Schieber Millinery Co.

In the Matter of ISAAC SCHIEBER, A. J. ROSENBERG, AND BEN L. SHIFRIN (THE LAST OFFICERS AND DIRECTORS OFSCHIEBER MILLINERY CO.) AS TRUSTEES OF SCHIEBER MILLINERY CO. and ISAACSCHIEBER, INDIVIDUALLY, and ALLEN HAT CO., and UNITED HATTERS, CAP AND MILLINERY WORKERS' INTERNATIONAL UNION, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. 0-1436.-Decided AuguLt 22, 1940 Jurisdiction : hat manufacturing industry. Where the Board was not a party to proceedings before a State court, a decree of said court is not res judicata on the issue as to the Board. Unfair Labor Practices In General: employer's responsibility for acts of corporate officers and supervisory employees. Corporation formed after commission of unfair labor practices, held responsible for unfair labor as alter ego of employer also found responsible. Interference, Restraint, and Coercion: anti-union statements; threats of discharge; interference with right to bargain collectively; removal of operations; attempt to induce employees not to remain members of union by offer of employment at new location. Discrimination : lock-out of employees and removal of plant to evade obligations under contract to employ union members Collective Bargaining designation of majority by membership in union; employer's breach of collective agreement and refusal to meet with union to discuss con- tract violations. Where an employer has removed his plant, under circumstances amounting to an unfair labor practice and the union has indicated its desire to bargain, the union is under no further duty to request collective bargaining since the employer by his conduct has demonstrated the futility of such request An employer is obligated to meet with union to adjust disputes arising under signed agreement existing between them. Mere fact of existence of agreement does not bar consideration of facts showing that employer dealt with union in bad faith. Remedial Orders : employer ordered upon request to bargain collectively; rein- statement and back pay awarded. Employer ordered to offer reinstatement to locked-out employees and either to return millinery plant to point from which he removed it to evade respon- sibilities under the Act or to pay the expenses entailed by reinstated employees and their families in moving to the point to which the plant had been re- moved. The provisions of an order, addressed to a dissolved corporation, which contemplate business activity are applicable only in the event it reenters business in the future. Possible ineffectiveness of a Board order held no bar to its issuance. Order, addressed to individual owner of corporation as well as to the 26 N. L. R. B., No. 99. 937 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporation, requires said individual to cause his corporate alter ego to comply therewith. Fact of regular and substantially equivalent employment, if proved, held no bar to reinstatement under the Act. Unit Appropriate for Collective Bargaining : all production employees engaged in the operations of blocking, cutting, operating, making, and trimming, but excluding foremen, foreladies, supervisory employees, and designers, employed in respondent's St Louis plant. Definitions Where the owner of a corporation, who was also its president, acted in the interest of the corporation as well as in his personal capacity in committing unfair labor practices, he was an employer within the meaning of the Act. Mr. David Y. Campbell, Mr. Norman Edmonds, and Mr. Herbe7t 0. Eby, for the Board. Taylor, Mayer cf; Shifrin, by Mr. Ben L. Shifrin, of St. Louis, Mo., for the respondent. Mr. Joseph M. Jacobs, of Chicago, Ill. and Mr. Harry Fromkin, of St. Louis, Mo., for the Union. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Hatters, Cap and Millinery Workers' International Union, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board herein called the Board, by Dorothea de Schwemitz, Regional Director for the Fourteenth Region (St. Louis, Missouri) issued its complaint dated March 31,.1939, against Schieber Millinery Co., St. Louis and De Soto, Missouri, Allen Hat Co., De Soto, Missouri, Isaac Schieber, individually, and Isaac Schieber, doing business as Schieber Millinery Co., and Allen Hat Co., herein sometimes collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor prac- tices 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, accom- panied by notices of hearing, were duly served upon the respondents. On April 4, 1939, the respondents Allen Hat Co., and Isaac Schieber, filed applications for extensions of time in which to answer' and for postponement of the hearing, addressed to the Regional Director but referred by her to the Trial Examiner for ruling. On April, 5, 1939, the respondents Isaac Schieber and Allen Hat Co., filed separate answers to the complaint; and motions to dismiss the complaint were filed by all the respondents. SCAIEBER MILLINERY CO. 939 The motion filed by the respondent Schieber Millinery Co., alleged that the Board was without jurisdiction to proceed against it since at the time of filing the complaint the charter of Schieber Millinery Co. had been-revoked by the State of Missouri,' and consequently being no longer a corporation, purported service upon it was void. The motion on behalf of Allen Hat Co. alleged that the Board in respect to it was without jurisdiction because at no time was Allen Hat Co. an employer of the employees here involved. A similar objection was contained in the motion on behalf of Isaac Schieber, which recited that he did no business individually, and thus was not an employer within the mean- ing of the Act and had never engaged in commerce. Pursuant to notice, a hearing was held at St. Louis, Missouri, on April 6, 1939, before J. J. Fitzpatrick, 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 on the issues was afforded all parties. During the hearing on April 6, the Trial Examiner denied the respond- ents' motions to 'dismiss the complaint, and the applications for extension of time for answering, and for an extension of time of the hearing.' After the taking of some testimony and argument by counsel, the Trial Examiner granted the Board's request for a continu- ance of the hearing. On April 19, 1939, the Board issued an amended complaint on the basis of an amended charge. The amended complaint lists as respondents "Isaac Schieber, A. J. Rosenberg, and Ben L. Shifrin, (the last officers-and directors of Schieber Millinery Co.), as trustees of Schieber Millinery Co.,' and Isaac' Schieber, individually, and Allen Hat Co." The amended complaint in regard to the alleged unfair labor, practices did not differ materially from the original complaint. Copies of the amended complaint, accompanied by notices of hearing, were duly served upon the respondents and the Union. In respect to the unfair labor practices, the amended complaint alleged in substance (1) that Schieber Millinery Co.' maintained both I On January 1, 1939, pursuant to Section 4619, Mo Rev Stat (1929), the Secretary of State of Missouri declared the corporate rights , privileges, and franchises of Schieber Millinery Co , "forfeited and canceled and the corporation dissolved , subject to rescision as in this Act provided." s The Union was represented by an officer 3 These rulings were not unqualified The Trial Examiner indicated that on a proper showing motions to amend the answers would be allowed , and a continuance granted the respondents at the close of the Board's case . No motion to amend or for a continuance was thereafter made by the respondents 4 Isaac Schieber was president and treasurer , A J Rosenberg , vice president , and Ben L Shifrm , secretary of Schieber Millinery Co., Sections 4561, 4622 , Mo Rev Stat. (1929) provide in substance that the last officers of the corporation at the time of the dissolution and forfeiture , respectively , shall be trustees with stated powers for settling its affairs , and be responsible to creditors and stockholders to the extent of assets received. See Nudelman v. Thrmbles Inc et of , 225 Mo App 553, 40 S W (2d) 475, Watkins v Mayer, et al , 103 S W. (2d) 566, 569 (Me App ). 5 Incorporated under Missouri law in 1932. 940 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD plant and office at St. Louis, Missouri, until about August 25, 1937, when it moved to De Soto, Missouri, and that until July or August 1938, it carried on the same business at De Soto; (2) that Isaac Schieber, acting in the interest of Schieber Millinery Co., and Schie- ber Millinery Co., through its officers and agents, interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act by various acts and statements; (3) that on or about August 25, 1937, Schieber Millinery Co. discharged and locked out its St. Louis employees, and since has refused to rein- state them, in order to avoid collective bargaining with the Union; (4) that Isaac Schieber and Schieber Millinery Company, by moving its plant to avoid collective bargaining with the Union, violated the Act while bound by a closed-shop contract with the Union; (5) that during July of 1938 Isaac Schieber and Schieber Millinery Company caused Allen Hat Co., to be formed for the purpose of evading the obligations and the liabilities of Schieber Millinery Co. and Isaac Schieber under the Act and that Allen Hat Co., continued the same business at the De Soto plant and St. Louis office previously done by Schieber Millinery Co., which thereafter withdrew from business, and that Allen Hat Co. always was Isaac Schieber carrying on the busi- ness previously done under the corporate framework of Schieber Mil- linery Co., and that both companies were owned and dominated by Isaac Schieber; (6) that consequently the discharged employees be- came and continued to be employees of Allen Hat Co., and that both companies discriminatorily refused and refuse to reinstate them; (7) that the Union represented and represents a majority in the unit appropriate for collective bargaining, and that since about June 15, 1937, both companies and Isaac Schieber have, in violation of Section 8 (1) and (5) of the Act, refused to bargain in good faith with the Union; (8) that, since on January 1, 1939, the charter of Schieber Millinery Co. was declared forfeited by the Secretary of State of Missouri, the last officers of that company are named as trustees by virtue of Missouri law. Thereafter the respondents filed separate motions to dismiss and answers to the amended complaint, denying that they had engaged in the alleged unfair labor practices.' 7 The motion by the alleged trustees recited that Schieber Millinery Co had no assets at the time its charter was forfeited , and that under Missouri law the last board of directors become trustees only when they receive corporate assets, and , hence, service upon them was improper and the Board without juris- diction. Their answer averred that when Schieber Millinery Co. moved to De Soto, its employees were offered and refused employment, and that Schieber Millinery Co . had nothing to do with the formation of Allen Hat Co. Isaac Schieber, in addition to a general denial of the allegations of the amended com- plaint, inter atia set forth that he was never in business as an individual , and had no contract with the Union . Allen Hat Co.'s answer alleged in part that it was not formed to evade the Act but was organized as a new corporation with fresh capital, and denied that any employees of Schieber Millinery Co became its employees or that it had contractual relations with them , or that they ever requested employment of it, or that the Union ever represented a majority of its employees or requested bargaining of it None of the respondent 's pleadings denied that part of the amended complaint which alleged in substance that Schieber directed and managed the affairs of both corporations. SCHIEBER MILLINERY CO. 941 Pursuant to notice, the continued hearing was held at St. Louis, Missouri, on April 27, 28, 29, and May 1 and 2, 1939, before Samuel H. Jaffee, the Trial Examiner duly designated by the Board in the place of J. J. Fitzpatrick.' The Board, the respondents, and the Union 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. During the hearing the Trial Examiner denied the pending motions to dismiss the amended complaint and at the conclusion of the Board's case, the Trial Examiner denied a motion of the respond- ents to dismiss on the ground of insufficient evidence. During the course of the hearing the Trial Examiner made a number of rulings on other motions and objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are-hereby affirmed. Upon leave granted by the Trial Examiner, the respondents and the Union filed briefs which have been considered by the Board. Thereafter, the Trial Examiner filed his Intermediate Report, dated November 29, 1939, finding that the respondents had engaged in and were engaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recom- mending that the respondents return to St. Louis the business con- ducted at De Soto, and offer reinstatement to those persons who were employees of Schieber Millinery Co., on August 24, 1937, making whole said employees for losses of pay suffered by reason of the respondents' discrimination, and further recommending that Isaac Schieber cause the offers of reinstatement to be made. The Trial Examiner inter alia also recommended that Schieber Millinery Co., upon its resumption of business, if any, and Allen Hat Co., bargain collectively with the representative of a majority of the employees in an appropriate unit, and that Isaac Schieber cause such bargaining to take place.' On December 22, 1939, the Union filed exceptions to -the Inter- mediate Report. On December 26, 1939, the respondents filed their exceptions, and on January 15, 1940, a brief in support thereof. On February 12, 1940, pursuant to notice duly served on all the parties, oral argument, in which counsel for the respondents and the Union participated, was had before the Board at Washington, D. C. The Board has considered the respondents' brief filed in support of the exceptions to the Intermediate Report and has reviewed all the excep- 7 Isaac Schieber was the only witness to testify at the April 6 , 1939, hearing before Trial Examiner Fitz- patrick. Schieber later testified at length before Trial Examiner Jaffee. 9 The Trial Examiner recommended that no order be addressed against the trustees of Schieber Millinery Co. whom he found to have served "merely as representatives of Schieber Millinery Co. for purposes of service on that company." 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the respondents and the Union, and, to the extent that they are inconsistent with the findings, conclusions, and order set forth below, 'finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Schieber Millinery Co., a Missouri corporation, incorporated in 1932, was engaged in the manufacture, sale, and distribution of women's hats and headgear. Until on or about August 24, 1937, It,maintained its office and place of business in St. Louis. Schieber Millinery Co. then discontinued operations at its St. Louis plant, although continu- ing maintenance of its -St. Louis office, and removed to De Soto, Missouri, some 50 miles away. At De Soto, Schieber Millinery Co. continued the same business previously done at St. Louis until June of 1938 when it ceased opera- tions. On July 1, 1938, Schieber Millinery Co. assigned its assets for the benefit of creditors.' On January 1, 1939, its charter was for- feited, and, subject to rescission, the corporation dissolved, for failure to comply with certain provisions of Missouri law.lo Allen Hat Co. is a Missouri corporation incorporated on July 29, 1939, and formed for the purpose of acquiring the assets of Schieber Millinery Co. and enabling Isaac Schieber to continue. in business. Allen Hat Co. continued at De Soto substantially the same business formerly done by Schieber Millinery Co. The principal raw materials used by Schieber Millinery Co. con- sisted of ribbon, silk, felt, and velvet. From July 1, 1937, through June 16, 1938, Schieber Millinery Co. purchased approximately $60,623.24 in raw materials. During the same period its total net sales were approximately $127,321.17, and its products were sold through five or six salesmen scattered throughout the country. The respondent's bookkeeper testified that about 90 per cent of its pur- chases of raw materials, as well as of its total sales, crossed State lines. Although this percentage may not be accurate, it is apparent that more, than 50 per cent of sales and purchases were to and from points outside the State of Missouri.]' The respondents' attorney conceded that Schieber. Millinery Co. was engaged in commerce within the meaning of the Act. The precise purchase and sales figures of Allen Hat Co. do not appear, but it was admitted by the respondents that they were at about the same ratio as those of Schieber Millinery Co., and that 90 Y See Section III A, infra io Me Rev. Stat. (1929) Sections 4613-14-15-17-19, 4620. 11 These figures are based upon Respondents Exhibits Nos. 4 and 6 , and Board Exhibit No. 6 SCHIEBER MILLINERY CO. 943 per cent of Allen Hat Co.'s purchases of raw materials, and 90 per cent of its total sales were across State lines. II. THE ORGANIZATION INVOLVED United Hatters, Cap and Millinery Workers' International Union is a labor organization affiliated with the American Federation of Labor, admitting to membership through its locals, certain produc- tion employees engaged in the hat, cap, and millinery business in- cluding employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The chronology of events From 1934 to 1938 Schieber Millinery Co. was a member of Asso- ciated Millinery Industries of St. Louis, herein called the Association, an association composed of millinery manufacturers and jobbers, one of the purposes of which is "to adjust relations with labor."12 In 1933, acting for itself and its members, the Association 13 entered into a contract with the Union concerning wages, hours, and working con- ditions of employees of the respective members. The contract was thereafter renewed each year, after negotiations and resultant modi- fications. Schieber Millinery Co., although a party to these agreements, was reluctant to accept the Union as a collective bargaining agent. Union Representative Harry Fromkin 14 testified, and his testimony is un- denied, that he had a hard time maintaining a shop committee at Schieber Millinery Co. because negotiations with Schieber were a nerve-wracking job. In June of 1937, Isadore Pergament, Schieber Millinery Co.'s plant foreman, told Aleck Zembalist, an operator, that lie was too active in union committee work, that Schieber did not like this activity, and that he should mind his own business or quit his job. Pergament stated, "If you mind your own business and sit down, you have a job here as long as you want it." Zembalist resigned his posi- tion on the union price committee. Pergament denied none of the foregoing testimony. There is also testimony from Fromkin that in a conversation with him after the removal to De Soto, Schieber admitted that lie had caused the arrest of Fromkin's predecessor, because he was soliciting membership outside Schieber Millinery Co.'s plant and that on one occasion Schieber had locked out his employees telling them, "You can go to your Union and get paid by Max Zaritsky [International president]; I am through paying you any money." This incident appears to have occurred in or about March 1937. At Zaritsky's 12 Schieber Millinery Co continued to pay Association dues until January 24, 1938. 18 It appears that 37 St Louis manufacturers and jobbers were members of the Association in 1937. 14 International vice president and local manager of the Union. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intervention the employees were reinstated . Although Schieber later testified , he did not deny Fromkin 's version of the conversation. Schieber is quoted as having said to one union representative that he "wouldn't have any god damned old son of a bitch tell him how to run his business." Fromkin was characterized by Schieber as a "little bastard," and the Union International president as, "that little shrimp Max Zaritsky." Pursuant to the terms of the contract dated July 15, 1936, the Union notified the Association that modification thereof was desired as of July 15, 1937, the expiration date of the contract negotiated in 1936. On July 15, 1937, no agreement as to the modified contract had been reached. In the meantime Schieber , sole owner, and director of the business and policies of Schieber Millinery Co ., had been apprised by Union Representative Fromkin that the Union demands included both a wage increase and a, change from an open to an "all-union" shop. About July 15 Schieber called the employees together in the plant and informed them that under no circumstances would he operate under an " all-union" shop . He declared that rather than do so he would close his St . Louis plant, and move out of town, and that he already had a place in mind for his relocation . Schieber observed that an all-union or closed shop was a vicious thing, that the workers did not know what they were in for, that a closed shop would result in the Union obtaining the upper hand over the workers , that the Union was driving the manufacturers out of St. Louis , and the employees should be careful how they voted on the question. He asserted that all the Union wanted was dues and characterized the union representatives as racketeers. He suggested that his employees tell Fromkin that they did not want a union shop , and requested that they induce the Union to give him notice of strikes when impending, and that the employees give him such notice even without permission from the Union. He also asked whether the employees would stay with him should he decide to operate an open shop. As already noted, prior to July 15, 1937, the expiration date of the 1936 contract between the Union and the Association, the Union gave notice of its desire to modify the contract, and negotiations with reference to the new contract were instituted in June of 1937 . Several meetings between representatives of the Association and the Union were held, during which modifications of the earlier contract were agreed upon . The Union 's demand for a closed shop contributed to delay in reaching final agreement, and this demand was later modified to what is described as a "union shop." On August 7 Max Zaritsky, International president, attended a meeting of the millinery manufac- turers at which a large percentage. of the Association membership, including Isaac Schieber, was present . Zaritsky explained the mean- SCHIEBER MILLINERY CO. 945 ing of the "union shop115 and then left the meeting. The manufac- turers remained in session to discuss the proposed "union shop" provision. One firm suggested its acceptance, another that the Asso- ciation demand of the Union that enforcement of the provision be postponed for 6 months. Four firms stated as their positions that they would not be parties to a contract embodying a "union shop," but when the question was put, all present, except these four, voted for its acceptance. Schicber Millinery Co. was not one of the four dissenting firms. On August 11 another conference between committees of the Asso- ciation and the Union was held and a modified form of the "union shop" demand was agreed upon.16 It was also understood that the Association's committee would present the final contract thus agreed upon to the Association membership, and the Union conceded that any member desiring not to be bound could so indicate without relin- quishing his Association membership, provided, however, that the Union was given a list of employers claiming exemption within 24 hours after ratification of the contract. Accordingly, a draft of the contract was sent to the Association members and on Saturday, August 14, a meeting of all the manufac- turers was held in order to ratify the contract. At the start of the meeting George H. Sherman, Association president, who presided, advised the membership of the arrangement about exemption. Dur- ing the discussion of the contract Schicber took the floor to announce: "I will under no circumstances permit you to act for the Schieber Millinery Co. on the matter of the pending contract with the Union." Schieber forthwith left the meeting as did the representative of another firm who protested about the conduct of the meeting. A vote was then taken on a motion to accept the contract "with certain minor corrections if possible." Exclusive of the two who left the meeting, the vote indicated the position of the manufacturers as follows: for acceptance-15; against acceptance-3; voting "present"-l. The chairman thereupon declared the motion carried and the contract ratified." Later Sherman agreed with Union Representative Fromkin on certain minor changes which the Association president had been authorized to make. On August 16, in accordance with the prior understanding, Sherman wrote Fromkin enclosing a draft of the agreement and stating that the Association's counsel, who was authorized to sign the agreement, was then out of town and would sign when he returned. He also is As interpreted by him, manufacturers were to employ only union members for designated crafts, manu. facturers would call on the Union for new help (present employees were to become union members), and on failure of the Union to furnish new help within 24 hours, manufacturers would be free to employ non-union help who would be required to join the Union at the end of a 3-week period. 16 Under which regular non-union employees would be given until December 31, 1937, to join the Union i7 The matter of "certain minor corrections if possible" was not considered as in any way modifying the ratification of August 14. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrote that within 24 hours after the Union had signed the agreement, the Association would furnish it with "a list of manufacturers who had elected not to adhere to the contract although remaining at the same time members of our Association." Fromkin received this letter on August 16; that night the members of the Union ratified the agreement, and the next day the contract was signed by Fromkin on behalf of the Union and its locals. Fromkin then saw Sherman and requested the list of manufacturers desiring exemption. He acceded, however, to Sherman's request for an additional 24 hours in which to furnish the list. Sherman thereupon communicated with those firms, other than Schieber Millinery Co., which had voted against ratification at the August 14 meeting. He informed them of the list which he was to furnish to the Union and asked whether or not they wished exemption from the contract in accordance with the union concession presented at the August 14 meeting. With the exception of Baer, Sternberg & Cohn, Inc., the manufacturers informed Sherman that they did not desire exemption but would be bound by the contract. Samuel J. Margulis, then vice president of the Association," was delegated to telephone Schieber to ascertain whether he desired exemption. Margulis did so sometime between August 17 and August 20 and re- ported back to Sherman There is conflict, however, as to just what Margulis told Sherman. Sherman testified that Margulis reported to him that Schieber had said he did not want to be included in the letter and that Schieber felt "he might as well stay with the rest of the boys; he didn't want to go in on the letter." According to Sher- man, "The way we all took it he was going to go on with the rest of the boys in the city as he had in the past." It was Margulis' tes- timony that he had reported merely to the effect that Schieber "didn't want to be in on the letter." The Trial Examiner in his Intermediate Report found that Margulis did not, in fact, tell Sherman that Schieber felt "he might as well stay with the rest of the boys." The Trial Examiner's analysis of the evidence was that Sherman had sim- ply implied from Margulis' statement that Schieber "didn't want to be in on the letter," that Schieber "was going to go on with the rest of the boys." Such was a reasonable inference, under the circum- stances, and there is testimony indicating that Margulis, himself, may have reached the same conclusion.19 In any event, it is clear that Margulis did not reach the conclusion 18 Now Association president i Schieber in substance testified that when Margulis asked him whether he wished to be included in the letter as not bound by the contract he replied that he stood by his action at the August 14 meeting, had not changed his mind since, that the Association was not representing him in the matter, and that he did not want his name included in any letter We do not credit Schieber's testimony that he told Margulis he would stand by his action at the August 14 meeting From his observation of Schieber on the witness stand, the Trial Examiner concluded that he was "shifty and evasive " The record amply supports the conclusion that Schieber was not a credible witness SCHIEBER MILLINERY CO. 947" from his conversation with, Schieber that the latter intended to be exempt from the contract'." 'On AugustOthre "Umon complained that Schieber Millinery Co. had violated the new,dontract by discharging and locking out its employees and, pursuant to the terms of the new contract, called a meeting of the labor committee.20 Margulis, who was present, said nothing whatever to indicate that Schieber had earlier told him that the Schieber Millinery Co. was not to be bound by the contract. To the cgntrary, as the Minutes of the August 26 meeting indicate, Margulis obviously assumed the company had been included in the contract. The conclusion'is inescapable that, what- ever Schieber may have told Margulis, he did not make apparent to Margulis that his company was not to be bound by the contract, but merely made it clear that he did not want to be listed as refusing to be bound. Under all the circumstances of the case, it is a fair infer- ence, and we find, that Schieber intended to deceive Margulis as to his true position, and thus made clear to Margulis only the fact that the Schieber Millinery Co. did not want to be listed as refusing to accept the contract. As a reasonable man Margulis then inferred that, not wishing to be so listed, Schieber was willing to be bound. We find, moreover, that Schieber reasonably believed that Margulis would draw such an inference from what Schieber told him.21 As a result of Schieber's representations to Margulis, Sherman reasonably assumed on August 20 that Schieber had decided to abide by the contract. On that date, after the contract was signed, the Association wrote all of its member manufacturers enclosing a final draft of the contract and referring to minor changes which had been made in accordance with the authority earlier conferred. The expira- tion date of the contract was fixed at July 15, 1939. At the time that negotiations between the Association and the Union began in June 1937, one of the Association members, Baer, Sternberg & Cohn, Inc., operated a millinery plant in De Soto, Missouri, in addition to its plant in St. Louis. Schieber, who believed that De Soto was a strong "non-union" town, began negotiations fate in May with Baer, Sternberg & Cohn, Inc., directed towards purchas- ing its De Soto plant and moving Schieber Millinery Co. there from St. Louis. The negotiations thus commenced were carried on through- out the period of negotiations between the Association and the Union as to the contract. Although it is not clear whether or not Schieber had definitely made up his mind to move by July 15, 1937, the day Schieber called his employees into a meeting with reference to the 20 Article 15 of the contract provides inter atia that complaints arising under the contract , shall be referred to representatives of the Union and the Association known as the "Labor Board," and also called the "Labor Committee " Article 15 thereof prohibits lock-outs 71 It is entirely clear that Schieber at no time intended that Schieber Millinery Co should be bound by the contract As appears below, he had at the time of the foregoing events already decided to move his business to De Soto, Missouri , for the purpose of avoiding any contractual relations with the Union, and any collective bargaining with it. 948 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD closed-shop provision of the contract as set forth above, it is certain that Schieber had definitely decided to move to De Soto by August 1, 1937 . On that day he gave notice to his landlord in St. Louis of his intention to move out within 30 days and, although negotiations with Baer, Sternberg & Cohn, Inc., were not completed on August 1, Schieber felt confident by that day that the negotiations would be successfully consummated '. It appears from the record , nevertheless, that with the exception of Baer, Sternberg & Cohn, Inc., members of the Association were not aware of Schieber 's intention to move, nor was the Union . Although during the middle of August rumors were current among the Association members that Schieber had been negotiating with Baer, Sternberg & Cohn, Inc., there is testimony indicating that the Association had no knowledge of the negotiations other than these rumors until later in the month . Despite the fact that at the July 15 meeting with his employees, Schieber informed them that he would move out of town rather than agree to a closed shop and that he had a place in mind to which to move, it is indicated that the employees considered Schieber 's statement merely as a threat and that neither they nor the Union had any facts on the subject beyond this statement. As noted above, Schieber on August 7, 1937 , attended a meeting of the Association and was present during negotiations between the-Association and the Union with reference to the new contract. Schieber at this meeting said nothing to indicate that Schieber Millinery Co. was going to De Soto, nothing to indicate that Schieber Millinery Co. did not wish to be included in the contract , and said nothing purporting to revoke the authority of the Association to act for Schieber Millinery Co. in , the negotiations with the Union. It was not until on or about August 14 that the De Soto deal was closed or virtually closed. It was on this day that Schieber made an an- nouncement at the Association meeting purporting to revoke the Association's authority, and Schieber testified that at that time his "deal was cooked," that be had "virtually bought" the 'D^ ^ Soto plant and was " almost ready to move." Schieber testified that consequently he had no interest in the negotiations but participated in them merely because "he still owed the manufacturers here a little allegiance." Even then it was not generally known that Schieber Millinery Co. was imminently to move, and the Union was not aware of the removal until the day before it actually took place: Thus, on August 17, being informed that a non-union man had been hired at the Schieber plant, Fromkin visited the plant and complained to Perga- ment, shop foreman (Schieber then being absent ) that hiring a non- union man was in breach of the contract with the Union; that under the contract Schieber Millinery Co. was required to hire new workers through the Union. Pergament agreed to let the new man go. On SCHIEBER MILLINERY CO. 949 Saturday, August, 21, Fromkin was informed that one or two of the Schieber employees were working,in violation of the contract provision forbidding Saturday work and again visited the plant. Rosenberg, vice, president of Schieber Millinery Co., and Pergament were then present; and Fromkin complained to them of the violation. Rosenberg explained that the men were working on samples and that be was under the impression, that such ,work was permissible on Saturday. "Rosen- berg asked [Fromkin] not'to be too hard on the boys, because it was strictly a, misunderstanding on, his part." Fromkin thereupon left the, plant with the two Saturday employees. .0n ;or about August 24 Schieber's negotiations with Baer,,,Stern- berg & Cohn, Inc., were completed and, on the,same day, the effects of this transaction were made known to the employees of Schieber Millinery Co.- Nora Baumann, one of the employees, testified .that Pergament said, the company was moving out- of town; that there was no more, work. Maple McNeece testified to the same effect. Employee George Bailery testified that Pergament said the company was not going to continue to make hats'in St. Louis; that it was moving out of town to avoid trouble with the Union. To this extent the testimony was uiicontradicted and, we accordingly find that Pergament made the remarks attributed to him. , There is, however, considerable disparity as to whether or not the St. Louis employees .were offered work in De Soto, and, as alleged by the respondents, whether they refused such work. , The testimony of Schieber and Pergament to;the,point is unsatisfactory. 12 Ten witnesses called by the Board to testify about the alleged offers of employment at De Soto disputed the versions of both Schieber and Pergament. Eight testified that they received no offers what- 22 Schieber testified that he talked to one or two employees about going to De Soto and instructed Perga- ment to invite others, Schieber then added that he talked to two or three of the blockers and one or two of the operators , he named three blockers, one sof them since deceased , he commented that he asked these employees if they would like to go to Do Soto and they replied that they did not thmk ,so Schieber later inconsistently testified that he offered employment to one or two employees in each department , and that lie did not remember who these employees were, that he did not select individual employees but made the offers in casual conversation and that he had left the matter to Pergament Pergament's testimony was especially contradictory and evasive Pergament stated that he offered positions to "quite a few of them," and that none wanted to go; Pergament next asserted he offered jobs in De Soto to "all my old people," explaining that he had been a foreman for other shops in St Louis , and that some of Schieber Millinery Co employees had worked under him in these other shops for 10 years or more , and that by "old people" he referred to such employees Pergament commented that he offered jobs "to around 15 or 18 or 20". thereafter Pergament designated three employees he claimed were offered jobs It is to be recalled that Schieber named three in all, one deceased In other context Pergament claimed he asked "ten or twelve girls I raised In all Pergament specifically named eight employees , asserting his memory for names was had Four of the named employees were witnesses who flatly contradicted Pergament , two of the employees contradicting him were at the time of the hearing working under Pergament at another plant in St Louis In meeting the testimony of several other employees, that no jobs were offered them , Pergament observed on the stand as to some that he did not remember them at a11, as to others that he did not remember whether or not he , offered them jobs , and as to the balance , that he made no offer at all But Pergament insisted that "every- body turned me down", that the employees did not want to leave St Louis Frank Bickle , Edward Par- rott, and Wolford Hudson, employees called by the respondents , testified that Pergament had offered them employment in De Soto and that they had refused it One of these , Frank Bickle , said that Pergament's statement was that the company wanted to take some help along and that Pergament had chosen Bickle if Bickle cared to go. 323429-42-61 950 DECISIONS OP NATIONAL'' LABOR ' RELATIONS BOARD soever. One; Harry, Faintich,' testified -that Pergament' offered him and Allen Bagwell; another employee, jobs in De'Soto, but added that if they accepted they would never be-able to get a job wherever there was a union. "In other words," commented Faintich, "he made' it clear tome to go down'as'non-union members." Faintich also testified that Schieber made the same proposal to him.' Employee Meyer Millstone testified that he asked Pergament for' a job iii' De Soto; 'that Pergament replied he'would take him' on' but' did not do'so; and that about 2 days thereafter Millstone urged Schieber to' give' him a job without an offer being made to ' him, and that` upon meeting Perga- ment'about`a week after the removal to De Soto he reminded Pe'rga- merit of 'his promise and `Pergament replied that' Millst'one'"wouldh't work' for the mon'o' we are paying"'in De Soto, and,' moreover, they "wouldn't hire any union men." About the same time Mill'store testified he also'saw Schieber again and the latter said, he "wouldn't hire any union man; that he only would employ' people what he, got over there"; that "he has got 'all the' people from' Dc Soto, Missouri and'he wouldn't employ anybody from St. Louis." ` Schieber did' not testify to conversations with either Faintich or Millstone. Pergament did not testify in respect to Millstone's asser-, tion but denied that he offered Faintich a job.23 We find, as did the Trial' Examiner, that the statements attributed to Schieber andPer- gament ' were made by' them. ' Significantly' it is Schieber's own testis niony "that " there was a ' genet al understanding" with the 'town of De Soto that "natives of 'D'e Soto" would be 'employed. Schieber, moreover, testified that when Schieber Millinery Co. moved to Do Soto it acquired those employees formerly employed by Baer, Stern- berg & Cohn. Considering testimony already noted above that De Soto was' known to be a "non-union" town, and that Scbieber's under- standing to employ natives of De Soto was reached with a corpora- tion acting for the municipality of De Soto,24 we find that Schieber intended to give De Soto employment to few if 'any of his former employees, and did not in fact offer in good faith to employ the St. Louis employees of Schieber Millinery Co. at De Soto.25 23 Asked by respondent's counsel . "Did you ever say 'I would like to have you come to De Soto, but if you do, remember you will be blackballed by the Union and you will lose your Union stand- ing'?" Pergament replied, "I don't remember " Pergament contradictorily later testified that he did not offer employment in De Soto with the understanding that the employees should quit the Union He ex- plained the inconsistency in his testimony by indicating 'that lie had misunderstood the first question put to him. '4 The building in which the De Soto plant was located was owned by the De Soto Development Com- pany, a municipally owned corporation set up by the town of De Soto for the purpose in part at least of attracting new industries to the town. The property had been leased by De Soto Development Company to Baer, Sternberg & Cohn, Inc., from which Schieber Millinery Co acquired the lease . The Development Company paid all taxes and exacted but a nominal rent-$250 a year It is clear that Schieber Millinery Co. moved to De Soto under the common inducement offered by non-union communities See 36 Col. L. Rev. 776, 779 23 It is a fair inference that, with the possible exception of the three witnesses called by the respondents, any others who received offers received them subject to the condition that they drop out of the Union. ' ' SCHIEBER MILLINERY CO:- 951' Froinkin''appeared at -the' 'plant on' August' 25 and to'ld"Rosenberg that the shut-clown constituted' a lock-out in breach of the contract. Being unable to locate' Schieber, Fromkin'arranged with the Associa- tion for a meeting of the labor committee, and next morning sent a letter by messenger requesting the company to appear, at, the meeting to be held that day. No representative of Schieber Millinery Co. ap- peared, however, and the ineetmg was adjourned, by Margulis in order that he might consult with Schieber'.26 Schieber later told Mar- gulis'that he was "not interested" iii the Association and would not meet with the committee since he had "no contract" with the Union. On August 25, 193,7, Baer, Sternberg & Cohn, Inc., sold its machinery, furniture, and fixtures at De Soto'to Isaac Schieber.1.7 Within a few days Schieber Millinery Co. began' operations at De Soto, using the former employ'ees' of Baer, Sternberg & Cohn, Inc., in the plant. On or about September 15, 1937, the Union filed a petition for_ an injunction in'the Circuit Court of'the city of St. Louis, alleging that Schieber Millinery Co:, Isaac Schieber, and Rosenberg were violating the contract by the lock-out and removal of the plant and praying for an order restraining' such violation.28 A hearing in the Circuit court was held on September 24, and after its conclusion Schieber met Fromkm and' his attorney at the 'Mayfair Hotel in St. Louis. Fromkin testified that Schieber then said: now that he was through'with the trial in so far as the civil suit was concerned, he was satisfied there was nothing that the' Union could possibly, do to touch him in any way, shape, or 'iriahner, in so far as unionsun is concerned. He went' on to say', that "While I had at all times had a large percentage of my workers as members of the Union, I have been' fed'up with it, and I have been looking for an opportunity to, get out from under', because it was getting unbearable, and now that I have found this, place in De Soto, Missouri and the city [St. Louis] is over with, I am satisfied I can go on with my business without 26 Schieber testified that he received Fromkin 's letter and ignored it. 27 Schieber 's consideration was $3 ,000, of which $500 was paid in cash and the balance in 25 monthly notes of $100 each secured by a chattel mortgage Schieber leased these chattels to Schieber Millinery Co for a consideration of $100 a month . Schieber Millinery Co. also took to De Soto most of its own machinery and fixtures 29 Prior thereto, on August 30, 1937, the Union filed charges with the Board Neither the filing of the petition nor the decree later entered thereon barred the Union from asserting its rights under the Act It is fundamental that the doctrine of election of remedies is applicable only where there are two or more coex- istent remedies available to the litigant which are repugnant and inconsistent ' Pacific S- S Co v Peterson, 278 U S 130, 49 S Ct 75, Zimmerman v Harding, 227 U S 489, 33 S Ct 389, Robb v Nis , 155 U S 13, 15 S Ct 4 The rule, of course , does not apply where the remedies are merely cumulative , Pierce v . United States , 255 U. S '398, 41 S Ct 365, or where the remedies are for the enforcement of different rights or the redress of different,wrongs , United States v. Rizzo, 297 U. S 530, 56 S Ct 580 Where a new remedy is provided by statute for an existing right, not incompatible with the continued existence of an existing remedy, the new remedy is i'egarded as cumulative and'the person seeking redress may adopt and pursue' either at his option , Shriver v. Woodbine San Bank , 285 U S 467, 52 S Ct 430 Moreover, the Board was not a party to the Circuit Court proceeding and its remedy redresses wrongs declared by Congress to be public and not private. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being bothered further, because neither you or that little shrimp Max Zaritsky. [President of the, International Union] can do anything which would : organize the people out in De Soto Missouri."" Fromkin further testified: I recall him making the following statement, that for a long, while, for a long time lie tried to find such a place as what he now has in De Soto, Missouri, in so far as unionsim in the plant is concerned, so he can get away from a union plant, now that he found it [sic] feels, certain there is not anything I could do which would change the status of those workers in De Soto as far as membership in the Union is concerned, and if I ever 'came into De Soto I would be out much faster than I can possibly drum of. Schieber did not deny having made these statements," and we find them to have been made by him substantially as set forth above. On May 23, 1938, the Circuit Court of the city of St. Louis in effect found that the defendants were violating the contract with the Union in continuing to,lock out the employees who had been employed on August 25, 1937, and ordered that the defendants undertake collective bargaining with the Union "in the City of St. Louis" in accordance with the contract. It also ordered the defendants to place the locked- out employees in status quo by immediately offering them reinstate- nient,,through the Union, and employing them to the extent of work available. On or about June 1, 1938, Schieber Millinery Co., after failure to comply with the order of the Circuit Court, discontinued its opera- tions. In explaining this, Schieber testified that since the firm was in "financial difficulty" he started negotiations with his creditors early in June in an attempt to effect a settlement with them. During June Schieber went to New York, where most of the creditors were situated, and there discussed the possibility of an adjustment with Ribbon, Silk & Velvet Association, Inc., an organization representing these creditors. The latter Association then requested Sidney I. Cohen, a certified public accountant and its St. Louis auditor, to make an audit of Schieber Millinery Co.'s books. Cohen, although also the auditor for Schieber Millinery Co., proceeded to comply with this request. On June 16, 1938, Cohen submitted a report listing Schieber Millinery Co.'s liabilities at $21,246.06 and assets at a book value of $22,031.17. Cohen, however, estimated their realization value as only $8,970 73. He listed preferred claims against the company at $1,548.60, leaving as "net free assets" $7,422.13, or 37.68 per cent of the general claims. Cohen's report recites that it was prepared in 29 See Section III D, 3n(ra 30 A witness called by the respondents indicated that he had no particular memory of the conversation, although present through a small part of it. SCHIEBER MILLINERY CO. 953 haste and was based upon the books and records examined, and the information furnished, and that it does not presuppose a direct verifica- tion of assets and liabilities. Cohen testified that the assets' were appraised at "quick sale" figures.31 About June 20, 1938, the Ribbon, Silk & Velvet Association, Inc., decided to accept Schieber's 30-per cent offer -of settlement on con- dition that the St. Louis creditors should also agree. Harry Gleick, 'attorney for a creditors' association at St. Louis, then conducted a meeting of the St. Louis creditors, at which the 30-per cent offer was rejected. Thereupon Gleick insisted on the making of an assignment for the benefit of creditors. On July 1 Schieber Millinery Co. voted to make the assignment and executed the same. One Robert Mass was named as assignee, and Gleick was named 'attorney for the assignee. By the terms of the assignment the corporation conveyed all its assets to the assignee who agreed to liquidate them as soon as expedient and, after deduction of expenses, taxes, and fees, to dis- tribute'' the balance ratably ' to- creditors. The assignee, however, 'agreed not to confirm any sales unless the creditors should net at least 30 per cent of their claims. Pursuant to the assignment, the assignee took possession of the assets; caused' an 'appraisal to be made, and advertised a sale of the physical assets at public auction on July '5. The auction was con- ducted by a public auctioneer at the De Soto plant and several prospective purchasers were present The machinery, fixtures, and merchandise were knocked down to an attorney 'associated with counsel for the respondents, whose bid-of $1,500 was in the name of one William Levitt, who in turn was acting for Isaac Schieber. Schieber admittedly planned, to bid in the assets if possible and con= tinue the business as a new corporation. Within a day or two there- after, the assignee sold the accounts receivable, reported by Cohen as having a stated 'value of $8,279.66, to Isaac Schieber personally for $3,197.13. -In addition thereto, collections had beer' made on the receivables prior to the sale and there' was cash on hand totaling $2,270.51. The total thus realized by the assignee was $7,467.64.32 About July 7 the assignee, after deducting expenses and fees, paid the preferred claims in full and distributed to the general creditors a first and final dividend of 30 per cent. The balance of 70 per cent remained due. As already noted, prior to the" assignee's sales Schieber had deter- 3I The largest items of difference between book and appraised' values were in dies and blocks and the machinery and equipment The dies and blocks had a stated value of $6,707 72 They were appraised, however, at only $100 The machinery and equipment had a stated book value of $4,315 99, but were appraised at only $600 32 There are large withdrawals from the Schieber Millinery Co. bank account between June 16 and the date of the assignment , which are umnvestigated and unaccounted for by either the auditor , the assignee, the assignee's attorney , Schieber, or Scbieber's bookkeeper . The Trial Examiner found that the assignment was involuntary , although he observed that it was surrounded by "suspicious circumstances." 954 DECISIONS Or NATIONAL LABOR RELATIONS BOARD mined to form Allen Hat Co: in order, to continue business. The, assignee's bill of sale,of the accounts receivable ran to I. Schieber, but the list of accounts attached thereto referred to Allen Hat Co. as the purchaser. Allen Hat Co., however, was not incorporated until several weeks later, on July 29, 1938 33 In order to'get, cash for his purchases and for the new company, Schieber arranged to have $2,000, borrowed from his attorney. This loan was effected by a check from the attorney payable to the order of Schieber's wife, who endorsed the, check in blank. Schieber also borrowed $750 from Levitt, a nephew by marriage; $500 from one Carafoil, a brother-in- - I law; $400 from his bookkeeper; $200 from one Lazarus;, and an undisclosed amount from his brother, Jacob A. Schieber. , ; Of, the 100 shares,issued, by Allen Hat Co , 90 went to Schieber's wife, 9 to Schieber's brother, and 1 to Lillian L. Coxwell, Schieber's nominee. , Assuming that Mrs. Schieber's contribution was the $2,000 borrowed from Isaac Schieber's attorneys, her consideration for the stock issued to her would account for only, 20 shares, since, each has a par value of $100; it thus, appears that Mrs.Schieber received 70 shares above her purported contribution. As to, this, Isaac Schieber testified in substance that the extra 70, shares were; a gift from, him. After first, stating that this,gift, was,prompted by,,affection, Schieber later added that the loan from, his attorneys would not have, been made unless ,Mrs. Schieber received a substantial majority of the stock. Schieber further, testified that the nine shares acquired by his brother, Jacob Schieber, ,were given him' in consideration of an old debt of $1,000. The. Trial Examiner did not credit this testimony, nor; do we., It further appears, that Schieber, through his. nominee, acquired but one share of stock for his apparent contribution of sub- stantially, all the,assets.3' , Upon the incorporation of Allen Hat Co.' on July, 29, Schieber leased to the Allen Hat ,Co. that part of ^ the, machinery and fixtures which had previously been. purchased in his name, from, Baer, Stern- berg & Cohn, Inc. About the same time William LevittI signed a bill of, sale for the machinery, fixtures,, and merchandise purchased, at the auction sale, transferring property, in them to Allen Hat Co. Allen 33 The articles of association of Allen,Hat Co show an authorized capitalization of $15,000, divided into 150s hares of a par value of $100 , and that 100 shares were issued for the assets listed as follows Cash, $1,459, receivables , $5,741, macfiineri and fixtures , $1,500, merchandise, *$ 1,300, totaling $10,000. These figures show a large mark-up on Schiebgr 's purchases from the assignee. Receivables which had been purchased for $3,197 13 were valued by the new corporation at $5,741., Machinery, fixtures, and merchandise which had been purchased at the auction for $1,500'were valued at $2,800 J4 We do not believe that the $2,000 was Mrs Schieber's contribution but find that it was lent by Schieber's attorney to him The following testimony summarizes Mrs Schieber's relation to Allen Hat Co Q And what connection does she have with the Allen Hat Company' A She is a stockholder, an officer and director Q And what does she have to do with the management of, the Company? A. She leaves that to me Q. And you manage and direct the affairs of the Allen Hat Company yourself? A. That i' right , , , 1 1 SCHIEBER, MILLINERY Co.. - 955 Hat ,Co; then started ,operation, at the De: Soto plant of ,the same business, previously, conducted by Schieber Millinery.Co.35 The plant had, bee,n,closed for a period not exceeding 2'mbnths. -.'B. The refusal to 'bargain collectively 1. The appropriate unit It was stipulated at the hearing that all production employees en- gaged in the operations of blocking, cutting, operating, making, and trimming; but ,ex'cludin'g foremen, foreladies;supervisory employees, and designers, employed by the 'respond'ent Schieber Millinery Co.•,at its St.'Louis plant 'constituted a unit' of einpioyees' appropriate for liurposes of'collective'bargaiiung within the meaning of Section .9 (b) of the, Act.36 "Although thel respoiide'nts contend' `th'at the employees within the above unit, as stipulated ceased to be employees' of,'the respondents after 'the lock-out 'and removal to Do Soto, this contention'is withoiit merit since the employer-employee relationship was not terminated' by acts of the respondents hereinafter found to constitute unfair labor' practices' and the employees within said unit continued to be and are now the employees' of the respondents within the meaning of the Act. We find that all' the production employees of the respondent 'Schie- ber Millinery Co. engaged in the operations of blocking, cutting, oper- ating; 'making,` and trimming, exclusive ' of ''foremen, foreladies, and supervisory employees, at all times material herein constituted and' that they now constitute a unit appropriate for the purposes of col- lective bargaining with ' respect' to rates ' of pay, wages, hours 'of em- ployment, and other `conditions 'of' employment,' and that said unit insures to the employees 'of the"repondents, the full benefit of their, right. to self-orgaliizatiofi and to 'collective bargaining and otherwise effectuates the policies. of `the Act. . I "I i . I 2. Representation by the Union of the majority, in the, appropriate; unit "It was "stipulated that at -least .98' per cent of the production em- ployees' at the St. Louis plant'from June 1, 1937, to-the time that' the plant' was closed, were members of the Union and that) since' the' closing''" up' to the present' time" all but six' or seven of, them con'- timed as union members. ' The employees included in the appropriate unit averaged approximately 40 in'number. 33 Schieber testified that after the removal to De Sotb,'operations there were substantially'the same'as' before, that the salesmen were substantially the same ; 'and that the business was substantially the some as' that formerly conducted at St Louis. He further testified that with little variation,,the hats made by Allen, Hat Co , after its incorporation , were of the same grade and quality and sold to substantially the sane cus- tomers as the hats made by Schieber Millinery Co 3e Counsel for the respondents stated "we want it distinctly understood that •they constituted a unit as long as they were working for us. We don't want to admit that they were any employees after we went out of business 956 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD We find that on June 1, 1937, and at all times material herein, 'tlie Union was the duly designated representative of the majority of the employees in the appropriate unit for the purposes of collective bargaining, and pursuant to Section 9 (a) of the Act,,was the exclusive representative of all the employees in such unit for purposes of collective bargaining. 3. The' refusal to bargain The amended complaint alleges that the respondents since on or about June 15, 1937, have refused, and continue to refuse, to bargain collectively with the Union in respect to rates of pay, wages, hours of employment or other conditions of employment. We have already noted the circumstances surrounding the Union's negotiation of the 1937 contract. Schieber prior thereto began his efforts to acquire the Dc Soto plant, of Baer, Sternberg & Cohn, and had determined to remove from St. Louis to this "non-union" community. Throughout negotiations with the Union, Schieber concealed from both the Asso ciation and the Union his intention to remove the plant from' St. Louis and to avoid collective bargaining. Thereafter he breached the agreement, and refused to meet with union representatives for the purpose of discussing the violation' thereof. As already noted, the Circuit Court for the city of St. Louis found that Schieber Mil-, finery Co. had violated the agreement, and ordered that it undertake collective bargaining with the Union. There was rio compliance with this order. The respondents raise the following contentions: (1) that the Union made no request of the respondent to bargain, and hence there could have' been no refusal; 3' (2) and that, if it is found that Schieber Millinery Co. was bound by, the 1937 Contract,"' there could be no refusal to bargain collectively since the goal of collective bargaining had been reached. Schieber was present at the' August 7, 1937, and other meetings after he had already made definite his decision to go to De Soto; and during, these, negotiations concealed his purpose by actively, partici- pating therein while planning to move his plant, to avoid the -Union. It, is ;apparent, . therefore, that during these negotiations Schieber failed to make a bona fide attempt to reach an agreement with the 'bargaining representative of its employees.' -Instead; he sought to lull the Union into a false sense of security by maintaining a. pretense of participating in the bargaining negotiations and of being bound by the resultant contract until he had fully perfected his plans to move e7 In support of this contention the respondents cite the decision of the Supreme Court in National Labor Relations Board v Columbian Enameling & Sta7apeng Co , 306 U S 292 But that case is not apposite here Not only had the Union given, to use the language of the Supreme Court, "some indication . of the desire or willingness to bargain," but Schieber participated in negotiations iesulting from the Union's request to modify the 1036 contract and during most of the negotiations pi for to the renewal of that contract, Schieber was present and took an active part. 19 This the respondents deny. SCNIEBER MILLINERY CO.- 051 away from,St. Louisa, There can be'no doubt that the 'respondent 'is obliged by the terms of the, Act to 'enter-into real bargaining and not a, chimerical substitute:' ' Real bargaining means' negotiation,'in ,a -bona .fide attempt to reach an , agreement. if agreement -is possiblei.39 Atinoi time during, the 1937 negotiations, did Schieber int6nd-,to- deal withi the Union in good faith. There is'no substance to. the, argument that :after , the shut-down-of the St. Louis plant ' and the,removal, to De .Soto the ,Union was under further duty to request collective tbar- gaining: ' On August 26, following the lock-out of the St.--Louis em- ployees" the Union did in fact request Isaac Schieber to meet with' the labor committee, as piovided by the contract between the Union and the Association. We leave repeatedly held that when the employer has committed an unfairlabor practice by closing its plant and locking oiit its employees it is not relieved of its obligation to bargain collec- tively because of the shut-down.40 Under • the circumstances. of this case, which. reveal' that Schieber. Millinery Co: and Isaac Schieber removed, business operations to a non-union community in, order, to avoid dealing with the Union, we do not deem a further.request••to bargain on the part of the Union necessary, and deem it controlling that Schieber by his prior conduct had demonstrated the futility of such a request.41 Equally specious. is the,respondents' second objection tliat,;if' it were bound by the contract-there could' not be a violation, of Section 8 (5) of the Act since the,end and purpose. of collective, bargaining had been achieved.42 There is no doubt that Schieber was bound,by,the 39 Matt er of Atlas'Mille, Inc and Textile House Workers Union, No 2269, United Textile Workers of Americii, 3N.L R B 10,21 ' , 40 Matter of Omaha Hat Corporation and United Hatters, Cap & Millinery Workers International Union, Local Nos 7 and 8, 4 N L R B 878, Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N L R B 486, Matter of American Radiator Company, a corporation , and Local Lodge No 1770, Amalga- mated Association of Iron, Steel, and Tin Workers of North America, affiliated with the Committee for Industrial Organizations, 7 N L R B 1127, Matter of Kuehne Manufacturing Company and Local 'No 1791,- United Brotherhood of Carpenters and Joiners of America, 7 N ` L R B 304, Matter of Edward F Reichelt, Robert J Hill and Russet J Jensen, doing business as a co-partnership under the name and style of Paul A Reichelt Co and Chicago Fur Workers Union, Local No 45, 21 N L'R B 262 • In Matter of Kuehne Alanufacturinp Company, etc supra, 321 ne stated. Since we have, found that the closing of the Flora plant involved a discriminatofy lock-out, the shut- down did not relieve the respondent of its obligation under the Act to bargain with its employees or their duly chosen representatives Obviously, the respondent can neither rely upon; its own wrongful "abandonment" of the plant as an excuse for its refusal to bargain collectively with the Union, nor argue with good grace that such bargaining would have been fruitless I ' - !i On. August' 26 Schieber refused to discuss the'Union's charge that Sebieber Millinery Co had breached the contract on,the ground that so far as the company was concerned there was no contract at all What respondents urge m effect is-that even though the Schieber'Milluiery Co employees'were discharged and locked'out, even though it was made obvious that they would not be relined, at least as union employees, even though the company ran away to evade the Union, to avoid the necessity for bargaining with it, a further request should have been made after the runaway to De Soto. 4i In National Labor Relations Board v The Sands Manufacturing Company, 306 U S 332, 342 [af 'g 96 F. (2d) 721 (C C A 6), setting aside on other gi ounds Matter of the Sands Manufacturing Company and Mechan- ics Educational Society of America, 1 N L R. B. 546], the Court stated "But we assume that the act imposes upon the employer the further obligation to meet and bargain with his employes' representatives respecting proposed changes of an existing contract and also to discuss with them its interpretation " Cf Matter of Essex Wire Corporation and United Electrical, Radio and Machine Workers of America, Local No 797, 19 N L. R B 51. - 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, as the Circuit Court for the city of St. Louis found. The mere. fact that a contract existed, however, does not bar us from -a consideration of,the facts showing that Schieber had no intention of dealing with the Union in good faith. We deem it certainly a•vio- lation of the Act for-an employer to engage in conduct demonstrating a,continuing intent,not to comply with a collective agreement and to refuse,to ,discuss continued- violations thereof.43 As the Circuit Court for the city of St.; Louis found, Schieber refused to adjust disputes arising under the agreement by which he was bound.44 We agree with this determination. Such refusal was both a violation of the agreement and of the Act. We find that the respondents'since August 1937, and at all times thereafter, refused and are refusing to bargain collectively with United Hatters, Cap and Millinery Workers International Union as the exclusive representative of their production employees, in respect to rates of pay, wages, and hours of employment, and other conditions of employment, and have thereby interfered with, restrained, and coerced and are interfering with, restraining, and coercing these employees in the exercise of the rights guaranteed by Section 7 of the Act. 6. 'Discrimination as to hire and tenure of employment The ,complaint alleges in substance that the discharge of the St. Louis employees on or about August 25, 1937, and the removal to De Soto' constituted a discriminatory lock-out, that this was followed by, a discriminatory refusal to reinstate the employees, and that these acts were done by Schieber Millinery Co. and Isaac Schieber to avoid bargaining with the Union; that the assignment for the benefit of creditors following closely after the Circuit Court of the city of St. Louis decree against the defendents, and the later formation of Allen Hat Co., comprised part of the same integrated scheme to evade the Act which resulted in the lock-out, the removal to De Soto, and the refusal to reinstate the locked out employees. The respondents urge in substance that the removal to De Soto was for legitimate business reasons, primarily to obtain the benefit of lower production costs and cheaper rents and that the employees were offered jobs in De Soto but refused them. It is apparent, as was found by the Circuit Court of the city of St. Louis, that the 1937 contract bound Schieber. Millinery Co. despite its lack of good faith throughout the negotiations.45 We have i7 We have reference to the breach of Section 13 of the 1937 agreement countermanding strikes and lock- outs and Sections 14 and 15 providing for arbitration of alleged violations of Section 13. i+ The implications of the respondents ' contention would make static the continuing process of collective bargaining. ii The decree of this Court, of course , is not res adjudicata on the issue since the National Labor Relations Board was not a party to the proceedings Compare Matter of the United States Stamping Company and Enamel Workers Unoin, No 18630 , 5 N. L R B. 172, 185, Matter of Williams Manufacturing Company, Portsmouth, Ohio, and United Shoe Workers of America, 6 N. L. R. B 135, 143-4. SCHIEBER 'MILLINERY CO. ' I '. ' 9591, already observed that the Union was not notified and had received' no knowledge that the authority of the Associated Millinery Industries- of St. Louis to act for Schicber Millinery Co had been revoked. 'Thus the Association continued with ostensible or apparent authority to dear with the Union on behalf of Schieber Millinery Co." Moreover,-even: had these circumstances not resulted in Schieber Millinery Co. becom-' ing a party to the contract, it must be deemed by acts subsequent there to to have affirmed and ratified the contract. While it may be true that the removal'to De Soto was motivated in part by ordinary business reasons, 47 it is clear that there were, other factors of more immediate importance to Schieber. " The,follow- ing testimony of Schieber is noteworthy in this connection: Q. And at 'Dc Soto, you understood then, did you, that there, would be no union? A. Yes. Q. When did you first become aware of 'the fact that there would be no union at De Soto? A. That we' always knew. Q. What part, if any, and if any part, to what extent did the fact that there was no union at De^Soto'have a bearing on your moving to De Soto? A. I cannot say that. I don't think in actual fact it had a hell of a lot to do with it, but I knew I could operate cheaper there. Q. Did it have something to do with your moving? A. I couldn't say. Q. Do you deny it had something to do with it? A. I couldn't gauge it and I am not a psychiatrist. Schreber's grudging admission that the union activity of the St. Louis employees was a factor in the removal of the plant is better understood in the light of his conduct at the meeting of the employees called by him on July 15. As already noted, 48 Schieber then declared that- he would under no circumstances operate under an "all-union" shop, that he would close his St. Louis plant and move out of town rather than do so. The record as a whole presents a background expressive of Schieber's anti-union bias which would provide a strong motive for locking out the unionized St. Louis employees and moving to a town believed by Schieber to be "non-union." The true relation between this anti-union motive and the closing of the St. Louis plant appears in the statement of Pergament to Bailey that the company was "going 4' See Restatement of the Law of Agency (1933) Sections 125, 127, 129, 135 and 136 , 4' It appears that rents were cheaper at De Soto and it may reasonably be inferred that other production costs were lower Schieber Millinery Co had been losing money The fiscal year ending November 30, 1937, partly spent in De Soto, showed a loss of about $5,600. Moreover, in the period from December 1,1937, to June 16, 1938, there was an apparent loss of about $12,000 In the audit report of Cohen there is nothing to explain the size of this loss. The books of the company had been destroyed at the time of the hearing. 48 Section III A, supra. . 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out of town to avoid trouble with [the Union]" Schieber and Perga- ment attempted to,get two employees to desert the Union!and,.go to De. Soto as non-union men. Near the end of August Schieber told Employee Millstone that "he wouldn't hire any union man." The arrangement Schieber had made with De Soto to hire only inhabitants of that town also shows that Schieber had, determined to adhere to a "non-union" policy. The vaunt of Schieber to Fromkin in September of 1937 that the latter could do nothing.to organize in De Soto;49 that for a long time Schieber had tried to find such a place, and that if Fromkin came to De Soto ,be would "be out much faster than [he] could possibly dream of," serve to strengthen this conclusion., We ford that the removal of Schieber.Millinery Co from St. Louis to De Soto was primarily for the purpose of ridding Schieber Millinery Co. and Isaac Schieber of the unionized employees and replacing them with non-union workers. - , Since we find that the removal to De Soto was made for the primary purpose of avoiding the Union, and of escaping collective bargaining with it, it is clear that the conduct of the respondent "was motivated by, and part ,of a scheme to deny to its employees their rights to join a union of their own' choosing and to rid itself of the Union, and that, to achieve this purpose, the respondent broke its contract with the Union."" We find that the respondents by closing their St. Louis plant and discharging their employees oil 'August 24, 1937, discriminated against them in regard to their hire and tenure of employment thereby dis- couraging membership in the Union.51 We further find by thereafter failing to reinstate the St Louis em- ployees, the respondents discriminated in regard to hire and tenure of employment thereby discouraging membership in the Union. By the aforesaid discharges and failures to reinstate, the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section'7 of the Act. D. Interference, restraint, and coercion •We 'have already noted Schieber's expressions of anti-union bias in 'talking with his employees and with union representatives, includ- ing his description of the•latter as "racketeers," and his convocation' of a meeting of employees on July 15, 1937, at which he counseled the employees how to vote-at`union meetings, threatened that he would remove his plant, and urged them to abandon collective bargaining.52 We have also noted that Schieber and Pergament conditioned offers of employment at De Soto upon withdrawal from th-e Union. 40 See Section III A, supra. .so Matter of Jacob H Klotz, etc , 13 N. L R B 746 at 760. 81 Compare Matter of S & K. Knee Pants Company, Inc., and Amalgamated Clothing Woriers of America, 2N.L.R.B 940. 62 Section III, A supra. SCf3IEBER MILLINERY CO. '961 We find that the respondents by the-foregoing acts and statements, and by other conduct described in Section' IIIA, B, and 'C,,'above, have interfered with, coerced, and restrained their employees- in' the exercise'of their rights guaranteed in Section 7 of the Act. E. Conclusions as td the unfair labor practices. We have found that the respond ents'liave' engaged in' violations'of Sectioii 8 '(1), (3), and (5) of the Act. There remains the questioii'of whether and to what' extent responsibility for the unfair labor' prac- tices attaches to Schieber Millinery Co., Isaac Schieber, as an indi- vidiial, and/or to Allen Hat Co. The respondents contend that no order'may be entered against Schieber Millinery Co. since it has ceased doing business ,' and` its corporate rights and privileges' have been revoked by -the, State of lvi isso [II' 1, 53 The possible inefl'ectivenes's of an order does not require that we not enter' the order .b4,' Because it appears that under Missouri law the corporate rights and privileges of 'Schieber Millinery Co. may legally be revived, we shall issue an appropriate order against it.55 ' In so far as our order contemplates continued business activity, it will lie inapplicable to Schieber Millinery Co. while it remains dissolved, but it will be applicable otherwise, 'as; for example, in its provisions for back pay- 56 : T "It is contended that no order may be entered against Isaac Schie- hersince lie did not do' business as an individual, was not the em- ployer of the employees here involved; and was not engaged in'coin- merce.' Tile 'language of the Act demonstrates that there is no merit to this contention. Section 2 (2) thereof defines an "employer" as 'inehiding "any,'person acting in the interest of an employer, directly l ., or indirectly . . . Section 2 (1)' defines a " person" as including "one'or more'individuals." Section 10 (a) empowers the Board'"to prevent any person from engaging in any unfair labor practices' (listed 55 See footnote 1, supra The respondents further contend that the alleged trustees are not in fact trustees under Missouri law since no assets came into tlieir hands,' and ,'consequently ; service upon them wa's im- proper , leaving the Board without jurisdiction to proceed against them . This contention is without merit. Under Missouri law proof that assets were received ismot necessary to the merits of a claim, but serves only to' delimit'the'trustees ' liability Sections 4561 and 4622 Mo ' Rev Stat provide; in substance, that the last officers of the corporation at the time of dissolution and forfeiture , respectively , shall be trustees thereof with stated powers in settling corporate affairs, and that the trustees shall he responsible -to cred itors and stockholders to the extent of assets received ' See Nudelman v. Thimbles , Inc et at 225 Mo. App .553, 40 S W (2d) 475, Watkins v • Player et al , 103 S W (2d) 566, 569 (Mo App ) Nevertheless , we shall not direct our order against the trustees since they have acted merely as the representatives of Schieber Millinery Co for purposes of sera ice " . 54 In Matter of Grower-Shipper Vegetable 4ssociation of Central California and Trait and Vegetable Workers' Union of California, No 18211 etc , 15 N L R B 322, at 367, we said "Moreover, proof of dissolution of a corporation occurring after its commission of unfair labor practices would not appear to require dis- missal of a complaint against it " Cf • Matter of Union Drawn Steel Co et at • ,v National Labor Relations Board, January 20, 1940 (C C A 3), enforcing as modified 10 N L' R B 868 55 Section 4621 Mo. Rev Stat Cf Estel et at v Dlidgand Inv Co el at , 46 S W (2d) 193 (Mo App 56 Platter of Grower-Shipper Vegetable Association of Central California and l• ruit and Vegetable Workers' Union of California, No 18211 , etc , footnote 54, supra , at page 370 . -962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Section 8) affecting commerce." Section 10 (b) empowers the issu- ance of complaints on charges "that any person has engaged in or is engaging. in any such unfair labor practice." Section 10 (c) provides that if the Board, is, of the opinion "that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue ,and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or with- out back pay, as will effectuate the policies of this Act." Schieber, a "person" within the meaning of Section 2 (1) of the Act, acted "In the interest of" Schieber Millinery Co., as, well as in his personal capacity, in committing the acts found to be unfair labor practices; he is, there- ,fore,, himself an "employer" within the meaning of Section 2 (2) of the Act.57 We find that Isaac Schieber is an "employer" within the meaning of the Act, and is responsible under the Act for the unfair labor-prac- tices herein. In, order to effectuate the policy of the Act we shall address oui' order against Isaac Schieber individually.58 We have already considered the circumstances precedent to the formation of Allen, Hat Co." The complaint in substance alleges that the respondent Isaac Schieber caused the respondent Allen Hat Co. to be formed for the purpose of evading the liabilities of Isaac Schieber and Schieber Millinery Co. arising under the Act, that Allen Hat Co. is in fact Isaac Schieber carrying on. the same business formerly carried on by Schieber under the corporate framework of Schieber Millinery Co., and that under these circumstances the employees, discharged by Schieber Millinery Co. and Isaac Schieber became and continue to be employees of Allen Hat Co. It is urged by the Union that Allen Hat Co. is the mere alter ego of Isaac Schieber, that Schieber and, Allen Hat Co. together have discriminatorily refused and continue to refuse to reinstate the discharged employees, and consequently the Board may disregard "the corporate fiction" -and enter a remedial order affixing liability upon "the real party in interest." As already noted, Schieber shut down the De Soto plant but a week after the adverse decree in the Circuit Court of the city of St. 67 The Board has numerously applied this principle, for example, in cases involving parent and sub- sidiary corporations, Matter of Sterling Corset Co , Inc and International Ladies' Garment Workers' Union, Local 85, 9 N. L. R. B. 858, Matter of Weinberger Banana Co , Inc etc. and United Dock and Fruit Workers' Union, 19 N. L. R B , No 92, Matter of Waggoner Refining Company etc. and International Association of Oil Field, Gas Well and Refinery Workers of America, et at, 6 N. L R B 731, Matter of National Supply Company and Steel Workers Organizing Committee , 16 N L R B. 304. As We do not imply that all persons committing unfair labor practices in the interest of an employer are to be made subject to an order by the Board. As appears below it is appropriate under the circumstances of this case to hold Schieber personally responsible for the unfair labor practices. Cf National Labor Rela- tions Board v. Hopwood Retinning Co., Inc , 98 F. (2d) 97 (C C A 2), enforcing as modified 4 N. L. R B. 922; contempt citation granted 104 F. (2) 302. 60 Section III A, C, supra. SCHIEBER MILLINERY CO. 963° Louis. 8° There are numerous circumstances suggesting that ; the' assignment of the assets of Schieber Millinery. Co. for the benefit of its creditors was not in fact involuntary." It is not necessary to decide whether or not the assignment was in fact, fraudulent, however, and it is here assumed that the assignlient'was forced upon Schieber Millinery.Co. At the time of. the assignment Isaac Schieber. planned to continue in the millinery business .and was of the erroneous, belief that the debts of Schieber Millinery Co. were wiped out by the assign- ment.82 It is apparent that Schieber's plan for the continuation !of his millinery business included the formation of Allen 'Hat. ' Co. The record further "makes clear' that. Schieber's, motive in forming Allen Hat Co.. included, in substantial measure, avoidance of, the Circuit Court: decree, which ran against. both Isaac Schieber and Schieber Millinery Co., and liability under the Act.. It is - alleged in .the amended complaint that '-.the. ,'respondent, Isaac Schieber has at all, times managed,+ directed, and controlled the business 'and policies of respondent Schieber, Millinery, Co.. ,and-, of respondent Allen Hat Co." This allegation. was not deniedby any. of the respondents and is amply supported. by the evidence. The briefs of the. respondents and the Union,presenta.n abundant citation of cases: on the subject of the corporate entity.. Although the tests invoked by, the courts as to when,the corporate entitymay be disregarded, are both flexible and various,83 the primary consideration in disregarding the1 corporate personality is the use to which he personality is put. When the facts are such as to make "necessary^to the justice of.the case ." 84 the substitution of,a responsible reality for a corporate fiction,•,the substitution is generally made. Great consideration is to be given;to eo See Section III A, supra . . I I , 6 It appears (1) that the audit for the Ribbon, Silk & Velvet Association,was made by Sidney S. Cohen, who prior thereto had been auditor for Schieber Millinery Co .; '(2) that the appraisal of dies, blocks , machin-' cry, and equipment was far below cost and stated book value; (3) that books and records of Schieber Milli-, nery Co . were destroyed soon after the assignment by bookkeeper Otto A. Fabian ; (4) that large bank deposits and withdrawals between the day of the' audit and the assignment , as well as certain later'with drawals, were uninvestigated and unaccounted for by the assignee , by his attorney , by. Schieber : and by-. Schieber's bookkeeper ; and that (5) Schieber purchased the assets from the assignee through intermediaries and created nominal stockholders in forming Allen Hat Co. e3 The following testimony indicates that Allen Hat . Co. was not formed to avoid possible-liability to creditors of Schieber Millinery Co. Q. Can you tell me .whether or not any of the assets of the Allen Hat Company were used to pay any of the creditors of the Schieber Millinery Company after the time of the assignment? A. Not with my knowledge. Q. So far as you were concerned then, the debts of the Schieber Millinery Company were wiped out with the assignment for the benefit of creditors? A. I would say so, yes. Nevertheless there was no provision in the instrument of assignment that dividends should be in full of outstanding claims . Such a provision is illegal under Missouri law. DT. L. Barrett & Co. v. Chilton, 304 Mo. 679 , 264 S . W. 802. 63 See: In re Armbruster Stone Co . etc., 66 Fed. (2d) 110 (C.- C. A. 6), 112, "to prevent fraud*or an unjust result, or when one corporation is in its essence but a continuation of the activities and interests of the other" ; Commerce Trust Co . et at. v . Woodbury, et at., 77 Fed. (2d) 478, (C. C. A. 8) 487, 'when it is used as a subterfuge to defeat public convenience ,'justify wrong, or perpetuate a fraud.",' 64 U. S. v. Reading Co. et at ., 253 U . S. 26; U. S. v. Lehigh ' Vatley R . R. Co., 220 U : S. 257; U. S.'v.'Del. Lack . Q N'. RR. Co., 238 U. S . 516; Chi. W. V. St, P. Rg. Co . v. Minn . Civic & Corn : 2 4 7U. S 490; 964' DECISIONS OF NATIONAL I LABOR RELATIONS BOARD the fact'that what..is sought to be remedied is a public wrong. The Supreme Court: per'Mr. Justice Van Devanter'has said: 'As a'gelieral rule a corporation and its stockholders. a`re'deeined separate. "entities . . .' of course, the rule is s'fibje'ct'to''tl e qual=' ificatiorihat the "separate identity'may be disregarded' in' exceip= •tiorial situations'wheie it'otherwise would' pieseilt an obs'tacle 'to' the due'protect+ion orenforcement of public or private rights.65 In. United States, v.. Milwaukee 'Refrigerator, Transit Co., Judge Sanborn; observed: 66 If any general' rule ' can be: laid down; • in the present state 'of authority; it is. that a corporation' will be looked upon as alegal entity as a general rule, and until sufficient reason to-the contrary' appears;. but, when 'the notion of 'legal 'entity is used 'to• defeat public convenience, justify' wrong; protect fraud, or'defend crime, t e law, will regard the corporation as' an 'association of persons: The respondents contend that Isaac 'Scli'ieber and Allen' Hat Co. cannot b'e• made to: account for the unfair labor practices' set forth above since Schieber never did' business as l,n`individual'and since' the involuntary' nature of Schieber 'Millinery Co.'s assignment, and the new capital' investedd 1'n Allen' Hat Co'.','in effect`mad'e the latter a'new, company iather'than a "successor" to Schieber Millinery Co. and therefore, the' corporate entity. may not be disregarded. As'alread-y rioted Scliieher at all' times owned. and controlled Schieber Milmery Co,indsha.pedl its labor relations policies' which resulted in violation of the Act: I, We are eoi'1ce' ncd -with the 'policy 'and ''construction of inn' Act- of Congress empowering the, Board to take such action against guilty persons "as will effectuate.the policy of.the.Act." In National Labor. Relations Board v. Arthur 'L. Colton and. Abe J. Colman, co-partners doing business 'as Kiddie Kover Man4acturing,Company,67 the•United States Circuit Court of . Appeals for the Sixth Circuit; state(1 in dis- posing of a similar defense: 68 This contention however, igrlores the essenti l nature, of `l egli- latory' statutes 'of the 'class here considered,' acid the scope-and purpose' of administrative orders' made ifi exercise of powers conferred by such legislation. They-are. to implement a public, social or economic policy not primarily concerned with private rights, and' through' remedies not only-unknown to the' common' law h'ut often in derogation of it It is the employing industry as New ' colonial Ice Co., Innc. v. Ilelvering, Corn miss)oner of Internal Revenue , 292 U . S. 436, 442, and cases there cited. e6 142 Fed . 247, 255 (E. D., Wisc.).. r 105 F. (2d) 179 (C. C., A. 6), enf'g. , Matter of Arthur.L. Cotten , et at. and Amalgamated Clothing Workers of America , 6 N. L.. R. B.; 3551. ea To the effect that the dissolution of a partnership by death of a co-partner precluded affirmative action by the Board against the survivor. SCHIEBER MILLINERY CO. 965 that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace . . . It needs no demonstration that the strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or operation of law brings about change of ownership in the employment agency.69 We believe that the power vested by Congress in the Board to remedy the wrong committed, which has been described as a "public tort,i70 defeats the asserted right of Isaac Schieber to insulate himself from effective liability under the Act by doing business as a corporation in which there is a unity of interest, ownership, and control in Schieber himself.71 It is clear that at all times Schieber has owned and dominated. both. corporations and has been responsible for their labor relations policies. He thus is the real party in interest who must be held responsible under any appropriate order which the Board might enter. It would defeat the purposes of the Act to permit Schieber to take refuge behind the corporate entity of Allen Hat Co. Under the circumstances here presented we find that all the respondents, including Allen Hat Co., are so inter-related as to be jointly and severally liable for the unfair labor practices.72 Concluding Findings In summary, we find: (1) That the activities of Pergament and Schieber set forth in Section III A above constituted violations by Schieber Millinery Co. and Isaac Schieber of the provisions of Section 8 (1) of the Act, by interfering with, restraining, and. coercing their employees in the exercise of rights guaranteed them by Section 7 of the Act; (2) That the discharge and lock-out of the St. Louis plant employees oil or about August 24, 1937, the removal to De Soto on or about <° Cf. Matter of The Baldwin Locomotive Works and Steel Workers Organizing Committee , 20 N. L. R. B. 1100. 70 See National Labor Relations Board v. Remington Rand , Inc., 94 F. (2d) 862 (C. C. A. 2), cert. den. 304 U. S. 576. 71 The circumstances of the distribution of stock in Allen Hat Co . should be here recalled. Ninety of the 100 shares went to Isaac Schieber's wife, nine to his brother , and one to Isaac Schieber. The evidence dis- closes no reason why all of the shares should not have been in the name of Isaac Schieber who solely ran the business . Schieber's testimony that he was "involved" at the time was not credited by the Trial Examiner. We have already found (Section III B above) that Schieber owned the nine shares put in his brother's name. Ninety shares of a par value of $9,000 were placed in the name of Mrs. Schieber though her purported contribution was only $2 ,000, representing money borrowed from Scbieber 's attorney. Schic- her admitted that the extra 70 shares constituted a gift to his wife: It is significant that this loan came from the attorneys representing the respondents throughout the transactions herein set forth, including the pro- ceedings in the Circuit Court of the city of St. Louis , the assignment for the benefit of creditors, the formation of Allen Hat Co., and the Board proceedings . One member of the law firm was also an officer and director of Schieber Millinery Co ., and a holder of a qualifying share therein. It is a reasonable inference that the attorneys knew of the facts creating liability under the Act at the time the monies were advanced , and this inference is consistent with our finding that Allen Hat Co. was formed , in part, to evade such liability on the part of Schieber . Moreover, these facts, and the consideration that loans from Schieber 's attorneys and relatives comprised the bulk of the assets of Allen Hat Co., throw doubt on the contention of the respon- <lent that Allen Hat Co. was formed with " fresh" capital. 72 Cf. Matter of Weinberger Banana Co., Inc. etc . and United Dock and Fruit Workers' Union , 18 N. L. R. B. 786, and cases collated in footnote 13 thereof. 323429-42---62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 26, 1937, and the refusal to reinstate and employ 73 said employees, constituted, on the part of Schieber Millinery Co., and Isaac Schieber, violations of Section 8 (3) of the Act; (3) That by the refusal to reinstate and employ 74 said employees, Isaac Schieber and Allen Hat Co. violated Section 8 (3) of the Act; (4) That Schieber Millinery Co., and Isaac Schieber for the reasons set forth 'in Section III C above, violated Section 8 (5) of the Act; ^(5) That Isaac'Schieber was,at all times material herein, and is.the employer of those employees discharged and locked out of the St. Louis plant of Schieber Millinery Co., within the meaning of Section 2 (2) of the Act; . (6) That Isaac Schieber at all material times owned, dominated, and controlled the affairs of Schieber Millinery Co. and Allen Hat Co. and is personally responsible for the violations of the Act set forth above. 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 relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondents have engaged in and are engaging in certain unfair labor practices , we shall order them to cease and desist therefrom . Moreover, we shall order the respondents to take certain affirmative action which we deem necessary to effectuate the policies of the Act. Effectuation of the policies of the Act is achieved by restoration in so far as possible of the status quo existing before the commission of the unfair labor practices . We have found that the respondents' removal of their business from St. Louis to De Soto was the founda- tion. of Schieber's plan to rid himself of the Union, and to evade bar- gaining collectively with it. We have further found that under the circumstances herein set forth this removal itself constituted an unfair labor practice . It is abundantly clear from the record that a return, 73 We have said : "It is immaterial that the employees in fact made no application for reinstatement [Meyer Millstone specifically did so] . . . `To say that because they have not made application to go to work they were not refused employment would be to place a penalty upon them for doing what they knew would have proved fruitless in the doing ... ' Moreover . . . such refusal . . . was tantamount to a refusal to employ. " Matter of Williams Coal Company, et at. and United Mine Workers of America, District No. 28, 11 N. L . R. B. 579, 653, quoting, Matter of the Carlisle Lumber Company and Lumber & Sawmill Workers' Union Local 2511 , etc., 2 N . L. R. B. 248, 265-6, enforced in National Labor Relations Board v. Carlisle Lumber Company, 94 F. (2d) 138 (C . C. A. 9), cert . den., 304 U. S. 575. 14 Under the facts found, these employees became , within the meaning of the Act, the employees of Allen Hat Co., which was Isaac Schieber 's alter ego, formed after the discrimination by Schieber against the employees. . SCI3IEBER MILLINERY Co. 967 to St. Louis would be one feasible means of restoring the status quo.75 Since Schieber, the wrongdoer, accomplished his illegal ends by the removal from St. Louis , it would be appropriate that he bear the burden of rectifying his wrong by returning thereto. Moreover,.the record reveals that removal of a millinery .plant is a comparatively simple matter. It also appears , however, that another feasible means of restoring the status quo as nearly as possible would be to order the respondents to employ the St. Louis employees at the De Soto plant and at the same time compensate the employees for any necessary expense in- curred by such employees in accepting employment at De Soto. Such necessary expense would include all reasonable expenditures entailed in the , transportation and moving of the St. Louis employees found to be entitled to reinstatement and their families from St. Louis to De Soto. We shall thus shape our order so that the respondents may, at their election expressed in writing to the Regional Director, reinstate the employees , either at De Soto or at St. Louis. If the respondents elect to contitnle business at De' Soto, we shall order the respondents to pay for the reasonable expenses entailed in the trans- portation and moving of the St. Louis employees found to be entitled to reinstatement and their families from St. Louis to De Soto. To enable the respondents to effectuate the return to St. Louis, if that method of compliance is selected by them, we shall grant a period of sixty (60) days from the date of, the Order herein, during which the respondents may comply therewith. We have found that Schieber Millinery Co. and Isaac Schieber discriminatorily discharged and locked out those employees working at the St. Louis plant on August 24, 1937. We have further found that the respondents , including Allen Hat Co., thereafter discriminatorily refused to reinstate and employ said employees. We shall order the respondents to offer these employees , except Frank Bickle, Edward Parrott, and Harry Faintich ,76 immediate and full reinstatement to their former positions 77 without prejudice to their seniority and other 75 Cf. Matter of Jacob H. Klotz and Ruth Klotz, doing business under the name and style of J. Klotz & Com- pany and Joint Board of Suitcase, Bag & Portfolio Makers' Union , A. F. of L., 13 N. L . R. B. 756; Matter of S. & K. Knee Pants Company , Inc. and Amalgamated Clothing Workers of America, 2 N. L. R. B. 940. See also Dubinsky v. Blue Dale Dress Co., N. Y. Sup. Ct., N. Y. L. J., Dec. 31, 1936, p. 2454, col. 1, 50 Harv. L. Rev. 700; Farulla v. Ralph A. Freundlich, Inc., 155 Misc. 262, 279, N. Y. Supp. 228 (N. Y. Sup Ct. 1935); 36 Col. L. Rev. 776. 76 Employees Bickle, Parrott, and Faintich have other employment and do not desire reinstatement. 77 The respondents allege that the employees here involved have obtained regular and substantially equivalent employment elsewhere. Employees Aleck Zembalist, Mabel McNeece, Grace Staehlin, George Bailey, Nora Baumann, and Catherine Leopold had obtained other work at the time of the hearing, but at substantially less pay. While it appears that Viola Firman, Nettie Firman and Jennie Martin also obtained other jobs, there is no showing that their new employment was regular and substantially equivalent to that from which they were discriminatorily discharged. There is no testimony to support the respondents' contention as to the other employees. E, en had the employees here involved received regular and sub- stantially equivalent employment, that fact would not have barred reinstatement under the Act. Matter of Eagle-Pieher Mining & Smelting Company, a corporation , and Eagle-Picher Lead Company , a corporation and International Union of Mine, Mill & Smelter Workers, Locals Ara 3 . 15, 17, 107 , 108, and 111, 16 N. L. R. B. 727. See also Matter of Continental Box Company, Inc. and Federal Labor Union No. 21328, 19 N. L. R. B.,. 860, at page 22, enforced 113 F. (2d) 93 (C. C. A. 5). 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, discharging such persons hired by therespondents after August 24, 1937, as may be necessary to provide said employ- ment for those to be offered reinstatement. If, after this is clone, there is not by reason of reduction in force sufficient employment immedi- ately available for all persons, including those ordered reinstated, all available positions shall be distributed in accordance with the respond- ents' usual method of reducing the force as applied in the conduct of the respondents' business prior to the lock-out, without discrimination against .any employee because of his union affiliation or activities, following a system of seniority to such extent as has been applied in the conduct of the respondents' business prior to the lock-out, subject to any modification introduced by agreement with the Union. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list, pre- pared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are- hired for such work. We shall further order the respondents, including Isaac Schieber personally, to make whole those persons who were employees of Schieber Millinery Co. on August 24, 1937,78 for any loss of pay they have suffered by reason of their discrimination against them by pay- ment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the, offer of reinstatement, less his net earnings 79 during said period. We shall also direct that Isaac Schieber cause Allen Hat Co. to make the offers of reinstatement as described above, and cause Allen Hat Co. to make said employees whole.80 Moreover we shall order the respondents to bargain collectively upon request with the Union which we have found to be the exclusive representative of the employees in the appropriate unit, and we shall order Isaac Schieber to cause Allen Hat Co. to engage in such bargaining 81 78 Including Aleck Zembalist and others who, on August 24, 1937, were temporarily laid off because of slack business. 79 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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of.his seeking employment elsewhere . See ATatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. 13. 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 over 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. llfatter of Republic Steel Corp . and Steel Workers Organizing Committee, 9 N. L. R . B. 219 , enf'd as modified as to other issues, Republic Steel Corp . v. N. L. R . B., 101 F. (2d) 472 (C. C. A. 3) cert. granted , 309 U. S. 684. so Cf. National Labor Relations Board v. Hopwood Retinning Co., Inc. et at., 98 F. (2d ) 97, 102. (C. C. A. 2), enf'g as modified 4 N. L. R. B. 922; contempt citation was granted, 104 F. (2d) 302. 91 See footnote 79, supra. SCHIEBER MILLINERY CO. 969 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Hatters, Cap and Millinery Workers' International Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondents Schieber Millinery Co., Isaac Schieber, and Allen Hat Co. are employers within the meaning of Section 2 (2) of the Act. 3. The employees of Schieber Millinery Co. employed at the St. Louis plant on August 24, 1937, are employees of the respondents, within the meaning of Section 2 (3) of the Act. 4. By the activities of Isadore Pergament and Isaac Schieber, de- scribed in Section III A herein, interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents Schieber Millinery Co. and Isaac Schieber engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The respondents, by discriminating in regard to the hire and tenure of employment of those employees employed at the St. Louis plant of Schieber Millinery Co. on August 24, 1937, and thereafter, thereby discouraging membership in United Hatters, Cap and Mil- linery Workers' International Union, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. The production employees of the respondent Schieber Millinery Co. engaged in the operations of blocking, cutting, operating, making, and trimming, employed at its St. Louis plant on August 24, 1937, exclusive of foremen, foreladies, supervisory employees and designers, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the Act. 7. United Hatters, Cap and Millinery Workers' International Union was on June 15, 1937, and at all times thereafter has been, the ex- clusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 8. By the refusal of Schieber Millinery Co. to bargain collectively, during the period from on or about June 15, 1937, to on or about June 1, 1938, by the refusal of the respondent Allen Hat Co. to bargain collectively upon its incorporation on July 29, 1938, and thereafter, and by the participation of the respondent Isaac Schieber in said refusals, all said refusals being refusals to bargain collectively with United Hatters, Cap and Millinery Workers' International Union, as the exclusive representative of the employees in the appropriate unit, 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 9. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ents, Schieber Millinery Co., Isaac Schieber, and Allen Hat Co., and their officers, agents, successors, and assigns shall: 1. Cease and desist from: .(a) Discouraging membership in United Hatters, Cap and Millinery Workers' International Union, or any other labor organization of their employees, by discharging, laying off, locking out, or refusing to reinstate any of their employees, or in any other manner discriminating in regard to the hire or tenure of employment, or any term or condition of employment, of said employees; (b) Refusing to bargain collectively with United Hatters, Cap and Millinery Workers' International Union, as the exclusive represen- tative of the production employees of the respondents excluding fore- men, foreladies, supervisory employees and designers;82 (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the.Act. 2. Takethe following affirmative action which the Board finds will effectuate the policies of the Act: (a) Either (1) return within sixty (60) days from the date of this Order, the business of manufacturing, selling, and distributing women's hats from De Soto, Missouri, to St. Louis, Missouri, including the respondents' machinery, fixtures, equipment, merchandise, and all sundry supplies necessary to restore to St. Louis as nearly as now possible, the business of the respondents as it would have been had the removal from St. Louis, Missouri, to De Soto, Missouri, not taken 92 This order is applicable to Schieber Millinery Co. in the event it is now doing business or does in the fu- ture reenter the business of millinery manufacture , distribution, and sale, of any substantially similar business. •Cf. Matter of Ray Nichols, Inc. and Local No. 45-B, United Furniture, Carpet, Linoleum and Awning Workers Union, 15 N . L. R. B. 846. SCHIEBER MILLINERY CO. 971 place; or (2) offer reinstatement at the De Soto plant to those employ- ees ordered to be reinstated in paragraph 2 (b) of this Order, and offer payment for the reasonable expenses entailed in the transportation and moving of said employees and their families to De Soto from St. Louis; (b) Offer reinstatement and employment to, and effect in so far as possible the reinstatement and employment of, those persons who were employed at the St. Louis plant of Schieber Millinery Co. on August 24, 1937, in their former or sbustantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner provided above in the section entitled "The remedy".; (c) Make whole the employees ordered to be offered reinstatement and employment in the preceding paragraph of this Order for any loss they may have suffered by reason of the discharges and lock-out on August 24, 1937, by payment to each of them of a sum of money equal to that which he would have earned as wages or salary during the period from August 24, 1937, to the date of the offer of reinstatement or employment or placement on the preferential list, less his net earnings during said period;" provided that if the respondents elect to return their business to St. Louis as provided in Section 2 (a) of this Order the respondents need not make whole said employees for the period required for the removal of said business back to St. Louis, Missouri; and further provided that the respondent shall deduct from the back pay due each of said employees a sum equal to that received by said employee for work done in Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects, and pay over the amounts, 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; .(d) Upon request bargain collectively with United Hatters, Cap and Millinery Workers' International Union, as the exclusive repre- sentative of their production employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment;84 (e) Personally inform in writing each and every one of the employ- ees locked out on or about August 24, 1937: (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondents will take the affirmative action 'set forth in paragraphs 2 (a), (b), (c), and (d) ; and (3) that the respondents' employees are free to become or remain members of United Hatters, Cap and Millinery Workers' International Union, and that the respondents will not dis- criminate against any employee because of membership or activity in that organization; 8e See footnote 79, supra. 8' See footnote 82, supra. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Post notices to the employees in conspicuous places in the plant at De Soto or, if the business is moved back to St. Louis, in the plant at St. Louis, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating: (1) that the re- spondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondents will take the affirmative action set forth in para. graphs 2 (a), (b), (c), and (d); and (3) that the respondents' employees are free to become or remain members of United Hatters, Cap and Mil- linery Workers' International Union, and that the respondents will not discriminate against any employee because of membership or activity in that organization; (g) In the event that Scheiber Millinery Co., has resumed the business of millinery manufacturing, post immediately in conspicuous places in its plant or plants, notices to its employees, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating: (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondents will-take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondents' employees are free to become or remain members of United Hatters, Cap and Millinery Workers' Inter- national Union, and that the respondents will not discriminate against any employee because of membership or activity in that organization; or in the event the respondent Schieber Millinery Co., its agents, suc- cessors or assigns, shall, in the future, resume the business of manufac- turing millinery, at that time immediately post like notices and keep them posted for the same period; . (h) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith, and state which of the two alternative methods of reinstating the St. Louis employees out- lined in paragraph 2 (a) of this Order, will be followed. MR. EDWIN S. SMITH, supplemental opinion: Although I join in all of the foregoing findings of fact and order, I think that the respondents should have been ordered to return their business. to St. Louis and to reinstate the employees there. Under the circumstances here presented, it would appear that such return would most nearly restore the status quo and would place no unnecessary burden upon the victims of the respondents' discrimination in obtain- ing reemployment.