VanDeusen Dress Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 20, 1942

45 N.L.R.B. 679 (N.L.R.B. 1942)

In the Matter Of MAYNARD K. VANDEUSEN, DOING BUSINESS AS VAN-
DEUSEN DRESS MANUFACTURING COMPANY and INTERNATIONAL
LADIES' GARMENT WORKERS UNION
Case No. C-0286.-Decided November 00, 1949d
Jurisdiction : dress manufacturing industry.
Unfair Labor Practices
In General: employer's sister-in-law, who maintained home with employer, had
on occasion exercised supervisory authority, and was regarded by employees
as close to management, found to be confidential employee and agent, and her
anti-union statements held attributable to employer.
Interference, Restraint, and Coercion: speech by employer coincident with union
activities, delivered to employees in plant during working hours, suggesting
deferment or abandonment of union activities ; threats to rid plant of union
members and to close plant; speech by major customer of employer during
working hours in plant at request of employer, stating that if employer's
employees organized, customer would send no further work to employer;
advising employees that they were not compelled to remain in union ; sur-
veillance; questioning applicant for employment in regard to union member-
ship.
Discramination: layoffs, during seasonal plant shutdown, of active union em-
ployees ordinarily steadily employed despite seasonal shutdowns ; layoff of
union president found not to have been discriminatory where her layoff was
customary during seasonal shutdowns, and where she notified employer prior
to resumption of plant operations that she would not return to work ; em-
ployees found to have been discriminatorily discharged where employer took
advantage of break in their employment as result of layoff of one and sick-
ness of other to rid himself of these union members by failure to recall them ;
employee found not to have been discriminatorily transferred where facts
were consistent with employer's contention that she was transferred to new
machine for reasons of efficiency.
Remedial Orders: cease and desist unfair labor'practices; reinstatement and
back pay awarded ; employer's statement at hearing that be was willing to
reemploy-employees discriminatorily discharged, held not to constitute such an
offer of reinstatement as would effectuate policies of the Act ; employer directed
to offer reinstatement to employees regardless of whether they had secured
substantially equivalent employment when they had not indicated disinterest
in reemployment by employer.
Mr. Robert E: Greene, for the Board.
Mr. A. Herbert Barenboim, of Boston, Mass., for the respondent.
Isserman, Isserman and Kapelsohn, by Mr. Morris Isserman, of
Newark, N. J., for the Union.
Mr. Charles W. Schneider, of counsel to the Board.
45 N. L. R. B., No. 102.
679
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on March 14, 1942, by'
International Ladies' Garment Workers Union, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Third Region (Buffalo, New York),
issued its complaint, dated May 27, 1942, against Maynard' K. Van-
Deusen, doing business as VanDeusen Dress Manufacturing Com-
pany, Cobleskill, 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 and
notice of hearing thereon-were duly served upon the respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged, in
substance, that the respondent: (1) on or about July 28, 1941, and at
various times thereafter, attempted to, and did, discourage self-organ-
ization among his employees by advising them not to affiliate with the
Union; threatened them with loss of employment if they joined the
Union; spied upon union meetings, and upon employees to determine
their union activities; advised his employees that they were not com-
pelled to maintain membership in the Union; and made derogatory
remarks concerning the Union; (2) on various dates between August
11 and September 10, 1941, discouraged membership in the Union
by discriminating in regard to the tenure of employment of Sarah
Herron, June Lorraine Herron, Azenath Herron, Anna Kennedy,
Bertha Hyatt, and Della Entrott; and (3) by the foregoing acts in-
terfered with, restrained, and coerced his employees in the exercise
of the rights guaranteed in Section 7, and violated Section 8 (1) and
(3), of the Act.
On June 10, 1942, the respondent filed an answer denying that
he was engaged in interstate commerce, and denying the commission
of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held in Cobleskill, New York,
from June 22 through 26, 1942, before Gustaf B. Erickson, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Union were represented by counsel' and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
MAYNARD K. VANDEUSEN 681
issues was afforded all parties. At the beginning of the hearing, at
the'close of the Board's case, and again at the close of the hearing, the
respondent moved to dismiss the complaint. During the hearing, the
respondent moved to dismiss the complaint as to Della Entrott. The
Trial Examiner reserved rulings on these motions and thereafter
denied them in his Intermediate Report. At the close of the hearing,
the Trial Examiner granted the unopposed motion of counsel 4or the
Board to conform the pleadings to the proof. During the course
of the hearing, the Trial Examiner also made rulings on various
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. Except as is otherwise indicated hereinafter, the
rulings are hereby affirmed. None of the parties argued orally before
br submitted briefs to the Trial Examiner, although afforded op-
portunity to do so.
On August 5, 1942, the Trial Examiner filed an Intermediate Re-
port, copies of which were duly served upon the parties. The Trial
Examiner found that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and '(7) of the Act,
and recommended that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act. On Septem-
ber 16, 1942, the Union filed a brief in support of the Intermediate
Report. On September 17, 1942, the respondent filed exceptions to
the Intermediate Report and a brief in support of the exceptions.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board in Washington, D. C., on September 29,
1942. The respondent and the Union were represented by counsel
and participated in the argument.
The Board has considered the brief filed by the Union. It has
also considered the exceptions to the Intermediate Report and the
brief filed by the respondent and, except insofar as the exceptions
are consistent 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
I.. THE BUSINESS OF THE RESPONDENT 1
Maynard K. VanDeusen, doing business as VanDeusen Dress Man-
ufacturing Company, has been engaged since 1934 in the manufacture
'Based upon a stipulation entered into by counsel for the Board and counsel for the
respondent.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of children's dresses at Cobleskill, New York. During the past several
years the respondent's principal customer has been Tiny Town Togs,
Inc., of Troy, New York. Substantially all the respondent's work
has been for Tiny Town Togs, Inc. The plant is operated as a so-
called "contract shop."
All the raw materials used by the respondent, including cut cloth,
ribbons, and tape, are owned by Tiny Town Togs, Inc., and are
shipped by the latter from its plant in Troy, New York, or its ware-
house in New York City, to the respondent at Cobleskill. The re-
spondent manufactures garments from the raw materials and ships
them to Tiny- Town Togs, Inc., at Troy, where they are further proc-
essed and then distributed to the latter's customers. All the machin-
ery used by the respondent is owned by him, except about 6. sewing
machines 2 leased from Tiny Town Togs, Inc. During 1941 the
respondent processed an average of 550 dozen dresses per week, for
which he received in excess of $40,000 from Tiny Town Togs, Inc.
The respondent employs about 100 workers at Cobleskill.
During the fiscal years ending August 1, 1940, and August 1, 1941,
respectively, the total sales of Tiny Town Togs, Inc., were valued at
$1,009,000 and $1,279,000. Approximately 90 percent of such sales
was made and delivered to customers outside the State of New York.
During the same fiscal years, respectively, Tiny Town Togs, Inc.,
purchased raw materials valued at approximately $364,000 and
$672,000. Of the purchases of cloth, 80 percent (representing 85
percent of the total raw materials used by Tiny Town Togs, Inc.)
was purchased outside the State of New York. The present ship-
ments and purchases of Tiny Town Togs, Inc., bear approximately
the same relation to interstate commerce as in the fiscal years above
described.
The respondent denies that he is engaged in commerce within the
meaning of the Act. The foregoing facts, however, clearly establish
that the respondent is a principal processor of substantial amounts of
materials which originate in the stream of commerce. After fabrica-
tion by the respondent these materials are then mingled with other
goods and in large measure returned to the stream of commerce. We
therefore find that the operations of the respondent constitute a con-
tinuous flow of trade, traffic, and commerce among the several States .3
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers Union is a labor organi-
zation admitting to membership employees of the respondent.
2 There are about 90 sewing machines in the respondent 's plant.
3 N. T. R. B v. Facnblatt, et al., 306 U. S. 601.
'MAYNARD S . VANDEUSEN 693
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
'In July 1941 the Union initiated an organizational drive among
the respondent's employees. On July 24 John Mott, a union or-
ganizer, arrived in Cobleskill to direct the drive. With the help of
Sarah Herron'and Bertha Hyatt, employees of the respondent, Mott
compiled a list of names and addresses of some of the respondent's
employees. On July 25 he mailed union literature and pledge cards
to the employees on that list, with the request that the cards be filled
out and brought to the union office on July 28.
On the morning of July 28, 1941, during working hours, Maynard
K.,VanDeusen, the respondent herein, shut off the power in the plant
and assembled the employees in the main shop. VanDeusen then
addressed the group. In the course of this address, according to a
number of employees' whose testimony we credit, as did the Trial
Examiner, VanDeusen stated that there was a strike in progress at
the plant of Tiny Town Togs, Inc., in Troy, New York,5 and that
unless the union affiliation of the respondent's employees was the
same as that of the employees of Tiny Town Togs, Inc., the respondent
would no longer receive work from the latter company. For that
reason, he said, although the employees were free to join or not join
a union, it would be -wise for them to consider' the matter carefully,
and not to be hasty. In conclusion, he declared that he believed it
advisable for the employees to await the outcome of the Tiny Town
strike.
VanDeusen admitted addressing the employees, but denied suggest-
ing any course of action with regard to union affiliation, and testified
that he did not recall mentioning Troy in his statements . According,
to his testimony, a number of employees came to his office on the
morning of July 28, informed him that they had received letters from
the Union, and asked his advice. He informed these persons, Van-
Deusen testified, that he could not advise them, but because he "did
not want to be bothered with more girls coming to the office" he
decided to assemble the employees and inform thein that he could
give no advice respecting labor organizations. The Trial Examiner
did not credit VanDeusen's testimony as to the language of his
address; nor do we. Neither can we credit VanDeusen's explanation
as to his reason for addressing the employees.6 '
4 Sarah Herron , Azenath Herron , Anna Kennedy,'and Della Entrott, who testified for the
Board , and Sarah Keyser and Virginia Benson, witnesses for the respondent.
Tiny Town Togs, Inc , is the principal customer of the respondent . See Section I,
above. At this time a strike had been called by the Union at Tiny Town Togs and a picket
line had been thrown about the plant in Troy.
0 Although he testified that he knew the girls who approached him, VanDeusen insisted
that he could not remember who any of them was. Up to that time , according to his fur-
684 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
When VanDeusen had concluded, his wife, Stella, an, executive and
supervisor in the plant, also spoke. She stated that the employees
may not have heard VanDeusen's statements clearly. She therefore
repeated them.?
That afternoon, as the employees were leaving the plant, Mott
distributed handbills announcing a union meeting at 8 o'clock that
evening . About 14 of the respondent's employees attended that
meeting and signed union pledge cards.
On the following morning, July 29, Eva VanAuken, whose state-
ments we attribute to the respondent, informed Anna Kennedy, an
employee, that she (VanAukeh) and' the VanDeusens knew every
girl who had attended the meeting on the previous night, that the
VanDeusens were disappointed with those employees because "they
didn't think [the employees] would do such a thing," and that Van-
Deusen was going to discharge those who had attended the meeting.
VanAuken further told Kennedy that the VanDeusens would rid
the plant of "every girl' [even] if they had to shut the shop down to
do it." 8 On the following Friday, August 1, 1941, VanAuken de-
clared to Virginia Benson "something to the effect" that " Stella is
going to shut the shop down and I am glad she is because of what you
girls are doing." 9 VanAuken denied having uttered the foregoing
statements attributed to her by Kennedy and Benson. 1 The Trial
Examiner found her denial to be unconvincing, and concluded that she
ther testimony , he was unaware that a union was attempting to organize his employees,
and even after the girls had asked his advice he did not know what union it was . The girls
did not tell him and he did not ask them. He "was not interested." Although first asserting
that he was unaware of the identity of the Union until be was notified that charges of unfair
labor practices had been filed, he later admitted that on the evening of July 28 he and his
wife discussed the distribution of union circulars outside the plant on that day. Further-
more, although he had operated the plant since 1934, and prior to that was employed
by a dress manufacturer in Albany, New York, VanDeusen denied having ever heard of the
International Ladies' Garment Workers Union prior to these proceedings . We cannot
credit these assertions , which reflect generally upon VanDeusen 's reliability as a witness.
' This finding is based upon the undenied testimony of Azenath Herron. Stella VanDeusen
was not called as a witness
B Kennedy 's testimony as to these declarations was corroborated by that of Sarah
Herron, Bertha Hyatt , Della Entrott , and Azenath Herron, who overheard the statements.
The respondent maintained that VanAuken is an ordinary employee in the plant and
that statements made by her to other employees could have no binding effect upon him.
VanAuken is a sister of Stella VanDeusen , the wife of the respondent . During the period
involved in this proceeding , and for a period of about 4 years prior thereto , the VanDeusens
lived with VanAuken in the latter's family home . Although in general VanAuken 's duties
in the plant are not managerial , on occasions when the VanDeusens were away from the
plant she has acted in a supervisory capacity . Furthermore , although she has no authority
to hire, discharge , or discipline employees , she is looked upon as being close to the manage-
ment, and instructions given by her are executed by the employees . We therefore find that
VanAuken 's status is that of a confidential employee whose statements purported to be,
and were accepted by the employees as, expressions of the respondent 's attitude. We
attribute her declarations to the respondent. See International Association of Machinists
v. N. L. if. B., 311 U. S. 72. In view of our subsequent conclusions as to VanDeusen's con-
duct, and his family relationship to VanAuken , we also find VanAuken to have been the
respondent 's agent with respect to these statements.
MAYNARD K. VANDEUSEN 685
had made'the statements substantially as Kennedy and Benson testi-
fied. - We agree and so find.lo
On July 31, 1941, VanDeusen again stopped the machinery in the
plant during working hours and assembled the employees. He then
introduced Samuel Reubensohn, treasurer of Tiny Town Togs, Inc.,
who, at VanDeusen's request and in his presence, addressed the
assembled group. In his talk Reubensohn informed the employees
that he was not,there to talk for or against unions, but that he wished
to correct some misinformation concerning the strike being conducted
by the Union'at Tiny Town. He stated that his employees were con-
tented and did not want to join the Union. The strike, he went on
to say, was unsuccessful ; it was not true that there was a picket line
in front of his factory; there were only three or four girls picketing,
one of whom was deaf and dumb; and his plant was operating
normally. The respondent's employees could therefore expect plenty
of steady work from Tiny Town. He then added that if the re-
spondent's employees organized and the strike at Troy should fail,
Tiny Town Togs, Inc., could not send any work to the respondent.,,
In the week of July 28, 1941, during which the above events oc-
curred, there was considerable discussion among the respondent's em-
,ployees concerning the effect their union activities would have upon
the tenure of their employment. Simultaneously Mott, with the help
of some of the respondent's employees, carried on a campaign to secure
members for the Union. At noon on August 1, 1941, the day follow-
ing Reubensohn's speech, employees Keyser and Benson left their work
and went to Troy to ascertain for themselves the situation regarding
the strike and picket line at the Tiny Town Togs, Inc., plant. They
returned that evening and went to the home of Sarah Herron, where
they reported to Sarah that they had been to Troy and had "seen a
couple of girls walking up and down the street and they didn't look
very delighted and we wouldn't like to do it ourselves."
On the following morning, August 2, 1941, Keyser and Benson
returned to work. They found the VanDeusens in the office and told
them that they had been-to Troy to observe the strike. Stella Van-
Deusen asked Keyser whether she (Keyser) would picket if a strike
occurred at the respondent's plant and whether Keyser expected that
'* VanAuken also testified that on the evening of July 28, 1941, she accepted a union
handbill from Mott, did not know what it was about, did not look at it, folded it, took it
home, and threw it In the waste -paper basket . It is incredible , in view of the marked
Interest the respondent took that day in the union activities of his employees , that Van-
Auken, who must have been equally interested, and who on the following day manifested
that interest by her statements above related , should so treat literature of the Union.
"These findings are based upon the testimony of a number of witnesses for the Board
and for the respondent . Reubensoh q did not testify . In his version of Reubensohn's
speech, VanDeusen omitted Reubensohn ' s statement that Tiny Town Togs , Inc., would send
no work to Cobleskill if the respondent ' s employees organized and the Troy strike failed.
He did not , however, directly deny that Reubensohn made the declaration .. We find, as did
the Trial Examiner , that . Reubensohn addressed the respondent ' s employees at VanDeusen's
request, and in VanDeusen 's presence made the statements substantially as related above.
686 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her machine would be held for her in such-event. -Keyser replied that
she would not picket because she "did not like it"; that she "did not
care to be in the Union" and ' waste "fed up with it." Stella Van-
Deusen declared, "Why, you girls signed up, didn't you?" Keyser
answered that they had. Benson asked if she and Keyser could be
compelled to remain in the, Union. VanDeusen replied that the
Union could do nothing to hold them 12
A short time later that morning VanDeusen again shut off the power
and informed the employees' that the strike in Troy was over, that
work would be coming through as usual, and that the Union had
been unsuccessful.13
The Union held its second and last meeting on the evening of August
4, 1941. Approximately eight of the respondent's employees attended.
After the meeting, as the employees were leaving the union hall on
Main Street, VanDeusen was observed sitting in his car, which was
parked in an alleyway in such a position that he could distinguish the
persons leaving the hall. He was later seen by some of the employees
driving slowly past the union hall in a westerly direction, accompanied
by his wife, VanAuken, and one other person. Shortly afterward the
car was seen proceeding in an easterly direction along Main Street,
with the same occupants. The alleyway in which VanDeusen was
parked is between two buildings and is a one-way entrance to a parking
lot in the rear of one of those buildings. The Trial Examiner viewed
thrl premises and concluded that the alleyway was not a usual, cus-
tomary, or desirable place to park an automobile; and also concluded
that it was improbable that .VanDeusen would normally have parked
in so unlikely a spot. VanDeusen denied that he either parked in
the vicinity or drove past the union hall. Stella VanDeusen did
not testify. VanAuken did not deny her presence at the scene.. The
Trial Examiner did not credit VanDeusen's denial, and credited the
testimony of the witnesses who observed the incident. In view of
VanDeusen's previously demonstrated interest in the Union's activities,
and the findings of the Trial Examiner, who viewed the premises and
observed the witnesses, we conclude that VanDeusen kept the union
meeting of August 4, 1941, under surveillance.
On or about August 7, 1941, Mott ceased his organizational efforts
and left Cobleskill. At about the same time the respondent posted
on the bulletin board in the plant a letter from Tiny Town Togs, Inc.,
stating that the strike at Troy had been "called off" and that business
at,Tiny Town was being carried on as usual.14
In November 1941 Lena Croinex applied to the respondent for em-
ployment. VanDeusen asked Croinex whether she belonged to a union.
13 The findings in this paragraph are based upon the undisputed testimony of Benson and
'Key'er. who testified as witnesses for the respondent.
13 This finding is based upon the uncontradicted testimony of Anna Kennedy.
1i This finding is based upon the undisputed testimony of Anna Kennedy.
MAYNARD K. VANDEUSEN 687
When she replied that she did not, VanDeusen stated, "We 'do not
recognize the Union in this shop and if you did belong to a union, I
wouldn't hire you." 15 -
Conclusions as to interference, restraint, and coercion
From the foregoing facts it is patent that the respondent engaged
in a course of conduct calculated to restrain his employees from affil=
iating with the Union. It was the respondent's duty to permit his
employees to determine, without interference from him, whether they
should organize for collective bargaining.- The respondent did not
allow his 'employees this liberty. In his speech of July,28 he first
urged them to consider the matter of union organization carefully;
then "advised" them to await the outcome of the, situation at Tiny
Town Togs; Inc. ; and finally, by stating that no work would be
received from Tiny Town Togs, Inc., unless the status of the employees
of the two concerns with respect to unionization was the same, the
respondent warned his employees that union activity might jeopardize
their employment. Within the next few days the respondent more
openly conveyed to his employees, through VanAuken and Reuben-
sohn, the same threat that adherence to the Union would result in
loss of employment. The coercive effect of these warnings and threats
cannot have been dissipated by VanDeusen's and Reubensohn's pro-
fessed recognition of the employees' right to self-organization. Indeed,
within the period of 1 week following the Union's appearance, the
respondent's tactics successfully stopped the organizational movement.
VanDeusen's professed disinterest in his employees' union affiliation,
and his claimed disinclination to advise them with respect thereto, are
completely belied, not only by the aforesaid warnings and threats,
but also by his surveillance of the union meeting of August 4 and his
11 This finding is based upon the undenied testimony of Croinex, which the Trial Examiner
credited Several employees of the respondent who were hired at about the same time
testified that VanDeusen did not question them regarding union affiliation. The Trial
Examiner found, and we likewise find, that this negative testimony does not disprove that
VanDeusen did question Cranes
1U See N. L. R. B. v. Barry Biscuit Corp., 123 F. (2d) 540 (C. C. A. 7), where the Court
said :
. . . No matter how much [the employer] may desire to aid his employees by his
own suggestions, it is the purpose and intent of the law that when the employees
embark upon a course of action necessary to the selection of a bargaining agent, they
act freely and wholly without influence from the employer . . . Congress has made
it the employer's duty in such cases to observe the utmost of neutrality and impar-
tiality and to accord to the employees an unhampered, uninfluenced right to determine
their oun labor affiliation. [Citing N. L. R B. v. Falk Corp, 308 U. S. 453, and
International Association of Machinists Y. N. L. R. B., 311 U. S. 72 ] This is the
essence of collective bargaining.
See also N. L. R. B. v. Federbush Co., 121 F. (2d) 954 (C. C. A. 2) ; N. L. R. B. v. Stone,
125 F. (2d) 752 (C C. A. 7) ; N. L. R. B. v. Chicago Apparatus Co., 116 F. (2d) 753, 756
(C. C. A. 7).
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
readiness to assure Keyser and Benson that they were not bound by
their pledges to the Union. His later declaration to Croinex that he
would not hire her if she belonged to the Union was both a coercive
act and a plain indication of his true purposes. In the circumstances,
the respondent's contention that the speeches to employees made by
VanDeusen and Reubensohn were privileged as an exercise of the con-
stitutional right to freedom of speech is wholly without merit.-
We find that by the aforesaid conduct the respondent has inter-
fered with, restrained, and coerced his employees in the exercise of
the rights guaranteed in Section 7 of the Act.
B. Discrimination with regard to hire and tenure of employment
In the course of his operations, the respondent from time to time
makes samples of garments to be produced in subsequent seasons of
the year. During those periods a large number of the employees is
laid off until the plant is ready to begin production of the next sea-
son's requirements. Some employees, however, are retained by the
respondent to complete orders or to assist in making samples, and are
seldom, if ever, laid off. It is and has been the custom of the respon-
dent to notify laid-off employees when they are needed again at the
plant.
On August 27, 1941, the respondent was finishing work on early
fall garments and making samples for the Christmas season. Between
that date and August 29, 1941, he laid off 39 of his employees, that
being about one-half of the working staff. The complaint alleges,
inter alia, and the Trial Examiner found, that in the course of that
lay-off the respondent terminated the employment of Sarah Herron,
June Lorraine Herron, Azenath Herron, and Anna Kennedy because
they had joined and assisted the Union. The proof in support of this
allegation is weighed in the light of the respondent's conduct dis-
cussed in Section III-A, above.
1. Sarah Herron, June Lorraine Herron, and Azenath Herron
Sarah Herron is the mother of June Lorraine and Azenath Herron.
They live together in the Herron family home. On July 24 Sarah,
gave Mott, the union organizer, the names and addresses of some of
the respondent's employees. Each of the Herrons attended the union
meeting of July 28 and signed union pledge cards. At that meeting
June Lorraine was elected president and Azenath secretary of the
Union. During the week commencing July 28 June Lorraine and
11 ": . .,in determining whether a course of conduct amounts to restraint or coercion,
pressure exerted vocally by the employer may no more be disregarded than pressure exerted
in other ways " N. L R B. v Virginia Electric and Power Co, 314 U. S 469 . See also-
Matter of American Tube Bending Co., 44 N. L. R. B. 121 ; Matter of Sunbeam
Electric and Manufacturing Co., 41 N. L. R. B. 469.
MAYNARD K. VANDEUSEN 689
Azenath accompanied Mott to the homes of some of the respondent's
employees for the purpose of getting them to sign union pledge cards.
All three of the Herrons attended the union meeting of August 4,
1941, and after the meeting they were in a position in front of the
union hail to be observed by VanDeusen as he sat in his automobile in
proximity to the building. On or about September 6, 1941, Van-
Deusen told Anna Kennedy, according to the latter's uncontradicted
testimony, that he knew that Azenath Herron was the instigator of the
Union. We therefore find that the respondent had knowledge of the
union -activities of Sarah, June Lorraine, and Azenath Herron.,
Sarah Herron began to work for the respondent in January 1934;
Azenath was first employed by the respondent in July 1935; June
Lorraine in September 1939. Sarah Herron was laid off on August 27,
1941. According to her undenied testimony, it had been customary
for the respondent to assign her other employment during sample-
making periods if there was no work available on her own machine.
During the previous 3 years Sarah had not been laid off if there was
any kind of work to,be done. At 4 o'clock on the afternoon of August
27, 1941, she was given five bundles of work from a new cut being
put through the shop. At 4:30 she had completed the work on one of
the bundles. At; that time the power was shut off and Sarah was
named as one of a number of girls to be laid,off that evening. She
asked VanDeusen what she should do with the work remaining on her
table. He told her to leave it until she came back to work. June
Lorraine Herron was laid off' on the same day. It was usual for her
to be laid off during sample-making periods. On the afternoon of the
next day, August 28,' VanDeusen informed Azenath Herron that there
was no more work for her and that he would notify her when there
was. Azenath testified, without contradiction, that there was at that
time work available for her. During the previous 2 or 3 years, accord-
ing to Azenath's undenied testimony, she had been laid off only if
there was no work to be done in the shop, sample=making or otherwise.
On the evening`of August 30, 1941, June Lorraine and Azenath
called on VanDeusen at his home, turned in their time cards, and in-
formed him that' they did not intend to return to work. They do not
desire reinstatement.
On September '2, 1941, the day after Labor Day, Sarah Herron tele-
phoned VanDeusen and asked when she should return to work. He
replied, "Not at all." She asked the reason. He said, "No reason.
I don't know what more you girls think you can do to a man and get
away with it." She then asked whether she was discharged. He
replied that she was not discharged; there merely was no more work
for her. She then said that if she was discharged she wanted her pay.
VanDeusen promised to mail it the same day. The following evening,
the check not having been mailed, Sarah sent her husband to the plant.
493508-43-vol. 45-44
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VanDeusen gave him Sarah's check. June Lorraine and Azenath
did not receive their wages until the next regular pay day. On the
day after the telephone conversation Sarah' filed a claim for unem-
ployment.compensation, and thereafter received such compensation
for 16 weeks. In applying for these benefits she reported that she had
been "permanently laid off." 18
The respondent contended that when June Lorraine and Azenath
turned in their time cards on the evening of August 30 they informed
VanDeusen that Sarah also did not intend to return to work. Van-
Deusen and his son, Henry, so testified. According to their testimony,
June Lorraine and Azenath turned in Sarah's- time card with their
'Own. June Lorraine and Azenath denied that they made any refer-
ence to Sarah or turned in her card. Sarah testified that she had not
quit, had never stated to her daughters that she had, and had not
asked them to report that she had quit. After weighing the testi-
mony. the Trial Examiner found that of the Herrons more credible.
We find, as he did, that Sarah had not abandoned her employment,
and that June Lorraine and Azenath did not inform VanDeusen that
she had quit.19 Sarah has not been called back to work, although
operations were resumed during the week of September 2.
From the above facts it is apparent that Sarah and Azenath Herron
would not have been laid off had the respondent followed his customary
practice. No explanation was offered by VanDeusen for this de-
parture from the normal procedure. The respondent's declared
policy, as expressed by VanAuken on July 29 and August 1, was to
rid the plant of union employees. The inescapable conclusion is that
the "unusual lay-offs of Sarah and Azenath were 'penalties occasioned
by their union activities and were thus discriminatory in character
within the meaning of Section 8 (3) of the Act. The respondent's
subsequent refusal to reinstate Sarah must be attributed to the same
motive as that which induced her lay-off.
A different conclusion follows, however, with respect to June Lor-
raine Herron, who was ordinarily not employed during sample-making
periods. Although subject to some suspicion, in view of June Lor-
raine's office in the Union, the respondent's anti-union conduct, and
his discriminatory action with respect to her mother and sister, June
is These findings are based upon the testimony of Sarah Herron . VanDeusen testified
that he received a telephone call from Sarah on September 2, in which she stated , that she
wanted her wages before the regular pay day. Ile also testified that he promised to mail
the check , but did not ; and that on the next evening Sarah 's husband called for it. He did
not specifically deny the other statements attributed to him by Sarah.
IU The fact that Sarah was the only one of the Herrons who demanded and was given
her pay prior to the regular pay day is persuasive in rebutting the hypothesis that all
three had concertedly abandoned their employment , and in refuting the respondent's con-
tention that he had been informed that all were quitting Sarah 's statement upon appli-
cation for unemployment compensation that she had been "permanently laid off" further
rebuts the theory that she had, quit.
1
MAYNARD K. VANDEUSEN '691
Lorraine's lay-off' was neither unusual nor irregular. Her action in
'quitting before she could have been recalled forestalled the 'execution
of any plan not to reemploy her, if one existed.
We therefore find that the record does not support the' conclusion
that June, Lorraine Herron's employment was terminated by the
respondent because of her union membership and activities. The
complaint will be dismissed in that respect.
We find that by laying off Sarah and Azenath Herron, and' by re-
fusing to reinstate Sarah Herron, because they had joined and assisted
the Union, the respondent has discouraged membership in the Union
and has interfered with,, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Anna Kennedy
Anna Kennedy was first employed by the respondent on November
2,1938, as an inspector, and continued in that employment until August
29) 1941. During that period she was not laid off except at times when
there was no work, and then for only a few hours. She' was usually
transferred to other operations if there was no work available on her
regular job. Kennedy joined the Union at the meeting of July 28 and
attended the August 4 meeting. As we have found above, Kennedy
was informed by VanAuken on July 29 that the respondent knew
which employees had attended the Union's July 28 meeting and that
the respondent intended to rid the plant of union members. As she
left the meeting of August 4 Kennedy was in a position where she
could be observed by VanDeusen. On August 29, 1941, VanDeusen
told Kennedy that samples were coming through very slowly and that
it was necessary to lay her off for several days. According to her
undenied testimony, he further said, "In a couple of days I will send
for you." On September 6, 1941, not having been recalled she went to
the plant to get her pay envelope. VanDeusen gave her the pay
envelope and also handed her a small box of toilet articles which she
kept on her work table for personal use.
Kennedy testified that when VanDeusen tendered her the box she
"knew then that [she] was discharged" and asked VanDeusen if that ,
was the fact. VanDeusen's testimony indicates that he gave her no
responsive answer other than to state that "because of the condition
of . . . work" he could not tell her when she could return. VanDeusen
'also testified that he gave Kennedy the box only after she had asked for
it. The Trial Examiner found it unnecessary to resolve the conflict as
to whether Kennedy asked for her box, or VanDeusen tendered it to
her, for the reason that, had the respondent followed his usual custom
with respect to lay-offs, Kennedy would have been called back to work
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior' to September 6 20 We are of the same opinion, both for the
reason advanced by the Trial Examiner and also because we regard
VanDeusen's admitted failure to assure Kennedy that she was not
discharged as an admission that she had been 21 Kennedy was never
called back to work. The respondent made no effort to prove that she
was dismissed for any reason other than her union membership. We
therefore find that the respondent laid off Anna Kennedy on August
29, 1941, and has since that date refused to reinstate, her because she
joined' and assisted the Union, and has thereby discouraged member-
ship in the Union and interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
Kennedy secured other employment on November 26, 1941. She
does not desire reinstatement. r
3. The refusal to rehire or reinstate Bertha Hyatt
Except for a period of several months in 1937, Bertha Hyatt was
continuously employed by the respondent from November 1934 to
August 1, 1941. On or about July 25, 1941, Mott called on Hyatt
at her home and talked to her about the Union. She furnished Mott
with the names and addresses of some employees of the respondent to
whom Mott mailed the literature previously described. Hyatt at-
tended the union meeting of July 28 and signed a pledge card. She
also attended the meeting of August 4.. As she left the 'hall she saw
VanDeusen driving slowly by and was in a position to be observed
by him.
S0 According to VanDeusen 's testimony and the respondent 's pay-roll records, all the
approximately 39 employees laid off from August 27 to 29 had been reemployed during the
week ending September 5, except Kennedy , the Herrons , and 2 other employees who have
not returned to work.
n VanDeusen 's testimony on cross-examination with respect to this incident is as follows :
Anna came to the office and asked for her pay and I gave her her pay envelope and
her time card, and she asked me when I thought she could return to work, and I told
her that I was unable to tell her just then because of the condition of our work, and she
said, "I understand that I am fired."
I said, "Anna, have I fired you?" and she said, "No, you haven't told me I was."
I said, "Where did you hear that?" and she said' that.some of the girls were over
to her house one noon time, I believe, during that same particular week and one of
the girls remarked that she heard she was fired, and I said, "Well, Anna, have anyone
around here the power to fire you except Mrs. VanDeusen and l?" and she said, "Not
that I know of."
I said, "Have you heard either Mrs. VanDeusen or I state that you were fired"
I said, "What makes you think that you are fired'"
She says, "Because,I had an active part in the union, that I took an active part in
the union."
I said, "Anna, I did not know you had any active part in the union "
She said; "I think you did and I think I am fired and there is so much talk about
it, I do not care to return, and I would like to have my things "
I says, "What things do you refer to"' and she says, "I have a box or chest or apron
or something down at my table," and I went to her table and got those things and
gave them to her and she left the place without further conversation
MAYNARD K. VANDEUSEN 693
On August 1, 1941, Hyatt asked for and was granted a week's
vacation in order to see a doctor relative to a growth in her mouth.
On or about August 11,1941, her doctor advised Hyatt that it would
be necessary for her to undergo an operation. She informed Van-
Deusen of that fact. He 'told her, that when she was recovered she
should come back,to work. The operation was performed on August
20, 1941. Hyatt testified that on September 10 she telephoned Van-
Deusen and told him that she would be ready to come back to work
after September 15. He said, according to Hyatt, that because he
had not heard from her he had given her machine to someone else.
She then said "you have no work for me?" VanDeusen stated that
he did not. When she then asked whether she was discharged or
laid off, VanDeusen said, "No, I didn't say that, but there will be no
work for you now or ever."
VanDeusen testified that his recollection of the telephone conver-
sation was that it occurred earlier in September than the 10th; that
Hyatt informed him that she "had to have a check-up" and thought
she could return to work about September 15; that he told Hyatt
that although there was work available at that time he was not sure
how conditions would be on the 15th; that she should call him again.
She did not, however, call him thereafter. VanDeusen also testified
that Hyatt is a desirable employee. Forelady Maitland testified
that the plant needed' employees and that she had been instructed to
secure all the operators she could. The employment records of `the
respondent reveal that throughout September work in the plant was
steady and normal. VanDeusen also testified that the usual custom
was for him to call back employees when they were needed. He of-
fered no explanation for not having called Hyatt. VanDeusen?s
version of the telephone conversation is therefore not credible.22 We
find, as did the Trial Examiner, that VanDeusen did not ask Hyatt
to telephone him again on September 15, but instead informed her
that there was no work for her at the plant "now or ever." 23
Hyatt remained a member of the Union to the last. She had
assisted in its organization,, attended meetings, and was in a position
to be observed by the respondent as she left the meeting of August 4
which the respondent kept under surveillance. Since by VanDeusen's
admission Hyatt was otherwise a desirable employee, the only rea-
sonable inference that can be drawn from his failure to recall her on
to put her back to work is that VanDeusen took advantage of the
m Hyatt's interest in returning to work, as evidenced by her telephone call earlier in the
month, makes it unlikely that she would not have called VanDeusen again after the 15th,
if his version of the conversation were the correct one. There is no evidence of any further
overtures by Hyatt ; a fact which also corroborates her testimony. -
23 Even if VanDeusen's version of the telephone conversation is accepted, it is still
incredible that VanDeusen should have made no effort to recall her, since there was work
available and Hyatt was needed.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fortuitous break in Hyatt's employment to rid the plant of another
union member in furtherance of his announced design; and that she
was in fact discharged on September 10, 1941, because she had joined
and assisted the Union. We so conclude, and further find that by
such action, and by refusing to reinstate her, the respondent dis-
couraged membership in the Union and interfered with, restrained,
and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act.
4. The transfer of Della Entrott 24
Della Entrott was first employed by the respondent in July 1935.
For a period of 3 years prior to the date of her last employment,
August 13, 1941, she had operated the same Wilcox and Gibbs sewing
machine. She attended the union meeting on July 28, 1941, and
signed a pledge card. She also attended the meeting of August 4.
She was otherwise active in the affairs of the Union by soliciting
members and talking to her fellow employees about the Union during
noon hours and before work in the plant.
Entrott was transferred on August 7, 1941, to a Singer machine,
and on August 11 was transferred from the Singer to a Wilcox and
Gibbs machine almost directly across the table from her original
work place. She worked on the last machine for 3 days. She did
not return to work thereafter because, she testified, the machine was
inefficient and she thought she was being discriminated against. The
respondent contended that she was transferred because she was unable
to make the minimum wage under the Fair Labor Standards Act at
piece work on her regular machine. The Trial Examiner found that
the second Wilcox and Gibbs machine was inferior; that the transfer
was not for reasons of efficiency; that, viewed in the light of the
respondent's anti-union conduct and other discriminatory action, the
transfer was the result of Entrott's union activities and intended to
induce her to quit; and thus was, in effect, a constructive discharge.
According to Entrott's testimony, sometime prior to August 7 (the
date is not disclosed) VanDeusen called her into the office and stated
that he did not know what to do because she was unable to make
the minimum wage on her Wilcox and Gibbs sewing machine. On
August 6 Entrott was absent from work. When she returned on the
next day she found another employee, Marie McDevitt, operating
her machine. VanDeusen then talked to Entrott again concerning
her inability to make the minimum wage on the operation she was
performing, and informed her that he was going to change her ma-
chine to the other side of the work table in the place of one 'operated
by Elda Hayes. Hayes was performing an operation different from
Entrott's and was leaving the respondent's employ on August 8.
24 Entrott is incorrectly spelled Entrot in the complaint.
MAYNARD K. VANDEUSEN 69,5
VanDeusen asked Entrott to work on a Singer machine until the
change could be effected over the week end. However, according to
Entrott's testimony, "They did not have time to change it over the
week, end," and on Monday, August 11, VanDeusen "decided I would
work on Elda's machine until mine was changed around." Entrott
then worked for 3 days on Hayes' machine. On the 13th she com-
plained to VanDeusen that the machine was defective. VanDeusen
informed her that the machine had been operated by other employees
and that he did not see why she could not operate it. That evening
she told other employees that she was provoked over the transfer and
would quit rather than operate Hayes' machine. She did not return
to work thereafter 25 On the morning of the next day George En-
trott, Della's. husband, informed VanDeusen that Della would not
return to work,for 2 or 3 days. VanDeusen told George Entrott that
he c?id not care if she never came back. Della has not returned to
work since.
VanDeusen testified that he transferred Entrott because she was
unable to make the minimum wage at her operation, which .was that
of sleeve setting; that Entrott had been able to make the minimum
at the operation of sleeve (or cuff) making; that Hayes' operation
had been sleeve making; and that he transferred Entrott because he ,
thought that she could do better at the operations on Hayes' machine.
The record discloses that at the time of her transfer Entrott had for
3 months been setting sleeves on her regular machine. This was a
piece-work operation. Entrott admitted, after first denying, and her
time cards disclose, that she had not earned the minimum wage from
June 27 to the time of her transfer.' On cross-examination Entrott
also admitted that other employees doing the same kind of work were
earning above the minimum.
According ,to Entrott's further testimony on cross-examination,
the operations of the three machines, including Entrott's regular one,
on the side of the table where Entrott did sleeve setting, formed a
chain of operations, and normally none of those three machines was
used for sleeve making. VanDeusen's statement that Hayes' machine
was regularly' used for sleeve making was corroborated by, Entrott
and by Hayes' time cards, which were admitted in evidence. All the
witnesses agreed that-Entrott had performed sleeve or cuff making
prior to June and that on that operation she was able to make the
minimum and more.
25 These findings are based upon Della Entrott's undisputed testimony Entrott also
testified that when she complained to VanDeusen 'on the 13th he informed her that he
could not afford to have a mechanic brought to the plant^to fix the machine That testi-
mony was denied by VanDeusen. We find it unnecessary to resolve the-conflict.
20 The Trial Examiner excluded from evidence seven of Entrott's weekly time cards show-
ing this fact (Respondent's rejected Exhibit 8). While, in view of Eirtrott's admission,
we do not regard the exclusion as prejudicial error, we reverse the Trial Examiner with
respect to that ruling and order Respondent's rejected Exhibit 8 admitted in evidence.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is an apparent conflict between the testimony of VanDeusen
and Entrott as to what work Entrott performed during the 3 days
she worked on Hayes' machine. VanDeusen testified that it was sleeve
making. Entrott testified that "if I remember correctly it was gath-
ering very sleazy skirts." We do not, however, regard a resolution
of the conflict as conclusive. Hayes' time cards disclose that she
occasionally performed other work than sleeve making; and Entrott
testified that at that time samples for the next season were coming in,
and that at such periods it was customary to shift employees' opera-
tions in order to "catch up on the loose ends."
Entrott also testified that on prior occasions she had been shifted
from one operation to another in order to enable her to make the
minimum wage. Whether those changes involved a shift from one
machine to another is not disclosed.
The Trial Examiner found Hayes' machine to be inferior in that
it skipped stitches, did not gather evenly, and was physically harder to
operate. That finding was based upon testimony of witnesses for the
Board, - which was denied by VanDeusen and Forelady Maitland.
According to Entrott's testimony, however, the machine had been in-
stalled about a year and a half prior to Entrott's transfer and had been
in constant operation during that period, except for minor repairs and
adjustments. The machine was a Wilcox and Gibbs, of the same type
as Entrott's regular one, ran off the same shaft, and, according to its
serial number and VanDeusen's undenied testimony, was a newer
machine. There is no evidence that Hayes ever complained of its
operation. -
Although the Trial Examiner may have been correct in finding
Hayes' machine to have been inferior to Entrott's, we are not convinced
that Entrott's transfer was effected because of her union activities.
In view of her inability to make the minimum wage at sleeve setting,
VanDeusen's previous expression of concern over that difficulty, the
ability of other operators to achieve the minimum at that operation,
Hayes' expected departure from the respondent's employ, the type of
operation normally performed on Hayes' machine, and Entrott's ability
to make the minimum at that operation, VanDeusen's statement that
considerations of efficiency motivated the transfer seems wholly prob-
able. Had Entrott's machine been shifted to Hayes' place, as Entrott
testified VanDeusen had promised, there would be no apparent ground
whatever for finding her transfer to be discriminatory. The failure to
exchange machines is explained, however, by Entrott's testimony that
there had not been time to make the change over the week end (when
such shifts were apparently ordinarily made), and that VanDeusen had
asked her to use Hayes' machine until the change could be effected.
Entrott's precipitate action in quitting before the respondent 's promise
MAYNARD K. VANDEUSEN 697
could have been tested over the next week end deprives her, case of
circumstantial corroboration necessary for its support. We are there-
fore unable to agree with the Trial Examiner that the record supports
the • conclusion that Della Entrott was discriminatorily transferred. '
The complaint will therefore, in that respect, be dismissed.
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 respondent
described in Section I, 'above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices within the meaning of the Act, we must order the respondent,
pursuant to the mandate of Section 10 (c), to cease and desist there-
from. We shall also order the respondent to take certain affirmative
action designed to effectuate the policies of the Act.
The respondent stated at the hearing, and reiterated at various times
throughout the proceedings, that he has at all times been willing to re-
employ all the employees here involved. Since the respondent has dis-
criminated in regard to the hire and tenure of employment of certain
of his employees, it was the duty of the respondent to offer each of the
employees reinstatement to her former or substantially equivalent em-
ployment without prejudice to her former rights and privileges. Con-
trary to the respondent's contention in his exceptions; we find that
the above statement does not constitute such an offer.
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Sarah Herron, Azenath Herron,
Anna Kennedy, and Bertha Hyatt. Azenath Herron and Anna Ken-
nedy do not desire reinstatement.
In his answer the respondent contended that he is "informed and be-
lieves and, therefore, says that the employees [named in the complaint]
some or all of them, are now regularly employed in substantially equiv-
alent employment and are, therefore, not entitled to affirmative relief
and are excluded from the provisions of the act by-the terms of Section
2" of the Act. At the hearing, counsel' for the Board conceded that
each of the 'said employees had secured substantially equivalent em-
ployment. Azenath Herron and Anna Kennedy have indicated that
they do not desire reinstatement. Sarah Herron and Bertha Hyatt,
however,, have not indicated disinterest in reemployment by the re-
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent. For the reasons stated in the Ford case 2T we find that,
whether or not they have obtained substantially equivalent employ-
ment, effectuation of the policies of the Act requires that the respondent
be ordered to offer Sarah Herron and Bertha Hyatt reinstatement to
their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges.
We shall also order the respondent to make whole Sarah Herron and
Bertha Hyatt for any loss of pay they may have suffered by reason
of the discrimination against them, by payment to each of them of a
sum of money equal to the amount she normally would have earned
from the date of the discrimination to the date of the respondent's
offer of reinstatement, less her net earnings 28 during that period.
We shall also order the respondent to make whole Anna Kennedy
for any loss of pay she may have suffered by reason of the discrimina-
tion against her, by payment to her of a sum 'of money equal to the
amount she normally would have earned as wages from the 'date of
the discrimination to November 26, 1941, the date she secured other
employment, less her net earnings during that period.
We shall also order the respondent to make whole Azenath Her-
ron for any loss of pay she may have suffered by reason of the dis-
crimination against her, by payment to her of a sum of money equal to
the amount she normally would have earned as wages from the date
of the discrimination to August 30, 1941, the date she notified the
respondent that she had quit, less her net earnings during that period.
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 is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Sarah Herron, Azenath Herron, Anna Kennedy, and Bertha
Hyatt, thereby discouraging membership in International Ladies'
Garment Workers Union, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
2* Matter of Ford Motor Company and International Union, United Automobile Workers
of America, Local Union No 249, 31 N. L. R. B. 994; see Matter of Quality and Service
Laundry, Inc. and Teamsters Joint Council #55 (A. F. of L ), 39 N. L. R. B. 970.
23 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 his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, 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
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
MAYNARD K. VANDEUSEN 699
3.. By interfering with, restraining, and coercing his 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.
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 discriminated in regard to the hire and
tenure of employment of June Lorraine Herron and Della Entrott,
within the meaning of Section 8 (3) 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 Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Maynard K. VanDeusen, doing business as VanDeusen
Dress Manufacturing Company, Cobles1 ill, New York, his officers,
agents, successors, and assigns, shall: -
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers Union or any other labor organization of his employees by
discharging or refusing to reinstate any of his employees, or by dis-
criminating in any other manner in regard to their hire and tenure
of employment or any term or condition of their employment;
(b) In any manner interfering with, restraining, or coercing his
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 Sarah Herron and Bertha Hyatt immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole Sarah Herron and Bertha Hyatt for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion against them, by payment to each of them of a sum of money
equal to that which she normally would have earned as wages from
the date of the discrimination against her to the date of the offer of
reinstatement, less her net earnings during such period;
(c) Make whole Anna Kennedy for any loss of pay she may have
suffered by reason of the respondent's discrimination against her, by
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment to her of a sum of money equal to that which she normally
would have earned as wages from the date of the discrimination
against-her to November 26, 1941, less her net-earnings during that
period ;
(d) Make whole Azenath Herron for any loss of pay she may have.
suffered.by reason of. the respondent's discrimination against her, by
payment to her of a sum of money equal to that which she normally
would have earned as wages from the date of the discrimination
against her to August 30, 1941, less her net earnings during that
period;
(e) Post -immediately in conspicuous places throughout his plant
at Cobleskill, New York, and maintain for a period of at least sixty
(60) consecutive days from the date of the posting, notices stating (1)
that he will not engage in the conduct from which he is ordered to
cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that
he will take the affirmative action set forth in paragraphs 2 (a), (b),
(c), and (d) of this Order; and (3) that his employees are free to
become or remain members of International Ladies' Garment Workers
Union, and that the respondent will not discriminate against any
employee because of membership in or activity on behalf of that
organization ;
(f) Notify the Regional Director for the Third Region in writing
within ten (10) days from the receipt of this Order what steps the
respondent has taken to comply herewith ; and
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent discriminated in re-
gard to the hire and tenure of employment of June Lorraine Herron
and Della Entr6tt.
MR. WM. M. LEisERsoN took no part in the consideration of the
above Decision and Order.