Luxuray, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1939

16 N.L.R.B. 37 (N.L.R.B. 1939)

In the Matter of LU%URAY, INC. and INTERNATIONAL LADIES'
GARMENT WORKERS' UNION
Case No. C-1002.-Decided October 17, 1939
Garment Manufacturing Industry-Interference , Restraint , and Coercion:
speech to employees , blaming unions for adverse business conditions , warning
that union organization would mean the shut-down of the plant , vilifying union
leaders, and advising against union affiliation-Discrimination : discharge and
refusal to reinstate , allegations of ; dismissed as to one employee, sustained as
to another-Reinstatement Ordered: of employee discriminatorily discharged-
Back Pay: awarded.
Mr. Edward.D. Flaherty, for the Board.
Mr. John N. Plato ff, of Union City, N. J., for the respondent.
Mr. Elias Lieberman, of New York City, for the Union.
Mr. Harold M. Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the International Ladies' Garment
Workers' Union, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Third Region (Buffalo, New York) issued its. complaint dated
July 13, 1938, against Luxuray, Inc., Fort Plain, New York, herein
called the respondent, alleging that the respondent 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.
Copies of the complaint accompanied by a notice of hearing were duly
served upon the respondent and upon the Union.
Regarding the unfair labor practices, the complaint alleged, in
substance, that the respondent terminated the employment of Clara
Gramps and Ethel Weller on or about November 9, 1937, and Febru-
ary 4, 1938, respectively, and had since refused to reemploy them
because of their membership in and their affiliation with the Union
and because they had engaged in concerted activities with other em-
ployees for the purposes of collective bargaining and other mutual
16 N. L. R. B., No. 7.
37
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aid and protection; that on or about October 6, 1937, and thereafter,
the respondent had threatened dismissal to any employees engaged
in union activities; had made speeches in which the Union was criti-
cized and union representatives were referred to as agitators; and
that by the aforesaid acts and by various other acts of its officers,
agents, and servants, the respondent had discouraged the concerted
activities of its employees for the purposes of collective bargaining
and had interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act.
On July 22, 1938, the respondent filed its answer to the Complaint,
denying the jurisdiction of the Board; denying all allegations with
respect to the unfair labor practices; and alleging affirmatively that
Clara Gramps was called back to work and given employment at the
respondent's plant, and that it has not refused to reinstate any per-
son or persons for any reason other than for lack of work.
On July 22, 1938, the respondent filed its answer to the complaint,
ponement of hearing, copies of which were duly served upon the
respondent and upon the Union.
Pursuant to notice, a hearing was held in Fort Plain, New York,
on August 18, 1938, before Howard Myers, the Trial Examiner.
duly designated by the Board. The Board and the respondent 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 on the issues was afforded all parties.
At the close of the Board's case and again at the close of the hearing
the respondent moved to dismiss the complaint on the ground that
the evidence failed to substantiate the allegations of the complaint.
The Trial Examiner reserved ruling on the motions to dismiss and
denied them in his Intermediate- Report. At the close of the hearing
counsel for the Board moved that the complaint be conformed to the
proof adduced at the hearing. The Trial Examiner granted this mo-
tion without objection. During the course of the hearing the Trial
Examiner made several rulings on other motions and on objections to
the admission of evidence. We have reviewed' all such rulings and
find that no prejudicial errors were committed. Such rulings are
hereby affirmed.
On September'17, 1938, upon the annexed affidavit of one Gladys
Austin, the respondent, by notice of motion filed with the Regional
Director, petitioned to reopen the hearing for the purpose of taking
allegedly newly discovered evidence which would affect the credibility
of Ethel Weller as a witness in the hearing. On September 24, 1938,
counsel for the Board filed with the Regional Director an affidavit
opposing the respondent's application on the ground that the testi-
mony sought to be adduced, concerning alleged conduct of Weller
LUXURAY, INC. 39
in connection with the hearing, was collateral to the issues of the case,
and upon the further ground that the charges made by Austin were
entirely refuted in affidavits , which he annexed , of Ethel Weller,
her husband , Renie Weller, and Fliegel Levine , field representative
of the Union. On October 8, 1938, the Trial Examiner denied the
application to reopen the hearing . We have reviewed the petition
and the various affidavits and hereby affirm the ruling of the Trial
Examiner.
On October 2, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. The
Trial Examiner found that the respondent 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
Act., He recommended that the respondent cease and desist from the
unfair labor practices ; that it offer to Ethel Weller and Clara Gramps
immediate and full reinstatement to their former positions with back
pay, and that it take certain other affirmative action to remedy the
situation brought about by its unfair labor practices.
On November 7,'1938, the respondent filed its exceptions to the
Intermediate Report and requested oral argument and permission to
file briefs upon the issues raised by the exceptions to the Intermediate
Report. On July 5, 1939 , the respondent filed a brief in support of
its exceptions . Pursuant to notice , a hearing was held before the
Board on August 31, 1939, in Washington , D. C., for the purpose of
oral argument . The respondent was represented by counsel and par-
ticipated in the argument . On September 11, 1939, pursuant to leave
granted to all parties to file briefs , the Union filed a brief in support
of the Intermediate Report.
. The Board has considered the exceptions to the Intermediate Re-
port and the briefs field by the parties . For the reasons set forth
below we sustain the exceptions to the finding of the Trial Examiner
that the respondent engaged in unfair labor practices , within the
meaning of Section 8 (3) of the Act, with respect to Clara Gramps.
We find that all of the other exceptions are without merit in so far
as they are inconsistent with the findings , conclusions , and order
set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Luxuray, Inc., a New York corporation , with its principal office and
place of business located in the city of Fort Plain, New York, is en-
gaged in the manufacture of ladies ' and men's underwear and allied
garments.
247383-40-vol. 16--4
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal raw materials used by the respondent in manufactur-
ing its products consist of rolls of cloth and circular knot rayon.
More than 50 per cent of such raw materials are shipped to the re-
spondent from States other than New York. In excess of 50 per cent
of its finished products are sent by the respondent to points outside
the State of New York. During the fiscal year ending March 31,
1938, the value of sales by the respondent, less returns and allowances,
amounted to over $800,000.
About 300 persons are normally employed by the respondent in the
production and maintenance departments.
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union is a labor organi-
zation admitting to its membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In April 1937 the Union began its campaign to organize the re-
spondent's employefes.: From 10 to 30 employees attended union
meetings held during the summer and fall of 1937, and several of them
became members.
At about the time the Union began to organize the respondent's
employees, Rogossin, president of the respondent, visited the plant
and, in his own words, "talked" to the employees "and explained why
it would not be to your [their] interest to join the union." 1
Shortly thereafter, on May 8, 1937, Beaunit Mills, which owns the
stock of the respondent and of which Rogossin is president, entered
into an agreement with the Textile Workers Organizing Committee,
herein called the T. W. O. C., not only recognizing that organization
as the exclusive bargaining agent for the employees of the plant at
Cohoes owned by Beaunit Mills, but also purporting to recognize it
as the representative of the employees of the respondent. At the
hearing the contract was offered in evidence by the respondent, which
sought to prove by its execution, and by the fact that employees of
the respondent were notified thereof shortly thereafter, that the re-
spondent had a "pro-union" attitude. However, the respondent neither
offered to prove nor is there any evidence that any of the respondent's
employees became members of the T. W. O. C. or, indeed, that the
T. W. O. C. had ever sought to organize them. Moreover, there is
nothing in the record to indicate that the Cohoes plant and the re-
spondent's plant ever operated as an integrated enterprise or that
1 This fact appears from a statement made by Rogossin in a speech delivered by him to
the employees on or about December 21, 1937, discussed below.
LUXURAY, INC. 41
there was any collective bargaining history on the basis of the two
plants as a single unit. As a. matter of fact, the motive for including
the respondent's employees in the contract, as revealed by a speech
delivered to them by Rogossin on or about December 21, 1937, was that
he had expected that the T. W. O. C. would succeed in organizing the
industry and eliminating the competitive advantages of employers
who paid lower wages.
Whatever the purpose for entering into the contract with the
T. W. O. C. in May 1937, it is clear that Rogossin, in December
1937, used it to indicate not a "pro-union" attitude, but a definitely
hostile position of the respondent. In his speech, to which we have
referred above, Rogossin, at a time when the respondent knew that
the Union was holding regular meetings and soliciting members,
urged upon the employees that the contract demonstrated harmful
,consequences to them of unionism. After stating that he had "signed
up" with the T. W. O. C., Rogossin declared that, while the union
leadershad promised the employees increased wages, vacations, and
steady work, the practical result of their efforts was "that you [the
,employees] have no work at all." Rogossin went on to point out that
the Cohoes plant had been shut down, and to state that this was the
first occasion in 30 years that this had occurred at a plant with
which he was associated. He also claimed that the time consumed
by union conferences with which he was "molested and annoyed"
prevented him "from securing and planning to secure enough work
to keep you [the employees] employed as in the past." 2
Other portions'of Rogossin's address were also designed to oppose
the. Union's organizational activities and to coerce, intimidate, and
restrain the respondent's employees in the exercise of their rights
under the Act. Rogossin went on to say that "it does not seem to me
that, Mr. Green of the A. F. of L. or Mr. Lewis of the C. I. O. are
very seriously concerned with what they can do for you. It seems
that their only interest is to obtain you as members and have the
income of your dues for what it may do for themselves." In his con-
cluding remarks, Rogossin dispelled any doubt as to what course of
action the respondent desired its employees to pursue by admonish-
ing-them as follows :
My advice to you is that it is not to your interest to join the
union and pay dues. All you will accomplish will be that you
will give to the union a portion of what we are able to give you.
My advice is to work in harmony with the company and leave
' With respect to this claim we note that at the hearing Hamilton , the respondent's
production manager, testified that the recession in the respondent 's business which occurred
about this time was caused by the economic depression and the lack of public demand for
certain of the respondent 's products.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it to our judgment as to when it is practical to increase your
scale of wages and when it is not.
.
Rogossin was not called as a witness at the hearing. The import
and purpose of his speech are unmistakable. In view of the re-
spondent's knowledge of the activities of the Union it is clear, and
we find, that it intended that the employees should understand that
Rogossin's remarks referred to the respondent's attitude toward the
Union. By the speech employees were warned that union organiza-
tion would mean that the respondent would not be able to conduct
its business efficiently, that the result would be a shut-down of the
plant, that union officials were interested not in the welfare of the
employees but in obtaining dues, and that employees would fare
better if it were left to the respondent to determine their wages in its
sole wisdom. We conclude that the speech was designed to dis-
courage and restrain the respondent's employees from affiliating or
continuing their affiliation with a union. It was a patent appeal to
them to help the respondent rid itself of the Union, and its neces-
sary effect was to discourage union membership.
We find that the respondent, by Rogossin's talks to the employees
at the time the Union began its organization activities, and by Rogos-
sin's speech in December 1937, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The alleged discharges
The respondent's business is seasonal and subject to lay-offs dur-
ing slack periods. Different departments, moreover, have varying
busy seasons and employees are customarily shifted from one depart-
ment to another where practicable. The respondent's practice was
to consider length of service as well as skill in determining transfers
and lay-offs. Employees laid off were usually recalled when work
became available.
Ethel Weller was employed by the respondent from December 1934
until the termination of her employment on February 4, 1938, sub-
ject to normal lay-offs. Weller joined the Union in April 1937 and
was the first to speak to other employees about the Union and to
introduce them to the union organizers. In July 1937 two union
meetings were held in her home, and from November 1937 to March
1938 meetings were held there regularly. It was common knowledge
in the plant, as well as in Fort Plain, that union meetings were held
in Weller's home. Moreover, the respondent's employees knew that
if they wanted to join the Union it would be necessary to obtain
membership cards from Weller and to return them to her. On Octo-
ber 6, 1937, Weller was seen receiving a union card in the plant from
LUXURAY, INC. 43'
another employee and was warned by Hamilton, the production man-
ager, to cease union activities during working hours. The respondent
knew of Weller's activities in April 1937 and thereafter and, when
her employment was terminated on February 4, 1938, Hamilton told
Weller: "I know what you are thinking; you are thinking I ain lay-
ing you, off because of union activities, but I don't care what you
think." On February 9, 1938, when Levine, the union field repre-
sentative, called upon Hamilton in connection with the termination
of Weller's employment, Hamilton stated, "I knew you would come
and I knew you would claim that this is discrimination against mem-
bership and ... I know that you are coming to take the case up to
the [sic] Local Board, and I have everything prepared for it and I
am ready to go." Hamilton testified that he made this statement since
Weller was a union member and he expected, because of his experi-
ence in connection with the earlier discharge of Gramps,3 that Levine
would call upon him after termination of Weller's employment.
During her employment by the respondent, Weller alternated be-
tween the polo-shirt and applique departments, depending upon the
amount of work available. According to Weller's testimony, she
worked a majority of the time in the applique department. While
Hamilton and the floorlady of the applique department testified that
Weller worked principally in the polo-shirt department, the conflict
of testimony is of no consequence since they admitted that she had
worked a large part of the time in the applique department, and the
work to which she was assigned in the polo-shirt department, stitch-
ing collars, was admittedly a difficult operation. Hamilton, more-
over, testified that Weller was a competent worker. That she was
.competent as an applique worker is amply shown by the fact that she
was given the position of floorlady during a 21/2-month absence of
the regular floorlady in the applique department beginning in Jan-
nary 1937. As floorlady, Weller supervised approximately 14 girls
and instructed them in new types of applique work.
Either upon the return of the regular floorlady in March 1937,
or shortly thereafter, Weller was transferred to the polo-shirt de-
partnient. In June 1937 the respondent discontinued that depart-
ment. Of the 127 employees working in the polo-shirt department,
69 were laid off and never recalled, and the remaining 58, including
Weller, were transferred to other departments. While Weller was
transferred to the applique department, some of the 58 were assigned
to work which they had never done before.
At the height of the 1937 Christmas season, about 25 persons were
engaged in applique work. Prior to February 1, 1938, the last date
on which Weller worked for the respondent, the number had been
8 Discussed infra.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reduced to 10. However, of the 15 employees who had been laid off
meanwhile, all but 2 were called back to work prior to the hearing.¢
No evidence was introduced to show that any of them had worked for
the respondent for any considerable length of time or was familiar
with the work to which she was assigned when recalled.
When Weller came to work on February 4 she was told by Hamilton
that she was being laid off because there was no applique work nor
any other work to which she could be transferred, and that the
applique department would be shortly reduced to a personnel of four
workers. When the reduction was effected, however, the five workers
who formed the permanent applique staff were retained at. that
work.5 Two employees, only one of whom was described by the
respondent as an expert, were transferred to take care of the small
amount of polo-shirt work still carried on by the respondent;' and
two employees, Laura Snyder and Agnes Melise, were laid off but
were recalled to employment. When recalled, Melise was assigned to
work with which she was not familiar. Thus, of the 10 workers
employed in the applique department on February 1, Weller was the
only one laid off and not recalled. Moreover, although between Feb-
ruary 4 and the hearing no additional employees were added to the
applique department, the respondent admitted that from time to time
two or three other employees were called upon to help with the
applique work.
In the light of Weller's long service and her admitted competence
as a worker, and even as a supervisor and instructor, we find it diffi-
cult to credit general testimony that there was no other work on
February 4, 1938, which she was capable of doing and to which she
could have been transferred. We have pointed out that employees
laid off about the same time were recalled to work, even to work
with which they were unfamiliar. The respondent offered no ex-
planation, either by way of length of service or skill, as to why
Weller was not also recalled. While the respondent urged in its
brief that Weller made only one personal call after February 4 in an
effort to seek employment, that fact is without significance, since it
was a customary practice for the respondent to recall old employees
when work was available.
At the conference between Levine and Hamilton on February 9,
referred to above, Hamilton, when pressed by Levine as to whether
' The two who were not recalled were Anna Davey and Josephine Biasne.
5 Hamilton testified as to his belief that Beverly. Gardiner and Hazel March, two of the
five permanent applique workers retained after February 4, were union members. We do
not find this testimony impressive so far as Weller is concerned. 'While Hamilton may
have thought Gardiner and March were union members, he well knew that Weller was
not only a union member but also the leader in organizing the respondent's employees.
e The two employees who were transferred to the polo-shirt department were Fannie
Hotalling and Edna Pooler.
LUYURAY, INC. 45
Weller would be recalled to work, stated that "he was not taking her
back." At a subsequent conference, held on February 14 and at-
tended by the same persons and by Aronson, the respondent's plant
superintendent, it was stated that the department had been reduced
but that Weller would be recalled "whenever work would pick up."
However, between February 14 and the hearing, the respondent hired
30 new employees, some of whom had no experience whatever in the
work to which they were assigned. The respondent advanced no
explanation for this conduct, which itself would indicate that Weller
had been discharged rather than laid off on February 4, and that the
respondent had at that time determined to give her no further em-
ployment. That this was the case was virtually admitted by Rogos-
sin in an interview with Shott, a Field Examiner of the Board, on
or about March 30, 1938. When Shott brought up the matter of
charges filed by the Union that the respondent had discriminatorily
terminated the employment of Weller and Gramps, Rogossin de-
clared : "Ethel Weller is discharged. She is working for the union
and I have no place, in my organization for anyone receiving wages
as a union organizer." At that point Hamilton interposed that Wel-
ler was not discharged but merely laid off. , Rogossin thereupon
retorted : "Ethel Weller is discharged. I want the Labor Board to
understand that she is discharged. I am going to run my own
business . . . If you want to work for the union go out and talk to
the employees but don't waste my time." We find that the respond-
ent by February 4 had decided to terminate Weller's employment
and to give her no further work. In view of the respondent's admis-
sions as to Weller's general competence, the explanation for such a
decision cannot be any fact other than her union activities.
We have weighed the circumstance that the respondent had known
of Weller's union activities for nearly a year prior to February 1938,
and that her employment had not been terminated when lay-offs
were made in 1937. On the other hand, after apparent quiescence
by the respondent for approximately 8 months with respect to union
activities among its employees, Rogossin, in his speech to the em-
ployees less than 2 months before Weller's employment was ter-
minated, disclosed that the respondent had decided to attempt again
to discourage its employees' union activities. From the facts stated
above it must be concluded, and we find, that the discharge of Weller
was decided upon as the next most effective means of discouragement.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Ethel Weller, thereby discouraging
membership in the Union, and has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
I
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clara Gramps was employed by the respondent from November
1935 to November 9, 1937. During the first 2 months of her employ-
ment Gramps' work consisted of sewing labels and shields on gar-
ments. Thereafter she worked only in the polo-shirt department
until its discontinuance in June 1937. After a brief lay-off she was
recalled to work in the applique department where she worked inter-
mittently for about 5 weeks until November 9, 1937, when her employ-
ment was terminated. She was the only one laid off on that date.
However, at that time only two or three employees were doing the
simple applique operation performed by Gramps.
Gramps attended a union meeting at Weller's home on November
2, 1937, and was a member of the Union. There is no evidence that
either fact was known by the respondent until November 15, 1937,
when the matter of Gramps' alleged discharge was the subject of a
conference between Hamilton and Levine. At this conference Ham-
ilton stated that he had laid off Gramps only because the polo-shirt
department in which she had worked had been discontinued, and she
was no longer needed for the simple applique work with which she
was familiar. The record shows that Gramps knew little about
applique work and was employed only at the more simple processes
while she continued in the applique department. Moreover, it ap-
pears that the applique division was sufficiently staffed to attend to
any simple work then on hand or likely to become available. On
July 13, 1938, Gramps was recalled by the respondent to perform
some extra underwear work, which she did for a period of 3 weeks
until the work was completed.
In the conference between Rogossin and the Board's Field Exam-
iner on March 30, 1938, the latter, as we have pointed out above,
referred not only to the Weller case but also to that of Gramps.
As we have also pointed out above, Rogossin then characterized
Weller as a union organizer and vigorously asserted that she had been
discharged and not laid off. Gramps, who. had never taken 'any
leading part in the Union, was referred to by Rogossin only in a
general statement that "he would turn the plant over to me [the field
examiner] before he would put those employees back to work ..."
Whatever its significance, that declaration sheds little light upon
the reason why Gramps was laid off or why she had not been recalled.
While the circumstances of her case are not free from suspicion,
in view of the subsequent employment of new and inexperienced
workers, we conclude that no sufficient showing has been made that
Gramps was discharged on November 9, 1937, and not given employ-
ment thereafter until July 13, 1938, because of her union activity.
We shall, therefore, dismiss the allegations with respect to Gramps.
LUXURAY, INC.
THE REMEDY
47
We have found that the respondent has interfered with, restrained;
and coerced its employees in the exercise of their rights guaranteed
them in Section 7 of the Act. We will order the respondent to cease
and desist from such interference, restraint, and coercion. We have
also found that the respondent has discriminated in regard to the
hire and tenure-of employment of Ethel Weller, by discharging her
on February 4, 1938, and by refusing her reinstatement thereafter.
We shall therefore order the respondent to offer Ethel Weller imme-
diate and full reinstatement to her former position in the applique
department or, if this is not available, to a substantially equivalent
position. Where necessary we shall require the respondent to displace
any employee who has succeeded to Weller's position in the applique
department, or who has succeeded to a position which, because of
seniority or the practice of the plant, should have been offered to
her. We shall also order the respondent to make Weller whole for
any loss of pay she may have suffered by reason of her discharge by
payment of a sum equal to the amount which she normally would
have earned as wages from the date of her discharge to the date of
the offer of reinstatement less her net earnings 7 during said period.
Upon the basis of the foregoing 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 is a labor organ-
ization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Ethel Weller because of her union membership and activity,
thereby discouraging membership in the Union, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices.
within the meaning of Section 8 (1) of the Act.
713y "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 discrimi-
nation against him and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and'Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies.
received for work performed upon Federal, State, county, municipal, or other work-
relief projects are not considered as earnings, but as provided below in the Order, shall
be deducted from the sum due the employee, and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7).
of the Act.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to Clara
Gramps.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Luxuray, Inc., Fort Plain, New York, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Making anti-union statements, threatening its employees in
relation to union membership or activity, or warning, or persuading
its employees not to join or assist International Ladies' Garment
Workers' Union, or any other labor organization;
(b) Discouraging membership in International Ladies' Garment
Workers' Union, 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 or tenure of
employment, or any term or condition of employment because of
their union membership or activity ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Ethel Weller immediate and full reinstatement to her
former position in the applique department or, if this is not available,
to a substantially equivalent position, without prejudice to her senior-
ity and other rights and privileges; and where necessary, displace
any employee who may have succeeded to Weller's position in the
applique department, or to any other position which because of
seniority or the practice of the plant, should have been offered to
Weller ;
(b) Make whole said Ethel Weller for any loss of pay she may
have suffered since February 4, 1938, by reason of the respondent's
discrimination in regard to her hire and tenure of employment, by
payment to her of a sum of money equal to that which she would
normally have earned as wages from the date of her discharge to the
LUXURAY, IN, C. 49
date of offer of reinstatement, less her net earnings during said
period ; deducting, however, from the amount otherwise due to her
monies received by her during said period for work performed upon
Federal, State, county, municipal, and other work-relief projects, and
pay over the amount so deducted to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or
.governments which supplied the funds for such work-relief projects;
(c) Post immediately and keep posted for a period of at least
sixty (60) consecutive days from the date of posting notices to its
',employees in conspicuous places in its plant stating that the respond-
ent will cease and desist in the manner set forth in 1 (a), (b), and
(c) and that it will take the affirmative action set forth in 2 (a) and
(b) of this Order;
(d) Notify the Regional Director for the Third Region, Buffalo,
New York, in writing within ten (10) days from the date of this
Order what steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
with respect to Clara Gramps be, and the same hereby are, dismissed.