Co-Ed Garment Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co-Ed Garment Company and its Alter Ego Delta Manufacturing Corporation and Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO. Case 14-CA-9279 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On May 19, 1977, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the Employer filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Delta Manufacturing Corporation is the alter ego of Co-Ed Garment Company, and that as a single entity the Respondent violated Section 8(a)(5) and (1) of the Act by an untimely withdrawal from Associated Garment Industry (AGI), a multiemployer associa- tion, and an attempt to repudiate the agreement, and by a failure to notify and bargain with the Union over the moving of its operations from Festus, Missouri, to Greenwood, Mississippi. The Administrative Law Judge also found that the Respondent's removal to another location was discriminatory ipso facto, and therefore in violation of Section 8(a)(3) as well. The Administrative Law Judge found that, while there was no evidence pointing specifically towards any union animus as such, the nature of the move was "inherently destructive of employee interests." 2 Furthermore, he found that the Respondent failed to meet its burden in proving that its removal to Greenwood was justified by economic circumstances. 3 We agree that the Respondent's unilateral action violated Section 8(a)(5), but do not agree that it also violated Section 8(a)(3). The Respondent had volun- tarily bargained with the Union for nearly 20 years. By early 1976, it had suffered substantial financial losses for at least 2 years, and its liabilities exceeded I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 231 NLRB No. 147 its assets. The Respondent unsuccessfully sought an understanding with the Union so that it could continue operations, and also sought higher piece rates from the Girl Scouts, its principal customer, in excess of the 3-percent increase offered, but was turned down. Rather than suggesting a discriminato- ry motive, the record indicates that the Respondent sought to continue its operation in Festus and that its relocation was for legitimate reasons unconnected to any intention to discourage or chill union activity. Accordingly, we conclude that Respondent did not violate Section 8(a)(3) and (1) of the Act by moving its business from Missouri to Mississippi, but did violate Section 8(a)(5) and (1) of the Act by its untimely withdrawal from AGI, its failure to notify the Union about its intention to relocate, and its refusal to bargain over the relocation. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall adopt the recommended remedy of the Administrative Law Judge to the extent consistent herewith. Although the Board attempts to reestablish the status quo ante following an unfair labor practice insofar as possible, an order to require the Respon- dent to reopen its operations at Festus, Missouri, would not be practicable. Walter Pape, Inc., 205 NLRB 719 (1973). We shall, therefore, adopt a backpay remedy similar to that ordered in Van's Packing Plant, 211 NLRB 692 (1974), in lieu of the backpay remedy recommended by the Administra- tive Law Judge. Since we have found that the Employer's relocation was not discriminatorily moti- vated, a remedy ordering backpay from the date of the termination of the Employer's employees would be onerous and unjust. Our purpose here is to require the Employer to bargain with the Union over the effects of its decision to relocate in Mississippi. Accordingly, we shall order the Employer to pay employees backpay at the rate of their normal wages when last in the Employer's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date the Employer bargains to agreement with the Union on the effects on its employees of the plant shutdown at Festus, Missouri, and the relocation at Greenwood, Mississippi; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request 2 N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967). 3 Since we disagree with the Administrative Law Judge's finding that the Respondent did not sufficiently explain away or justify its actions, it is unnecessary to decide whether the Respondent's move was innately discriminatory under the rationale of Great Dane, supra 848 CO-ED GARMENT CO. bargaining within 5 days of this Decision, or commence negotiations within 5 days of the Employ- er's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount he would have earned as wages from April 9, 1976, the date on which the Employer terminated its facility at Festus, to the time he secured equivalent employment elsewhere, or the date on which the Employer shall have offered to bargain, whichever occurs sooner. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed as provid- ed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB (1977).4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Co-Ed Garment Company and its Alter Ego Delta Manufacturing Corporation, Festus, Missouri, and Greenwood, Mississippi, its officers, agents, succes- sors, and assigns, shall jointly and severally: I. Cease and desist from: (a) Refusing to bargain collectively over the effects of Respondent's relocation to Greenwood, Mississip- pi, upon request, with Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO, as the exclusive representative of all nonsupervisory production, maintenance, packing and shipping workers, excluding officers, executives, designers, assistant designers, superintendents, super- visory personnel, instructors, pattern makers, assis- tant pattern makers, mechanics, office workers, billers and clerical employees who do not handle any garments, parts thereof, or any raw materials at its Festus, Missouri, plant. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Pay the terminated employees their normal wages as set forth in the section of this Decision entitled "The Remedy." (b) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to the effects on its employees of its relocation to Greenwood, Mississip- pi, and reduce to writing any agreement reached as a result of such bargaining. If Respondents resume their discontinued operation in the Festus, Missouri, area, bargain collectively, upon request, with the above-named labor organization as the exclusive bargaining representative of all employees in the aforesaid appropriate unit, and, if an agreement is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Mail an exact copy of the attached notice marked "Appendix" 5 to Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO, and to all employees who were employed at its former Festus, Missouri, place of business. Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondents' representative, shall be mailed immediately upon receipt thereof, as herein directed. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 4 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain upon request over the effects of our relocation with the representative of our employees in the appropri- ate unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, 849 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL pay said employees backpay as required by the decision of the National Labor Relations Board. WE WILL bargain collectively, on request, with Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO, as the exclusive representative of all our Festus, Missouri, employees in the appropriate unit described below, with respect to the effects of our relocation, and, if an understanding is reached, embody it in a signed agreement. The appropriate bargaining unit is: All nonsupervisory production, mainte- nance, packing and shipping workers, ex- cluding officers, executives, designers, assis- tant designers, superintendents, supervisory personnel, instructors, pattern makers, assis- tant pattern makers, mechanics, office work- ers, billers and clerical workers who do not handle any garments, parts thereof, or any raw materials. Co-ED GARMENT COMPANY AND ITS ALTER EGO DELTA MANUFACTURING CORPORATION DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The original charge in this case was filed by Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO, hereinafter referred to as the Union, on April 22, 1976, and was served upon Co-Ed Garment Company, hereinafter referred to as Co-Ed. An amended charge was filed by the Union on August 6, 1976, and was served upon Co-Ed and Delta Manufacturing Corporation, hereinafter referred to as Delta. On August 9, 1976, the complaint issued, alleging that Co-Ed and Delta are alter egos and that they violated Section 8(a)(1), (3), and (5) of the Act by Co-Ed's refusal to execute and abide by an association contract by which it was bound because it failed to withdraw from the association at an appropriate time, by terminating all operations and employees at their original Festus, Missouri, location, and by transferring their operations to Greenwood, Mississippi, without notify- ing or giving the Union an opportunity to bargain over the decision to relocate their operations or the effects of the decision. Co-Ed and Delta filed separate answers denying that they were alter egos and denying the commission of any unfair labor practices. A hearing was held before Administrative Law Judge Wellington A. Gillis in St. Louis, Missouri, on September 15 and 16, 1976. At the conclusion of the hearing, the parties waived oral argument and were given leave to file briefs which were received from the General Counsel and Respondent.' Following the hearing, Administrative Law Judge Gillis died before he was able to write his decision. Upon notification of his death, all parties consented to the issuance of a decision by another Administrative Law Judge based on the record made before Administrative Law Judge Gillis pursuant to Section 102.36 of the Board's Rules and Regulations, Series 8, as amended. On March 31, 1977, the Chief Administrative Law Judge designated me to prepare and issue a decision on the basis of said record. Upon consideration of the entire record in this case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Co-Ed is a Missouri corporation at Festus, Missouri, engaged in the manufacture and sale of women's and children's garments until April 1976. During the calendar year 1975, Co-Ed manufactured and sold products valued in excess of $50,000 which are shipped directly to points outside the State of Missouri. Delta is a Mississippi corporation at Greenwood, Mississippi, engaged in the manufacture and sale of women's and children's garments beginning in April 1976. During the calendar year 1976, Delta manufactured and sold products valued in excess of $50,000 which it shipped directly to points outside Mississippi. I find that Co-Ed and Delta are both employers engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. The allegation of the complaint that Co-Ed and Delta are alter egos is deferred for consideration and resolution below. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts I. Bargaining history For many years Co-Ed had a bargaining relationship with the Union and until the events at issue herein that relationship was amicable. In 1958, Co-Ed became a member of the Associated Garment Industry, hereinafter I Errors in the transcript have been noted and corrected. 850 CO-ED GARMENT CO. referred to as AGI, an association of manufacturers in the ladies' garment industry in the greater St. Louis area which negotiated collective-bargaining agreements with the Union on behalf of its members. Upon its acceptance as a member of AGI, Co-Ed became bound by the terms and conditions of a collective-bargaining agreement then in effect between AGI and the Union, and, upon expiration of that agreement, AGI and the Union negotiated a series of successor agreements, the most recent of which bore an expiration date of February 15, 1976, by which Co-Ed was concededly bound. 2. The negotiation of the renewal agreement between AGI and the Union On November 17, 1975, the Union gave notice to AGI of its desire to negotiate a new agreement pursuant to the terms of the expiring agreement. Thereafter, AGI and the Union held negotiating meetings on January 29 and 30 and February 4, 9, 11, and 13, 1976. Agreement was reached on the latter date for a new contract to be effective from February 16, 1976, through June 15, 1979. Joe Moore, chairman of the AGI board of directors, represented AGI in the negotiations along with AGI's attorney, but all members of AGI were invited to attend negotiating meetings as observers. During the 1976 negoti- ations Co-Ed President Albert Finn attended one meeting, and Howard Sax, Finn's son-in-law and manager of Co- Ed, attended several of them.2 After the new agreement became effective on February 16, 1976, Co-Ed made payments to the Union's health and welfare fund at the rate set forth in the new agreement and gave its employees the wage increase provided therein. Co- Ed also continued to pay dues to AGI. After the negotiations were completed, Moore sent authorization slips to the manufacturers covered by the agreement and asked them to sign them so as to be listed in an appendix to the agreement. Co-Ed and one other manufacturer did not return signed authorizations, and Moore delayed sending the list for the appendix to the Union for quite some time. Finally, when the Union pressed for the list, Moore gave the two firms deadlines but still received nothing back from Co-Ed. Sometime in April when Moore told Clay that Co-Ed would not be listed, Clay asked why, noting that Co-Ed representatives had attended the negotiating meetings. Moore replied that Co- Ed had said it was not going to be bound by the contract now. 3. Respondent's operating problems In the fiscal year ending March 31, 1975, Co-Ed lost approximately $70,000. Early in the next fiscal year Finn unsuccessfully sought aid from Co-Ed stockholders 3 to 2 Finn testified that he did not believe he attended any sessions, but Moore, Union Manager Pearlstein, and Union Assistant Regional Director Clay all testified that they saw him at one meeting. Sax testified that he attended two or three meetings. Pearlstein and Clay testified that they believed Sax was at all the meetings, Moore testified that Sax attended several, and Shop Chairperson Turley testified that she saw Sax at all but one of the meetings. I have credited Moore who had no apparent reason to distort the facts. :' Earl Fishgall. Garrison Fishgall, and Richard Boguslaw. Earl Fishgall obtain collateral so that Co-Ed could borrow additional money. Finn also unsuccessfully sought bank loans but was refused because of Co-Ed's losses. Finally, Finn and his wife pledged their own home and personal stock as collateral and obtained a $150,000 line of credit for Co-Ed. Co-Ed's major customer was the Girl Scouts of America for whom it made uniforms. In October 1975, Finn sought a price increase from the Scouts to obtain financial relief. The Scouts told Finn that the most they could give him was a 3-percent increase. At that time there were indications that garment industry negotiations in New York would result in a substantial increase. As the New York settlement usually set a pattern for St. Louis negotiations, Finn told the Scouts that he could not manage with a 3- percent increase, but gained no further concession. In early January, Finn again told the Scouts that he could not manage with a 3-percent increase, but was still unable to obtain any further increase. In January 1976, Finn began to seek another garment company to take over the plant which Co-Ed leased in Festus, Missouri. 4. Communications between Co-Ed officials and the Union in early 1976 In early January 1976, Howard Sax, son-in-law of Finn and a manager of Co-Ed, told Junette Turley, shop chairperson for the Union, that Co-Ed was in a very difficult position and had substantial losses. Sax told her that they had a new contract coming up and that Co-Ed would like to cut the piece rates on the Scout uniforms, which he believed were excessive, but not on sportswear made for other customers. Turley told Sax that she could do nothing about it and that he would have to take the matter to Union Manager Jerry Pearlstein. Sax asked if he could meet with the shop executive committee. Sax told Turley what Co-Ed was being paid by the Scouts and said that he did not feel he could meet the new contract when it went into effect. Sax said that, if Co-Ed did not get some kind of accommodation from the Union, it would be forced to close.4 On the next day, Sax met with the shop committee and told it of Co-Ed's financial problems. Sax said that, if the rumors about the New York settlement were correct, Co- Ed could not stand such an increase and stay in business. Sax asked the committee for either a moratorium on the wage increase expected in the new contract or an adjustment in piece rates paid by Co-Ed on Scout garments so that employee earnings would remain at current levels. The committee responded that its members were not interested in a rollback of piece rates. They indicated possible interest in a freeze on a wage increase, but told Sax was not identified as a stockholder but apparently represented his wife who was a stockholder. 4 These findings are based on a composite of the testimony of Sax and Turley. Although Turley did not testify that Sax said that Co-Ed would be forced to close, she did not deny Sax's testimony to that effect and, under her version, the possibility of shutdown was implicit. I find it likely that Sax voiced that possibility as an argument to gain favorable attention to Co-Ed's request for piece rate relief. I have credited Sax in this regard. 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they would have to speak to Union Manager Pearlstein before they could comment on the request.5 On the next day Sax told Turley that Finn would like to meet with the committee to explain Co-Ed's position. Turley told him that she would have to speak with Pearlstein, and later told him that Pearlstein had said that the committee could not meet with Finn. Thereafter, in early January, Finn met with Pearlstein and asked for a moratorium to relieve Co-Ed from the obligation to pay any increases required by a new contract. Finn said that he could not continue to operate the business under the terms of a new contract and that some relief had to be given. Pearlstein expressed doubt of Finn's sincerity, and Finn offered to let Pearlstein inspect his books to confirm Co-Ed's losses. Pearlstein told Finn that he had an association and should take the matter up with AGI. According to Finn, he also told Pearlstein that he could not be a party to a new contract, but Pearlstein denied that he received any notice of Co-Ed's withdrawal from AGI. 6 According to Finn, a few days after he met with Pearlstein, he telephoned Moore, told him about his meeting with Pearlstein, advised Moore that he could not be part of the new contract, and said that he was "under the circumstances of closing the operation." Finn testified that Moore told him that it was his decision to make and that AGI would not include him in the list of manufactur- ers bound by the contract. Moore denied that he received any notice of withdrawal from AGI before or during the 1976 negotiations. Moore also denied that he had any conversation with Finn in early January concerning Finn's conversation with Pearlstein. Finn concededly gave no written notice of withdrawal to the Union or AGI. Apart from the conversation described above between Finn and Pearlstein, in January, Finn also spoke to Pearlstein about finding another manufacturer to take over Co-Ed's lease in Festus, and Pearlstein suggested some manufacturers for Finn to contact. In late January or early February Turley stopped Sax in the factory on one occasion and asked him to please tell her when the Company was closing. On either that occasion or another, after the AGI contract negotiations were completed, Turley asked Sax what was going on and whether Co-Ed had any work. Sax told her that Co-Ed had a lot of work if they could get a price increase from the Scouts and that they would know after March 31 whether Co-Ed could continue to operate. 5. The termination of Co-Ed operations, the startup of Delta, and the relationship of the two corporations All manufacturing operations at Co-Ed ended on April 9, 1976. According to Shop Chairperson Turley, she had no advance notice of the closing until that afternoon when the I These findings are based on the testimony of Sax. Turley's version was not in conflict and she conceded that Sax might have said that Co-Ed could not stay in business without some kind of relief. 6 In my findings as to this conversation except as to the alleged notice of withdrawal from AGI, discussed below, I have relied on Finn's version where in conflict with Pearlstein. Although Pearlstein denied expressing disbelief of Finn's claim of hardship, he conceded that Finn offered to show Pearlstein his books, and I find Finn's version that Pearlstein first employees were told not to start a bundle they could not finish and that they would be laid off. At approximately the same time, manufacturing operations began at a plant leased by Delta in Greenwood, Mississippi. Co-Ed was a family-held corporation. As of April 9, there were 6,000 shares of common stock outstanding in Co-Ed. June Finn, her husband, their daughters, and a son- in-law held 3,001 as follows: June Finn - 2,263, Albert Finn (husband of June) - I, Patricia Sax (daughter of June) - 368, Howard Sax (husband of Patricia) - 1, and Deborah Saphin (daughter of June) - 368. The remaining 2,999 shares of Co-Ed stock were held as follows: Esther Doischman (mother of June Finn and Sylvia Fishgall) - 10, Sylvia Fishgall - 2,251, Richard Boguslaw (son of Sylvia) - 369, and Garrison Fishgall (son of Sylvia) - 369. The directors of Co-Ed were Albert Finn, June Finn, Sylvia Fishgall, and Earl Fishgall (husband of Sylvia). The officers of Co-Ed were Albert Finn, president; June Finn, vice president; and Howard Sax, treasurer. Howard Sax was a manager of Co-Ed, and he and Albert Finn made the decisions for Co-Ed, dealt with the Union, and handled the administration of the collective-bargaining agreements between the Union and AGI. Buford Govero was mechan- ic and assistant manager for Co-Ed, and James Pinkney was Co-Ed's only cutter. The Fishgall family never took an active role in running Co-Ed. Until it ceased operations, Co-Ed's principal customer was the Girl Scouts of America but it also had other customers for whom it manufactured sportswear. As of April 9 Co-Ed had approximately 60 employees, and the maximum number it employed at the Festus plant in 1976 was 90. Delta was formed in 1976.7 June Finn was its sole stockholder. Its directors were Albert Finn, June Finn, and Howard Sax. Its officers from March 31 through June 1, 1976, were Albert Finn, president; June Finn, vice president; and Howard Sax, secretary-treasurer. After June I, Howard Sax became executive vice president and Patricia Sax became secretary-treasurer. Howard Sax was the general manager of Delta. Buford Govero was head mechanic and a manager for Delta. James Pinkney was the sole cutter of Delta. Delta hired its remaining employees locally, and at the time of the hearing had slightly more than 100 employees. Delta's sole customer from the time it began operations until the time of the hearing was the Girl Scouts of America. The Scout uniforms and trim made by Delta were identical to the uniforms and trim made for the Scouts previously by Co-Ed. At the time of the hearing, there were approximately 130 machines on the factory floor at Delta. Delta purchased 43 of them at a cost of $27,000 from a Jackson, Mississippi, supplier not previously used by Co-Ed. Delta bought the remainder of the machines from Co-Ed for which it paid challenged his sincerity more plausible. Also I find it likely that Finn expressed inability to continue operations without relief to add urgency to his plea as Sax had done previously in speaking with Turley and the shop committee. The conflict in testimony as to withdrawal from AGI is discussed in the concluding findings below. I Although the date of Delta's incorporation is not in the record, it appears from the stipulation as to officers and the entries for capital payments that Delta came into existence around March 31. 852 CO-ED GARMENT CO. $28,755. To establish a price for Co-Ed's machines, Finn submitted a list of Co-Ed's equipment to another sewing machine supply company and obtained two offers. One was for $22,000 for all Co-Ed's equipment as a bulk sale. An offer with a higher total figure was based upon individual pricing and sale of each machine. Delta paid the higher figure to Co-Ed.8 Delta bought Co-Ed's office and cafeteria equipment and its company car. Delta also bought Co-Ed's work in progress, finished goods, and trim, and Co-Ed billed Delta in the amount of $52,765 for that work. Finn testified that the work in progress was valued at one half of its billing price in accord with a 30-year practice in the industry. Finished goods and trim were valued at their billing price. The decisions to close Co-Ed, to open Delta, to sell Co- Ed's machinery, work in progress, and company car, and to buy these things for Delta were all made by Finn on behalf of both corporations. Delta's capital account shows payments for common stock totaling $54,000. The source of all but $4,500 was described on the record. Two payments totaling $7,500 were made from bank accounts of Albert and June Finn containing money which Albert received from a pension and which both received from dividends and other sources. The biggest single payment, $27,000, came about after Co- Ed's repayment to the Finns for loans they had made to Co-Ed in that amount.9 A final payment of $15,000 credited to the capital account on June 30 appears attributable to a check for $15,000 which Finn drew on the account of Co-Ed payable to Delta. Finn could not explain the basis for that payment. When Co-Ed closed it had an outstanding loan from the Commerce Bank of St. Louis for about $150,000. Part of the loan was paid off from Co-Ed's receipts on its accounts receivable from the Scouts. The remainder, $84,000, was paid from the proceeds of the sale of Finn's home in St. Louis. Starting in May, Delta made periodic payments to Co- Ed for the equipment and materials it purchased from Co- Ed. At the time of the hearing it still owed approximately $20,000 on a total obligation of $74,000, and at the time Co-Ed's $15,000 check was paid to Delta on June 8, Delta was indebted to Co-Ed. At the time of the hearing Sax anticipated that work on Scout uniforms would continue only for about 2 more weeks because Scouts had notified Delta that they could not continue to do business with Delta because of a threatened boycott. Sax testified that starting about October 1, 1976, Delta would no longer manufacture Scout uniforms. 6. The reasons for closing Co-Ed and starting Delta Finn testified that he decided to close Co-Ed's operation in mid-January because he could not afford to pay the I Delta bought all of Co-Ed's machines. approximately 150, but apparently did not utilize all of them. ' It appears from canceled checks that Co-Ed first received a payment from Delta in that amount and that Co-Ed then repaid Mrs. Finn who deposited Co-Ed's check in Delta's account. Although the canceled checks rates under the AGI contract and because of the financial condition of the Company. For the fiscal year ending March 31, 1975, Co-Ed had an operating loss of approximately $70,000. On that date it had liabilities of $33,000 against current assets of only $11,000. Its total net worth was approximately $15,000. During the fiscal year ending March 31, 1976, Co-Ed lost an additional $67,000. On that date its net worth showed a deficit of approximately $51,000, without regard to its future obligation under its lease. Co-Ed's accountant testified that Co-Ed was insolvent and that the "main thing that really drove the last nail into the coffin" for Co-Ed was its "continuing squeeze on its labor costs." He testified that because the piece goods on which Co-Ed worked were owned by Scouts the basic thing which Co-Ed sold to Scouts was labor. Finn testified that, when he decided to close Co-Ed, he also decided that he wanted to start another operation for his immediate family at a place where he could find adequate financing, adequate living quarters, a building to operate in, and adequate help. He testified that he did not include the Fishgall family in his plans because they would not give collateral for Co-Ed and there was no reason to think that they would be interested in giving collateral for a new operation. Finn testified that he chose to locate in Greenwood because its bank agreed to discount Scout purchase orders to enable him to obtain working capital. Finn testified that the arrangement was extraordinary and was the only way he could get proper financing. 7. The evidence as to the notice given by Finn of the intention to start operations at Greenwood According to Finn, in late March or early April he told Shop Chairperson Turley that he was going to open a plant and offered a job to her or anyone else who wanted to come down. Finn also testified, however, that he did not advise the Union specifically that he was moving to Greenwood, that he did not say that he was moving, and that he said that he was starting a new company. Finn denied that he would not discuss the move with the Union or the effects of the move on the people at Festus. Turley denied having any conversation with Finn about a job in Greenwood. Howard Sax testified that one morning in February he discovered that the drawers of Finn's desk had been opened and contents which had been put away the night before were on top of the desk. Sax testified that correspondence which Finn had with different possible locations for the new operation, including Greenwood, was left on the desk. Sax testified that the same morning the shop secretary for the Union stopped him in the plant, asked him how he was going to like Greenwood, and made a further derogatory comment about how many people it would take to replace her there.10 contradict Albert Finn's testimony as to the source of Co-Ed's funds and the sequence of payment. there is no evidence to contradict Finn's testimony that Co-Ed owed the Finns the money. to Sax's testimony in this regard was not contradicted. 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Manager Pearlstein testified that he first learned of the closing of the plant and the move to Greenwood on April 14 when he went to the plant to attend a regular meeting of the shop executive committee. He saw a trailer backed up to the plant, entered the plant, and discovered that it was virtually empty. When the truck left, he attempted to follow it but the driver noticed him and the driver returned to the plant. Pearlstein then arranged to have the truck followed by someone else who followed it to Greenwood. Turley testified that the employees did not hear rumors about the plant closing, but they could see material and machines being moved out of the plant a couple of weeks before they were told they would be laid off on April 9. B. Concluding Findings 1. Co-Ed's obligation with respect to the AGI contract The first question to be decided is whether Co-Ed became bound by the terms and conditions of the agreement between the Union and AGI which became effective on February 16, 1976. Co-Ed contends that it did not because it gave timely notice of withdrawal from negotiations or in the alternative because its withdrawal was justified by unusual circumstances. In Retail Associates, Inc., 120 NLRB 388, 395 (1958), the Board set forth rules, which it continues to follow, governing withdrawal from multiemployer bargaining. It held: We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargain- ing negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances. Here, the evidence is disputed as to whether Co-Ed communicated any intention to withdraw from muitiem- ployer bargaining before negotiations commenced. Al- though it seems clear that Finn and Sax told union representatives that Co-Ed might have to go out of business if it did not get relief from its financial problems, I am not persuaded that Finn told Pearlstein or Moore in January that he could not be a party to a new contract. I have indicated above that Finn's version of his January conversation with Pearlstein is more plausible than Pearl- stein's in other respects, but the evidence overall persuades me that Finn sought only to convey that without relief he might be forced to go out of business and otherwise sought to avoid any confrontation with the Union while he pursued his investigation of the business alternatives available to him. Moore, who denied participating in the i Hi-WaY Billboards, Inc., 206 NLRB 22, 23 (1973), enforcement denied 500 F.2d 181 (C.A. 5. 1974). conversation which Finn described, had no reason to misrepresent his dealings with Finn, and the conduct of Finn and Sax otherwise from January through early April was not consistent with any expressed intent to withdraw from multiemployer bargaining. Thus, Co-Ed was repre- sented at most of the bargaining sessions by Finn or Sax. When the new AGI agreement was reached, Co-Ed promptly put into effect the changes that were negotiated, and Co-Ed continued to pay dues to AGI. After the agreement was reached, Moore sent Co-Ed an authoriza- tion form consistent with his denial that Finn had told him he wanted to withdraw, and Co-Ed avoided the issue by failing to reply in any way. According to Finn, he put the contract terms into effect to avoid any stoppages while finishing up Co-Ed's remaining orders, and he continued to pay dues to AGI to continue his personal health insurance as part of the AGI group. As for the former, the threat of a work stoppage which Finn sought to avoid also would have followed from notice by Co-Ed of an intent not to be bound by the new agreement. As for the latter, Finn conceded that he was able to obtain individual coverage when he resigned from AGI in April at the time of the shutdown of Co-Ed, and no reason appears why he could not have done so earlier. I conclude that it was Finn's purpose to conceal as long as possible his intent not to become bound by the new agreement while finishing up the work of Co-Ed and completing arrangements for Delta's operations to start in Greenwood. I find that Co-Ed did not attempt to withdraw from the multiemployer unit until substantially after February 16 when following Co-Ed's failure to return an authorization to Moore he ascertained that Co-Ed did not intend to be bound by the agreement. The question remains whether there were "unusual circumstances" to justify Respondent's later attempt to avoid any obligation under the AGI contract. The term "unusual circumstances" as used in Retail Associates has been interpreted by the Board in U.S. Lingerie Corporation and U.S. Lingerie Corporation, Debtor in Possession, 170 NLRB 750 (1968), and later cases to include "those cases in which the withdrawing employer has been faced with dire economic circumstances, i.e., circumstances in which the very existence of an employer as a viable business entity has ceased or is about to cease."" Here, assuming the economic circumstances Co-Ed was faced with and which existed before the start of bargaining were dire and doomed its continued existence, Co-Ed did not attempt to withdraw from multiemployer bargaining until after the new agreement had been reached and became effective. "Unusual circumstances" may justify withdrawal from bargaining for a multiemployer agreement but not from an agreement already reached. For, once an agreement is reached, the employer who refuses to sign or abide by the multiemployer contract is in no different position from any individual employer who has bargained to a contract and later seeks to renounce its terms.i2 Accordingly, I find that Co-Ed did not seek to withdraw from multiemployer bargaining until after negotiations were completed at a time when it had already become bound by the AGI agreement. I find further that its attempt to repudiate the 12 But see Atlas Electrical Service Co., 176 NLRB 827, 830(1969). 854 agreement at an indeterminate later date violated Section 8(a)(5) and (1) of the Act. 2. The relationship between Delta and Co-Ed Resolution of the remaining allegations of unfair labor practices depends upon whether Delta is an alter ego of Co-Ed. The answer to that question depends in turn upon whether "the two enterprises have 'substantially identical' management business purpose, operation, equipment, customers and supervision, as well as ownership," 1 3 so that the "new" employer may be said to constitute "merely a disguised continuance of the old employer."' 14 I am persuaded from the evidence that Delta is Co-Ed's alter ego. a. Although Co-Ed and Delta point to the differences in the ownership of their stock as evidence that they are separate, I find that the ownership of both is in fact substantially the same. It is true that the immediate Finn family owned only one share more than half the stock in Co-Ed, while Mrs. Finn owns all the stock in Delta. But the numbers of shares tell only part of the story. By April, Co- Ed was insolvent. It had stayed afloat only as a result of loans made to it by Mr. and Mrs. Finn. Thus, by April the beneficial ownership of Co-Ed was entirely in Mr. and Mrs. Finn, and the interest of the remaining stockholders was reduced to a paper ownership interest. That Mrs. Finn alone held all the Delta stock also reflects no real change in ownership. It was the loans of Mr. and Mrs. Finn which kept Co-Ed afloat, and it was repayment of those loans coupled with some additional infusion of capital by Mr. Finn which capitalized Delta.'s I find in these circumstanc- es that the ownership of Delta is substantially the same as that of Co-Ed prior to its closing. b. I further find that the managements of Co-Ed and Delta are substantially identical. Initially the officers of the two corporations were identical, and two of the four directors, the Finns, remained the same. Direction and management of the day-to-day affairs of Co-Ed, including labor relations, had been in the hands of Albert Finn and Howard Sax, and these two served in the same capacity in Delta. Most graphic illustration of the identity of manage- ment of the two corporations comes from the evidence as to the transactions between them as Co-Ed terminated its operations and Delta started up. Albert Finn made all the decisions for both corporations as to what Delta would buy and how much it would pay and as to what Co-Ed would sell and for what price. Although Respondents contend these were arms-length transactions, it is impossible to conceive of any meaningful definition of that term which would describe the transactions between Albert Finn, on behalf of Delta, and Albert Finn, on behalf of Co-Ed. t:' Craaford Door Sales Company. Inc.. 226 NLRB 1144 (1976). i Southpori Petroleum Compan), v. N. L.R.B., 315 U.S. I00, 106 (1942). u The General Counsel contends that Co-Ed capitalized Greenwood by transfer of funds to Greenwood, pointing to the entries in the Greenwood capital account for $27,000 and $15,100, which appear closely related to pay ments by Co-Ed to Mrs. Finn and Delta. As set forth above, there is no reason to reject Finn's explanation that the $27,000 payment by Co-Ed to Mrs. Finn was repayment of a loan. The $15,000 payment from Co-Ed to Delta was never explained, and at best can only represent a further payment bh C(o-Ed for the benefit of the Finns on account of their loans to Co-Ed. "i Finn testified that initially Delta intended to purchase no equipment CO-ED GARMENT CO. There were in fact no transactions between separate managements but a series of decisions made by one individual acting simultaneously for both corporations. c. The evidence also shows substantial identity in the business purposes, operation, equipment, customers, and supervision of the two organizations. Both corporations operated as contractors in the garment industry, taking materials furnished by customers, cutting, sewing, and performing certain finishing operations. Although Delta purchased some equipment from outside suppliers, the bulk of its equipment was purchased from Co-Ed, 16 and the kinds of equipment it utilized were identical to what Co-Ed had used. Although Co-Ed also had other custom- ers, the Scouts were its major customer and it was Co-Ed's inability to work out a better price from the Scouts which led to its decision to close. While the Scouts were Delta's only customer and entered separate contracts with Delta, it presumably was no more able than Co-Ed to obtain a higher price for its work, and apparently with the acquiescence of the Scouts took over and completed Co- Ed's work in progress. While the vast majority of Delta's employees were new hires, four key persons remained the same as at Co-Ed. Finn and Sax, who made the significant management decisions for both corporations, Govero, mechanic and assistant manager for Co-Ed who became head mechanic and a manager for Delta,'7 and Pinkney who was the sole cutter for both. I find in all the circumstances that Delta is the alter ego of Co-Ed. 3. The obligation of Co-Ed and Delta to bargain over relocation of the plant Co-Ed and Delta contend that any bargaining obligation they might have had was met because the Union was aware that the operation was going to move and made no effort to seek bargaining over the move. The evidence is in some dispute, but it is clear that Co- Ed never gave any notice to the Union or its employees that the operations were to be moved to Greenwood in mid-April. Indeed, consistent with the position taken in this case that Co-Ed was closing and that the Finns were starting an entirely new enterprise in Mississippi, Sax and Finn in January told Turley, Pearlstein, and the shop committee that if Co-Ed could not resolve its financial problems it would be forced to close and go out of business. There is no evidence, however, that Sax or Finn ever gave any notice that Co-Ed was in fact closing until the day it stopped operating or that it gave any notice that its operations were being moved to Greenwood. Even according to Finn's disputed testimony that he told Turley he was starting a new company, he did not state that Co-Ed from Co-Ed but did so after problems arose concerning Co-Ed's lease which placed the secunty of Co-Ed's equipment in doubt. Whatever the motive for Delta's purchase, it remains clear that Delta's equipment is substantially identical to that of Co-Ed. Indeed, if Finn is believed, Delta changed its plans because of Co-Ed's problem, further showing that the management of the two corporations was identical. Also supporting that conclusion is Finn's testimony as to how the price Delta paid Co-Ed for the machines was arrived at, with Delta paying a price based on individual pricing of the machines despite the fact that it made a bulk purchase. i' The record does not show how many other managerial or supervisory employees either corporation had. 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was moving and did not tell Turley where or when he was opening a new plant. The only other evidence relating to notice of the move is Sax's testimony that an unidentified person or persons went through Finn's desk leaving correspondence concerning different possible new plant sites, including Greenwood, on the desk, after which the shop secretary for the Union made a remark to him about going to Greenwood. While notice by the employer to his employees' representative of his plans may not be neces- sary if the Union gains knowledge of the employer's plans and fails to seek bargaining, here the evidence as to knowledge gained by the shop secretary and Finn's disputed conversation with Turley establishes knowledge of nothing more than the position taken by Respondent throughout, i.e., that Co-Ed was closing and that Finn was starting a new company somewhere else. There is no evidence that the Union gained knowledge through the shop secretary or anyone else that Co-Ed was moving its plant to Greenwood to continue operation in the guise of an alter ego, and the evidence points strongly to the opposite conclusion that not only did the Union fail to gain that knowledge but also that Co-Ed sought to create a different impression and to conceal the fact of the move and the new location from the Union. While the Union in this case showed little interest in pursuing Co-Ed's predictions that it would be forced to go out of business and did not ever request bargaining over the effects of a shutdown, it does not follow that it would not have sought to bargain over removal of the plant had it known of Co-Ed's intentions to continue operations elsewhere in the guise of an alter ego. Accordingly, I find that Co-Ed and its alter ego Delta independently violated Section 8(a)(5) of the Act by relocating their operations without giving the Union notice of the move and an opportunity to bargain with respect to the move or its effects on bargaining unit employees. This conclusion follows whether or not Co-Ed effectively withdrew from the AGI unit for, even if its withdrawal were effective, the Union continued to represent Co-Ed's employees,' and Co-Ed was obligated to bargain with it over the move. 4. The alleged discrimination against Co-Ed's employees The remaining question is whether, by moving their operations from Missouri to Mississippi and terminating all Co-Ed employees at Festus, Co-Ed and Delta also violated Section 8(a)(3) and (1) of the Act. The General Counsel does not contend that Co-Ed had a specific antiunion motive, and there is no evidence of hostility to the Union as such. The General Counsel contends, however, that proof of such hostility is unnecessary here because Co-Ed relocated its plant to escape the Union and its contract and its conduct was "inherently destructive of employee interests" within the meaning of N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967). The evidence supports the contention that Co-Ed relocated its plant to escape the Union and more specifically its contract. When Co-Ed was unsuccessful in "' Tahoe Nugget, Inc., d/b/a Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976). l N.L.R.B. v. Great Dane Trailers, Inc., supra. its efforts to obtain rate relief from the Union, Finn and Sax told union officials that it could not continue to operate with the wage increases it anticipated under a new agreement. However, rather than withdraw from AGI and face separate negotiations, a possible strike, and attendant disruption of its operations in Festus before it was ready to make its move, Co-Ed bided its time, remained in the association, and promptly put into effect the new terms negotiated by AGI despite its not unfounded claim of inability to pay. When it completed arrangements for moving to Greenwood, it terminated all its Festus person- nel except its cutter and managerial personnel, and it made the move without notice to or bargaining with the Union. It began operations in Greenwood with new employees, no contract, and no union. I find that the reasons given by Finn in his testimony for closing the Festus plant, as well as the testimony of Co-Ed's accountant, leave no doubt that avoidance of contract rates was the reason for the move. I find further that termination of all employees and a move for that reason falls in the category of conduct "inherently destructive" of employee rights, for no conduct can be any more discouraging of union membership and activity than loss of employment caused by successful union representation. In these circumstances, the burden shifts to the employer to justify his conduct and, notwith- standing the employer's explanation, the Board may nonetheless draw an inference of improper motive from the conduct itself and strike a balance between the proffered justification and the infringement of employee rights.'9 Co-Ed's asserted justification for its conduct was the serious financial problem which faced it in January when in the face of continuing losses it failed to get desired increases from its principal customer and failed to get requested relief from the Union on its piece or contract rates. Nonetheless, by January when negotiations were about to commence on a new AGI agreement Co-Ed had options other than the course it chose to follow. It could have gone out of business, it could have withdrawn from AGI and faced the Union in separate negotiations, and, in or out of AGI, it could have given the Union notice of its intent to relocate and operate in a lower cost area. The first alternative, although destructive of employee interests, would not have violated the Act.20 The others, which would have undoubtedly led to confrontation with the Union, might have well have led to the same ultimate result, but only after an attempt through negotiations to reconcile Co-Ed's needs with its employees' interests. I find that as Co-Ed purported to go out of business and sought to evade its obligations through the guise of an alter ego, its problems however pressing cannot justify the infringement of employee rights which flowed from the conduct of Co- Ed and Delta. Accordingly, I find that Co-Ed and its alter ego Delta also violated Section 8(a)(3) and (1) of the Act by terminating Co-Ed's Missouri employees and moving its 20 Textile Workers Union of America v. Darlington Manufacturing Company, et al., 380 U.S. 263 (1965). 856 CO-ED GARMENT CO. plant to Mississippi where it continued to operate as Delta. 2' IV. THE REMEDY Having found that Delta is the alter ego of Co-Ed and that they have engaged in violations of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that they be ordered jointly and severally to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Board has customarily not required an employer who has unlawfully removed his plant to restore its operations at the original location, to reinstate its employ- ees, and to bargain, but it has sought to fashion remedial alternatives should the employer elect to continue operat- ing at the new location.2 2 Accordingly, I shall recommend that Co-Ed and Delta be ordered to offer all employees discriminated against as a result of the relocation of the Co-Ed plant reinstatement to their former jobs or, if those jobs are no longer available, to substantially equivalent jobs at a plant in the Festus, Missouri, area, if Co-Ed or Delta resumes operations there, or at Delta's Greenwood plant, without prejudice to the employees' seniority and other rights and privileges, dismissing newly hired employ- ees if necessary to make room for them. If there are not sufficient jobs for all former Co-Ed employees, Co-Ed and Delta shall be required to place the names of all of the remaining employees on a preferential hiring list and to offer employment to them as and when positions for which they are qualified become available and before other persons are hired for such work. Co-Ed and Delta shall also offer to pay employees travel and moving expenses entailed in moving themselves and their families and household effects to Greenwood in the event that they do not reopen their plant in the Festus area. In addition, Co-Ed and Delta shall make whole those employees who were terminated by Delta as a result of the decision to relocate the plant for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them a sum of money equal to the amount he would have normally earned from the date he was terminated as a result of the decision to relocate the Festus plant to the date of a valid offer of reinstatement at any plant that Co-Ed and/or Delta may open in the Festus area, or if no such plant is opened to the date that he secures substantially equivalent employment, less his net earnings during such period to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall further recommend that Co-Ed and Delta be required to bargain with the Union as the representative of their employees at any plant in the Festus, Missouri, area if they resume operations in that area. In the alternative, if they do not resume such operations they shall be required to bargain with International Ladies Garment Workers Union, AFL-CIO, as a representative of the employees at their Greenwood, Mississippi, plant upon proof that a 21 Helrose Binder', Inc. and Graphic Arts Finishing, Inc., 204 NLRB 499 (1973). majority of the employees in the appropriate unit at Greenwood have designated said union as their exclusive representative. In order to dissipate the effects of the unfair labor practices upon the employees at the Greenwood, Mississip- pi, location in the event that Co-Ed and Delta determine to continue operations at that location I shall recommend that they be ordered to furnish International Ladies Garment Workers Union, AFL-CIO, upon request made within 1 year the names and addresses of all employees at the Greenwood plant and to keep that list current for a 1- year period. I shall further recommend that they be required upon request of said Union within 1 month of this Decision to grant it and its representatives reasonable access to their bulletin boards and to all places where notices are customarily posted for a period of I year and to permit employees to have access to its organizers on plant parking lots and plant approaches during nonworking hours.23 CONCLUSIONS OF LAW I. Respondents Co-Ed Garment Company and Delta Manufacturing Corporation are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Eastern Missouri District Council, International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All nonsupervisory production, maintenance, pack- ing and shipping workers employed by Respondents at their Festus, Missouri, plant or at their Greenwood, Mississippi, plant excluding officers or executives, design- ers, assistant designers, superintendents, supervisory personnel, instructors, pattern makers, assistant pattern makers, mechanics, office workers, billers and clerical workers who do not handle any garments, parts thereof, or any raw materials constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act. 4. At all times material herein the Union has been the exclusive representative for the purposes of collective bargaining within the meaning of Section 9(a) of the Act of the employees in the aforesaid unit at Respondent's Festus, Missouri, plant. 5. By attempting to withdraw from a multiemployer unit at an inappropriate time and refusing to accept and be bound by a multiemployer agreement previously reached, and by unilaterally and without prior notice and consulta- tion with the Union terminating Co-Ed's employees, closing down its Festus, Missouri, plant, and removing the same to Greenwood, Mississippi, where Co-Ed's operations continued under the name of Delta, an alter ego, in order to deprive employees of their rights guaranteed by Section 7 of the Act and to avoid bargaining and otherwise dealing with the Union as the collective-bargaining representative of said employees, Respondents have violated Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 22 Gar'win Corporation. etc., 169 NLRB 1030(1968). 23 Gar'win Corporation, etc supra. 857