Lettie Lee, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1942

45 N.L.R.B. 448 (N.L.R.B. 1942)

In the Matter of LETTIE LEE, INC. and INTERNATIONAL LADIES' GARMENT
WORHERS' UNION, CUTTERS LOCAL No. 84, A. F. L.
• t
Case No. C,91420--Decided November 9, 1942
Jurisdiction : dress manufacturing industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: interrogation concerning union member-
ship ; anti-union statements ; 'threatened cessation of business ; solicitation of
striking employees individually to return to work.
Discrimination: refusal to reinstate unfair labor practice strikers ; contentions
of employer that there was insufficient work available for all the strikers and
that one of the strikers was not entitled to reinstatement because of his prior
conviction, rejected. V
Collective Bargaining: majority established by signing application cards-refusal
to bargain by : failure to reply to union's requests for a bargaining conference ;
solicitation of strikers, as individuals, to return to work-strike caused and
prolonged by refusal to bargain.
Remedial Orders : cease and desist unfair labor practices ; bargain collectively ;
reinstatement and back pay awarded ; in case of strikers who refused individual
offers of reinstatement subsequent to the employer's refusal to reinstate the
strikers as a group, period from their refusal of such offers to their subsequent
applications for reinstatement excluded in computing amount of back pay due
them ; prior conviction of one striker held not to bar reinstatement.
Unit Appropriate for Collective Bargaining : cutters, slopers, and trimmers, ex-
leluding supervisory employees.
Mr. Maurice J. Nicoson and Mr. Charles M. Ryan, for the Board.
Mr. Leo Shapiro and Mr. Sam Wolf, of Los Angeles, Calif., for the
respondent.
Mr. David Sokol, of Los Angeles, Calif., for the Union.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THIS CASE
Upon an amended charge duly filed by International Ladies' Gar-
ment Workers' Union, Cutters Local No. 84, A. F. L., herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twenty-first Region (Los
Angeles, California), issued its complaint dated December 5, 1941,
45 N. L. R. B., No. 68.
448
LETTIE LEE, INC. 449
against Lettie Lee, Inc., Los Angeles, California, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the,
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly
served upon the respondent and the Union.
With reference to the unfair labor practices, the complaint al-
leged, in substance: (1) that in or about September 1938, and there-
after, the respondent, by attempting to ascertain whether persons
seeking employment with it were affiliated with the Union, by mak-
ing statements to its employees derogatory of the Union, by threat-
ening to terminate its business rather than sign a collective
bargaining agreement with the Union, by raising the wages of its
cutters for the purpose of discouraging them from affiliating with
the Union, and by soliciting various of its striking employees in-
dividually to return to work, interfered with, restrained, and coerced
its employees in the exercise of the right to engage in concerted ac-
tivities for the purpose of bargaining collectively with the re-
spondent or for other mutual aid or protection; (2) that on or about
July 22, 1941, and at all times thereafter, the respondent refused to
bargain collectively in good faith with the Union, although it had
been duly designated as the representative of the respondent's em-
ployees within an appropriate unit; (3) that the respondent' s unfair
labor practices caused and prolonged a strike among its employees
which commenced on or about July 24, 1941, and continued up to
and including the date of the hearing; and (4) that on or about
September 10 and September 14, 1941, the respondent refused to
reinstate to their former or substantially equivalent positions six
striking employees named in the complaintfor the reason that they
had designated the Union as their representative for the purposes
of collective bargaining and had otherwise engaged in concerted
activities for the purpose of bargaining collectively with the re-
spondent or for other mutual aid, or protection. On January 20,
1942, the respondent filed an answer admitting certain allegations
of the complaint with respect to its business, but denying that it had
engaged in any unfair labor practices.
Pursuant to notice,' a hearing was held at Los Angeles, California,
on January 19, 20, 26, 27,'28, and 29, 1942, before Gustaf B. Erickson,
1 The employees named in the complaint were as follows : Louis Baliber , Nolan Berteaux,
Vito N Cimarusti, Angelo P Costella, Donald P Quinn, and Joe Sardo
t At the opening of the hearing , counsel for the respondent raised a question as to the
adequacy of the notice , and requested a continuance to enable him to prepare his case. The
Trial Examiner granted the request and the hearing was accordingly adjourned from
January 20 to January 26, 1942.
493508-44-v0l 4i-------29
450 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
the Trial Examiner duly designated b- the Chief Trial Examiner.
The Board, the respondent, and the Union were represented at and
participated in the hearing.. Full opportunity to be heard, to ex-
amine and cross-examine witnesses;, and to introduce evidence bear-
ing upon., the issues was afforded' all parties. At. the close of . the
Board's 'case, 'the respondent moved,to dismiss'the complaint. The
motion was denied, by the Trial,Ekafniner. At the close of the` hear-,
ing, the Trial Examiner granted, without objection,,a motion by
counsel for the Board to conform, the 'pleadings to the proof. The
respondent then renewed its motion to dismiss the complaint. Rul-
ing on{ this motion was deferred by the Trial Examiner, ,who there-
after denied the motion in his Intermediate Report. 'The respond-'
ent also moved to strike from the record all evidence of conversations
between any of the witnesses and Louis Swartz, on the ground
that Swartz was not authorized to make any statements or per-
foim any acts on behalf of the respondent.3 The motion was de-
nied by the Trial Examiner.. During the course of the hearing,
the Trial Examiner made rulings- on other motions and on the
admissibility-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. • The Trial Examiner
afforded all parties' an opportunity to present oral argument and
to file briefs. All parties waived oral argument. On February
12 and 16, 1942, respectively,' the Union and the respondent filed
briefs with the trial Examiner.
Thereafter, the Trial -Examiner filed his Intermediate Report,
dated March 21, .1942, copies of which were duly served upon the
parties. . • He found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, -within the
meanmg:of- Section 8 (1), (3), and (5) , and Section 2 (6) and (7)
of the Act, and- recommended that it cease and desist, therefrom
and take certain affirmative action designed to effectuate the policies
of.- the Act. Ong, April 22, . 1942, the respondent filed exceptions to
the Intermediate Report and a brief in support of its,exceptions.
Neither the respondent nor the Union requested oral argument be-
fore the Board. , - .
The Board has considered the exceptions ,and brief, filed by the
,respondent and, insofar as the exceptions are inconsistent with the
findings; conclusions, and' order set. forth below, finds them to be
without merit.
s As appears below, Swartz was the foreman of the respondent 's cutting room.
LETTIE LEE, INC. 451
Upon the entire record in the case, the Board makes the following:.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lettie Lee, Inc., is a California corporation engaged in the manu-
facture of dresses. Its office and place of business is,in Los Angeles,
California. In the conduct and operation of its business -. it uses ray-
ons, threads, buttons, buckles, and zippers. During the,year ending
December 31, 1940, it purchased such materials in the amount of
$151,000, of which $136,000 represented purchases from sources put-
side the Siate of California.4 During the same period it made sales
of- its products amounting to. $397,000. Of that amount, $250,000
represented sales to purchasers located outside the State of California.
The respondent' concedes 'that it is engaged in commerce , within'
the meaning of the Act. _
II. THE ORGANIZATION INVOLVED
International ,Ladies' Garynent Workers' Union, Cutters Local No.
84, i4 a labor organization afriliated -with the American Federation of
Labor, admitting to membership cutters employed by "the r'espondei
III. THE UNFAIR 'LABOR PRACTICES
A. .Sequence o l events; irate? ferenee , restraint, and coercion
In January 1940, Angelo Costello , one of the employees involved in
the present proceeding , applied to the respondent for a job as cut-
ter. Sam Botiiman , the respondent 's secretary -treasurer-and .general^,
manager, asked him whether he was- a union man.- Cosfella replied"
that he as not, and was .hired . Later in the same year,. Vito Cima
rusti also applied to Bothnhan for work and was asked whether lie,
belonged to the Union. Ciniarusti said that he did not, and that he-'
knew nothing about it. - Thereafter, in February 1941 , he was'hired.
At the hearing, 13othnian admitted having sometimes asked appli-,
cants for employment whether they were union members, ' giving as
his reason for so doin g that "most of [his ] employees -did not belong,
4 Although a stipulation on commerce , entered into by the respondent and counsel. for
the Board , gives the above figures for purchases '"during the calendar year ending March
31, 1940, " this is obviously an error . The respondent , in a letter of September 11, 1941,,
to the Regional Office of the Board , introduced iri,evidence at the hearing , gave the same'
figures for the period from January 1 to December 31, 1940, which is the period used in
both the letter and the stipulation m,reference to sales. It. would appear that, in both
instance§, the mformatio, covets the'calendai year ending December 31; 1940.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a union, and sometimes a person would be uncomfortable if they
did."
On June 11, 1941, Bothman met with the respondent's male cut-
ters 5 in response to a request by them for an increase in wages. The
meeting was held in the plant after working hours. According to
the testimony of Cimarusti, a witness for the Board,° Bothman first
asked the cutters how many of them belonged to the Union or in-
tended to join it. Receiving no reply, he proceeded to tell them
that the union officials were "a bunch of shysters," who were not
"out to help" the employees and who could do them no good. He
warned them that the Union would "stuff this place full of cutters
and keep you fellows from getting all the work that you should, and
you will have to split it up with the new fellows we will have to put
en." He further advised them that he would have nothing to do
with the Union, saying that he would "sooner close up this place than
operate under a • bunch of shysters," and related an experience' that
he had had in dealing with a union when the cutters had tried "to
run the place" and 'as a result he had had to "clear out." He also
spoke of an impending strike in the industry and said that he wanted
to know the cutters' attitude toward it, stating that he felt safe in
talking to them and that he did not think they would join a strike
if it was called.7
In regard to their request for a raise, Bothman offered the cutters
their choice of an increase in pay, which he said would necessitate the
hiring of another cutter to avoid paying for overtime work, or con-
tinuing at the same rate with the usual amount of overtime. The
latter, he said, would amount to more over the period of a year than
would the raise in wages without overtime. After asking the cutters
to decide and let him know which alternative they preferred, he left
the meeting.
The cutters, decided to stand by,their request for a raise, and on
June 13 again met with Bothman to give him their decision. Both-
man told them that a 15-cent per hour increase would be effective
immediately, but warned them that he did not want them to have
I The male cutters working in the plant at that time were Louis Swartz, Mortimer Litwin,
Louis Baliber, Nolan Berteaux, Vito N Cimaiusti, Angelo P Costella, Donald P Quinn,
and Joe Sardo Swartz was the respondent ' s head cutter , in general charge of the cutting
room . Ile had supervisory duties, and was regarded by his fellow employees as their
foreman.
Cunarusti ' s testimony eeas corroborated in all essential particulars by that of Quinn.
At the hearing, Bothman denied that , anything had been said at this meeting about the
Union , and Swartz and Litwin -testified that they had not heard or did not recall the above
statements Nevertheless, in view of the mutually corroborative testimony of Ciniarusti
and Quinn , and on the basis of the whole record , we find , as did the Trial Examiner, that,
at the June 11 meeting , Bothman made , in substance , the statements attributed to him by,
Cimarusti and Quinn . At the second meeting of the same group , discussed below, Both-
man admittedly asked the cutters how they felt about the Union.
LETTIE LEE, . INC. 453
any dealings with the Union. He also told them that the raise ap-
plied only to them and that they should say nothing about it to the
rest of the employees.
During June and July 1941, the International Ladies' Garment
Workers' Union, herein called the International, with which the
Union is affiliated, made plans- to organize the employees of the dress
manufacturing plants in the Los Angeles area. As part of its pro-
gram, a committee of three was appointed and given the power to
call a strike in these plants on a date to be determined by the com-
mittee. It wrote to the companies involved, asking them to confer
with the International regarding their employees. Early in July,
it, sent such a letter to the respondent, but the respondent neither
answered nor acknowledged the letter.
In the meantime, Harry Scott, then organizer and representative of
the Union, solicited the membership of the respondent's male cutters.
On July 21, 1941, Baliber, Berteaux, Cimarusti, Costella, Quinn, and
Sardo went to the office of the Union .and signed membership appli-
cation cards.
On the following day, July 22, Scott requested David Sokol, the
attorney for the Union, to arrange a conference with the respondent
for the purpose of collective bargaining on behalf of the cutters.
Sokol telephoned the office of the respondent and asked for' Bothman.
He did not talk to Bothman, but left his name and telephone num-
ber with the respondent's telephone operator. On the following day,
July 23, Sokol again telephoned the respondent's office and asked for
Bothman, but again he was unable to talk to Bothman. He asked the
operator why Bothman had not returned his call, and requested her
to give Bothman a message that Sokol represented the Union, that
it desired to enter into negotiations with the respondent, and that,
"if the Company did not recognize the Union, inasmuch as it repre-
sented the majority, there was a possibility of a strike because of the
company's unfair labor practices."
That night the strike committee of the International met. It re-
ceived a report from Scott that a majority of the respondent's cut-
ters had signed membership applications, and was told of Sokol's
failure to get in touch with Bothman. Acting upon this information,
the committee included the respondent among the companies that
were to be struck. At midnight on July 23, the committee advised
Scott that it was calling an industry-wide strike in Los Angeles for
6 o'clock the next morning and that a picket line would be established
about the plant of the respondent.
On the morning of July 24, the strike began. The male cutters
and approximately 14 other employees of the respondent joined the
strike. Later the same day, Bothman appeared at a nearby cafe at
454, DECISIONS OF NATIONAL - LABOR - RELATIONS BOARD
which' the cutters had gathered. He ' told them' that he was surprised
that they-had join e'd:the-strikers; that he thought they were a "bunch
of fools"; that they should not be "chumps"; and that "any of you
[who] want to come back to work, come back with me right now."
During that 'day and on the following day, Sokol made several
a tteinpts to talk, to, Bothman ' on the telephone. He reiterated to' the
respondent's telephone operator that he desired Bothman to speak
to him or to some , other representative of the Union with respect
to "entering 'into a bargaining relationship," and stated that Both-
man's failure to respond to his calls "aggravated the situation."
Bothman.was told of Sokol's calls, but failed to respond..
On July' 26, Bothman telephoned Cimarusti and, 'according to
Cimarusti's testimony, expressed, surprise that -the cutters had gone
on strike, because he. 'had treated them "all right." He told
Cimarusti that "those shysters up there, they can't do' anything for
you. They are just looking. out for themselves * . * * The rest
of the boys are working * * ' *' some of them- are coming in
Monday to work for me * * * I want you to come in." He also
said, according to' Cimarusti, that "if he had to sign up with the
Union that night, he would close up, Lettie Lee [the respondent's
president] would go to Texas and he would open another shop, or
do something." 8 About a month later, Bothman met Cimarusti in
the lobby of the building which houses the respondent's plant. On
this occasion Bothman said' to Cimarusti, "Don't be a damned fool.
Go on up and go to work.":
On September 9, 1941; Sokol wrote to the respondent requesting
the reinstatement of Costella, Cimarusti, Berteaux, Baliber, Sardo,
and Quinn, and at the same time requesting that the respondent bar-
gain with the Union. -On September 13, he again wrote to the re-
spondent, repeating ' his request for the reinstatement of all the
strikers. Bothman made no reply to these requests.
In the latter part of September o'r in October, Bothinan met Quinn,
Berteaux, and Cil'iarusti on the picket line. Bothman told them that
he -'Would have nothing to do with "those shysters up there," but
wanted the three of them to return to work. They said that he would
have to talk to the Union about that, and also asked whether he
wanted Baliber and Sardo back. Bothman replied, "No, I am talking
to you as individuals. I am not going to' talk to you in a group."
Bothman then called a friend of his who was standing close by and
asked him to be a Witness to what was being said. Bothman con-
tinued to urge Quinn, Berteaux, and- Cimarusti, as individuals, to
s Bothman admitted having telephoned Cimarusti to ask him to return to work, but said
that he did not recall the other statements attributed to hun by Cimarusti . We credit Cim-
arusti's testimony , as did the Trial Examiner.
LETTIE LEE, rNC. 455
return, to work. They again asked about Costella, Sardo, and Bali-
ber, but 'Bothman told them that Costella and Baliber were "trouble
makers and "stinkers;" that Sardo wit s ' ah ex-convict, and that-he
-would not take any of, them back • to work, in the plant. • • ' r.
On or about October 8; Quinn went - to the home of ,Foreman
Swartz in response to Swartz's invitation. Swartz told Quinn that
a full crew was working in the cutting room ', but that he wanted
Quinn to return to work. 'When Quinn replied that if he came back
it would have to be with the rest- of the striking cutters, Swartz
replied : ' -
That will never happen. You fellows haven't got a -chance. 'I
better Llet you know now. You just haven't',got a -darned chance.
The Union is going to drop you in a, couple weeks. I, have the
inside information, and I know that the Union is, going to drop
you in a couple weeks, and you won't be'able to get a job any-
where in town. You will be blacklisted.,
In the same conversation, Swartz told Quinn that Bothman was, try-
ing to' get a ,contract with the Government to make uniforms, and
said, "You know, the-Union isn't going to strike against the Govern-
ment." ^ Swartz also reputed that Bothman "would never sign a
'contract, he would close the shop first." Swartz then advised Quinn
to' talk to'-Cimarusti and Berte tux about going back to work.
A day or two after his conversation with Quinn, Swartz telephoned
Cimarusti and asked him whether Quinn had talked' to him. ' Cima-
•rusti replied in the affirmative, and said that the cutters were not
going to return to work except as a group. Swartz told Cimarrusti
.i hat he was • a fool, because the Union was not going to do anything
for him; that several union shops'and the respondent had joined with
the,"M &-M";' and that the "Al & Al" would protect the workers. He
told Cimarusti that the respondent would close up rather than sign
a contract with the Union.
From the, facts set forth above, we find that the respondent sought
to ascertain whether persons, seeking employment with it were in-
terested in or,afriliated with the Union or any other labor organiza-
tion that on June 11, 1941, through Bothman; and thereafter, through
Bothman and Swartz, it made statements to various of its employees
derogatory of the Union and 'union officials,; that it threatened to
terminate its business rather than sign a collective bargaining agree-
The "M & M" refeis to the Merchants and Manufacturers Association of Los Angeles.
See Matter of Sun -Tent Luebbert Co, et at . and Textile Workers Union of America, Local
No. 95, C 1 0; and Independent Canvas Workers Union, Inc., patty to the contract, 37
N. L R. B. 50.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with the Union ; and that it solicited various of its employees
individually to return to work after they had gone out on strike. We
further find, as did the Trial Examiner, that by this course of conduct
the respondent interfered with, restrained, and coerced its employees
in the exercise of the" rights guaranteed in Section 7 of the Act 1°
B. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges, and the Trial Examiner has found, that all
persons employed by the respondent as full-time cutters 11 constitute
a unit appropriate for the purposes of collective bargaining. The
respondent, on the other hand, contends in the alternative that the
bargaining unit should consist of all production employees or of all
persons employed in the cutting room; or that, if the Board finds a
cutters' unit appropriate, all employees classified as cutters on the
respondent's pay roll should be included.
In addition to cutters, the respondent's production employees, as
listed on its pay roll, include designers, assorters, operators, drapers,
pressers, finishers, time workers, and sample makers.12 In the process
of manufacture, a dress passes through the hands of employees in each
of these classifications; the operations are continuous, and all the
employees work in the same building and under the same general
working conditions. All production employees might, therefore, con-
stitute an appropriate bargaining unit. At the present time, however,
the Union is the only labor organization which has requested recog-
nition as the representative of any of the respondent's employees, and
it neither admits to membership nor is seeking to represent any em-
ployees except the cutters. To, find a unit of all production employees
appropriate would, therefore, deprive the cutters of the benefits of
collective bargaining until the remaining production employees are
organized. Under similar circumstances, we have previously found a
10 In its,biief the respondent contends that the Tual Examinei s finding of restraint, inter-
ference, and coercion, based upon the alleged derogatory and anti-union statements of Both-
man and Swartz, was in violation of the right of free speech guaranteed by the First Amend-
ment toy the Constitution. The Supreme Court has held, however, that the Board may
consider what an employer has said as well as what he has done in determining whether
he has interfered n ith, restrained, and coes ced his employees See N L R. B V. Virmansa
Electric and Power Company, 314 U S 469 In the present case, the anti-union statements
of Bothmau and Swartz cleaily constituted pact of a course of conduct aimed at discourag-
ing union activity and therefore within the prohibitions of the Act
"The employees designated in the complaint and Intermediate Repoit by the terns "full
time cutters" are the male employees listed on the respondent s pay roll as cutters.
12During the week ending July 25, 1941 the respondent employed 110 production em-
ployees, 10 of whom iseie listed as cutters
LETTIE LEE, INC. 457
cutters' unit to be appropriate 13 The question remains whether,. in.
this case, the appropriate unit should consist of the full-time cutters
only, as the Trial Examiner has found, or should include some or all
of the other employees in the cutting room.
The cutting room in the respondent's plant is an area partially
enclosed by a partition, within which are located the cutting tables,
tools, and instruments, and shelves upon which materials are kept.
The employees who work in this area are assorters or bundlers; a stock
girl, and all those classified by the respondent as cutters.
The employees listed on the respondent's pay roll as cutters include
both male and female employees, all of whom perform cutting opera-
tions on the dresses manufactured by the respondent, use the same
tools, 'and have the same foreman. The Union contends, however, that
only the men in this group are in fact cutters, whereas the women are
"slopers" or "trimmers" and, as such, are ineligible to membership in
the Union and should not be included in a cutters' unit.14 -
The record shows that, prior to the strike, the men customarily, and
the women occasionally, cut whole garments, but that the women spent
the greater part of their time in the operations commonly known in
the trade as sloping and trimming, which involve the cutting of trim-
mings, linings, padding, and parts of garments for which material is
first pleated or otherwise specially prepared. Although the evidence
regarding the relative difficulty of the work performed by the men and
women is conflicting, the women admittedly received a much lower
rate of pay. Nevertheless, the record shows, and the Trial Examiner
has found, that Katherine Lembke, Dorothy Richards, and Eunice
Usher, the only three women in this classification prior to the strike,
were in fact qualified cutters, and the Union has not excepted to this
finding. Since the strike, the men and women have been doing the
same kind of work: Under the circumstances, we are of the opinion
ii See Mattci of Ci escent Dress Co and Cutteis Local 11, 1 T G lV U., A F. of L, 29
N I, It B 351. Cf Matter of Justin McCarty, Inc and International Ladies' Garment
lVorkgrs' Union, Local No 387, 36 N L R B 800 , Matter of Mot ten-Davis Company, doing
business under the trade name of Donoi,an Manufacturing Company and International
Ladies' Garment Workers' Union No 387, 36 N I, R B 804 ; and Matter of Kohen-Ligon-
Fola, Inc and Internattonal Ladies ' Garment lVorkeis ' Union, Local No . 387, 36 N. L. R. B.
808, in which we found a cutters ' unit inappropriate In these cases organization had been
begun on an industrial basis before the formation of the cutters' local , and all other or -
ganized plants in the same locality had been organized on an industrial basis while the
Union in the present case is a member of a Joint Booed of four locals of the International,
by which it has been represented in bargaining contracts with the Dress Association of
Los Angeles, it has at all times maintained an autonomous position in the International
organization , electing its own representatives and, in some instances , entering into separate
contracts for cutters in plants where only cutters have been organized
14 Scott , a witness for the Board, testified that women cutters are eligible for member-
ship in the Union , but that slopers are not admitted "because of their lack of ability to
do anything other than that [sloping ]," and that trimmers are excluded because they
"are not classified as properly qualified to be cutters " As appears below, however, the
women employed ' by the respondent for such work are in fact qual flod cutters -
458 DECISION'S OF NATTONAL LABOR RELATIONS BOARD
and we find that the slopers and trimmers should be included in the
unit along with the cutters.
The only other employees who work in the cutting room are-the,
assorters or bundlers, who assemble the pieces of the-garments after,
they are cut, and'a stock girl, who gets materials from the shelves as
they are required. The duties of these employees do not involve,
cutting; they are not eligible for membership in the Union; and there,
is'i o' evidence' that they desire to ' be represented by the Union or to'
be included in'a' bargaining unit with the cutters. We therefore find
that they are riot a part of the appropriate unit.
The cutters, slopers, and trimmers who were actually working at
the respondent's plant on July 22, 1941, were Swartz, Baliber; Ber-
teaux, Cimari sti, Costella, Litwin, Quinn, Sardo, Richards, and Usher:
Of these, Swartz was the only one in a supervisory capacity. Although,
the Trial Examiner has included Swartz in the cutters' unit which lie'
found appropriate, and neither the respondent nor the Union has ex=
cepted to this finding, we find that, as a supervisory employee, he is not
within the unit hereinafter found appropriate.
'-The' respondent claims that. Robert Thain and Katherine Lembke
were also in its employ on July22; 1941, and should be included in the
unit. Thain is a brother of Lettie Lee, the president of the respondent.'
Prior to January 1941, he was admittedly employed by the respondent`
as a cutter. In January, however, he left for an indefinite period of
time on account of his health. At the time he left, he was told by
Bothman that, if he returned, he could have his job back. His name
was not carried on the pay roll during July 1941, nor was it included
in the list of employees in, the cutting department furnished to the
Regional Office of the Board by the respondent on September 11, 1941;
and introduced in evidence at the hearing.' He did not return to work
until December 1941. Under these circumstances we find, as did the
Trial Examiner, that Thain was not an employee of the respondent
on July 22, 1941. Lembke, a sloper or trimmer had left work in May
1941 to take, another position for the summer, as she had done on a
previous occasion. The record shows that for this purpose she was
given leave of absence for a definite period. She returned to work
during October 1941. We find that she was an employee of the
respondent on July 22, 1941.
We fund that all cutters, slopers, and trimmers employed by the
respondent, excluding supervisory employees, at all times material
herein constituted, and that they now constitute, a unit appropriate
for the' purposes of collective bargaining' with respect to rates of
pay, wages, hours of employment, and other conditions of employment,
and that said unit insures to employees of the 'respondent, the full
LETTIE LEE, INC. 459.-
benefit of their right to self-organization and to collective bargaining,
and otherwise efFectuates the policies of the Act. We further find•that
on July 22, 1941, the employees within the approprite unit were
Baliber, Berteaux, Cimari sti, Costella, Litwin, Quinn, Sardo, Lembke,
Richards, and Usher. I . . ,
2. Representation by the Union of a majority in the appropriate unit
Of the 10 employees within the appropriate unit, 6 had signed
applications for membership in the Union and requested it to bargain
for them on July 21, 1941. Litwin thereafter personttlly informed
Sokol on July 24, 1941, that he desired the Union to represent him.
We find that on July 22, 1941, and at all times thereafter, the Union
was the duly designated representative of a majority of the respond-
ent's employees in the unit hereinbefore found 'appropriate, and'that,
by virtue of Section 9 (a) of the Act; it was the exclusive representa-
tive of all, the employees in said unit for the purposes of collective
bargaining with the respondent in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
As stated above, the respondent, on July 22, 23, 24, and 25, 1941, was
requested to confer with Sokol or some other representative of the
Union with respect to bargaining for the, cutters. The respondent
made no reply to these requests. Thereafter the respondent, through,
Bothman and Swartz, solicited some of its striking employees, as,
individuals, to return to work, and advised. them that it would have
nothing to do with the Union.
Bothman testified at the hearing, and the respondent claims in its
brief, that its failure to deal with the Union was due to is belief that
a cutters'- unit was not, appropriate.:' On the basis of the entire
record, however, we do not believe that a bona fide doubt as to the
appropriateness of the unit claimed by the Union was the real reason
for the respondent's refusal to bargain. Bothman had previously
expressed to the, cutters his antipathy to the Union and his unwilling-
ness to deal with it. We therefore infer and find that the real reason
for his failure to respond to Sokol's calls was the respondent's. desire
to avoid bargaining collectively with the Union as the representative,
"Although the unit heieinbefore found appropriate differs in some respects from the
unit for which the Union has been contending throughout this proceeding , we find that
fact immaterial under the circumstances . The respondent , by failing to agree to a con-
ference with the Union , precluded any discussion of the unit and in effect refused to
bargain with the Union for employees in any unit
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any of its employees, and that its subsequent questioning of the
unit was merely an afterthought, as the Trial Examiner has found.-
We find that on July 22, 1941, and at all times thereafter, the re-
spondent, by failing to respond to the Union's requests for a bar-
gaining conference, and by its solicitation of strikers, as individuals;
to return to work, refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit,
and that it thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
C. The discriminatory refusals to reinstate
As stated above, on July 23, 1941, after receiving Scott's report that
a majority of the respondent's cutters had joined the UnioIT and that
the respondent had failed to respond to Sokol's requests for a bar-
gaining conference, the International included the respondent's plant
among those in which it called a strike. Having found that the re-
spondent's failure to reply to the Union's requests constituted a re-
fusal to bargain, within the meaning of Section 8 (5) of the Act,
we further find, as did the Trial Examiner, that the strike in the
respondent's plant, which commenced on July 24, 1941, was caused
by the unfair labor practices of the respondent. During the strike,
the respondent persisted in its refusal to deal with the Union, and on
repeated occasions sought to persuade its employees to abandon the
strike and attempted to split the ranks of the strikers by stating that
it would take back some, but not all, of them. These acts of the
respondent constituted additional unfair labor practices which, as the
Trial Examiner has found, served to prolong the strike.
On September 9 and 13, 1941, Sokol notified the respondent, by let-
ter, that the striking employees were ready and willing to return to
work and requested their reinstatement. Since the strike had been
caused and prolonged by the respondent's unfair labor practices, these
employees were entitled, in the absence of some valid reason for dis-
charge, to reinstatement, upon application, to their former or sub,
stantially equivalent positions, even though the respondent had hired
new employees during the strike.17 Nevertheless, none of them has
been reinstated.
11 Cf. N L R B Y. B,les-Coleman Lumber Co, 98 F (2d) '18, in which the Coui t said
"Respondent made no objection to the Conti act on the basis of the propuety of the unit
for which it was being presented The Bonid was entitled to draw the inference that
respondents refusal to negotiate with the Union was motivated, not by doubt as to the
appropiiate umt,'but by a iejection of the collectne bargaining principle"
"Black Diamond Steamship Corporation v N L R B, 94 F (2d) 875 (C C A 2),
cert. den 304 U S 579 , Mattel of McKaig-Hatch, Inc and Amalgamated Association of
Iron, Steel , and Tin Workers of No,tlh America , Local No 11 3 9, 10 N L R B 33;
N L R B v Remington Rand Inc, 94 F (2d) 862 (C C A 2), ceit den 304 U S 576 ;
LETTIE_:LEE- INC. '461
In its answer, the respondent alleged that "it has at all times been
willing that said employees return to work, and that it is now willing
that said employees return to their work . . . that it has requested
.the said employees to return to their work, but that said employees
have refused to do so." At the hearing and in its brief, the respond-
ent contended that there was not sufficient work available for all-; its
employees, and that, since Sardo was an ex-convict, the respondent
was under no obligation to reinstate him. These contentions are
obviously inconsistent with the €illegation that -the respondent was at
all times ready and willing to have its striking employees return to
work. -
The only evidence in support of the respondent's contention that
it was willing to reinstate the strikers is that on several occasions the
respondent, through Bothman and Swartz, invited Berteaux,
Cimariisti, and Quinn to return to work. Baliber, CosteIla, and Sardo
have at no time been offered reinstatement. Moreover, the record
shows that new 'employees, hired during the strike, were retained,in
the respondent's employ after the Union's offer to termnlate the strike,
and that other employees were hired thereafter. The respondent's
contention that there' was insufficient work available is therefore
untenable, nor has it offered any other reason for failing to,'reinstate
B aliber.and Costella.'S
Sardo, the respondent contends, is not entitled to reinstatement
because he is an ex-convict, having admittedly been convicted of a
felony in Wisconsin. The fact of his conviction came to the attention
of Bothman shortly after the strike began. Nevertheless, in its answer
the respondent did not allege Sardo's conviction as a defense to the
charge that he had been discriminated against. In view of this fact,
and since Baliber and Costella were also refused reinstatement,
although in their cases no similar excuse was available, we find, as did
the Trial Examiner, that Sardo's criminal record was not in fact the
reason for refusing him reinstatement, but that the respondent was
unwilling to reinstate any of its striking employees unless they returned
to work as individuals and not as a group represented by the Union, and
was seeking to rid itself of some of the strikers completely. ,
We find, as did the Trial Examiner, that on or about September 10,
and thereafter, the respondent, by refusing to reinstate its striking
Stewa, t Die Casting Corporation v. N L R B, 114 F (2d) 849 (C C A 7) ; Matter
of Rapid Roller Co , it coiporatron and'Local 120, United ; Rubber Workers , of America,
Affiliated with the C I O , 33 N L R B 557, enf'd but remanded on another issue in
126 F ,(2d) 452 (C. C A 7) ; Mattes of Shenandoah -Danes Mining Company and Mine,
Mill d Smelter Workers, etc , 35 N L R B 1153, Matter of The L Hardy Company
and Steel Workers Organizinq Committee (CIO), 44 N L R B 1013.
18 Cimaiusti, Quinn , and Beiteaux testified `that Bothnian had told them that he did
not want to reemploy Baliber and Costello because they were trouble makers ; the-respond-
ent did not offer any evidence in support of this contention
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Louis Baliber, Nolan Berteaux, Vito N. Cimarusti, Angelo
P. Costella, Donald P. Quinn, and Joe Sardo, discriminated in regard
-to their hire and tenure of employment, thereby discouraging mem-
bership in the Union and interfering with, restraining and coercing
-its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the 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 shall order it to cease and desist therefrom and to
take affirmative action designed to effectuate the policies of the Act.
We have found that, on and,after July 22, 1941, the Union was the
exclusive representative of the employees -in the appropriate unit.
Having ' further found that the respondent refused to bargain col-
lectively with the Union as such representative, we shall order it, upon
request, to bargain' collectively with the Union as the exclusive rep-
resentative of the employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
We have also found that the respondent's unfair labor practices
caused 'and prolonged the strike which began on July 24, 1941, and
that on or about September 10, 1941, and thereafter, the respondent
discriminated against its striking employees, Louis Baliber, Nolan
Berteaux, Vito N. Cimarusti, Angelo P. Costella, Donald P. Quinn,
and Joe Sardo, by denying them reinstatement. In such case, we
normally- order the reinstatement with back pay ' of the employees
discriminated against. In the present case, however, the respondent,
after refusing these employees reinstatement as a group, offered rein-
statement to Berteaux, Cimarusti, and Quinn individually. This
they refused, - thereby resuming the status of;, strikers.- We shall'
accordingly modify our usual order-with respect to back pay, insofar
as they are concerned.
We shall therefore order the respondent: • (1) to offer to Baliber.
Costella, and Sardo -immediate and, full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority and other rights `and' privileges; and (2) upon application,
LETTIE LEE, INC. 463
,to offer to B,erteaux, Cimarusti, and Quinn reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges." The reinstatement
shall be effected in the following manner : All employees hired by
the respondent as cutters, slopers, or trimmers after July 24, 1941,
the date of the commencement of the strike, shall, if necessary to
provide employment for those to be offered reinstatement, be dis-
missed. If,' despite such reduction in-force, there is not sufficient
employment available for the employees to be offered reinstatement,
.'ill available positions shall be distributed among the remaining
employees, including those to be offered reinstatement, without dis-
crimination against any employee because of his union membership
or activities, following such system of seniority or other-practice as
has heretofore been applied in the conduct of the respondent's business.
Those employes, if any, remaining after such distribution, for whom
no employment is immediately available, shall be placed upon a
preferential list and offered employment in their former or substan-
tially equivalent positions as such employment becomes available and
before other persons are hired for such work, in the order determined
by such system of seniority or other practice as has heretofore been
followed by the respondent.
. We shall also order the respondent to make whole Baliber, Costella,
and Sardo for any loss of pay they may have suffered by reason of
the respondent's refusal to reinstate them, by payment to each of them
of a sum of money equal to that which he normally would have earned
as wages from September 10, 1941, to the date of the respondent's offer
of reinstatement or placement upon the preferential list hereinabove'
described, less his net earnings 20 during said period.
Berteaux, Cimarusti, and Quinn will also ,be ordered made whole
by the respondent for any loss of pay they may have suffered or
may hereafter suffer because of the respondent's refusal to reinstate
them. However, because of their refusal subsequent to September
'10, 1941, to accept the respondent's offer of reinstatement, we shall
exclude the period from the date of this refusal-to the date on'which
they thereafter applied or hereafter apply for reinstatement in
19 Where an employer has discriminated against employees , reinstatement of the em-
ployees discriminated against is normally necessary to effectuate the purposes of the Act
Sardo 's criminal record - does not, in our opinion ,' warrant our withholding the normally
applicable remedy of reinstatement. '
2013y "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incuired by an employee in connection with obtaining work and working else-
where 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 . Conrpauny, and United Biotherhood of Caipeiaters, and Joiners of
America. Lumber and Saivniill Workers Union , Local 2590. 8 N 'L R'B 440 Monies
received for work pertormed upon Federal, State, county, municipal , or othèF`work=relief
,projects shall be considered as eainnigs See Republic Steel Cooporateon v. N L. R B,
811 U S 7'
1, I
- ,, ..
464 DECISIONS OF NATIONAL-'LABOR' RRELATIONS BOARD
computing the amount of back pay due them.. We shall order the
respondent to pay each of them a sum of money equal to the amount
which he would normally have earned as wages during the period
from September 10, 1941, to - the date on which he refused the re-
spondent's offer of reinstatement and during the period from five (5)
days after the date on which he has since applied or hereafter ap-
plies for reinstatement to the date on which the respondent offers
him reinstatement or places him on the preferential list above de-
scribed, less his net earnings during such periods.2
Even if we were to assume that the respondent's denial of rein-
statement to the striking employees was not discriminatory, we
would nevertheless under the circumstances award them reinstate-
ment and back pay in the manner set forth above. Assuming that
the respondent denied them reinstatement, because their jobs were
occupied by strikebreakers, and for no other reason, and assuming
that a denial of reinstatement on such ground alone was not a
,violation of Section 8 (3) of, the Act, nevertheless the entire situa-
tion was brought about by the unfair labor practices of the re-
spondent in'interfering with, restraining, and coercing the employees
in the exercise of the rights guaranteed in Section 7 of the Act and
in refusing to bargain in good faith With the Union. In this situa-
tion the ordinary right of an employer to select his employees is
gmilified as a'result of the unfair labor practices causing the strike,
and not only are the striking employees entitled to reinstatement
,upon application, but also any refusal by the employer of their re-
,quest for reinstatement subjects him to liability for loss of wages
sustained by virtue of the refusal.22
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CoNCiusIoNs or LAW
1. International Ladies' Garment Workers' Union, Cutters Local
No. 84, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. All cutters, slopers, and trimmers employed by the respondent,
excluding supervisory employees, at all times material herein con-
stituted, and they now constitute, a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of 'the Act. ,
3. International Ladies' Garment Workers' Union, Cutters Local
No. 84, affiliated with the American Federation of Labor, was at all
n See footnote 20, supra
$2 See Matter of The L Hardy Company and Steed Worles Organizing Committee
(CIO), 44 N L. R. B. 1013, and cases therein cited
LETTIE LEE, INC. 465
times material herein, and it now is, the exclusive representative of
all the employees in such unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Ladies'
Garment Workers' Union, Cutters, Local No. 84, affiliated with the
American Federation of Labor, as the exclusive representative of the
employees in the above-stated unit, the respondent; Lettie Lee, Inc.,
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
5. By discriminating with regard to the hire and tenure of em-
ployn-ient of Louis Baliber, Nolan Berteaux, Vito N. Cimarusti;
Angelo P. Costella, Domild P. Quinn, and Joe Sardo, and thereby
'discouraging membership'in_International Ladies' Garment Workers'
Union, Cutters Local No. 84, affiliated with the American Federation
of Labor, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Lettie Lee, Inc., Los Angeles, California, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Ladies'
Garment Workers' Union, Cutter Local No. 84, affiliated with the
American Federation of Labor, as the exclusive representative of all
its cutters, slopers, and trimmers, excluding supervisory employees;
(b) Discouraging membership in International Ladies' Garment
Workers' Union, Cutters Local No. 84, affiliated with the American
Federation of -Labor, or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of their employment;
(c) In any other manner interferring with, restraining; or coerc-
ing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectvely
493508-43-vol 45-30
0
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'through representatives of their own choosing, and to engage in con-
certed activities for the purpose 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) Upon request, bargain collectively with International Ladies'
Garment Workers' Union, Cutters Local No. 84, affiliated with the
American Federation of Labor, as the exclusive representative of all
its cutters, slopers, and trimmers, excluding supervisory employees ;
(b) Offer to Louis Baliber, Angelo P. Costella, and Joe Sardo im-
mediate and full reinstatement to their former or, substantially equiv-
alent positions, without prejudice to their seniority or other rights
and privileges, in the manner set forth in the section entitled "The
remedy" above, and place those of them for whom employment is not
immediately available upon a preferential list in the manner set forth
in said, section, and thereafter, in such manner, offer them employ-
ment as it becomes available;
•(c) Upon application, offer to Nolan Berteaux, Vito N. Cimarusti,
and Donald P. Quinn immediate and full reinstatement to their for-
mer or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, in the manner set forth in the
'section entitled "The remedy"• above, and place those of them for
whom employment is not immediately available upon a preferential
list in the mamler set forth in said section, and thereafter, in such
'manner, offer them employment as it becomes available;
(d) Make whole Louis Baliber, Angelo P. Costella, and Joe Sardo
for any loss of pay they may have suffered by reason of the respond-
ent's discrimination against them, by payment to each of them of a sum,
of money equal to that which he would normally have earned as wages
during the period from September 10, 1941, to the date of the respond-
ent's offer of reinstatement or placement upon a. preferential` list, less
his net earnings during such periods;
(e) Make whole Nolan Berteaux, Vito N. Cimarusti, and Donald P.
'Quinn for any loss of pay, they may have suffered or may' hereafter
suffer because of the respondent's refusal' to reinstate them', by pay-
ment to each of them of a sum of money equal to that which he would
normally have earned as wages during the period from September 10,
1941, to the date on which he refused the respondent's- offer of rein-
statement and during the period from five (5) days after the date on
which he has since applied or hereafter applies for reinstatement to
the-date on which the respondent offers him reinstatement or places
him upon a preferential'list,-less his net earnings during such periods;
(f) Post immediately in " conspicuous places : throughout its plant
0
LTTTIE LEE, INC. 467
in Los Angeles, California, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating: (1) that the respondent will not engage in the con-
duct from which it is ordered'to cease and desist in paragraphs 1 (a),
(b), and, (c) of this Order; (2) that it will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order;
and (3) that the respondent's employees are free to become or remain
members of International Ladies' Garment Workers' Union, Cutters
Local No. 84, affiliated with the American Federation of Labor, and
that the respondent will not discriminate against any employee be-
cause of membership or activity in that organization;
(g) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.