Lettie Lee, Inc.

In the Matter of LETTIE LEE, INC. and INTERNATIONAL LADIES' GARMENT WORHERS' UNION, CUTTERS LOCAL No. 84, A. F. L. • t Case No. C,91420--Decided November 9, 1942 Jurisdiction : dress manufacturing industry. Unfair Labor Practices. Interference, Restraint, and Coercion: interrogation concerning union member- ship ; anti-union statements ; 'threatened cessation of business ; solicitation of striking employees individually to return to work. Discrimination: refusal to reinstate unfair labor practice strikers ; contentions of employer that there was insufficient work available for all the strikers and that one of the strikers was not entitled to reinstatement because of his prior conviction, rejected. V Collective Bargaining: majority established by signing application cards-refusal to bargain by : failure to reply to union's requests for a bargaining conference ; solicitation of strikers, as individuals, to return to work-strike caused and prolonged by refusal to bargain. Remedial Orders : cease and desist unfair labor practices ; bargain collectively ; reinstatement and back pay awarded ; in case of strikers who refused individual offers of reinstatement subsequent to the employer's refusal to reinstate the strikers as a group, period from their refusal of such offers to their subsequent applications for reinstatement excluded in computing amount of back pay due them ; prior conviction of one striker held not to bar reinstatement. Unit Appropriate for Collective Bargaining : cutters, slopers, and trimmers, ex- leluding supervisory employees. Mr. Maurice J. Nicoson and Mr. Charles M. Ryan, for the Board. Mr. Leo Shapiro and Mr. Sam Wolf, of Los Angeles, Calif., for the respondent. Mr. David Sokol, of Los Angeles, Calif., for the Union. Miss Grace McEldowney, of counsel to the Board. DECISION AND ORDER STATEMENT OF THIS CASE Upon an amended charge duly filed by International Ladies' Gar- ment Workers' Union, Cutters Local No. 84, A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated December 5, 1941, 45 N. L. R. B., No. 68. 448 LETTIE LEE, INC. 449 against Lettie Lee, Inc., Los Angeles, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the, National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. With reference to the unfair labor practices, the complaint al- leged, in substance: (1) that in or about September 1938, and there- after, the respondent, by attempting to ascertain whether persons seeking employment with it were affiliated with the Union, by mak- ing statements to its employees derogatory of the Union, by threat- ening to terminate its business rather than sign a collective bargaining agreement with the Union, by raising the wages of its cutters for the purpose of discouraging them from affiliating with the Union, and by soliciting various of its striking employees in- dividually to return to work, interfered with, restrained, and coerced its employees in the exercise of the right to engage in concerted ac- tivities for the purpose of bargaining collectively with the re- spondent or for other mutual aid or protection; (2) that on or about July 22, 1941, and at all times thereafter, the respondent refused to bargain collectively in good faith with the Union, although it had been duly designated as the representative of the respondent's em- ployees within an appropriate unit; (3) that the respondent' s unfair labor practices caused and prolonged a strike among its employees which commenced on or about July 24, 1941, and continued up to and including the date of the hearing; and (4) that on or about September 10 and September 14, 1941, the respondent refused to reinstate to their former or substantially equivalent positions six striking employees named in the complaintfor the reason that they had designated the Union as their representative for the purposes of collective bargaining and had otherwise engaged in concerted activities for the purpose of bargaining collectively with the re- spondent or for other mutual aid, or protection. On January 20, 1942, the respondent filed an answer admitting certain allegations of the complaint with respect to its business, but denying that it had engaged in any unfair labor practices. Pursuant to notice,' a hearing was held at Los Angeles, California, on January 19, 20, 26, 27,'28, and 29, 1942, before Gustaf B. Erickson, 1 The employees named in the complaint were as follows : Louis Baliber , Nolan Berteaux, Vito N Cimarusti, Angelo P Costella, Donald P Quinn, and Joe Sardo t At the opening of the hearing, counsel for the respondent raised a question as to the adequacy of the notice , and requested a continuance to enable him to prepare his case. The Trial Examiner granted the request and the hearing was accordingly adjourned from January 20 to January 26, 1942. 493508-44-v0l 4i-------29 450 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD the Trial Examiner duly designated b- the Chief Trial Examiner. The Board, the respondent, and the Union were represented at and participated in the hearing.. Full opportunity to be heard, to ex- amine and cross-examine witnesses;, and to introduce evidence bear- ing upon., the issues was afforded' all parties. At. the close of . the Board's 'case, 'the respondent moved,to dismiss'the complaint. The motion was denied, by the Trial,Ekafniner. At the close of the` hear-, ing, the Trial Examiner granted, without objection,,a motion by counsel for the Board to conform, the 'pleadings to the proof. The respondent then renewed its motion to dismiss the complaint. Rul- ing on{ this motion was deferred by the Trial Examiner, ,who there- after denied the motion in his Intermediate Report. 'The respond-' ent also moved to strike from the record all evidence of conversations between any of the witnesses and Louis Swartz, on the ground that Swartz was not authorized to make any statements or per- foim any acts on behalf of the respondent.3 The motion was de- nied by the Trial Examiner.. During the course of the hearing, the Trial Examiner made rulings- on other motions and on the admissibility-of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. • The Trial Examiner afforded all parties' an opportunity to present oral argument and to file briefs. All parties waived oral argument. On February 12 and 16, 1942, respectively,' the Union and the respondent filed briefs with the trial Examiner. Thereafter, the Trial -Examiner filed his Intermediate Report, dated March 21, .1942, copies of which were duly served upon the parties. . • He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, -within the meanmg:of- Section 8 (1), (3), and (5) , and Section 2 (6) and (7) of the Act, and- recommended that it cease and desist, therefrom and take certain affirmative action designed to effectuate the policies of.- the Act. Ong, April 22, . 1942, the respondent filed exceptions to the Intermediate Report and a brief in support of its,exceptions. Neither the respondent nor the Union requested oral argument be- fore the Board. , - . The Board has considered the exceptions ,and brief, filed by the ,respondent and, insofar as the exceptions are inconsistent with the findings; conclusions, and' order set. forth below, finds them to be without merit. s As appears below, Swartz was the foreman of the respondent's cutting room. LETTIE LEE, INC. 451 Upon the entire record in the case, the Board makes the following:. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lettie Lee, Inc., is a California corporation engaged in the manu- facture of dresses. Its office and place of business is,in Los Angeles, California. In the conduct and operation of its business -.it uses ray- ons, threads, buttons, buckles, and zippers. During the,year ending December 31, 1940, it purchased such materials in the amount of $151,000, of which $136,000 represented purchases from sources put- side the Siate of California.4 During the same period it made sales of- its products amounting to. $397,000. Of that amount, $250,000 represented sales to purchasers located outside the State of California. The respondent' concedes 'that it is engaged in commerce, within' the meaning of the Act. _ II. THE ORGANIZATION INVOLVED International ,Ladies' Garynent Workers' Union, Cutters Local No. 84, i4 a labor organization afriliated -with the American Federation of Labor, admitting to membership cutters employed by "the r'espondei III. THE UNFAIR 'LABOR PRACTICES A. .Sequence o l events; irate? ferenee, restraint, and coercion In January 1940, Angelo Costello , one of the employees involved in the present proceeding, applied to the respondent for a job as cut- ter. Sam Botiiman , the respondent 's secretary-treasurer-and .general^, manager, asked him whether he was- a union man.- Cosfella replied" that he as not, and was .hired . Later in the same year,. Vito Cima rusti also applied to Bothnhan for work and was asked whether lie, belonged to the Union. Ciniarusti said that he did not, and that he-' knew nothing about it. - Thereafter, in February 1941 , he was'hired. At the hearing, 13othnian admitted having sometimes asked appli-, cants for employment whether they were union members, ' giving as his reason for so doin g that "most of [his ] employees -did not belong, 4 Although a stipulation on commerce , entered into by the respondent and counsel. for the Board , gives the above figures for purchases '"during the calendar year ending March 31, 1940, " this is obviously an error . The respondent , in a letter of September 11, 1941,, to the Regional Office of the Board , introduced iri,evidence at the hearing, gave the same' figures for the period from January 1 to December 31, 1940, which is the period used in both the letter and the stipulation m,reference to sales. It. would appear that, in both instance§, the mformatio, covets the'calendai year ending December 31; 1940. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a union, and sometimes a person would be uncomfortable if they did." On June 11, 1941, Bothman met with the respondent's male cut- ters 5 in response to a request by them for an increase in wages. The meeting was held in the plant after working hours. According to the testimony of Cimarusti, a witness for the Board,° Bothman first asked the cutters how many of them belonged to the Union or in- tended to join it. Receiving no reply, he proceeded to tell them that the union officials were "a bunch of shysters," who were not "out to help" the employees and who could do them no good. He warned them that the Union would "stuff this place full of cutters and keep you fellows from getting all the work that you should, and you will have to split it up with the new fellows we will have to put en." He further advised them that he would have nothing to do with the Union, saying that he would "sooner close up this place than operate under a • bunch of shysters," and related an experience' that he had had in dealing with a union when the cutters had tried "to run the place" and 'as a result he had had to "clear out." He also spoke of an impending strike in the industry and said that he wanted to know the cutters' attitude toward it, stating that he felt safe in talking to them and that he did not think they would join a strike if it was called.7 In regard to their request for a raise, Bothman offered the cutters their choice of an increase in pay, which he said would necessitate the hiring of another cutter to avoid paying for overtime work, or con- tinuing at the same rate with the usual amount of overtime. The latter, he said, would amount to more over the period of a year than would the raise in wages without overtime. After asking the cutters to decide and let him know which alternative they preferred, he left the meeting. The cutters, decided to stand by,their request for a raise, and on June 13 again met with Bothman to give him their decision. Both- man told them that a 15-cent per hour increase would be effective immediately, but warned them that he did not want them to have I The male cutters working in the plant at that time were Louis Swartz, Mortimer Litwin, Louis Baliber, Nolan Berteaux, Vito N Cimaiusti, Angelo P Costella, Donald P Quinn, and Joe Sardo Swartz was the respondent's head cutter , in general charge of the cutting room. Ile had supervisory duties, and was regarded by his fellow employees as their foreman. Cunarusti's testimony eeas corroborated in all essential particulars by that of Quinn. At the hearing, Bothman denied that , anything had been said at this meeting about the Union , and Swartz and Litwin -testified that they had not heard or did not recall the above statements Nevertheless, in view of the mutually corroborative testimony of Ciniarusti and Quinn , and on the basis of the whole record , we find, as did the Trial Examiner, that, at the June 11 meeting , Bothman made, in substance, the statements attributed to him by, Cimarusti and Quinn . At the second meeting of the same group , discussed below, Both- man admittedly asked the cutters how they felt about the Union. LETTIE LEE, . INC. 453 any dealings with the Union. He also told them that the raise ap- plied only to them and that they should say nothing about it to the rest of the employees. During June and July 1941, the International Ladies' Garment Workers' Union, herein called the International, with which the Union is affiliated, made plans- to organize the employees of the dress manufacturing plants in the Los Angeles area. As part of its pro- gram, a committee of three was appointed and given the power to call a strike in these plants on a date to be determined by the com- mittee. It wrote to the companies involved, asking them to confer with the International regarding their employees. Early in July, it, sent such a letter to the respondent, but the respondent neither answered nor acknowledged the letter. In the meantime, Harry Scott, then organizer and representative of the Union, solicited the membership of the respondent's male cutters. On July 21, 1941, Baliber, Berteaux, Cimarusti, Costella, Quinn, and Sardo went to the office of the Union .and signed membership appli- cation cards. On the following day, July 22, Scott requested David Sokol, the attorney for the Union, to arrange a conference with the respondent for the purpose of collective bargaining on behalf of the cutters. Sokol telephoned the office of the respondent and asked for' Bothman. He did not talk to Bothman, but left his name and telephone num- ber with the respondent's telephone operator. On the following day, July 23, Sokol again telephoned the respondent's office and asked for Bothman, but again he was unable to talk to Bothman. He asked the operator why Bothman had not returned his call, and requested her to give Bothman a message that Sokol represented the Union, that it desired to enter into negotiations with the respondent, and that, "if the Company did not recognize the Union, inasmuch as it repre- sented the majority, there was a possibility of a strike because of the company's unfair labor practices." That night the strike committee of the International met. It re- ceived a report from Scott that a majority of the respondent's cut- ters had signed membership applications, and was told of Sokol's failure to get in touch with Bothman. Acting upon this information, the committee included the respondent among the companies that were to be struck. At midnight on July 23, the committee advised Scott that it was calling an industry-wide strike in Los Angeles for 6 o'clock the next morning and that a picket line would be established about the plant of the respondent. On the morning of July 24, the strike began. The male cutters and approximately 14 other employees of the respondent joined the strike. Later the same day, Bothman appeared at a nearby cafe at 454, DECISIONS OF NATIONAL - LABOR - RELATIONS BOARD which' the cutters had gathered. He ' told them' that he was surprised that they-had join e'd:the-strikers; that he thought they were a "bunch of fools"; that they should not be "chumps"; and that "any of you [who] want to come back to work, come back with me right now." During that 'day and on the following day, Sokol made several a tteinpts to talk, to, Bothman ' on the telephone. He reiterated to' the respondent's telephone operator that he desired Bothman to speak to him or to some, other representative of the Union with respect to "entering 'into a bargaining relationship," and stated that Both- man's failure to respond to his calls "aggravated the situation." Bothman.was told of Sokol's calls, but failed to respond.. On July' 26, Bothman telephoned Cimarusti and, 'according to Cimarusti's testimony, expressed, surprise that -the cutters had gone on strike, because he. 'had treated them "all right." He told Cimarusti that "those shysters up there, they can't do' anything for you. They are just looking. out for themselves * . * * The rest of the boys are working * * ' *' some of them- are coming in Monday to work for me * * * I want you to come in." He also said, according to' Cimarusti, that "if he had to sign up with the Union that night, he would close up, Lettie Lee [the respondent's president] would go to Texas and he would open another shop, or do something." 8 About a month later, Bothman met Cimarusti in the lobby of the building which houses the respondent's plant. On this occasion Bothman said' to Cimarusti, "Don't be a damned fool. Go on up and go to work.": On September 9, 1941; Sokol wrote to the respondent requesting the reinstatement of Costella, Cimarusti, Berteaux, Baliber, Sardo, and Quinn, and at the same time requesting that the respondent bar- gain with the Union. -On September 13, he again wrote to the re- spondent, repeating ' his request for the reinstatement of all the strikers. Bothman made no reply to these requests. In the latter part of September o'r in October, Bothinan met Quinn, Berteaux, and Cil'iarusti on the picket line. Bothman told them that he -'Would have nothing to do with "those shysters up there," but wanted the three of them to return to work. They said that he would have to talk to the Union about that, and also asked whether he wanted Baliber and Sardo back. Bothman replied, "No, I am talking to you as individuals. I am not going to' talk to you in a group." Bothman then called a friend of his who was standing close by and asked him to be a Witness to what was being said. Bothman con- tinued to urge Quinn, Berteaux, and- Cimarusti, as individuals, to s Bothman admitted having telephoned Cimarusti to ask him to return to work, but said that he did not recall the other statements attributed to hun by Cimarusti . We credit Cim- arusti's testimony, as did the Trial Examiner. LETTIE LEE, rNC. 455 return, to work. They again asked about Costella, Sardo, and Bali- ber, but 'Bothman told them that Costella and Baliber were "trouble makers and "stinkers;" that Sardo wit s ' ah ex-convict, and that-he -would not take any of, them back • to work, in the plant. • • ' r. On or about October 8; Quinn went - to the home of ,Foreman Swartz in response to Swartz's invitation. Swartz told Quinn that a full crew was working in the cutting room', but that he wanted Quinn to return to work. 'When Quinn replied that if he came back it would have to be with the rest- of the striking cutters, Swartz replied : ' - That will never happen. You fellows haven't got a -chance. 'I better Llet you know now. You just haven't',got a -darned chance. The Union is going to drop you in a, couple weeks. I, have the inside information, and I know that the Union is, going to drop you in a couple weeks, and you won't be'able to get a job any- where in town. You will be blacklisted., In the same conversation, Swartz told Quinn that Bothman was, try- ing to' get a ,contract with the Government to make uniforms, and said, "You know, the-Union isn't going to strike against the Govern- ment." ^ Swartz also reputed that Bothman "would never sign a 'contract, he would close the shop first." Swartz then advised Quinn to' talk to'-Cimarusti and Berte tux about going back to work. A day or two after his conversation with Quinn, Swartz telephoned Cimarusti and asked him whether Quinn had talked' to him. ' Cima- •rusti replied in the affirmative, and said that the cutters were not going to return to work except as a group. Swartz told Cimarrusti .i hat he was • a fool, because the Union was not going to do anything for him; that several union shops'and the respondent had joined with the,"M &-M";' and that the "Al & Al" would protect the workers. He told Cimarusti that the respondent would close up rather than sign a contract with the Union. From the, facts set forth above, we find that the respondent sought to ascertain whether persons, seeking employment with it were in- terested in or,afriliated with the Union or any other labor organiza- tion that on June 11, 1941, through Bothman; and thereafter, through Bothman and Swartz, it made statements to various of its employees derogatory of the Union and 'union officials,; that it threatened to terminate its business rather than sign a collective bargaining agree- The "M & M" refeis to the Merchants and Manufacturers Association of Los Angeles. See Matter of Sun -Tent Luebbert Co, et at . and Textile Workers Union of America, Local No. 95, C 1 0; and Independent Canvas Workers Union, Inc., patty to the contract, 37 N. L R. B. 50. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with the Union ; and that it solicited various of its employees individually to return to work after they had gone out on strike. We further find, as did the Trial Examiner, that by this course of conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the" rights guaranteed in Section 7 of the Act 1° B. The refusal to bargain collectively 1. The appropriate unit The complaint alleges, and the Trial Examiner has found, that all persons employed by the respondent as full-time cutters 11 constitute a unit appropriate for the purposes of collective bargaining. The respondent, on the other hand, contends in the alternative that the bargaining unit should consist of all production employees or of all persons employed in the cutting room; or that, if the Board finds a cutters' unit appropriate, all employees classified as cutters on the respondent's pay roll should be included. In addition to cutters, the respondent's production employees, as listed on its pay roll, include designers, assorters, operators, drapers, pressers, finishers, time workers, and sample makers.12 In the process of manufacture, a dress passes through the hands of employees in each of these classifications; the operations are continuous, and all the employees work in the same building and under the same general working conditions. All production employees might, therefore, con- stitute an appropriate bargaining unit. At the present time, however, the Union is the only labor organization which has requested recog- nition as the representative of any of the respondent's employees, and it neither admits to membership nor is seeking to represent any em- ployees except the cutters. To, find a unit of all production employees appropriate would, therefore, deprive the cutters of the benefits of collective bargaining until the remaining production employees are organized. Under similar circumstances, we have previously found a 10 In its,biief the respondent contends that the Tual Examinei s finding of restraint, inter- ference, and coercion, based upon the alleged derogatory and anti-union statements of Both- man and Swartz, was in violation of the right of free speech guaranteed by the First Amend- ment toy the Constitution. The Supreme Court has held, however, that the Board may consider what an employer has said as well as what he has done in determining whether he has interfered n ith, restrained, and coes ced his employees See N L R. B V. Virmansa Electric and Power Company, 314 U S 469 In the present case, the anti-union statements of Bothmau and Swartz cleaily constituted pact of a course of conduct aimed at discourag- ing union activity and therefore within the prohibitions of the Act "The employees designated in the complaint and Intermediate Repoit by the terns "full time cutters" are the male employees listed on the respondent s pay roll as cutters. 12During the week ending July 25, 1941 the respondent employed 110 production em- ployees, 10 of whom iseie listed as cutters LETTIE LEE, INC. 457 cutters' unit to be appropriate 13 The question remains whether,. in. this case, the appropriate unit should consist of the full-time cutters only, as the Trial Examiner has found, or should include some or all of the other employees in the cutting room. The cutting room in the respondent's plant is an area partially enclosed by a partition, within which are located the cutting tables, tools, and instruments, and shelves upon which materials are kept. The employees who work in this area are assorters or bundlers; a stock girl, and all those classified by the respondent as cutters. The employees listed on the respondent's pay roll as cutters include both male and female employees, all of whom perform cutting opera- tions on the dresses manufactured by the respondent, use the same tools, 'and have the same foreman. The Union contends, however, that only the men in this group are in fact cutters, whereas the women are "slopers" or "trimmers" and, as such, are ineligible to membership in the Union and should not be included in a cutters' unit.14 - The record shows that, prior to the strike, the men customarily, and the women occasionally, cut whole garments, but that the women spent the greater part of their time in the operations commonly known in the trade as sloping and trimming, which involve the cutting of trim- mings, linings, padding, and parts of garments for which material is first pleated or otherwise specially prepared. Although the evidence regarding the relative difficulty of the work performed by the men and women is conflicting, the women admittedly received a much lower rate of pay. Nevertheless, the record shows, and the Trial Examiner has found, that Katherine Lembke, Dorothy Richards, and Eunice Usher, the only three women in this classification prior to the strike, were in fact qualified cutters, and the Union has not excepted to this finding. Since the strike, the men and women have been doing the same kind of work: Under the circumstances, we are of the opinion ii See Mattci of Ci escent Dress Co and Cutteis Local 11, 1 T G lV U., A F. of L, 29 N I, It B 351. Cf Matter of Justin McCarty, Inc and International Ladies' Garment lVorkgrs' Union, Local No 387, 36 N L R B 800 , Matter of Mot ten-Davis Company, doing business under the trade name of Donoi,an Manufacturing Company and International Ladies' Garment Workers' Union No 387, 36 N I, R B 804 ; and Matter of Kohen-Ligon- Fola, Inc and Internattonal Ladies' Garment lVorkeis' Union, Local No . 387, 36 N. L. R. B. 808, in which we found a cutters ' unit inappropriate In these cases organization had been begun on an industrial basis before the formation of the cutters' local , and all other or- ganized plants in the same locality had been organized on an industrial basis while the Union in the present case is a member of a Joint Booed of four locals of the International, by which it has been represented in bargaining contracts with the Dress Association of Los Angeles, it has at all times maintained an autonomous position in the International organization , electing its own representatives and, in some instances , entering into separate contracts for cutters in plants where only cutters have been organized 14 Scott, a witness for the Board, testified that women cutters are eligible for member- ship in the Union , but that slopers are not admitted "because of their lack of ability to do anything other than that [sloping ]," and that trimmers are excluded because they "are not classified as properly qualified to be cutters " As appears below, however, the women employed' by the respondent for such work are in fact qual flod cutters - 458 DECISION'S OF NATTONAL LABOR RELATIONS BOARD and we find that the slopers and trimmers should be included in the unit along with the cutters. The only other employees who work in the cutting room are-the, assorters or bundlers, who assemble the pieces of the-garments after, they are cut, and'a stock girl, who gets materials from the shelves as they are required. The duties of these employees do not involve, cutting; they are not eligible for membership in the Union; and there, is'i o' evidence' that they desire to ' be represented by the Union or to' be included in'a ' bargaining unit with the cutters. We therefore find that they are riot a part of the appropriate unit. The cutters, slopers, and trimmers who were actually working at the respondent's plant on July 22, 1941, were Swartz, Baliber; Ber- teaux, Cimari sti, Costella, Litwin, Quinn, Sardo, Richards, and Usher: Of these, Swartz was the only one in a supervisory capacity. Although, the Trial Examiner has included Swartz in the cutters' unit which lie' found appropriate, and neither the respondent nor the Union has ex= cepted to this finding, we find that, as a supervisory employee, he is not within the unit hereinafter found appropriate. '-The' respondent claims that. Robert Thain and Katherine Lembke were also in its employ on July22; 1941, and should be included in the unit. Thain is a brother of Lettie Lee, the president of the respondent.' Prior to January 1941, he was admittedly employed by the respondent` as a cutter. In January, however, he left for an indefinite period of time on account of his health. At the time he left, he was told by Bothman that, if he returned, he could have his job back. His name was not carried on the pay roll during July 1941, nor was it included in the list of employees in, the cutting department furnished to the Regional Office of the Board by the respondent on September 11, 1941; and introduced in evidence at the hearing.' He did not return to work until December 1941. Under these circumstances we find, as did the Trial Examiner, that Thain was not an employee of the respondent on July 22, 1941. Lembke, a sloper or trimmer had left work in May 1941 to take, another position for the summer, as she had done on a previous occasion. The record shows that for this purpose she was given leave of absence for a definite period. She returned to work during October 1941. We find that she was an employee of the respondent on July 22, 1941. We fund that all cutters, slopers, and trimmers employed by the respondent, excluding supervisory employees, at all times material herein constituted, and that they now constitute, a unit appropriate for the' purposes of collective bargaining' with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the 'respondent, the full LETTIE LEE, INC. 459.- benefit of their right to self-organization and to collective bargaining, and otherwise efFectuates the policies of the Act. We further find•that on July 22, 1941, the employees within the approprite unit were Baliber, Berteaux, Cimari sti, Costella, Litwin, Quinn, Sardo, Lembke, Richards, and Usher. I . . , 2. Representation by the Union of a majority in the appropriate unit Of the 10 employees within the appropriate unit, 6 had signed applications for membership in the Union and requested it to bargain for them on July 21, 1941. Litwin thereafter personttlly informed Sokol on July 24, 1941, that he desired the Union to represent him. We find that on July 22, 1941, and at all times thereafter, the Union was the duly designated representative of a majority of the respond- ent's employees in the unit hereinbefore found 'appropriate, and'that, by virtue of Section 9 (a) of the Act; it was the exclusive representa- tive of all, the employees in said unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain As stated above, the respondent, on July 22, 23, 24, and 25, 1941, was requested to confer with Sokol or some other representative of the Union with respect to bargaining for the, cutters. The respondent made no reply to these requests. Thereafter the respondent, through, Bothman and Swartz, solicited some of its striking employees, as, individuals, to return to work, and advised. them that it would have nothing to do with the Union. Bothman testified at the hearing, and the respondent claims in its brief, that its failure to deal with the Union was due to is belief that a cutters'- unit was not, appropriate.:' On the basis of the entire record, however, we do not believe that a bona fide doubt as to the appropriateness of the unit claimed by the Union was the real reason for the respondent's refusal to bargain. Bothman had previously expressed to the, cutters his antipathy to the Union and his unwilling- ness to deal with it. We therefore infer and find that the real reason for his failure to respond to Sokol's calls was the respondent's. desire to avoid bargaining collectively with the Union as the representative, "Although the unit heieinbefore found appropriate differs in some respects from the unit for which the Union has been contending throughout this proceeding, we find that fact immaterial under the circumstances . The respondent, by failing to agree to a con- ference with the Union , precluded any discussion of the unit and in effect refused to bargain with the Union for employees in any unit 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any of its employees, and that its subsequent questioning of the unit was merely an afterthought, as the Trial Examiner has found.- We find that on July 22, 1941, and at all times thereafter, the re- spondent, by failing to respond to the Union's requests for a bar- gaining conference, and by its solicitation of strikers, as individuals; to return to work, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, and that it thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory refusals to reinstate As stated above, on July 23, 1941, after receiving Scott's report that a majority of the respondent's cutters had joined the UnioIT and that the respondent had failed to respond to Sokol's requests for a bar- gaining conference, the International included the respondent's plant among those in which it called a strike. Having found that the re- spondent's failure to reply to the Union's requests constituted a re- fusal to bargain, within the meaning of Section 8 (5) of the Act, we further find, as did the Trial Examiner, that the strike in the respondent's plant, which commenced on July 24, 1941, was caused by the unfair labor practices of the respondent. During the strike, the respondent persisted in its refusal to deal with the Union, and on repeated occasions sought to persuade its employees to abandon the strike and attempted to split the ranks of the strikers by stating that it would take back some, but not all, of them. These acts of the respondent constituted additional unfair labor practices which, as the Trial Examiner has found, served to prolong the strike. On September 9 and 13, 1941, Sokol notified the respondent, by let- ter, that the striking employees were ready and willing to return to work and requested their reinstatement. Since the strike had been caused and prolonged by the respondent's unfair labor practices, these employees were entitled, in the absence of some valid reason for dis- charge, to reinstatement, upon application, to their former or sub, stantially equivalent positions, even though the respondent had hired new employees during the strike.17 Nevertheless, none of them has been reinstated. 11 Cf. N L R B Y. B,les-Coleman Lumber Co, 98 F (2d) '18, in which the Coui t said "Respondent made no objection to the Conti act on the basis of the propuety of the unit for which it was being presented The Bonid was entitled to draw the inference that respondents refusal to negotiate with the Union was motivated, not by doubt as to the appropiiate umt,'but by a iejection of the collectne bargaining principle" "Black Diamond Steamship Corporation v N L R B, 94 F (2d) 875 (C C A 2), cert. den 304 U S 579 , Mattel of McKaig-Hatch, Inc and Amalgamated Association of Iron, Steel, and Tin Workers of No,tlh America , Local No 11 3 9, 10 N L R B 33; N L R B v Remington Rand Inc, 94 F (2d) 862 (C C A 2), ceit den 304 U S 576 ; LETTIE_:LEE- INC. '461 In its answer, the respondent alleged that "it has at all times been willing that said employees return to work, and that it is now willing that said employees return to their work . . . that it has requested .the said employees to return to their work, but that said employees have refused to do so." At the hearing and in its brief, the respond- ent contended that there was not sufficient work available for all-; its employees, and that, since Sardo was an ex-convict, the respondent was under no obligation to reinstate him. These contentions are obviously inconsistent with the €illegation that -the respondent was at all times ready and willing to have its striking employees return to work. - The only evidence in support of the respondent's contention that it was willing to reinstate the strikers is that on several occasions the respondent, through Bothman and Swartz, invited Berteaux, Cimariisti, and Quinn to return to work. Baliber, CosteIla, and Sardo have at no time been offered reinstatement. Moreover, the record shows that new 'employees, hired during the strike, were retained,in the respondent's employ after the Union's offer to termnlate the strike, and that other employees were hired thereafter. The respondent's contention that there' was insufficient work available is therefore untenable, nor has it offered any other reason for failing to,'reinstate B aliber.and Costella.'S Sardo, the respondent contends, is not entitled to reinstatement because he is an ex-convict, having admittedly been convicted of a felony in Wisconsin. The fact of his conviction came to the attention of Bothman shortly after the strike began. Nevertheless, in its answer the respondent did not allege Sardo's conviction as a defense to the charge that he had been discriminated against. In view of this fact, and since Baliber and Costella were also refused reinstatement, although in their cases no similar excuse was available, we find, as did the Trial Examiner, that Sardo's criminal record was not in fact the reason for refusing him reinstatement, but that the respondent was unwilling to reinstate any of its striking employees unless they returned to work as individuals and not as a group represented by the Union, and was seeking to rid itself of some of the strikers completely. , We find, as did the Trial Examiner, that on or about September 10, and thereafter, the respondent, by refusing to reinstate its striking Stewa, t Die Casting Corporation v. N L R B, 114 F (2d) 849 (C C A 7) ; Matter of Rapid Roller Co , it coiporatron and'Local 120, United ; Rubber Workers, of America, Affiliated with the C I O , 33 N L R B 557, enf'd but remanded on another issue in 126 F ,(2d) 452 (C. C A 7) ; Mattes of Shenandoah-Danes Mining Company and Mine, Mill d Smelter Workers, etc , 35 N L R B 1153, Matter of The L Hardy Company and Steel Workers Organizinq Committee (CIO), 44 N L R B 1013. 18 Cimaiusti, Quinn , and Beiteaux testified `that Bothnian had told them that he did not want to reemploy Baliber and Costello because they were trouble makers ; the-respond- ent did not offer any evidence in support of this contention 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Louis Baliber, Nolan Berteaux, Vito N. Cimarusti, Angelo P. Costella, Donald P. Quinn, and Joe Sardo, discriminated in regard -to their hire and tenure of employment, thereby discouraging mem- bership in the Union and interfering with, restraining and coercing -its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent 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 respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. We have found that, on and,after July 22, 1941, the Union was the exclusive representative of the employees -in the appropriate unit. Having ' further found that the respondent refused to bargain col- lectively with the Union as such representative, we shall order it, upon request, to bargain' collectively with the Union as the exclusive rep- resentative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. We have also found that the respondent's unfair labor practices caused 'and prolonged the strike which began on July 24, 1941, and that on or about September 10, 1941, and thereafter, the respondent discriminated against its striking employees, Louis Baliber, Nolan Berteaux, Vito N. Cimarusti, Angelo P. Costella, Donald P. Quinn, and Joe Sardo, by denying them reinstatement. In such case, we normally- order the reinstatement with back pay ' of the employees discriminated against. In the present case, however, the respondent, after refusing these employees reinstatement as a group, offered rein- statement to Berteaux, Cimarusti, and Quinn individually. This they refused, - thereby resuming the status of;, strikers.- We shall' accordingly modify our usual order-with respect to back pay, insofar as they are concerned. We shall therefore order the respondent: • (1) to offer to Baliber. Costella, and Sardo -immediate and, full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights `and' privileges; and (2) upon application, LETTIE LEE, INC. 463 ,to offer to B,erteaux, Cimarusti, and Quinn reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges." The reinstatement shall be effected in the following manner : All employees hired by the respondent as cutters, slopers, or trimmers after July 24, 1941, the date of the commencement of the strike, shall, if necessary to provide employment for those to be offered reinstatement, be dis- missed. If,' despite such reduction in-force, there is not sufficient employment available for the employees to be offered reinstatement, .'ill available positions shall be distributed among the remaining employees, including those to be offered reinstatement, without dis- crimination against any employee because of his union membership or activities, following such system of seniority or other-practice as has heretofore been applied in the conduct of the respondent's business. Those employes, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list and offered employment in their former or substan- tially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined by such system of seniority or other practice as has heretofore been followed by the respondent. . We shall also order the respondent to make whole Baliber, Costella, and Sardo for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from September 10, 1941, to the date of the respondent's offer of reinstatement or placement upon the preferential list hereinabove' described, less his net earnings 20 during said period. Berteaux, Cimarusti, and Quinn will also ,be ordered made whole by the respondent for any loss of pay they may have suffered or may hereafter suffer because of the respondent's refusal to reinstate them. However, because of their refusal subsequent to September '10, 1941, to accept the respondent's offer of reinstatement, we shall exclude the period from the date of this refusal-to the date on'which they thereafter applied or hereafter apply for reinstatement in 19 Where an employer has discriminated against employees , reinstatement of the em- ployees discriminated against is normally necessary to effectuate the purposes of the Act Sardo's criminal record - does not, in our opinion ,' warrant our withholding the normally applicable remedy of reinstatement. ' 2013y "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incuired by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter ,of Crossett Lumber . Conrpauny, and United Biotherhood of Caipeiaters, and Joiners of America. Lumber and Saivniill Workers Union , Local 2590. 8 N 'L R'B 440 Monies received for work pertormed upon Federal, State, county, municipal , or oth`eF`work=relief ,projects shall be considered as eainnigs See Republic Steel Cooporateon v. N L. R B, 811 U S 7' 1, I - ,, .. 464 DECISIONS OF NATIONAL-'LABOR' RRELATIONS BOARD computing the amount of back pay due them.. We shall order the respondent to pay each of them a sum of money equal to the amount which he would normally have earned as wages during the period from September 10, 1941, to - the date on which he refused the re- spondent's offer of reinstatement and during the period from five (5) days after the date on which he has since applied or hereafter ap- plies for reinstatement to the date on which the respondent offers him reinstatement or places him on the preferential list above de- scribed, less his net earnings during such periods.2 Even if we were to assume that the respondent's denial of rein- statement to the striking employees was not discriminatory, we would nevertheless under the circumstances award them reinstate- ment and back pay in the manner set forth above. Assuming that the respondent denied them reinstatement, because their jobs were occupied by strikebreakers, and for no other reason, and assuming that a denial of reinstatement on such ground alone was not a ,violation of Section 8 (3) of, the Act, nevertheless the entire situa- tion was brought about by the unfair labor practices of the re- spondent in'interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act and in refusing to bargain in good faith With the Union. In this situa- tion the ordinary right of an employer to select his employees is gmilified as a'result of the unfair labor practices causing the strike, and not only are the striking employees entitled to reinstatement ,upon application, but also any refusal by the employer of their re- ,quest for reinstatement subjects him to liability for loss of wages sustained by virtue of the refusal.22 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CoNCiusIoNs or LAW 1. International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All cutters, slopers, and trimmers employed by the respondent, excluding supervisory employees, at all times material herein con- stituted, and they now constitute, a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of 'the Act. , 3. International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of Labor, was at all n See footnote 20, supra $2 See Matter of The L Hardy Company and Steed Worles Organizing Committee (CIO), 44 N L. R. B. 1013, and cases therein cited LETTIE LEE, INC. 465 times material herein, and it now is, the exclusive representative of all the employees in such unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with International Ladies' Garment Workers' Union, Cutters, Local No. 84, affiliated with the American Federation of Labor, as the exclusive representative of the employees in the above-stated unit, the respondent; Lettie Lee, Inc., has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating with regard to the hire and tenure of em- ployn-ient of Louis Baliber, Nolan Berteaux, Vito N. Cimarusti; Angelo P. Costella, Domild P. Quinn, and Joe Sardo, and thereby 'discouraging membership'in_International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) 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 respondent, Lettie Lee, Inc., Los Angeles, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union, Cutter Local No. 84, affiliated with the American Federation of Labor, as the exclusive representative of all its cutters, slopers, and trimmers, excluding supervisory employees; (b) Discouraging membership in International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of -Labor, or in any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (c) In any other manner interferring with, restraining; or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectvely 493508-43-vol 45-30 0 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '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, Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of Labor, as the exclusive representative of all its cutters, slopers, and trimmers, excluding supervisory employees ; (b) Offer to Louis Baliber, Angelo P. Costella, and Joe Sardo im- mediate and full reinstatement to their former or, substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "The remedy" above, and place those of them for whom employment is not immediately available upon a preferential list in the manner set forth in said, section, and thereafter, in such manner, offer them employ- ment as it becomes available; •(c) Upon application, offer to Nolan Berteaux, Vito N. Cimarusti, and Donald P. Quinn immediate and full reinstatement to their for- mer or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the 'section entitled "The remedy"• above, and place those of them for whom employment is not immediately available upon a preferential list in the mamler set forth in said section, and thereafter, in such 'manner, offer them employment as it becomes available; (d) Make whole Louis Baliber, Angelo P. Costella, and Joe Sardo for any loss of pay they may have suffered by reason of the respond- ent's discrimination against them, by payment to each of them of a sum, of money equal to that which he would normally have earned as wages during the period from September 10, 1941, to the date of the respond- ent's offer of reinstatement or placement upon a. preferential` list, less his net earnings during such periods; (e) Make whole Nolan Berteaux, Vito N. Cimarusti, and Donald P. 'Quinn for any loss of pay, they may have suffered or may' hereafter suffer because of the respondent's refusal' to reinstate them', by pay- ment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from September 10, 1941, to the date on which he refused the respondent's- offer of rein- statement and during the period from five (5) days after the date on which he has since applied or hereafter applies for reinstatement to the-date on which the respondent offers him reinstatement or places him upon a preferential'list,-less his net earnings during such periods; (f) Post immediately in " conspicuous places : throughout its plant 0 LTTTIE LEE, INC. 467 in Los Angeles, California, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating: (1) that the respondent will not engage in the con- duct from which it is ordered'to cease and desist in paragraphs 1 (a), (b), and, (c) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's employees are free to become or remain members of International Ladies' Garment Workers' Union, Cutters Local No. 84, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee be- cause of membership or activity in that organization; (g) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.