things,
upon its confirmation, for payment in full of all pri-
ority creditors and for payment to unsecured credi-
tors in the amount of 50 percent of their claims in
full settlement thereof."
On April29, an agreement was entered into
between the creditors' committee and Respondent.
In it, for the stated purpose of inducing the credi-
tors' committee to consider favorably and,recom-
mend acceptance of the plan of arrangement and to
insure that there would be sufficient funds on hand
for confirmation of the plan, Respondent agreed to
make deposits in a special account totalling at least
$60,000 under terms and conditions set forth. Be-
fore signing this agreement, which had been drafted
by the attorney for the creditors' committee,
Respondent added to it a final paragraph which
read as follows:
The debtor and debtor in possession may, after
having made all the deposits required of its
[sic] in paragraph (a), move and relocate its
present factory, including, but not limited to,
all of its fixtures, equipment and inventory to
whatever location the debtor deems in its best
interests. The debtor and debtor in possession
have the right to accelerate and prepay the
deposits required under paragraph (a) and im-
mediately upon the date of prepayment, can
move and relocate as set forth above.
On May 3, the court entered an order approving
the agreement and directing the Respondent to
comply with it. Copies of this agreement and the
order were not served upon Local 62, and it had no
notice of them until July 11, 1966.
4. Respondent's attempt to withdraw from Allied
During the first week in May, Swee discussed
withdrawal from Allied with Hendler, Respondent's
attorney in the bankruptcy proceeding. At that
time, they examined the 1963-1966 Allied agree-
ment to determine whether it contained any provi-
sion relating to notice which might be required but
found none. On May 11, Hendler called Allied Ex-
ecutive Director Rosenbaum to inquire as to how
Respondent could resign from the association. Fol-
lowing this conversation Hendler told Swee that the
negotiations had already commenced and that if he
had resigned 3 weeks earlier he probably would
have had no trouble with the Union." Following
this conversation on the same day, Hendler wrote
1i On several occasions thereafter , Swee discussed with Maflo the possi-
bility of Respondent 's continuing to occupy only half of its leased space,
but no agreement was reached for such an arrangement
11 The plan also reserved the right of the debtor to reject all executory
contracts on or before confirmation At the time of the hearing in this case,
the plan had not been judicially confirmed
11 According to Swee, he was not aware that negotiations had begun until
this date Swee was not a member of the Board of Directors of Allied nor of
its negotiating committee in 1966 However, he knew that in 1963 negotia-
tions had started several months before the expiration date of the contract.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosenbaum on behalf of the Respondent advising
that:
In accordance with telephone conversation of
today's date, .this is to advise you that we are
the attorneys for U.S.- Lingerie Corporation
and in view of the fact that the above corpora-
tion is operating as a debtor in possession
under chapter XI of the Bankruptcy Act pur-
suant to a petition filed by it on January 28th,
1966, our client does not intend to continue as
a member of your association and withdraws as
of the date of the filing of said petition, to wit,
January 28th, 1966.
On May 12, following receipt of this letter,
Rosenbaum wrote Local 62 Manager Schoenwald
advising him that Respondent had withdrawn from
membership in the association as of January 28,
1966.18
On May 13, at the direction of Schoenwald,
Local 62 attorney Elias Lieberman wrote Hendler
acknowledging receipt of Rosenbaum's letter and
stating:
As you undoubtedly know, pursuant to timely
notice, negotiations for the renewal of the
agreement have been going on between the
Union and the Association. We are convinced
that the attempt of your client at this time to
resign as a member of the said Association as
of January 28, 1966, is too late. It is the inten-
tion of our client, when the negotiations for the
renewal of the agreement are completed and a
new agreement is entered into between the
Union and the Association, to hold your client
bound by the terms of said agreement for the
duration thereof.
There were no further direct formal communica-
tions between Respondent and Local 62 concerning
the attempted withdrawal. However, on June 10,
Respondent 's attorney moved in the bankruptcy
proceeding to disaffirm the contract between the
association and unions . On July 29, the court de-
nied the motion finding that the 1963-1966 con-
tract had expired and that a renewal agreement had
not been entered into so that there was no contract
then in existence.19
Although Swee testified that he withdrew from
Allied in order to leave himself free to follow any
one of a number of possibilities he was pursuing for
the future continuation of Respondent's business, it
is clear from his testimony on cross-examination
that only one of the possibilities he was considering
would have affected his. willingness to remain in Al-
lied. That was the possibility of removal of the plant
'A Respondent was not current in its dues payment to Allied at the time of
its attempt to withdraw However, no issue apparently was made by
Allied with respect to Respondent's right to withdraw under its bylaws
19 The Court's findings were apparently in accord with the position of
Local 62 taken then and in connection with a later motion to disaffirm the
1966-1969 contract that the agreement was not entered into until August
9, 1966, the date of its execution. Whether or not it may be argued that
there was an oral agreement as of June 22, 1966, on the basis of the
testimony of Rosenbaum and Schoenwald, I find no inconsistency between
from New York, which the 1963-1966 agreement
would have prohibited. The timing of Respondent's
attempt to resign, immediately after it had received
permission to move and coinciding with the
beginning of Swee's efforts to find a location in
Georgia, as set forth below, together with Swee's
testimony on cross-examination, supports the con-
clusion that Swee sought to withdraw from Allied in
order to free Respondent to move away from New
York.
5. Respondent's efforts to find,a new location and
the move to Georgia
In early May, Swee started to explore the possi-
bility of relocating his plant in Georgia. On or
about May 3, he called a builder in Albany, Geor-
gia, and asked him to make a survey of sites in the
area where there were buildings and labor availa-
ble. Thereafter, Swee made arrangements to visit
Georgia and went to Georgia on May 12 to explore
for possible sites, returning to New York on or be-
fore May 16. After his return Swee called the At-
lanta Chamber of Commerce and enlisted its aid in
locating a suitable site. Toward the end of May,
Swee received a call or a letter from the president
of the Chamber of Commerce in Donalsonville,
Georgia, inviting him to come to Donalsonville to
inspect a site possibility there.
On June 8 or 9, Swee again made a trip to Geor-
gia. He first went to two other locations and then
visited Donalsonville on June 10 and 11. In
preparation for his visit, the Donalsonville Chamber
of Commerce arranged for the assembly of groups
of women interested in employment. They filled out
application forms "For employment in sewing plant
to be located at Donalsonville, Georgia," and were
interviewed by Swee. While in Donalsonville Swee
inspected an available building and met with offi-
cials of the corporation which controlled it. He
presented to them the terms be wanted and sought
to persuade them that despite the chapter XI
proceeding, Respondent would make a desirable
addition to the Donalsonville business community.
Swee did not negotiate a lease while in Donalson-
ville, nor did he, according to his,testimony, make
any decision, to move there until after returning to
New York.
After his return, sometime between June 16 and
19, Swee decided that Respondent would move to
Donalsonville, and by telephone negotiated a lease
for the plant he had inspected. During the 3rd or
4th week in June he signed the lease.20 On or about
their testimony and the position taken by Local 62 in the bankruptcy
proceeding sufficient to "warrant rejection of their testimony as to the
negotiations The later motion to disaffirm the 1966-1969 contract had not
been disposed of by the court at the time of the hearing herein, and was ap-
parently being held in abeyance pending the outcome of this case
"The lease was executed by Swee-as an individual doing business as
Donny Mills It was stipulated that for purposes of this proceeding Donny
Mills and Respondent are the same.
U.S. LINGERIE CORPORATION 757
June 20, Swee made arrangements to transport his
machinery and equipment to Donalsonville. On
June 22, under circumstances set forth below,
Respondent released most of its employees, and on
June 27, when Local 62 called the few remaining
employees out on strike, Respondent terminated its
New York operations. On or about July 5, Respon-
dent vacated its New York premises and shipped its
equipment and machines to Donalsonville.
Concurrent with Swee's exploratory trip to
Donalsonville, on June 9, 1966, Maflo, Respon-
dent's New York landlord, sought vacation of the
stay in the bankruptcy proceeding to permit it to
proceed with its efforts to evict Respondent from
its New York premises. On June 23, the day after
Respondent had released most of its employees, a
hearing was held on Maflo's motion to vacate the
stay, at which time Respondent through its attorney
proposed that the matter be settled upon Respon-
dent's agreement to vacate the premises on or be-
fore July 15. Settlement was reached on this basis,
and an order was entered on July 29.21
6. Respondent's communications with Local 62
concerning the move
It is conceded that before May 16, there was no
mention or discussion between Respondent and
Local 62 of any possible move away from New
York by Respondent. On May 16 and thereafter,
however, Albert Torriani, a business agent for
Local 62, made several visits to Respondent's loft,
where Torriani spoke with Swee. The testimony of
Torriani and Swee as to the content of these con-
versations is in conflict , although not to as great an
extent as would superficially appear. Neither dis-
played a clear recollection as to the details of these
conversations, 'although Torriani was more vague
than Swee. Apart from establishing the dates of his
visits from records he had made at the time, Torri-
ani had little independent recollection of the timing
of his visits, and he disclaimed ability generally to
recall dates of events as well as the content of con-
versations. Swee's recollection of dates was equally
poor, but he purported to have greater recollection
of what he and Torriani said to each other when
they met. For the reasons set forth below in con-
nection with my specific findings, I have not
credited or discredited either of them entirely.
On May 16, the day of Swee's return from his
first trip to Georgia and only a few days after
Respondent sought to withdraw from Allied, Torri-
ani visited Swee at Respondent's loft and told him
that he had tried to reach him the previous week.
Torriani asked Swee why he had resigned and
whether he was trying to move out of town. Swee
did not reply, and Torriani then told Swee that if he
was thinking of moving not to try it because the
Union had broken others and it would not take
much to break him.22 Swee told Torriani that he
had resigned from Allied because he did not know
what he was going to do about the continuation of
his business and was considering a number of alter-
natives, including reducing the size of his opera-
tions, renting one half of the loft, moving to a
smaller loft, taking in a partner, becoming a con-
tractor, or going out of business.23 Swee told Torri-
ani that he could not manage under a new agree-
ment even if the costs remained the same, and
asked if he could get some special consideration
until his business came back. Torriani replied that
he could not and that Local 62 would hold him to
the new agreement . Swee told Torriani that he
would not sign the agreement and asked, if Local 62
would let him work on without a contract after the
present contract expired. Torriani replied that the
chances were that it would not.24
Torriani visited Swee again on June 15, im-
mediately after Swee 's return from Donalsonville.25
Torriani asked - Swee if he were going to move
south.26 Swee replied that he had never lied to Tor-
riani, that he would not do so, and that he would
not answer the question.27 Torriani again warned
Swee not to try to move, and the two again
S' The motion to vacate the stay and the order were not served on Local
62, and there is no indication that Local 62 was represented at the June 23
hearing However , on June 10 , when Respondent sought to disaffirm its
contract with Local 62 it also sought to disaffirm its lease with Maflo
22 Swee so testified that Torriani conceded that he might have said
something to this effect
24 According to Swee , among the alternatives he mentioned to Torriani
he included the possibility of moving the entire operation south or
elsewhere and added that this looked like the most likely alternative at
the time Torriani denied that Swee mentioned moving south. In view of
Swee's testimony that he did not respond when Torriani initially asked
him if he were trying to move before his alternatives were discussed, his
admitted evasive reply in June when Torriani again inquired as to his
intentions, and his concealment of the move from his employees as set
forth below, I do not credit Swee's testimony that he told Torriani in May
that he was considering a move south and that it looked like the best
alternative to explore.
24 Swee so testified although he indicated uncertainty as to whether this
portion of the conversation occurred on May 16 or June 15 Torriani was
not examined specifically as to this aspect of the conversation , but testified
that he sought to encourage Swee to remain in the association and clearly
could not recall details of the conversation
25 Torriani 's records also showed that he visited Respondent 's loft on
May 27, but neither he nor Swee testified as to their conversation , if any, at
that time
2s Tornani testified that this visit was made at Schoenwald 's request
because of rumors that Respondent was going to move
2Z Torriani testified that he confronted Swee with the rumors that he was
going to move and that Swee convinced him there was no truth in the ru-
mor He also testified , however , that Swee said that he would not answer
Torriani's question In an affidavit given by Torriani dated June 30, 1966,
Torriani stated that when he asked Swee whether he was contemplating a
move out of town, Swee replied, "I have never lied to you, Al, and con-
sequently , I just will not answer that question " Torriani also stated in the
affidavit " I took this as an admission by Mr. Swee that a removal of the fac-
tory was a certainty or very nearly so " Torriani testified that the affidavit
represented the truth at the time it was given Swee did not mention this
exchange in his direct testimony but on cross -examination testified that
Torriani , on June 15 , asked him if he was going to move, and that he
replied , " Al, I never lied to you and I won 't do it now " According to Swee
he also added that he had not made any decision or commitment as yet
Despite Torriani 's conclusionary testimony that Swee reassured him on this
occasion that he was not going to move, I find that Torriani 's concession
that Swee said he would not answer and Torriam 's affidavit substantially
corroborate Swee's testimony on cross-examination , which I credit
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed other alternatives available to Swee, with
Swee indicating that he had made no decision or
commitment as yeti2S While Torriani was talking to
Swee an employee came into the' office and asked
Swee if she should look for another job. Swee told
her that her place was with Respondent."
On June 21, Milagros Resach, the shop chairlady
for Local 62, telephoned Torriani and told him that
machines were being dismantled. Torriani went to
the shop, saw one or two machines being disman-
tled, and asked Swee what was- happening. Swee
replied that he was going to store the machines.
Torriani, who had noticed a sign in the shop bear-
ing Jasper, Alabama, on it, asked Swee "Where, in
Alabama?" Swee replied that he might sell the
machines or store them. After this conversation
Torriani told Mrs. Resach "to continue working,
that there's no basis for anything as yet, we haven't
known of any yet. "30
Apart from what could be ascertained from Tor-
riani 's visits to the factory, Local 62 received some
additional information to arouse suspicion that
Respondent was going to move. At least by late
May or early June, Torriani and Schoenwald had
heard rumors that Respondent was contemplating a
move. Also in- late June,31 a union accountant re-
ported upon returning from a visit to the shop that
he saw the factory dismantled with many boxes
marked for shipment to Jasper, Alabama.
pected it to pick up again in a few weeks. Torchia
continued to work until June 15, when Swee told
her that there was no more work for her and that
the other employees were only finishing up what-
ever there was. She again asked Swee if he was
going out of business. Swee replied that he was not.
He told her ,that he was going to put the machines
in a warehouse and look for a smaller loft. He
added that in 2 or 3 months he might call the girls
back to work, but that he did not know what he was
going to do . She did not work for Respondent
thereafter.
A week or two before June 22, employee An-
gelina Cantanzaro asked Swee what was going on.
He replied that he was not going out of business but
that he would take a small loft and ask some of the
girls to work for him there.
On June 22, Swee called togehter all the opera-
tors who were still employed and told them he was
going out of business. He then told them that he
had three or four places that they could go to get
other jobs and gave all those who wanted them slips
bearing the names and addresses of other em-
ployers with whom they could find work.34 About
25 girls had been working up to that day. All but
from, five to nine were laid off and the remainder,
including Resach, continued to work for several
days more finishing up work in the shop, disman-
tling equipment, and packing."
7. Respondent's communications with its
employees concerning the move
At-some point during the spring, Shop Chairlady
Milagros Resach approached Swee and told him
that she had heard that he was going out of busi-
ness.32 She asked whether it was true. Swee told her
that it was not true and then spoke over the loud-
speaker system in the shop to all the employees. He
told them not to believe any rumors they might
hear about the plant closing down. He also told
them that if he were going to do anything like that,
they would be the first ones to know.33
In May or- early June, Swee approached em-
ployee Susan Torchia, an operator in the shop, and
suggested that she take a job in another shop until
business picked up in a few weeks. She asked Swee
if he was going out of business . He replied that he
was not but that business was slow and that he ex-
$N Although Swee mentioned alternatives other than moving on both
May 15 and June 16, to Tornam, there is only scant evidence in the record
as to efforts made by Swee to pursue other alternatives in May and June
v Torriani testified without contradiction as to the conversation between
Swee and the employee, and I credit Torriani in this regard
so Only Torriam testified with respect to the June 21 conversation
" Schoenwald testified that he received this report on June 24 , and that
he had since learned that the- date of June 20, which he assigned to the re-
port in an earlier affidavit, was inaccurate
as The testimony of employees , which I credit, with respect to communi-
cations between them and Swee was either uncontradicted or corroborated
by Swee.
's Several employees testified as to this incident Their estimates of the
8. The strike
On June 27, Torriani went to the shop, saw that
only five girls were working and that they were
closing up. Torriani told Swee that the situation was
serious and again told Swee not to move out of
town. He immediately called Schoenwald, and
Schoenwald instructed him to call a strike. The
remaining employees immediately went out on
strike. The strikers picketed in front of the premises
carrying signs which stated that the workers of U.S.
Lingerie were on strike for a union- contract. The
signs bore the name of Local 62.36 The strike con-
tinued for a little more than a week until all
Respondent's property was removed from the
premises. Local 62 did not learn for some time
thereafter the exact location to which Respondent
had moved. No direct notice was ever given by any
representative of Respondent to the Union that it
time of its occurrence varied Resach testified that it occurred in mid-May,
but also testified she had heard rumors that the Company was going out of
business in March or April. Most of the other witnesses placed it in March
or April The testimony is not sufficiently definite to place the time of this
incident with any exactness However , it would appear that it occurred
sometime in March or April
"Swee did not tell them that he was transferring his operations
elsewhere.
as Angelina Cantanzaro finished her remaining work on June 23 At that
time Swee told her to speak to Saul Raher , a salesman , who referred her to
another job on which she started work the following Monday -
"The only evidence as to the wording of the signs was Swee's uncon-
tradicted testimony
U.S. LINGERIE CORPORATION 759
contemplated moving or had in fact moved to Geor-
gia.37
9. The Georgia operations
During the last week in July, Respondent began
to hire employees for its Georgia operations. In
Georgia Respondent has operated exclusively as a
contractor performing sewing and finishing opera-
tions for other manufacturers on lingerie, sports-
wear, shifts, dusters, and dresses. With the excep-
tion of cutters, the categories of employees em-
ployed by Respondent in Georgia have remained
the same as those employed in New York.38 In
Georgia, unlike New York, because of limited
skills, some of the operators have been confined to
a single specific operation and in some instances
these operations have involved the sewing of gar-
ments not previously made in New York. Other-
wise, however, the operations in Georgia are essen-
tially the same as those in New York.
B. Conclusions
1. The contentions of the parties
The General Counsel contends that Respondent
has violated its _ bargaining obligation in two
respects. First, the General Counsel contends that
Respondent's withdrawal from multiemployer bar-
gaining was untimely and that Respondent is there-
fore bound by the results of the 1966 negotiation
between Allied and Locals 62 and 10. Secondly,
the General Counsel contends that Respondent
further independently violated its bargaining obliga-
tion by - relocating its operations without giving
Local 62 notice of the move and an opportunity to
bargain with it with respect to the move.
Respondent contends that neither of the alleged
violations has been established. As for the alleged
unlawful withdrawal from multiemployer bargain-
ing, Respondent contends that Local 62 abandoned
multiemployer bargaining by its strike on June 27,
that Local 62 by contract waived its right to contest
Respondent's withdrawal from Allied, and that the
withdrawal was, in any event, at an appropriate
time because of unusual circumstances. As for the
alleged refusal to bargain over the removal of its
plant, Respondent contends that the Union waived
bargaining over removal, that the' Union, in fact,
had adequate notice of the removal, and that the
Union made no attempt to bring the employer to
the bargaining table. In addition, the Respondent
asserts as affirmative defenses (1) that the unit al-
leged in the complaint is not appropriate for collec-
tive bargaining; (2) that a majority of the em-
ployees at the Donalsonville plant have not selected
Local 62 or any other labor organization as their
representative; (3) that because of the pendency of
the bankruptcy proceeding, the Board should not
exercise jurisdiction to decide this case; (4) that
because of certain provisions of the agreements
between Local 62 and Allied, which allegedly vio-
late the Sherman Anti-Trust Law, the relief
requested by the General Counsel would further
conditions and practices violative of that Act; and
(5) that the agreement relied on is contrary to the
National Labor Relations Act, unenforcable, and
contrary to public policy.
At the outset it may be observed that the major
issues in this case and the facts are similar in a
number of respects to the issues and facts in Spun-
Jee Corp. and The James Textile Corp., 152 NLRB
943, which involved the attempted withdrawal of
another employer from Allied during the negotia-
tion of the 1963-1966 agreement and its removal
from New York. As will be set forth below, the
Board's decision in that case appears to be disposi-
tive of a number of the issues raised herein or at the
very least furnishes persuasive guidance for the
decision reached herein.
2. Respondent's withdrawal from the
multiemployer unit
In Retail Associates Inc., 120 NLRB 388, the
Board set forth rules governing withdrawal from
multiemployer bargaining applicable to employers
and unions alike, to which it has since adhered. s In
its decision, the Board stated:
We would accordingly refuse to permit the
withdrawal of an employer or a union from a
duly established multiemployer bargaining
unit, except upon adequate written notice
given prior to the date set by the contract for
modification, or to the agreed-upon date to
begin the multiemployer negotiations. Where
actual bargaining negotiations based on the ex-
isting multiemployer unit have begun, we
would not permit, except on mutual consent,
an abandonment of the unit on which each side
has committed itself to the other, absent
unusual circumstances. 120 NLRB at 395.
Although the contract in this case contained no
date agreed upon in advance for commencement of
multiemployer bargaining, the parties agreed in
March or early April to begin negotiations, and at
the time of Respondent's attempted withdrawal
37 Swee testified that during the strike he told Torriam that he was mov-
ing and that he had not previously informed him of this as a fact. He also
conceded that he never discussed moving the plant with Schoenwald be-
fore June 27, and there is no evidence that he did so thereafter Cora Riley,
an employee, testified that while she was picketing the plant she might have
talked to Swee about his going south It is clear that the Union received no
definite notice that Respondent was moving rather than closing down until
after the strike had started
38 On those occasions when Respondent has had cutting operations to
perform in Georgia, Swee has done the cutting
3' Sheridan Creations Ind , 148 NLRB 1503, enfd 357 F 2d 245 (C.A 2),
cert denied 385 U S 1005 , Spun -Jee Corp. and The James Textile Corp ,
supra, The Evening Neu s Association , etc , 154 NLRB 1494, enfd. 372 F 2d
569 (C A. 6)
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Allied, negotiations had in fact commenced
and proposals had been exchanged. When informed
of Respondent's withdrawal from,the Association,
Local 62 promptly objected, and it is clear that
Local 62 did not consent to Respondent's
withdrawal from multiemployer bargaining. Thus, it
would appear that Respondent's withdrawal was
untimely, unless the reasons advanced by Respon-
dent are sufficient to excuse it from meeting the
normal requirements for timely withdrawal.
With respect to the strike, it is true that the
legend on the picket signs carried by the strikers in-
dicated that the strike was to obtain a union con-
tract. However, unlike the cases relied upon by
Respondent,4B here there is no evidence that Local
62 sought separate negotiations or a separate agree-
ment from Respondent, and there is no reason to
regard the contract referred to on the picket signs
as different from the - Allied contract. Although
Local 62 did not strike against other association
members, none of the other members similarly had
rejected association bargaining or the results
thereof. As Respondent had taken the position that
it would not consider itself bound by association
bargaining, the strike was not-inconsistent with,41 or
an abandonment of, Local 62's position that the
withdrawal was untimely.42
Respondent points to section 28 of the
1963-1966 agreement between the association and
Locals 62 and 10 to establish that Local 62 had
waived any objection to Respondent's withdrawal
from the multiemployer bargaining at any time. As
multiemployer bargaining is consensual, and the
Board permits withdrawal after negotiations have
begun upon mutual consent, it would appear that
an agreement to permit withdrawal at any time
would be a valid defense if established. Respondent
relies in this connection on paragraph 28 of the
1963-1966 agreement which provides as follows:
28. All members of the Association at the time
of the execution of this agreement and persons,
firms and corporations becoming members
thereof subsequent to the execution of this
agreement , shall be and continue to remain
personally and individually liable under this
agreement during the term thereof, irrespec-
tive of whether said member shall cease to be a
member of this Association prior to the date
set for the expiration of said contract, and his
liability shall be deemed to have survived the
termination of such membership and remain in
full force and effect during the full term
thereof, with the same force and effect as if
this agreement has been signed individually by
each member of the Association except that
such member shall pay the fee of the Impartial
Chairman in cases of arbitration. -
In the event a member of the Association
shall cease being a member of the Association
during the term of this agreement , or as same
may be extended or renewed during his mem-
bership, upon the request of the Union, such
member shall immediately deposit and main-
tain with the Union as partial security for the
faithful performance of this agreement as
herein provided, a sum equal to two (2) weeks'
pay for his employees, which sum may be used
by the Union to reimburse it for any damages
to it or any employees involved caused by a
violation of this agreement on the part of-the
employer, and also to reimburse the cost to it
for investigation of any claimed violation ....
Clearly, this paragraph contemplates withdrawal
from Allied by members during the term of the
agreement and provides for the applicability of the
current agreement to the operations of members
for the duration of its term and for the method of
contract'administration after withdrawal. However,
nothing in its provisions relates to the conditions
under which withdrawal may be -permitted or- to the
effect of untimely -withdrawal. Since the Board's
rules clearly permit withdrawal from an association-
wide unit-only at appropriate times, one may con-
clude as readily that these provisions were intended
to govern only the effect of timely withdrawals as
that they were intended to permit withdrawal at any
time from association bargaining. Accordingly, I
find no clear and unmistakable waiver of the right
to object to untimely withdrawal from multiem.
ployer bargaining in the above-quoted contract
provision.43
Respondent enumerates a number of circum-
stances which it contends amount to "unusual cir-
cumstances" within the meaning- of the quoted por-
tion from Retail Associates set forth above and ex-
cused the untimeliness of its withdrawal. 'The
parties have cited, and I have found, no decisions
which construe the quoted phrase as broadly as
Respondent urges. However, the other exception
contained in the rule, set forth in Retail Associates,
which permits withdrawal upon mutual consent of
the parties, other decisions permitting withdrawal
40 Neville Foundry Company, Inc, 122 NLRB 1187; Ice Cream, Frozen
Custard Industry Employees, Local 717, 145 NLRB 865, C & M Construc-
tion Ca , 147 NLRB 843 In the latter case also, unlike this case, the union
did not object to withdrawal but simply asked for written confirmation of it
a Respondent argues that because the agreement negotiated by Allied
with Local 62 on June 22 contained a no-strike provision, the strike was in-
consistent with the Union's position that Respondent was bound by that
agreement However, unless the untimeliness of Respondent's withdrawal
was otherwise excused, Respondent cannot rely on the no-strike provision
of the agreement to relieve it of its obligation to accept the results of the
multiemployer bargaining , as its conduct which Local 62 protested
amounted to a repudiation of its bargaining obligation and the agreement
42 See Spun-Jee Corp and The James Textile Corp , supra, where identical
conduct was before the Board under substantially similar circumstances
Although the wording of the picket signs is not set forth in'the decision in
that case, it is clear from the briefs of the Board and the respondent therein
to the United States Court of Appeals for the Second Circuit that the signs
were identical for practical purposes
" See N L R B v Perkins Machine Co , 326 F,2d 488 (C A I), and cases
cited therein
U.S. LINGERIE CORPORATION 761
after commencement of negotiations'44 and more
recent restatements of the rules governing
withdrawal,45 suggest that the Board may have in-
tended to provide by this exception for circum-
stances where there has been no actual consent but
a union's conduct with respect to withdrawal has
been such that the union is estopped from object-
ing. Most of the circumstances cited by Respondent
do not relate to acquiescence or estoppel and those
which do have been considered above and found
insufficient to support Respondent's contention.
In any event, I am not persuaded that separately
or together the circumstances on which Respon-
dent relies justify its untimely withdrawal, although
some of them are clearly relevant to the remedy to
be required if a violation is found.
A number of the circumstances relied upon re-
late to Respondent's relationship with Allied" and
may well reflect the usual circumstances rather
than unusual circumstances in this relationship. As
a former member of the Board of Directors of Al-
lied, Swee not only knew the manner in which Al-
lied bargained, but also that negotiations had in the
past commenced several months before actual con-
tract expiration 47 Although Respondent contends
that it did not authorize Allied to bargain for it with
respect to a new agreement, this contention begs
the question to be answered herein, for Respon-
dent, in its application for membership, had
authorized Allied to negotiate new agreements on
its behalf as long as it remained a member, and the
question ultimately to be answered is whether
Respondent's attempt to withdraw that authoriza-
tion was timely with respect to the 1966 negotia-
tlons.48
Respondent's change in status from a manufac-
turer to a contractor was no different from changes
in status of other members of Allied who had
nonetheless remained members of Allied and con-
tinued to operate under the Allied contract. The
fact that Respondent had filed a bankruptcy
proceeding and was confronted with difficult
economic problems also cannot be deemed unusual
circumstances in this case. The bankruptcy
proceeding was commenced 2 months before the
unions' notice to Allied, and Respondent's
economic difficulties clearly existed at that time,
Moreover, its notice to withdraw from Allied, as
found above, stemmed from Respondent's desire to
relocate away from New York and not from any
requirement of Respondent's creditors. To the con-
trary, the evicence shows that Swee raised the
matter of relocating with the creditors, sought their
permission to move, and received it only after giv-
ing assurances, through the deposit of sums
adequate to protect their interests, that the credi-
tors would be protected before Respondent moved
from New York.
Respondent also contends that the withdrawal
was not used as a bargaining wedge and that the
stability of the unit could not have been affected
because of the relative, insignificance of Respon-
dent, particularily in its weakened state, to Allied.
However, as I read the Board's decisions, I con-
clude that it has established definite rules concern-
ing withdrawal from multiemployer and has
eschewed consideration on a case-by-case basis of
the effect of individual withdrawals on multiem-
ployer bargaining.49
Accordingly, I reject Respondent's contention
that there are unusual circumstances present in this
case which warrant an exception to the Board's
rules relating to withdrawal from multiemployer
bargaining.
3. The alleged refusal to bargain over relocation of
Respondent's plant
The General Counsel contends that Respondent
failed to give notice to Local 62 and to give it an
opportunity to bargain over the decision to move
and the effects of the move on Respondent's em-
ployees. Respondent contends that itmet whatever
obligation to bargain it may have had.
Under Board decisions, Respondent was
obligated to give notice to the Union before its
decision was made and to bargain upon the request
both over the decision to move from New York and
the effects of relocation upon its employees.50 Here
Respondent considered several alternatives for the
continuation of its business including relocation. As
early as late March or April Swee broached the
subject of a move to the creditors' committee and
by early May had approval to move conditioned
upon the deposit of a sum sufficient to confirm a
plan of arrangement with the creditors. Con-
44 Neville Foundry Company, Inc , 122 NLRB 1187, Scougal Rubber Mfg
Co Inc, et al, 126 NLRB 470
4' C & M Construction Co , supra; Sheridan Creations, Inc , supra, Spun-
Jee Corp and The James Textile Corp , supra
46 These are Respondent's lack of participation in the negotiations, the
absence of most members of the association from the negotiations, lack of
notice of negotiations by Local 62 or Allied to its members before the start
of negotiations, lack of knowledge of the negotiations by Respondent until
the day it attempted to withdraw, and the fact that two other associations
joined with Allied in bargaining with the unions
47 Although Swee testified that at one time he received notice of monthly
meetings and was reminded by telephone when he failed to respond to the
notices, it is clear from his testimony and from that of Rosenbaum that he
was referring to the period when he was a member of the Board of
Directors which, unlike the membership, had monthly luncheon meetings
There is no evidence that Swee, as a member, was treated differently by Al-
lied than other members
4' Respondent's related reliance on the fact that it had not signed a cer-
tificate of authorization and assumption with respect to the 1966-1969
agreement also does not advance its cause A signed certificate was not a
requisite to coverage by the agreement See Spun-Jee Corp., and The Janies
Textile Corp., supra
49 See N.L R B v Sheridan Creations, Inc , 357 F 2d 245 (C A 2), cert
denied 385U5 1005
sa Spun-Jee Corp and The Jantes Textile Corp, supra, Standard Hand-
kerchief Co , Inc , 151 NLRB 15; Garvin Corporation, et a! , 153 NLRB
664, enfd as modified 374 F 2d 275 (C A.D C ) cert denied 387 U.S 942,
Purolator Products, Inc , 160 NLRB 80
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cededly, throughout the period that Swee discussed
the possibility of a move with the creditors' com-
mittee he did not communicate with Local 62
about the matter . Nor did Swee take any initiative
to notify Local 62 of his intentions ' later when he
made trips to Georgia in May and June and then
entered into a lease for the Georgia plant. It is true
that when Torriani visited Respondent 's shop in
May and June, Swee told Torriani he was consider-
ing several alternatives including the possibility of
going out of business. Also in response to Torriani's
question whether Swee intended to move, Swee, in
May, did not answer and on June 15, by his evasive
reply, gave Torriani reason to believe that Swee
was preparing to move. But on both of these occa-
sions Swee also indicated to Torriani that he had
not yet decided what to do, and on June 21, when
Torriani asked Swee about the dismantled
machines in the shop, Swee replied that he might
sell them or store them.
During the period that the move was under con-
sideration and after the decision to move was made,
Swee also did not disclose his intentions to the em-
ployees and the shop chairlady. Instead, until June
22, when he told the employees the plant was clos-
ing, he led them to believe that his operations
would continue in New York, although probably on
a smaller scale. On June 22, when Swee announced
the shutdown of the New York operations to the
employees, he concealed from them that he was
relocating in Georgia and told them falsely that he
was going out of business.
I conclude that Respondent did not give requisite
notice to Local 62 in this case, but to the contrary.
evaded questions about moving and misrepresented
its plans even after the decision had been made.
Yet the question remains whether, as Respondent
contends, the information which came to Local 62
during May and June was such that Local 62 had
actual notice that Respondent intended to move its
plant and was obligated to come forward and
request bargaining if it desired to bargain over the
move.51
I conclude that it was not. While I have found
that Swee's response to Torriani may have war-
ranted an inference that removal of the factory was
a certainty or very nearly so, as Torriani stated in
an affidavit, it does not follow that Swee's respon-
ses to Torriani's questions or other indications
received by Local 62 were sufficient, in the context
of the other evidence, to put Local 62 on notice of
Respondent's intentions so that it should have
sought bargaining if it wished to hold Respondent
to its bargaining obligation. Respondent chose not
to disclose its intentions directly to Local 62 but
rather to evade the issue of the impending move.
As late as June 21, Swee 'replied falsely to Torriani
and he consistently sought to mask Respondent's
intentions by misrepresentations to its employees. It
is true that Torriani indicated that Local 62 would
expend every effort to block or hamper a move,
and' obviously its principal desire was to keep
Respondent from moving. However, it does not fol-
low that if Swee had forthrightly disclosed his inten-
tions before completing his plans to move, Local 62
would have intransigently adhered to its position
and Schoenwald would not have sought discussions
with Swee. Although there was, to be certain, a
strong possibility that Local 62 would have insisted
on the full measure of its contractual claim without
seeking further bargaining, it was Respondent's
failure to fulfill its obligation which makes' it im-
possible to know what would have ensued if
Respondent had given forthright notice of its' inten=
tions. Absent fulfillment of that obligation by
Respondent, I conclude that Local 62' was not
obliged to seek bargaining over the move it inferred
was likely but which Respondent sought to conceal.
In this respect I conclude once again that the
facts in this case are closer to those in Spun-Jee
Corp. and The James Textile Corp., supra, than to
those in the cases on which Respondent relies.52
Respondent also contends that Local 62 had
waived its rights to bargain over the effects of the
move because the contract contained provisions
covering pensions and severance payments. How-
ever, the provisions of the expiring contract provide
only for contributions to a retirement benefits fund
and to a supplementary unemployment-severance
benefits fund, and the record does not indicate to
what extent, if any, these funds were intended to
provide benefits for employees whose jobs were lost
as a result of relocation. I conclude on the evidence
before me that there is insufficient evidence of a
clear and unmistakable waiver of Local 62's right
to bargain over the effects of relocation.
51 In this connection the General Counsel relies on the provision of the
Allied contract which named Schoenwald as the sole agent of Local 62
authorized to deal with employers and stated that no other person was to be
deemed an agent unless so designated by the Union The General Counsel
contends that because of this provision only notice given directly to
Schoenwald could have been effective While this provision may have
required that Respondent negotiate only with Schoenwald or a properly
designated agent, it does not overcome ordinary rules of agency for pur-
poses of deciding whether Local 62 had adequate notice of Respondent's
intentions Torriani was a business agent of Local 62 who regularly visited
Respondent's shop for the purpose of seeing that the contract was enforced
and to adjust disputes and prices in the shops he serviced In June, and
probably also in May, he was specifically sent by Schoenwald to investigate
Respondent 's intentions Whatever he may have discovered on these visits
cannot be disclaimed on the ground that Torriani rather than Schoenwald
visited the shop and spoke to Swee.
52 In Motoresearch Company, et al, 138 NLRB 1490, Montgomery Ward
& Co, 137 NLRB 418, Hartmann Luggage Co, 145 NLRB 1572, and Hum-
ble Oil & Refining Co, 161 NLRB 714, there was either direct advance
notice of the employer's intentions or ready advance admission of them
upon inquiry In Central Riifina, 161 NLRB 696, there were circumstances
not present here, including a total inability to operate without subcontract-
ing and a past practice with which the employer's conduct was consistent
U.S. LINGERIE CORPORATION
4. Respondent's affirmative defenses
In its first affirmative defense Respondent con-
tends that the unit alleged in the complaint is inap-
propriate. That unit with minor variation is the
same as that set forth in the recent agreements
between Allied and Locals 62 and 10. At the hear-
ing, in support of its first affirmative defense,
Respondent argued that the unit is inappropriate
because porters and errand boys who are excluded
from it have a community of interest with other em-
ployees in the unit, and because the contract unit
does not specifically exclude guards and super-
visors. No evidence was introduced with respect to
porters and errand boys. Although a unit which in-
cluded them might also be appropriate, I find no
reason to reject as appropriate a unit excluding
them for which there has been a substantial suc-
cessful bargaining history.53 While the contract unit
description does not specifically exclude watchmen,
guards, and supervisors as defined in the Act, there
is no evidence that these categories ever have been
included in it. In the light of the extensive history of
bargaining between Allied and the unions, I find
that the unit alleged in the complaint is an ap-
propriate unit for purposes of collective bargaining.
Respondent's second affirmative defense is that
Local 62 lacks a majority among Respondent's em-
ployees at its Georgia plant. However, the only
question of majority material to determining
whether Respondent violated the Act is whether at
the time of the alleged violations Local 62 was the
statutory representative of Respondent's employees
at its New York operations. The record leaves no
room for doubt that it was.
Respondent's third defense, as amended at the
hearing, is that by virtue of the bankruptcy
proceedings Respondent "is not obligated to adhere
to or acknowledge the agreement entered into
between the Association and the Union in August
1966 and has otherwise discharged its obligation
under Section 8(a)(5)." In amplification of this
defense Respondent contended that the Board
should defer to the court handling the bankruptcy
proceeding in this matter.
It is well settled that the filing and pendency of
the bankruptcy proceedings do not relieve the
Board of jurisdiction to determine whether unfair
labor practices have been committed and if so to
order them remedied. Moreover, institution of ban-
kruptcy proceedings does not extinguish preexisting
bargaining obligations. thus, whatever obligation
U.S. Lingerie Corporation had to bargain with the
Ss Although the unit described in the Allied contracts did not specifically
exclude porters and errand boys until 1960, they were in fact always ex-
cluded from the unit
54 Although Respondent also set forth a number of other contract provi-
sions in its bill of particulars in support of this defense , during argument at
the hearing on a motion to strike its affirmative defenses Respondent
deferred argument with respect to the other provisions for its brief Its brief
contains no amplification of its contentions with respect to the alleged
763
Union before the chapter XI proceeding was filed,
the debtor in possession assumed when it operated
Respondent's business.
Although it is argued that the Board should defer
to the court, there is only one matter which appears
to be before both the Board and the court. That is
whether Respondent should be considered bound
by the 1966-1969 Allied agreement . In this
proceeding the General Counsel and the_ Charging
Party seek to have the Board order Respondent to
abide by the contract as a matter of remedy for the
unfair labor practices charged. In the bankruptcy
proceeding Respondent has petitioned the court to
disaffirm that agreement. In view of my recommen-
dation below as to remedy I find it unnecessary to
decide this issue.
Respondent's fourth defense is that Allied and
Local 62 have at all times been parties to an agree-
ment which violates the Sherman Anti-Trust Act so
that the relief requested by the General Counsel
would further practices and conditions in violation
of that Act. Respondent relies on paragraph 34 of
the 1963-1966 contract which provides as fol-
lows:54
The Union agrees that it will enter into no con-
tract with any individual or association in the
City of New York containing terms more
favorable to Employers than herein contained,
except that the percentage of increase to
pieceworkers may be less in any other collec-
tive agreements.
The above-quoted provision, referred to by the
parties to the contract as the "favored nations"
clause, has been in agreements between Allied and
the unions for a number of years. In the 1966
negotiations the Union proposed, and Allied agreed
to, deletion of this clause. Allied Executive
Director Rosenbaum testified that during the
negotiations, in requesting deletion of this clause,
the union's attorney referred to the Pennington"
decision "that did bring to our attention the legality
of that."
Although Respondent appears to contend that
the inclusion of this clause in the agreement per se
establishes a violation of the Sherman Act, I do not
so construe the Pennington decision.56 Nothing in
the Union's request for deletion of this clause or its
reasons therefor constitutes a concession or admis-
sion that the clause was illegal. At most it con-
stitutes a concession that the Pennington decision
raised a question as to the legality of this clause.
Accordingly, I conclude that the evidence does not
establish that the 1963-1966 agreement violated
Sherman Act violation In these circumstances I have concluded that
Respondent does not seriously urge that any but the quoted paragraph in
the 1963-1966 agreement violates the Sherman Act In any event, after ex-
amination of paragraphs cited by Respondent , I detect no violation in
them.
55 United Mine Workers v Pennington et al , 381 U S 657
se See James Pennington v John L Lett is, 257 F Supp 815, 826-829
(E D Tenn )
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Sherman Act and find it unnecessary to con-
sider further other arguments advanced with
respect to this defense. -
Respondent's final affirmative defense is that the
agreement between Allied and the unions is contra-
ry to the Act, unenforceable, and contrary to public
policy. In argument at the hearing Respondent
stated that its fifth defense was a corollary of its
forth defense, and it has advanced no further argu-
ment in its- brief to indicate any separate basis for
its fifth affirmative defense. However its bill of par-
ticulars sets forth other provisions of the agreement
in support of this defense. To the extent that this
defense is dependent upon the fourth defense there
is no need to consider it further. To the extent the
Respondent separately relies on the contract provi-
sions set forth in its bill of particulars, I find no
merit in it.
IV. THE REMEDY
Having found that Respondent violated Section
8(a)(5) and ( 1) of the Act I shall recommend that
Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
In fashioning the affirmative order it is necessary
to bear in mind as in Spun -Jee, supra, "that the
remedy should be adapted to the situation that calls
for redress , with a view toward restoring the situa-
tion as nearly as possible to that which would have
obtained but for the unfair labor practices."
In Spun-Jee the Board concluded that practical
considerations warranted refraining from ordering
the employer to resume its New York operations,
to adhere to the multiemployer agreement, and to
reinstate the terminated employees at the
reestablished operations . There the practical con-
siderations were "the nature of Respondent's
general business operations , the record's indication
of economic obstacles confronting Respondent's
enterprise , and the possible impracticability of any
attempt to reinstitute the former operations"
In this case the .practical considerations militat-
ing against such an order are substantial. Respond-
ent faced serious financial problems in the opera-
tion of its business in the first half of 1966.
Although it is true that Respondent filed the peti-
tion for an arrangement pursuant to chapter XI of
the Bankruptcy Act, the record discloses no reason
to believe that Respondent instituted that proceed-
ing to evade its bargaining obligation . All indica-
tions are to the contrary that it did so because it
could not meet other obligations . Respondent
was also faced during the period - with the possible
loss of the loft in which it operated . Maflo, Re-
spondent's landlord,, had sought to evict Respond-
ent from the loft shortly after the chapter XI
proceeding was started, as it appears it was en-
titled to do under the terms of its lease with Re-
spondent. Although Respondent ultimately
sought disavowal of its lease and left the premises
as the result of a compromise with Maflo, there
is no reason to conclude that if Respondent
had continued to resist eviction, it would have been
permitted to remain in the premises until the nor-
mal expiration of its lease. As Swee indicated in his
testimony and as one would normally expect,,
Respondent's financial difficulties made it difficult
to find a location where Respondent would be ac-
cepted as a tenant. 57 In my view, the- practical con-
siderations in this case operate with even greater
strength than in Spun-Jee to support a similar result.
Accordingly, as the violations found herein are
the same as those found in Spun-Jee and similar
considerations apply to the relief to be required, I
shall recommend affirmative relief similar to that
orderd in Spun-Jee.
Having failed to bargain with Local 62 over the
removal of the plant, Respondent must be required
to offer to bargain now with Local'62 about the re-
sumption of the unilaterally removed operations
and if the operations are not restroed, about, the ef-
fects on the employees of their discontinuance.
Although Respondent's refusal to bargain oc-
curred at a time when its employees,were included
in an associationwide agreement, in view of the na-
ture of the bargaining to be required, I shall recom-
mend that Respondent be ordered to bargain con-
cerning these matters with Local 62 as representa-
tive of a unit of its employees embracing the same
categories as the association unit which is also an
appropriate unit.58 That unit consists of all em-
ployees employed by Respondent in connection
with any and all operations in the process of manu-
facturing and all workers aiding in the process of
manufacturing, including all graders, shipping
clerks, assistant shipping clerks, and all employees
who perform work in connection with receiving, as-
sorting, packing, and order picking, but excluding
porters, errand boys, watchmen, guards, and super-
visors within the meaning of the Act.ss
Moreover, as Respondent's removed operations
are presently functioning in Donalsonville, Georgia,
I shall recommend that Respondent be required to
offer to all of its employees who were terminated as
a, result of Respondent's unilateral decision to
relocate its plant immediate and full reinstatement
to their former or substantially equivalent positions,
if such exist, at the Donalsonville, Georgia, opera-
tion and at any resumed operations in the New
York area, without prejudice to their seniority or
5' I note in this regard, however, that there is no evidence that Swee
made any independent effort to find alternative quarters in the New York
area, other than his efforts to retain half the loft it leased from Maflo
5N Spun -Jee Corp and The James Textile Corp , supra , 152 NLRB, at 947,
fn 3.
5" As there was no contention herein that Respondent refused to bargain
with Local 10 and as Respondent employs no cutters, bargaining is
required only with Local 62 - -
U.S. LINGERIE CORPORATION 765
other rights and privileges, discharging newly hired
employees if necessary to make room for them. I
shall also recommend that Respondent be required
to place the names of all the remaining employees
for whom no work is immediately available on a
preferential hiring list and offer to the employees
on such list employment as and when positions for
which they are qualified become available.
I shall further recommend that Respondent be
required to make the terminated employees whole
for any loss of pay they may have suffered as a
result of Respondent's unfair labor practices. The
liability for such backpay shall-cease upon the oc-
currence of any of the following conditions: (1)
reaching mutual agreement with Local 62 relating
to the subjects which Respondent is herein required
to bargain about; (2) bargaining to a bona fide im-
passe; (3) the failure of Local 62 to commence
negotiations within 5 days of the receipt of Respon-
dent's notice of their desire to bargain with the
union; or (4) the failure of Local 62 to bargain
thereafter in good faith. Respondent's liability for
backpay as to any of said former employees shall
also cease upon his reinstatement to the same or
substantially equivalent position at Respondent's
present or any resumed operation. Backpay shall be
based upon the earnings which terminated em-
ployees would normally have received during the
applicable period less any net interim earnings and
shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289 with interest thereon as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
With respect to the scope of the affirmative bar-
gaining order required in this case the question
remains whether Respondent should be required to
bargain with Local 62 generally with respect to the
wages, hours, and conditions of employment of its
Georgia employees in the - event that the more
limited bargaining required above does not result in
a return of Respondent's operations to New York.
Although a footnote in Spun-.lee suggests that such
an obligation was imposed therein,s a careful read-
ing of the order in that case indicates that no such
general requirement was imposed, and the narrow
reading of the Board's order is supported by the
Board's brief and reply brief to the Second Circuit
Court of Appeals in that case. In these circum-
stances I conclude that Respondent is not to be
required to bargain generally with Local 62 con-
cerning the employees in Georgia.s'
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Respondent, U.S. Lingerie Corporation and
U.S. Lingerie Corporation, Debtor in Possession,
constitute an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Undergarment and Negligee Workers' Union,
Local 62, International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By attempting to withdraw from the multiem-
ployer unit at an inappropriate time and thereafter
refusing to accept and be bound by the results of
multiemployer bargaining and by failing to notify
Local 62 and to bargain with it concerning the
shutdown of Respondent's New York plant and the
removal of its operations to a new location, as
found above, Respondent has engaged in and is en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publica-
tion.]
"See 152 NLRB, at 947, fn 3
s' Although the Board issued such an order in Gana in Corporation, et al ,
supra, there the Board found that relocation was motivated by a desire to
avoid dealing with a union in violation of Section 8(a)(3) of the Act, and
the remedy fashioned by the Board in that case would appear to rest in part
on the finding of the Section 8(a)(3) violation