Aintree Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1174 (N.L.R.B. 1941)

In the Matter of AINTREE CORPORATION and INTERNATIONAL LADIES
GARMENT WORKERS' UNION, LOCAL No. 373, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR
Case No. C-1947.-Decided December 31, 1941
Jurisdiction: garment manufacturing industry.
Unfair Labor Practices:
Interference, Restraint, and Coercion: threats to close plant if union organi-
zational drive successful; derogatory remarks against union officials; advice
to employees to drop union activities
Company-Dominated Union: foremen participation in administration of; fore-
men attendance at meetings ot; hostility to rival affiliated union; failure to
seasonably announce neutrality.
•Di.scr,mination: discharge for union membership and activity.
Remedial Orders : employer ordered to withhold recognition from company-
dominated organization ; reinstatement and back pay awarded.
Mr. Wallace Cooper, for the Board.
Messrs. Hyman G. Stein and Bernard Susman, of St. Louis, Mo.,
and Mr. Virgil W. Mills, of Fairfield , Ill., for the respondent.
Mr. Morris G. Lenin, of St. Louis, Mo., and Mr. Elias Lieberman,
of New York City, for the Union.
Mr. Robert S. Brown, of Fairfield , Ill., for T. B. U.
Mr. Max W. Johnstone , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed 1 by International Ladies'
Garment Workers' Union, Local No. 373, herein called the Union,
affiliated with the American Federation of Labor, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Fourteenth Region (St. Louis, Missouri), issued its com-
plaint dated April 22, 1941, against Aintree Corporation, Fairfield,
Illinois, herein called the respondent, alleging that the respondent
1 The original charge was filed on Docember 9, 1940, and the first amended charge on
- December 31, 1940.
37 N. L. R. B., No. 200.
1174
AI rRERE CORPORATION 1175
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (2), and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint and notice
of hearing thereon were duly served on the respondent, the Union,
and upon The Better Union, herein called T. B. U.
With respect to -the- unfair labor practices, the complaint alleged
in substance that (1) on December 4, 1940, the respondent discharged
Mina Hale, and has since refused to reinstate her, for the reason
that she joined and assisted the Union and engaged in concerted
activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection; (2) the respondent
dominated and interfered with the formation and administration of
T. B. U., and contributed financial and other support thereto; (3):
from about October 1940, to the issuance of the complaint, the
respondent urged, persuaded, and warned its employees to refrain
from aiding, becoming, or remaining members of the Union, inter-
rogated its employees concerning their union membership and activ-
ities, kept surveillance over meetings of the Union, and made state-
ments to its employees clearly implying that they would not be
benefited by joining the Union; and (4) by these and other acts,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On May 1, 1941, the respondent filed' its answer, admitting the
allegations of the complaint as to the nature of its business, but
denying that it had engaged in unfair labor practices and making
certain affirmative allegations, hereinafter discussed. On the same
day, the respondent filed a motion to strike certain portions of
the complaint.
Pursuant to notice, a hearing was held in Fairfield, Illinois, from
May 5 to 9, 1941, inclusive, before Peter F. Ward, the Trial Examiner
duly designated by the Chief Trial Examiner. At the opening of
the hearing counsel for T. B. U. filed a motion to intervene on behalf
of that organization, which motion was granted by the Trial Exam-
iner, and a further motion to intervene, on behalf of 148 named em-
ployees of the respondent who T. B. U. claimed were members of that
organization. The latter motion was denied by the Trial Examiner,
although the motion itself was marked and received in evidence as
an exhibit. The Board, the respondent, the Union, and T. B. U. were
represented by counsel and participated in the hearing. Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the
opening of the hearing, the respondent filed a motion to dismiss -the
complaint, a motion for a bill of particulars, and a motion to strike
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain portions of the complaint,2 which motions were denied by the
Trial Examiner.
During the hearing, counsel for the Board moved to strike portions
of the respondent's answer which set forth certain affirmative de-
fenses.3 This motion was granted by the Trial Examiner. We believe
that the Trial Examiner erred in granting this motion. He is herewith
overruled and the motion is hereby denied.4
Counsel for the Board orally moved, at the close of the hearing,
to conform the complaint to the proof, which motion was granted
by the Trial Examiner. During the course of the hearing, rulings
were made by the Trial Examiner on various other motions and on
objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
The rulings of the Trial Examiner, except as indicated above, are
hereby affirmed.
The parties did not avail themselves of an opportunity to argue
orally before the Trial Examiner. Subsequent to the hearing, all
parties, other than the Board, filed briefs with the Trial Examiner.
On August 8, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, finding
that the respondent had engaged in and was engaging in unfair
labor practices, within the meaning of Section 8 (1), (2), and (3)
and Section 2 (6) and (7) of the Act. He accordingly recommended
that the respondent cease and desist therefrom and, further recom-
mended that it refuse all recognition to and completely disestablish
T. B. U. as a representative of its employees for the purpose of col-
2 This latter motion was directed toward allegations in the complaint that the re-
spondent . . . had made statements to employees that they would not be benefited by
joining the Union; . . . has warned its employees to refrain from becoming or remaining
members of the Union ; . . . has urged employees to refrain from aiding , becoming, or
remaining members of the Union ; . . . has persuaded its employees to refrain from be-
coming or remaining members of the Union ; . . has made statements to its employees
,threatening to move its plant should its employees join the Union ; . . . has in other
ways well known to the respondent sought to deprive its employees of the rights guaranteed
1n Section 7 of the Act .
3 This motion was directed to a portion of the respondent 's answer which alleged that
in December 1940, the respondent' s president , Irving Flamberg, told representatives of the
Union in a conference that the respondent had respected and would continue to respect all
of the rights of its employees under the Act and that the respondent had been and would
continue to be willing to recognize and bargain as provided by the Act with any collective
bargaining representative which a majority of the respondent 's employees might duly desig-
nate; and that thereafter the Union published a bulletin on or about the - day of
December 1940, in which the Union acknowledged that a conference had taken place, as
above related, and in which bulletin the Union indicated that Flamberg had declared he
was willing to deal with the Union whenever a majority was reached and that he had
pledged that there would be no discrimination against the workers because of union
membership
8 It is clear from the record that the Trial Examiner 's ruling did not constitute prejudi-
cial error . The respondent placed in evidence the union bulletin referred to in its affirma-
tive defense and offered and had received in evidence testimony relating to the conference
referred to in said defense. As noted below , we have considered the defense and the
t̀estimony relating thereto.
AINTREE CORPORATION 1177
lective bargaining , that it offer full reinstatement , with back pay,
to Mina Hale, and that it post appropriate notices.
Thereafter the respondent and T. B. U. filed exceptions to the Trial
Examiner's Intermediate Report. The respondent and T. B. U. also
filed briefs with the Board. At the respondent's request oral argu-,
ment was held on October 23, 1941, before the Board in Washington,
D. C. The respondent and the Union were represented by counsel
and presented argument.
The Board has considered the briefs filed with the Trial Examiner
and the briefs filed with the Board. The Board has also considered
the exceptions to the Intermediate Report and , insofar as they are
inconsistent with the findings, conclusions , and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following-:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation organized under and existing
by virtue of the laws-of the State of Illinois . It has its principal
office and plant at Fairfield , Illinois, and is there engaged in the
manufacture , sale, and distribution of men's underwear and pajamas.
It has approximately 250 employees , including supervisory and
clerical employees , at its Fairfield plant.
The principal materials used by the respondent in the manufacture
of the finished products mentioned above, are cloth, thread, and
buttons. During the year 1940 , the respondent purchased materials
valued in excess of $170,000, about 90 percent of which were received
from points outside the State of Illinois. During the same year the
respondent 's sales of its finished products amounted to approximately
$435,000, of which approximately 82 percent were shipped outside
the State of Illinois.
The respondent admits, for the purpose of this proceeding , that it
is engaged in commerce within the meaning of the Act.
If. THE ORGANIZATIONS INVOLVED
International Ladies' Garment Workers' Union, Local No. 373, is
a labor organization affiliated with the American Federation of
Labor. • It admits to membership employees of the respondent.
The Better Union is an unaffiliated labor organization which
admits to membership all employees of the respondent.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
About September 15, 1940, International Ladies' Garment Workers'
Union undertook the organization of the respondent's employees.
It sent one Don Ellinger to Fairfield as organizer. He succeeded in
enrolling a number of employees in the plant into a temporary organ-
ization and, on or about October 22, 1940, a charter was issued to
the Union. On November 7, 1940, the Union elected the following
officers : president, Willene Shaw ; vice president, Smith Mason;
recording secretary, Arlene Potts; and financial secretary, Everett
Kittel. An executive board was also elected.
Shortly after the union organization got under way, Jesse Baker,
then the respondent's production manager, expressed opposition to the
Union to a number of the respondent's employees.5 During the latter
part of September 1940, Baker approached Goldie Manlove while she
was at her machine and asked her if any organizer had been around
to see her.' She replied in the negative, whereupon Baker said, "they
had him [the organizer] up before the Judge last night and they
threatened to run him out of town." Baker further told Manlove
that he did not "see why the girls would want a union, that all the
union wanted was their dues each week," that it would be of no help
to the girls whatever, that the members just paid the expenses for the
"big shots in the union to ride around over the State in nice cars and
they were only a bunch of racketeers." ,
On November 19, 1940, Baker, having procured a copy of the
Union's Thanksgiving bulletin containing the names of the elected
officers of the Union and a notice of an open meeting to be held on
November 19, spoke to Arlene Potts, the recording secretary of the
Union, while the latter was at work at her machine in the plant, and
told her that he had an invitation from the Union to come to its
meeting that night. He stated that he approved of all the union
officials except Willene Shaw, president, whose work he criticized,
and said that if she did not improve in the following 2 weeks she
would be discharged. Baker also criticized the wife of the Union's
sergeant at arms. He stated that he was not for the Union, that all
it wanted was the 35 cents per week dues, and that it would not stand
up for the members. He told of the experience of one Poole, form-
erly employed by the respondent, who worked in a union -factory,
was thereafter discharged, and the Union "let him down." Baker
'Baker was not called as a witness and the remarks and actions attributed to him are
uncontroverted The record reveals that Baker was "someplace east" No effort was made
by the respondent to secure a subpena for Baker or to take his deposition we find, as
did the Trial Examiner , that Baker made the remarks attributed to him substantially as
set forth in the text
AINTREE CORPORATION 1179
told of his having at one time belonged to a ,union which did not aid
him. During this conversation Baker stated in substance, that if
the respondent continued' to lose money on account of the Union, it
would be compelled to close its plant.
As set forth below, on December 27, 1940, T. B. U. held its organ-
izational meeting at the City Hall. During the time such meeting
was in progress, Potts, Willene Shaw, Manlove, and Mildred Kirby,
all union members, sat in a parked car in front of the City Hall.
Baker passed by and was called to the car by one of the occupants.
He was asked if he was going to attend the meeting and he stated
that he was not. He stated further, "Listen, girls, I am not going
to talk about the Union tonight . . . I want you to know there is
not a law in the land to keep this factory from moving out of town
if they want. Look at the Flora plant, they moved out of Flora
on account of Union activities and never did move back." In
further discussing the Union, Baker stated in substance that if the
Union were organized in the plant the plant could be moved but he
added-that it would not be "through union activities." He then told
of his brother-in-law, who had joined a printers' union in St. Louis,
stating that that union had never aided him, inasmuch as he was
out of work 2 or 3 days a week.
About October 15, 1940, shortly after Jewell Elliott joined the
Union, Baker came to her machine where she, and a group of girls
were talking and threatened to take her before the Labor Board.
Elliott replied that they had riot been talking about the Union, to
which Baker then said, "Well, we better not catch you talking it."
Elliott testified that about the middle of October 1940, she stated
in the presence of Forelady Shehorn that she was in favor of the
Union. In response to Shehorn's inquiry Elliott replied that she
favored the Union because her father had always belonged to a union.
Shehorn then stated, as testified by Elliott, "I think it is all hooey
and ought to be stopped." Shehorn was ill and did not testify at the
hearing., It was stipulated, however, that had Shehorn testified she
would have denied making the statement attributed to her by Elliott.
,Elliott impressed the Trial Examiner as being a truthful witness
and the statement thus attributed to Shehorn was consistent with
Shehorn's later allegiance- to T. B. U. We find, as did the Trial
Examiner, that Shehorn made the statement substantially as testified
to by Elliott.
The respondent's general manager, Leary, was acquainted with
Baker's anti-union activities and proclivities, and testified that he
had warned Baker not to interfere with or take any part for or against
the Union's activities, and had warned him on so many occasions
that he became "disgusted." The respondent, however, took no
effective action to stop the anti-union activities of Production Man-
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ager Baker.s We find that by the anti-union statements of Baker
and Shehorn set forth above, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discharge of Mina Hale
Mina Hale was first employed during 1932. With the exception
of those periods when the entire plant was closed down, she worked
continuously until December 4, 1940. At the time of her discharge
on December 4 and for more than 4 years prior thereto, Hale worked
as a single needle operator "joining fronts" on men 's shorts as her
regular operation. Prior to that time she "hemmed and joined" for
a number of years. In addition to joining, she "faced," "sewed on
seat pieces," "hemmed backs," and "hemmed fronts" when joining
work was slack.
Those 'employed with Hale as joiners were Virginia Shaw, who
had been employed 4 or 5 years; Dora Yoho, who had been employed
on or about September 17, 1940; Dora Sanders, who started in July
1940; and Elsie Cline, who started in June 1940. Sanders and Cline
had been employed by the respondent prior to the dates indicated
above, but neither had worked for about a year before her last em-
ployment. All worked under the supervision of Forelady Shehorn.
The respondent's employees are, generally, paid on a piece-rate
basis. Some operations referred to as "unit" work are paid for at
hourly rates. Employees "joining fronts" are paid at piece rates.
All are subject to the provisions of the Fair Labor Standards Act.
which provides for payment of a minimum wage. When an employee
in the respondent's plant on a piece-rate basis fails to earn the mini-
mum wage at the rate provided, the difference is "make-up" paid by
the respondent. "Make-ups" are general at the respondent's plant,
ranging from $400 to $600 a pay period in or about August 1940 to
$300 in April 1941.
It had been the practice in the department in which Hale was em-
ployed that when there was a shortage of work, the lay-offs were
shared equally. A further practice existed in connection with
"make-ups" in that those who fell behind the "code," before being laid
off or discharged, were given at least 2 weeks in which to bring their
earnings up to the point where there would be no "make-up."
In its answer the respondent contended that Hale was inefficient.
Hale testified, without denial, and we find as did the Trial Examiner,
that prior to December 4, 1940, the date of her discharge, her work
6 Swift & Co. v. National Labor Relations Board, 106'F. (2d) 87, 92 ; The petitioner's
managing officers took no effective means to stop such solicitation when the facts were
called to their attention , other than to repeat the warnings theretofore made."
AINTREE CORPORATION 1181
had never been criticized by an official or supervisor and that she had
never been cautioned or warned in connection with "make -up." * She
further testified that during the last 2 or 3 weeks she was employed
Shehorn gave her many rush orders, assigned her work on different
colored shorts , requiring many changes in thread and bobbins, and
that during the last week of her employment she was required to
work on samples, and to face, hem, and join. At the time Hale was
required to perform the different operations above referred to, a new
pattern was introduced , work upon which tended to curtail her daily
output. Hale was required to do facing on this new model.
Shehorn did not testify, and her stipulated testimony made no
reference to Hale's testimony . Hale's co-workers , however, Cline,
Yoho, and Virginia Shaw, did testify. Cline testified that for 2 or 3
weeks before December 4 she did her share of colored work, that she
had been cautioned by Shehorn to "try get up speed, " and that for
such period she did no facing. Yoho testified that for such 3-week
period she performed the same work as did Hale. She further testi-
fied, however, that she did no facing. Virginia Shaw testified that
she observed the kind of work done by joiners for 3 weeks before
December 4 and it was her opinion that all the employees were work-
ing on the same amount of colors. Records produced by the respond-
ent show conclusively that Hale "faced fronts ," in addition to other
operations testified to by her. From the foregoing testimony it ap-
pears, and we find, as did the Trial Examiner , that for the last 3
weeks she was employed Hale was required to perform several ope-
rations other than her regular one of joining , and to an extent greater
than that of her co-workers . General Manager Leary testified, and
we find, that too many operations may cause "make -up," and that
Hale's "make -up" for this period would not prove that she was
inefficient.
Hale, the only union member in her department , joined the Union on
or about October 15, 1940, and attended union meetings regularly.
She is the mother of Willene Shaw, president of the Union. Hale was
also active in talking in favor of the Union to the employees. Hale
attended the union meeting of December 3. On December 4, at
about 11 a. m., Shehorn told Hale, "You and Dora [Sanders] stay out
this afternoon." Work was somewhat slack in the department at
that time and Hale did not return that afternoon . Hale testified :
She [Shehorn] always just said, when she told us to stay out,
when work got slack, she told us to stay out that afternoon, and
we stayed out that afternoon and came back the next morning,
and I thought that was what I was supposed to do.
After Hale had gone, Shehorn told her daughter, Willene Shaw,
to advise her mother that she was not to return to work the next
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, and was "not to come until they had work." On December
9 Hale returned to the plant without having been notified to report
and Shehorn sent her to Production Manager Baker. Hale asked
Baker if the latter had any work for her that morning. When the
latter answered in the negative, Hale observed to him that the rest
of the girls were working. Baker then told Hale that she had too,
much "make-up," more than any of the other girls.
Notwithstanding Baker's statement, Hale returned to her machine
and started to work, as "I [Hale] thought I just as well share the
work as them." Shehorn, however, told Hale to "go down' [sic] this
afternoon and come in the morning." Hale thereupon went back to
see Baker and asked why she was not permitted to share the work
with the other girls. Baker then told her that she had more "make-
up," but that she need not be afraid of her job, that she had a job,
and, he said, "the union aren't in here and they cannot make me pay
you." 7 Hale had made no mention of the Union in her talk with
Baker, and the latter brought up that subject entirely of his own
volition. It should be noted, as hereinbefore set forth, that Baker
had criticized Hale's daughter, Willene Shaw, and made anti-union
remarks to Potts at the time of the daughter's election as president of
the Union.
On December 10, 1940, Ellinger, union organizer, President Shaw;
and Secretary Kittel had a conference with Irving Flamberg, the
respondent's president, and Manager Leary. The union representa-
tives complained that just prior to Hale's discharge she had been
given more difficult work than that of her co-workers. This was
denied by the respondent's officials. The respondent's officials assured
the Union's representatives that as soon as there was work for-her
Hale would be recalled. They further stated that Hale was selected
for "lay-off" because she and the other employee "laid off" had the
highest "make-up," and that the respondent would make a further
investigation of the records concerning Hale's comparative standing
with the other operators. In its answer, the respondent set up certain
defenses in regard to Hale.8
At the hearing, the respondent contended that Hale was not dis-
charged and would be called back as soon as there was sufficient work,
and that she and Dora Sanders who had also been laid off about
December 5, were the two with the highest "make-up" in the depart-
ment. The respondent, in support of its claim that Hale had the sec-
ond highest "make-up," referred to the last 2 or 3 weeks preceding
' As noted above, Baker did not testify and our finding is based upon Hale 's undenied
testimony.
8 That Hale's work was unsatisfactory ; that she and one other employee laid off were the
least efficient ; that her department was overstaffed ; that these was insufficient work
for her ; and that without her there were sufficient employees to man her department
efficiently.
AINTREE CORPORATION 1183
Hale's "lay-off." From the comparative records introduced by the
respondent, however, it is apparent, end we find, that from November
16 to December 7, Hale had less "make-up" than Sanders and Vir-
ginia Shaw. Such comparative records further disclosed that for the
entire year of 1940 Hale had less "make-up" than Sanders and Shaw
and on a comparative basis, less than Cline, who had worked from
July 13. 1940. The respondent attempted to explain Virginia Shaw's
higher "make-up" through Leary's testimony and nn its brief, by
attempting to show that Shaw worked almost continuously upon rayon,
a more difficult cloth to manipulate. However, Leary admitted in
his testimony that all the rayon used in the plant during Leary's 10-
month tenure as general manager, would not require the services of
one operator, engaged on Shaw's operations, more than 9 days., Hale
also testified that, although she had work sent back to her for cor-
rection, as did the other operators and in about the same amounts,
Shaw had more sent back to her for correction than did Hale. Shaw
was characterized by Leary as a good operator, and Hale's testimony
was not denied.
Although Leary and Flamberg had told the Union's representatives
on December 10, 1940, that Hale would be called back when there
was work for her, it is undisputed that on January 18, 1941, Louise
Mann was put to work at joining fronts and had worked steadily at
such work until the date of the hearing herein. On February 5,
1941, Ellen McLin was put to work at joining fronts and was so
employed at the time of the hearing. Two other girls were hired
after Hale's lay-off to do hemming and joining, an operation that Hale
had performed before being assigned 'regularly to joining fronts.
Mann, McLin, and Harrelson (one of the additional two girls referred
to above) were all members of T. B. U. We find that the respondent
in fact had work for Hale from and after January 18, 1941, in her
regular department, and also could have found other work for her at
which she was experienced.
Leary testified that he had inaugurated a new policy, that of making
lay-offs instead of following the "share the work" policy. However,
during the 10 months (to the date of the hearing) since Leary took
charge of the respondent's plant, the "new policy" had been put into
effect in but one instance, and that in Hale's department, which em-
ployed but five operators. Forelady Schumacher also testified to the
effect that the "share the work" policy continued even after Leary
assumed his duties at the respondent's plant. We find that the re-
spondent's "share the work" policy continued in the respondent's plant
after General Manager Leary took charge of it, and that the respond-
ent's policy of making lay-offs was not substituted therefor as an
operative policy in the respondent's plant.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent also contends that other union officers and members
have not been discriminated against, and that in fact, some of them
have been put on the most lucrative work in the plant. However,
the respondent's business had increased between January 1, 1941, and
the time of the hearing, to the point where it was necessary to add
new employees. In addition, Leary testified that the respondent's
pay roll had increased during that period. Failure of the respondent
to discharge additional of the Union's leaders or leading members
does not establish the absence of discrimination in the face of proven
discrimination.
In connection with Hale's discharge, the respondent stated in its
brief before the Trial Examiner :
But in fact the question as to whether Mina Hale was or was not
one of the least productive employees is not determinative of the
respondent's right to either discharge or lay off Mina Hale. Even
if it were reasonably possible under the evidence in this case
for one to differ with the respondent's opinion that Mina Hale
was one of the least productive employees in her department there
still would be presented but a claim that the respondent was mis-
taken in its opinion concerning her efficiency and productivity.
Under the law an employer has the right to discharge even his
most valuable and competent employee provided the same is not
done for the purpose of interfering with such employee' s union
membership or activity or for the purpose of discriminating
against such employee on account thereof .. .
While the argument advanced is sound, it is inapplicable here. The
respondent contends that Hale was chosen for lay-off because she
was one of two having the most "make-up" and sought to establish
such contention by its own records, and since such records and the
evidence disclose that Hale actually had less make-up than three other
operators in her department, the respondent's contention has no merit.
The reasons assigned are not supported by the evidence, which leads
to the clear inference that they were advanced in order to conceal
the true ones.'
Other considerations lead us to reject the respondent's contention,
and persuade us that the treatment of Hale was discriminatory. Thus,
Baker, who had selected Hale for the lay-off, was admittedly hostile
to the Union, and the respondent considered production records of 2
or 3 weeks only when Hale was working on a more difficult operation
than her co-workers. Subsequent to Hale's "lay-off," one Harrelson,
9 An employei 's "hostility toward any union and its determined efforts to defeat the
organization of its employees into a union must be considered in determining whether an
active union member was discharged for his union activities when no other satisfactory
reason for the discharge appears" National Labor Relations Board v Chicago Apparatus
Co, 120 F (2d) 753, 759
1
AINTREE CORPORATION 1185
mentioned above, was employed as a hem and join girl. The respond-
ent's assertion that it did not consider Hale for employment at this
time because it did not know that she was a "hem and join girl" has
no merit. Hale had performed that work before under supervisors
who were still employed in the respondent's plant at the time in
question. On December 10 the Union conferred with the respondent
on behalf of Hale, urging her reinstatement. The respondent, if sin-
cere in its asserted willingness to put her to work when it became avail-
able, would have reinstated her, we believe, at that time, since Hale
was shown to have been an efficient sewing-machine operator and there
was no evidence that hemming and joining is a particularly difficult
operation.
We find, as did the Trial Examiner, that on December 4, 1940,
and thereafter, the respondent, by discharging Hale and refusing
to reinstate her, discriminated in regard to the hire and tenure of
her employment, thereby discouraging membership in the Union,
and that the respondent thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. Interference with. and domination of the formation and admini.?-
tration of T. B. U.
1. Chronology of events
As indicated above, a conference was held on or about December
10, 1940, between Irving Flamberg, president of the respondent,
and, representatives of the Union, and that thereafter the Union pub-
lished a bulletin in which it set out some of the matters discussed
at the conference. Prior to this time, however, the initial steps in
the formation of T. B. U. were taken, principally by Clem Anthis,
a stamp boy in the respondent's employ. On December 3, 1940,
Anthis went before the local City Council to see what could be
done to keep the Union out of Fairfield. The City Council ad-
vised him that it could do nothing about the matter and referred
him to City Attorney Robert Brown, who, according to Anthis,
discussed the advent of the Union with him and advised him that
nothing could be done except by the workers themselves. Anthis
took no further action until 2 weeks later, which was after the re-
spondent's conference with the Union referred to above.
Meanwhile, the Union had planned a party for its members to
be held on December 17. Pearl Turner, an employee, and several
other girls thereupon determined to have a party limited to non-
union employees. ' Such party was held at the Turner house on De-
cember 19. Some 65 to 70 people attended, including about 45
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent's employees. Foreman Perry Musgrave attended
this party in company with his cousin, Orville Musgrave, who was
later elected president of T. B. U. During the course of the party
the Union was discussed, together with ways and means of defeat-
ing its plan to organize the plant, with the result that Anthis was
delegated by several employees to consult with an attorney con-
cerning proper procedure to be taken. It does not appear whether
Anthis advised those attending the party that he had consulted City
Attorney Brown on December 3.
Subsequent to the night of the party Anthis made a second visit
to the city Council, asked the same questions, and received the
same replies as on his first visit. He then induced the Chamber
of Commerce to call a meeting on December 26, which meeting
he attended. He again requested assistance in keeping the Union
out of the plant, and was advised again to see an attorney. On the
same night, December 26, Anthis procured permission to use the
City Hall fora meeting to be held on the night of December 27,
and made an appointment with Attorney Brown for December 27
at 9 a. m.
On the morning of December 27, 1940, before working hours,
Anthis stood outside the respondent's plant, advised the employees
as they entered that there would be a meeting at City Hall that
night, and informed them that it as to be a meeting "to keep
the Union out." 10
Shortly after work started on the morning of December 27, Anthis
secured permission from Foreman Musgrave to leave the plant and
keep an appointment with Attorney Brown. Anthis told Foreman
Musgrave that he would be gone for a few minutes. He was away
from the plant, however, from 11/2 to 21/2 hours. Foreman Mus-
grave asked for no explanation of this long absence, and Anthis
volunteered none. On the following day Anthis told the time-
keeper "to mark his card," telling her that he had left at 9 a. m.,
but not telling her when he returned. Anthis could not recall
at the hearing whether he was paid for the time he was away from
the plant on this occasion. - He testified, however, that he may have
been so paid. During Anthis' conference at Brown's office, arrange-
ments were made for Brown to prepare a form of constitution and
bylaws to be submitted to the respondent's employees that evening.
On the evening of December 27, the meeting was held at the City
Hall as scheduled. A total of about 150 people attended, of whom
some 100 were employees of the respondent, the others being local
1" Out findibg with respect to the initiation of T B U is based upon the uncontradicted
testimony of Anthis and Turner. Regarding his notification of employees to attend the
meeting of December 27, Anthis testified that he was unaware at the time he announced
the meeting that an independent union (T. B. U ) would be formed
AINT'REIE CORPORATION 1187
citizens interested in T. B. U. Anthis opened the meeting and in-
troduced Brown, who read the proposed constitution and bylaws
of T. B. U. Those who' were in favor of proceeding with such
an organization were asked to indicate their approval by a show
of hands. Those who were willing to "form a union of our own"
then signed the proposed constitution. Between 90 and 96 employees
signed. During the course of the meeting Attorney Brown and
others, not employed by the, respondent, made speeches in support
of T. B: U. and antagonistic toward the Union. The meeting was
attended by Foreman Musgrave and Humphrey, and Foreladies
Shehorn and Schumacher, who constituted the respondent's entire
supervisory force with the exception of General Manager Leary
and Production Manager Baker. As hereinbefore set forth, Potts
and three other union members sat in a parked car in front of the
City Hall on that night and watched to see who entered. In a con-
versation with Baker at that time, Potts asked if the foreladies had
a right to be at such meeting and Baker replied that they could
go any place they pleased after working hours. It was also upon
this occasion, as set forth above, that Baker declared, "There is not a
law in the land to keep this factory from moving out of town if
it wants . ..
During the month of December, Anthis, the chief organizer for
T. B. U., was accorded unusual freedom in the respondent's plant.
His duties as stamp boy were to stamp garments, make out work
coupons, and make out cutting tickets. According to Everett Kittel,
a Board witness who had opportunity to observe his conduct in the
plant, Anthis was often away from his work both in the morning
and in the afternoon, after ringing in, and often away from his
place of employment during the day. His absence was so frequent,
Kittel further testified, that it interfered with the work of others.
Anthis conferred with General Manager Leary frequently during
this period, in Learyy's office, although Kittel had not observed Anthis
in Leary's office prior to this period. Although employees were
required to get permission from their foremen to leave their work,
except when away on the respondent's business, apparently Anthis
did not get such permission. Further, according to Kittel, the usual
nature of Anthis' duties as a stamp boy did not require such frequent
visits to the office. Kittel testified that no other stamp boy had ever
had to go to the office. Kittel also testified that he frequently saw
Anthis in Leary's office, during this period, sitting on Leary's desk,
or with his feet on Leary's desk, smoking and talking.
Anthis testified, as indicated above, that his duties were to stamp
garments, make out work coupons, and make' out cutting tickets
and that in line with his duties he had to turn the cutting tickets
in to the office. Anthis 'further testified that his visits to the office
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might be no oftener than. 2 days apart or that he might go every
time "a lay" was finished. Anthis also testified that he just took
the cutting tickets into the office and laid them on a clerk's desk.
In attempting to explain his frequent presence in Leary's office Anthis
also stated that he might be waiting for pencils, rubber bands, or
some instructions which he might want. General Manager Leary
testified that Foreman Humphrey continually made out cutting tickets
avid that sometimes the color of thread to be used in a particular
operation is not specified on the cutting ticket and that therefore
Anthis sometimes came in to ask Leary about that matter. , In view
of Kittel's testimony that Anthis was away from his work so often
that it interfered with the work of other employees, that Anthis
was frequently in Leary's office at various times of the day, that
no other stamp boy who held the job prior to Anthis found it
necessary to confer with the general manager of the plant, or to
go' to the general manager's office as frequently as did Anthis, and
in view of Anthis' observed conduct in General Manager Leary's
office, and considering Anthis' and Leary's explanation of Anthis'
duties and his presence in Leary's office, we find that Anthis was
accorded unusual freedom by the respondent during the period of
time in which he was actively engaged in organizing T. B. U.
A second meeting of T. B. U. was held at the City Hall on Monday,
December 30, 1940, at which time other employees signed as members.
It is undisputed that the foremen and foreladies continued to attend
meetings of T. B. U. after December 27, 1940, down to and including
meetings in April 1941. It should be noted that T. B. U. was able
to induce a large number of the respondent's employees to attend
its meetings on December 27 and 30, and succeeded in having approxi-
mately 148 (a majority) of such employees sign as members during
the Christmas-New Year's holiday period.
On or about December 31, 1940, the Union filed amended charges
alleging that the respondent had engaged in unfair labor practices
in promoting T. B. U. The respondent was advised of such filing
by letter from the Board's Regional Office in St. Louis, Missouri.
On January 3, 1941, Brown, as attorney for T. B. U., made a
formal demand by letter that the respondent recognize T. B. U. as
bargaining agent of its employees and stated in such demand that
T. B. U. had ' a membership in excess of half the workers in the
Fairfield plant.
A newspaper, the Wayne County Press of Fairfield, had published
an article on January 2, 1941, entitled "Combating Union at Campe
Factory Here" and starting with the statement that "More Than
100 Employees `Organize' to Defeat Union Organization; Fear Fac-
tory Will Move." The article proceeded to describe the T. B. U.
meeting of December 30, 1940, and explained that the employees
AINTREE CORPORATION 1189
had thus organized, "knowing the history of the Aintree plant that
they will not operate Where unions are organized and observing
obvious moves of the plant toward the closing of the factory
here, . . ." The article further stated that T. B. U. "was the em-
ployees own organization, they organized it, they would direct it,
they would collect the dues, see where the money was spent and not
be dictated to by labor officials in some distant city who have no
direct interest in whether the'factory is operated or closed. It was
also felt that `The Better Union' would make no demands of the
plant that would cause it to cease operations here-the things in'
which the employees are most interested."
General Manager Leary testified that he had seen a copy of the
newspaper publication concerning the organization of T. B. U. and,
although he was in charge of the plant, personally, he did nothing
to deny the implications contained in such article, but sent a copy
to- the respondent's president at New York City. Under date of
'January 11, 1941, President Flamberg wrote to the Wayne County
Press and enclosed a copy of a notice 11 that was to be posted on the
respondent's bulletin board as of January 13, 1941. The letter accom-
panying the notice stated in part: "These suggestions contained in the
article were entirely ungrounded in fact, and puts the company in the
light of having made threats with regard to the future employment of
Fairfield workers. Quite the contrary is the case." The letter further
requested that the notice be published, "together with a retraction of
11 JANUARY 11, 1941
NOTICE
In fairness to the public, in fariiess'to our employees, and certainly in fairness to our-
selves, the officers of the Aintree Corpoiation feel that their position in the current situa-
tion involving, put simply, the right of our own employees to bargain collectively through
representatives of their own choosing, should be set out for everyone interested to lead
and understand.
We are infoimed that there are two organizations attempting to gain the right to
bargain collectively for the employees of the Aintree plant One of these organizations
has alieady served upon us a demand for recognition as the agent of the employees for
collective bargaining As this is written, we have not given an answer of any kind to that
demand. Our attorneys adiise us that we, as do our employees and as do the unions,
have it definite protection due us in the form of a declaration from the National Labor
Relations Board of our rights and duties in this matter At this particular time, we are
anticipating that the Board, with its customary fairness and directness, will quickly clarify
the situation and remove, by it pioper decision, all doubts in the minds of us who are quite
naturally concerned
One of the organizations seeking the eight to bargain collectively for our employees his
filed a charge with the National Labor Relations Boaid in which it is alleged that we
lies e isolated the National Labor Relations Act by interfering with our employees in their
attempt to of ganize and select a collective bargaining agent While we realize that we
cannot gain an acquittal by this statement of our position, still we wish to take this oppor-
tunity to set out the simple fact that we, as a corporation, have no interest in the success
or tailure of either of the organizations attempting to gain the right to bargain collectively
for our employees, other than the normal interest we have alhsays had in the gaining by our
employees of whatever representation or other advantage they -may wish rightfully for
themselves
AINTRsmi CORPORATION,
IRVING PLAM aRRG, President.
4 ; ;257-42-vGL 37-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the misstatements contained in the previous article . . ." On January
16, 1941, the paper published the notice as requested, together with its
"retraction" as follows :
The Press desires again to make clear that the information
which has appeared in recent articles in this paper concerning
the organization of "The Better Union" in the Aintree plant
was information secured from employees in charge-of that union
and that it had not come from the plant officials.
The letter to the Press was not published nor was it posted.
On or about January 15, the respondent posted a further notice
as follows :
JANUARY 15, 1941.
NOTICE
The charge has been made that certain employees of this com-
pany have made statements which are interpreted as reflecting
the opinion and policies of this company . This company has
been, and will continue to be neutral , and will not take sides
in any differences that may exist between different unions and
organizations.
Any employees , regardless of the position they hold, either
operator , presser, cutter, forelady , foreman, office help-or any
other employee of this company, found guilty of such practice
will be instantly dismissed.
This company has no connections in any way, manner, shape
or form with any of the organizations involved in this con-
troversy . We are neutral , and we intend to remain so.
AINTREE CORPORATION,
By IRViNG FLA\IBFRG, P9°e .sidenzt.
Leary testified that on January 15, 1941 , Baker , Musgrave, Himi-
phrey, Shehorn , Schumacher, and the office employees were called
into conference with Flanberg , who, according to Leary,
led everyone of us to believe in pretty good English he wanted
no interference , he didn't want any talking around the plant
about organization of any kind . . . "These that had to be
supervisors around these, people I don 't want you to talk it or
act or speak to anybody about it."
Further, according to Leary 's testimony, Flamberg made it plain
that he did not want any heads of departments to disturb anybody
and if they did -he wanted Leary to discharge them. Leary further
testified that he had heard that the foremen and foreladies continued
to attend T. B. U. meetings , but that he did not instruct them to
AINT'REIE CORPORAT•IONT 1191
'stop. According to Leary, "it was none of lny business," and "I
didn't tell them not to go, but told them not to bother anyone in
their department," and "I didn't tell them nothing."
Forelady Carrie Schumacher, who was the only supervisory em-
ployee, other than Leary, who testified at the hearing, failed to
carry away from the conference with Flamberg and Leary any
definite ideas as to what she, as a supervisory employee, was to do
in connection with labor organizational matters about the plant,
except, she testified, "The best I can remember, he [Flamberg] didn't
want any disturbance in the sewing room, and talking and things
like that."- Schumacher also testified that while she had read the
notice dated January 11,-she did not understand it. She read the
second notice which referred to statements being made by em-
ployees and later interpreted as reflecting company policy, but
testified that neither Flamberg nor Leary spoke to her concerning
such notice or explained it.
Around January 20, 1941, just a few -days after, the conference
between Flamberg and the supervisors above referred to, Foreman
Musgrave attended another T. B. U. meeting and, in open meeting,
joined with others in paying dues for 'membership in that
organization.
2. Conclusions
The motive for the formation of T. B . U. had its genesis in Pro-
duction Manager Baker's expressed hostility to the Union and to
threats that the respondent would not operate if the union organi-
zational campaign was successful . As we have found above, the
organizational meeting of T. B. U. was announced as a meeting
"to keep the Union out ." The presence of all the respondent 's fore-
men at that meeting placed the respondent 's prestige behind this
anti-union demonstration , and clearly showed the employees that
their immediate superiors , at least, approved the action taken at
the meeting . Moreover , all the respondent 's supervisors of foreman
rank continued unchecked to attend T. B. U. meetings and continued
thereby to throw the respondent 's support to that organization. In
addition , the freedom of action which the respondent accorded Anthis
demonstrated to the respondent 's employees that Anthis was acting
as an agent for the respondent and that it approved of his activities.
With the threats of Production Manager Baker still present, it was
impossible , we believe , for the employees to exercise that freedom
of self-organization guaranteed under the Act.12
1' These threats had coercive effect T B U witness, Marion Cross , in testifying rela-
tive to a conversation he had with Union Organizer Don Ellinger said. ". . and I wanted
to know if there Was one chance in a thousand to move, and he [Elhnger] said ' Not due to
union activities,' and I said, `Because ml job and my support of my family depends on
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends (1) that it is not responsible for the
activities of Baker, Musgrave, Humphrey, Shehorn, and Schu-
macher; (2) that it sought to restrain' Baker' and disavowed the
repetition of his threats as they appeared in the newspaper article
referred to above;13 and (3) that it posted on its bulletin boards
notices of its neutrality and instructed its supervisory employees to
observe this neutrality. We are of the opinion, however, that while
the record, to the extent that it supports these contentions, demon-
strates the neutrality of the respondent's president, it neither estab-
lishes, in the face of affirmative findings to the contrary, that the
employees in joining T. B. U. exercised free and untrammeled choice,
nor relieves the respondent from liability for the activities of its
foremen that restricted such freedom.14
Uncontroverted evidence clearly shows, and we find, that the five
employees who gave their support to T. B. U. were supervisory em-
ployees.ls Except for General Manager Leary and President Flam-
berg these five employees constituted the entire supervisory staff of
the respondent. General Manager Leary testified, as follows, at the
hearing :
Q. And who were those persons through whom the• directions
of the Company were carried out?
A. The people you name.
Q. Mrs. Shehorn, Schumacher, Baker and Musgrave?
A. That is right.
my iob and I want to be sure,' and he finally said they could in some ways, maybe
something won](] happen that they could move." Also Board Witness Jewell Elliott testified
to the effect that some 25 or 30 employees had expressed fear of joining the Union to her
and that they knew the respondent was opposed to it Baker 's remarks to the four occu-
pants of the automobile in front of the City Hall the night of December 27 that the plant
might move but it would not be "through union activities ," did not have the effect of
quieting such fear, but on the contrary, increased it
13 We do not find that responsibility for the publication of this newspaper article re-
ferred to above , is chargeable to the respondent . We cite the article to explain the news- -
paper notice of January 11, 1941, announcing the respondent ' s position and which was
advanced by the respondent as indication on its part that it had sufficiently proclaimed
its neutrality under the circumstances
11 "Although the consistent policy of the company, as repeatedly announced by its proper
officials, was to comply with the provisions of the National Labor Relations Act by per-
mitting its employees to organize a labor union and to bargain collectively through repre-
sentatives of their own choosing without interference, restraint , or coercion from the
management , and, although the actions of the foremen were contrary to the orders of the
company manager and to the express policy of the company, there is no doubt that they
constituted unfair labor practices by the employer " The Solvay Process CoviganV, a
corporation v National Labor Relations Board , 122 F (2d) 093
15 The respondent and T. B U. raise the point in their exceptions and briefs that Forelady
Schumacher attended one union meeting. Schumacher testified that she considered that
she was invited to such meeting inasmuch as she was "one of the workers," although
she did not receive a union circular announcing it. This union meeting referred to was
one of the early public organizational meetings of the Union . held before the Union was
organized and before it received its,cliarter None of the respondent 's supervisors attended
any of the union meetings thereafter
AINTREE CORPORATION 1193
Q. And they are the ones who translated the Company's
policy to the employees, isn't that right?
A. As a rule. '
In its answer, filed to the Board's complaint, the respondent ad-
mitted these employees had "authority to recommend employment
or discharge." Counsel for the respondent at oral argument also
admitted that these employees were supervisory employees with the
power to discriminate against the respondent's employees, if they
had so desired. Moreover, the activities in which Anthis engaged
with the apparent approval and acquiescence of the respondent
branded Anthis as an agent of the respondent.16 We find that Baker,
Shehorn, Musgrave, Humphrey, Schumacher, and Anthis were acting
on behalf of the respondent in connection with their activities in the
formation of T. B. U. and in acting against the Union and that the
respondent is responsible for their actions.
The respondent contends also that it restrained Baker and that the
union bulletin of December 10, above referred to, showed the respond-
ent's neutrality. It is apparent, however, that despite the protests
of the Union which were communicated to the respondent, the re-
spondent did nothing to restrain the continued interference of its
supervisory employees. General Manager Leary testified that he
had spoken to Baker so many times that he became "disgusted," and
that he knew that the respondent's supervisory employees continued
to attend meetings of T. B. U. and participate therein but that he
did nothing to restrain them. The respondent further points to its
bulletin of January 11, referred to above, and instructions to its
supervisors to maintain a neutral attitude. In considering this con-
tention it is important, we believe, to note that these expressions of
neutrality were published at least 2 weeks after T. B. U. had
acquired a majority status. The respondent's delay in advising the
supervisors to remain neutral until T. B. U. had acquired its majority
rendered the instructions ineffective. The delay "was one of the
10 In International Association of Machinists ; Tool and Die Makers Lodge , No. 85, etc.
v. National Labor Relations Board, 311 U. S 72, the Supreme Court said :
The employer . . ., may be held to have assisted the formation of a union even
though the acts of the so-called agents were not expressly authorized or might not be
attributable to him on strict applications of the rules of respondent superior. We
are dealing here , not with private rights . . . nor with technical conceptions perti-
nent to an employer 's legal responsibility to third persons for acts of his servants,
but with a clear legislative policy to free the collective bargaining processes from ,all
taint of an employer 's compulsion , domination, or influence The existence of that
interference must be determined by careful scrutiny of all the factors , often subtle,
which restrain the employees ' choice and for which the employer may fairly be said
to be responsible. Thus where the employees would have just cause to believe that
solicitors professedly for a labor organization were acting for or on behalf of the
management , the Board would be justified in concluding that they did not have the
complete and unhampered freedom of choice which the Act contemplates
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`imponderables' which the Board was entitled to appraise." 17 In any
event no effective means were taken to prohibit the continued support
by the respondent's supervisory employees of T. B. U.18 Moreover,
from the testimony of the respondent's own supervisors, it is ap-
parent that they did not understand that their support of T. B. U.
was restrained. Indeed, Leary testified, as noted above, that he knew
that they continued to attend B. T. U. meetings but did nothing
about it. In effect, the respondent went no further than to express
neutrality in an atmosphere already charged with its supervisors'
hostility to the Union and enthusiasm for T. B. U.'0 "The right freely
to organize without coercion or intimidation is an empty one unless
there is authority under the statutory scheme to safeguard it, and the
necessity for doing so calls for more appropriate action by the employer
than mere declarations of neutrality and impartiality, even though in
good faith proclaimed." 20
We conclude that the representations given by the respondent to
the Union at the conference of December 10 were not effective in
giving assurance to the employees that the respondent was in fact
impartial, inasmuch as some of Baker's anti-union activities, all of
the fruitful efforts on the part of Anthis to organize T. B. U., and
the participation of the respondent's supervisors in T. B. U., oc-
curred after such conference. The fact that the attendance of the
respondent's supervisors at the meetings of T. B. U. continued after
the respondent published its notice of January 11, was but added
notice to the employees that it favored T. B. U. and was hostile
to the Union despite its claim of neutrality. We conclude that re-
spondent's advice to its supervisors to remain neutral, first given
on January 15, 1941, was insufficient and ineffective and too long
delayed, and that its published notices of January 13 and 15, 1941,
were likewise insufficient to correct the situation. We are satisfied
and find, as did the Trial Examiner, that T. B. U. has, by the acts
of the respondent through its supervisory employees and agents,
been branded in the eyes of the respondent's employees as the crea-
ture of the respondent.
17 National Labor Relations Board v. Link -Belt Co , 311 U S. 584, 599
18 See Swift if Co. v. National Labor Relations Board, cited in note 6 above , and the
following quotation from the same case :
While the evidence showed that Middaugh , the plant manager , and Young, the
plant superintendent , repeatedly warned against violations of the National Labor
Relations Act and solicitation of union membership on petitioner 's premises during
working hours , they took no effective means to stop repeated violations of the Act
Furthermore , with respect to the acts of the supervisory foremen , the doctrine of
respondent superior applies , and petitioner is responsible for the acts of its supervisory
foremen, even though it had no actual participation therein
19 Matter of Tennessee Copper Company, 9 N L R B. 117
20 Consumers Power Company v. National Labor Relations Board , 113 F. (2d) 38, 44.
AINTREE CORPORATION 1195
We find that the respondent has dominated and interfered with
the formation and administration of T. B. U. and contributed sup-
port thereto, and thereby interfered with, restrained, and coerced
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 -
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act and to restore as nearly as possible the condition which
'existed prior to the commission of the unfair labor practices.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Mina Hale, thereby discouraging
membership in the Union. We shall, therefore, order the respondent
to offer Mina Hale immediate and full reinstatement to her former
or a substantially equivalent position without prejudice to her sen-
iority and other rights and privileges, and to make her whole for
any loss of pay she has suffered by reason of the discrimination
against her by payment to her of a sum of money equal to that
which she normally would have earned as wages from December
4, 1940, to the date of the offer of reinstatement, less her net earn-
ings 21 during said period.
We have found that the respondent has dominated and interfered
with the formation and administration of T. B. U. and has con-
tributed support to it, and that said organization is incapable of
representing the respondent's employees as their representative for
the purpose of collective bargaining. In order to effectuate the
policies of the Act and to free the employees of the respondent
21 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 respondent, which would not have been incurred but for the respondent's
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local Q590, 8 N L. It. B.
440. Monies received for work performed upon Federal, State, county, municipal, or
other work-relief projects shall be considered as earnings See Republic Steel Corporation v.
N. L. R. B, 311 U. S. 7.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from such domination and interference, we shall order that the
respondent refrain from recognizing T. B. U. as a representative
of any of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment and re-
fuse to recognize T. B. U. as such representative in the future.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, Local No. 373,
affiliated with American Federation of Labor, and The Better Union
are labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Mina Hale, thereby discouraging membership in a labor
organization, the respondent has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (3) of the•Act:
3. By dominating and interfering with the formation and admin-
istration of The Better Union, and contributing support to it, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
4. 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 prac-
tices, within the meaning of Section 8 (1) of the Act.
5. 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 foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Aintree Corporation, and its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers' Union, Local No. 373, affiliated with the American Federa-
tion of Labor, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of employment;
AINTREE CORPORATION 1197
(b) Dominating or interfering with the administration of The
Better Union, or with the formation or administration of any other
labor organization of its employees, and from contributing support to
The Better Union, or any other labor organization of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mina Hale immediate and full reinstatement to her
former or a substantially equivalent position without prejudice to her
seniority and other rights and privileges;
(b) Make whole the said Mina Hale for any loss of pay she has
suffered by reason of her discriminatory discharge by payment to her
of a sum of money equal to that which she would normally have
earned as wages during the period from the date of her discharge,
December 4, 1940, to the date of the offer of reinstatement, less her
net earnings during said period;
(c) Withhold recognition from and refrain from recognizing The
Better Union as a representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of
work;
(d) Immediately post in conspicuous places in and about its plant
in Fairfield, Illinois, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) ; (2) that it will take the affirmative action set forth in paragraphs
2 (a), (b), and (c) of this Order; and (3) that the respondent's em-
ployees are free to become or remain members of International Ladies'
Garment Workers' Union, Local No. 373, affiliated with the American
Federation of Labor, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization;
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.