Tiny Town Togs, Inc.

In the Matter of TINY TOWN TOGS, INC. and INTERNATIONAL LADIES GARMENT WORKERS UNION Case No. C-381-Decided May 9, 1938 Children's Garment Manufacturing Industry-Interference, Restraint, and Coercion: derogatory statements to persuade employees to refrain from joining union ; threats to, move plant ; surveillance of distribution of union literature ; surveillance of union meeting--Comnpany-Dominated Union: domination of and interference with formation and administration ; support ; check-off; supervisory employees, members of ; disestablished as agency for collective bargaining- Strike : result of unfair labor practices-Discrimination : discharge-Re- instatement Ordered: of discharged employee ; of all striking employees, upon application, who were employed prior to first day of strike , dismissing newly hired employees if necessary ; preferential list ordered : to be followed in fur- ther reinstatement-Back Pay: awarded to discharged employee ; ordered to employees who are not reinstated or placed on preferential list within 5 days of application for reinstatement. Mr. Lester M. Levin and Mr. John 7'. McCann, for the Board. Mr. Frederick E. Draper, of Troy, N. Y., and Mr. A. Herbert Barenboim, of Boston, Mass., for the respondent. Mr. Thomas J. O'Conner, of Troy, N. Y., for the Association. Mr. I. Nathan Sidman, of Troy, N. Y., for the Union. Mr. D. R. Dimick, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Ladies Garment Work- ers Union, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued and duly served its com- plaint, dated October 19, 1937, against Tiny Town Togs, Inc., Troy, New York, herein called the respondent, alleging that the respond- ent had engaged in and was engaging in unfair labor practices af- fecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 54 DECISIONS AND ORDERS 55 1 In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; (2) that the respondent, on or about April 1936, instigated , fostered, dominated, and interfered with the for- mation of a labor organization known as Tiny Town Togs Benevo- lent Association , herein called the Association ; (3) that the respond- ent, on or about September 1936, discharged and refused to reinstate Vergie Horachian because she joined and assisted the Union ; and (4) that by reason of the unfair labor practices the respondent's em- ployees,, on or` about July 1937, Went on, strike; ands since that date have remained- on. strike. The respondent filed an answer , dated Oc. tober- 21,' 1937, to the complaint admitting its corporate existence and that it is engaged in' interstate commerce , but denying "each, and every allegation" in the remainder of the complaint. A motion filed by respondent for change of venue was, granted and, thereafter, on October ' 25" 1937, the Regional Director issued an amended notice of hearing, copies of which were duly served upon the respondent, upon, the Union, and upon the Association . Pursuant to the notice a hearing, was held on ' October 27, 28, 29, and November 3 and 4, 1937, at Troy, New York, before George Bokat, the Trial Examiner duly designated by the Board . The. Board,, the respond- ent, the Union, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard , to exam- ine and cross-examine witnesses, and.' to introduce evidence bearing on the issues was afforded- all parties. Prior to the commencement of the hearing,, the Association filed with the Regional Director a motion to intervene . At the hearing counsel for the Association, renewed. the motion and it was granted by the Trial Examiner. Counsel for the respondent and counsel for the Association , near the close of the, Board's case, moved to dismiss the complaint on the ground that the Board had failed to prove a case. The two motions were denied. At this time further motions' were made by counsel for the respondent , among. which- was the following : That Vergie Horachian , the person allegedly discharged, was not an "employee" as defined in the Act; for the reason that she had obtained "other regular and substantially equivalent employment." The Trial Examiner reserved ruling on the motion . Upon completion of the Board's case the Trial Examiner granted a motion by the respondent that the request for the reinstatement of Agnes Grill be denied on the ground that . she had not ceased employment as a result of' a current labor dispute.. Upon the termination of the entire case the respond- ent renewed the motions made near and at the completion of the Board's case , with the exception of the motion pertaining to Agnes Grill. The motions were denied . The Trial Examiner granted the 106791-38-vol vir-5 56'_ NATIONAL LABOR RELATIONS BOARD motion made by the Board's attorney at the-close of the hearing that the pleadings be conformed to the proof. Decision was again reserved on the motion relating to Vergie Horachian. Thereafter, a brief was submitted by counsel for the respondent. During the course of-the hearing, the Trial Examiner made several rulings on objections to the admission of evidence. The Board has reviewed these rulings and the rulings made with respect to other motions of the parties, including those motions specifically mentioned above, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, on January 14, 1938, the Trial Examiner duly filed his Intermediate Report finding that the respondent had committed un- fair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act. The motions made during the hearing regarding the "employee" status of Vergie Horachian were denied in the Intermediate Report. We hereby affirm these rulings. On February 2, 1938, the respondent filed exceptions to the Intermediate Report and requested to be heard in oral argument before the Board. On March 10, 1938, pursuant to, notice, a further hearing was held before the Board in Washington; D. C., for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the. oral argument. The Board has reviewed the exceptions to the Intermediate Report, and save as consistent with the findings, conclusions, and order, hereinafter set forth, finds them without merit. Upon the entire record in the case', the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 1 The respondent, Tiny Town Togs, Inc., is a corporation duly' organized and existing by virtue of the laws of the State of New York, having its office and principal place of business in Troy, New York. The respondent has one subsidiary corporation known as The Dollar Line, Inc. Manufacturing units of the corporation are located in the State of New York and one in Puerto Rico. In this proceeding we are concerned only with the manufacturing plant at Troy, New York. The respondent is engaged in the manufacture,, sale, and distribu- tion of children's dresses and other products. The principal raw materials used are cotton cloth, threads, buttons, and dress trim- mings. The respondent normally purchases approximately $300,000 1 Substantially all of the facts in this section were stipulated to by the respondent. DECISIONS AND ORDERS 57" worth of raw materials annually, of which more than 50 per cent are purchased through the New York office of the respondent , and come from sources other than the State of New York. More than 50 per cent of the products manufactured by the respondent are shipped to points outside of the State of New York. During a normal year, sales of products manufactured by the respondent amount to approximately $850,000. There are approximately 165 or 170 employees , including supervisory employees, working in the Troy plant. The respondent admits that it is engaged in interstate commerce. H. THE ORGANIZATIONS INVOLVED International Ladies Garment Workers Union , affiliated with the Committee for Industrial Organization , is a labor organization ad- mitting to its membership all production employees of the respond- ent, excluding clerical and supervisory employees. Tiny Town Togs Benevolent Association is a labor organization without any outside affiliation , admitting to its membership any employee of the respondent employed in the respondent 's factory at Troy, New York, exclusive of salesmen. , III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union had contractual relations with the respondent during the year of 1934 and during part of 1935, at which time the manu- facturing unit, herein considered, was located in New York City. At the expiration of the contract it was not renewed, and thereafter, about September 1935, the respondent moved its plant to Troy, New York. Sometime during April or the early part of May 1936, the Union began organizational activities at the respondent's plant in Troy. From the inception of the organizing movement, opposition by the respondent to the Union became apparent . The activities of the Union in organizing the respondent's employees took the form of a distribution of Union literature and leaflets , by the Union organ- izers, to the employees as they left the plant. Such distribution oc- curred once or twice a month over a period of more than a year. On each such occasion supervisory officials of the respondent would stand in front of the plant where they could observe those employees who accepted the literature. Mrs. Feehan , forelady in the pressing department, on numerous occasions, would leave the plant with a large group of pressing department employees and tell the girls not. to accept the literature; and that the organizer had no business there. She would also call the organizer vile names. At other times under similar conditions, Mrs. Feehan tried to incite the employees to .58 NATIONAL LABOR RELATIONS BOARD violence by saying, with reference to the organizer, "I am going to give you a beating," and "What do you say, girls, we give her a beating?" It is clear from the record that, while the respondent's employees were not told directly that they would be discharged if they accepted the Union's literature, nevertheless, the constant sur- veillance of the employees by supervisory officials when the litera- ture was distributed, together with the overt acts of Mrs. Feehan, can only be interpreted as conduct which had the necessary effect of discouraging membership in the Union. Vergie Horachian testified that Mrs. Feehan was always "knocking down" the Union, saying that it was a racket, and that if the em= ployees joined it the respondent would move to New York. George Bryans, employee in the cutting department, testified that Simon Stranger, foreman in that department, told the witness, in effect, that he had been in the Union in New York and that "if one of the head shots wanted a mortgage paid off, they would assess you a dollar. If they wanted to do this or that they would assess you another dollar." He further stated that Stranger told him that if the employees joined the Union the respondent would have the "cutting" done in Puerto Rico. Significantly, neither Stranger nor Mrs. Feehan were called as witnesses to deny this testimony. On October 7, 1936, a meeting was held by the Union at its head- quarters on King Street. Members of the Union from the respond- ent's plant and from other dress manufacturing plants in Troy were requested to attend the meeting. Three witnesses were called by the Board to prove the events that took place in connection with the meeting. At the outset we take cognizance of the fact, urged by the respondent, that the testimony, elicited from each of the three wit- nesses differs in some respects. Especially is this true with regard to the number of people attending the meeting, the exact hour and minute when certain events transpired, and the number of people who left the meeting from time to time. Inasmuch as the "meeting took place more than a year before the hearing, discrepancies are to be expected, and in fact, were these differences and contradictions in the testimony absent we would view the statements with some distrust. However, there is no ambiguity in this testimony concerning the material facts. Sometime between 8: 00 p. in. and 9: 00 p. in., before the meeting was called to order, and after 30 or 40 people, 10 or 12 of whom were employees in the respondent's. plant, had assembled in the meeting room, which was located on the second floor of the building, Vergie Horachian's sister looked out of the window and saw 3 men across the street apparently trying to peer into the meeting room and ob- viously in such a location that they could observe the identity of anyone going into or leaving the building. Immediately, commotion DECISIONS AND ORDERS 59 ensued in the meeting room and some of those present went down- stairs where they could better identify the three men. The men seen were Phil Rubensohn, paymaster for the respondent, George Kniager, an employee, and Beiermeister, Jr., son of the plant superintendent. Beiermeister, Jr., testified that he had no special duties, that he worked, in the shipping department, performed maintenance work when the machinist was not there, and carried out the wishes of his father. On cross-examination he admitted making recommendation to his father for hiring workers. The record clearly shows .Beier- meister, Jr., helped Mrs. Feehan supervise the pressing department employees. Rose Girardi testified Beiermeister, Jr., hired her, which testimony was denied. Vergie Horachian testified that she was dis- charged by Beiermeister, Jr. The nature of the work performed by Beiermeister, Jr., and his close relationship to the plant superin- tendent clearly establish that he is employed by the respondent in a supervisory capacity. The record does not definitely indicate how long the three men stood across the street. However, Mona Futia testified that 'she was outside the building, had walked up and down the street and stood on corners for 45 or 50 minutes, that she saw the three men'for about an hour, and that when she left they were still standing there. Beiermeister, Jr., testified that Kniager and he had gone to a picture show, which was located about 4 blocks from the Union's head- quarters, and as they were returing to where they had parked the car they saw Rubensohn across the street. They were joined by Ruben- sohn and shortly thereafter Kniager walked on up the street to get the car. Beiermeister, Jr., and Horachian both testified that Vergie Horachian came out of the building and called Beiermeister, Jr., a sneak. The weight of the evidence establishes that the three men stationed themselves in the vicinity of the Union's meeting place for the pur- pose of ascertaining the identity of the respondent's employees who attended the Union meeting. During November 1936, a meeting of all employees, including supervisory employees, was called during working hours on the respondent's property by Beiermeister, Sr., superintendent of the plant. Apparently the meeting was called as a result of certain, incidents and events that had taken place due to the organizational drive of the Union. Beiermeister, Sr., testified that he told the assembled employees that he had been informed by representatives of the Union that the Union represented 90 per cent of the employees. On cross-examination he admitted that perhaps the representatives of the Union had told him- that, 90 -per cent-of-the employees were "sympathetic" toward the Union. Further testimony by Beiermeister,. Sr., revealed that he told the employees at the meeting that he did P G 6O NATIONAL LABOR RELATIONS BOARD not think the representation made by the Union officials was true, and that he would like the employees to vote whether or not they wished him to negotiate with the Union. Blank slips of paper were passed around, the employees voted, and the ballots were counted in the office of the paymaster in the presence of Beiermeister, Sr. Rose Girardi, employee in respondent's plant, testified that Beiermeister, Sr., told the employees, during the meeting, that he did not care which organization the employees belonged to, but it would be better if they belonged to the one in the shop. Prior to the meeting Rose Girardi had received a letter from the Union. When she showed this letter to Beiermeister, Sr., she testi- fied that he said, "Don't pay no attention to them." Carl Cummings, Union organizer, testified that Beiermeister, Sr., when approached during the first part of October 1936, by the witness and one Good- man, business agent for the Union, told them that he, personally, was definitely opposed to friendly relations between the Union and the respondent. Throughout the entire record there is a clear' indication of the hostile attitude of the respondent toward the Union. The respond- ent coerced its employees and interfered with their right of self- organization by holding under surveillance the distribution of the Union literature. The same conclusion is applicable to the threats by Mrs. Feehan, against the organizer in the presence of the employ- ees, and the -derogatory statements made by Stranger coupled with his threats that the respondent would move its plant if the employees joined the Union. We find that the respondent further interfered with, restrained, and coerced its employees in the exercise of their right to self-organization guaranteed in Section 7 of the Act by holding under surveillance the meeting place and meeting of the Union on October 7, 1936, and by Beiermeister, Sr.'s statements and acts during and preceding the meeting of the respondent's employees in November 1936. B. Tiny Town Togs Benevolent Association During the early part of May 1936, shortly after the Union had started its organizational drive among the respondent's employees, three employees of the respondent, Beiermeister, Jr., George Kniager, and Ben Rosenkranz, machinist, decided to form an inside associa- tion. The constitution and bylaws for the proposed association were drawn up by the three employees and were then delivered by Beier- meister, Jr., to his father, Beiermeister, Sr. During the latter part of May 1936, Beiermeister, Sr., called a meeting of all employees in the plant. The meeting was held on the respondent's property dur- ing working hours, and was called for the purpose of forming a DECISIONS AND ORDERS '61 welfare association that would provide for various social affairs, sick and loan benefits, and assistance to the family of a deceased.employee 'in obtaining the proceeds of the insurance policy furnished employees by the respondent., In attendance 'at the meeting, in addition to the employees, there were Rubensohn, president of the respondent, Levy, treasurer, Barenboim, an attorney, an insurance agent, and certain other officials. Some of the officials spoke, the insurance agent told the employees that the respondent had decided to present, without cost, an insurance policy to each of its employees, and Barenboim read and explained the various provisions of the constitution and bylaws as prepared by Beiermeister, Jr., Imager, and Rosenkranz. Slips of paper were then passed out to all the employees, including foremen, foreladies, and supervisory officials, and they were asked to vote whether or not they desired the Association. Apparently at the same meeting a vote was taken to determine whether dues for 'the Association would be fixed at 10 or 15 cents a week. Thereafter, an announcement was made by Rubensohn that the Association had been chosen by the employees by a vote of about 152 to 6. About 3 weeks later, during working hours, application cards for member- ship in the Association were distributed by Marian Neisen, book- keeper and stenographer in the respondent's office. Dues, as a result of the afore-mentioned vote, were fixed at 1"0 cents a week and were collected during working hours by Marian Neisen. The first meeting of the Association was held during June 1936, at which meeting officers for the Association were elected. Beiermeister, Jr., was elected president, Mrs. Sheffield, forelady in the operating room, treasurer, and Marian Neisen; secretary. The record is replete with testimony showing that financial support was contributed to the Association by the respondent, that meetings of the Association were held during working hours in the plant, and that foremen, foreladies, and other supervisory officials were members of the Association and attended the meetings. Beiermeister, Jr., testified that during April 1937, he went to see Thomas J. O'Conner, ^ an attorney whom 'he had known for many years and who was a friend of his father. Although the witness stated that he went to see O'Conner on personal business, neverthe- less, they discussed the Association and O'Conner was asked whether he thought that it was a good social organization. Upon request of OO'Conner, the constitution and bylaws of the Association were brought to him. Subsequently, during another visit by Beiermeister, Jr., they again discussed the Association, and, according to Beier- meister, Jr., O'Conner suggested incorporating certain clauses, as amendments to the constitution ,and bylaws, pertaining to a grievance committee. Apparently O'Conner made a rough outline of the clauses relating to the proposed amendments. 62, NATIONAL LABOR RELATIONS BOARD On May 6, 1937, the Association held a meeting during working hours on the respondent's property, which meeting was attended by employees who were members of the Association, including foremen, foreladies, and supervisory employees. A motion was made, seconded, and unanimously passed, that from that date, May 6, 1937, a check- off system for the collection of dues be put into operation. Beier- meister, Sr., testified, during the hearing, that he thought foremen and foreladies were still members of the Association and that dues were still being deducted from their salaries. Beiermeister, Jr., president of the Association, during the meeting on May 6, 1937, read the proposed amendments to the constitution and bylaws relat- ing to the grievance committee. Thereafter, a vote was taken and the amendments were adopted. The materiality of the change made in the constitution and bylaws of the Association by the amendments is clearly evident. Article II, Section 1, provides : The purposes of this Association shall be to promote good fellowship, to assist fellow employees in time of need arising through sickness or other cause, and to act on behalf of all mem- bers in adjusting and obtaining improved wage, hour and work- ing conditions.2 The constitution and bylaws were further amended by adding Sec- tion 5 to Article XI. Section 5 provides, in effect, that the members of the Association, from each department, should elect one person from that department to confer with the management regarding adjustments of, all wages, hours, and, working conditions, and that such representatives should be .known as the grievance committee. A nominating committee was appointed by Beiermeister," Jr., and thereafter, pursuant to the amendments, a grievance committee was duly nominated and elected. The respondent at all times prior to the Intermediate Report of the Trial Examiner maintained that both prior and subsequent to May 6, 1937, the Association functioned solely as a social and benevo- lent organization, and that it did not consider the Association as a labor organization. The respondent, in its exceptions to the Inter- mediate Report, admits that the Association is a labor organization. However, the respondent contends that not having been made aware of the change in the status of the Association it is not chargeable with such knowledge. The circumstances, as heretofore described, surrounding the meeting at which the constitution and bylaws were amended, refute this contention. Additional factors may also be noted which establish the converse of the respondent's contention. 2 Italics indicate amendments made to this sectiom DECISIONS AND' ORDERS 63 Article 'XVI, of the constitution and bylaws, states, in part, -as follows : ' When an amendment shall be proposed, the same must be sub mitted in writing to a meeting of the officers, the executive com- mittee, and the foreladies of the respective departments or heads of the respective departments of Tiny Town Togs, Inc... . Beiermeister, Sr., testified that he knew of the meeting on May 6, 1937, and that subsequently he heard that a grievance committee had been elected. Beiermeister, Sr., further testified that he did not con sider the Association a labor organization. However, in a letter dated June 10, 1937, addressed to the Union, Beiermeister, Sr., wrote, in part, as follows : There is 'at present an organized group of employees (the Association) in our establishment which we•believe to constitute such a majority and we have recognized them as the sole bargain- ing agency in conformity with the Wagner Act as we under- stand it. We find that the respondent has dominated and interfered with the formation land administration of the Association, and has con- tributecl support to it. C. The strike As a consequence of the respondent's unfair labor practices, as described in subsection B above, on the morning of July 14, 1937, Carl Cummings, the Union organizer, called a strike of the respondent's employees. Prior,to the date of the strike, Cummings, on June 9, 1937, wrote a letter to the respondent, which stated, among other things, that : For some time your workers were denied the privilege of col- lective bargaining through the means of fostering on them a bogus organization which has not been and is not today free from the influence of yourselves and your agents .. . The above-quoted segment of the Union's letter is a clear and unequiv- ocal indication that the Union was fully cognizant of the scope and effect of the respondent's unfair labor practices. Although the; record indicates that ' the respondent's refusal to bargain with the Union was one of the factors that precipitated the strike, nevertheless, the respondent's domination and interference with the formation and administration of the Association was an underlying and primary factordn causing the dissatisfaction and unrest-which resulted in the strike. • 64 NATIONAL LABOR RELATIONS BOARD A large number of the respondent's employees congregated outside of the plant on the morning the strike was called. Considerable com- motion ensued and there was 'some violence. After a short time a majority of the employees entered the plant and started to work. The plant operated on that day and was operating at the time of the hearing. Picketing has been in progress since the first day of the strike. There were approximately 13, of the respondent's employees who formed a picket line on the first morning of the strike, not all of whom 'were members of the Union. These employees were assisted by em- ployees from other union plants in• Troy. On the second day of the strike not all of the striking employees returned to the picket line. Thereafter, from time to time a few of the respondent's employees became strikers. The respondent, shortly after the commencement of the strike, hired new employees, some of whom worked for a few days or weeks and then joined the strike. As heretofore mentioned, the request for the reinstatement of Agnes, Grill was denied on the ground that she had not ceased employment as a result of a current labor dispute. It is apparent from the record that Agnes Grill was laid off about May 1, 1937, at which time no labor dispute existed in the respondent's plant. The striking em- ployees, who ceased employment as a result of a current labor dispute, and because of the unfair labor practices of the respondent, did not seek reinstatement prior to the hearing, and all of them now desire reinstatement. D. The discharge of Vergie Horachian The complaint alleges the discriminatory discharge of Vergie Hora- chian, an employee in the respondent's plant. Virgie Horachian was hired by Beiermeister, Jr., as a presser in the pressing department in November 1935, and was discharged on October 6, 1936. She earned $8 or $9 a week during the first part of her employment. At the time she was hired there were about '50 pressers working in the pressing department, and at the time of her discharge, at which time she was earning an average of $11 or $12 a week, the personnel in that depart- ment had been increased to about 80 girls. The record indicates that no other pressers were discharged or laid off on the day of Horachian's discharge, and that other pressers were hired subsequent to that time. In May 1936, at which time a strike was in progress in another clothing manufacturing plant in Troy, a picture of Horachian's sister appeared in a newspaper in connection with the strike. • Mrs. Feehan,- the forelady in the pressing department in the respondent's plant, knew that Horachian's sister was a strike leader and active in the Union. Mrs. Feehan, thereafter, until Horachian's discharge on DECISIONS AND ORDERS 65 October 6, 1936, harassed Horachian by repeated derogatory state- ments concerning the Union and by frequent interrogations having to do with whether or not she had-joined the Union. In August 1936, Horachian, because of the antagonistic attitude of Mrs. Feehan, quit work at respondent's plant, but was rehired the following Friday. Horachian testified that Beiermeister, Jr., "asked me to please come back, that he needed the help." The respondent contends that the re- hiring of Horachian at this time is some evidence that she was not later discharged in violation of the Act. However, the fact that the respondent "needed the help" together with events, as hereinafter described, that transpired subsequent to the rehiring, outweighs the evidence tending to bear out the respondent's contention. After being rehired, Horachian, sometime in August or September, joined the Union and thereafter, until the date of her discharge was actively engaged in soliciting members for the Union. Mrs. Feehan ,continued to annoy her concerning the Union. About a month before her discharge, Mrs. Feehan asked her if she 'liked the Union, and stated that' she-would be foolish if she joined it because it would get her nowhere. Mrs. Feehan, on another occa- sion, informed Horachian that a letter had be9n received by the respondent stating that she and nine other girls had joined the Union. The testimony in the record concerning the discharge is noteworthy A. I went to his table and he (Beiermeister, Jr.) told me I was through, and I asked him what the reason was. He did not say anything then, so the first thing I thought of was another letter, because a week before that they had received one. Q. How did you know they had received one? A. The, girls that worked in front of me was called into the office * * * Q. Tell us what your conversation was with Beiermeister, Jr. A. I said, "Did you receive another letter?" He just shrugged his shoulders and he laughed. I told him there 'was no need to cry about losing my job and I just walked out. Eleanor Jones, employee in the respondent's plant, testified that on the same day Vergie Horachian was discharged, she met Mrs. Feehan during working hours in the ladies' room of the respondent's plant, and that Mrs. Feehan said, "Vergie was fired for joining the I. L. G. U." The respondent, throughout the hearing, failed to offer any ex- planation for the discharge of Horachian. Mrs. Feehan was not called as a witness and the testimony of both Horachian and Jones remains uncontradicted. Beiermeister, Jr., was sworn as a witness, but he was asked no questions concerning the discharge, hence, no, refutation, qualification, or explanation was made relative to the, 166 NATIONAL LABOR RELATIONS BOARD conversation between Beiermeister, Jr., and Horachian at- the-time she was discharged. About 2 weeks after the discharge, Horachian started to work for another company, and since that time she has been employed for most of the time. Although at the time of the hearing she was working as a presser for another dress manufacturing company in Troy, and was earning as much or more than she was making when working for the respondent, nevertheless, she desired reinstatement with the respondent and gave as the reason therefor, "To show the girls not to be scared to join the Union." We find that Vergie Horachian was discharged for the reason that she had joined and assisted the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth, in Section III above, -occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial. relation to trade, traffic, and commerce among the several States, and having led and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY The Board has found that the respondent dominated aid inter- fered with the formation and administration of Tiny Town Togs Benevolent Association and- contributed support thereto. In order to effectuate the policies of the Act, we shall order the respondent to withdraw all recognition from the Association, and to disestablish it as a representative of the employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, hours of employment, or conditions of work. In addition to an order to cease and desist from its unfair labor practices, on the basis of the Board's finding that Vergie Horachian was discharged because she joined and assisted the Union, we shall order the respondent to offer her reinstatement together with back pay. We have found that the respondent by its unlawful acts in domi- nating and interfering with the formation and administration of the Association, provoked a strike of its employees. The respondent's unfair labor practices, in this respect, continued throughout the entire period of the strike.- Since the strike was caused by the respondent's unfair labor prac- tices we shall, in accordance with our usual custom, order the respond- ent, upon application, to offer reinstatement to their former or sub-. DECISIONS AND ORDERS 67 stantially equivalent positions to those employees who went out on strike on July 14, 1937, or thereafter, and who were in the employ of the respondent prior to July 14, 1937, and who have not since been ,fully reinstated. Such reinstatement shall be effected in the follow- ing manner : All employees hired after the commencement of the strike shall, if necessary to provide employment for those to be of- fered reinstatement, be dismissed. If, thereupon, by reason of a re- duction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual man- ner of reducing its force, without discrimination against any em- ployee because of his union affiliation or activities, following a system, of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accord- ance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. Upon the basis of the foregoing findings of fact, and upon the entire 'record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Tiny Town Togs Benevolent Association and International Ladies Garment Workers Union are labor organizations, within they meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 3. The respondent, by dominating and interfering with the forma- tion and administration of Tiny Town Togs Benevolent Association,, and by contributing support thereto, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the; Act. 4. The respondent, by discharging Vergie Horachian for having joined and assisted a labor organization, has engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act. 68 NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices constitute unfair labor prac- tices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Tiny Town Togs, Inc., and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Tiny Town Togs Benevolent Association, or with the forma- tion and administration of any other labor organization of its em- ployees, and from contributing support to said Association or to any, other labor organization of its employees; (b) In any manner discouraging membership in the International Ladies Garment Workers Union, or in any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (c) Spying, maintaining surveillance, or employing any other man- ner of espionage over the meetings or meeting places and activities of the International Ladies Garment Workers Union, or any other labor organization of its employees ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Vergie Horachian immediate and full reinstatement to the position held by her immediately prior to October 6, 1936, without prejudice to her seniority or any other rights and privileges; (b) Make whole Vergie Horachian for any loss of pay she may have suffered by reason of her discharge on October 6, 1936, by pay- ment to her of a sum of money equal to that which she would normally have earned as wages during the period from the date of her discharge to the date of respondent's offer of reinstatement, less the amounts which she has earned during that period; (c) Withdraw all recognition from Tiny Town Togs Benevolent Association, as a representative of any of its employees for the purpose DECISIONS AND ORDERS 69 of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and disestablish the Tiny Town Togs Benevolent Association as such representative; (d) Upon application, offer to those employees, except Agnes Grill, who went out on " strike on July 14, 1937, and thereafter, who were in the employ of the respondent prior to July 14, 1937, immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privi- leges, in the manner set forth in the section entitled "The remedy," above, placing those employees for whom employment is not imme- diately available upon a preferential list in the manner set forth in said section ; (e) Make whole the employees ordered to be offered reinstatment for any loss of pay they will have suffered by reason of the respond-' ent's refusal to reinstate them, upon application, following the-issu- ance of this order,.by payment to them, respectively, of a sum of money equal to that which' each would normally have earned as wages during the period from five (5) days after the date of such application for reinstatement to the date of the offer 'of employment or placement upon the preferential list required by paragraph (d) above, less the amount, if any, which each will have earned during that period; (f) Post in conspicuous places in its- plant, and maintain for a period of at least thirty (30) consecutive days, notices stating (1) that the respondent will cease and desist in the manner aforesaid; and (2) that Tiny Town Togs Benevolent Association is disestablished as the representative of its employees for the purpose of dealing with the `respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and that the respondent will refrain from any recognition of it as a labor organization ; (g) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this order what steps the re- spondent has taken to comply herewith.