Eva-Ray Dress Manufacturing Co., Inc.

In the Matter of EVA-RAY DRESS MANUFACTURING COMPANY, INC.. AND PETITE TOT, INCORPORATED and INTERNATIONAL LADIES' GAR- MENT WORKERS' UNION, A. F. L. Case No. 10-CA-586.-Decided JanuarT 31, 1950 DECISION AND ORDER 3 On September 20, 1949, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that. the Respondents had engaged in and were engaging in certain unfair- labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that the Respondents. had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter the Respondents filed exceptions to the Inter- mediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston,. Reynolds, and Murdock]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prej udicial error was committed. The rulings are hereby affirmed.' The Board has considered the Interme- diate Report, the Respondents' exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 'At the outset of the hearing , after the Trial Examiner had denied the Respondents' motion for a continuance , the Respondents' attorney left the hearing room and did not return until the General Counsel had put in most of his case . At the close of the General Counsel's case, the Trial Examiner granted the Respondents a continuance of approxi- mately 1 week. When the hearing resumed, the Respondents called, for cross-examination, all of the General Counsel 's witnesses not previously cross-examined, except Nora B. Stroup, and Louise Harbin. With respect to Harbin , the Respondents ' counsel stated : "I don't think there is anything in reference to Louise Harbin that I would care to particularly elicit on cross-examination ." So far as Stroup is concerned , when the Respondents' counsel stated that she was under subpoena but had not appeared , the Trial Examiner stated : "If you are able to secure her presence before the hearing adjourns today, I shall be glad to permit you to cross -examine her." We are of the opinion that the Trial Examiner 's ruling in denying the Respondents' motion for a continuance was not prejudicial . However, as the Respondents apparently desired but were unable to cross-examine witness Stroup, we shall disregard her testimony . In any event, her testimony was merely cumulative. 88 NLRB No. 94. 361 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Trial Examiner, except insofar as they are inconsistent with this Decision and Order 2 1. We agree with the findings of the Trial Examiner that the Re- spondents' decision to cease manufacturing women's dresses was based on economic considerations but that the Respondents nevertheless discriminatorily laid off and thereafter refused to reinstate the em- ployees listed in the complaint, thereby violating Section 8 (a) (1) and (a) (3) of the Act. However, we view the so-called layoffs as discharges, effected in pursuance of a definite plan by the Respondents to rid themselves of the Union by permanently terminating the em- ployment of all employee members of the Union and by replacing them with newly hired employees. Our findings in this respect is amply supported by the Trial Examiner's findings with respect to the cir- cumstances surrounding the layoffs, fully detailed in the Intermediate Report.' 2. The Trial Examiner found that the Respondents, on November 14,1948, and at all times thereafter, violated Section 8 (a) (1) and (a) (5) by refusing to bargain collectively in good faith with the Union as the representative of their employees. The Respondents have ex- cepted. We find no merit in this exception. Specifically, we base our finding of refusal to bargain on the following actions of the Re- spondents : (a) The Respondents' failure to consult with the Union, on Novem- ber 14, 1948, and thereafter, with respect to the shutdown of their operations and the mass layoff of their employees.4 (b) The Respondents' individual bargaining with Albert, Vaughn, and Bozeman .5 (c) The institution of a unilateral wage decrease on December 7, 1948, without prior consultation with the Union.6 (d) Mr. Seplin's referral of Walden to his attorney on December 7, 1948. Like the Trial Examiner, we look upon this action as a mere device to gain time for the completion of the legal steps considered necessary to circumvent the Union. 2 The Trial Examiner inadvertently stated the date of Mattie Beall's termination as November 23, 1948. We find the correct date was November 24, 1948. This typographical correction, however, does not affect any of the Trial Examiner's other findings. 3 Member Reynolds would predicate the 8 (3) finding herein solely upon the Respondents' discriminatory refusals to rehire its employees. Inasmuch as neither his colleagues nor the Trial Examiner gainsay the fact that the shutdown of the Respondents' operations were due to economic considerations, he finds it patently inconsistent with such finding to conclude that the layoffs constituted discriminatory discharges. 4 Pepsi-Cola Bottling Company of Montgomery, 72 NLRB 601. 6 Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678. IN. L. R. B. v. Winona Textile Mills, Inc., 160 F. 2d 201 (C. A. 8), rehearing denied, April 21, 1947. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 363 (e) The Respondents' failure to meet with the Union for purposes of collective bargaining after the Union's formal request therefor, contained in its letter of January 31, 1949. Nor do we believe that the Respondents can defend themselves on the ground that the Union had lost its majority on and after December 7, 1948. Such loss of majority, if indeed it did occur, was directly traceable to the prior unfair labor practices of the Respondents. Ac- cordingly, it could not excuse the Respondents' failure to bargain in good faith.7 3. The Respondents also attempted to excuse their violations of the Act on the ground that the manufacture of infants' wear carried on after December 7, 1948, was not authorized by the corporate charter of the Eva-Ray Company. In effect, the Respondents argue that the manufacture of infants' wear was ultra vices. We agree with the Trial Examiner that this defense does not excuse the Respondents from liability for the commission of unfair labor practices. Moreover, the Respondents maintain that the contract between the Eva-Ray Company and the Union was not binding upon them because (1) the contract was with the Eva-Ray Company and the Eva-Ray Company was out of existence; (2) the contract did not cover em- ployees engaged in manufacturing infants' wear; and (3) the contract was illegal because its union-security provisions conflicted with Geor- gia law. We do not find it necessary either to adopt or reject the findings of the Trial Examiner that the contract covered the manu- facture of infants' wear, or that the contract was legal despite its conflict with Georgia law. We deem these matters immaterial. As- suming, without deciding, that the contract was not binding, this fact would not excuse the Respondents for refusing to bargain with the Union for a valid and binding contract, nor would it excuse them for the violations of Section 8 (a) (1) and (a) (3) which we have found herein. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents Eva-Ray Dress Manufacturing Company, Inc., Atlanta, Georgia, and Petite Tot, In- corporated, Atlanta, Georgia, jointly and severally, and their officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union, A. F. L., as the exclusive repr6sentative of all their employees in the bargaining unit found appropriate in the 7 Franks Bros . Company v. N. L. R. B., 321 U. S. 702. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report, with respect to rates of pay , wages, hours of employment, and other conditions of employment; (b) Unilaterally instituting changes in wages, hours , and working conditions ; (c) Conditioning reinstatement of discharged or laid-off employees upon withdrawal from the Union; (d) Discouraging membership in International Ladies' Garment Workers' Union, A. F. L., or in any other labor organization of their employees, by discriminatorily laying off or discharging and refusing to reinstate any of their employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any terms or condition of employment; and (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist International Ladies' Gar- ment Workers' Union, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to the 26 individuals listed in Appendix A, attached to the Intermediate Report, immediate and full employment in the same or substantially equivalent positions in which they would have been employed but for the Respondents' discrimination against them, with- out prejudice to their seniority and other rights and privileges, in the manner set forth in the section of the Intermediate Report entitled "The remedy," and make them whole for any loss of pay they may have suffered by reason of the Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount which she would normally have earnQd as wages during the period from the date of the Respondents' discrimination against her, to the date of the Respondents ' offer of reinstatement, less her net earnings during said period; (b) Upon request, bargain collectively with International Ladies' Garment Workers' Union, A. F. L., as the exclusive representative of all the employees in the bargaining unit found appropriate in the Intermediate Report, with respect to rates of pay , wages, hours of employment, and other conditions of employment, and if an under- EVA-RAY DRESS MANUFACTURING COMPANY, INC. 365 -standing is reached, embody such understanding in a signed agree- Iilent; (c) Post at their Atlanta, Georgia, plant, copies of the notice at- tached hereto and marked Appendix A.8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after :being duly signed by the Respondents' representatives, be posted by the Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employes are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material; and (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Re- spondents have taken to comply herewith. - IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- m issed, insofar as it alleges that the Respondents threatened to lock ,out and refuse employment to employees because of their union mem- bership and activities, or threatened and warned employees that they would close the Atlanta plant and move from the city to avoid dealing -with the Union. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., as the exclusive representative of all our employees in the appropriate unit described below. WE WILL NOT unilaterally institute changes in wages, hours, and working conditions. WE WILL NOT condition reinstatement of laid-off or discharged employees upon withdrawal from the union. WE WILL NOT discourage membership in INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., or any, other labor organization of our employees, by discriminatorily laying off or discharging and refusing to reinstate any of our employees or 8 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words : "A DECISION AND ORDER" the words: "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminate in any other manner in regard to their hire and' tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or, coerce our employees in the exercise of their rights to self-organ- ization, to form labor organizations, to join or assist INTERNA- TIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, and to refrain from any and all such activities , except to, the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer to the following named individuals immediate and full employment at their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered- as a result of the discrimination against them : Nell Albert Mattie Beall Myrtle Bozeman Dorothy Brewster Marie Causey Alice Coachman Clara Dennis Nettie Ferguson Odelle Goss Louise Harbin Mary Hardwick Pearl Hester Mrs. J. A. Johnson Della Maxwell Leila McDermott Fannie Miller Alma Moore Mary Pike Virginia Pitt Mildred Rawlins Susie M. Smith Nora Stroup Beatrice Taylor Georgia L. Teate Georgia Ward Jessie Wilson WE WILL bargain collectively upon request with INTERNATIONAL. LADIES' GARMENT WORKERS' UNION, A. F. L., as the exclusive representative of all the employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, and other conditions of employment , and if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is : All our employees employed at our Atlanta plant , except for office and clerical employees , and guards, professional employees, and supervisors, as defined in the Act. EVA-RAY DRESS MANUFACTURING COMPANY, INC . 367 All our employees are free to become or remain members of said -anion or any other labor organization. EVA-RAY MANUFACTURING COMPANY, INC., Employer, By--------------------------------------------- (Representative ) ( Title) Dated-------------------- PETITE TOT, INCORPORATED, Employer. By ------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. William M. Pate, for the General Counsel. Mr. Arnold S. Kaye, of Atlanta, Ga., for the Respondents. Mr. Joseph Jacobs and Mrs. Joe Lee Walden, of Atlanta, Ga., and Mr. Michael .Keene, of Chattanooga, Tenn., for the Union. STATEMENT OF THE CASE Upon a second amended charge filed April 4, 1949, by International Ladies' Garment Workers' Union, A. P. L., herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Tenth Region (Atlanta, Georgia), issued a complaint dated May 27, 1949, against :Eva-Ray Dress Manufacturing Company, Inc., and Petite Tot, Incorporated, herein called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the said charge, and the notice of hearing were duly served on the Respondents and the Union. With respect to the unfair labor, practices, the complaint alleged in substance that the Respondents: (1) On various dates between November 14 and 26, 1948, laid off 26 named employees' and thereafter failed and refused to reinstate them because of their union membership and activities; (2) on December 7, 10, 20, 1948, and January 29, 1949, and since, refused to bargain collectively with the Union,.the duly designated representative of a majority of the employees in an appropriate unit, as the exclusive representative of all the employees in said unit; and (3) by the above and by certain other stated acts, interfered with, 1 The General Counsel and his representative are herein referred to as the General Counsel and the National Labor Relations Board as the Board. ' Nell Albert, Mattie Beall, Myrtle Bozeman, Dorothy Brewster, Marie Causey, Alice Coachman, Clara Dennis, Nettie Ferguson, Odelle Goss, Louise Harbin, Mary Hardwick, Pearl Hester, Mrs. J. A. Johnson, Della Maxwell, Leila McDermott, Fannie Miller, Alma Moore, Mary Pike, Virginia Pitt, Mildred Rawlins, Susie M. Smith, Nora Stroup, Beatrice Taylor, Georgia L. Teate, Georgia Ward, and Jessie Wilson. The names as listed here are as established by the record. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrained, and coerced their employees in the exercise of rights guaranteed i.n, the Act. By its answer filed June 21, 1949, Respondents admitted the layoff of the employees and admitted that the Union was the exclusive representative of the employees in the alleged unit for the purposes of collective bargaining, but they denied the commission of any unfair labor practices. Respondents also pleaded an affirmative defense which may be summarized' as follows : That because of a steady decline in the ready-to-wear business Eva Ray Manufacturing Company, Inc. (hereinafter called Eva-Ray), who was under a contract with the Union, ceased in November 1948, the manufacture of women's outer-wear apparel in which it had been exclusively engaged, laid off the em- ployees named in the complaint, disposed of its stock of goods, withdrew froin business, and was legally dissolved as a corporation on February 2, 1949; that Petite Tot, Incorporated (hereinafter called Petite Tot), a separate and distinct corporation, obtained a charter on February 2, 1949, and engaged in the business of manufacturing infants' sunsuits, rubber panties, and other lines of infants' wear ; that though the officers and stockholders of both corporations were sub- stantially the same, no discrimination was exercised against the members of the Union ; that some members were in fact employed by Petite Tot and others were asked to return to work for it but refused to work on the new product at the wages offered. Pursuant to notice a hearing was held on June 28 and 29 and July 7 and 8, 1949, in Atlanta, Georgia, before George A. Downing, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel and the Union by representa- tives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. As the hearing opened Respondents renewed their motion for a continuance which had been previously denied by the Regional Director and added to that motion other grounds orally stated. The motion was denied.' At the conclu- sion of the General Counsel's case on June 29, Respondents renewed their motion for a continuance on grounds orally stated. The hearing was thereupon ad- journed to July 7. At the conclusion of the General Counsel's case, Respondents moved to dismiss the complaint insofar as it charged a refusal to bargain. Ruling was reserved; said motion is now hereby denied. At the conclusion of the hearing the General Counsel's motion to conform the pleadings to the proof in matters not of substance was granted without objec- tion. The parties were afforded an opportunity to make oral argument and to file briefs, proposed findings of fact, and conclusions of law. Oral argument was made by the General Counsel and the Respondents. No briefs have been received. 3 Respondents were advised that they might move for a continuance or suspension of the hearing at the conclusion of the General Counsel's case if they were not then pre- pared to go forward with their own case. Respondents' counsel contended that because of the absence of Mrs. Rose Seplin (secretary and treasurer of Respondent corporations), he would not be able advantageously to cross-examine the General Counsel's witnesses and there would be no point in his remaining at the bearing. Shortly thereafter, and after entering into certain stipulations with the General Counsel, Respondents' counsel left the hearing room without announcement of his withdrawal. lie returned on the morning of June 29, and participated in the remainder of the hearing. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 369 Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Eva-Ray Dress Manufacturing Company, Inc., was a Georgia corporation from August 2S, 1946, until February 2, 1949, with its principal office and only manu, facturing plant at Atlanta, Georgia, where it was engaged in the manufacture, sale, and distribution of women' s dresses. Petite Tot, Incorporated, was incorporated as a Georgia corporation on Febru- ary 2, 1949, and since that (late has maintained its principal office at Atlanta, Georgia, has maintained the same plant previously maintained and operated by Eva-Ray, and has continuously engaged in the manufacture, sale, and distribution of infants' pants and bibs. In the course of its operations from August 28, 1946, to February 2, 1949, Eva- Ray purchased raw materials consisting principally of piece goods and trimmings valued in excess of $50,000 annually, approximately 50 percent of which was purchased outside the State of Georgia and shipped in interstate commerce to its plant in Atlanta. During the same period it sold finished products consisting of women's dresses valued in excess of $100,000 annually, approximately 50 per- cent of which was sold and shipped to customers outside the State of Georgia. Since February 2, 1949, Petite Tot has purchased raw materials consisting principally of piece goods and trimmings valued in excess of $25,000, approximately 50 percent of which was.purchased outside the State of Georgia and shipped in interstate commerce to its plant in Atlanta. During the same period it sold finished products consisting principally of infants' pants and bibs valued in excess of $50,000, approximately 50 percent of which has been sold and shipped to customers outside the State of Georgia. It is hereby found that the Respondents were, at all times covered by the com- plaint, engaged in interstate commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, A. F. L., is a labor organization admitting to membership employees of Respondents. III. THE UNFAIR LABOR PRACTICES 4 A. The events 1. Background and bargaining history ; the contract ; the two corporations Respondents were family corporations owned jointly by Adolph Seplin and Rose Seplin, his wife, they being the sole stockholders, directors, and officers I The findings in this division of the report are based upon a preponderance of the evidence, after a consideration of all the testimony and on the basis of all the available evidence. See H. Milton Newman, etc., 85 NLRB, 725, decided August 18, 1949, footnote S. Much of the testimony in this case is not in irreconcilable conflict. Where such con- flicts exist between the testimony of the Seplins and that of other witnesses, they have been resolved against the Seplins who did not make a favorable impression as witnesses. On a number of questions their disclaimer of knowledge of elementary matters concerning their contract with the Union, the operations of their business, and the successorship of Petite Tot was implausible , if not incredible. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of both corporations . Eva-Ray had been incorporated on August 28, 1946, prior to which the Seplins had operated the business for about 3 years as a copartner- ship. Before that Adolph Seplin had been employed for years as designer and production manager by other manufacturers of women 's apparel in Atlanta and New York. After entering business for themselves the Seplins had always bargained col- lectively with their employees . Since May 31, 1946, the contract was with the charging Union,' and covered a term of 3 years , with provision for year-to-year renewal thereafter . Briefly summarized , the provisions of the contract which are pertinent to the issues are as follows : The contract recited that the Eva -Ray firm was engaged "in the production of dresses and/or other articles of wearing apparel" and that the Union repre- sented the workers in the industry. It obligated the firm "to employ in the manufacture of all products produced by or for the Firm none but members in good standing with the Union , or those who have signified their willingness and intention of so becoming after six ( 6) weeks employment by the Firm." The firm also agreed to call upon the Union for all additional workers when- ever needed, but the contract provided that should the Union fail to provide skilled and efficient. workers upon such call , the firm might employ additional workers who should be informed by the firm that they must apply for membership in the Union and become members thereof if they were to be retained for a period greater than 6 weeks. The firm also agreed to notify the Union at the time of employment of such new workers. Separate wage scales were provided for garments selling for more than $24 per dozen ( as did dresses ) and at less than $24 per dozen ( as did babies wear). It was mutually agreed "that every reasonable effort will be made by both parties to this agreement to see that equal division of work shall prevail at all times during the life of this agreement." The contract also provided that it should apply "to this shop, or any other shop, or shops, operated by the Firm, or which may be operated by the Firm, and also applies to any and all finished merchandise manufactured for or by the Firm." The contract was in effect between Eva-Ray and the Union during the period of the alleged commission of the unfair labor practices charged in the com- plaint. All production employees were members of the Union and all union dues were checked off. Eva-Ray was dissolved by order of court on February 2, 1949, and Petite Tot was incorporated on the same day. Petite Tot continued to occupy and to use the same plant and office premises as Eva-Ray and under the same leases It also used the same sewing machines and other equipment with the exception of 5 According to the testimony of Walden , the Union ' s international representative, the contract was signed in September 1946. 6 Petite Tot's occupancy of the premises was under Eva-Ray's unexpired lease which had been renewed a few months earlier for a 5-year term. Petite Tot also succeeded to other assets and liabilities of Eva-Ray. Thus , Fields, the bookkeeper for both corpora- tions, testified that Petite Tot collected Eva-Ray's old accounts receivable, paid its unpaid accounts payable, and sold dresses and piece goods and received the proceeds. EVA-RAY DRESS MANUFACTURING COMPANY, INC . 371 certain special machines which were not required in the manufacture of in- fants' wear. Petite Tot also continued to employ the same clerical staff and to operate with the identical ownership and management. There was in fact a practical continuity of entity and operation, the only change being in the name of the corporation and in the trade name of the product 7 2. The decision to abandon the manufacture of women's dresses ; the layoff Sometime in September or October 1948, the Seplins, found that the sale of Eva-Ray's products had dropped alarmingly, that the inventory of finished dresses had increased accordingly, and that it was questionable how long Eva- Ray could continue to operate and meet its payroll. The Seplins at first de- cided to shut down temporarily with the idea of resuming the manufacture of dresses after they should have sold the dresses on their racks; and they then considered alternatively the plan of converting to a new type of product or line of goods which would require a lesser amount of material' and which could be manufactured at lower wage rates than they were paying under the contract with the Union. The latter plan was also to be depended upon their being able to develop a market for the new line. Accordingly, in late October or early November the Seplins discontinued cut- ting their spring line (testimony of Gladys B. Orr) and beginning on November 14, they proceeded gradually to shut down the operations and to lay off the em- ployees until November 26, when all materials previously cut had been processed into finished dresses. By that date all the employees named in the complaint had been laid off, and there remained on the job only two employees, Gladys B. Orr and Ed Brackett, a cutter.° In the meantime, for 2 or 3 weeks prior to the layoffs, Mrs. Seplin had as- signed Orr (later a forelady under Petite Tot), to the manufacture of baby sun- suits and panties as samples for selling purposes. The employees were not informed at any time prior to or during the shutdown of the possibility of a conversion to a different product or that the Eva-Ray Company would be dis- solved.10 In effect they were informed only that the stockroom was full of com- 7 The product, infants' wear, was the same which Eva-Ray had been manufacturing from December 7, 1948, to February 2, 1949. Petite Tot at no time has engaged in the manufacture of women's apparel, though its charter authorized it to do so. s Thereby requiring a smaller amount of capital to be tied up in piece goods. 6 The record establishes that the employees were laid off as follows : Georgia Ward, November 14. Myrtle Bozeman, November 15. Leila McDermott, November 15. Marie Causey, November 15. Susie M. Smith, November 15. Nell Albert, November 16. Dorothy Brewster, November 18. Nora Stroup, November 19. Beatrice Taylor, November 21. Odelle Goss, November 22. Mattie Beall, November 23. Alma Moore, November 23. Alice Coachman, November 24. 10 Yet Seplin testified that he knew at the process of changing to the manufacture of dissolve Eva-Ray had already been made. Clara Dennis , November 24. Nettie Ferguson , November 24. Mary Hardwick, November 24. Della Maxwell, November 24. Fannie Miller, November 24. Mary Pike, November 24. Virginia Pitt, November 24. Jessie Wilson, November 24. Louise Harbin , November 26. Pearl Hester, November 26. Mildred Rawlins , November 26. Georgia L . Teate, November 26. Mrs. J. A. Johnson, November 26. time of the shutdown that has was in the infants' clothes and that the decision to 882191-51-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pleted dresses which. the Seplins were unable to sell ; that the plant would be shutdown until the stock was disposed of ; that the employees were being laid off until operations could be resumed, probably around the first of the year;" and they were either expressly told or left under the impression that they would be called back when operations were resumed. On some occasions the Seplins blamed their difficulties on their salesmen, saying that the salesmen had ruined their business (testimony of Myrtle Bozeman and Nell Albert). Some of the employees (Albert, Stroup, and Bozeman) inquired whether they should apply for unemployment compensation or seek other employment. The Seplins suggested that they delay doing so ; that they wait a week or two because "something might turn up"; and Seplin assured Bozeman she would not lose money. 3. Subsequent developments ; the resumption of operations After the layoff a number of the employees called at the plant for their pay or their personal belongings and some of them had further conversations with Mrs. Seplin or Mrs. Fields. On the Friday following their layoff on November 26, Rawlins and Teate returned to the plant for their pay. Mrs. Seplin told them on the occasion, "Girls, there will be no more Eva-Ray." There was no explanation of the announcement. Mrs. Fields, the bookkeeper, admitted that she made similar statements to "quite a few" of the employees just after the layoff." When, on the same Friday Harbin returned for her pay, Mrs. Seplin made no reference to the Eva-Ray Company but said only "well, I am sorry things happened like they have. We will probably be together soon." Bozeman and Stroup returned to the plant together 2 or 3 weeks after the lay- off 13 and before Christmas. To Stroup's inquiry as to when she might again. be needed, Mrs. Seplin replied that "maybe you had better go ahead and look for another job because it doesn't seem as if business is going to pick up that we can use you." Mrs. Mattie Beall (the union chairlady), who was laid off on November 23, testified that she returned to the plant about a month later to see about getting her group insurance converted into an individual policy. She inquired of Mrs. Seplin, "How are you getting along with your new work?" And Mrs. Seplin replied, "Well, we are just getting started." Respondents did not notify the Union of the proposed shuntdown or layoff, or later inform it of the fact. Neither did the Seplins discuss any feature of the matter with Mrs. Beall, the shop chairlady,, nor did they say anything to, her to the Union about changing the type of product. In the meantime there was no cessation in the manufacture of sample sun- suits and panties for infants. Orr, who had been assigned by the Seplins to that 11 Testimony of Susie M. Smith and Alma M. Moore. To the same general effect was the testimony of Georgia L. Tate, Mildred Rawlins, Nell Albert, and Myrtle Bozeman. 12 It is clear from the record that in making statements to employees, Fields was convey- ing information which the Seplins either expressly or impliedly authorized. Furthermore Fields was closely identified with the management, being privy to all management councils and an active participant and adviser therein. In her dealings with and statements to the employees she was obviously acting as Respondents' agent. 13+ Stroup's testimony. Bozeman attempted to fix the date of the visit at November 20. She was obviously mistaken in this view of her testimony that the plant was shutdown and that only Orr and Brackett were working. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 373 work prior to and during the layoff, was retained and worked continuously on samples. Brackett, Respondents' cutter, similarly was retained. On or about December 7, Eva-Ray began the manufacture of infants' wear for inventory and to fill orders.14 There is no dispute, however, that (with two exceptions) the Seplins called none of their former emlloyees to come back to work or made any attempt to procure them." One of the exceptions was Nell Albert, a friend of Gladys Orr. Albert testified that Mrs. Seplin called her on a Thursday about 2 weeks before Christmas and told her that it was on the strength of Orr's suggestion or recommendation that she was calling ; that she would like Albert to come back to work for her but that she wasn't in the Union then and she couldn't pay what she had paid before ; that 70 cents an hour was as much as she could pay. Albert stated she would' see Mrs. Seplin in person the next day, and she did so at the plant. Mrs. Seplin repeated then the statement made on the telephone that "they were not in the union any more" and added that she "didn't want any of her old girls back" but that she wanted Albert on the strength of her friend Orr. Mrs. Seplin again told Albert the rate would be 70 cents an hour and Albert said she would not return to work. Both during the telephone conversation and at the plant Mrs. Seplin cautioned Albert not to tell anyone that she had called Albert "because slie didn't want any of her old operators back and didn't want them to know she had called'. [Albert] and asked [her] to come back." On cross-examination Albert testified. that the only reason Mrs. Seplin gave for not wanting her former operators back was that she was operating a nonunion shop. Myrtle Bozeman was the only other former employee who was called. She testified that about a week or two before Christmas Mrs. Seplin called her on the telephone and asked her whether she would come back to work ; that Mrs. Seplin said she could pay only 55 cents an hour, and added, "first I have got to tell you it isn't going to be a union shop. You will have to go down and get a withdrawal from the Union and then come on in to work . .." Mrs. Seplin also told Boseman, "not to spread it around to the other girls because [she] didn't want any of the old girls at all." Boseman did not report to work. 14 Respondents stipulated that after the plant of the Eva -Ray Dress Manufacturing Company, Inc ., was closed in November 1948 , it resumed operations for the manufacture of babies' pants and bibs on December 7, 1948 , and that it employed the number of employees hereinafter shown for the number of hours shown : Week ending : Number of employees Total hours worked Dec.8-------------------------------------- -- 7 62.5 Dec.15 --------------------------------------- 12 288 Dec.22--------------------------------------- 17 530 Dec.29--------------------------------------- 15 297.25 Jan. 5------------- - -------------------------- 30 598 Jan.12--------------------------------------- 25 697 Jan.19--------------------------------------- 22 623 Jan.26--------------------------------------- 19 399 Fields testified that the manufacture of infants' wear for inventory began around the• first of December. Mrs. Seplin testified that after Seplin got a few orders she reemployed. a few people for the purpose of filling the orders sometime in December. In the face of the foregoing evidence Respondents ' counsel argued that Eva-Ray did; not engage in operating the plant nor in manufacturing infants' wear after the shutdown. The contrary is found. 11 In the meantime Respondents had begun actively , around the first of December , to. recruit help through the Georgia State Employment Service and by advertisement in the, local newspapers . In all cases the requests were simply for machine operators. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Seplin admitted she called Albert and Bozeman about coming back to work, that she told them . she could not pay the price she was paying before, but denied that she told either of them that they would have to withdraw from the union or that she was ,operating a nonunion shop. Mrs. Fileds testified she heard Mrs. Seplin 's end of the telephone conversations and heard Mrs. Seplin say nothing about a nonunion shop. However, Fields did hot claim to hear the conversation at the plant between Albert and Mrs. Seplin. The testimony of Albert and Bozeman was indirectly corroborated by Inez Vaughn. This witness, who had quit before the layoff, testified that she called Mrs. Seplin on the telephone a few days before Christmas and asked for a job and that Mrs . Seplin said , "Well, we are running a nonunion shop now." The undersigned finds that Mrs. Seplin's denials are insufficient to overcome the preponderant weight of the testimony of Albert, Bozeman, and Vaughn. Their version of the conversations is accepted and it is found that Mrs. Seplin in fact made the statements which they attributed to her. Other evidence establishes conclusively that the Seplins were operating "non- union" and that they would not reinstate their former employees.16 Indeed, Seplin himself refused point-blank two requests by Walden that the former operators be reinstated. Thus Walden testified that in November and about a week after the shut- down, she talked with Seplin on the telephone telling him she had heard he was moving his plant to Alpharetta ( a small town approximately 30 miles from Atlanta ). He denied the report . He confirmed the fact that Eva-Ray was out of business and stated he had no intention of opening any shop until around January. She asked if he would call his operators back and Seplin said he "wasn't going to put those operators back to work ; they had forced him out of business and he didn't need any of them." Although Walden had heard the plant was back in operation on infants' wear, that subject was not mentioned by either of them. Around the 7th or 10th of December , Walden called at the plant in company with Michaeal Keane, an organizer of the Union , and inquired of Seplin "what part of his contract he expected to live up to." Seplin replied that the contract was between Eva-Ray and the Union and that Eva -Ray was out of existence. Walden's testimony continued as follows : I said, PI understand you are operating your plant on children's wear" I asked that he take his people back to work and he said , "They won't come under this contract. I suggest [you] get your attorney and I will get mine .and we will work out a contract." I said, "That won't be necessary. The contract we have in existence takes care of the low-price merchandise you are now manufacturing." I insisted he put his people back to work . . . I said, "Put your people back to work before you ask for new people." Q. What did he say? A. He said he wouldn't hire them back under any circumstances, that they had forced him out of business . [Italics supplied.] Keane who was present at the conference testified that Seplin's attitude seemed hostile ; that his position was that the Union and its people were respon- sible for him going out of business and that he was fed up with them ; that Seplin's only response to Walden 's inquiry about living up to the contract was 18 According to Orr's testimony there were not over 3 or 4 union members among approximately 70 employees of Petite Tot. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 375 that he was "all through" and that "the lawyers will take care of everything." However, Seplin did not state who his lawyer was nor did Walden or Keane ask him." Walden testified that she had no further conferences or conversations with Seplins concerning the reinstatement of employees ; that she called him on the telephone once later in December but mentioned only the matter of a check for monies due by the Company to the employees' health and welfare fund. Seplin testified that when Walden came in to see him he was depressed because of his inability to dispose of his stock of dresses and that he could hardly speak to her; that Walden asked him, "Adolph do you realize what you are doing?" And that he replied, "Joe, I don't know what I am doing, I have "got to go to New York, I have got to dispose of my dresses. I don't know what to do. The best thing is to go to my lawyer. Let my lawyer get together with yours and let's see what we can work out." He testified that he meant that the lawyers should get together for the purpose of working out some mutually satisfactory contract ; that he was so entirely broken down then he wasn't in a position to talk to Walden. He admitted on cross-examination telling Walden that the employees had put him out of business. Seplin's testimony contained no express denial of much of the more significant portions of Walden's testimony, e. g., the request for reinstatement and the refusal. To the extent that conflicts exist on material matters they are resolved in favor of Walden, who was corroborated by Keane. It is therefore found that the conversations on the two occasions in question occurred substantially as testified to by Walden. 4. Subsequent events On January 5, 1949, the Union filed an original charge (served on January 7) alleging interference and discrimination against the laid-off employees. On January 13, a first amended charge was filed (served on January 14), charging substantially the same violations. On January 29, 1949, attorneys for the'Union wrote Eva-Ray reiterating the demands previously made by Walden for reinstatement of the employees "accord- ing to the terms of the contract." On January 31, the attorneys wrote Eva-Ray as follows: , As attorneys for the International Ladies' Garment Workers' Union and Local No. 122 of this Union, we hereby notify you of the Union's desire to open and modify the contract presently existing between you and the Union at the expiration of the said contract. This notice is given to you in accordance with Section 8 (d) of the National Labor Relations Act, as amended in 1947. It is requested that you advise our office as to a suitable time for a meeting and conference between you and the Union for the purpose of negotiating a new contract. No acknowledgment of or reply to the letter of January 29 was made. On February 9, Respondents' counsel wrote the Union's attorneys as follows : Re : Eva-Ray Dress Manufacturing Co., Inc. This is in reply to your letter of January 31, in reference to the subject company. 17 Walden also testified that during her visit she saw the name "Petite Tot, Inc." on a little sign outside the office and on the boxes being shipped out of the plant. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the fact that this corporation was dissolved and has surrendered its charter, it will not be in any position to enter into any negotiations for contractual relationships henceforth. There were no further letters or negotiations between the parties 18 On April 4, 1949, the Union filed a second amended charge (on which the com- plaint was issued) in which was -included a charge that Respondents had on and at all times after November 24, 1948, refused to bargain with the Union. B. Concluding Findings 1. The discriminatory layoff and refusal to reinstate The evidence is not in conflict that economic conditions inspired the Seplins' initial idea of a temporary shutdown-i. e., the operators would be laid off until sales picked up, then the operators would be recalled and the manufacture of dresses resumed. It is recognized that an employer may lawfully discontinue, reduce, or change its operations for any reason whatsoever, good or bad, sound or unsound, in its sole discretion, and without censorship from the Board, provided only that the employer's action is not motivated by a purpose to interfere with and to defeat its employees' union activities. If the latter purpose is the true purpose, it is unlawful." There is no indication that the initial state of Respondents' planning was con- ceived with discriminatory intent. Immediately, however, and without putting their original plan into effect, the Seplins decided to convert if possible to a new product which would require less operating capital, both for raw materials and for wages. This stage of their thinking and planning also would not necessarily involve an intent to discriminate against their employees or not to bargain with the Union. However, under the Seplins' conception of their situation vis-a-vis their employees and the Union, their new purpose could only be accomplished by getting rid of their union employees, getting out of the union contract, and getting new employees at wage rates lower than those fixed in the contract. Thus Felds testified for Respondents that the decision to manufacture infants' clothes was based among other things on the Seplins' view that they could no longer pay the union scale, and for that reason also they would be unable to take back their old employees. Similarly one reason given by Mrs. Seplin for failing to call back her old operators was that she thought that if she got employees through the Union she would have to pay union rates. Actually, the contract provided a substantially lower wage scale for apparel selling (as did infants' wear) at cheaper prices. The Seplins ignored that provision, and adopted an even lower scale. Furthermore, Seplin openly blames 'the Union and the employees for putting film out of business. That conviction on his part, in the light of the course of events which ensued, obviously played an important part in influencing the abandonment of the initial idea to resume operations on ladies' wear. For if the latter course were to be followed, the contract would unquestionably remain in effect, obligating the reinstatement of union-member employees. '8 Seplin testified that about a month after Petite Tot began operations, John S. Martin, whom he identified as a representative of the Union , was out to see him as a friend," but Seplin's recital of the conversation does not indicate that Martin's visit was an official one or that-it in any manner related to Union's charges or to its attempts to bargain. 19 Pepsi-Cola Bottling Company of Montgomery, 72 NLRB 601. EVA-RAY DRESS MANUFACTURING COMPANY, INC . 377 The foregoing considerations had obviously been taken into account in ad- vance of the initial layoff. Thus, there is no dispute that Orr had been as- signed to the making of sales samples of infants' wear at least 2 or 3 weeks prior thereto zJ In fact, the consummation of the plan to convert to infants' wear had progressed so far at the time of the shutdown that Seplin admitted the decision to dissolve Eva-Ray had already been made and that the plant was then in process of changing to the manufacture of infants' clothes. That the new plan was not conceived in good faith but' with intent to dis- criminate against their union-member employees is most glaringly apparent from the methods the Seplins resorted to in effecting the layoff and the resumption of operations. Thus, no notification was given the Union of the impending shut- down and the mass layoff. The employees were expressly informed or led to believe that operations would be resumed on ladies' wear around the first of the year and that they would be called back. The employees were lulled into a sense of security by Seplin's encouragement not to apply for unemployment com- pensation and not to seek other employment. Neither the employees nor the union was informed that Eva-Ray was to be dissolved or that conversion to infants' wear was contemplated, much less that it was imminent. With the layoff completed on November 26, however, the mask began quickly to drop. In not more than 1 week, employees of the plant were openly informed that "Eva-Ray is no more." And still with no mention of the immediately im- pending manufacture of infants' wear for sale and for inventory, employees were encouraged to seek other employment. Instead of the earlier statement "we want all our old girls back," Mrs. Seplin was stating the contrary to Bozeman and Albert and cautioning them not to mention the fact that she had called them:' . The complete dropping of the mask occurred during Walden's first conversa- tion with Seplin around the first of December. Seplin then openly blamed the employees for putting him out of business and said he had no intention of putting them back to work. Again, no reference was made to the imminent conversion to infants' wear. It is therefore clear from the entire evidence and is hereby found that the economic factors advanced by the Respondents, though they constituted a valid and logical reason for a curtailment of or change in operations, furnished only the initial impetus for the planning and were seized upon by the Seplins as an excuse for expanding their plan into one by which they could at one stroke solve their immediate financial difficulties, rid themselves of their union em- ployees, and escape from a union contract which they considered onerous. The series of shifting and legalistic defenses which were asserted by the Re- spondents afford no support for Respondents' position. Indeed, they furnish, when analyzed, further evidence of Respondents' bad faith and further support for the conclusions above reached. Aside from the unexplained contention that his employees had forced him out of business, Seplin stated to Walden two other reasons why he would not consider reinstating his employees: (1) The contract was with Eva-Ray and Eva-Ray 2OThough a number of the General Counsel's witnesses were under the impression that there was something secretive about Orr's activities, the evidence shows that she worked openly among her fellow employees. However, as found above, the Seplins at no time prior to the final shutdown made any statement, explanation, or announcement to the employees or the Union of the contemplated conversion to infants' wear. X21 Yet contemporaneously, Respondents were seeking the new machine operators with which it resumed operations on December 7. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was.out of existence; and (2) the contract would not cover employees engaged in manufacturing infants' wear. During the hearing, the following additional defenses were asserted : (3) Different skills were involved in the manufacture of infants' wear than in the manufacture of dresses; (4) Eva-Ray's charter did not authorize it to engage in the manufacture of infants' wear; and (5) the contract was illegal because its union shop provisions were in conflict with the Georgia statute. Though most of these defenses, even if true, would constitute no defense to the unfair labor practices found herein,22 each will be examined on its merits and it will be pointed out wherein the evidence fails to sustain each. They will be discussed in order. (1) Eva-Ray did not go out of existence until it was formally dissolved on 'February 2, 1949. No explanation appears of the statements made to a number of employees by Mrs. Seplin and Fields, certainly as early as December 3, that "there is no more Eva-Ray." Indeed, at that time it does not appear that dissolution proceedings would even have been started, since the Georgia statute provided for only 4 weeks' publication of a petition for dissolution. Georgia Acts 1938, pp. 214, et seq. Furthermore, evidence previously recounted estab- lishes that Eva-Ray actually operated the plant and engaged in the manufacture of infants' clothes on a substantial basis for approximately S weeks prior to 'February 2. (2) Respondents contended that the infants' garments which were being made partly of rubber and plastic materials, did not fall within the definition of wearing apparel as used in the contract ; that such manufacture would not fall within what is considered the apparel industry ; that the parties intended the contract to cover, and on its face it did cover, only workers in the apparel industry. It was contended also that there was no organization among employees of children's wear manufacturers and that they were "in fact not gov- erned or taken into the I. L. G. W. U." because not considered apparel manu- facturers. The evidence refutes all of the contentions. The contract on its face was clearly broad enough to cover infants' wear. It recited that that Company was engaged "in the production of dresses and/or other articles of wearing apparel" (italics supplied) and it obligated the Company "to employ in the manufacture of all products produced by or for the firm none but members in good standing with the union." The contract also provided that it should "apply to this shop or any other shop or shops operated by the firm. . . ." The contract also fixed it separate and lower scale of wages for garment selling (as did infants' wear) at less than $24 a dozen. Substantial portions of the new products consisted of cloth, and the bulk of the. sewing and other production operations were identical with those performed in manufacturing ladies' wear. Under these circumstances, the fact that a large portion of the raw materials was of rubber or plastic products, clearly did not prevent the end product from qualifying as wearing apparel within the meaning of the contract, nor did it throw such manufacture outside the apparel industry. The undisputed testimony of Walden also estabishes that the Union did have jurisdiction over children's wear; that it had numerous contracts covering 22 Thus, contention 1 would constitute no defense to prior acts of interference and discrimination . Contentions 2, 3, and 4, would not justify either the discrimination or the refusal to bargain . Contention 5 would not absolve Respondents from their obliga- tion to bargain for a legal contract. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 379 children's wear, including one in Chattanooga ; and that it was presently attempting to organize in Atlanta the Alexis Panty Shop, Respondents' com- petitor, who was engaged in producing a similar line of infants' wear. It is therefore concluded and found that infants' wear constituted articles of wearing apparel and that its manufacture was covered by the contract. (3) There is no evidence that any special or different skills were required in the manufacture of infants' wear than were possessed by Respondents' former operators, whose services Respondents admittedly considered satisfactory. The bulk of the work-the ordinary sewing operations-were performed on the identical machines which had been used in making women's dresses. Further- more, in recruiting help by advertisement and through the employment services, Respondents specified only "machine operators." In fact, the evidence establishes that after the layoff, Respondents hired no one who had previous experience in making baby clothes. Though most of the new operators were "experienced," the evidence is undisputed that they had gotten their experience in other garment factories, such as dress, overall, and pants factories. Indeed, the evidence is clear that to Respondents' experienced oper- ators-the making of the children's garments involved simple and familiar operations, the rudiments of which could be picked up in a few minutes and full proficiency in which could be developed in 2 or 3 weeks at the outside. To the extent that special operations were involved in either of the two lines, practically all of them were required in making ladies' apparel, since the manu- facture of that line involved operations on special machines for shirring, tucking, pinking, making blouses, etc. The only special operation on infants' wear was the installation of snaps or fasteners by two gripper machines." (4) Respondents contended at the hearing that Eva-Ray's charter did not authorize it to engage in the manufacture of infants' wear and that the organ- ization of a new corporation was necessary for that purpose and was otherwise desirable for the purpose of obtaining a new trade name under which to market the new product. The petition for incorporation under which Eva-Ray was ordered incorporated provided : The general nature and purpose of the business is the manufacture and sale of all types of women's wearing apparel, including dresses, suits, skirts, blouses, and other related items. [Emphasis supplied.] Respondents' position was that infants' wear were not related items to women's wearing apparel," and that, legally stated, the manufacture of infants' wear by Eva-Ray was or would have been ultra vires.^ The issue is considered an immaterial one in view of the earlier finding herein that the manufacture of infants' wear was covered by the contract and because of the considerations next set forth. Respondents' counsel admitted in oral argument that both a change of name and a broadening of powers specifically to cover infants' wear could have been 23 These were the only new machines which Respondents found it necessary to acquire in converting to the new line. 24 Based on testimony of Gladys Orr and the opinion or conclusion to that effect expressed by Mrs. Seplin as a witness. However, Respondents' counsel would vouchsafe no explanation of how Eva-Ray had been able to engage in such manufacture from December 7 to February 2, but took the bald position that no such manufacture had occurred and, in fact, that the plant was not in operation at all during the period. Both the stipulation and other evidence in the record establish the contrary. 380 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD accomplished by an amendment to Eva-Ray's charter. Certainly. such an amend- ment would not have avoided the corporation's contractual obligations, to the Union and it would otherwise have accomplished everything which Respondents represented they desired to obtain. Actually, were Respondents' reasons for the formation of a new corporation accepted at face value, they would not thereby escape their contractual obliga- tions to the Union or to their employees, since the circumstances of Petite Tot's successorship, previously summarized, reveal that it was in all respects the alter ego of its predecessor, Eva-Ray, and of the Seplins themselves. Cf. E. C. Brown Company, et al., 81 NLRB 140; N. L. R. B. v. Hopwood Retinning Company, 98 F. 2d 97 (C. A. 2). Indeed Seplin's explanation was that the new corporation was formed to obtain a new trade name. The Board has many times granted enforce- ment orders against successor corporations and other successors in business where the relationship between the two managements was less close than in the present case." (5) Respondents finally urged at the hearing (in apparent. reliance on Section 14 (b),27 that their contract with the Union was illegal because the union-shop provisions were in conflict with the Georgia statute.2' The pertinent provisions. of the contract have been briefly summarized at page 370; supra. The union-shop provisions were clearly valid under the "closed-shop" proviso of Section 8 (3) of the original National Labor Relations Act, which expressly pro- tected contracts "requiring as a condition of employment membership" in a labor organization. This of course covered both union-shop and closed-shop contracts. As amended (Section 8 (a) (3) of the present Act) the section permitted a continuation of union-shop contracts provided the union (the representative un- der Section 9 (a) of the employees in an appropriate unit) shall have first obtained a certification by the Board after an election as provided in Section 9 (e). There is no evidence that such a certification was obtained here. However, Section 102 of the Labor Management Relations Act provides as follows : No provision of this title shall be deemed to make an unfair labor practice any act which was performed prior to the date of the enactment of this Act which did not constitute an unfair labor practice prior thereto, and the provi- sions of Section 8 (a) (3) and Section 8 (b) (2) of the National Labor Rela- tions Act as amended by this title shall not make an unfair labor practice the performance of any obligation under a collective-bargaining agreement en- tered into prior to the date of the enactment of this Act, or (in the case of an agreement for a period of not more than one year) entered into on or after such date of enactment, but prior to the effective date of this title, if the 26 See , for example, Stonewall Cotton Mills, 80 NLRB 325: Alexander Milburn Company, 78 NLRB 747; Parkside Hotel, 74 NLRB 809; M. M. Jo$ee Company, et al., 74 NLRB 1568; National Garment Co., 69 NLRB 1208; and cf. Southport Petroleum Company v. N. L..R. B., 315 U. S. 100; N. L. R. B. v. Colten, 105 F. 2d 179 (C. A. 6). 27 Section 14 (b) : "Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohib- ited by State or Territorial law." 28 Section 54-904 of the Georgia Code (Acts of 1947, pages 616-18) is as follows: Any provision in a contract between an employer and a labor organization which requires as a condition of employment, or of continuance of employment, that any individual be or remain a member or an affiliate of a labor organization, or that any individual pay any fee, assessment, or other sum of money whatsoever, to a labor organization, is hereby declared to be contrary to the public policy of this State, and any such provision in any such contract heretofore or hereafter made shall be abso- lutely void. EVA-RAY DRESS. MANUFACTURING COMPANY, INC. 381 performance of such obligation would not have constituted an unfair labor practice under Section 8 (3) of the National Labor Relations Act prior,to the effective date of this title, unless such agreement was renewed or extended subsequent thereto. The legislative history of this section shows clearly that the standards of the original Act were to apply to all existing compulsory membership agreements. Thus it is stated in Senate Report 105, 80th Cong., 1st Sess., page 28: Section 102 states the effect to be given violations of the act prior to the effective date of the proposed amendments. This section of the bill relievei an employer or a union from any liability arising out of action taken under a compulsory membership agreement which meets the standards of Section S (3) of the present Wagner Act even though it falls short of the conditions proposed by these amendments. In other words these amendments, would not apply unless the contract, pleaded in justification for what would other= wise be an act of discrimination, was renewed or extended subsequent to the effective date of the amendments. [Italics supplied.] There was no renewal or extension of the present contract, and its original term of 3 years had not expired at the time of the commission of the unfair labor, practices. Section 14 (b) does not affect these conclusions. That section, like Section 8 (a) (3), was one of the amendments to the National Labor Relations Act con- tained in Section 101 of the Labor Management Relations Act. But the pro- visions relating to the effective date of certain of the changes made by the amendments were not written as a part of the National Labor Relations Act, but as Sections 102, 103, and 104 of the Labor Management Relations Act. Sec- tion 102 expressly excepts from the application of the amendments compulsory membership agreements which qualify under its provisions, i. e., those which meet the standards of the Wagner Act. As has been shown the present con- tract is one which does. On the basis of all the evidence, it is therefore concluded and found that the Respondents made the shutdown and layoff of employees in November 1948, and that they at all times subsequent thereto refused to reinstate 20 said em- ployees, because of their membership in and activities on behalf of the Union and that they conditioned the reinstatement of Bozeman upon her withdrawal from the Union. By said acts Respondents discriminated and are discriminating against said employees in order to discourage membership in the Union, and they thereby also interfered with, restrained, and coerced their employees in the exer- cise of the rights guaranteed in Section 7 of the Act 5° 2. The refusal to bargain a. The appropriate unit; the representation by the Union of a majority therein All employees of the Respondents employed at the Atlanta plant except for office and clerical employees, and guards, professional employees, and super- 29 The request for reinstatement by the Union was sufficient. Sifers Candy Company, 75 NLRB 297. Moreover, Respondents were under an obligation to recall and reinstate the employees inasmuch as Respondents had initially discriminated against them by the unlawful shutdown and layoff. Ibid. 39 The findings of the commission of unfair labor practices are made herein against both Respondent corporations jointly because of the finding that Petite Tot is the alter ego of Eva-Ray, and in effect only a new name under which an identical ownership and management operates the business . See discussion at pages 379-80, infra. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors, as defined in the Act,. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Acts' In or around May 1946, a majority of the employees of the Respondents in the said unit designated the Union as their representative for the purposes of collec- tive bargaining with the Respondents. At all times since May 1946, the Union has been the representative for the purpose of collective bargaining of a majority of the employees in said unit, and by virtue of Section 9 (a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages , hours of em- ployment, and other conditions of employment. Respondents made no contention that the Union was not the bargaining rep- resentative of the employees of Eva-Ray while it was engaged in the manufac- ture of women's apparel. They contended, however, that the Union did not represent employees engaged in the manufacture of infants' wear because such manufacture was not covered by the contract. That contention was rejected under Section B, 1, supra. Respondents also contended that the Union was not the bargaining agent for the employees of Petite Tot because it did not in fact represent a majority of the employees of Petite Tot after its incorporation . It has been found, how- ever, that all of Eva-Ray's employees within the unit were members of the Union. The loss of the Union's majority was the result of Respondents' discrimi- nation against the members of the Union as herein found and left the Union's representative status undisturbed. Of. Consolidated Machine Tool Corporation, 163 F. 2d 376, cert. den. 332 U. S. 824. The obligation to recognize that status and to bargain with the Union descended to Petite Tot for reasons set forth under the next section of this Report. b. The refusal to bargain There is no dispute that the Respondents failed to notify or consult with the Union about the shutdown and the mass layoff of employees. Such failure has been held by the Board to constitute a distinct refusal to bargain (Pepsi-Cola Bottling Company of Montgomery, 72 NLRB 601, 602; and see Sullivan Dry Dock and Repair Corporation, 67 NLRB 627, 636-639). The necessity for such notification and for bargaining in relation to the layoff was accentuated in the present case by Respondents' express contractual obliga- tion "to see that equal division of work shall prevail at all times during the life of (the) agreement." Respondents made no attempt to observe that provision, either during the period the layoffs were being made or during the period of curtailed operations which followed. It is also undisputed that the Respondents dealt unilaterally with their em- ployees at all times subsequent to the shutdown on November 26 with respect to wages, hours, and working conditions. Most of their contentions have already been analyzed and rejected under the discussion of the discriminatory failure to Si The record discloses no issue on the question of the appropriateness of the unit claimed by the General Counsel. Though Respondents in their answer neither admitted nor denied the allegations of the complaint "for lack of sufficient information," they offered no evidence to controvert that of the General Counsel on which the foregoing findings are based, and their counsel made no contention during the hearing or in oral argument that the claimed unit was not appropriate. The change to the manufacture of infants' garments did not operate to render the unit inappropriate since the evidence establishes , as has been found , that the making of the new products did not require different skills than were exercised by the former operators on the old products. Pacific Plastic & Mfg. Co., 68 NLRB 52. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 383. reinstate the former employees. Other contentions directed more specifically to the charge of a refusal to bargain remain to be considered. . Insofar as. Eva-Ray is concerned, Respondents point to Seplin's statement to Walden around December 7 or 10 that Eva-Ray was out of existence, that he did not consider the new products to be covered by the contract, and that the Union should get its attorney and he would get his and they would work out a contract; and they point further to Walden's admission that the Union made no further contacts for that purpose ' Those statements are not, however, to be considered as if occurring in a vacuum; they are not isolated from their setting, and they must be viewed in the light of the events which both preceded and followed them. It has already been pointed out that though the decision to dissolve Eva-Ray and to convert to a new product had been reached by the time of the layoff, Respondents had carefully withheld any inkling thereof from the employees and from the Union ; that while leading the employees to believe they were to be recalled after a temporary shutdown, the Seplins had no intention of recalling them but had, to the contrary, substantially consummated plans by which they hoped to escape the union contract completely. The entire conversation between Walden and Seplin as summarized at page 374, supra is also most illuminating. Thus, though reiterating the defense previously mentioned to Walden on the telephone that Eva-Ray was out of existence, Seplin added the contention that the contract did not cover employees engaged on infants' wear ; but when Walden disputed the latter claim and insisted that Seplin rein- state his former operators, Seplin stated in final refusal that he would not hire. them back under any circumstances because they had forced him out of business. Here stands revealed Seplin's basic objection to dealing with those employees and with the Union as their representative. Such adamant refusal for the unrea- sonable and unexplained reason stated rendered wholly futile the following of Seplin's earlier suggestion that the Union's attorney consult with his attorney for the purpose of working out a contract. Establishing both the futility and the lack of good faith in the suggestion is the fact that when it was subsequently followed by the Union in the letters of January 29 and 31, Respondents' statement of their refusal to bargain, through their attorney, was based on the bare reiteration of the contention that Eva-Ray's legal existence was at an end. And though Kaye represented both corporations, his letter made no reference to the incorporation by the Seplins of Petite Tot, to the fact that it was the successor of Eva-Ray, operating the same plant with substantially the same equipment and under the same ownership and manage- ment, nor did it mention or assert the other defenses previously relied on by Seplin nor the others belatedly asserted at the hearing. The blunt rejection by Kaye of the Union's requests to bargain finally refutes Seplin's earlier representa- tions that he intended that his attorney would "work out a new contract" with the Union. It is inferred and found, under all the circumstances, that Seplin's referral of the Union to his attorney was only a device to gain time for the completion of the legal steps considered necessary to circumvent the Union. The prior discussion has concerned mainly the period before February 2, during the legal existence of Eva-Ray. At all times during such period, Eva-Ray was of course obligated to bargain with the Union as the employees' statutory representa- tive. That obligation to bargain imposed by the Act was not extinguished by the as Except, of course, the letters of January 29 and 31 from the Union's attorneys , by which time Eva-Ray's dissolution was virtually completed. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dissolution of one corporation and the formation of a new one under the circum- stances here present " By its very nature and purpose it ran with the business ; and it is therefore binding on Petite Tot, the successor corporation, which, with full knowledge of its predecessor's obligation to bargain, took over and continued the business. Northwest Glove Company, Inc., 74 NLRB 1697, 1700, and cases there cited. Indeed, as previously found, Petite Tot was no more than the alter ego of Eva-Ray. Petite Tot was therefore tinder obligation to respond. to the requests contained in the letters of January 29 and 31 from the Union's attorneys. It ignored them and ignored the Union and continued to deal unilaterally with its employees on .all matters concerning their rates of pay, wages, hours of employment, and other conditions of employment. On the basis of the entire evidence, therefore, it is concluded and found that Respondents' refusal to notify and consult with the Union about the shutdown and mass layoff of employees in November 1948, and about the division of work among the employees during the period of the layoff and subsequent thereto, and their refusal thereafter to negotiate with the Union or discuss the Union's request that the old employees be recalled when the plant reopened and after the plant reopened, constituted refusals to bargain and distinct violations of Section 8 (a) (5) of the Act (Pepsi-Cola Bottling Company of Montgomery, 72 NLRB 601, 602, and cases there cited in footnote 2), as well as interference with and restraint and coercion of the Respondents' employees in the exercise of the rights guaran- teed in Section 7.34 Similarly, their subsequent acts in refusing the Union's requests to negotiate in the letter of January 31, and their unilateral dealings with their employees with respect to wages, hours, and conditions of employment, as herein found, also. constituted refusals to bargain and further violations of Sections 8 (a) (5) and 8 (a) (1). 3. Alleged interference, restraint, and coercion The complaint alleged that Respondents committeed the following independent acts of interference, restraint, and coercion : a. Unilaterally instituted changes in wages, hours, and working conditions ; b. Threatened to lock out and refuse employment to employees because of their union membership and activities ; c. Conditioned reinstatement of temporarily laid-off emplyees upon with- drawal from the Union and cessation of activities on healf of the Union; and d. Threatened and warned employees that they would close the Atlanta plant and move from the city to avoid dealing with the Union. There is no evidence to support paragraph d. 33 Actually the dissolution of Eva-Ray did not bring about its total extinction nor extinguish demands or causes of action against it. Thus the Georgia statute expressly provides for the continuation' of corporate existence for a term of 3 years and until the dis- position of all suits begun within that time for the purpose of prosecuting and defending suits. Georgia Acts, 1938, pp. 214 et seq.; and cf. Georgia Code, 1933, Sees..22-1208 and 22-1211. Similar statutory provisions have been cited by the courts in directing enforce- ment of the Board's orders against dissolved corporations. See for example N. L. R. B. v. Timken Silent Automatic Co., 114 F. 2d 449 (C. A. 2), and DeBardeleben v. N. L. R. B., 135 F. 2d 13 (C. A. 5). 34 The findings of the commission of unfair labor practices are made herein against both corporations jointly.. See footnote 30, supra. EVA-RAY DRESS MANUFACTURING COMPANY, INC. 385 . Certain acts of discrimination and of refusal to bargain, relevant also to support paragraphs a, b, and c, have already been found to constitute acts of interference, restraint, and coercion 36 Aside from those the evidence. does not establish the commission of independent acts of interference, restraint, and coercion as alleged. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondents set out in Division III hereof, occurring in connection with the operation of the Respondents described in Divi- sion I hereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found, for reasons stated in Division III, B, hereof, that both Respondents. are guilty of. the unfair labor practices found herein to have been committed. It will therefore be recommended that the Respondents jointly and severally be required to remedy their violations of the Act. Since it has been found that the Respondents have engaged in unfair labor practices, it will, be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondents' discriminatorily laid off the 26 em- ployees listed in Appendix A, on various dates between November 14 and 26, 1948, and that upon entering into the manufacture of infants' wear for inventory on or about December 7, Respondents discriminatorily failed and refused to reinstate said employees; it will be recommended that Respondents offer each of them her former position or a substantially equivalent position (see The Chase National Bank of The City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827, 829) that she would have occupied but for Respondents' discrimination, without preju- dice to her seniority or other rights and privileges, dismissing if necessary any employees hired in their place since December 6, 1948, and make them whole for any loss of pay they may have suffered by reason of such discrimination by pay- ment to each of them of a sum of money equal to that which she normally would have earned as wages from December 7, 1948, to the date of the offer of rein- statement, less her net earnings during such period (See Matter of Crosserr Lumber Company, 8 NLRB 440). It having been found that Respondents have since on or about November 14, 1948, refused to bargain collectively with the Union as the exclusive representa- tive of their employees in an appropriate unit, it will be recommended that the Respondents, upon request, bargain collectively with the Union. It having been found that the Respondents have engaged in certain acts of interference, restraint, and coercion, it will be recommended that the Respond- ents cease therefrom. The violations of the Act which the Respondents committed are in the opinion of the undersigned persuasively related to other unfair labor practices proscribed 95 E. g., the unilateral reduction in wages after the shutdown and the other unilateral dealings with the employees ; the conditioning of Bozeman 's reinstatement upon withdrawal from the Union ; the refusal to reemploy employees because of their union membership. There is no evidence of threats as such to lock out and to refuse employment for that reason. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Act, and the danger of their commission in the future is to be anticipated from the Respondents ' conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat . In order, there- fore, to make more effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize the industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, it will be recommended that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following : CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, A. F. L., is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. All employees of the Respondents employed at the Atlanta plant, except for office and clerical employees , and guards , professional employees , and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since May 1946, International Ladies' Garment Workers' Union, A. F. L., has been and now is the exclusive representative of all of the employees of the Respondents in the unit above described for the purposes of collective bargaining within the meaning of Section 9 ( a) of the Act. 4. By refusing on or about November 14, 1948, and at all times thereafter, to bargain with International Ladies' Garment Workers' Union , A. F. L., as the exclusive representative of all their employees in the aforesaid appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 ( a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employees of the individuals named in Appendix A attached hereto, thereby discouraging member- ship in International Ladies' Garment Workers' Union , A. F. L., the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining , and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (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. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record of the case, the undersigned recommends that Eva-Ray Dress Manufacturing Company, Inc., and Petite Tot, Incorporated , jointly and severally, their officers, agents , successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union , A. F. L., as the exclusive representative of all their employees in the unit heretofore found appropriate , with respect to rates of pay, wages, hours of employment , and other conditions of employment; EVA-RAY DRESS MANUFACTURING COMPANY, INC . 387 (b) Unilaterally instituting changes in wages, hours, and working conditions; (c) Conditioning reinstatement of laid-off employees upon withdrawal from the Union ; .. (d) Discouraging membership in International Ladies' Garment Workers' Union, A. F. L., or in any other labor organization of their employees, by dis- criminatorily laying off and refusing to reinstate any of their employees or by discriminating in any other manner in regard to their hire and tenure of employ- ment of any term or condition of employment; (e) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist International Ladies' Garment Workers' Union, A..F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such-right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 3 (a) (3) of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to the 26 individuals listed in Appendix A immediate and full employment at the same or substantially equivalent positions at which they would have been employed but for the Respondents' discrimination against them, with- out prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy," supra, and make them whole for any loss of pay they may have suffered by reasons of Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount which she would normally have earned as wages during the period from the date of the Respondents' discrimination against her to the date of Respondents' offer of reinstatement, less her net earnings during that period ; (b) Upon request, bargain collectively with International Ladies' Garment Workers' Union, A. F. L., as the exclusive representative of all the employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement ; (c) Post at their Atlanta, Georgia, plant copies of the notice attached hereto marked Appendix B. Copies of the said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondents, be posted by Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material ; and (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing, within twenty (20) days from the receipt of this. Intermediate Report and Recommended Order, what steps Respondents have taken to comply herewith. It is further recommended that, unless on or before twenty (20) days from the date of the receipt of this Intermediate Report and Recommended Order, Respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondents to take the action aforesaid. 882191-51-213 388 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD : As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an. original and six copies of a statement in writing setting forth. such excep- tions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in sup- port thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in. said Section 203.46 should any party desire permission to. argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In -the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations, and recommended order herein contained shall, as provided in Section 203.48 of said ,Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 20th day of September 1949. GEORGE A. DowNINO, Trial Exam,iner. APPENDIX A Nell Albert Mattie Beall Myrtle Bozeman Dorothy Brewster Marie Causey Alice Coachman Clara Dennis Nettie Ferguson Odelle Goss Louise Harbin Mary Hardwick Pearl Hester Mrs. J. A. Johnson Della Maxwell Leila McDermott Fannie Miller Alma Moore Mary Pike Virginia Pitt Mildred Rawlins Susie M. Smith Nora Stroup Beatrice Taylor Georgia L. Teate Georgia Ward Jessie Wilson APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : EVA-RAY DRESS MANUFACTURING COMPANY, INC. 389 WE WILL NOT refuse to bargain collectively with INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., as the exclusive representative of all our employees in the appropriate unit described below. . WE WILL NOT unilaterally institute changes in wages, hours, and working conditions. WE { WILL NOT condition reinstatement of laid-off employees upon !with- drawal from the union. WE WILL NOT discourage membership in INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., or any other labor organization of our employees, by discriminatorily laying off and refusing to reinstate any of our employees or discriminate in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain,,or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiaztion as a condition of employment and authorized by Section 8 (a) (3) of the Act. WE WILL offer to the following named individuals, immediate and full employment at their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them : Nell Albert Mattie Beall Myrtle Bozeman Dorothy Brewster Marie Causey Alice Coachman Clara Dennis Nettie Ferguson Odelle Goss Louise Harbin Mary Hardwick Pearl Hester Mrs. J. A. Johnson Della Maxwell Leila McDermott Fannie Miller Alma Moore Mary Pike Virginia Pitt Mildred Rawlins Susie M. Smith Nora Stroup Beatrice Taylor Georgia L. Teate Georgia Ward Jessie Wilson WE WILL bargain collectively upon request with INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L., as the exclusive representative of all the employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All our employees employed at our Atlanta plant, except for office and clerical employees, and guards, professional employees, and super- visors, as defined in the Act. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . All our employees are free to become or remain members of said union or any other labor organization. EVA-RAY MANUFACTURING COMPANY, INC., Employer. By ------------------------------------------ Dated-------- ----------- ( Representative ) (Title) PETITE TOT, INCORPORATED, Employer. By ------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.