Bierner & Son

National Labor Relations Board - Board Decisions

Feb 21, 1940

20 N.L.R.B. 673 (N.L.R.B. 1940)

In the Matter of MIKE BIERNER, DOING BUSINESS AS BIERNER & SON
and UNITED HATTERS, CAP AND MILLINERY WORKERS' INTERNA
TIONAL UNION, LOCAL 57
Case No. C-767.-Decided February 21, 1940
Millinery 1[anufocturrng Industrt/ I-nterferenee, Restraint, and Coercion' dis-
paraging anti-union statements to employees ; threatening employees about their
organizational activities ; making inquiries of them in that connection ; stating-
to employees that other employees had been discharged for union activities;:
requesting that employees report the names of union members, stating that the-
factory would be closed in preference to employing union members; advising
employees that they would never "get anywhere" with the Union ; and making
disparaging remarks about persons attempting to aid the employees in the
exercise of their right to self-organization ; charges of, by participation in activi-
ties of employers' associations dismissed because of insufficient evidence-Dis-
crintin.ation : discharge of three employees for union membership • and activity
and of one employee because of supposed union membership and activity ; to
discourage membership in Union ; charges of, not sustained as to one em-
ployee-Reinstatem ent Ordered-Bock Pay: awarded.
Mr. L. N. D. Wells, Jr., for the Board.
Cllr. Emil Coren,bieth, of Dallas, Tex., for the respondent.
llr. Jim Guthrie, of Dallas, Tex., for the Union.
Dlr. Howard S. Friedman, of .counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Hatters, Cap and Millinery
Workers' International Union, Local 57, herein called the Union, the
National Labor Relations Board, herein called the Board, by Edwin
A. Elliott, Regional Director for the Sixteenth Region (Forth Worth,
Texas) issued its complaint dated September 18, 1937, against Mike
Bierner, doing business as Bierner Son,' Dallas, Texas, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of
3 The respondent was also designated in various papers in this proceeding as M. Bierner
& Son. The pleadings submitted by the respondent indicate that the designation in the
complaint is correct.
20 N. L. R. B., No. 67.
673
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint accompanied by notice of hearing thereon were duly
served upon the respondent and upon the Union.
On September 11, 1937, the Board, acting pursuant to Article II,
Section 37 (b), of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered this case consolidated for pur-
poses of hearing with certain other cases involving other millinery
manufacturers in Dallas, Texas.2
With respect to the unfair labor practices, the complaint alleged,
in substance, (1) that the respondent, on various dates between
September 1936 and May 15, 1937, discharged Miss Audice Ballard,
Mrs. Juanita Hyman, Miss Doris McCorlnick,3 Mrs. W. H. McCor-
mick,4 C. C. Stamps, H. L. Stamps, Mrs. Ola Ethetton and Mrs. C. C.
,Samuels 5 for the reason that they had joined the Union and had
engaged in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection; and (2) that the respondent
by the above acts, by inducing certain persons in the city of Dallas,
Texas, to interfere with, restrain, and coerce his employees in the
exercise of their rights guaranteed in Section 7 of the Act, by par-
ticipating in the activities of certain organizations in Dallas in the
preparation and dissemination of anti-union propaganda, and by
other acts, interfered with, restrained, and coerced his employees in
the exercise of the rights guaranteed. in Section 7 of the Act.
On September 28, 1937, the respondent filed a series of motions
to dismiss the complaint on the grounds, (1) that it failed to show
that the respondent was engaged in interstate commerce or that his
business affects commerce within the meaning of the Act; and (2) that
the complaint failed to set out any facts with reference to the individuals
alleged to have been discharged in violation of the Act and was so
general, vague , and indefinite that the respondent had no oppor-
tunity to prepare a defense. The respondent also moved to strike
portions of the complaint on the grounds that the complaint was
not in, conformity, with, the charges, in that. there was nothing . in
the charges with reference either to the discharge. of three employees
named in the complaint or the allegations in the complaint that the
respondent was engaged with other persons and associations in inter-
fering with the rights of his employees guaranteed by the Act. Sub-
a The following cases were included in the Order of Consolidation : Fox-Coffey-Edge
Millinery Company, Inc., XVI-R-50 (R-767) and XVI-C-75 (C-783) ; Goldstein Hat
Manufacturing Company XVI-C-77 and XVI-R-51 (R-349) Em-Bee Hat Mfg. Co., Inc.,
XVI-C-74; Block-Friedman Company, XVI-C-76 (C-766) and Gold-Claire Hat Manu-
facturing Company, XVI-C-149. Separate disposition was made of each of these cases.
Erroneously designated in the charge and complaint as Doris McCormack.
* Erroneously designated in the charge and complaint as Mrs. W. H. (Willie)
McCormack.
6 Erroneously designated in the charge and complaint as Mrs. C. C. Samuel.
MIKE BIERNER 675
jec't to the above motions, the respondent on September 28, 1937; filed
his answer in which he denied that his operations affected commerce
within the meaning of the Act and denied that he had engaged in
any unfair labor practices as defined by the Act.
Pursuant to notice, a hearing on the case involving this respondent
was held in Dallas, Texas, on September 30, and November 6, 8-10.
12, 13, 15, and 16, 1937, before William H. Griffin," the Trial Exam-
iner duly designated by the Board. The Board, the respondent, and
the Union were represented by counsel and all participated in the
hearing. Full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing upon the issues
was afforded to all parties.
At the commencement of the hearing on September 30, 1937, the
charges and pleadings in each of the consolidated cases were intro-
duced in evidence. George O. Wilson and Emil Corenbleth appeared
on behalf of the various respondents whose cases were still pending
under the Order of Consolidation. Both attorneys entered oral
objections to the Order of Consolidation issued by the Board and
contended that the order was improperly entered without notice to
them and was prejudicial to the rights of their respective clients.
The Trial Examiner overruled these objections to the Order of
Consolidation and ruled that the record in each case heard under the
consolidation order would be separate and distinct and that both
counsel were at liberty to remain at the hearing and participate to
any extent that they saw fit. We find that the respondent was in no
way prejudiced in his defense by the consolidation order or by these
rulings of the Trial Examiner, which rulings are hereby affirmed.
Each case was heard seriatim with leave granted by the Trial Exam-
iner to the Board's attorney to introduce in any case evidence which
had been presented in any other of the consolidated cases and with
leave to counsel for the respective respondents to cross-examine
witnesses testifying to such evidence so introduced.
A ;supplemental charge and written amendment to the complaint
in this case was served upon the respondent on September 30 or Octo-
ber 1, 1937, alleging that the respondent had on September 7, 1937,
following a current labor dispute, refused to reinstate Mrs. Grace T.
Reed, Miss Louise Reed, and Emma Lee Sperling for the reason that
each of them assisted the Union and engaged in concerted activities
in its behalf. The respondent subsequently amended his answer to
deny the additional allegations of the amended complaint.
At the commencement of the separate hearing of this case, the
respondent appeared specially to urge its written motion to dismiss
"The name of the Trial Examiner was incorrectly designated as William H. Griffen in
the Order of Designation.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint for lack of jurisdiction. Ruling was reserved on this
motion at the hearing and the motion was denied by the Trial Exam-
iner in his Intermediate Report. His ruling is hereby affirmed. The
Trial Examiner also overruled the written motions of the respondent
with respect to the allegedly vague, indefinite, and uncertain char-
acter of the complaint, and ruled that if the respondent made any
showing of surprise or prejudice he would take the necessary steps
to safeguard the interests of the respondent. In connection with the
motions to strike portions of the complaint because of non-conformity
with the charge, the Trial Examiner permitted the Board to serve
a correct copy of the charge upon the respondent jn. place of the
incorrect copy previously served upon him which, through a steno-
graphic error, omitted the names of three persons named in the
original charge as filed with the Board.? No ruling was made at'the
hearing on the motion to strike, for non-conformity, the portions of
the complaint concerning the activities of other persons and associa-,
tions. The motion was denied by the Trial Examiner in his Internee=
diate Report, which ruling is hereby affirmed.11
During the hearing Miss Louise Reed and Miss Audice Ballard
testified that they desired to withdraw their charges. Counsel for the
Board and counsel for the Union joined in a motion to dismiss the
allegations of the complaint as to them. Further motions were made
during the hearing by counsel for the Union to dismiss the allegations,
of the complaint, as amended, with respect to H. L. Stamps and
Emma Lee Sperling for the reason that they had failed to appeal
at the hearing although duly notified thereof. All of these motions
were granted by the Trial Examiner. These rulings are, hereby
affirmed. During the course of the hearing the Trial Examiner made
various rulings on other motions of the parties, and on objectiolis to
the admission of evidence. The Board has reviewed all such rulings
7 The names of these persons are C . C. Stamps, H. L. Stamps . and Mrs. Ola Ethetfon.
The names of these three employees were included in the original charge which was
introduced in evidence at the commencement of the hearing in the consolidated cases on
September 30, 1937 . The respondent 's answer- included his defense to the allegations of
the complaint with reference to these three employees..
At the hearing the respondent also claimed that the name of Mrs. Juanita-Hyman was
not on the "original charge or complaint filed." We find that the respondent was in no
way prejudiced in his defense since the allegations concerning Mrs. Juanita 1-Lyman were
clearly set forth in the complaint , the copy of the charge served upon the respondent with
the complaint contained sufficient reference to Mrs. Hyman upon which to base the specfic
allegations of the complaint as to her, the respondent answered those allegations of the
complaint, and the issues raised by such pleadings were fully tried.
s The respondent's motions as to non -conformity and his subsequent objection made
during the course of the hearing to the introduction, of certain evidence are apparently
based upon the theory ' that the complaint and the proof introduced in support thereof
are strictly limited to matters specifically set forth in the charges . In this the respondent
is in error . The function of the charge is to call the attention of the Board to the fact
that certain unfair labor practices are alleged to have been committed. It is not essential
that the charge describe the alleged unfair labor practices with the same particularity
as the complaint.
MIKE BIDRNER 677
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On July 11, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Act and recom-
mended that the respondent cease and desist from his unfair labor
practices and offer to reinstate with back pay certain of his employees
found to have been discriminatorily discharged; 9 make whole for any
loss of pay one employee found to have been discriminatorily dis-
charged but who was offered reinstatement by the respondent at the
hearing; 10 and take certain other appropriate action to remedy the
situation brought about by the unfair labor practices found. The
Trial Examiner also recommended that the complaint, as amended, be
dismissed as to two employees who he found were not discriminatorily
discharged." In his Intermediate Report the Trial Examiner denied
certain motions upon which he had not ruled during the hearing.
The Board has reviewed these rulings of the Trial, Examiner and finds
that no prejudicial errors were committed. His rulings are hereby
affirmed.
On July 25, 1938, exceptions to the Intermediate Report were filed
by the respondent. Pursuant to notice, a hearing for the purpose of
.oral argument was held before the Board in Washington, D. C., on
September 20, 1938. The respondent was represented by counsel and
participated in the argument. The Union filed no exceptions to the
Intermediate Report, nor did it avail itself of the opportunity to
present oral argument. Neither the Union nor the respondent sub-
mitted a brief. The Board .has considered the exceptions of the re-
spondent and the argument thereon, and finds the exceptions, save
as consistent with the findings, conclusions of law, and order set forth
below, to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Mike Bierner, is an individual doing business in
Dallas, Texas, under the name of Bierner & Son, and is the sole owner
of said business. The respondent operates a plant for the manufac-
The names of these employees are : Mrs. Juanita Hyman, Dirs. W. II. McCormick.
Miss Doris McCormick, and Mrs. Ola Ethetton.
10 The name of this employee is C. C . Stamps.
"The names of these employees are : Dirs. C. C. Samuels and Mrs. Grace T. Reed.
283031-41-vol. 20--41
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture of ladies' hats with a daily output of 100 to-200 dozen hats. He
also does some jobbing of hats manufactured by others.
The principal raw materials used by the respondent are wool felt,
silk, ribbons, ornaments, feathers, and veils. About 80 per cent of
these raw materials are purchased outside the State of Texas, prin-
cipally in New York City. In 1936 the respondent purchased raw
materials valued at over $150,000.
In 1936 the respondent's sales of hats manufactured at his factory
was in excess of $295,000. Over $170,000 of this revenue was derived
from sales made outside the State of Texas. An additional $50,000
was received from sales made within Texas for hats which were
shipped by the respondent to points outside the State. From January
1, 1937, to August 31, 1937, the respondent's gross sales amounted to
between $200,000. and $223,000. Of this amount between $130,000 and
$140,000 was received for hats sold outside the State of Texas.
The operations of the respondent's factory are seasonal and the
number of persons employed by him varies from 45 to 75.
II. THE ORGANIZATION INVOLVED
Local 57, a subsidiary of United Hatters, Cap and Millinery
Workers' International Union which is affiliated with the American
Federation of Labor, is a labor organization. It was chartered as
a local union of United Hatters, Cap and Millinery Workers' Inter-
national Union on September 8, 1936, and admits to, its membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During the summer of 1936, United Hatters, Cap and Millinery
Workers' International Union began organizational activities among
the employees in the Dallas millinery industry. The activities were
directed.chiefly by two organizers George Baer-and Rose Humphries,
who solicited membership among individual employees and conducted
meetings at Baer's home. During August and September 1936 at
least seven employees of the respondent signed membership applica-
tions and enough members were obtained in Dallas to establish a
local branch of the union, which was chartered on September 8, 1936.
1. The activities of the respondent
On several occasions during September 1936, Cleo Barnett, who
was in charge of the distribution of work to the trimmers, warned
the women employees in the factory that they had better quit talking
about the Union and advised them that they would get into trouble
i\I'IKE BIE'R1 EIS 679
if Bierner-heard them talking about if. She stated that if they
knew what was good for them they would have nothing to do with
the Union. Cleo Barnett denied these statements but admitted that
she had told the women to stop talking on occasions. There are
.numerous other instances in the record where similar statements
indicating hostility toward the Union are attributed to her and her
own testimony indicates her anti-union bias. She admitted that
subsequent to this date she advised an employee not to join the Union.
Under all the circumstances, we do not credit her denials.
The respondent disclaimed responsibility for the statements of
Cleo Barnett. At the,time of these statements Cleo Barnett was in
charge of the distribution of hats to the trimmers. Through her
power to make either easy or difficult assignments she exercised a
substantial measure of control over the trimmers' work.12 She. was
also in a position to judge the trimmers' work on its merits and her
judgments were, evidently considered by the respondent since she was
called to testify in this proceeding concerning the work of all the
discharged employees. Finally, the other employees regarded her
as a supervisor. We find that she is a supervisory employee and that
as such the respondent is responsible for her statements.l"
About September 24, 1936, Mrs. Samuels, one of the complainants,
an employee long in the service of the respondent, was called to the
stockroom on the second floor in the respondent's factory 14 by Mrs.
Anne Bierner, the respondent's wife. Sam Schoenholtz, the respond-
ent's factory superintendent, was present when the two women
entered the stockroom. Mrs. Bierner and Schoenholtz spoke to Mrs.
Samuels about the Union for three-quarters of an hour. They in-
quired whether she had attended union meetings and told her what
a, harmful effect the Union would have on Dallas, that it would drive
the wholesale millinery industry out of Dallas as it had done in St.
Louis, and that no one had a right to come in and tell the millinery
manufacturers what they could do and what they could not do. Mrs.
Bierner and Schoenholtz denied this conversation. Mrs. Bierner ad-
mitted that she came to the factory occasionally but stated that .she
was positive that she had never been in the stockroom. Since the
testimony of one of the respondent's witnesses establishes that Mrs.
12 Ballard testified that Miss Barnett had full authority to give out the hats as she
chose and that there was some dissatisfaction among the workers because some of the
women were given easier hats than others.
13 See National Labor Relations Board v . A. S. Abell Co., 97 F. (2d ) 951 (C. C. A. 4),
enf'g as mod .. Matter o f The A . S. Abell Company and Int . Printing and Pressmen's
Union, Baltimore Branch, Baltimore Web Pressmen's Uniooi No. 31, 5 N. L. R. B. 644;
Matter of Ward Baking Company and Committee for Industrial Organization, 8 N. L. R. B.
558: Norfolk Shipbuilding & Drydock Corporation and Industrial Union of Marine &
Shipbuilding TVorker8 of'America , 12 N. L. R. B. 886.
14 There were two stockrooms on the second floor . The record does not indicate which
one was referred to in the testimony but it is apparent that all the witnesses were
referring to the same room.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bierner had been in the stockroom "a couple of times" we cannot ac-
cept her denial . The denial of Schoenholtz is also unpersuasive. He
failed to deny other testimony of Mrs. Samuels 1` that on several other
occasions he made similar statements to her about the Union and told
her that he formerly had a business like Bierner 's that had been ruined
by a union . 1e Under the circumstances , we find that Mrs. Bierner
and Schoenholtz had this conversation with Mrs . Samuels , and made
the statements attributed by her to then ; and that Schoenholtz on
other occasions made the statements attributed to him by Mrs.
Samuels.
On the morning of September 28, 1936, Mrs . Hyman and Miss Bal-
lard, two active union members , were discharged by the respondent.17
Later that same morning Bierner asked Mrs. C. C. Samuels and
Vastie Dean's two of his employees , whether Mrs. Hyman and Miss
Ballard had been bothering them about the Union and told one of
them that she would not be bothered any more. Bierner denied these
statements but we think the action attributed to him consistent with
his conduct and statements hereinafter discussed and we do not credit
his denial . A few days later one of the employees asked Cleo Barnett
what had become , of Mrs . Hyman and Miss Ballard. Miss Barnett
said that they were "kicked out " because they were working for the
Union and warned the employees that if they wanted to keep their
jobs they had better leave the Union alone. Miss Barnett denied this
statement but under all the circumstances we do not accept her denial.
Sometime between October 5 and 9, 1936 , Doris McCormick, one
of the complainants , was entering the factory. on her way to work
when Bierner called her into his office and inquired whether she had
heard anything in the factory concerning the Union . She replied
that she had not. He then requested that she report to him the names
of any employees who belonged to it and asked whether Mrs. Hyman
had said anything to her mother (Mrs. W. H. McCormick ) about the
Union.19 While Bierner denied that he had ever spoken to Doris
McCormick in his office and denied this conversation , in view of his
other anti -union actions and statements we do not believe his denial.
A short time after this conversation Miss McCormick overheard
Bierner telling one of the colored porters in the factory that he would
close his factory before he would work union members . Bierner
11 Schoenholtz did not specifically deny that he made the statements to Mrs. Samuels
but be testified when questioned concerning other statements that he is alleged to have
made, that he "never spoke union to . . . anyone . . . up there" and that he "never
had any conversation with reference to the union at all."
' Schoenholtz testified that when he was in business in St . Louis a union had called
a strike "toward the tail-end of his business " there.
14 These discharges are discussed in detail in Section C, infra.
18 Mrs. Samuels overheard part of Bierner's conversation with Vastie Dean . Dean was
not called to testify.
'-At the time of her discharge Mrs. Hyman worked beside Mrs. W. H. McCormick in
the respondent ' s factory.
MIKE BIERNER 681
made no denial of this statement. On October 23, 1936, Mrs. W. H.
McCormick and her daughter, Doris McCormick, were discharged by
the respondent.20 Despite this series of discharges the Union con-
tinued its solicitation of membership among the respondent's
employees.
About the end of January 1937, Cleo Barnett brought some work to
the table where Mrs. Lewis and Mrs. Ethetton were working and re-
marked to Mrs. Lewis that if she continued to sit near Mrs. Ethetton
she would soon be a "full-fledged Union member." She added that the
employees were doing wrong by joining the Union and that they would
never get anywhere' with it. Miss Barnett denied these statements
but for reasons heretofore stated concerning her testimony we do not
believe her denial.
About the middle of March 1937, Mrs. Samuels, a union member,
was called into Bierner's office concerning some complaints about her
attitude toward others in the factory. The conversation subsequently
turned to unionism and Bierner stated to her that it was not right for
an outsider to come to Dallas and tell him how to run his business, that
"he wasn't going to have a gorilla from New York . . . telling him
how to run his business," and that the Union would be a "tragedy to
Dallas" and would drive the wholesale milliners out of Dallas. While
Bierner's testimony indicates that he had a conversation with Mrs.
Samuels he denied that he ever mentioned the Union to her. In view
of the consistency of these statements with Bierner's testimony on the
witness stand that he resented a union "telling him how to run (his)
business," as well as with other similar statements which he made to
his employees, we are not convinced by his denial.
Individual employees appear to have stopped soliciting members for
the Union after the discharges but the union organizers persisted in
their efforts by meeting the employees outside of the factory and by
visiting their homes.
In July 1937, Cleo Barnett was promoted to the position of floorlady
and thereafter was in full charge of the women employees. From the
time she assumed these duties until the time of a general millinery
strike on August 16, 1937,21 she consistently questioned the employees
under her supervision concerning the extent of membership in the
Union and by various statements indicated her hostility to the Union.22
20 These discharges will be discussed in detail in Section III C , infra.
21 The strike occurred after an effort by the Union to bargain collectively with the
millinery manufacturers . Approximately 14 employees of the respondent joined the
strike, which ended on September 7, 1937. The respondent rehired most, but not all,
of the union members who went out on strike . There are no issues under the pleadings
either with respect to a failure to bargain collectively or with respect to the reinstate-
ment of any strikers except Mrs . Grace T. Reed , Miss Louise Reed , and Emma Lee
Sperling , whose cases we consider infra.
22 Louise Reed testified that Miss Barnett told her "how it would hurt ale if I joined (the
Union )" ; that she made " little remarks" for two or three months prior to the general
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Miss Barnett denied all the statements attributed to her, not
only is her anti-union bias apparent from her testimony but by her own
admission she told one of these employees, just prior to the strike, that
"in my opinion if she joined the Union it would hurt her because I
wasn't going to join." Under the circumstances, and for the reasons
heretofore stated, we do not credit her denials.
We find that the respondent by the activities of himself, his wife,
and his supervisory employees in making disparaging anti-union state-
ments to employees; in threatening employees about their organiza.
tional activities; in making inquiries of them in that connection; in
stating to employees that other employees had been discharged for
union activities; in requesting that employees report the names of
union members; in stating that the factory would be closed in prefer-
ence to employing union members; in advising employees that they
would never "get anywhere" with the Uliion ; and by each of the above
acts, and by other acts, has interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed by Section 7 of the
Act.
2. Participation by the respondent in employer's associations
The complaint alleges, in substance, that the respondent by induc-
ing certain persons in the City of Dallas to interfere with, restrain,
and coerce his employees in the exercise of the rights guaranteed
by the Act, and, by participating in the activities of the Dallas
Millinery Council, the Dallas Open Shop Association, and the Dallas
Chamber of Commerce, interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed in Section 7 of the
Act. The evidence is insufficient to support these allegations and
they will be dismissed.
B. Discrimination
The complaint , as amended at the hearing, alleged that the re-
spondent discriminatorily discharged Mrs.' Juanita Hyman, Miss
Doris McCormick , Mrs. W . H. McCormick , C. C. Stamps , Mrs. Ola.
Ethetton•, Mrs. C . C. Samuels, and Mrs. Grace T. Reed . The Trial
Examiner in his Intermediate Report dismissed the complaint so far
as it related to Mrs. C. C. Samuels and Mrs. Grace T. Reed. We
concur with the Trial Examiner's recommendations as to these two
millinery strike of August 16, 1937 ; that she told her about a week prior to the strike that
it would be better not to join the Union ; and that she and Miss Barnett discussed who
belonged to the Union . Mrs. Grace T. Reed testified that Cleo Barnett told her not to
let "people" know where she lived because "Union people would be aggravating me and
tormenting me to join the Union " ; that Miss Barnett "wasn ' t in favor of it . . . I don't
remember the particular words, but she just talked against it " ; and that "two to three
days before the strike" Miss Barnett said that "she would just be glad to know those that
weren't loyal to the firm and were union, she said they would like to know those,•people."
MIKE BIEDRNER 683
persons and in view of the failure of the Union to file exceptions
as to them we will dismiss these allegations of the complaint without
detailed discussion.23 We shall discuss the individual cases of the
remaining five employees.
Mrs. Juanita Hyman.24 Mrs. Hyman was employed by the re-
spondent as a trimmer for about 2 years prior to her discharge. Her
duties consisted of sewing ribbons, veils, and ornaments to the hats
in the arrangement indicated by a sample hat. She had over 8 years
prior experience in the millinery industry including a period under
Bierner when lie was a foreman in another plant. When Bierner
went into business for himself she was the first trimmer employed
by him and was employed steadily thereafter. She was admittedly
one of the respondent's best and fastest trimmers and no issue with
respect to her ability was raised at the hearing.
Mrs. Hyman joined the Union about September 16, 1936, and
discharged on September 28,1936.25 During this brief period between
the time she joined the Union and her discharge, she was extremely
active in union affairs, including the solicitation of members among
the respondent's employees and conveying employees in her car to the
home of the union organizer.
When Mrs. Hyman came to work-on Monday morning, September
28, Bierner called her into the showroom and told her that because
business was slack he was laying her off for a few days. At about
that time Audice Ballard came in and Bierner informed her that she
too was to "lay off" for a few days. Mrs. Hyman waited on the outside
of the showroom while Bierner laid off Miss Ballard. Mrs. Hyman
testified that when Bierner came out of the showroom she accused
him of discharging them because of their union membership; that
Bierner first denied this charge but when Mrs. Hyman persisted in
her accusations, he became angry and said, "You are damn right, I am
letting you go because of the Union and everybody else who had
anything to do with it .... What do you think I am going to do,
let you ruin me? . . . You girls have just ruined me."
23 See Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsyl-
vania and Vicinity, Local No. 133, 11 N. L. It. B. 1397.
21 Miss Audice Ballard, also a•member of the'Union, was discharged at the, - same time,
as Mrs. Hyman. After testifying at the hearing, Miss Ballard withdrew her charges
of discrimination and a motion to dismiss as to her was granted. According to the
respondent ' s exceptions to the Intermediate Report she was reinstated by him. However,
her testimony , together with the facts surrounding her discharge , will be considered for
its bearing upon Mrs. Ilyman 's discharge.
25 The charge and complaint state that Mrs. Hyman was discharged "about the middle
of September 1936." At the hearing the best estimate of the time that she could give
was "the latter part of September 1936." The respondent 's pay roll, introduced in evi-
dence, indicates that she was employed during the week ending Friday, September 25, 1936,
but not during the week ending October 2, 1936 . The testimony indicates that the day
of her discharge was Monday and that she received some cash for having worked after
September 25, 1936. It is apparent , therefore , that her discharge took place on September
28. 1936.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bierner denied that he mentioned the Union to Mrs. Hyman and
Miss Ballard and testified that after he told them of the necessity to
lay them off a few days Mrs. Hyman, as the spokesman for the two,
"jumped on him" and accused him of taking that action because of
their union membership and that he then discharged them, after tell-
ing them, "I have taken a lot of fussing and trouble off of you. I have
put up with a lot from you, your beer drinking, your smoking, and I
have taken just all that I am going to stand." While one of the re-
spondent's office employees attempted to corroborate Bierner's version
of the conversation, her testimony indicates that she did not hear
substantial portions of the conversation, and we cannot accept it as
accurate. Miss Ballard's testimony, on the other hand, corroborates
that of Mrs. Hyman, and establishes that Bierner did not speak of any
trouble that they had caused and that he did mention the Union. The
respondent voluntarily reinstated Miss Ballard subsequent to this
testimony and we think it unlikely that he would have done so if her
adverse testimony had been untruthful. We find that Bierner made
the statements attributed to him by Mrs. Hyman and Miss Ballard.
The respondent contends that it was necessary to lay off some
employees because he wished to cut down production, that Mrs. Hy-
man and Miss Ballard were included among those to be laid off tem-
porarily, and that he discharged them after cumulative provocations
when they provoked an altercation with him at the time of the lay-off.
While the proof of the respondent's desire to reduce production is not
entirely persuasive,26 we accept his contention, since four other trim-
mers were laid off during the same week.27 However, we are satisfied
that Mrs. Hyman was included in the group laid off for discriminatory
reasons. The respondent's usual practice was to lay off the slow
workers first, but no claim was made that either Mrs. Hyman or Miss
Ballard was slow. On the contrary, Mrs. Hyman admittedly was one
of the respondent's "best and fastest" trimmers, and the earnings of
both women for the week prior to their lay-off were higher on a piece-
work basis than those of 13 trimmers who were not laid off, as wel]
as those of the other 4 trimmers who were laid off. The respondent
advanced no precise reason'for Mrs. Hyman's and Miss Ballard's in-
clusion in the lay-off,28 but asserted that Mrs. M1111,29 the floorlady,
2° The lay-off occurred in the midst of the busy season and the pay roll for the week
of September 28 to October 2, 1936, indicates that six new employees whose occupations
are not shown were hired in the same week. Bierner claimed that the new employees
were hired as apprentices. However, the regular employees could have performed any
work to which any apprentices were assigned.
27 Mrs. Priest, Beulah Nelson, Miss Colbert, and Bonnie Wall. There is no showing that
any of these four except Beulah Nelson was a member of the Union.
xs Bierner did not claim that any past provocative conduct on their part was a factor
in the decision to lay them off, although lie did claim that such conduct was a factor
in the decision to discharge them.
29 Mrs . Mull did not testify at the hearing. According to the testimony of. the re-
spondent, she left his employ in July 1937 and was residing in California at the time
MIKE BIER\TER 685
had told him that she wished to lay them off, and that he merely trans-
mitted the message to them because he happened to arrive at the fac-
tory first that morning. However, other parts of Bierner's testimony
indicate, and we find, that he made the decision to lay them off.30 The
fact that other employees who were not members of the Union were
laid off in that week is not entitled to decisive weight here since they
were all relatively new employees.. On the other hand, we have here-
tofore found that the respondent was aware of the union activity in
his factory at this time, that he was actively opposed to the Union, and
that inquiries about the Union were made and warnings against join-
ing were given to the employees at this time by the respondent's wife,
his factory superintendent, and by another of his supervisory em-
ployees. Moreover, we have found, supra, that it was on the day of
these discharges that Bierner asked two of his employees whether they
had been bothered by Mrs. Hyman and Miss Ballard about the Union,
and stated that they could not bother the employees any more; and
that it was a few days later that one of the respondent's supervisory
employees stated to a group of the respondent's employees in the fac-
tory that Mrs. Hyman and Miss Ballard had been discharged because
of their union membership. Finally, Bierner's statements in the
course of the altercation which occurred when the lay-off was effected,
explain his actual motivation. Upon all the evidence we find that the
respondent included Mrs. Hyman in the lay-off on September 28,
1936, because of her union membership and activity.
We are not persuaded that the character of the respondent's discrim-
ination against Mrs. Hyman changed from a temporary to a perma-
nent dismissal as a result of the altercation and her allegedly unsat-
isfactory past conduct.31 The respondent introduced evidence in sup-
port of his claim that Mrs. Hyman was a "trouble-maker," always
"fussing and hell-raising" in the factory, had taken part in arguments
with fellow-employees in' the factory, and that she drank beer and
smoked cigarettes in the factory during working hours contrary to
the rules.
Considerable emphasis was placed by the respondent on the fact
that Mrs. Hyman had an argument over some thread with a fellow-
of the hearing and therefore was not available . The respondent did not seek to introduce
her testimony by deposition, although the Board's Rules and Regulations provide for the
taking of testimony by that method.
30 Bierner testified in part, "You never know where you stand in the hat business, but
I knew I had enough in stock and I had to lay off somebody that week , so I simply
called those two girls in to tell them that they would have to stay home 3 or 4 days,
or maybe a week," and that he "more or less" picked them out at random.
3' Even if, contrary to our finding, the respondent's original intention was to lay her
off temporarily rather than discharge her permanently , the lay-off was an unlawful
discrimination in regard to her tenure of employment . The altercation and asserted ante-
cedent causes for dismissal , hereinafter discussed , would not affect either our authority
or decision with respect to the appropriate remedy , treated in the Section entitled
"Remedy" infra, in order to restore the status quo which existed prior to such unlawful
discrimination against her.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trimmer, Mrs. Chenault. However, that incident took place over 6
months prior to Mrs. Hyman's discharge and Mrs. Chenault herself
not only regarded the incident as trival but testified that this was the
only argument that she had with Mrs. Hyman during the 2 years
that they worked together. Another employee, Mrs. Smith, claimed
to have had an argument with Mrs. Hyman over a spool of thread.
Her testimony concerning this incident is self-contradictory and
vague as to the details of the occurrence, and she admitted that "it was
so long ago she didn't exactly know how it all happened." Several
witnesses testified that Mrs. Hyman drank beer in the factory but
no one saw her drink it, although they indicated that they either saw
her pay for it or saw the bottles in front of her. Their testimony
varies substantially as to the amount consumed and the time of these
occurrences. Mrs. Hyman denied that she had done any drinking in
the factory during working hours. Bierrier admitted that he did
not know who was doing the drinking and it was established that
some of the men had been ordering beer in the factory until forbidden
to do so by Bierner. Thereafter the drinking stopped. Mrs. Hyman
admitted that she had smoked at the trimming tables but stated that
when she was told not to smoke at the tables, she confined her smoking
to the rest room where smoking was permitted. A. majority of the
women in the factory smoked and Bierner spoke to them all generally
about smoking at the tables and thereafter there was no trouble.
Other incidents of an equally trifling character were brought into
the hearing, and even the private life of this employee did not
escape some veiled allusions.
Bierner's own testimony indicates that these faults were not con-
sidered by him at the time to be serious enough to be a cause for the
discharge of this employee. When questioned on the witness stand
concerning whether he ever spoke to Mrs. Hyman about drinking or
smoking prior to her discharge, he stated, "I told her once ... about
... their troubles there ... I said something about smoking one time,
and the trouble they was [sic] having up there, and I tried to get her
to quiet down ... I don't remember off hand when it was." (Italics
ours.) When asked why he did not discharge her at that. time, he,
replied, "I thought she would quiet down and everything would run
smooth." While the proof is by no means conclusive, Mrs. Hyman
may have done some of the things attributed to her. However, she had
been retained by the respondent for several years during which he
had known of and made allowances for her asserted shortcomings.
We are convinced upon this record that the faults attributed to her
were not the cause of her discharge.32 We find further that the alter-
M Miss Ballard was discharged at the same time on the ground that Mrs. Hyman had
acted as the "spokesman" for both of them, although Miss Ballard took no part in the
altercation and although the respondent had no criticism of Miss Ballard's conduct until
MIKE BIE'RIv ER 687
cation was an incident to, and not the cause of, Mrs. Hyman's dis-
charge and that it provoked an admission of Bierner's intention to get
rid of her because of her union membership and activities.
We find that the respondent discharged Mrs. Juanita Hyman be-
cause of her union membership and activities.
Mrs. Hyman,earned between $13 and $29 per week on a piece-work
basis while employed by the respondent. According to the respond-
ent's pay roll, her average wage was approximately $16 per week.
Her earnings from the time of her discharge until the time of the
hearing are not indicated in the record. Her testimony, however, in-
dicates that for a portion of this time she was unable to work due
to the birth of a child to her. Mrs. Hyman was employed at the time
of the hearing in a millinery establishment where she was paid $9
per week. She indicated her desire to be reinstated to her former
position in the employ of the respondent.
Mrs. W. H. McCormick and Miss Doris McCormick
, The employment of Mrs. W. H. McCormick and her daughter, Miss
Doris McCormick, was terminated on October 23, 1936. Since the cir-
cumstances surrounding their discharge are similar, they will be treated
together.
Mrs. McCormick worked for the respondent as a trimmer from
April 1935. She had previously worked for 5 years in the millinery
industry. After her first year in the employ of the respondent she was
employed regularly and was not laid off during the slack season.
Owing to sickness in her family, household duties, and domestic con-
troversies, Mrs. McCormick did not work full time every week and
since she was paid on a piece-work basis her pay checks, ranging
from about $6 to $14 per week, reflected this part-time work. Mrs.
McCormick joined the Union in the latter part of August 1936. She
subsequently attended several union meetings at the home of the union
organizer and was active in the solicitation of membership in the
Union among the employees at the factory.
Doris McCormick was employed by the respondent in September
1935, as a hat ticketer, order filler, and floorgirl. Her duties con-
she had become associated with Mrs. Hyman. On the latter point Bierner testified as
follows :
Q. [By Mr. Wells] . . . As I understand your testimony . . . Miss Ballard was
a little better than the average worker and a nice girl. . . .
A. All right, she was, until she got to running in bad company up there.
Q. Who do you call bad company?
A. Them girls up there that were wielding a bad influence over her . . . I mean
this Hyman . They just talked .. . to her until .. . she begin [sic] to get out of
line. . .
Q. As a matter of fact Audice Ballard wasn't really under suspicion by you
and accused of getting out of line, as you call it, until she joined the Union,
was she? _
A. I don 't know. I don't say she didn't make any mistakes.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sisted of putting tags on hats, blocking them, and keeping the trim-
mers supplied with materials. This employee was laid off by the re-
spondent from November 1935 until February 1936, because of the
slack season but thereafter worked continuously, even through the dull
season in the summer of 1936, until October 23, 1936. Miss McCormick
did not become a member of the Union until August 1937, which
was after her employment with the respondent was terminated. At
the close of the working day on October 23, 1936, William Maddans,
the foreman who was in charge of the factory during the absence
of Bierner and Schoenholtz, told Doris McCormick to "stay at home
until he called her." 33 He told her to tell her mother, who was not
working that day because of personal reasons, that she too was "laid
off."
The respondent's usual procedure was to notify employees who were
laid off when they were to return to work. However, no notification
was ever sent to Mrs. McCormick. In addition, Mrs. McCormick ap-
plied for work at the respondent's factory at least once during the next
busy season in January 1937. At that time most of the workers
laid off with her were rehired and many new employees were hired
by the respondent to do work similar to that which Mrs. McCormick
had been doing. There is admittedly a scarcity of experienced work-
ers in the industry, especially during the busy season, but Mrs.
McCormick, who was an experienced worker, was not reinstated.
The respondent contends that due to the dull season it was necessary
to lay off a number of employees and that Mrs. McCormick was in-
clucled in the lay-off 34 because she was a very slow worker. These
lay-offs did occur at the beginning of the dull season and this reduc-
tion in force was in accordance with the respondent's established
practice of laying off some of his employees during such season. How-
ever, we are not persuaded that Mrs. McCormick was included among
those employees laid off for the reason assigned by the respondent.
While it was the respondent's policy to lay off the slowest workers
first, the best and most experienced workers were always retained.
Mrs. McCormick had been retained in the previous dull season 35
and her earnings at that time were above those of half of the trimmers
then working for the respondent. Mrs. McCormick's earnings at
piece-work rates, despite the fact that her family duties often kept
her away from work, were substantially higher than those of some of
13 A non-union employee doing similar work, who had then only been in the respondent's
employ for one month , was retained.
34 Eight other trimmers , namely Pearl Deice , Lena Hitchcock, Ola Ethetton, Mrs. Jordan,
Clara Owing , Mrs. Robinson , Fay Ross, and Cleo Williams were laid off at the same time,
but none of these had worked for the respondent during the previous dull season. As
far as the record discloses , these employees were not then members of the Union . although
some of them subsequently joined.
81 June to July 1936.
MIKE BIERR\ER 689
the respondent's employees who were not laid off on October 23 38
While Bierner, several supervisory employees, and Mrs. Chenault,
the respondent's fastest trimmer, characterized Mrs. McCormick as a
slow worker'37 her earnings in relation to those of other trimmers
contradict that assertion.
The respondent contended at the hearing that Doris McCormick
was selected to be laid off because she was incompetent. Schoenholtz
testified that her work was very unsatisfactory "at times"; Bierner
testified at first that he had no particular knowledge of her work,
"merely I knew that she was nothing to go wild about." He then
added, however, that on numerous occasions he saw how many errors
she had made, that they tried to help her by "nursing her along," but
"that girl made so many mistakes in filling orders that I went crazy,
but we allowed for all those things." Cleo Barnett, her immediate
superior, when asked whether Miss McCormick could do her job,
stated : "Well, she did for a while. I think she made several errors."
[Italics ours.] However, it is undisputed that this employee was
given two raises in wages during the 13 months she was employed.
Her testimony stands uncontradicted that she was never told by the
respondent or any other supervisory employee that her work was
unsatisfactory. Although she had been laid off by the respondent
during the previous year from November to February, Miss Mc-
Cormick worked continuously through the dull season of the summer
of 1936, except for 1 week. We find that her alleged incompetency
was not the cause of her lay-off.
As we have heretofore noted, shortly after the discharge of Mrs.
Hyman and Miss Ballard, Bierner questioned Doris McCormick con-
cerning her knowledge of the Union and the association of her mother
with the discharged women. The employment of the McCormicks
was terminated about 4 weeks after the discharge of Mrs. Hyman and
Miss Ballard and a short time after Bierner made this inquiry. At
the time of these lay-offs, Cleo Barnett told the employee who was
retained in Doris McCormick's position that the McCormicks were
discharged because they belonged to the Union. While Cleo Barnett
36 A comparison of the respondent ' s pay rolls for approximately one dozen weeks
picked at random reveals that Mrs. Bailey, an employee who had not been employed
as long as Mrs. McCormick , earned less than Mrs. McCormick every week . Another em-
ployee , Mrs. Myers, earned more than Mrs. McCormick for 2 weeks , less than she did
for 8 weeks and approximately the same for several weeks . The respondent's pay roll
for the week ending October 16, 1936, the week prior to her "lay -off," reveals that 13
trimmers earned less than M •rs. McCormick and the pay roll for the week ending October
9, 1.936 , reveals that 6 trimmers earned less than she. There is no showing that this
disparity in earnings was due to unusual factors." The two above -named employees were
retained when Mrs. McCormick was laid off.
37 Bierner , when confronted with his pay rolls which indicated that others earning less
than Mrs. McCormick were retained in his employ when she was laid off , stated : "It is
my business to decide whether I will keep them 'or not," and "she [another employee]
might have made a whole lot more for some weeks ;" the supervisory employees did not
indicate how her speed compared with those retained ; and Mrs. Chenault testified :
"I thought she [Mrs. McCormick ] was slow-I don't know how she rated."
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that statement we have heretofore adverted to her anti-union
bias and the general lack of credibility of her testimony.
Under all the circumstances we are not persuaded by the reasons
advanced by the respondent for the "lay-off" and failure to rehire
these employees. The respondent was opposed to the unionization
of his plant and plainly associated the McCormicks with Mrs.
Hyman and Miss Ballard, both of whom were discharged during the
previous month. We find that Mrs. W. H. McCormick was dis-
charged by the respondent on October 23, 1936, because of her union
membership. and activities, and that her daughter, Doris McCormick,
was discharged on the same day by the respondent because of her
supposed union membership.38
At the time of her discharge by the respondent, Mrs. McCormick
was earning approximately $11 per week at piece work. She testi-
fied that between that date and the time of the hearing she had a
record of her earnings amounting to $88, but that this was not a
complete record of her earnings during that period. She was not
employed at the time of the hearing and indicated her desire for
reinstatement in the employ of the respondent.
Doris McCormick was earning $12 per week salary until 2 weeks
prior to her discharge when she earned $8 and $10 respectively. Her
earnings from the time of her discharge to the time of the hearing
are not indicated. She was not regularly employed at the time of
the hearing.
C. C. Stamps.33 C. C. Stamps worked for the respondent for about
6 months, beginning around August 1, 1936. He had no previous
S.xperience in the millinery industry and secured his employment
through his brother Hubert, who had worked for the respondent for
more than a year. Both brothers were "pullers" and their duties
consisted of pulling felt hat bodies over hot metal dies. The re-
spondent's factory has four tables for this type of work, each oper-
ated by two men. The Stamps brothers usually worked together,
Hubert being the "back man" and Curtis being the "front man."
The Stamps brothers were discharged by the respondent at the same
time •40
Stamps testified that he joined the Union about November 1, 1936;
however, his union application was dated September 19, 1936, and
se Matter of Fashion Piece Dye Works , Inc. and Federation of Silk and Rayon Dyers
and Sinishers of America, 1 N. L. R. B. 285, enf'd 100 F. (2d) 304 (C. C. A. 3) ; Matter
of Hamilton-Brown Shoe Co. , a Corporation and Local No. 125, United Shoe Workers of
America , affiliated with the Committee for Industrial Organization , 9 N. L. R. B. 1073,
modified on another point and enforced in Hamilton-Brown Shoe Company v. N. L. R. B.,
104 F. (2d) 49 (C. C. A. 8).
S9 This individual was also referred to in the record as Curtis Stamps.
"While Hubert Stamps was also included in the original complaint In this case, he
was employed in Chicago at the time of the hearing and could not appear . His case was
dismissed for lack of proof.
MIKE BIEiRNER 691
there is no explanation for this discrepancy. The record does not
disclose that he engaged in any activity in behalf of the Union.
The employment of both C. C. Stamps and his brother Hubert
was terminated on or about January 29, 1937.41
The week prior to his discharge Stamps had worked 5 days, but
during the week of his discharge he had only worked 3 or 4 days.
He complained to Schoenholtz, the superintendent, about not get-
ting enough work, and was put to work with his brother.42 They
finished one "run" of hats and were working on the second when
Maddans, their foreman, told them to shut down. They finished the
`'run" and left without any further conversation taking place with
any of the supervisory employees. The brothers returned to the
factory on each of the next 3 days and asked Schoenholtz if there
was any work for them. The latter made no reply to their inquiries
and the brothers were not given employment. There is no showing
that there was work available at that time 43 but beyond that the
respondent asserts that the employment of these men was terminated
because of unsatisfactory work, as hereinafter discussed.
Curtis Stamps testified that about 2 months after his discharge
as he was passing on the street in front of the respondent's factory
Schoenholtz called him in and promised to talk to Bierner about get-
ting him his job back provided he would tell who was in the Union;
that Schoenholtz admitted on that occasion that the Stamps brothers
were discharged when it was learned that they were union members ;
and that Schoenholtz told him that it was Baer, the union organizer,
who informed the respondent of their union membership. Schoen-
holtz denied this conversation and claims that the only time he saw
Curtis after the time he was "laid off" was during the general milli-
nery strike in August 1937.44 We do not credit Stamps' testimony
concerning that conversation.45
"Stamps testified that he was discharged about February 9, 1937. The respondent's
pay rolls indicate that neither he nor his brother were employed after January 29,
1937. There is no explanation of this discrepancy and we will accept the date of the pay
rolls as the correct one.
12 The record does not establish whether Curtis was working with his brother during
the period just prior to this occurrence.
13 Two new men were hired in the blocking department during the week beginning
February 20, 1937 , but the respondent denied that the Stamps brothers were replaced
and asserted without contradiction that "pulling " was done thereafter by regular em-
ployees in his employ.
44 Schoenholtz did not deny that the Stamps brothers came back to the factory on the
3 days following their discharge and it is probable that his statement that he did not see
Curtis after Curtis was laid off refers to the period subsequent to the 3 days following the
"lay-off ."
45 There is no showing that Baer was engaged in visiting the millinery manufacturers
at this time , and Schoenholtz ' s testimony that he did not meet Baer in Dallas until
August 1937 , stands uncontradicted . The fact that the respondent had previously dis-
charged several union members makes it improbable that Baer , the union organizer,
would tell the respondent which of his employees had joined the Union.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent claimed that the reason for the termination of the
Stamps brothers' employment was that they were found to have been
responsible for the scorching of a large number of white hats,46 that
they were warned but did not remedy the situation, and that when
the next dull season came the table they were operating was shut
down and they were laid off. Several additional grounds were ad-
vanced at the hearing for Curtis Stamps' discharge. The respond-
ent's supervisors claimed that he was not a good puller and that he
was a slow worker. One of them claimed that he tried to show
Curtis how to work better but that "he always found fault."
On November 9, 1937, during the hearing in the case the respondent
in open hearing offered to reinstate Stamps upon the condition that
he pull an average of 60 dozen hats per (lay for one week. After
considerable discussion both on and off the record, Stamps accepted
this offer. Neither the. record nor the respondent's exceptions to tho
Intermediate Report disclose the subsequent history of his employ-
ment with the respondent.
While the proof is not conclusive concerning the unsatisfactory
character of Stamps' work, he was not active in the Union and there
is no showing that his union membership was responsible for the
termination of his employment. We find that the respondent did not
discharge C. C. Stamps on or about January 29, 1937, because of his
union membership or activity.
Mrs. Ola Ethetton. Mrs. Ola Ethetton was employed by the re-
spondent as a trimmer from July 1936, until she was laid off in
October 1936. She was recalled by the respondent in January 1937,
and worked for him until March 8, 1937.47 Prior to her position in
the employ of the respondent she had worked periodically in the
millinery industry for approximately 8 years.
She joined the Union during January 1937, about the time she was
recalled to work by the respondent following a seasonal lay-off. Mrs.
Ethetton was active in behalf of the Union both in attending meetings
and soliciting membership among the employees of the respondent.
That her union membership was known to the respondent is indicated
by the statement of Cleo Barnett, one of her supervisors, to a fellow-
employee that if she sat near Mrs. Ethetton in the factory, "she would
soon be a full-fledged union lady."
On the afternoon of March 8, 1937, Mrs. Mull, the floorlady in
charge of the women, told five trimmers'48 including Mrs. Ethetton,
49 The exact time of this occurrence is not established.
"The witness testified .that she believed her discharge took place about March 4, 1937,
but states that she was laid off on Monday. The respondent's pay roll indicates that
she earned $2.37 during the week ending March 12, 1937. Therefore it is probable that
she was laid off on Monday, March 8, 1937.
+s The other four trimmers were Mrs. Baxley, Mrs. Hitchcock, Mrs. Nelson, and Mrs.
Faye Ross. Mrs. Nelson was the only union member among the four.
MIKE BIEIRNER .693
that she would have "to let them out" for a few days and told them
to come back on Thursday. When Mrs. Ethetton returned on Thurs-
day, March 11, 1937, she was told by Mrs. Mull that there was' no
work. She noticed, however, that the other four women who were
-laid off with her had returned to work. Mrs. Ethetton remarked to
Mrs. Mull that it was strange that there was work for the others and
not for her and asked if there was anything wrong with her work.
Mrs. Mull 40 told her that it was not her work, that she did not know
anything else and that she (Mrs. Ethetton) would have to talk to
Bierner. Mrs. Ethetton went to Bierner who told her that he did
not have any work.
Mrs. Ethetton's testimony concerning the lay-off is corroborated
by the respondent's pay rolls which indicate that the four trimmers
who, she claims, were laid off with her earned much less than usual
during that week. The pay rolls indicate that these four were em-
ployed continuously thereafter. The respondent's pay roll for the
week in which Mrs. Ethetton was "laid off" 50 indicates that one trim-
mer who was not a regular employee was taken on during that week.61
The following week, two trimmers, who had no previous employment
records with the respondent, were hired.52 The production records
of the respondent reveal that the "lay-off" of Mrs. Ethetton took place
at the beginning of one of the busiest seasons of the year.
In explanation for his failure to reinstate Mrs. Ethetton following
the alleged lay-off, Bierner testified that Mrs. Ethetton was a -very
poor worker, that she did not know anything about the millinery
business, that she was a very slow worker, that she gave trouble, and
that she slowed up the work in the factory. An examination of his
testimony on this matter convinces us of his insincerity. He subse-
quently admitted that he did not know why she was laid off and that
-his testimony concerning her ability was based solely on his observa-
tions of "figures" of the relative earnings of employees on his pay roll.
There is no proof that she gave any trouble in the factory. Mrs. Ethet-
ton admitted that she was a slow worker and that once or twice
Miss Barnett had asked her to speed up. She claimed, however, that
her low earnings Were in part caused by loss of time due to sickness
and the fact that she was_ forced to sit without work many days be-
-cause the older employees were given preference in the distribution
40 See footnote 29, supra.
60 The week ending March 12, 1937.
11 The name of Mrs. Eva Williams appears on that pay roll . The respondent's pay
rolls from October 2 , 1936, to March 15, 1937, indicate that during this period she was
employed for only 2 weeks in January 1937, and that her total earnings for this period
were $7.56. Between January 1, 1936, and October 2, 1936, she was employed for a
total of 5 weeks.
-
52 Mrs . Callahan and Mrs. Weissman do -not . appear on any of the respondent's pay
rolls from January 1 , 1936, to March 19, 1937, and are apparently new employees.
233031-41-vol. 20-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work. Despite these factors she earned more during the period
from February 19, 1937, to March 19, 1937 , than several employees
who were not laid off. Mrs. Ethetton testified that she was never
told by Mrs. Mull or Miss Barnett that her work was unsatisfactory,
and never had any complaints concerning it beyond those about speed-
ing up. Even her slowness was not so pronounced as to make any
particular impression upon Miss Barnett, her immediate superior,
who, when asked "was she a fast worker?" answered "I can't remember
very well-no she wasn't very fast ." Nor is there any evidence by
this supervisor that the quality of Mrs. Ethetton 's work was unsatis-
factory. Moreover , the respondent rehired this employee after a pre-
vious lay-off which took place prior to the time that she joined the
Union. There is no evidence that she was any slower during her
subsequent period of employment than she was previously ; in fact her
earnings during the last period of her employment on piece work
were higher than those of the first period.
As we have indicated above the respondent at the time of her lay-off
was entering a busy season and his pay -roll records in the period
following the lay-off establish an increase in the number of hats pro-
duced, in the number of employees working, and in the amount of
earnings of the workers . Under the circumstances we are of the
opinion that neither lack of work nor her alleged slowness was the
cause for Mrs. Ethetton 's lay-off. The respondent 's hostility toward
the Union as expressed in anti-union statements and in the discharge
of other employees who were union members has been discussed above.,
We find that the respondent in fact discharged Mrs. Ola Ethetton on
March 8, 1937 , because of her union membership and activities , thereby
discriminating against her in regard to the hire and tenure of employ-
ment and discouraging membership in the Union.
During the 3 weeks previous to her discharge , Mrs. Ethetton 's earn-
ings while working for the respondent were between $7 and $9 per
week. Between the date of her discharge and the hearing an incom-
plete record of her earnings indicates that she earned approximately
$20. At the time of the hearing she was employed as a housekeeper
and indicated her desire for reinstatement in the employ of the
respondent.
We find that the respondent by his discharge of Mrs. Juanita Hy-
man, Mrs. W. H. McCormick , and Mrs. Ola Ethetton because of their
union membership and activities and by his discharge of Miss Doris
McCormick because of her suspected union membership and activities,
has discriminated against his employees with respect to hire and tenure
of employment, thereby discouraging membership in United Hatters,
Cap and Millinery Workers' International Union, Local 57, and has
thereby interfered with, restrained , and coerced his employees in the
exercise of their rights guaranteed in Section 7 of the Act.
MIKE BIERNER 695
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order him to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act. We will require the respondent to offer immediate and full
reinstatement to Mrs. Juanita Hyman, Mrs. W. H. McCormick, Miss
Doris McCormick, and Mrs. Ola Ethetton, and further, to make them
whole for any loss of pay they have suffered by reason of their re-
spective discharges by payment to each of them of a sum of money
equal to the amount which she normally would have earned as wages
from the date of her discharge to the date of the offer of reinstatement,
less her net earnings 63 during said period.
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,
Local 57, is a labor organization within the meaning of Section 2 (5).
of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Mrs. Juanita Hyman, Mrs. W. H. McCormick, Miss Doris
McCormick, and Mrs. Ola Ethetton, thereby discouraging membership
in the Union, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
his employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
.within the meaning of Section 8 (1) of the Act.
53 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
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 1590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as "net earnings," but, as provided in the Order below, 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.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated and is not discriminating
in regard to the hire and tenure of employment of Mrs. C. C. Samuels,
Mrs. Grace T. Reed, and C. C. Stamps and has not engaged in and
is not engaging in unfair labor practices, within the meaning of
Section 8 ( 3) of the Act , with regard to them.
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 re-
spondent , Mike Bierner, doing business as Bierner & Son, Dallas,
Texas, and his agents, successors , and assigns , shall :
1.. Cease and desist from :
(a) Discouraging membership in United Hatters, Cap and Millinery
Workers' International Union, Local 57, or any other labor organiza-
tion of his employees , by discriminating in regard to hire or tenure of
employment or any term or condition of employment because of mem-
bership in or activity in behalf of United Hatters, Cap and Millinery
Workers' International Union, Local 57, or any other labor organiza-
tion, or because of suspected membership in any labor organization;
(b) In any other manner interfering with, restraining , or coercing
his employees in the exercise of their rights 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 purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to. Mrs. Juanita Hyman, Mrs. W. H. McCormick, Miss
Doris McCormick, and Mrs. Ola Ethetton immediate and full reinstate-
ment to their former positions without prejudice to their seniority or
other rights and privileges;
(b) Make whole Mrs. Juanita Hyman, Mrs. W. H. McCormick,
Miss Doris McCormick , and Mrs. Ola Ethetton for any loss of pay
they have suffered by reason of their respective discharges , by payment
to each of them, respectively, of a sum of money equal to that which she
would normally have earned as wages from the date of her discharge
to the date of, the offer of reinstatement , less her net earnings during
such period ; deducting , however, from the amount otherwise due to
each of the said employees, monies received by said employee during
said period for work performed upon Federal , State, county , munic-
MIKE BIEIRNER 697
ipal, or other work-relief projects, and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State, county, munic-
ipal, or other government or governments which supplied the funds
for said work-relief projects;
(c) Post immediately in conspicuous places throughout his factory;
and maintain for a period of at least sixty (60) consecutive days from
the date of said posting, notices to his employees stating that he will
cease and desist in the manner set forth in 1 (a) and (b), that he will
take the affirmative action set forth in 2 (a) and (b) of this Order, that
his employees are free to become or remain members of United Hatters,
Cap and Millinery Workers' International Union, Local 57, and that
he will not discriminate against any employee because of membership
or activity in that organization;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that 'the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act by inducing certain persons in the City of Dallas to
interfere with, restrain, and coerce his employees in the exercise of
the rights guaranteed by the Act, and, by participating in the activities
of the Dallas Millinery Council, the Dallas Open Shop Association,
and the Dallas Chamber of Commerce.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges with regard to Mrs. C. C. Samuels,
Mrs. Grace T. Reed, and C. C. Stamps, that the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.