Somerville Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 3, 1936

1 N.L.R.B. 864 (N.L.R.B. 1936)

In the Matter of BENJAMIN FAINBLOTT AND MARGOR.IE FAINBLOTT, IN-
DIVIDUALS, DOING BUSINESS UNDER THE FIRM NAVIES AND STILES OF
SOMERVILLE MANUFACTURING COMPANY AND SOMERSET MANUFACTUR-
ING COMPANY and INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, LOCAL No. 149.
Case No. C-53.-Decided June 3, 1936
Ladies Wearing Apparel Industries-Unit Appropriate for Collective Bargain-
ing: occupational differences ; organization of business-Representatives: proof
of choice : application for membership in union ; strike benefit pay-roll-Employee
Status: following discriminatory discharge-Collective Bargaining : refusal to
negotiate with representatives ; refusal to recognize representatives as bargain-
ing agency representing employees-Strike-Interference, Restraint or Coercion:
expressed opposition to labor organization ; questioning employees regarding or-
ganizational activities and union affiliation : by public officials-Discrimination:
discharge-Reinstatement Ordered, Non -Strikers-Back Pay: awarded-Rein-
statement Ordered, Strikers : strike provoked by employer 's law violation; dis-
placement of employees hired during strike; preferential list ordered , including.
Mr. David A. Moscovitz for the Board.
Mr. Leon Girofsky, Mr. T. Girard Wharton and Mr. Joseph
Halpern, of Somerville, N. J., for respondents.
Mr. Alexander Feller, of New Brunswick, N. J., for the Union.
Mr. Ralph T. Seward, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon an amended charge.' duly filed by Harry A. Posner, as agent
for Local No. 149 of the International Ladies' Garment Workers'
Union, hereinafter referred to as Local. No. 149, the Regional Director
for the Second Region, on January 28, 1936, issued on behalf of the
National Labor Relations Board, hereinafter referred to as the Board,
a complaint against Benjamin Fainblott 2 and Margorie Fainblott,s
individuals doing business under the firm names and styles of Somer-
ville Manufacturing Company and Somerset Manufacturing Com-
pany, both of Somerville, New Jersey, respondents herein. The com-
plaint alleged that the respondents had engaged in and were engaging
i The original charge was filed on October 14, 1935 . The only change made in the
amended charge was to add the name of Tvlargorie Fainblott as respondent.
Also known and referred to in the charge as Benjamin Feinblatt and in the complaint
as Benjamin Fainblatt. , ,
3 Referred to in the complaint as Margaret Feinblatt or MargorieFainblatt.
864
DECISIONS AND ORDERS 865
in unfair labor practices affecting commerce within the' meaning of
Section 8, subdivisions (1), (3) and (5) and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act, approved July 5,
1935, hereinafter referred to as the Act. In substance, the complaint
alleged :
1. The respondents are doing business in Somerville, New Jersey,
under the firm names, Somerville Manufacturing Company and Som-
erset Manufacturing Company, and are engaged in the manufacture,
sale and distribution of women's sportswear. In the course of this
business they have caused substantial amounts of raw material and
finished goods to be purchased, transported and sold in interstate
commerce.
2. Between the approximate dates of August 21 and September 18,
1935, the respondents, by their officers and agents, discharged and
have since refused to reemploy Elizabeth Schoka,4 Angelina Matteis,
Lorraine Heitz, Ethel Rice, Mary Gecik, Fay Katz and Anna San-
toro 5 for the reason that they had joined and assisted a labor organi-
zation known as Local No. 149 of the International Ladies' Garment
Workers' Union, such discharge and refusal constituting unfair labor
practices within the meaning of Section 8, subdivisions (1) and (3)
of the Act.
3. On or about September 13, 1935, the respondents refused and
have since refused to bargain collectively with Local No. 149 through
Harry A. Posner, its representative, although at that time the mem-
bership of Local No. 149 constituted a majority of the production
employees in the respondents' Somerville plant and although the
production employees constituted a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
Act, such refusal constituting unfair labor practices, within the mean-
ing of Section 8, subdivisions (1) and (5) of the Act.
The complaint and the accompanying notice of hearing were duly
served on the respondents and on Local No. 149. On February 4,
1936, the respondents filed an answer which admitted that they were
engaged in business in Somerville, New Jersey, in the manufacture-
of women's sportswear, but denied that they were engaged in its "sale.,
and distribution", or that they were engaged in interstate commerce.
The answer also denied that the respondents had engaged in unfair
labor practices. As to the allegations regarding the proper unit for
collective bargaining, the representative capacity of Harry A. Posner,
as manager of Local No. 149, the refusal to bargain collectively, and
the nature of the alleged acts as constituting unfair labor practices
affecting commerce, the answer denied that the respondents had
4 Referred to in the complaint as Elizabeth Scheka.
5 The original and amended charges did not include the name of Anna Santoro.
866 NATIONAL LABOR RELATIONS BOARD
knowledge or information sufficient to form a belief. Finally, the
answer asserted the unconstitutionality of the Act and its inapplica-
bility to the respondents' business.
On February 15, 1936, in accordance with Article II, Section 35, of
National Labor Relations Board Rules and Regulations-Series 1, the
Board ordered the proceeding to be transferred to and continued
before it.
On February 17, 18 and 19, 1936, a hearing was held in Somerville,
New Jersey, before Robert M. Gates, the Trial Examiner duly desig-
nated by the Board. The respondents, appearing specially, moved to
dismiss the complaint upon the grounds that the Act was unconsti-
tutional and that the Board, having issued the complaint, was dis-
qualified from exercising a judicial function by conducting the hear-
ing. The motion was denied and the respondents then took part in
the hearing without waiving their right to renew their objection in
due course. Full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence and to file briefs was af-
forded to all parties ; the respondents, however, called no witnesses
and introduced no evidence. During the course of the hearing coun-
sel for the Board moved to amend the complaint to conform the
pleadings to the proof. The motion was granted. Counsel for the
Board also moved to amend the complaint by adding the name of
Theresa Yemma to the list of employees alleged to have been dis-
charged by the respondents. The motion was granted over the re-
spondents' objection. The respondents then moved to have the
answer conformed to the amended complaint. The motion was
granted. At the close of the case for the Board, the respondents
moved to dismiss the complaint on the grounds that the Act is uncon-
stitutional and if constitutional is inapplicable to the respondents'
business. The motion was denied. The rulings of the Trial Exam-
iner on all motions are hereby affirmed.
On February 24, 1936, the Board, acting pursuant to Article II,
Section 3 (a) of said Rules and Regulations-Series 1, directed the
Trial Examiner to prepare and file with it his intermediate report.
On April 3, 1936, the Trial Examiner filed his intermediate report
finding that the respondents had engaged and were engaging in the
unfair labor practices alleged in the complaint and recommending, in
substance, that they cease and desist therefrom, offer to reinstate the
eight discharged employees listed in the amended complaint with
back pay, reinstate all striking employees, and proceed to bargain
collectively with Local No. 149. The Trial Examiner further recom-
mended that unless the respondents filed with the Board on or before
April 14, 1936, a written notification that they would comply with
these recommendations, the Board should issue an order requiring
such compliance. No such notification of compliance has been filed
DECISIONS AND ORDERS 867
by the respondents nor have they filed exceptions to the intermediate
report or any other part of the record.
Upon the entire record as thus made, including the pleadings, the
evidence adduced at the hearing, and the. Trial Examiner's inter-
inediate report, the Board makes the following :
FINDINGS OF FACT
1. RESPONDENTS' BUSINESS AND ITS RELATION TO INTERSTATE COMMERCE
1. In August, 1934, the respondent Benjamin Fainblott, (herein-
after referred to as Fainblott) established the Somerville Manufac-
turing Company and the Somerset Manufacturing Company in Som-
erville, New Jersey. Though separately registered, the companies
were in fact identical, the two names having been adopted for rea-
sons immaterial here. The respondent, Margorie Fainblott, Benja-
min Fainblott's daughter, is registered as part owner of the Somerset
Manufacturing Company, but Fainblott's testimony indicates that
her ownership is largely formal and that he is in fact in full control.
On or about February 15, 1935, Fainblott discontinued the use of
the name Somerville Manufacturing Company.
2. The Lee Sportswear Company, New York, New York, (herein-
after called Lee Sportswear) is a partnership composed of Fain-
blott's children, Margorie, Leo and Irving. Prior to August, 1934,
Fainblott had been employed by Lee Sportswear as general super-
visor of its shop in New York. Following an adverse decision in
the arbitration of a dispute with the union representing the em-
ployees of Lee Sportswear, Fainblott came to Somerville and estab-
lished his present business. The necessary capital was loaned to him
by Lee Sportswear in return for a chattel mortgage on his machinery.
3. Counsel for the respondents stipulated with counsel for the
Board that the Somerset Manufacturing Company (and prior to Feb-
ruary, 1935, the Somerville Company) at its plant in Somerville,
New Jersey, manufactures and converts raw material of Lee Sports-
wear into finished products for the exclusive account of Lee Sports-
wear, which sells and distributes these finished products for its own
account throughout the United States. The products are for the
most part women's sport clothing, such as snow suits, ski pants,
slacks, beach wear, shorts, etc.
4. The raw material, title to which remains throughout in Lee
Sportswear, is usually cut by that company in New York City and
shipped to the Somerset Manufacturing Company. Sometimes the
raw material is shipped at the order of Lee Sportswear directly from
the mills, many of which are outside the State of New Jersey, to the
respondents' plant and is cut there.
868 NATIONAL LABOR RELATIONS BOARD
5. As soon as possible after the raw material is received, it is made
up into finished goods. Sol Fainblott, another of Fainblott' s sons, is
maintained by Lee Sportswear as its representative at the Somerville
plant. After the raw material is manufactured and converted by
the respondents, the finished goods are delivered to Sol Fainblott.
.Some he ships directly to customers of Lee Sportswear throughout
the United States ; the rest he ships to Lee Sportswear itself in New
York City. Such shipments are made on an average of four or five
times a week; no goods are stored at the factory.
6. Fainblott operates under a standing agreement with Lee Sports-
wear, whereby he converts and finishes according to their order
whatever raw materials they send him and is paid therefor at rates
varying with the type of goods produced. These contractual pay-
ments are the business' only income, Fainblott receiving no dividends
from Lee Sportswear and having technically no financial interest
therein. It appears, however, that Fainblott is the principal or only
manufacturer with whom Lee Sportswear contracts. Thus he testi-
fied in describing his relationship to Lee Sportswear : "The only un-
usual thing is whereas they are not supplying other contractors with
work, they will supply me with work. That is the relationship
between father and children."
7. Though technically an independent enterprise, the Somerset
Manufacturing Company thus operates in fact as the principal manu-
facturing department of Lee Sportswear, a company engaged in sell-
ing sporting goods in interstate commerce. The operations of the re-
spondents require and are a part of a continuous flow of goods in
such commerce between the respondents and the mills, the respondents
and Lee Sportswear, and the respondents and the customers of Lee
Sportswear. The volume of this flow varies directly with the volume
,of the respondents' output.
8. The aforesaid operations of the respondents constitute a con-
tinuous flow of trade, traffic and commerce among the several States.
II. THE APPROPRIATE UNIT
9. The employees of the Somerset Manufacturing Company fall
naturally into four classes : ( 1) those in the tailoring department ;
(2) the cutters; (3) the "general" or maintenance men; and (4) the
supervisory staff. The workers in the tailoring department are for
the most part either machine operators or "floor girls "; i. e., girls
(engaged in trimming, cleaning , folding and packing the goods. In
addition there is one "finisher" who comes in only occasionally to
sew on snaps, hooks and eyes, etc. There are two cutters , who work
irregularly on material ; Fainblott himself referred to them as con-
stituting a separate department . The activities of the four "general"
DECISIONS AND ORDERS 869
men, though not described in detail in the record , seem to consist of
such tasks as tending the machines , cleaning the floor, carrying ma-
terial from one machine to another, etc., though occasionally they
have helped to sew on eyelets. The supervisory staff consists of a
foreman, forelady , and a bookkeeper.
10. The tailoring department of the Somerset Manufacturing Com-
pany , consisting of the operators , floor girls , and finisher, constitutes
a unit appropriate for the purposes of collective bargaining.
III. THE DESIGNATION OF LOCAL NO. 149 AS REPRESENTATIVE OF TIIE
EMPLOYEES IN THE TAILORING DEPARTMENT
11. Local No . 149 of the International Ladies' Garment Workers'
Union is a labor organization which exists for the purpose of dealing
with employers concerning grievances , labor disputes , wages, rates
of pay, hours of employment , and conditions of work.
12. Following the invalidation of the National Industrial Recovery
Act, Fainblott instituted a series of severe wage cuts. On August
14, 1935, three employees of the tailoring department , Ethel Rice,
Anna Santoro , and Mary Morano, at the request of a number of the
others, went to the office of Harry A . Posner, manager of Local No.
149, at Plainfield , New Jersey . They asked his assistance in improv-
ing wages and working conditions in the respondents ' plant. While
at his office the three girls filled out application cards for member-
ship in Local No. 149. They returned to the plant and persuaded
another employee , Elizabeth Schoka, to fill out a card. Then as
Posner had suggested, they called a meeting of interested employees
for August 21, 1935. At that meeting, attended by Posner, at least
15 girls of the tailoring department filled out application cards for
membership in Local No. 149. Thirteen more applied at a second
meeting on August 28 and two others applied shortly thereafter.
According to the custom of Local No. 149, these 34 employees became
members of Local No. 149 for purposes of collective bargaining upon
the signing of their application cards, though none of them had as
yet paid union dues. As further evidence of their membership, the
Union has contributed regularly to their support during the strike.
13. The eight girls of the tailoring department who are found
below to have been discharged for union activities are included in the
34, since they continued to be employees of the Somerset Manufac-
turing Company within the meaning of Section 2, subdivision (3) of
the Act. Application cards were also filled out by one of the "gen-
eral" men and by at least seven individuals who, for reasons unknown
to us, had been discharged or left the employment of the Somerset
Manufacturing Company before September 6, 1935. As they were
not in the tailoring department, the appropriate unit for collective
bargaining, they have been excluded from our calculations.
870 NATIONAL LABOR RELATIONS BOARD
14. At either the first or second meetings of Local No. 149, Harry
A. Posner, as manager of Local No. 149, was chosen by the employees
present to represent them in collective bargaining with the respond-
ents. Regardless of when that choice was formally made , it is clear
from the subsequent actions of all the 34 members of Local No. 149
that they ratified that choice.
15. During the week ending September 7, 1935, at or about which
time it is alleged that the respondents refused to bargain collectively,
there were on the payroll of the Somerset Manufacturing Company,
53 employees of the tailoring department . To them must be added
the six employees of that department who, we find below, had up to
that time been discharged for union activities since August 14, 1935.
One of the six, Elizabeth Schoka, was temporarily employed at that
time by the Stars Dress Shop in Plainfield , New Jersey , but her
employment there lasted only four or five weeks and cannot be con-
sidered "regular" or "substantially equivalent " to her position with
the, Somerset Manufacturing Company, within the meaning of Sec-
tion -2, -subdivision (3) of the Act . The total number of employees
in,'the , unit was thus 59. The 34 members of Local No. 149 were
therefore in a clear majority. These figures continued unchanged
until , September 18, the day of the strike.
(1'6:-'.On September 6, 1935, Local No. 149 of the International
Ladies' Garment Workers' Union had been designated by a majority
of the employees in the tailoring department of the Somerset Manu-
facturing Company as their representative for the purpose of col-
lective bargaining.
IV. THE REFUSAL TO BARGAIN COLLECTIVELY
17. On or about August 30 , 1935, Posner called on Fainblott at the
plant, told him that he had been delegated by his employees to pre-
sent certain demands for the improvement of conditions at the plant,
and outlined these demands . Fainblott replied that he would take
the proposals into consideration and let him know his answer in a
few days. On September 6, Posner called Fainblott on the telephone.
According to Posner 's testimony, Fainblott told him that he would
have no dealings with him, would have nothing to do with a union,
and that he did not recognize Posner as legal representative of his
employees . Fainblott testified that he did not remember saying he
would never recognize a union for collective bargaining but admitted
that he said that before he would allow an outsider to run his business
he would get out of it. In reply to subsequent questions by counsel
for the Board as to his willingness to deal with Local No. 149, Fain-
kaott refused to give a direct answer, merely repeating three times,
"I will not let an outsider run my business."
DECISIONS AND ORDERS 871
18. Posner reported this rebuff to the members of Local No. 149.
They voted unanimously to strike at 10 A. M., September 18. All of
the 34 members of Local No. 149 who had not previously been dis-
charged struck either at the time set or within a day or two there-
after. The strike is still in progress, though the record indicates that
one or two of the girls have gone back to work.
19. About two weeks after the strike began, Posner went to the
office of Mr. Girofsky, Mr. Fainblott's attorney and representative,
and attempted to open negotiations for a settlement. Girofsky in-
formed him that "Mr. Fainblott would not talk union or recognize
anybody that had any connection with the union." At some subse-
quent date, Mr. Posner, his attorney, Mr. Feller, Mr. Girofsky, Mr.
Fainblott, and Mr. Moscovitz, Regional Attorney for the Second
Region, met and discussed terms of settlement. Though the record
is not clear, the meeting appears to have been fruitless.
20. On or about September 6, 1935 the respondents refused and
have since continued to refuse to bargain collectively with Local No.
149, through Harry A. Posner, as representative of the employees in
the tailoring department of the Somerset Manufacturing Company.
21. The strike of certain' of the respondents' employees on Sep-
tember 18, 1935, resulted directly from the respondents' refusal to
bargain collectively.
V. DISCRIMINATORY DISCHARGES
22. It is alleged that between August 14 and September 18, 1935
the respondents discharged and have since refused to reinstate the
following employees because of their union activities :
(a) Elizabeth Schoka had been employed as an operator by the
Somerset Manufacturing Company since August 1934, save for a
brief interval when she had been temporarily laid off because of lack
of work. For a while she had been classed as a "learner" but for
some months before her discharge she had been classed as a regular
operator and accordingly had been paid at piece rates. Since the
invalidation of the National Industrial Recovery Act she had aver-
aged from $9.00 to $12.00 a week. There is no evidence that she
had been inefficient or below standard in any way. On August 14,
1935 she met the three girls returning from their visit to Mr. Posner,
and filled out an application card for union membership. Shortly
before or after this date, Fainblott called her to his office and asked
her, "Who approached you to sign the union-Frank or his wife?" 6
She replied, "Nobody". A few days later, she was told by the fore-
man, "You are causing too much trouble. Get your work and go
6 The identity of "Frank" is not made clear in the record.
97571-36-vol. 1-56
872 NATIONAL LABOR RELATIONS BOARD
home." She -went home at once. Since that time she has worked
for four or five weeks for the Stars Dress Shop in Plainfield, New
Jersey, at $17.00 a week.
(b) Lorraine Heitz 7 began working for the Somerset Manufac-
turing Company as a floor girl in April, 1935 and was employed
continuously until the time of her discharge . There is no evidence
that she was inefficient in any way . Since the invalidation of the
National Industrial Recovery Act she had been paid 21 cents an
hour. Two weeks before her discharge this rate was cut without
notice to 18 cents an hour. Her hours were irregular , averaging
between thirty to thirty -five hours a week. She had taken some
leadership in inviting girls to the first meeting of Local No. 149.
Shortly before the meeting the foreman had asked her if she was
interested in Local No. 149 and for information about it. She had
replied she had no information to give him . On the afternoon of
August 21 she was quite busy and worked overtime. Before leaving
she and -Ethel Rice, as was customary , asked Fainblott what time
they were to come in next morning . He replied , "I am sorry girls
there is no work for you ." They asked him why and he replied,
"I have no more work for you girls, you will have to go to the
union." Both girls testified that at that time there was an excep-
tionally large amount of work to do. The next morning they re-
turned to get their pay and asked Fainblott again for work. He
replied that he had told them once before that he had no work for
them and opening the door of the first floor where the floor girls
usually worked showed that there was no one there. On their way
in, however, they had already seen the other floor girls waving to
them from the windows of the third floor. Since her discharge
Lorraine Heitz has not obtained employment elsewhere.
(c) Ethel Rice began working as a floor girl for the Somerset
Manufacturing Company in January, 1935 and was employed con-
tinuously until her discharge . There is no evidence that she was in
any way inefficient . Since the wage cut following the invalidation
of the National Industrial Recovery Act, she had been paid 25 cents
an hour. Her hours were irregular , her weekly pay ranging from
$6 to $10 a week . She was one of the three girls who visited Posner
on August 14 and asked his help in forming a union . She was
active in trying to interest girls in Local No. 149 and in inviting
girls to the first meeting . Her account of the discharge of Lorraine
Heitz and herself on the afternoon of August 21. 1935, tallies with
that given by Lorraine Heitz in all essentials including the facts of
their overtime work, the use by Fainblott of substantially the lan-
7 Also known and listed on the payroll as Lorraine Vones.
DECISIONS AND ORDERS 873
guage, "I have no more work for you girls-you can go to the Union
for work", and the effort of Fainblott to convince them that there
was no work by showing them the empty first floor while the other
floor girls were upstairs. The record does not reveal whether or not
she has worked elsewhere since her discharge.
(d) Angelina Matteis began work as an operator for the Somerset
Manufacturing Company about a year before her discharge. Save
for a few lay-offs of a half a day or so in slack seasons, she was
employed continuously the entire year. There is no evidence that she
was inefficient in any way. She worked at piece rates averaging from
$8 to $12 a week. She had been active in inviting the girls to the first
meeting of Local No. 149. At that first meeting she joined. A few
days later, when she reported for work in the morning, she was told
by the foreman, "I am sorry you are causing too much trouble. I
have no more work for you." She went home at once. Since that
time she has worked for one week at a shop in Plainfield, receiving
$14.
(e) Mary Gecik began work as an operator at the Somerset Manu-
facturing Company in March, 1935, and was employed continuously
until her discharge. There is no testimony that she was in any way
inefficient. After the wage cut that followed the invalidation of the
National Industrial Recovery Act she averaged at piece rates from
$7 to $8 a week. She joined Local No. 149 at its first meeting, on
August 21. A few days thereafter, when she went to work in the
morning, she was told by the foreman, "I have not any more work for
you. You are causing too much,trouble. If you want work go to the
union. The Union will give you work." She left at once. She has
not been employed since her discharge.
(f) Fay Katz began working as an operator with the Somerset
Manufacturing Company in December, 1934 and was employed con-
tinuously until her discharge. There is no evidence that she was in
any way inefficient. She was paid at piece rates. Her hours varied
from 14 to 40 hours a week during the last five weeks of her employ-
ment. When she worked 40 hours her pay averaged $7 or $8 a week.
She was active in talking to the girls about Local No. 149 and in
inviting girls to its meetings, and joined on August 21. The forelady
had spoken to her concerning Local No. 149 at about the time of this
first meeting. When she reported to work a few days before the
strike, Fainblott refused to allow her into the plant, saying : "I have
no work for you." When she said he had given other girls work, he
replied : "I don't owe you anything. If you want work you can go to
the Union." Since that time she has worked four and one-half days
at a shop in Plainfield, receiving a little over $15.
874 NATIONAL LABOR RELATIONS BOARD
(g) Anna Santoro was employed as an operator by the Somerset
Manufacturing Company from the time it opened until her dis-
charge. According to her uncontradicted testimony she was one of
the fastest and highest paid of the operators. Since the -invalidation
of the National Industrial Recovery Act she had been paid at piece
rates between $8 and $9 a week. She was one of the three girls who
visited Mr. Posner at his office in Plainfield, and had attended all the.
union meetings of Local No. 149. On the morning of the strike, Sep-
tember 18, the forelady, after first speaking to a girl who worked
beside her and then to the foreman, came over to her, said to her, "no
more work for you." She also told her that she had heard that she
was the one that was going to blow the whistle to call the girls out on
strike and that she was the one that had started all the trouble by
going to Mr. Posner. She left at once, fifteen minutes before the
strike was called.
(h) Theresa Yemma was employed by the Somerset Manufactur-
ing Company from April, 1935 to the time of her discharge. She
worked some of that time as a floor girl and the rest as an operator.
There is no evidence that she was in any way inefficient. There is no
information in the record as to the rate of her pay after the invali-
dation of the National Industrial Recovery Act. She joined Local
No. 149 on August 21 at its first meeting. During the following week,
though she reported regularly for work, she was given nothing to do
by the foreman though there was much to do at which she was expe-
rienced. Finally, the day after the second meeting of Local No. 149,
when she went for her pay, the foreman told her he had no work for
her, that she had been causing too much trouble. She left at once.
According to her uncontradicted testimony, she had never been dis-
ciplined or reprimanded during her previous employment by the
company. Since her discharge she has worked from the middle of
September to the end of December at another plant at an average pay
of $13 a week. She also worked for the M. H. Fishman Department
Store on each Saturday during October, November and December, at
21 cents an hour, usually for 10 hours a day.
23. The respondents insisted at the hearing that these eight girls
had not been discharged but had been temporarily laid off because
of lack of work. Discrimination through the laying off of employees
active in union organization is as clearly within the prohibition of
Section 8, subdivision (3), of the Act, as is their discharge. In any
event, we cannot accept the respondents' explanation that the girls
were 1aio off. Fainblott himself testified that one of his busy sea-
sons began in August or September. Previous lay-offs due to lack
of work had usually lasted not more than a few days and the, longest
mentioned in the record was from the middle of December to "some-
DECISIONS AND ORDERS 875
time after the New Year". Fainblott himself customarily notified
girls who had been laid off when to return. He testified that he has
taken on new employees to replace both the girls on strike and the
eight allegedly discharged, and there is no evidence in the record
that he sent any such notification to the eight girls in question. All
eight had joined Local No. 149 either at or before its first meeting;
several had helped to organize that meeting; two had visited Mr.
Posner and asked his aid. The supervisory staff evidently suspected
or knew of these activities, as their questions to some of the eight
reveal. Upon being discharged, all eight were told either that they
were causing trouble or that they should "go to the union for work".
24. The record contains further evidence of Fainblott's deep hos-
tility to Local No. 149 and his determination to thwart any effort to
organize his plant. Fainblott testified that before the first meeting
of Local No. 149 he learned from certain girls in the plant that an
effort to organize the employees was being made. On the afternoon
of August 21, the day set for the first meeting, Fainblott invited
Mayor Hess of Somerville and a Mr. Hawley, from whom he had
rented the plant, to speak to the girls. He insured the full attend-
ance of the machine operators by closing the doors of the second
floor where they worked, turning the power off, and telling them
to gather around. The Mayor then addressed them, telling them,
in substance, to have no connection with Local No. 149, but to stick
to the boss where their bread and butter came from, and warning
them that their boss would have nothing to do with Local No. 149,
and that if they went on strike they would have to go on relief. Mr.
Hawley recounted his own experience as a member of a union which
had struck unsuccessfully, and advised the girls against joining.
25. On August 28, the afternoon before the second meeting of Local
No. 149, Fainblott invited Sheriff Adams of 'Somerset County to
the plant. When the girls came downstairs to get their pay, Fainblott
closed the doors and refused to allow anyone to be paid until they
were all gathered together. Sheriff Adams then spoke advising the
girls against joining Local No. 149 because Fainblott would never
sign an agreement with a union.
26. Several employees testified to the substance of these addresses.
Fainblott testified that in none of them was a union mentioned but
that the speakers merely asked the girls not to make trouble for a
peaceful factory. When pressed, however, he admitted that he had
heard of Local No. 149 and of a possible strike, and said he "pre-
sumed" the speakers came to discuss the threatened strike. As
against the testimony of the employees, and in the light of his ad=
mitted knowledge of the plans for a union, we find his assertion that
the strike and "trouble" were discussed without mention of the union
to be unworthy of credence.
876 NATIONAL LABOR RELATIONS BOARD
27. In the light of the language used in connection with the dis-
charges and of all the attendant circumstances, we find that the
respondents, or their agents, by discharging the eight girls named
in the amended complaint for the reason that they joined and assisted
Local No. 149, discriminated against them in regard to hire and
tenure of employment, thereby discouraging membership in a labor
organization. We also find that by such discharges, the respondents.
interfered with, restrained, and coerced their employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act.
28. It is clear from the record that the discharged girls have not
applied individually to the respondents for reinstatement. It is
equally clear that their reinstatement was among the terms offered by
Posner to the respondents in his effort to settle the strike, and was
rejected by them when they refused to bargain collectively. Two
weeks before the hearing Fainblott offered through Commissioner
of Conciliation Moffet of the United States Department of Labor to
reemploy seven workers at once and the balance as he could absorb
them, but according to Posner, the terms included the dropping of
union affiliations. Fainblott himself said that he would employ
workers individually but not "as a body." In view of Fainblott's
attitude toward the union and toward collective bargaining, it`is evi-
dent that he conditioned reinstatement upon the abandonment by
the girls of the rights guaranteed in Section 7 of the Act. Such a
condition can only be treated as a refusal to reinstate.
\'I. THE EFFECT UPON COMMERCE
29. Between September 1 and 17, 1934, approximately 1065 dozen
finished garments were shipped from the respondents' plant. From
September 18 to 30, 1934, approximately 987 dozen garments were
shipped. Though the record is incomplete as to the shipments in
October, 1934, it is clear that at least 1011 dozen were shipped. The
shipments from September 1 to 17, 1935, totaled approximately 857
dozen. The strike in this case began on September 18, 1935. The
shipments from September 18 to 30, 1935, totaled approximately 373
dozen. In October, 1935, the record reveals that there were at least
680 dozen shipped, although there may have been more. Thus while
in September, 1935, before the strike, the plant's output was about
80 per cent of the figure for the same period in 1934; after the strike
its output dropped to less than 38 per cent of that during the same
period in 1934. Though the record is not clear, it seems probable
that the former level of production was not regained during October.
30. The aforesaid acts of the respondents have led and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
DECISIONS AND ORDERS
THE REMEDY
877
31. That the eight discharged girls and those who struck on Septem-
ber 18, 1935 are now without employment (except for one or two who
may have returned) is a direct result of the unfair labor practices in
which the respondents are found to have engaged. To repair the
damage done and return the parties as nearly as possible to the status
quo ante these employees must be reinstated and the eight discharged
for union activity must receive, in addition, back pay. The record
indicates that since September 18, 1935 the discharged or striking
employees have been replaced by others. It also indicates that the
respondents' activities are seasonal and that the number they can
maintain in employment varies. We will order, therefore, that the
respondents offer to reinstate the eight discharged employees with
back pay and also that they offer to reinstate all striking employees
whose positions have been filled by others employed since September
18, 1935. The remaining striking employees must be placed on a
preferential list and offered employment according to their seniority
in the respondents' employ as work for them becomes available.
Without such reinstatement, our order that the respondents bargain
collectively with Local No. 149 would be meaningless and futile and
the purpose of the Act could not be effectuated.
CONCLUSIONS OF LAW
• Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding the Board finds and concludes as a
matter of law:
1. Margorie Fainblott, as registered part owner of the Somerset
Manufacturing Company, is properly a respondent in this proceed-
ing, together with the actual owner, Benjamin Fainblott.
2. Local No. 149 of the International Ladies' Garment Workers'
Union is a labor organization, within the meaning of Section 2, sub-
division (5) of the Act.
3. The tailoring department of the Somerset Manufacturing Com-
pany is a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
4. By virtue of Section 9 (a) of the Act, Local No. 149 of the Inter-
national Ladies' Garment Workers' Union, having been designated
on or before September 6, 1935 by a majority of the employees of the
tailoring department of the Somerset Manufacturing Company as
their representative for the purposes of collective bargaining, has
been at all times since said date the exclusive representative of all said
employees for the purposes of collective bargaining.
878 NATIONAL LABOR RELATIONS BOARD
5. By refusing and continuing to refuse to bargain collectively
with Local. No. 149 of the International Ladies' Garment Workers'
Union as the exclusive representative of the employees in the tailoring
department of their plant, the respondents have engaged in and are
engaging in unfair labor practices, within the meaning of Section 8,
subdivision (5) of the Act.
6. By discriminating in regard to hire and tenure of employment
against Elizabeth Schoka, Lorraine Heitz, Ethel Rice, Angelina Mat-
teis, Mary Gecik, Fay Katz, Anna Santoro and Theresa 'Yemma,
thereby discouraging membership in Local No. 149 of the Interna-
tional Ladies' Garment Workers' Union, the respondents have en-
gaged in and are engaging in unfair labor practices, within the mean-
ing of Section 8, subdivision (3) of the Act.
7. By refusing and continuing to refuse to bargain collectively with
Local No. 149 as aforesaid and by discriminating in regard to hire and
tenure of employment as aforesaid, thereby interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the respondents have engaged in and are
engaging in unfair labor practices, within the meaning of Section 8,
subdivision (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions (6)
.and (7) of the Act.
ORDER
On the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondents, Benjamin Fainblott and Margorie Fainblott,
individuals doing business under the firm names and styles of Somer-
ville Manufacturing Company and Somerset Manufacturing Com-
pany, shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing their
employees in the exercise of their right to join and assist Local No.
149 of the International Ladies' Garment Workers' Union or any
other labor organization ;
(b) Discouraging membership in Local No. 149 of the International
Ladies' Garment Workers' Union or in any other labor organization
of their employees by discharging, refusing to reinstate, or otherwise
discriminating in regard to tenure or terms of employment against
employees who have joined or assisted Local No. 149 or any other
labor organization of their employees;
DECISIONS AND ORDERS 879
(c) Refusing to bargain collectively with Local No. 149 of the
International Ladies' Garment Workers' Union as the exclusive rep-
resentative of the employees in the tailoring department of the Somer-
set Manufacturing Company.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local No. 149 of the
International Ladies' Garment Workers' Union as the exclusive rep-
resentative of its employees in the tailoring department in respect
to rates of pay, wages, hours of employment and other conditions
of employment.
(b) Offer to Elizabeth Schoka, Lorraine Heitz, Ethel Rice, An-
gelina Matteis, Mary Gecik, Fay Katz, Anna Santoro and Theresa
Yemma immediate and full reinstatement to their former positions
without prejudice to any rights and privileges previously enjoyed.
(c) Offer employment to all employees of the tailoring depart-
ment who went on strike on September 18, 1935 or within one week
thereafter where positions held by such employees on. September 18,
1935 are now held by persons who were not employees of the re-
spondents on September 18, 1935 but were employed subsequently
thereto, and place all other employees who struck on September
18, 1935 or within the following week on a preferential list to be
offered employment according to their seniority in respondent's em-
ployment, as and when their labor is needed.
(d) Make whole said Elizabeth Schoka, Lorraine Heitz, Ethel
Rice, Angelina Matteis, Mary Gecik, Fay Katz, Anna Santoro and
Theresa Yemma for any loss of pay they have suffered by reason
of their discharge by payment to each of them, respectively, of a
stun of money equal to that which she would normally have earned
as wages during the period from the date of her discharge to the
date of such offer of reinstatement, less earnings from other employ-
ment during such period.
(e) Post notices in conspicuous places in the plant stating (1)
that the respondents will cease and desist in the manner aforesaid,
and (2) that such notices will remain posted for a. period of thirty
--(30) consecutive days.