Sterling Corset Co., Inc.

National Labor Relations Board - Board DecisionsNov 15, 1938

9 N.L.R.B. 858 (N.L.R.B. 1938)

In the Matter of STERLING CORSET CO., INC. and UNIVERSAL BRAS- SIERE & JUSTRITE CORSET CO., INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 85 Case No. C-653.-Decided November 15, 1938 Ladies Garment Manufacturing Industry-Employer: wholly controlled sub-. sidiary company-Interference, Restraint and Coercion: anti-union statements; threats to close plant ; surveillance of employees ; circulation of loyalty pledges- Discrimination: compelling union applicants and those suspected of union ac- tivities to quit their employment-Strike: precipitated by compelling employees to quit their employment-Reinstatement Ordered: employees compelled to quit their employment and those who went on strike-Back Pay: awarded to em- ployees compelled to quit employment ; ordered, to strikers who are not rein- stated within 5 days after application. Mr. David A. Morse, for the Board. Breed, Abbott & Morgan, by Mr. Thomas E. Kerwin, Mr. Charles H. Tuttle, and Mr. Frederick S. Bryant, of New York City, and Mr. Harry R. Cooper, of Belmar, N. J., for the respondent. Isserman & Isserman, by Mr. Abraham Isserman, and Mr. Sol D. Kapelsohn, of Newark, N. J., and Mr. Elias Lieberman, of New York City, for the Union. Mr. Daniel J. Harrington, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Ladies' Garment Work- ers' Union, Local 85, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated October 5, 1937, against Universal Brassiere & Justrite Corset Co.,. Inc., New York City, and Sterling Corset Co., Inc., Belmar, New Jersey, herein collectively called the respondents and respectively called the Universal Company and the Sterling Company, alleging that the Sterling Company had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint as 9 N. L. R. B., No. 79. 858 DECISIONS AND ORDERS 859 amended at the hearing after due notice to the respondents, alleged in substance that all the operations, including the labor policies, of the Sterling Company are controlled and dominated by the Universal Company; that the Sterling Company urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union, threatened union members with discharge, and kept them under surveillance in its plant, because of their union membership; than seven- named employees of the Sterling Company, because of their union activity, were harassed, intimidated, and interfered with in a manner which compelled them to quit their employment, and that the Sterling Company had thereby discriminated in regard to their tenure of employment; and that six named employees went on strike in protest against the Sterling Company's unfair labor practices and its discharge of the seven employees. Copies of the complaint and notice of hearing were duly served upon the respondents and the Union. Thereafter the respondents filed answers to the complaint in which they denied that they had engaged in the unfair labor practices. The answers also denied that the operations of the Sterling Company, including its labor policies, are controlled an&dominated by the=Universal Company and-that the Sterling Company is engaged in interstate commerce. Pursuant to notice, a, hearing was held in New York City on October 15, 16, 18, 19, 20, November 15, 16, 17, 18, 19, and December 4, 1937, before Earl S. Bellman, the Trial Examiner duly' designated by the Board. The Board, the respondents, and the Union were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to. examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing counsel for the respondents moved to dismiss the complaint as to the Universal Company on the ground that it was not a proper party to the hearing. The Trial Examiner reserved ruling on the motion. Counsel for the respond- ents also moved that the hearing be postponed pending a decision in the Chancery Court of New Jersey on injunction pioceedirigs brought by the Sterling Company against the Union and several individuals. The motion was denied. At the close of the Board's case and also at the conclusion of the hearing, counsel for the respondents again moved to dismiss the coin- plaint as to the Universal Company. At the conclusion of the hear- ing counsel for the respondents moved to dismiss the entire complaint as not stating any cause of action within the jurisdiction of the Board and for failure of proof to support the allegations of the complaint. The Trial Examiner reserved rulings on these motions. On Decem- ber 17, 1937, a brief was filed by counsel for the respondents. ' 860 NATIONAL L'ABOW-RELATIONS BOARD On May ' 14, 1938, the Trial, Examiner filed his -Intermediate Re- port, denying the motions of counsel for the respondents on which rulings had been reserved at the hearing and-finding that the respond- ents had engaged in and were engaging in the unfair labor practices alleged in the complaint. He accordingly recommended that the re- spondents cease and desist from the unfair labor practices, offer full reinstatement with back' pay to the seven, employees who were forced to quit their. employment, and offer reinstatement with back,pay from May 8, 1937, to the six employees who went on strike. Exceptions to the Intermediate Report were filed, by the respondents on, June , . t .1, 1938.' Pursuant to notice, a, hearing was held before 'the 'Board on June 21, 1938, in, Washington, District of Columbia, for the purpose of oral argument. The respondents and the Union were, represented 'by counsel and participated in the hearing. , Thereafter the re- spondents and the Union submitted briefs which have been con- sidered by the Board. ' I -- . The Board has reviewed the rulings of the Trial Examiner on motions and objections to the admission of evidence and finds that no 'prejudicial errors were committed. The rulings, are hereby af- firmed. The Board has fully considered the exceptions to, the Inter- mediate Report, and save as consistent with the findings, conclusions, and order' hereinafter set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The respondent, Universal Brassiere & Justrite Corset Co., Inc., is a New York corporation having its principal office and place of business in New York City. It is engaged in the manufacture, sale, and distribution of corsets, girdles, brassieres, and kindred articles. It has contracts with factories in different parts of the United- States, under which it ships materials to these factories for manufacture. The manufactured products are then shipped back to it or to its customers on its order. The respondent, Sterling Corset Co., Inc., is a New Jersey cor- poration having its principal office and place of business in Belmar, New Jersey, where it is engaged in the manufacture of corsets, girdles, brassieres; and kindred articles. It was organized in 1931 to purchase and develop ,the small factory of a former contractor for the Universal Company. All the raw materials used by the Sterling Company are received from the Universal Company, and are handled on a contractual basis. The manufactured products are either shipped back to the =-DECISIONS-ANND ORDERS ^861 Universal Company, or to customers of the latter outside of the State of New Jersey. ' The volume of -.raw materials sent to the Sterling Company plant by the Universal Company from January to October 1937 amounted to $710,000, and the wholesale value of the finished products completed by the former during the same period amounted to $1,070,000. 1 All the stock of the Sterling Company is owned by its officers, -who are the wives of the stockholders .and officers of the Universal Company. The record shows that the manager of the Sterling Com- pany does not consult its officers in respect' to problems, which, arise ,and decisions which have to be made regarding its business, but in- stead consults the officers of the Universal Company. The secretary- treasurer of the Universal Company visits the Sterling Company plant weekly to observe its operations. The Sterling Company is completely dependent upon the Universal Company for all its mate- rials and the disposal of the finished-product. At the oral argument counsel for the respondents, although insisting that the complaint -should be dismissed in so far as it attributes the alleged unfair labor practices to the Universal Company, stated, "I am not making 'any effort to show that there is any separateness between the companies. I am merely stating the facts." - It is apparent from the operations of the respondents that the -placing' of the legal title of the stock of the Sterling Company in the wives of the officers and stockholders of the Universal Company does not divorce the control of the Sterling Company from the Uni- versal Company. We find, for the purposes of this proceeding, that the Sterling Company is wholly controlled by the Universal Company. II. THE ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, Local 85, is a labor organization affiliated with the Committee for Industrial Or- ganization admitting to membership all production employees of the respondent Sterling Company, exclusive of supervisory and clerical employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The history of union organization in the Sterling Company plant dates from the transfer of Oscar Kuehner, an employee of the Uni- versal Company, from its plant in New York City to the Sterling Company plant in Belmar. Some time after his transfer, Kuehner, who had continued to receive the union wage scale prevailing at the Universal Company, received a wage reduction to correspond with the wage scale being paid at the Sterling Company. He thereupon dis- S62 NATIONAL -LABOR RELATIONS BOARD ;cussed the advantages of union organization with other employees at - this plant, and in December 1936 a committee for unionization was -formed which proceeded to function under the direction of outside union organizers. Meetings were held at the homes of various em- ployees, union literature was circulated, and memberships were solicited in the plant before working hours and during the lunch periods. During the spring of 1937, Adolph Lindeman, a former Newark -police captain who was hired as a shipper in the Sterling Company plant, began to show a marked interest in union activities. Linde- -man described himself as being in addition, "a sort of a safeguard -for the factory.?' His testimony establishes that he had several em- ployees in his confidence to watch those whom he suspected of appro- priating stock from the plant, that he discussed rumors of union organization with Julia Nauman, manager of the plant, and that he informed her when employees told him that they had been ap- proached by union organizers outside the plant. In explanation of these reports to her he testified that "it, showed that there was a little something going on that we should know of." At the same time Nauman and Foreladies Rose Taylor, Mary Trotter, and Applegate openly expressed their opposition to the Union and advised the employees under them not to become mem- bers. Union members were characterized as "racketeers" and various -employees were told that if they joined, the plant would close. J19arie Yaggie, an employee, was told by Applegate that Nauman would not have a union in the shop, that she would not discharge any employees, but "would make it so hot for you, you would have to gluit." Following the discharges, hereinafter discussed, Nauman told Amia Lepinsky that she was glad to be "getting rid of all the rats." Although Nauman and the foreladies denied having made any statements derogatory to the Union, their denials are not convincing in the light of all the evidence. Both Nauman and Trotter admitted discussing the Union with the girls, Nauman further admitting that she probably told the girls that if they were satisfied there was no ieason for their joining the Union. Some time in March 1937, two policemen were secured from the Borough of Belmar by Nauman at the order of Harry Halbern, secretary-treasurer of the Universal Company. The respondents testified that the policemen were secured to protect the plant. Their salaries were paid by the Sterling Company. These policemen, uni- formed and fully armed, were stationed at the front and rear en- trances to the plant until about the end of April 1937, and at times patrolled the aisles among the employees. In addition, other police- men occasionally circled the building and the chief of police drove up to the plant two or three times a day. DECISIONS AND ORDERS 863 During the same month, the following statement was circulated throughout the plant for the signatures of the employees : We the employees of the Sterling Corset Corp. of Belmar wish to go on record that we have no grievance whatsoever and are perfectly satisfied with present conditions existing in our "shop and have no complaint whatsoever against the management. This statement was followed by the circulation, late in April, of a loyalty pledge which read : We, the undersigned, hereby agree -between ourselves to be loyal to our jobs. We want to work and we want to see this factory remain open so that we may. It is now up to us to stand together absolutely and pledge our full support by so doing, to Miss Nauman and the Sterling Corset Company who have made our jobs possible. This is done of our own free will, entirely unknown either to Miss Nauman or any executive member of the Sterling Corset Company. Although the respondents' witnesses claimed that the pledges were circulated from employee to employee, the record shows that in several instances supervisory officials solicited employees to sign the pledges and threatened them with the loss of their jobs if they re- fused. It is significant that the second pledge was appended to the bill for an injunction brought by the Sterling Company and used to show that some 250 employees in the plant were satisfied with conditions. On April 20 Sam Davis and Harry Halbern, officers of the Uni- versal Company, visited the Sterling Company plant to investigate a rumor, which had been conveyed to them by Nauman, that a strike would be called at the latter plant. Employees were summoned to listen to an address by Davis. Witnesses for the respondent testified that Davis compared the working conditions of the Universal Com- pany, which was a union shop, to those of the Sterling Company, to the detriment of the former, and that he suggested that the em- ployees form a union of their own if they desired to organize. Ac- cording, to the testimony of Gladys Poz and Edna Abad, union ap- plicants,' he- stated that if the plant became a union shop, he would not send any more work to it; that the employees in the Universal Company plant in New York City had not been benefited by the Union ; and that the Union was composed of foreign agitators and racketeers. Davis denied having made these statements. From all the evidence, however, we find that Davis made these statements attributed to him by Poz and Abad. As we have noted above, Davis stated that the Union ' had not benefited the employees of the Universal Company. Poz challenged 864 NATIONAL LABOR RELATIONS BOARD the truth of this statement and the respondents agreed that Poz and Clark, another employee, should visit the Universal Company plant, compare working conditions in the two plants, and report.back to the Sterling- Company employees: ' On April 21, Poz, Clark, and another employee who had been selected by Nauman, visited the Universal Corihpany and were hur- riedly directed through the plant by-Davis, who warned'them not to reveal--that- they were employees of the Sterling Company. * Poz was not permitted to speak to the employees, nor was her request to-examine the Universal Company pay roll granted. -Clark and Smith returned to the Sterling, Company plant the same afternoon and reported their experiences to the employees. On the following morning, before -working hours, Poz attempted to report her version of working conditions in the New York plant but was prevented from continuing when the machinery was turned on. .Nauman, shortly thereafter, turned off the power and permitted Poz to continue to address the employees, after Clark had reminded Nauman that she and Smith had been permitted to speak to the girls on the previous afternoon. Poz's address was again interrupted when the machines were started several, minutes later. Thereafter she was warned by both, her forelacly and Nauman not to discuss further her visit to New York. Although the evidence as to some details of this incident is conflicting, it is clear that Poz was effectively pre- vented from fully reporting the conclusions she had drawn from her survey of the Universal Company plant. B. Conclusions with respect to the interference, restraint and coercion With the commencement of union organization at the Sterling Company in- December 1936, the 'respondents showed a marked in- terest in the activities of the employees at this plant and thereafter pursued a course-of conduct intended to discourage them from join- ing the.Union. - The conduct of Lindeman, a former police captain, ai d'his reports to Nauman.of the progress of union organizers, must. have been designed to- discourage union activity. Supporting the espionage- of employees practiced by Lindeman was the nerve-wrack- ing surveillance maintained over the. employees by the uniformed. policemen whom, the respondents procured in -March and who at times patrolled the aisles of the Sterling Company plant. - The respondents maintain that the plant protection which Linde- man and-the police afforded was a reasonable precaution taken as a result' of strike ' rumors which circulated throughout both the plant and the- town of Belmar. As we indicate in subsection E below, however, the strike-rumors were apparently inspired by the respondents and had little if any basis in fact. Furthermore the re- DECISIONS AND ORDERS 865, spondent's own testimony'reveals that such a precautionary measure was unnecessary. Lindeman testified that the respondents knew that- the employees could not successfully organize and, were not the least alarmed over such a contingency. That the police-department of Belmar afforded ample protection is demonstrated by the fact -that subsequent to April 23, 1937, when the Union picketed -the plant, the policemen present around the plant outnumbered the pickets. Although an employer may take proper precautions to protect his plant from a threatened strike; he may not utilize plant protec- tion devices to intimidate his employees in the exercise of their rights under the. Act. We cannot, believe that' Lindeman's espionage and the display of uniformed policemen were intended- for plant pro- tection. Rather, their activities -were calculated to demonstrate to the 'employees that the respondents would not countenance union organization in the Sterling Company plant. The record shows that the policemen concentrated their attention on the employees who were known to be interested in the Union. We are convinced that they were stationed at the plant for the purpose of discouraging organizational activities on the part of the employees. ' - ' The conduct of the respondent's officers and of the manager' and foreladies of the- Sterling Company was an added deterrent' to the employees in their efforts to organize . Employees were warned not to join the Union; threats were made that the plant would close should union organization be successful; and employees were ad- vised that if they were satisfied, they had no reason to affiliate with the Union. , The circulation -of the loyalty pledges 'in' March and April 1937 was encouraged by the respondents. In many instances employees were solicited to sign the pledges by supervisory employees, • and in some instances were threatened with the loss of 'their jobs if they refused to subscribe to the pledges. Even though the respondents did not initiate'the circulation of these pledges, it'is apparent that, through supervisory employees, they encouraged their circulation as a mani- festation of purported anti-union sentiment in the Sterling Company plant. . ` The respondents' efforts to destroy the Union culminated in Davis' speech to the employees on April 20, and the constructive discharges which followed. The testimony of the respondents' own witnesses buttresses the testimony of Board witnesses and establishes our con- clusion that Davis' sole purpose in addressing the employees was to counteract the union campaign for membership by extolling the working conditions existing in the Sterling Company plant as a non- union shop and by, vilifying union members and organizers: -' - In `such-an atmosphere of hostility 'to' the organizational efforts of the employees, an atmosphere consciously and- deliberately built -up 866 NATIONAL LABOR RELATIONS BOARD and maintained by the respondents, the Union was effectively dis- couraged. Eloquent testimony of the effectiveness of the respond- ents' anti-union activities is found in the actions of Pearl McDermott, a witness for the respondents, who, fearing that she was suspected by Nauman of union activity, visited the home of the latter about April 30, 1937, denied that she was active in the Union, and ex- plained the circumstances-under which she had attended a union meeting. _ We find that the respondents, by -the . acts described above, have interfered with, restrained and coerced the employees of the Sterling Company in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. 0. The disch ai°ges The complaint alleges that on or about April 23, 1937 , the Sterling Company harassed , coerced, interfered with, and intimidated four employees, because they joined the Union and engaged in Union activities , in a manner which compelled them to quit their employ- ment, and that on or about May 4 another employee and on or about May 6 two more employees were compelled to quit for the same reason and under the same conditions . The proof in support of these alle- gations must be weighed in the light of the respondents' conduct which we have discussed above, and especially in view of Nauman's statement that , she would not have a Union in the shop, that she would not discharge union members, but would "make it so hot" for them that they would be compelled to quit. Alice Sharin ; Caroline Chapman, Marie Yaggie, and Gladys Poz had signed application cards in the Union during March and April 1937 . All four, as indicated below, constituted focal points, upon which the respondent 's efforts to discourage union organization were directed. Alice Sharin had been employed by the Sterling Company since January 1936. She worked on a piece -rate basis averaging between $12.40 - and $13.17 per week. On March 31 , 1937, Sharin filed an application card for membership in the Union . About the first week in April she attended a meeting at the home of a union organizer and subsequently an organizational meeting was held in her home which was attended by employees of the Sterling Company. During March she endeavored to interest other employees in the Union. From March 1 to April 23 , 1937 , Sharin was subjected to constant warnings , from- the respondents with respect to her union activity. Early_ , in March ,: Nauman told her that she was 4 9on the spot" for DECISIONS AND ORDERS 867 having union members at her home and that her home was being watched. Thereafter Nauman made statements in her presence to the effect that if the girls joined the Union they would "lose their bread," and that any girl interested in the Union could resign, "the quicker the better." Sharin received similar warnings from her forelady, Taylor, who told her that if she were in Sharin's position, she would not join a union. -Marie Yaggie had been,employed by the Sterling Company since August 1936, on a piece-work basis averaging from ,$9.27 to $9.53 per week. In January, Yaggie had been advised by her fore'lady, Applegate, that Nauman would move the plant or close it before she would recognize the Union. During the same month Yaggie was summoned to Nauman who accused her of paying union dues, and denounced the Union. In March 1937 Nauman admonished Yaggie for her failure to sign one of the pledges, described above, which had been circulated through the plant. Caroline Chapman had been employed by the Sterling Company, since May 1936. Working on a piece-rate basis, she averaged between. $17.04 and $17.38 per week. On several occasions during the spring of 1937, Nauman warned Chapman against joining the Union. In April, having heard that Chapman had attended a union meeting,. Nauman questioned her with respect to what had occurred at the meeting. Gladys Poz had been employed by the Sterling Company since March 1935. She averaged between $15.10 and $16.36 per week,, working on a piece-rate basis. Poz was a niece of Sharin, with whom she lived, and became interested in the Union in February 1937. In April Poz talked to'some of her fellow employees with a view to organizing them. As in the case of the other girls named above, Poz was likewise subjected to constant warnings and question- ing concerning the Union. As we have described, Poz had chal- lenged Davis during his speech on April 20, had been sent to the Universal Company plant to observe and compare working condi- tions, and had thereafter been warned not to advise the other em- ployees with respect to her findings. During the week preceding April 23, 1937, these four employees were subjected to continuous surveillance by Lindeman and the two policemen, who remained on the second floor where the girls worked and who walked constantly along the aisles. On the afternoon of April 23, the respondents' campaign of harassment and surveillance had its desired effect. Sharin, emotionally upset and unnerved, left the table at which she worked and told her niece, Poz, of her inten- tion to leave. Poz, unstrung by her experiences of the past 2 days and the other events which we have described, left the plant with Sharin. At the same time or a few minutes later, Yaggie and Chap- 134068-39-vo1 ix-56 868 NATIONAL LABOR RELATIONS BOARD man, similarly feeling the effects of the respondent's practices, left the plant. - After-leaving, 'the four girl's proceeded to the union office and later returned to picket the plant. While they were engaged in picketing, Lindeman handed their Christmas fund savings books to Sharin, Poz, and Chapman, and, told them that they were discharged.' Edna Abad had been employed by the Sterling Company for ap- proximately 7 years before she was 'compelled to quit on May 6, 1937.2 She had averaged $14.46 per week, being' employed on a piece- work basis. Abad' had not joined the Union-until about April 30, 1937, but together with the, above-named employees had received warnings against union activity from Nauman and from her fore- lady, Taylor. Affected by the surveillance 'of Lindeman and the two policemen and the high nervous tension current in the plant, Abad left on the, morning of April 23, after she had completed the work assigned' to her. Thereafter she learned that the plant was being picketed and remained out until April 28, when she returned 'for the -wages she had previously earned. On • April 29 she resumed work'. Abad's sympathies for the Union were apparently known to Nauman who questioned her during the succeeding days with respect to her union interests and kept her under constant surveillance. On the after- noon of May 6, her nerves frayed, Abad stopped working and' left the plant. • Anna Lepinsky had been employed for almost 7 years by the Ster- ling Company before she was forced to quit on May 6, 1937. She averaged between $8.79 and $9.15 per week, working on a piece-rate basis. Lepinsky also had been' questioned and warned concerning union membership by Nauman and by Haland, a forelady. When the pledges were circulated in March and April, Lepinsky 'refused to sign- them and was threatened with discharge after her refusal to sign the March pledge.'' Oh May 5,- 1937, she signed 'i iinjon application card. After April 23, Nauman' repeatedly accused Lepinsky of being a union sympathizer and asked her why `she did not join the girls who -had, left on ' that date. 'As has been stated above she also told Lepinsky that sher'w'as glad to` be "getting rid • of all rat`s." On May 6, -Nauman accused 'her' of 'distributing `union pamphlets in the plant. ^ Lepinsky buul t into tears and later;'overwrought by the con- tinual harassment; left the 'punt. i Yaggle did not carry such savings through the Sterling Company and therefore did not receive a similar notice. . ' 2 The complaint states that Abad was compelled -to-quit her employment on or about May 4, 1937 ,• but she testified that May. 6, 1937, was the last day she worked. I DECISIONS AND ORDERS 869- Margaret Kurilchyk applied to Nauman for employment on'May 3, 1937. Nauman told her that she needed an operator, but ''since, she had experienced a little trouble because nine employees had walked out, she ' did * not wish to employ anyolie without a recommelidation. An ' employee in the' plant recommended Kurilchyk and Nauman hired -her:. On- May 6, 1937, after the lunch hour Nauman asked Kurilchyk 'if she knew certain girls who worked in, a neighboring union shop. When Kurilchyk replied that she- traveled to_ work- with two girls employed' in that plant, Nauman told her to finish her- work and not to return on the following day. Kurilchyk stopped working immediately and left the plant. Kiu•ilchyk '-had never joined the Union nor applied for membership' therein. - Although in a brief filed subsequently the respondents claimed -that Kurilchyk was incompetent, no such claim was made at the hearing. While Kurilchyk admitted at- the hearing that she was inexperienced and slow, the respondents did not claim that her services were un- satisfactory. During the 21/2 days that Kurilchyk was employed' she- ,earned $3.75. Since she was admittedly inexperienced this is no true index of what she would have earned had she continued working, particularly inasmuch as the respondents made no claim nor sub-' mitted any proof that her earning capacity would not have increased with experience. The average earnings of Angelina Cutaia, who did the same type of work, amounted to $12.39 per week. D. The strike When Clarence Longstreet , Alouzo Slocum , Marshall Fielder, Aus- tin Patterson , and Melvin Shebla 3 learned on April 23 that the girls were leaving the plant, they decided to strike in support of them. When the men went out at least two of the girls had already left the plant . The men proceeded to the union office and later in the afternoon returned to picket the plant. Although Lucy Spayd , a union member , worked near Yaggie, she -learned that Yaggie had left only when it was called to her attention by one of the other employees . Spayd thereupon left the plant 'and later joined the other employees who were picketing. E. Conclusions with - respect to the tenure of employment and the - strike - All the girls who were compelled to- leave the plant, except Kuril- chyk, had signed application cards in the Union . Their interest in the Union was common knowledge throughout the plant and , there- fore,-the hostile attitude and remarks of Nauman and the various foreladies regarding the, Union , bore with particular emphasis on " Also spelled as Shibla and Shilba in the transcript of testimony. 870 NATIONAL LABOR RELATIONS BOARD them. The management made it clear that employees engaged in union activities were not wanted and the presence of the two police- men and Lindeman added nothing to their sense of security. The circulation of the pledges tended to increase their apprehension and to emphasize the respondents' hostility to the Union. All these activi- ties created an emotional strain which was intensified by the speech of Davis on April 20, the visit of Poz to the Universal plant on April 21, and her unsuccessful attempt to relate her experiences on April 22. This sequence of events culminating in the concentrated surveillance of April 23 precipitated an emotional crisis making it impossible for the girls to continue working. These same circum- stances were the essential factors in the departure from the plant on May 6 of Abad and Lepinsky. We find that the respondents by compelling Alice Sharin, Caroline Chapman, Marie Yaggie, Gladys Poz, Edna Abad, and Anna Lepin- sky to leave their employment and by discharging Margaret Kurilchyk, discriminated in regard to their tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing the employees of the Sterling Company in the exercise of the rights guaranteed in Section 7 of the Act. The respondents contend that all the employees who left the plant went out on a prearranged strike. Although rumors of an impend- ing strike had circulated throughout the plant for some time, the record does not sustain the respondents' contention. All the employees who left the plant denied that there was any prearranged plan for a concerted walk-out or that they had received instructions from the Union to go out on strike on April 23. Indeed, Lucy Spayd first learned of the walk-out and the departure of Yaggie, who worked near her, only after these events had occurred. Yaggie testified that the only persons who spoke to her about a strike were Nauman, Trotter, and Applegate, supervisory employees, and Clark, an employee who was admittedly hostile to the Union. Pat- terson testified that no arrangements for a strike were ever made at any union meeting and Poz testified that the last union meeting previous to the-strike had been, held 2 weeks before' April 23 and that no strike was then planned. The testimony of these witnesses was corroborated by the Reverend Felix Zaffiro, a Methodist Episcopal Minister and a union organizer. He testified that the Union had no plan to call a strike at the Sterling Company plant and that it was particularly desirous of avoiding strike action at least before the plant was sufficiently organized to make such action effective. From all, the evidence we find that the strike of April 23, 1937, was not prearranged, but was a spontaneous action in support of the female employees who were compelled to leave their jobs on that- day. , DECISIONS AND ORDERS 871 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON. COMMERCE We find that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the respond- ents described in Section I above, have a close, intimate and sub- stantial 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 We have found that the respondents have committed certain unfair labor practices. We shall, therefore, order them to cease and desist therefrom. The employees who were compelled to leave their employment acted under compulsions that constituted unfair labor practices. In effect their departure from the plant amounted to a constructive and discriminatory discharge of each of them. They are accordingly entitled to reinstatement with back pay. We shall order their re- instatement to their former positions and shall order the respondents to make them whole for any loss of pay they have suffered by reason of their discriminatory discharge by payment to each of them of a sum equal to the amount which she normally would have earned as wages from the date she was compelled to quit her employment, and, in the case of Margaret Kurilchyk, from the date of her discharge, to the date of the offer of reinstatement, less net earnings 4 during said period. In determining the amount of back pay to be awarded to Margaret Kurilchyk, we shall order that her pay be computed on the basis of the average earnings of Angelina Cutaia, who was em- ployed at the same type of work as Kurilchyk. Strike or relief bene- fits which some of such employees have received from the Union are in no sense earnings and are not to be deducted in computing the amount of back pay to be paid such employees.5 Since the strike was caused by the respondents' unfair labor prac- tices, we shall order the respondents, upon application, to offer rein- statement to their former or substantially equivalent positions to those employees who went out on strike and have not since been fully reinstated. Such reinstatement shall be effected in the follow- 4 By "net earnings" is meant earnings less expenses such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondents, which would not have been incurred but for her unlawful discharge and the consequent necessity of her seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440 5 See Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N L. R. B 244, and Mutter of Vegetable Oil P,oducts Company, Inc, a corporation and Soap and Edible Oil Workers Union, Local No. 18409, 1 N, L, R, B. 989 and 5 N. L. R. B. 52. 872 NATIONAL LABOR RELATIONS-BOARD ing manner : All employees hired after the commencement. of the strike shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force, there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent, Sterling Company's, usual method of reducing its force, without discrimina- tion against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent, Sterling Company's, business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed on a preferential list prepared in accordance with the principles set forth in the previous sentence,' and shall thereafter, in accordance with such list, be offered employment in their ' former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. Upon fhe basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the, following : CONCLUSIONS OF LAW 1. Intern'ational Ladies' Garment Workers' Union, Local '85 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 Alice Sharin, Caroline Chapman, Marie Yaggie, Gladys Poz, Edna Abad, Anna Lepinsky, and Margaret Kurilchyk, and thereby discouraging membership in a labor organization, the 'respondents have engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, - and coercing the employees of the Sterling Corset Company in the exercise of the rights guar- anteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. 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 respondents, Universal Brassiere & Justrite Corset Co., Inc., and DECISIONS AND ORDERS I_- -873 .Sterling Corset Co., Inc., their respective officers, agents; :successors, - and assigns shall: , • - • • ' ' 1. Cease and desist : (a) From discouraging membership in International Ladies' Gar- ment Workers' Union, Local 85, or any other labor organization of the employees of the Sterling Corset Co., Inc., by discriminating in re- gard to their hire or tenure of employment or any other term or -condition of employment; I • : (b) From in any other manner interfering • with,, restraining, or coercing the employees of Sterling Corset Co., Inc., in , the -exercise ,of the right to self-organization, to form, join, or assist labor:. organi- • zations,=to bargain collectively through representatives of their own choosing, and to engage in concerted, activities for the purpose of collective bargaining and other mutual aid and protection, as guar- anteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Alice Sharin, Caroline Chapman, Marie Yaggie, Gladys Poz, Edna Abad, Anna Lepinsky, and Margaret Kurilchyk immedi- ate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges; (b) Make whole Alice Sharin, Caroline Chapman, Marie Yaggie, Gladys Poz, Edna Abad, Anna Lepinsky, and Margaret Kurilchyk for any loss of pay they may have suffered by reason of the re- spondents' discrimination, by the payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of such discrimination against each of them to the date of the offer of reinstatement, less the net earnings of each during said period, the payment to Margaret Kurilchyk to be computed on the basis of the average earnings of Angelina Cutaia; (c) Upon application offer to those employees of the Sterling Cor- set Co., Inc., who went out on strike on April 23, 1937, and there- after, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section en- titled "Remedy" above, placing those employees for whom employ- ment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (d) Make whole the employees ordered to be offered reinstatement for any loss of pay they will have suffered by reason of the re- spondents' refusals to reinstate them, upon application, following the issuance of this Order, by payment to them, respectively, of a sum of money equal to that which each would normally have earned as 874 NATIONAI. LABOR RELATION S BOARD wages during the period from five (5) days after the date of such application for reinstatement to the date of offer,of employment or placement upon the preferential list required by paragraph (c) above, -less the net earnings, if any, which each will have earned during that period; (e) Post immediately in conspicuous places in the plant of the Sterling Corset Co., Inc., at Belmar, New Jersey, and maintain for a period of at least thirty (30) consecutive days,. notices to the=em- ployees stating that the respondents will cease and desist in the man- ner aforesaid; (f) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith.