Leybro Manufacturing Co.

In the Matter of JOSEPH LEVY, JACK LEVY, AND ISAAC LEVY, DOING BUSIN•ESS""UNDER THE NAME 'AND STYLE OF LEYBRO MANUFACTURING COMPANY AND LEYBRO MANUFACTURING CO. OF NEW JERSEY, INC. and CHILDREN'S DRESS, INFANTS WEAR,. HOUSEDRESS AND BATHROBE WORKERS UNION; LOCAL #91, INTERNATIONAL LADIES GARMENT' WORKERS UNION Case No. C-1481.-Decided June 17, 1940 Pajama and Nightgown Manufacturing Industry-Interference, Restraints and Coercion: statements of officials and supervisors disparaging Union and discourag- ing membership therein ; advising that the employer would refuse to deal with Union; threatening to remove operations should Union succeed in its organiza- tion drive-Strike. called by Union to organize employees ; manufacturing opera- tions ceased as a result of-Company-Dominated Union`: direct sponsorship by- employer ; employees selected by forelady , leaders of ; since manufacturing opera-' tions ceased as a result of strike, no longer in active existence ; employer ordered to withhold -recognition of as agency for collective bargaining-Collective bar- gaining: demands by Union and counterproposals thereto by employer formed subject of various negotiations and conferences ; offer by employer of a com- promise plan for the settlement of contested matters rejected by Union ; refusal by employer to agree on Union's demand for closed shop and immediate reem- ployment of all workers on strike caused an impasse in negotiations ; allegations _of refusal to bargain, dismissed-Unit Appropriate- for Collective Bargaining: under circumstances not necessary to make a finding as to (Smith, dissenting)- Representatives: under circumstances not necessary to make' a finding as to (Smith, dissenting )-Discrimination : charges of, not sustained-Remedial Order: corporation, formed after. commission of certain unfair labor practices by co- partners, found to be business successor and alter ego of copartners ; to effectu- ate policies of the Act, Order directed to corporation as well as to copartners. Mr. William J. Avrutis, for the Board. Mr. A. J. Halprin,. of New. York. City, for the respondents. Mr. Elias Lieberman, by Mr. Nathaniel H. Janes, of New ' York City, for Local #91. Mr. Sidney L. Fishkin and Mr. Herbert M. Levy, both of New York City, for the Committee. Mr. Leonard Lindquist, of counsel to the Board. 24 N. L: R. B., No. 82. 786 JOSEPH LEVY ET AL. DECISION AND ORDER STATEMENT OF THE CASE 787 Upon charges and amended charges' duly filed by Children's Dress, Infants Wear, Housedress and Bathrobe Workers Union, Local #91, International Ladies Garment Workers Union, herein called Local #91, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region .(New York City) issued a complaint dated June 16, 1939, against Joseph Levy, ' Jack Levy, and Isaac Levy, doing business under the name and style of Leybro 'Manufacturing Company, herein called the Co-partners, al- leging that the Co-partners had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3),. and (5) and Section 2 (6) and (7). of the National Labor Relations Act, 49 Stat. 449, herein called the 'Act. ' The complaint alleged in substance that the Co-partners, person- ally and through their officers and agents at their New York City plant, (1) on and after November 1, 1938, urged, persuaded, and, warned their employees to refrain from becoming or remaining mem- bers of Local #91 and threatened to remove their operations from New York City to Keansburg, New Jersey, if the employees beiiame or remained members thereof; (2) on about February 1, 1939, dom- inated and interfered with the formation and administration of, and contributed support to, a labor organization of their employees ; (3) on and after February 20, 1939,1 refused to bargain with Local #91 although' a majority of the production and maintenance employees comprising an appropriate unit had designated Local #91 as. their bargaining representative; (4) on or about about March 23, 1939, discriminated in regard to the hire and tenure of employment of 75 named employees by refusing at all times to reinstate them to their employment following a strike ; (5) on or about March 25, 1939, removed their operations from New York City to Keansburg, New Jersey, for the purpose of locking out their employees and to evade and defeat their obligations under the Act; and (6) by the foregoing and other acts, interfered with, restrained, and coerced their em- ployees in the, exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the-Co-partners, Local #91, and Independent Employees Committee of Leybro Manufacturing Company, herein called the Committee. On June 26, 1939, the Co-partners filed their 1 The complaint was amended at the hearing of July 31, 1939 , to substitute the date "February 20, 1939" at this point in place of "February 16, 1939." 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer, admitting that prior to February 1939 they were engaged in manufacturing operations in New, York City, as alleged in the complaint, but denying that since that date they had engaged in such operations, and further denying that they had engaged in the unfair labor practices alleged in the complaint. Pursuant to notice a hearing was held at Brooklyn, New York, from July 31 through August 4, 1939, before Herbert Wenzel, the Trial Examiner duly designated by the Board. , At the commencement of the hearing, the Trial Examiner, granted certain parts of a request for a bill of particulars by the Co-partners. He also granted. a motion by the Committee to intervene. During the hearing, the Co- partners moved that the complaint be dismissed on the ground that they had ceased manufacturing operations at their New York plant in February 1939, and filed a brief in support of their motion. The 'Trial Examiner reserved ruling on this motion. By 'agreement of all the parties, the hearing was indefinitely adjourned- on August 4, 1939. Upon amended charges duly filed by Local #91, the Board by its Regional Director issued its amended complaint dated August 31, 1939, against the Co-partners and Leybro Manufacturing Co. of New Jersey, Inc., herein called the Corporation. The amended complaint included the Corporation as a party respondent to the unfair labor practices alleged in the original complaint, and added allegations stating. in substance that the Co-partners about March 20, 1939, dis- continued their manufacturing operations at New York City and created the Corporation for the purpose of evading their obligations under the Act; that the Corporation succeeded to the operations, busi- ness, assets, and certain property of the Co-partners and was then engaged in said business and operations at Keansburg, New Jersey, .and Williamsport, Pennsylvania; and that the Co-partners owned, managed, directed, supervised, and controlled all the operations, busi- ness, and policies of the Corporation. Copies of the amended com- plaint, accompanied by notice of continuance of hearing, were duly served upon the Co-partners, the Corporation, Local .#91, and the Committee. Pursuant to notice, a hearing was held at New York City from September 11 through 20, 1939, before Guy Van Schaick, the Trial Examiner duly designated by the Board. At.the commencement of the hearing, the Corporation appeared specially by counsel and moved that the amended complaint be dismissed as to the Corporation on the ground that it was not engaged in business at the time the alleged unfair labor practices were committed, and that the Board's Second Region had no jurisdiction of a controversy involving the Corporation's Williamsport, Pennsylvania, plant. This motion was denied by the JOSEPH LEVY ET AL. 789 Trial Examiner. The Trial Examiner also denied the Co-partner's motion that the amended complaint be dismissed as against them on the ground that there had-'been no ruling of 'their motion to dismiss made at the hearing of August 4, and that the Co-partners were no longer engaged in any manufacturing business. The Co-partners and the Corporation, herein referred to as the respondents, then filed separate answers. The Corporation moved at the hearing that it be served with a bill of particulars. This notion was denied by the Trial Examiner. During the hearing, counsel for the Board moved to withdraw all testimony and exhibits presented in evidence during the hearing of July 31 through August 4 and to proceed anew under the amended complaint. The Trial Examiner granted this motion. Thereafter the parties stipulated that certain testimony adduced at the hearing of July 31 through August 4, be considered part of the record of the hearing of September 11 through 20, and,the Trial Examiner granted <a. motion. by counsel for the Board that such testimony be admitted in:-evidence. During the hearing the Committee moved that it, be allowed to withdraw from. the proceedings and the Trial Examiner granted its motion. At the close of the Board's case and again at the ,close of the hearing counsel for the Board moved to conform the pleadings to the proof. The Trial Examiner granted these motions. During the hearings of July 31 through August 4, and September 11 through 20, the Board, the Co-partners, Local # 91, and the Com- mittee until its withdrawal on September 12, were represented by coun- sel and participated. The Corporation was represented by counsel and participated in the hearing of September' 11 through 20. Full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of both hearings, the Trial Examiners ruled on various motions other than those mentioned above and on objections to the admission of evidence. The Board has reviewed the rulings of the 'Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the Board's case and again at the close of the hearing, the respondents moved to dismiss on the grounds that the Board had no jurisdiction to proceed .as to them, and that the evidence adduced had not sustained the allega- tions of the complaint. The Trial Examiner reserved ruling, on these motions. On January 25, 1940, Trial Examiner Van Schaick filed his Inter- mediate Report, copies of which were duly served upon all parties., j. ,Iii his Intermediate Report the Trial Examiner denied the. respondents' motions to dismiss, on which motions he had previously reserved ruling. He also denied the Co-partner's motion to dismiss made.at the.hearing 253035-42-vol. 24-51 . 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of August 4, on which motion Trial Examiner Wenzel had reserved ruling. We have reviewed these rulings and they are hereby affirmed. The Trial Examiner found that the Co-partners had engaged in and were engaging in -unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, and recommended ,.that they cease and desist therefrom and take certain specified af- firmative action to effectuate the policies of the Act.. He also recom- mended that the amended complaint be dismissed in so far as it alleged that the Co-partners had engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act, and that the amended complaint be dismissed in its entirety in so far as it alleged any unfair labor practices by the Corporation. Thereafter Local #91 filed ex- ceptions to the Intermediate Report. The parties, although advised of their opportunity to request oral argument before the Board, did not do so. The Board has considered the exceptions to the Intermediate Report and, save as they are consistent with the findings, conclusionsi_;and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Joseph Levy, Jack Levy, and Isaac Levy,_ doing business under. the name and style of Leybro Manufacturing Company, are Co-partners who for about 20 years prior to the spring of 1939 were engaged in the business of manufacturing women's and children's pajamas and nightgowns. The Co-partners operated two plants, one. of which was located at New York City and the other.at Keansburg, New Jersey, and also maintained a salesroom at New York City. The raw materials, consisting of cotton goods and trimmings, purchased by the Co-partners in 1938 for use in their manufacturing .operations at both plants amounted to $199,443.11 in value, of which 75, per cent represented purchases . from South Carolina and North Carolina. During 1938 the Co-partners sold and shipped finished products from both plants in the amount of $422,172.65, approximately, 75 per cent of which represented shipments into States other than New York while approximately 50 per cent represented shipments into Massachusetts and Connecticut. The Co-partners sold certain of their finished products under the trade name "Slumbertog" and under the labels `'Dress- Yourself" and "Mother's Helper." In 1938 the Co-partners employed an average of 119 persons at their New York City, plant, and 90 persons at their Keansburg, New Jersey, plant. About the middle of February 1939, the Co-partners ceased manu- facturing operations at their New York City plant, and during the. JOSEPH LEVY ET AL. 791 month of March 1939, they formed, and became Ithe sole officers and directors of, a corporation under the name of Leybro Manufacturing Co. of New Jersey, Inc. Subsequently the Co-partners transferred certain of the finished products, materials, and equipment of the New ,York City plant; the entire Keansburg plant; and the "goodwill" of their business, to the Corporation. In return for their transfer of certain of said assets to the Corporation, the Co-partners received shares of capital stock of the Corporation, all of which they gave to their respective wives.. In addition, the Co-partners granted $2,000 to the Corporation as an advance for goods to be manufactured and sold, none of which loan had been repaid at the time of the hearing. The Corporation continued the operations of the Co-partners at the Keansburg, New Jersey, plant, and in July 1939 began manufactur- ing operations at its Williamsport, Pennsylvania, plant, maintaining an average working force, of approximately 90 employees at Keans- burg' and 56 at Williamsport. The Corporation operates the two plants as a single business entity and, manufactures at both plants the same line of products that previously were manufactured by the Co-partners.3 The Co-partners still maintain their New York City salesroom, through which part of the finished products of both of the Corporation's plants are sold. II. THE ORGANIZATIONS INVOLVED Children's Dress, Infants Wear, Housedress and Bathrobe Workers Union, Local #91, International Ladies Garment Workers Union, is a labor organization . admitting to membership production,. mainte-. nance, and shipping employees of the Co-partners at their New York City plant, but excluding clerical and supervisory employees. Independent Pajama Workers' Union was a labor organization admitting to membership employees of the Co-partners,at their New York City plant, III. THE UNFAIR LABOR PRACTICES ' A. Interference, restraint, and coercion On February 1, 1939, Local #91 called an organizational strike at the Co-partners' New York City plant. By the middle of February a substantial- number of employees had ceased-work to engage in the 2 Each wife of the respective Co-partners received as a gift from the Co-partners 100 shares. of capital stock of no par value . Francis McGarey, attorney for the Co-partners, testified that the Co-partners' object in forming the Corporation was to turn over their assets to it and in return to receive stock "either themselves or in the names of their nominees." 3 Joseph Levy . one of the Co-partners , testified, in effect,, that after the formation of the Corporation , the orders that the Co-partners received for manufactured goods were turned over to the Corporation ; that the Corporation continued to use certain of the trade names and labels that previously were used by the Co- partners; and that the Corporation main- tained in its employ the same salespeople who formerly were employed by the Co-partners, 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike and had designated Local #91 as their bargaining agent, whereupon ' the Co-partners shut down the plant: Several employees testified in substance , arid- we find, that during the first few days of the strike Joseph Levy, one of the Co-partners; actively campaigned against the employees joining , or engaging in concerted activities with, Local #91 by boasts and threats that he had defeated a strike in 1933 and was a stronger man now ; that unions were "rackets" and the Co-partners -would not . deal with them,, and that operations would be transferred to the Keansburg plant if Local #91 succeeded in its organizational drive. The testimony is uncontradicted that Julia Pettinato , a forelady, also was active in reminding employees of Levy's above-noted threats of retaliation should they join Local #91. Upon visiting . the home of a female employee who had gone on strike, Joseph Levy urged her parents to prevent her from picketing, and previous to the . hearings he promised her a better job if she would note testify concerning this visit : During the course of the strike he also gave one of the employees work at the Keansburg plant, at the same time advising him not to join Local #91. Forelady Pettinato continued her activity against Local #91 by visiting the home of one of the striking employees , warning a group of employees gathered. there that further picketing was useless in view of the Co-partners' declaration that they would not deal with Local #91, and stating that the work was being transferred to the Keansburg plant: - From the foregoing it is apparent , and. we find, that by warning the employees against joining Local #91, by threatening to remove operations should Local #91 succeed in its organization drive, and by advising, the employees they would not deal with Local #91, the Co-partners interfered with, restrained , and coerced their employees in the exercise of the rights guaranteed -in . Section 7 . of the Act. B. The formation of the Independent Simultaneously with their drive to *persuade employees not to join Local #91, Joseph Levy and Forelady Pettinato urged the employees to form "their own union." Levy suggested that the employees choose a'girl from each department 4 to act as a representative for the purpose of dealing with the :employer and that dues be collected to provide ,for a sick-benefit fund. On the second day of the strike and in the presence of the foreladies, Grace Migliore, an employee, appealed to the workers to form their own union. Thereafter, Forelady Petti- nato selected one girl from each department to serve on a 'bargaining "Apparently a "department" represented a certain number. of workers within various classifications , including operators , pressers . cleaners, floor girls , cutters. and shippers. JOSEPH LEVY ET AL. 793 conunittee for the purpose of meeting with the employer., Migliore, who was selected to represent her department, became the recognized leader of this committee, which thereafter conferred with Joseph Levy. , At one such conference, held. on the third day of the strike, Levy volunteered the statement that if the employees wanted to join a "company union" they should do so, but that he was not supposed to know anything -about it. He continued, "You cannot have any meetings here in this shop." Clare Erlichman, head bookkeeper, suggested that if members of the committee desired any . advice. with regard to organizing a union her services were available. Kate Condiotti, an employee, questioned Jack and Joseph Levy concerning the procedure to be followed in organizing an independent union, whereupon they advised her to consult a lawyer. After Condiotti mentioned a. lawyer known to the Levys she was told that she could use the plant phone to call him. The next morning, how- ever, Forelady Pettinato advised Condiotti to drop the selected law- yer, and to allow. Migliore. to choose a lawyer of the same nationality as the majority of the workers. The forelady's advice was' followed and subsequently Migliore secured legal services for the nascent labor organization. On February 3, while Forelady Pettinato was present, a notice was circulated among the employees in the plant stating the name and address of a hotel at which the employees were to meet on the after- noon of February 4 for the purpose of forming their own union. When certain of the employees later left the plant to -attend the advertised meeting, Forelady Pettir ato advised them to break up into groups and depart in different directions so that their proposed action n-light not be apparent to those on the picket line. Present at the. meeting were approximately 107 of the Co-partners' employees, together with the lawyers selected by Migliore. Members of the bargaining committee who previously had been selected by Forelady Pettinato assumed active leadership of the proceedings, with Migliore acting as presiding officer. After the employees had signified their assent to the formation of an independent union, con- stitutional and executive committees were appointed by Migliore, and a resolution was adopted stating that the aims and purposes of the organization were to protect and better working conditions in the industry and to secure a reasonable living wage. A majority of the employees present- agreed to pay a certain assessment for the attor- ney's fees, which assessment thereafter was collected' at the plant and left with Erlichman,' the head bookkeeper, for safekeeping. A second meeting was held week later, at which time Migliore and others of the employees who had served on Forelady Pettinato's bargaining committee were elected as officers of the newly formed union. The 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD name adopted for the organization was Independent Pajama Worker's Union , herein called the Independent ; A constitution also was 'adopted, and a general discussion took place concerning the possibility of entering into a contract with the Co-partners with respect to wages, hours , and other conditions of employment. A third meeting of the Independent was to be held February 25, but by that time' manufacturing operations had ceased at the Co- partners' New York City plant, and at the hearing of September 20, one of the lawyers who had been retained by the Independent testi- fied that it was impossible to get a "quorum " for the proposed meet= ing: The Independent's lawyer explained that he had heard that most of the girls had gone out "to join some other union," and that as far as he knew the Independent was non-existent at the time of the second hearing, . From the foregoing facts and circumstances it is apparent , and we find, that the Co-partners dominated and interfered with the forma- tion and administration of the Independent, and, contributed support to it, and thereby interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged re f.iscd to -bargain collectively Between February 1; 1939, the date on which Local #91 called its organization strike at the Co-partners ' New York City plant, and February ' 20, 1939, at which date a majority' of the employees had designated Local #91 as their bargaining representative, Harry Greenberg, manager of Local #91, on two different occasions had attempted to open bargaining relations with- the Co-partners. His efforts were met with statements by'the Co-partners that they would rather move out of the city than .negotiate with Local #91. On Feb- ruary 20, 1939, however , when Greenberg addressed a letter to the Co-partners requesting a conference for purposes of discussing bar - gaining relations, the . Co-partners' attorney communicated with Greenberg and a conference-was arranged for February 22. At least one of the three Co-partners was present at this and at all subsequent conferences. The Co-partners then expressed a willingness to forego any investigation of Local #91's claim that it. had ' been designated as bargaining representative by a majority of, the employees until . such time as the parties had agreed upon the terms of a contract. As a basis for negotiation , Greenberg initially presented the Co- partners- with a copy of a contract which Local # 91 had concluded with an association of garment manufacturers in New York City, of which- the Co-.partners were not members . Among other things, the contract provided for fixed hours, wages, vacations with pay, and a JOSEPH LEVY ET AL.. 795 closed shop. Subsequent conferences between Local #91 and : the Co-partners were held from February 24 to March 6 with Local #91 remaining adamant in its position that a contract be executed between the parties identical in its terms with the contract which it had with the Association. The Co-partners on the other hand expressed a willingness to grant certain increases in wages and reductions in hours, but contended., that they were not in position to agree to the terms sought by Local #91. Thereupon, Local #91 requested that accountants selected by it be permitted to examine the Co-partners' books for purposes of determining their financial status. The Co- partners denied this request, but offered to submit their own account- ants' reports on their books for examination by a representative. of the Board. When the parties had failed to arrive at any agreement concerning wages, hours, a closed shop, and other conditions of employment dur- ing the above conferences, representatives -of Local #91 demanded that the disputed matters be referred to - arbitration. As a counter- proposal, the Co-partners suggested that conferences be continued before a representative of the Division of Mediation for the State of New York. The Co-partners' suggestion was adopted; and on March 9 and 10 further meetings of the parties were conducted before Mable Leslie, a representative of the Division of Mediation. The parties again failed to'reach an agreement concerning the issues'presented',° but at the close of the conference on March 10, the Co-partners, through. their attorney, assured the representatives present that they would submit a definite proposal for the settlement of the disputed matters to Leslie on March 14. Pursuant to this commitment, the Co-partners on March 14 presented to Leslie, for communication to Local #91,_a_ proposal, (1) that the strike be terminated and all em- ployees be returned to work without ' any discrimination ; (2-) that Local #91 be recognized as the sole collective bargaining representa- tive of the New York plant employees; (3) that all matters in'dispute regarding wages, hours;. and other 'conditions of employment except the' closed shop be referred to arbitration; and (4) that the Division of Mediation be authorized to select the arbitrator. Greenberg was in Washington, D. C., at the time the Co-partners' proposal was received by Leslie; accordingly, she transmitted the pro- posal to him by telephone. In the course of this telephone conversa- tion Greenberg rejected : the Co-partners' proposal because of the A total of six conferences were held during this period on the following dates: February '24; -25;!and.2S,_and March 1, 3, and 6_1939. .. , a At the conferences on March 9 and 10 before Leslie, the Co-partners proposed to increase wages in amounts not to exceed a total additional cost of $10,000 a year. but when Local #91 demanded that its accountants be permitted to determine the amount, of increased wages to be paid- workers under this plan, the Co-partners withdrew their offer. The Co- partners remained willing, however, to concede certain wage Increases and reduction in hours. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure- to include the closed-shop issue as a subject for arbitrationj and on March 16, Leslie advised the Co-partners accordingly. Failure to reach ' an agreement concerning the, question of the' closed shop caused an impasse in negotiations and no further conferences occurred between the parties until March 22. About March 15 the Co-partners sold a substantial portion of the raw materials at the New York City plant and prepared to com- pletely discontinue further manufacturing operations there. On March 22 and 23, however, they resumed negotiations With Local #91, before a representative of the Board. At this time Local #91 was willing to accept the Co-partners' proposal of March 14, but insisted ' that all employees be returned to work immediately. The Co-partners then stated that they were prepared to reemploy only those employees for whom they had work available at that time. No agreement on the question of reemployment of the workers was reached, and the con- ference of March 23 broke up when Greenberg stated he woitld--,send .a letter to the Co-partners, incorporating Local #91's demands. In this letter, delivered to the Co-partners on March 24, Local #91 demanded immediate reinstatement and reemployment of all workers without discrimination, and further that all matters in dispute should, be re- ferred to an arbitrator. The Co-partners never responded to this letter, nor were any further negotiations, or conferences conducted since the Co-partners were by- that time fully committed to moving their manufacturing operations from New York City.8 Up to the date.of the second hearing, the Co-partners had not resumed manu- facturing operations in New York City. The amended complaint alleges that the !Co-partners organized, the Corporation and transferred their manufacturing operations to it. in order, inter ilia, to "avoid collective bargaining" with Local #91. As to this, the record reveals that in the latter part of 1938, the Co-partners first ordered their attorney to incorporate their New Jersey business. A certificate of incorporation was not filed in the office of the Secretary of. State of New Jersey until March 21; 1939, however. The first meeting of the Board of Directors was held on April 28, 1939; and on May 1, 1939, the entire operations of the Keansburg plant were transferred to the Corporation. Following Greenberg testified that Leslie telephoned him at Washington , D. C., on March 15 to advise that she had not yet received any proposal from the Co-partners . He denied having any communication with Leslie which would have indicated to her that he rejected such proposal , Greenberg admitted, however, that shortly after this telephone conversation he had talked with a representative of Local #91 concerning the Co -partners' proposal and had stated , "I don' t think we will accept it." Kate Condiotti , member of Local ' #'9Y, festi- tied that during a conversation in her presence Greenberg stated that he had talked to Leslie and rejected the Co-partners' proposal . Under the circumstances , we are satisfied that Greenberg refused the Co-partners ' offer in the above-noted telephone conversation with Leslie. By the end of Mai •ch,-the Co-partners had begun efforts to sublease the floor space of their New York City plant, and finally secured a tenant in September 1939. 0 JOSEPH LEVY ET AL. 797 the conclusion of bargaining negotiations with Local #91- on March 24, 1939, the Co-partners also transferred. part of the finished prod- ucts, _ materials, and equipment of the :'.New York plant to A he Corporation.° In considering whether or not the Co-partners refused to bargain with Local #91, or formed the Corporation and transferred their manufacturing , operations to it in order to avoid their duty to bar- gain collectively , we are not unmindful of the 'Co-partners' statements made'during the first 2 weeks of the strike, as noted in Section III A, above, that they would not deal with Local #91, and that they would transfer their New York manufacturing operations to their Keans- burg plant if Local #91 succeeded in its organization drive. Had this attitude on the part of the Co-partners continued throughout the negotiations, it would be clear that the respondent had merely gone through the forms of collective bargaining with no intention . of. ever entering into any kind of an agreement with Local #91. A review of the' conferences and negotiations that occurred between Local # 91 and the-Co-partners from February 20 to March 24, how- ever, fairly indicate, and we find, that the Co-partners , after Feb- ruary 20, approached negotiations with an open mind and with a sincere desire to find some basis of agreement concerning the issues presented. Our finding in this regard is based, among other things, on the undisputed evidence that during the several conferences held between the parties from February . 20 to March 24, the Co-partners entered into discussions with Local # 91 concerning its demands; submitted counterproposals thereto; and offered a compromise plan for the settlement of contested matters. Under the circumstances we are satisfied that the Co-partners fulfilled their duty to bargain collectively -even though they refused to agree on particular terms of a contract demanded by Local #91, such as that calling for a closed shop . There is no clear showing that the Co-partners had determined to move their operati6ns from New York prior to the rejection of their March 14 offer by Greenberg,10 when the strike had been in effect for approximately 6 weeks. On the basis of the facts above set forth , We find that the Co-part- ners did not refuse to bargain collectively with Local #91 within the ° Certain of the raw materials and machines that were not so transferred were sold to persons dealing in such goods. 10 Several employees testified that . during the strike they had seen boxes of materials, some of which were large enough to contain machines, being removed from the plant; and that upon looking into the plant at various times during the month of March - they had observed , that machines were missing . On the other hand, Joseph Levy denied that any machinery . wns removed during this period . Even though we should credit the above testi- mony of the employees , we do not regard such evidence as sufficient on which to base a finding that prior to March 14 the Co -partners, at the same time that they were conducting bargaining negotiations with Local #91, were preparing for the removal of their manu- facturing operations from New York. 798 .,e DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of the Act, and did not .form the Corporation ;or transfer their manufacturing operations to it in,, order, to avoid collective bargaining with Local #91. In view of the foregoing, it is unnecessary to make any determina. tionas to the appropriate= bargaining, unit, or as-to the representation by Local #91 of a majority in the appropriate unit. D. The alleged discrimination in regard to hire and tenure of employment The amended complaint alleges that the Co-partners ceased manu- facturing operations at their New York' City plant, formed the Cor- poration, and transferred their entire manufacturing operations to it for purposes of locking out and refusing reinstatement to certain named employees following the strike, because of their activity in Local #91. As noted above, Local #91 conducted an organization strike at the Co-partners' New York City plant from February 1 until March 24, during which manufacturing operations at the plant were dis- continued. The Co-partners, however, did not refuse to bargain col- lectively with Local #91 during the negotiations conducted while the strike was in progress, nor did they'transfer. their manufacturing operations to the Corporation in order to avoid collective bargaining with Local #91. In view of the. foregoing, and there being no other evidence of discrimination, we find that the evidence does not sup- port the allegations of the amended complaint that the Co-partners ceased manufacturing operations in New York; formed the Corpora- tion, and transferred their manufacturing operations to it, for pur- poses' of locking out or refusing reinstatement to certain named employees following a strike because of their union membership or activities. Accordingly, ' we ' will dismiss the amended complaint in so far as it alleges such discrimination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the Co-partners set forth in Section III A and B above, occurring in connection with the operations of the Co-partners described in Section I, above, have a close, intimate, and substantial 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 of commerce. V. THE REMEDY Having found that the Co-partners have interfered with, re- strained, -and coerced their employees in the .exercise of the rights JOSEPH LEVY ET AL. 799 guaranteed -in Section 7 of the Act, we shall order them to cease, and desist therefrom, and to take certain affirmative action designed; to effectuate the policies of•the Act., We have found that the Co-partners have dominated .and inter- fered with the formation and administration of, and contributed support to, the Independent. Since manufacturing operations have ceased at the New York City plant, however, the Independent is no longer in active existence. Nevertheless, it is not clear that the Inde- pendent will not be revived, should the .Co-partners resume operations in New York City, or that the Co-partners will not again engage in unfair labor practices similar to those which brought the Independ. ent into existence. Thus, we shall enter an appropriate order, that the Co-partners cease and desist from such unfair labor prac= tices, and , withhold from the Independent any recognition as representative of the employees.' In view of the -fact that 'the Co-partners are now not engaged in any manufacturing operations in New York City, there remains for consideration the, problem of how 'our order must be shaped so as to effectuate. the policies of the Act. As already noted, the Co-partners -formed the Corporation only. after the unfair labor prac- tices described above. The Co-partners became the sole officers and directors of the Corporation and transferred their entire manufac- turing operations, including the "goodwill" of their business, to the Corporation. Thereafter the Co-partners gave outright to their respective wives the entire capital stock of the Corporation. In addition the Co-partners advanced the Corporation $2,000 in cash, none of which had been repaid at the time of the second hearing. Orders for manufactured goods previously received by the Co-partners were turned over to the Corporation which continued- the identical manufacturing operations previously carried on by the Co-partners. The Corporation also took over certain of the trade names and labels of the Co-partners and employed the same salespeople as had the Co-partners., The Co-partners-continue to operate their New York City salesroom through which a part of the finished products of both of the Corporation's plants are sold.' On the basis of. the findings set forth above, we conclude that the Corporation is not only the business successor. -to the Co-partners but also is.their mere alter ego, whereby the manufacturing operations previously performed by the Co-partners are continued, under their control and for their benefit. In order to effectuate the policies of the Act, it is clear that our Order,. hereinafter set forth, must be directed to the Corporation as well as to the Co-partners.11 11 Cf. N. L. R. B. v . Hopwood Retinning Co., Inc., 98 F. (2d) 97 (C: C. A. 2, 1938), 104 F. (2d) 302 .(C. C. A. 2, 1939), enf'g as modified Matter of Hopwood Retinning Company, Inc. and Monarch Retinning Company, Inc. and Metal Polishers, Buffers, Platers and Helpers International Union Local No. 8, and Teamsters Union, Local No. 584, 4 N. L. R. .B. 922; 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is likewise clear that since the only manufacturing operations ,carried on by the Corporation, and by the Co-partners through the Corporation, are located in Keansburg and Williamsport, our order must be directed to those plants. On the basis of the foregoing findings. of fact and upon the entire record in the • case,. the Board makes the following CONCLUSIONS OF LAW 1. Children's Dress, Infants Wear, Housedress and Bathrobe Workers Union, Local #91, International Ladies Garment Workers Union, is a labor organization and Independent Pajama Worker's Union was a labor organization within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering, with the formation, and admin- istration of, and by contributing support to, Independent Pajama Worker's Union, the-Co-partners have engaged ins unfair labor prac- tices within the meaning of Section 8 (2) of the Act. 3. By interfering with, 'restraining, and coercing their employees in the exercise of the rights guaranteed them in Section 7 of the Act, the Co-partners have engaged in and are engaging -in unfair labor, practices within the meaning of Section 8 (1) of the Act. 4: The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Co-partners have not engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondents, Joseph Levy, Jack Levy, and Isaac Levy, doing business under the name and style of Leybro Manufacturing Company ; and Leybro. Manufacturing Co. of New Jersey, Inc., and. their officers; agents, successors, and assigns shall: ' 1. - Cease and desist- from : ' (a) In any manner dominating or interfering with the adminis- tration- of Independent Pajama Worker's Union or with the forma- tion or administration of any other labor organization of their em- ployees, and contributing support to Independent Pajama Worker's Union or to any other labor organization of their employees; Matter of Weinberger Banana Co., Inc., and/or Weinberger Sales Co.. Inc., and/or their Successors, Assigns, Receivers, Trustees, Trustees in Bankruptcy, Creditors' Committee, or other Representatives acting.in behalf of either or both and United Dock • and Fruit Workers' Union, I S N. L. R.' B. 786. . JOSEPH LEVY ET AL. 801 (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the, National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refrain from recognizing Independent Pajama Worker's Union as a representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (b) Post immediately in conspicuous places at the salesroom of Joseph Levy, Jack Levy, and Isaac Levy, doing business under the name and' style of Leybro Manufacturing Company, in New York City, and at the plants of :Leybro Manufacturing Co. of New Jersey,, Inc., in Keansburg, New Jersey; and Williamsport, Pennsylvania, and maintain for a period of at least sixty (60) consecutive. days from the date of posting, notices to their employees stating : (1) that the respond- ents will not engage in the conduct from which they are ordered to cease and desist in paragraphs l (a) and. (b) of this Order; and (2) that the respondents will take the affirmative action set forth in para- graph 2 (a) of. the Order; (c) Notify the Regional Director for the Second Region (New York. City) in writing within ten '(10) days from the date of this Order, what steps the respondents have taken to comply herewith- IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed in so far as it alleges that the respondents have engaged! in unfair labor' practices within the meaning of Section 8 (3) and (5) of the National Labor Relations Act. MR. EDWIN S. S1IITH, dissenting in part: I concur with the finding of the majority that there was here, no refusal to bargain. I am in disagreement, however, with the failure of the majority to find as facts the appropriateness of the bargaining. unit and the representation by the union of a majority within that unit. • The failure to make a finding on these issues is a departure' from the previous practice of the Board in cases where there is a dismissal of allegations of the complaint alleging unfair labor prac- tices contrary to Section 8 (5) of the Act. The question of a ma- jority and appropriate unit were issues tried at the hearing, upon which the parties, based on past decisions of the Board, would expect 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all adjudication by the Board. I think the parties are entitled to such adjudication. . Even where these matters have not been hitherto in dispute be- tween the parties, findings by the Board that the bargaining unit is 'appropriate and that the labor organization represents a majority of the employees in this unit should serve to stabilize future collective bargaining relationships. If the Board is silent on these. points doubts might conceivably be raised in the mind of the employer which did not previously exist and, cause him to question his legal obligation to bargain further. Thus in a particular case 'the union might be forced into unnecessary new procedure before the Board either through the medium of a case under Section 8 '(5) or a repre- sentation case. The whole purpose of the Act, looking toward the furtherance of collective bargaining and ' of industrial peace, seems to me better served if the Board makes these findings. Moreover, the Board's Order is.reviewable in the courts upon the application of any of the parties. To date few labor organizations which were parties to Board cases have resorted to their statutory right in this regard. This does not mean, however, that such resort will not be had in the future. Lack of findings by the Board on the appropriate bargaining unit and on the majority representation within that unit would create obvious difficulties in court review of the Order and would probably. require a remanding of the entire matter to the Board to require it make a decision -on these points. Thus both policy considerations and the possible avoidance of fur- ther legal procedure point to the, desirability of making such find- ings in cases where the negotiations between the parties indicate no refusal to bargain. The fact that in the instant case the employer has moved his operations elsewhere so that no immediate problem is presented regarding his bargaining relations with the Union is merely a special circumstance which does not invalidate the general conclusion on the advisability of making these findings.