I. Youlin and Co.

'1 In the Matter of SAMUEL YOULIN, MURRAY H. ROSENBURG, AND MUR- RAY YOULIN DOING BUSINESS AS I. YOULIN AND COMPANY, A COPARTNER- SHIP and INTERNATIONAL LADIES GARMENT WORKERS UNION, C. I. 0.1 Case No. C-11,77.-Decided April 192, 1940 Embroidery Manufacturing Industry-Strike : precipitated and prolonged by refusal to bargain-Unit Appropriate for Collective Bargaining : production em- ployees, excluding office, clerical, and supervisory employees ; no controversy as to-Representatives: proof of choice : membership cards ; questioning of em- ployees relative to union membership-Collective Bargaining : continuous refusal to bargain ; meeting with union representative but with no bona fide intent to reach agreement ; failure to make counter -proposals and rejection of compromise offers of union ; insistence that union secure agreement from employer's com- petitors as condition precedent to negotiation of agreement ; employer ordered to bargain and upon request enter into signed agreement with union if under- standing reached-Discrimination : domination and discharge of employee be- cause of wife's union activities and her refusal to resign from job; refusal to reinstate ; discriminatory allotment of work as to nine employees ; displacement of regular employees with new non -union employees-Reinstatement Ordered- Back Pay: awarded ; as to one employee from date of demotion to date of offer of reinstatement ; lump sum and proportionate distribution among others discriminated against. Mr. Frank A. Mouritsen, for the Board. Howlett & McLaren, by Mr. Elmer H. Howlett, and Mr. Towson T. McLaren, of Los Angeles, Calif., for the respondents. Mr. Richard A. tiVilliame, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Ladies' Garment Workers Union, C. I. 0.,1 herein called the I. L. G. W. U., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated August 12, 1938, 1 Although so designated in the charges, complaint and subsequent pleadings, Interna- tional Ladies' Garment Workers Union is no longer affiliated with the Congress of Industi ial Organizations 22 N. L. R: B., No. 65. 879 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Samuel Youlin, Murray H. Rosenburg, and Murray Youlin, doing business as I. Youlin and Company, a copartnership, 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 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondents and the I. L. G. W. U. With respect to the unfair labor practices, the complaint alleged, in substance, that prior to May 15, 1938, and thereafter, the I. L. G. W. U. was the duly designated representative of a majority of the respondents' employees in an appropriate unit but that the re- spondents refused to bargain collectively with it as the exclusive representative of such employee; that after June 10, 1938, the respond- ents threatened one named employee with demotion and discharge of her husband and did demote and discharge her husband because she refused to resign from the I. L. G. W. U.; that the respondents de- prived nine other named employees of employment by allocating work customarily done by them to non-union employees, because they joined and assisted the I. L. G. W. U. and engaged in other concerted activities for their mutual aid and protection ; and that the respond- ents by the aforesaid and other acts interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 19, 1938, the respondents filed their answer denying the material allegations of the complaint and making certain allegations by way of an affirmative defense thereto. Pursuant to notice a hearing was held in Los Angeles, California, from August 22 to August 25, 1938, inclusive, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board and the respondents were represented by counsel and participated in the hearing.-' Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the hearing, counsel for the respondents moved to dismiss the complaint on various grounds. This motion was taken under advisement by the Trial Examiner and subse- quently denied in his Intermediate Report. During the course of the hearing, the Trial Examiner made rulings on various motions and objections to the admission of evidence. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. 2 At the hearing a motion of counsel for the Board was granted without objection to amend the complaint so that the spelling of the names "Louis DuBrow and Joe DuBrow" should be corrected to read "Louis Dubrow and Joseph Dubrow" respectively. The parties also stipulated that the spelling of the name "G. Del Carno" should be corrected to read "G. Del Corno" in the charges and the complaint. SAMUEL YOULIN 881 On January 31, 1939, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all parties, finding that the respondents had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act and recommending that the respond- ents cease and desist therefrom and offer full reinstatement with back pay to certain named employees. Exceptions to the Intermediate Report were filed by the respondents on February 25, 1939. 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 to be without merit. Although advised of their privilege of doing so, none of the parties requested oral argument before the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The respondents, Samuel Youlin, Murray II. Rosenburg, and Murray Youlin, individuals, are and have been doing business as copartners under the firm name and style of I. Youlin and Company, with their principal office and place of business at Los Angeles, California. The respondents are engaged in the manufacture and. sale of "Schiffli" embroidery and various other types of embroidery used on emblems, curtains, dress goods, millinery, and kindred products. The raw ma- terials used by the respondents in their operations include rayon thread, cotton thread, wool material, and felt. Raw materials purchased by the respondents totaled $9,026 in value in 1937, and $6,184 from Janu- ary 1 to August 1, 1938. Approximately 40 per cent of these mate- rials were obtained by the respondents from points outside the State of California. The value of finished products sold by the respondents, approximately 29 per cent of which were sold and shipped outside the State of California, amounted to $39,675 in 1937, and to $22,873 dur- ing the period from January 1 to August 1, 1938. II. THE ORGANIZATION INVOLVED International Ladies' Garment Workers Union is a labor organiza- tion admitting to membership production employees of the respond- ents, excluding office, clerical, and supervisory employees. III. THE UNFAIR LABOR PRACTICES Organization of the respondents' employees by the I. L. G. W. U. commenced in April 1938, under the leadership of Joseph DuBrow, 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the respondents' employees. On May 2 all of the respondents' employees, except William Rebell, attended a meeting at the local office of the I. L. G. W. U. and there joined the I. L. G. W. U. A. The refusal to bargain collectively The complaint alleges, and the answer denies, that prior to May 15, 1938, and at all times thereafter the respondents refused to bargain collectively with the I. L. G. W. U., although a majority of the em- ployees in an appropriate unit had selected the I. L. G. W. U. as their bargaining representative. 1. The appropriate unit The complaint alleges that all of the respondents' production em- ployees, excluding office, clerical, and supervisory employees, consti- tute a unit appropriate for the purposes of collective bargaining. The I. L. G. W. U. excludes from its membership office, clerical, and super- visory employees. The Trial Examiner, in his Intermediate Report, found such a unit to be appropriate and the respondents did not except thereto. We have reviewed the evidence and agree with the Trial Examiner's finding as to the unit. We find that the production employees of the respondents, exclud- ing office, clerical, and supervisory employees, constitute a unit appro- priate for the purposes of collective bargaining and that such unit insures to the employees the full benefit of their right to self-organiza- tion and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the I. L. G. W. U. of a majority in the appropriate unit From the testimony of Murray H. Rosenburg, one of the respond- ents, and the respondents' exceptions to the Intermediate Report, it is clear that the respondents' production employees numbered 11 on May 13, 1938. Rosenburg also testified that on June 10 the respondents' production employees numbered 13 and that the average number for the year 1938 was from 10 to 12. At the hearing the I. L. G. W. U. introduced in evidence membership cards, all but one of which were dated May 2, 1938, bearing the signatures of 12 persons who were employees during the period from May 13 to June 10. No question as to the authenticity of these cards has been raised, except as to one employee who resigned from the I. L. G. W. U. on May 18, 1938. The record also shows that on May 17 Rosenburg called a meeting of the employees and learned that substantially all of them were members of the I. L. G. W. U. SAMUEL YOULIN 883 Weifind that on May 13, 1938, and thereafter , the I. L.-G. W. U. was the duly designated representative of a majority of the respondents' employees in an appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all of the employees in such unit for the purposes of collective bargaining with the respondents in respect to rates of pay , wages, hours of employment, and other condi- tions of employment. 3. The refusal to bargain On May 17, 1938, William Busick, representative of the I. L. G. W. U., approached Samuel M. Youlin, one of the respondents, and presented to him a proposed agreement covering wages, hours, and working conditions of the employees. Youlin expressed a desire to discuss the matter with his partners and asked Busick to return the next morning. Shortly after Busick left the plant, Youlin by tele- phone notified his partner , Rosenburg, who was in the "field," to "return to the office at once. " Rosenburg returned to the plant about 2 o'clock that afternoon and Youlin handed him the proposed contract left by Busick. Rosenburg read the proposed agreement and then called Joseph DuBrow, an employee who had-taken a leading part in the ,organization of the respondents' employees, into his office and asked DuBrow if he was a member of the I. L. G. W . U. DuBrow replied in the affirmative and further stated "everybody else belongs to the union (I. L. G. W. U.)." Rosenburg then called a meeting of all the production employees at the plant , after working hours, and asked each of them if they belonged to the I. L. G. W. U. The employees replied that they did. The next morning Busick returned to the respondents' plant to con- fer with Youlin and Rosenburg as to the contract. At this time Busick explained the I . L. G. W. U.'s position and informed the respondents that a majority of their employees were members of the I. L. G. W. U. Thereupon, Rosenburg handed Busick the written resignation from ,the I. L. G. W. U. of one employee and remarked "here is one that doesn't want" to belong to the I. L. G. W. U. The record is not clear as to how Rosenburg obtained this resignation. When Busick directed his attention to various parts of the proposed agreement Rosenburg rejected them all and stated that the respondents "couldn't enter into an agreement with the union J . L. G. W. U.) now no matter what was done." Asked by Busick if he had a counter- offer to make, Rosenburg replied, "No counter-offer. We can't set .the wages any higher, give any holidays ; they can't have time and one-half." To Busick's suggestion that they consider the proposed contract "point by point," Rosenburg replied that there was "no use" 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing so since he wouldn't "sign any agreement." s The next day, May 19, Rosenburg and Busick attended a meeting at the Board's Regional Office where a Board representative discussed with the parties the nature of collective bargaining, but this meeting did not result in any agreement between them. At the hearing Rosenburg admitted having been told by Busick on May 18 that the I. L. G. W. U. represented a majority of the em- ployees but claimed to have requested proof of such representation. Busick testified that no question ever was raised as to whether the employees had signed membership cards.4 Any doubt which the respondents may have entertained as to the I. L. G. W. U.'s majority status was dispelled when Rosenburg called the meeting of the em- ployees on May 17 and learned that substantially all of them were members of the I. L. G. W. U. We do not believe that Rosenburg requested any proof from the I. L. G. W. U. that the I. L. G. W. U. represented a majority of the employees on May 18, or that he had any doubt on this point since he previously had learned from the employees themselves that they belonged to the I. L. G. W. U. We think it clear that on May 18, 1938, the respondent refused to bargain col- lectively with the I. L. G. W. U. As a result of its failure to obtain any agreement, the I. L. G. W. U. called a strike on May 20, which continued in effect until June 10. On the latter date the strike was settled pursuant to an oral agreement which provided for reinstatement of the strikers. During the strike I. L. G. W. U. representatives met with the re• spondents a number of times on May 23 and 26, June 2 and 9. After the termination of the strike, the I. L. G. W. U. again met with the respondents on June 27 and July 5, in an effort to work out some kind of an agreement. On several such occasions the respondents' unwillingness to "change their policies" as to their relations with their employees led Busick to suggest that the whole matter be sub- mitted to arbitration. These and other efforts to reach some agree- ment with the respondents met with no success. After an I. L. G. W. U. suggestion on May 27, that the respondents enter into an agreement similar to that proposed on May 18, Rosenburg stated that they "couldn't do that." When, on June 2, Busick suggested certain changes in the proposed contract relative to holidays, overtime, and wage scales, Rosenburg's response was "we couldn't accept those changes." On the afternoon of June 9 Busick again inquired if the respondents a At the hearing, Rosenburg claimed to have discussed the contract point by point on this o' casion, and to have marked in pencil his reaction to various provisions of the contract. We do not credit this testimony. Rosenburg also testified that during this conference he told Busick he "couldn 't see why the employees wanted to join the Union (I. L. G. W. U.)." 4 At a conference at the Regional Office prior to June 10, membership cards of the I. L. G. W U; signed by the employees were shown to Rosenburg who said he "didn't want to look at them." SAMUEL YOULIN 885 had come to any conclusion as to the proposed contract, but was told by Rosenburg that "we had not come to an arrangement relative to signing of the contract." At the meeting of June 27, according to Rosenburg, the respondents and the I. L. G. W. U. still had not "come to any items (sic) relative to the signing of the proposed contract." At the hearing, Rosenburg testified that during some of the bar- gaining conferences he "told Mr. Busick that because of the keen competition we had in this business, he should go after the other companies of this calibre also, and that any contract that he would get an average majority (of the other companies) to sign, we would be willing to sign, regardless of what it contained." Such an offer, if made, does not suffice to discharge the respondents from their duty to bargain collectively with the I. L. G. W. U. There is nothing in the Act to justify the imposition of a duty upon an exclusive bar- gaining representative to secure an,agreement from a majority of an employer's competitors as a condition precedent to the negotiation of an agreement with the employer. To permit individual employers to refuse to bargain collectively until some or all of their competitors had done so clearly would lead to frustration of the fundamental purpose of the Act to encourage the practice of collective bargaining.' We have heretofore observed that the Act imposes a duty upon employers not only to meet with the duly designated representatives of their employees but "to bargain in good faith with them in a genuine attempt to achieve an understanding on the proposals and counter-proposals advanced .. ." 6 The Supreme Court has said, "The Act contemplates the making of contracts with labor organiza- tions. That is the manifest objective in providing for collective bargaining." 7 After having been rebuffed by Rosenburg on May 18, the I. L. G. W. U. was the moving party in arranging subsequent bargaining conferences, and made various compromise proposals and otherwise attempted to effect an understanding with the respondents. The respondents, however, remained cold to the efforts of the I. L. G. W. U. and as a result no agreement between the parties ever was reached. No issues are shown to have developed during the nego- tiations which were incapable of solution or upon which the parties had bargained to an impasse. In the absence of any reasonable ex- planation of their stand during the negotiations, the conclusion is ' Cf Matter of Harbor Boat Building Company, a Corporation and Ship Carpenters Local Union No. 1335, 1 N L R B. 349; Matter of Nathan Chester, Reuben Chester, Abraham Chester, and Samuel Kahn, doing business under the name and style of J. Chester t Son's Company and Novelty Mirror Workers' Union, Local No 7, 13 N. L R. B 1 "Matter of St Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No 159, 2 N L. R B. 39, 54 7 Consolidated Edison Company et at. v. N L . R B et at , 305 U. S 197, 236, aff'g as mod. 93 F (2d) 390 (C C A 2), enfg Matter of Consolidated Edison Company of New York, Inc., and its affiliated companies, etc. and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B. 71. 283033-41-vol. 22-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inescapable that the respondents did not at any time intend or attempt to bargain collectively in good faith with the I. L. G. W. U. We find that the respondents on May 18, 1938, and at all times thereafter, refused to bargain collectively with the I. L. G. W. U. in respect to rates of pay, wages, hours of employment, and other con- ditions of employment. We further find that by refusing to bargain collectively with the I. L. G. W. U., and by calling a meeting of the employees and questioning them as to their union affiliation the re- spondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed under Section 7 of the Act. B. Discrimination with regard to hire and tenure of employment 1. The demotion and discharge of William Rebell The complaint alleges, and the Trial Examiner found, that after June 10, 1938, the respondents first demoted and then discharged Wil- liam Rebell, thereby discouraging membership in the I. L. G. W. U. Rebell was first employed on March 4, 1938, as stock clerk, shuttler, and delivery boy at a salary of $10 -a week. Thereafter, his wages were increased on three different occasions so that he was earning $22 a week during June 1938. After June 10 he devoted about half of his time to work as a salesman. Although Rebell did not join the I. L. G. W. U. until June 14, his wife, Lea Rebell, was an active I. L. G. W. U. member, participated in the strike which lasted until June 10, and picketed the respondents' plant. Rosenburg admitted that he knew Lea Rebell was a member of the I. L. G. W. U. and that he had seen her on the picket line during the strike. Rebell testified that on June 13 he had a conversation with Rosen- burg which in substance was as follows: "He (Rosenburg) said to me he had just had a talk with my wife and that she is keeping me back from doing-from going further." When Rebell asked him what he meant Rosenburg replied, "You will find out." The same day, according to Lea Rebell, Rosenburg approached her and said, "Lea, I want you to quit. You don't have to work. Willie (Rebell) is doing fine here now, and he has every chance of advancement. But if you don't quit, you will be holding your man down ... and he won't have the same chance that he has now." During the same conversation, Rosenburg advised her not to "be as dumb as" DuBrow or Busick, and informed her that "as long as you and Gertrude Schaeffer (another employee and I. L. G. W. U. member) are in the shop, there will never be any peace or harmony." A few days later, Rosenburg again ap- proached Rebell, according to the latter's testimony, and offered Rebell an increase in wages if he would persuade his wife to resign from the respondents' employ. On this occasion Rosenburg remarked that he SAMUEL YOULIN 887 didn't understand why Lea Rebell was "so stubborn" since "the best that she could get would be a day a week's work." In early July, Rebell testified, he had a third conversation with Rosenburg who stated, "If she won't resign, I will have to take other measures" and that "I will take you, off a salary and put you on a commission basis." Rosenburg denies having made these statements testified to by Rebell and his wife. The respondents admittedly knew that Lea Rebell was a member of the I. L. G. W. U. The testimony of both William and Lea Rebell was consistent relative to these conversations and the Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, found that their testimony in this respect was substantially accurate. These factors considered in the light of the respondents' attitude toward the I. L. G. W. U. throughout this period, noted above, together with the subsequent events leading up to William Rebell's discharge, convince us that the foregoing testimony of Lea and William Rebell is entitled to credence. We find that the conversations in ques- tion took place as related by them. On July 7 Rosenburg called Rebell and Harry Klein, one of the new employees, and informed them that thereafter they were to work as salesmen on a commission basis. Both men were instructed as to what customers they should see, and were told to telephone the respondents' plant and to submit written daily reports on their progress. When Rebell protested that certain accounts which were assigned to him to call upon were "bad accounts," Rosenburg replied, "Well, I will give you what I want now and if I see fit to add any more accounts to your list, I will do so and I will give you any accounts I see fit." At the same meeting, according to Rebell, Rosenburg stated, "You know what I expect from you Monday." The following Mon- day, Rosenburg again asked Rebell if he had his wife's resignation.a Rebell replied that he did not. In view of this fact, as well as Rosen- burg's previous threat to put Rebell on a commission basis, We have no doubt, and find, that the respondents demoted Rebell in order, to bring additional pressure on him to secure his wife's resignation either from the I. L. G. W. U. or from her job. In his first week as salesman, Rebell made 73 cents as commission and obtained no other compensation. Thereafter, Rebell informed Rosenburg that "he would like to go back on (his) old wage scale of $22 a week." Rosenburg replied "that it couldn't be arranged any more," whereupon Rebell intimated that he would "take it up with the Labor Board." Rosenburg told him to "go ahead." On August 4 Rebell was called in to Rosenburg's office and accused of having, failed to telephone the respondents' plant, of having looked 8 we do not credit Rosenburg's denial that this incident took place. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for another job while working for the respondents, and of having failed to call on a customer after being instructed to do so. Rosenburg then discharged Rebell. A few days later Klein's services as a salesman also were terminated and, pursuant to an understanding between the respondents and an insurance company, Klein was given work as a watchman at the respondents' plant." Rosenburg claimed that at the time of the hearing, the respondents retained a single salesman, who was on a commission basis. The latter was not identified and it is not clear whether Rosenburg was referring to himself or someone else as a commission salesman. At the hearing Rebell could remember only one occasion when he failed to call the respondents' plant but claimed to have submitted a written report for that day. In any event, we have no doubt that a mere failure to telephone the plant on one or two occasions would not under normal circumstances have led to the discharge of an employee whose salary had been more than doubled in the previous 5 months because of his value to the respondents. The record contains no evi- dence to support Rosenburg's assertion that Rebell was looking for another job. At the hearing Rebell did not recall having been in- structed to call on the particular customer whom Rosenburg asserted he had failed to see. Rosenburg placed much emphasis on the pur- ported failure of Rebell to call on this customer, who, according to Rosenburg, was an important one and a likely prospect for a saae4 Since Rebell was on a commission basis at the time, it is somewhat im- probable that he would have failed to call on a prospective purchaser had he in fact been specifically instructed to do so. The only testimony as to this alleged failure was Rosenburg's. We do not,credit the testi- mony of Rosenburg, whom the Trial Examiner regarded as an unreli- able witness, as to the reasons for the discharge of Rebell. Whether the respondents were aware of William Rebell's own I. L. G. W. U. membership and activity we need not determine. It is clear that during the foregoing events the respondents knew of the I. L. G. W. U. activity of Rebell's wife, Lea. It is equally clear that by threatening both Rebell and his wife with his demotion and dis- charge unless she resigned from the respondent's employ and by sub- sequently demoting and discharging William Rebell because his wife refused to resign, the respondents hoped to discourage I. L. G. W. U. membership and activity in the plant, and specifically to eliminate the influence of one of the I. L. G. W. U. members upon the other em- ployees. Lea Rebell was considerably more active in the I. L. G. W. U. than her husband, who had remained at work during the strike, and 9 This was following a fire which occurred at the respondents' plant shortly before the hearing. SAMUEL YOULIN 889 who did not join the I. L. G. W. U. until after the first threats of discrimination made by Rosenburg on June 13. It is thus apparent that Rosenburg believed he could put an end to Lea Rebell's union activity by bringing pressure to bear on her husband. There can be no doubt of the coercive and unlawful nature of the respondents' conduct in thus threatening Rebell and his wife. As we have pre- viously observed a "more effective mode of discouragement of union affiliation could hardly be found than the knowledge that such activi- ties put not merely the union member's employment but that of those closely related to him in jeopardy." 10 The several increases in pay which Rebell had received, the lack of credible evidence that his work was unsatisfactory in any important respect, the repeated threats of the respondents to demote and dis- charge him unless his wife resigned her position, his demotion from a weekly salary to a commission basis with an accompanying request for his wife's resignation, and the improbability of the respondents' explanation of Rebell's ultimate discharge, convince us that the re- spondents discriminated against Rebell in order to discourage I. L. G. W. U. membership and activity. We find that the respondents by demoting and subsequently dis- charging William Rebell discriminated with regard to his hire, ten- ure, terms, and conditions of employment thereby discouraging mem- bership in the I. L. G. W. U. and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Discrimination in the distribution of work after June 10, 1938 The complaint alleges, and the Trial Examiner found, that the re- spondents after June 10, 1938, discriminated against G. Del Corno, Sam Cohan, Lea Rebell, Louis DuBrow, Gertrude Schaeffer, Rose Hartunian, Raymond McConkey, Eli Badovinac, and Joseph DuBrow by allocating work customarily done by them to other employees, and thus depriving them of employment. As previously noted, the nine employees in question had joined the I. L. G. W. U. on May 2, 1938, and on May 17 Rosenburg learned that they had done so. All of these employees participated in the strike from May 20 to June 10, 1938, and picketed the respondents' plant. During the strike, the respondents had hired seven new employees, but agreed to dismiss them forthwith when the strike was settled on June 10, pursuant to an oral agreement between the respondents and the I. L. G. W. U. At the same time, the respondents further agreed to 10 Matter or Memphis Furniture Manufacturing Company and Furniture Workers Local Union No. 1174, United Brotherhood of Carpenters & Joiners of America, 3 N. L. R. B. 26, 33. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reemploy all strikers when work was available for them and to notify the I. L. G. W. U. Which in turn would notify the employees when there was work. Despite this agreement and despite the willingness of the nine em- ployees to return to work immediately , the respondents retained a number of persons hired during the strike for some time and pro- ceeded to give substantial amounts of production work to still another employee who previously had done a few odd jobs about the plant. Four of the new employees were employed by the respondents until at least June 17, and one, Richard Jones, was still employed at the time of the hearing. During this period, Jones at various times per- formed substantially all of the various types of production work ordi- narily done by the nine persons alleged to have been discriminated against. " Another new employee, Harry Klein,,-,- was assigned a con- siderable amount of work which he and his wife did at home. This 'included the "cutting" of at least ten thousand emblems for which the compensation was 3 dollars a thousand . Klein also did various kinds of production work in the respondents' plant.12 In addition , the re- spondents, Murray Youlin , Samuel Youlin , and Rosenburg. them- selves engaged in certain production work. Prior to the strike, Murray Youlin had done no production work ; after the strike, he operated some of the machines and otherwise aided in the plant. Prior to the strike, Samuel Youlin had done little if any production work; after the strike he was almost continuously so engaged and did all of the "punching" work formerly done by Joseph DuBrow. Rosenburg, whose duties had consisted primarily of "selling" prior to the strike, thereafter devoted a large portion of his time to production work in the plant. Production work performed after the strike by the new employees and by the respondents was work which the nine I. L. G. W. U. members previously had performed.- As a result, after -June 10 the nine employees received less than the 40 hours weekly employ- ment which they had customarily received prior to the strike. Be- tween June 10 and the hearing, Del Corno, Cohan, L. DuBrow, Schaeffer, and McConkey each lost 16 days or more of work, and Badovinac lost 91/2 days, while J. DuBrow, L. Rebell, and Hartunian were employed for only 71/4 hours, 341/2 hours, and 22 days respec- 11 Klein does not appear on the respondents ' pay roll before the strike as a production employee. He testified that although he had "never worked as an employee on the pay roll" he had sometimes performed "various jobs" such as "delivering packages" for the respondents After the strike he performed a considerable amount of production work for the respondents and thus became in effect a new full -time employee 12 Klein, an unreliable witness, sought to minimize the amount of this type of work per- formed by him. The respondents refused to comply with a subpoena which called for production of Klein 's employment record. While the record thus does not show the exact amount of production work done by Klein, we are convinced . that it was substantial.. SAMUEL YOULIN 891 tively.19 All of these employees seldom obtained less than 40 hours of work weekly prior to the strike, and sometimes worked overtime. 14 The respondents contend that 6 of the working days lost by the 9 returning strikers was due to their voluntary absence beginning June 24. At noon on June 24, 7 of the 9 strikers left the plant to attend a meeting scheduled for 1 o'clock at the Board's Regional Offfce.15 This meeting was one of several between the I. L. G. W. U. and the respond- ents called during this period by the Regional Director in an effort to effect an adjustment of the difficulties growing out of the respondents' continued refusal to bargain collectively with the I. L: G. W. U. and further refusal, noted above, to accord the strikers full reinstatement. The employees previously had attended some of these meetings. The respondents, although notified thereof, did not attend the June 24 meeting. Shortly after the meeting, the employees accompanied Busick to the I. L. G. W. U.'s office, where Busick telephoned Rosen- burg several times at the respondents' plant in an effort to determine when the employees should return to work. Each time Busick was informed by Rosenburg's secretary that the latter was not in the plant. Busick then left a message for Rosenburg to notify either the I. L. G. W. U. or the employees when the employees should return to work. Rosenburg, although admitting he was in the plant that afternoon and that he had received Busick's message, did not so notify the I. L. G. 23 Rosenburg's testimony was undisputed that 3 days of the time lost by Hartunian was due to the fact that she had not signed an apprentice card as required by a California statute. '4 The following is a table showing the minimum number of hours worked weekly by the employees prior to the strike: Jan- uary February March April May Week ending --- 29 4 11 18 25 4 11 18 25 1 8 15 22 29 6 13 G. Del Corno __ 56 40 40 40 40 40 40 40 40 40 3 32 40 40 40 40 S Cohan __ ____ 511 40 40 40 40 40 32 38 40 40 20 32 40/ 43 44 4134 L. Rebell ______ 40 40 40 40 40 40 40 40 4 40 24 3933 39 40 3814 2734 L. DuBrow____ 40 40 40 40 40 40 32 36 40 40 40 40 4134 43 44 38 G. Schaeffer____ _______ ____ ____ ____ ____ _____ ____ ____ _ __ 21/ 40 40 40 24 36 40 R Hartunian __ 40 40 40 40 40 40 24 40 40 40 40 40 24 40 40 40 R McConkey . 56 40 40 40 40 40 40 40 40 40 32 _ 32 32 45 40 E Badovinac __ 40 40 40 40 40 3934 32 46 43 40 20 16 32 4514 44 40 J. DuBrow___ 40 40 40 40 40 40 40 40 40 40 40 40 44 411141 45 40 The above figures represent a minimum calculation of hours worked by the employees based largely on testimony elicited from Rosenburg , a reluctant witness. Rosenburg admitted , however, that during the weeks ending February 4, 11, and 25 , 1938, a number of employees worked overtime but did not identify the employees Cohan, Hartunian , and J DuBrow testified that during the period set forth above they worked sufficient overtime in some weeks to compensate for any time lost by them in other weeks. During part of the period, L Rebell engaged in "cutting" emblems at her home and time thus spent is not indicated in the above table Schaeffer was absent from the respondents' plant from January 22 to March 25 , 1938, due to an operation which she underwent prior thereto; otherwise , she was "never laid off" and worked some overtime The respondents supplied no figures relative to the time worked by McConkey for the week ending April 15, 1938, nor was any other evidence on this point adduced 18 The record indicates, and we find, that two of the employees , Cohan and L DuBrow were actually laid off by the respondents on June 22 and thus could not be deemed to have voluntarily absented themselves from the plant during the 6-day period in question 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. U. or the employees. Indeed, the respondents rejected the I. L. G. W. U.'s continuing offer, first made on June 24 by Busick to Rosenburg, through his secretary, that the I. L. G. W. U. pay the expense of notifying the employees by telegram. Throughout the period of June 24 to July 6, numerous attempts were made by both the I. L. G. W. U. and the employees to ascertain if there was work available. Prior to this time, it was not unusual for the respondents to notify the employees either directly or through the I. L. G. W. U. when there was work available for them to do. That there was in fact work avail- able from June 24 to July 6 is evidenced by the retention of new employees and by the fact that the respondents themselves and William Rebell and Mrs. Samuel Youlin also were engaged in production work during this period. A meeting between the respondents and the I. L. G. W. U. finally took place on July 5, and the employees returned to work the next day.16 It is clear that on and after the afternoon of June 24, the respondents were aware that the employees were at all times available and ready to work. The respondents were notified of the meeting and reasonably understood that the employees had left the plant to attend it. We think it significant that during this period the respondents rejected efforts of the I. L. G. W. U. to provide an orderly system whereby the employees could be notified when work was available for them. As already noted, the respondents at this time had refused to bargain collectively with the I. L. G. W. U. and were continuing their refusal to bargain. Under the circumstances, we feel that the respondents' failure to attend the June 24 meeting and subsequent studied effort to treat the I. L. G. W. U. members as having voluntarily given up their employment are simply part and parcel of the respondents' design to discredit the I. L. G. W. U. by continually rebuffing its efforts to represent the employees in dealing with the respondents. The re- spondents deliberately took advantage of the employees' absence from the plant as a pretext for further discrimination against them. The respondents also contend that much of the time lost by the employees was due to lack of business. The record contains no evi- dence, however, to support this contention. J. DuBrow testified, without contradiction, that on May 15 he was informed by Samuel Youlin that the respondents' business was increasing and that it might be necessary to put on two shifts. Cohan testified that the quantity of the production work in the respondents' plant was "about the same" after the strike "as it was before." Throughout the period following the strike the respondents retained new employees hired during and after the strike, and themselves performed a substantial amount of work. Harry Klein, one of the new employees and a witness on behalf 16 Except Cohan, who was reemployed on July 1. SAMUEL YOULIN 893 of the respondents, testified that during this time "there was a surplus of work." In addition, Rosenburg himself, on cross-examination, denied that "business dropped off" during this period. We accord- ingly give no weight to the respondents' contention that a business recession caused the nine I. L. G. W. U. members to lose employment. The nine employees here involved sought immediate reinstatement on June 10, and were entitled to full reinstatement at that time. The respondents were obligated not only by the agreement settling the strike, but also by the Act itself to comply with the request of the strikers for reinstatement on termination of the strike, which was caused by the respondents' unfair labor practices. 17 By giving em- ployment after June 10 to persons hired during and after the strike and by themselves performing work customarily done by the strikers, the respondents clearly discriminated against the strikers who desired reinstatement 1s We find that the respondents, by failing to grant immediate and full reinstatement to the nine returning strikers, dis- criminated in regard to their hire, tenure, terms and conditions of employment, thereby discouraging membership in the I. L. G. W. U. and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The, activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondents have engaged in certain unfair labor practices, we will order them to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondents refused to bargain collectively with the I. L. G. W. U. although a majority of the respondents' employees in the appropriate unit had designated the I. L. G. W. U. as their representative for the purposes of collective bargaining. Ac- cordingly, we will order the respondents,, upon request, to bargain col- 17 Matter o f American Hair and Felt Company and Textile Workers Union of America, Local 99, affiliated with the Congress of Industrial Organizations, 19 N. L R B 202, and cases cited therein 'g Under the circumstances of this case it is apparent that the respondents retained the new employees and themselves did production work primarily for the purpose of discrinni- nating against the I. L. G. W. U. members. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lectively with the I. L. G. W. U. as the exclusive representative of all of the employees in the appropriate unit, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on such matters, to embody such under- standing in a signed written contract.'9 We have found that the respondents have discriminated in regard to the hire, tenure, terms, and conditions of employment of William Rebell by demoting and discharging him. We also have found that this' discrimination began on July 7, 1938. We shall, therefore, order the respondents to offer him reinstatement to his former or a substan- tially equivalent position and make him whole for any losses of pay he may have suffered by reason of his demotion and discharge by pay- ment to him of a sum equal to the amount he normally would have earned as wages from the date of his demotion to the date of the offer of reinstatement, less his net earnings,20 during such period. We have found that after June 10, 1938, the respondents discrimi- nated in regard to the hire, tenure, terms, and conditions of employ- ment of G. Del Corno, Sam Cohan, Lea Rebell, Louis DuBrow, Gertrude Schaeffer, Rose Hartunian, Raymond McConkey, Eli Bado- vinac, and Joseph DuBrow by allocating work customarily done by them to other persons. We shall order the respondents to discontinue such discriminatory allotment of work and, as far as possible, to assign work to the nine strikers in the same manner that work was assigned prior to the strike. In order to accomplish the foregoing, all persons hired after May 20, 1938, shall be dismissed if necessary to provide regular full-time employment for the nine employees in question. We shall also order the respondents to make each of the above nine employees whole for any losses of pay they may have suffered, by reason of the discrimination in regard to their hire, tenure, terms, or conditions of employment. Ordinarily, in awarding back pay to employees against whom an employer has discriminated, we have ordered the employer to reimburse them with an amount equal to 19 Matter of Art Metal Construction Company and International Association of Machin- ists, Local 1559, affiliated with District ## 65, of the I. A. M. (A. F. of L ), 12 N. L. R. B. 1307, enf'd as mod, Art Metal Construction Company v. N. L R B, 110 F (2) 148 (C. C. A. 2) ; Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee , 12 N. L. R. B. 1238 , enf'd, N. L. R B v Highland Park Manufacturing Com- pany, 110 F (2) 632 (C. C. A. 4). 20 By net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondents, which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State , county, municipal, or other work- relief projects are not considered as earnings , but, as provided below in the Order , shall be deducted from the sum due the employee, and the amount thereof shall be.paid - overto the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work -relief projects SAMUEL- YOULIN 895. what they would have earned with the employer. from the date of discrimination to the date of its cessation, less net earnings elsewhere during the same period. While the objective in the present case is, the same, the peculiar factual situation here presents certain difficul- ties in fashioning our remedy so as to restore the status quo. Therefore we shall turn to a solution which seems better calculated to serve the purposes of the Act.21 A lump sum shall be computed, consisting of all wages, salaries, and other earnings paid out by the respondents to employees other than Armida Diaz and George Yomaka 22 for production work done from June 10, 1938, up to the date on which the respondents cease discriminating in the allotment of work to the nine employees. Such lump sum then shall be proportionately divided among all the nine employees here involved. Each of such employees shall thus be assigned all amount proportionate to the average weekly wage paid him during the period from January 22 to May 13, 1938.23 From this proportionate amount thus assigned to each employee there shall be deducted his net earnings," plus the amount which he or she would have earned on the afternoon of June 24, during said period. After such deduction the balance to which each employee is entitled shall- be paid over.25 Upon the basis of the foregoing findings of fact, and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAw 1. International Ladies' Garment Workers Union is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. The production employees of the respondents, excluding office, clerical, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 21 Cf Matter or Eagle-Picher Mining it Smelting Company, a corporation and Eagle-Picher Lead Company, a corporation and International Union of Mine , Mill if Smelter Workers, Locals Nos 15, 17, 108, and 11t, 16 N L R. B 727 ; Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of America, Locals 259 and 374, 18 N L. R. B. 837. 12 Had it not been for the respondents' precipitation of the strike and the hiring of new employees, there would have been 11 production employees on June 10, including Diaz and Yomaka Since the respondents were obligated to reemploy the nine strikers and displace the new employees only, there was no impropriety in the assignment of production work to Diaz and Yomaka 23 The average wage of Schaeffer will be computed on the basis of the period from April 8 to May 13, 1938 See footnote 12, supra. 24 Including all earnings received in the respondents' employ during the period from June 10, 1938, until the respondents' discrimination against the nine employees shall have ceased. 26 Since the respondents were not responsible for 3 days' work lost by Rose Hartunian, she is -not-entitled to.back pay for, these days.- Accordingly, she will , be paid in ,the same manner and upon the same basis as the other employees , less wages for these 3 days. 896, DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. International Ladies' Garment Workers Union was on May 13, 1938, and at all times since has been the exclusive representative of all of the employees in such unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with International Ladies' Garment Workers Union, as the exclusive representative of its em- ployees in the appropriate unit, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire, tenure, terms, and condi- tions of employment of William Rebell, G. Del Corno, Sam Cohan, Lea Rebell, Louis DuBrow, Gertrude Schaeffer, Rose Hartunian, Raymond McConkey, Eli Badovinac, and Joseph DuBrow, thereby discouraging membership in International Ladies' Garment Workers Union, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respond- ents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (b) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Samuel Youlin, Murray H. Rosenburg, and Murray Youlin, individuals doing business as copartners under the firm name and style of I. Youlin & Company, and their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies' Garment Workers Union as exclusive representative of the respond- ents' production employees, excluding office, clerical, and supervisory employees ; (b) Discouraging membership in International Ladies' Garment Workers Union or any other labor organization of their employees, by discriminating in regard to the allotment of work, or by discharg- ing, laying off, or refusing to reinstate any.of their employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organization, to SAMUEL YOULIN 897 form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : . (a) Upon request bargain collectively with International Ladies' Garment Workers Union, as the exclusive representative of their production employees, excluding office, clerical, and supervisory em- ployees, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on such matters, embody said understanding in a signed agreement; (b) Offer to William Rebell immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (c) Make whole William Rebell for any loss of pay he has suffered by reason of his discriminatory demotion and discharge by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his demotion to the date he is offered reinstatement, less his net earnings during that period, de- ducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the, amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Offer immediate and regular full-time employment to G. Del Corno, Sam Cohan, Lea Rebell, Louis DuBrow, Gertrude Schaeffer, Rose Hartunian, Raymond McConkey, Eli Badovinac, and Joseph DuBrow in the manner set forth in the section entitled "Remedy," above; (e) Make whole each of the employees named in the preceding paragraph for any loss of pay he may have suffered by reason of the respondents' discrimination against him, in the manner set forth in the section entitled "Remedy" above, deducting, however, from the amount otherwise due each such employee, monies received by him during the period from June 10, 1938, until such time as the respond- ents shall have ceased discriminating against the employees, for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount, so deducted, to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; ' ` 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . (f) Immediately post notices to its employees in conspicuous places throughout their plant and maintain such notices for a period of at ]east sixty (60) consecutive days from the date of posting, stating that the respondents will cease and desist in the manner set forth in paragraphs 1 (a), (b), and (c) and that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and that the respondents' employees are free to become or remain members of International Ladies' Garment Workers Union, and that the respondents will not discriminate against any of their employees because of membership or activity in that organization; (g) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith.