J. Greenebaum Tanning Co.

In the Matter of J. GREENEBAUM TANNING COMPANY and NATIONAL LEATHER WORKERS ASSOCIATION, LOCAL No. 43, AFFILIATED WITH THE C. I. O. Case No. C-684.-Decided February 15, 1939 Leather Tanning and Manufacturing Industry-Interference, Restraint, and Coercion-Company-Dominated Union: domination of and interference with formation and administration ; financial and other support ; after Supreme Court upheld constitutionality of Act, suggestion that sick benefit association be dissolved and new organization be formed ; activities on company time and property ; soliciting membership in, by supervisory employees ; urging, per- suading, and warning employees to join ; disestablished , as agency for collec- tive bargaining-Contract : closed-shop, with company-dominated union, illegal; employer ordered to cease giving effect to , or any renewal thereof-Check-Off: embodied in contract with company-dominated union ; employer ordered to reimburse employees , individually and in full, for amounts deducted from earnings as dues for company-dominated union-Discrimtination : discharges of three employees who had not joined company -dominated union, by non- supervisory employees in presence of supervisory employees ; procurement of final pay checks by nonsupervisory employees in violation of employer 's strict rule; held to constitute discharges by employer-Reinstatement Ordered: dis- charged employees-Back Pay: awarded discharged employees ; monies re- ceived by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Herbert N. Shenkin, for the Board. McInerney, Epstein d Arvey, by Mr. John L. McInerney, of Chicago, Ill., for the respondent. Mr. Frank Moland, of Chicago, Ill., for the Association. Mr. Leon M. Despres, of Chicago, Ill., for the Union. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by National Leather Workers Association, Local No. 43, herein called the Union, the National Labor Relations Board, herein called the Board, by Leonard 11 N. L. R. B., No. 29. 300 J. GREENEBAUM TANNING COMPANY ET AL. 301 C. Bajork, Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated February 8, 1938, against J. Greenebaum Tanning Company, Chicago, Illinois, 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), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent, upon the Union, and upon Rockwell-Warsaw Leather Workers Association, herein called the Association. On February 12, 1938, the Union filed second amended charges with the Regional Director. On the same date an amend- ment to the complaint was issued, copies of which were duly served upon the parties.' In respect to the unfair labor practices, the complaint, as amended, alleged in substance (1) that the respondent on or about May 13, 1937, through its officers and agents, dominated and interfered with the formation of the Association, and thereafter dominated and inter- fered with its administration and contributed financial and other support to it; (2) that on or about May 26, 1937, the respondent en- tered into a closed-shop contract with the Association; (3) that the respondent on or about May 27, 1937, discharged Cyril Wojdyla, Andrew Zych, and John Froelich, and thereafter refused to reemploy them because they refused to join the Association; and (4) that the respondent by these and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 15, 1938, the respondent filed its answer in which it admitted the allegations of the complaint relating to the nature of its business and denied that it had engaged in the unfair labor practices alleged in the complaint.2 Pursuant to notice, a. hearing was held at Chicago, Illinois, on February 18, 19, 21, 22, and 24, 1938, before Henry J. Kent, the Trial Examiner duly designated by the Board. At the opening of the hear- ing the Association made a motion for leave to intervene in the pro- ceeding. This motion was granted by the Trial Examiner. The Board, the respondent, the Association, and the Union were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce 1 Counsel for the Board stated at the hearing that copies of the amendment had been served upon the parties on February 14, 1938 The respondent acknowledged service and counsel for the Association and the Union 's representative made no objection con- cerning the amendment or service thereof. 2 At the hearing, on motion of counsel for the respondent, the respondent's answer was amended to cover the allegations of the complaint as amended. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case and at the conclusion of the hearing, counsel for the Board moved to amend the complaint to conform to the proof. The motion was granted. At the conclusion of the Board's case counsel for the respondent moved that the complaint be dis- missed on the ground that there was no evidence to sustain the allega- tions of the complaint, as amended. Ruling upon this motion was reserved. At the close of the hearing the respondent renewed its motion and a like motion was made by the Association. These motions were denied by the Trial Examiner in his Intermediate Report. We have reviewed these and other rulings made by the Trial Exam- iner on motions and on objections to the admission of evidence, and find that no prejudicial errors were committed. The rulings are hereby affirmed. On May 27, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in and was en- gaging in the unfair labor practices alleged in the complaint, and recommended that the respondent cease and desist from engaging therein, that it reinstate with back pay Cyril Wojdyla, Andrew Zych, and John Froelich, and that it withdraw recognition from the Asso- ciation as the collective bargaining representative of its employees. 't'hereafter the respondent and the Association filed exceptions to the record and to the Intermediate Report. Pursuant to notice duly served on all the parties, a hearing was held before the Board on October 5, 1938, at Washington, D. C., for the purpose of oral argu- ment. The respondent appeared by counsel and participated in the oral argument. On November 4, 1938, the respondent filed a brief in support of its exceptions, and on November 7, 1938, the Union filed a brief in support of the Intermediate Report. The Board has consid- ered the two briefs. The Board has also considered the exceptions of the respondent and of the Association to the Intermediate Report and, save as consistent with the findings, conclusions, and order herein- after set forth, finds them to be without merit. On December 16, 1938, the Union filed a motion with the Board requesting that the Board in its order direct the respondent to re- imburse its employees for "all of the dues wrongfully collected by a wrongful check-off system and paid over to the company union herein." Pursuant to permission granted by the Board, the respond- ent on January 21, 1939, filed "Suggestions in Opposition to the Mo- tion." To the extent that the motion of the Union is consistent with the order below, it is hereby granted.8 3 See The remedy," below. J. GREENEBAUM TANNING COMPANY ET AL. 303 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation engaged in the tanning of hides and fabrication of finished leather. Its principal office and place of business is located at Chicago, Illinois, and it owns and op- erates plants in Chicago, Illinois, and in Milwaukee, Wisconsin. The respondent also owns all the stock in J. Greenebaum Tanning Com- pany of Massachusetts, a Massachusetts corporation which acts as a sales agent for the respondent. This proceeding relates only to the respondent's two plants located in Chicago, Illinois, designated plant number four, or the Rockwell plant, and plant number one, or the Warsaw plant. The plants are situated on opposite sides of the same street and are operated as a single unit. Animal hides constitute the principal raw material purchased by the respondent. During the year 1937, 71 per cent of the hides processed at the Rockwell and Warsaw plants were shipped to these plants from foreign countries and States other than Illinois. The other principal raw materials used by the respondent during the same pe- riod were dyes, chrome, fat, liquors, salt, and lime, 90.5 per cent of which were shipped to the Chicago plants from States other than Illinois. During the year 1937, the respondent manufactured at its Chicago plants finished leather valued at $3,827,808, of which 75 per cent was sold and shipped to purchasers outside Illinois. In addition to employing the services of J. Greenebaum Tanning Company of Massachusetts as a sales agent, the respondent main- tains sales offices in Chicago, Illinois, employs six salesmen who so- licit orders throughout the United States, and has representatives on a commission basis in New York City and in San Francisco, Cali- fornia. II. THE ORGANIZATIONS INVOLVED National Leather Workers Association, Local No. 43, is a labor organization affiliated with the Committee for Industrial Organiza- tion, herein called the C. I. O. The Union was formerly known as United Tannery Workers Union and also as Tannery Workers Or- ganizing Committee. It admits to membership all the production employees of the respondent. Rockwell-Warsaw Leather Workers Association is an unaffiliated labor organization. It admits to its membership all employees of 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the'respondentexcept "employees receiving compensation for services on a weekly or monthly basis." III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices In April 1937, the Union commenced organizational activities among the respondent's employees and other tannery workers in Chicago, Illinois. On May 15, the Union became affiliated with the C. I. O. For several weeks prior to the organization of the Associa- tion, discussed below, the Union distributed its literature and applica- tion cards outside the respondent's plants and signed up as members many of the respondent's employees. At the'time-"the Union first, enlisted -members among the respond- ent's employees and for several years prior thereto, there existed at the Chicago plants of the respondent an organization known as J. Greenebaum Employees Benefit Association, herein called the Benefit Association. Formed shortly after the passage of the Na- tional Industrial Recovery Act and possessing no written constitu- tion or bylaws, this organization purported to function as bargain- ing representative for its members, paid them sick benefits, and sponsored social affairs. It derived its income from a weekly pay- roll deduction of 5 cents per member and from a weekly contribu- tion by the respondent of 5 cents per member. The membership of this organization included foremen and comprised at least 80 per cent of the employees. There is testimony in the record that membership was compulsory for all employees. The governing body of the Bene- fit Association consisted of employee representatives from each de- partment of the plants. The representatives held meetings at regular intervals to discuss employment problems. The meetings were con- ducted in the respondent's plants, frequently during working hours. The representatives did not confer with the respondent's officials, for all contact with the latter was maintained through Roy Breen, shop chairman of the Benefit Association, and Jack Nunsek,4 president of the Benefit Association. In the role of shop chairman Breen often left his job during working hours, went through the plants on Benefit Association business, and talked freely to the men at work. Although Breen is an hourly paid employee in the respondent's splitting de- partment, he suffered no loss of wages for the time thus spent. It will be noted that,under normal circumstances his duties as a splitter would not have permitted him the time to roam at will through the plants. Furthermore, Breen expressly testified that the other em- ployees were not permitted to leave the floors of the plant on which they worked. ' Also designated Jack Nonsek in the record. J. GREENEBAti \I TANNING COMPANY ET AL . 305 It is not denied by the respondent or by the Association that the Benefit Association was dominated and supported by the respondent in violation of Section 8 (2) of the Act. Although the above- described conduct of the respondent does not fall within the purview of the complaint, it furnishes a background for the better evaluation of the events hereinafter discussed. B. The formation and administration of the Association Shortly after the Supreme Court of the United States issued the decisions of April 12, 1937, sustaining the constitutionality of the National Labor Relations Act, the respondent notified the Benefit Association that it could no longer contribute support to it and recommended its dissolution. Breen testified that Curt Friend 8 summoned him and Jack Nunsek to his office and told them that the employees "would have to form a new one [organization] and quit the old one [the Benefit Association]." Friend, the assistant to Sidney Greenebaum, secretary of the respondent and general man- ager of the Chicago plants, did not testify at the hearing. We find that Friend made the foregoing statement. On May 11, 12, and 13, 1937, Breen and several other employees distributed leaflets among the employees inviting them to attend a mass meeting on the night of May 13 "Concerning the Wagner Law," and promising them free beer and sandwiches afterward. These leaflets were openly passed out among the employees during working hours, and were inserted in the workers' time-card racks on the time clock. Breen testified that he borrowed the money from Martin Samp, the respondent's timekeeper, and had the leaflets printed at his own expense. Samp did not appear as a witness at the hearing. The mass meeting .of May 13 was held in a hall rented for the occasion. Breen testified that he personally bore the expenses of the meeting,6 which was attended by approximately 250 employees. Delegates from the Union entered the hall in order to present arguments for the formation of a union affiliated with the C. I. O. Although they caused no disturbance, they were ushered out of the meeting shortly thereafter by policemen stationed at the doors of the hall. Several of the delegates were arrested, taken away in a police patrol wagon, and detained for a short while. Other union delegates remained outside the hall and signed up -several' of the respondent's employees as members of the Union. The meeting was opened with addresses by Frank Moland, attorney for the Benefit Association, and by Stanley Werdell, an attorney who c Also designated Kurt Friend in the record. Breen's testimony can only be interpreted to mean that be paid for the use of the hall and for the refreshments served. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spoke in Polish for the benefit of the respondent's numerous Polish employees. The speakers outlined the provisions of the Act and advised that the Benefit Association was illegal. After having in- formed the men that they could join any union they chose, Werdell stated : "Let us assume that you desire to form your own organiza- tion. Then what do you do, and how do you go about it." He then explained in detail the procedure whereby they might organize an unaffiliated union. At the conclusion of the addresses the men authorized Chester Grabowski, treasurer of the Benefit Association, to retain the funds of the Benefit Association pending final disposi- tion of them. No action was taken to dissolve the Benefit Associa- tion and there was apparently no discussion among the employees concerning the formation of a new union. Breen testified that after the meeting he and Leo Rounds, a colored employee, decided that the employees wanted a new association of their own and that he and Rounds proceeded to organize such an association without consulting their fellow employees. Accordingly, Breen, Rounds, and Samp, the timekeeper, ranged throughout the plants during working hours, soliciting signatures on a blank sheet of paper, allegedly to ascertain how many workers were in favor of a new organization. Breen estimated that 150 signatures were secured on the first day. Soon after the meeting of May 13, Samp, during working hours, approached Cyril Wojdyla, one of the em- ployees alleged in the. complaint to'have been wrongfully discharged, and asked him to sign a blank sheet of paper, promising him that he would thereby secure a .5-per cent wage increase. Shortly thereafter, within a day or two of the mass meeting, printed application blanks for membership in the Association were circulated among the employees. Although the Association was not then organized, the application blanks contained the Association's full, name and specific references to its constitution and bylaws.? " The blanks read as follows : Chicago, Ill ------------ APPLICATION I hereby make application to membership In the Rockwell -Warsaw Leather Workers Ass'n. of Chicago, Illinois. If I am accepted as a member of The Rockwell-Warsaw Leather Workers' Ass'n., I pledge myself to observe and faithfully live up to the constitution and by-laws of the association , and the treasurer of the association is authorized to draw through the J. Greenebaum Tanning Company, 25 cents per week, to be charged against my wages, said amount being my weekly dues to the Association In recognition of the plan of the organization , I agree to submit any differences which may arise between myself and the Company, to the Shop Committee, and abide by the decision of the Board of Directors of the Association I agree to work for the betterment of the conditions of my fellow workers, and stand ready to aid in any movement that may be accepted by this association as a benefit for all. I pledge myself not to withdraw - from this association without giving a notice of at least three full days. Failing to do so, I agree to forfeit, my rights as a.. J. GREENEBAUM TANNING COMPANY ET AL. 307 Breen testified that he paid for the printing of the blanks from his personal funds. Although he testified that he did not order the blanks until May 18, other evidence establishes that the order was placed on May 13, the day of the mass meeting.8 The membership campaign of the Association was vigorously conducted by Breen, Samp, and Raymond Demski, another employee, in the plants during working hours, and signatures to the application blanks were solicited in the presence of the respondent's foremen. Several foremen were admittedly aware of these activities but made no effort to check them. Although Breen's organizational activities consumed a considerable amount of working time, he suffered no loss in pay. The record does not indicate that either Demski or Samp was docked for assisting in the campaign during working hours. Breen testified that he did not think it unusual for his activities to go unchecked, despite the fact that he was paid by the hour and the fact that when he was absent from his bench it was necessary for other employees to leave their places to keep his work from falling behind. "I was shop chairman ... I went around on the floor where I had any men to see ... I suppose the foremen didn't know that the old association had been dissolved ... I was still connected with the old association." He admitted, however, that he had told Arthur Hirsch, plant superintendent, of the organization of the Association, during his daily conversations with Hirsch. - John Froelich, another employee alleged in the complaint to have been wrongfully discharged by the respondent, testified without con- ,tradiction that on May 13, while he was at work, Samp approached him, accompanied'by Breen, asked him to sign an application blank, and said, "You know, Sidney wants us to get all of the boys in, then member of this Association , unless it shall be otherwise ordered by the Board of Directors. ----------------------------- - I of Applicant. The Association's By-Laws provide for the payment of a sick and disability benefit as follows : $10 00 per week , payable after the seventh day of such sick- ness or disability for not more than 13 weeks in each calendar year. The Associations By-Laws also provide for the payment of a death benefit of $50 00 to the family of the deceased. Plant ________________ Clock No. ____________ 8 Breen testified that after the meeting of May 13, he and Rounds had frequent tele- phone conversations and several conferences with Moland , both at the latter's office and at the plant, concerning proposed names for the new association ; that Moland did not aipplove of the names which he and Rounds suggested , but that on or about May 17, Moland advised the adoption of the name "Rockwell-Warsaw Leather Workers Associa- tion." Breen further testified that on or about May 18 lie placed the order for the printing of 1,000 of the application blanks . The records of the painting company were examined at the hearing, however, and showed that the order for the printing of 2,500 application blanks was received on May 13 and was filled on May 14. The foreman of the printing company testified that Breen and Raymond Demski, another employee of the respondent , personally placed the order on May 13 and that Breen called for some of the blanks on the following day. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sidney will give us a raise. If we have all of the boys in it will be so much easier to get one." The "Sidney" referred to is Sidney Greenebaum, the secretary of the respondent and the general man- ager of the Chicago plants. He did not testify at the hearing. Ac- cording to Froelich, Superintendent Hirsch told him that most of the workers had signed up with the Association, alluded to the C. I. 0., and stated, "You are not signed up yet ... You know, Sidney says that we all better sign up or we will be without work. If we don't sign up some of the others will be crawling in here .. . You know it would be nice if we all was signed up in the organiza- tion ... Sidney don't want outsiders to get in the plant because they are forming a union of their own." In view of the reference made to the C. I. 0. and inasmuch as the Union was the only other labor organization then seeking to organize the respondent's em- ployees, "some of the others" and "outsiders" unmistakably referred to the Union. At the hearing Hirsch denied having solicited any memberships for the Association and at first asserted that he had not been advised of its organization prior to May 27, the date of the execution of the agreement between the respondent and the Association. The latter assertion is effectively controverted by Breen's testimony, noted above, that prior to that time he had told Hirsch of the new organization. Furthermore, Hirsch testified that he knew the Benefit Association had been dissolved and later he admitted that about a week or two prior to May 27 he knew of the organization of a new union among the employees. He admitted further that he frequently saw Breen and Demski, who was employed at plant number, four, distributing application blanks and leaflets in plant number one during working hours. He testified that he made no attempt to check the activities, both because he had no such instructions from the respondent and because such activities had been carried on for a number of years prior to that time. In view of the clearly contradictory nature of Hirsch's testimony, we give no credence to his denial of Froelich's testimony and find that Hirsch made the statements attributed to him. Andrew Zych, the third employee alleged in the complaint to have been wrongfully discharged, testified that Samp made the following statements to him in Polish : "Sign up the application in the company union and you will be working. You can work for this company . . . We give you a raise 5 per cent if you belong to the company union." When Zych repeatedly refused to sign, Samp told him, "You don't sign on the application, so you no got no job no more." As noted above, Samp was not called to testify at the hearing. Joseph Krazan- kowski, another employee, testified without contradiction that he J. GREENEBAUM TANNING COMPANY ET AL. 309 signed an application only after his assistant foreman had advised him to do so under threat of loss of employment. On May 21, during working hours, Breen distributed among the employees and inserted in the racks on the time clock printed leaflets announcing a meeting of "Rockwell-Warsaw Leather Workers Asso- ciation" for the purpose of electing officers. The order for the printing of the leaflets was placed by Breen and Demski on May 19, and Breen made payment therefor on May 19 and 20.9 The meeting so announced was held on the night of May 21 in the same hall which had been rented for the mass meeting of May 13, and according to his testimony, Breen bore the attendant expenses, apparently including the rental for the hall. Approximately 300 of the respondent's employees attended the meet- ing and adopted a resolution to organize the Association to be known by the name already in use. Officers were thereupon nominated and provision was made for the conduct of elections in the plants. Accord- ing to the minutes of the meeting, "A draft of the constitution and By-laws which had been previously prepared was then submitted .. . and adopted . . ." The draft was prepared by Moland, attorney for the Benefit Association. The record does not indicate what authority Moland had to perform this function, prior to the employees' initial resolution to organize a new association. In marked contrast to his distinct recollection of other incidents which occurred in the same period, Breen was able to recall nothing concerning the preparation of the constitution and bylaws except that Moland drafted them. He recalled the date of their adoption only when Moland, counsel for the Association at the hearing, told him the date. On May 24, the election of officers was held in the shipping rooms of the two plants, although permission was neither requested nor expressly granted for the use of these rooms. The election, in which approximately 350 employees participated, was begun during the half- hour lunch period and continued into working time. The names of the winners of the election were posted that afternoon on the time clock, and on the following day full election results were similarly posted. Breen and Grabowski, respectively, shop chairman and treasurer of the Benefit Association, were elected to the same offices in the Association. Demski was elected president and Aloysius Mader, secretary. Breen testified that payment for the printing of the leaflets was deferred and made out of the first dues collected by the Association . The records of the printing company and the testimony of its foreman establish , however, that payment for the printing of the leaflets and of membership cards, amounting to $10, was made on May 19 and 20. The Association had not been organized at that time and no dues had been collected from which the sum of $10 could have been paid. 164275-39-vol xi--21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 26, the Association presented to the respondent a proposed agreement to be effective from May 26, 1937, to July 20, 1938, which contained provisions for (1) recognition of the Association as collec- tive bargaining agency, (2) a closed shop,10 (3) the check-off of Asso ciation dues, (4) a 5-per cent wage increase, and (5) machinery for the adjustment of grievances." On the following day the agreement was executed without alteration by the respondent. ' ' The proposed agreement was prepared by Moland, although the circumstances surrounding its drafting are not clear. The only two witnesses who testified regarding it were Breen and Demski, whose versions of what took place are not consistent. We find that neither the members nor all the officers of the Association formulated the demands embodied in the agreement, authorized its,drafting, or as- sisted in its preparation. There is some testimony .that on May 25 during working hours Breen by telephone directed Moland to draft a closed-shop agreement and that on May 26 Moland came to the plant and submitted the completed instrument to the Association officers. The officers approved it without amendment, immediately presented it to the respondent, and, in the presence of the respondent's officers, affixed their names to it after some discussion. Breen, the alleged sponsor of the Association, was able to recall little of the substance of the agreement, although it constituted the Association's sole im- portant achievement at that date. On May 27, Cyril Wojdyla, Andrew Zych, and John Froelich were discharged, allegedly pursuant to the terms of the closed-shop provision of the agreement. In fact, how- ever, the discharges were made prior to the respondent's execution of the agreement and in violation of the agreement .1-2 On June 25, the funds of the Benefit Association, which amounted to $1,233.66, were turned over to the Association. There is no evi- dence that the members of the Association authorized such disposi- tion of the funds. In November 1937, the respondent's business became slack. On November 29, the Association acquiesced in a drastic reduction of working hours. On January 17, 1938, the respondent instituted a 20-per cent wage reduction in conjunction with an increase in work- ing hours. Without protest the Association accepted these innova- tions which effectively canceled the 5-per cent wage increase em- bodied in the agreement. 10 A grace period of 3 days was provided in which an employee might decide whether or not he desired to join the Association . The power to hire and, discharge was expressly reserved to the respondent. 11It was provided that members of the grievance committee might take time off, apparently without loss of pay , for attending regular and special meetings of the grievance committee and for the transaction of committee business 1= See footnote 10, supra. The discharges are discussed in subsection D, below. X. GREENEBAUM TANNING COMPANY ET AL. 311 C. Conclusions with respect to the formation and administration of the Association Upon the foregoing facts and upon the entire record, it is appar- ent that coincident with its decision to discontinue its contributions to the Benefit Association and to bring about its dissolution, the respondent embarked upon a course of conduct to encourage and support the formation and administration of the Association. Although the respondent admits that it informed the Benefit Asso- ciation that it would no longer contribute to its support, the re- spondent contends that it did not recommend the dissolution of the Benefit Association. We have noted, however, the testimony of Breen, shop chairman of both organizations, that he was notified by the management that the men would have to discontinue the old association and form a new one. This testimony is not refuted in the record. Although the respondent carefully planned to clothe the Asso- ciation with an appearance of independence, the record clearly reveals that the respondent gave the Association its initial impetus and played a vital part in guiding the course of its organization through its control of the Benefit Association. As described above, Breen was closely allied with the respondent in the administration of the Benefit Association. Breen admitted that he continued to exercise the prerogatives of his shop chairmanship in the Benefit Association, testified that he was not surprised that he incurred no reprimands, and stated, "... I suppose that foremen didn't know that the old association had been dissolved . . . I was still connected with the old association." 18 Hirsch, moreover, made no attempt to check the organizational activities because like activities had been going on for years. Committee meetings, elections, and solicitation of membership in the Association took place so openly and notoriously on company time and premises that such activities could only have been carried on with the consent, if not at the request, of the respondent. According to Breen's testimony, over 90 per cent of the employees signed up the first day that the application blanks were circulated. The foremen could not have been so uniformly lenient as to allow this mass solici- tation without having been given orders to do so. Furthermore, Timekeeper Samp participated in the membership campaign, and both he and Hirsch, plant superintendent, informed employees of Sidney Greenebaum's desire to see the Association firmly entrenched among the employees in order to prevent any encroachment by the Union. 28 Italics supplied. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is significant that the Benefit Association's attorney, Moland, became the Association's attorney. He played a vital part in the formation of the Association and appeared at the hearing as its counsel. There is no evidence that any break occurred in his service due to the Association's succeeding the Benefit Association, nor is there any record of his having been formally retained by the Asso- ciation. It was apparently taken for granted that the Association would employ the services of its predecessor's attorney. The source of payment of the Association's initial organizational expenses remains unsatisfactorily unexplained in the record. Little weight can be given to Breen's testimony that, without consulting the majority of his fellow employees, he proceeded to expend sub- stantial sums of money from his personal funds for the printing of leaflets, application blanks, and membership cards and for the rental of halls for the conduct of mass meetings.14 We find it in- credible that Breen, who earned only 79 cents per hour, could afford alone to carry the burden of the numerous expenditures. ,Further- more, as noted above, Breen's testimony with respect to some of the expenses of organization was palpably false. Breen did not testify that the Association repaid any of the money which he spent in effec- tuating its organization. Mader, secretary of the Association, testi- fied that the June financial report of the Association included therein some of the expenses incurred in May during the formation of the Association. The face of said report fails to substantiate Mader's testimony. Upon request of counsel for the Board, Mader promised to produce at the hearing vouchers for May expenditures, which vouchers he testified were in the possession of Grabowski, treasurer of both the Benefit Association and the Association. The vouchers were not produced, however, nor was Grabowski called, as a witness at the hearing. We have noted that the application blanks of the Association bore its full name and specific references to its constitution and bylaws, although the blanks were printed and circulated before the organiza- tion was perfected. When viewed in the light of this fact, the evi- dence regarding the payment of the Association's initial expenses raises a strong inference that such expenses were borne either by the respondent or by the Benefit Association. The inference is strength- ened by the fact that the funds contributed by the respondent to support the Benefit Association were transferred to and used by the Association. The execution of the contract with the Association crystallized the respondent's control over its employees and effectively stifled the 14 The rental for the hall where the meetings were held amounted to $13 for a single meeting. J. GREENEBAUM TANNING COMPANY ET AL. 313 organizational progress of the Union. The respondent's alacrity in signing the agreement as submitted evinced the respondent's eager- ness to establish the Association as representative of its employees on a firm contractual basis. Had the respondent been dealing with a genuine labor organization, it is hardly conceivable that an initial agreement embracing recognition, a closed shop, the check-off privi- lege, a 5-per cent wage increase, seniority provisions, and a procedure for the adjustment of grievances, could have been drafted, negotiated, and signed within the short space of 2 days. Furthermore, the fact that neither the members nor the officers of the Association deter- mined upon the substance of the contract, formally authorized its drafting, or had any real understanding of its provisions, yields a strong inference that the members of the Association were merely puppets in the hands of the respondent. Such inference is buttressed by the manner in which the respondent made unfavorable changes in working conditions without evoking any protest from the Asso- ciation. In January 1938, the respondent revoked the 5-per cent wage increase embodied in the agreement by instituting a 20-per cent wage cut. At the same time it substantially increased hours of work with- out objection from the Association.- We find that the respondent, by its activities described above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; has dominated and interfered with the formation and administration of Rockwell-War- saw Leather Workers Association and has contributed financial and other support to it; and that by its conduct it has discouraged member- ship in the Union.1s The closed-shop contract described above, having been made with a labor organization established, maintained, and assisted by the unfair labor practices of the respondent, was entered into in violation of the Act and is therefore illegal and void. D. The discharges As has been stated above, on May 27 Cyril Wojdyla, Andrew Zych, and John Froelich were discharged. Although at the time of their discharges the closed-shop agreement between the respondent and the Association had not been finally executed, the alleged reason for the 15 The contract contained no provision for the maintenance of any scale of wages or hours. "'Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300, 7 N. L. R. B 269; Matter of Swift & Company and United Automobile Workers of America, Local No. 265, Matter of Swift & Company and United Packing House Workers L. I. Union No. 328 Affiliate C I. 0., 7 N. L. R. B 287; Matter of Republio Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219; and Matter of Inland Steel Corporation and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel,- and Tin Workers of North Amer- ica, Lodge Nos. 64, 1010, and 1101, 9 N. L R B 783. ,314 DECISIONS -OF 'NATIONAL LABOR RELATIONS' BOARD discharges was that the three employees had not joined the Association pursuant to the terms of the agreement. Wojdyla, Zych, and Froelich were notified of the termination of their employment by Breen, Mader, and Demski, Association officers who are employed by the respondent in non-supervisory capacities. Wojdy]a and Froelich received their final pay checks from Breen?? The latter secured the checks from the respondent's office without difficulty, although May 27 was not a regular pay day and although the respondent's rules strictly prohibit one employee's securing another employee's check without a written order therefor. Moreover, supervisory employees witnessed and were aware of the discharges. Superintendent Hirsch was standing nearby when Breen discharged Froelich. Froelich testified that Hirsch approached him and expressed regret at his discharge. Hirsch denied having spoken to Froelich but admitted that he saw Froelich take off his work apron and hang up his leather gauge where he always hung it upon ceasing work, and further admitted that he heard Froelich say, "They are through with me but I am not through with them yet." In view of Hirsch's admissions and also of his activities on behalf of the Associa- tion, we give no credence to his denial and find that he was fully aware of Froelich's discharge. Wojdyla testified that he had a conversation concerning his dis- charge with Arthur Hahn, superintendent of plant number four, in the presence of Breen and Mader. Demski sought to contradict Wojdyla's testimony by giving a different version of the discharge. Since Hahn was not called as a witness by the respondent and since neither Breen nor Mader corroborated Demski's testimony in this regard, we see no reason for discrediting Wojdyla's testimony. Zych testified that Demski first told him that he no longer had a job with the respondent because he did not "want to belong to the company union"; that shortly thereafter Breen also informed him of his discharge, in the presence of Demski, Mader, and his foreman, Stanley Osmanski. Demski denied that Osmanski, Breen, or Mader were present when Zych was told to leave his job. Demski's testi- mony is confused, however, and his version of the circumstances sur- rounding the discharge is not corroborated by Breen or Mader. Un- der the circumstances and since the respondent did not call Osmanski as a witness to controvert Zych's testimony, we see no reason for discrediting such testimony. The respondent admits that the severance of the employment of Wojdyla, Zych, and Froelich was wrongful in that it was effectuated 17 Demski offered to secure Zych 's final pay check for him but Zych left the plant without waiting for Demski to fulfill his offer. Zych never received his final check for the 25 hours and 35 minutes of -work he had done since the preceding pay day. J. GREENEBAUM TANNING COMPANY ET AL. 315 prior to the execution of the closed-shop agreement and by non-super- visory employees with no power or authority to discharge. The re- spondent contends, however, that there is no showing that it author. ized such acts of Breen and other Association members. It further contends that it cannot be charged with responsibility for the "over- zealous acts" of Breen and other Association members, particularly since Wojdyla, Zych, and Froelich left the plant without notifying the respondent of what had occurred. We find that the contentions of the respondent are without merit. The evidence demonstrates that the respondent sanctioned and ap- proved of the actions of Association officers in dismissing Wojdyla, Zych, and Froelich. Our finding is supported by the fact that Breen had no difficulty in securing final pay checks for Wojdyla and Froelich despite the respondent's well-defined rules to the contrary. Further- more, the two plant superintendents and Osmanski witnessed the alleged unauthorized acts of Breen, Demski, and Mader but took no steps to stop them or to instruct Wojdyla, Zych, and Froelich that they should disregard the words of Association officers and continue to work. At a conference on July 2, 1937, the Union requested that the respondent reinstate Wojdyla, Zych, and Froelich. The respondent expressed its willingness to reemploy the men but told the union representatives that the decision, by virtue of the terms of the closed- shop agreement, rested with the Association. The Association refused to permit the respondent to reinstate the men and the conference terminated. In the light of our findings, the closed-shop contract does not fall within the proviso to Section 8 (3) of the Act and cannot operate as a justification for the respondent's denial of reinstatement to Wojdyla, Zych, and Froelich on July 2, 1937. At the oral argument before the Board, counsel for the respondent asserted that at the time of the hearing the respondent had expressed its willingness to rein- state the three employees. No testimony to this effect is found in the record. Moreover, even if such an offer had been made at that time, in view of the statement by counsel that the respondent con- sidered its contract with the Association to be in full force and effect, the offer would not have been an unqualified one, but subject to a condition requiring Wojdyla, Zych, and Froelich to become members of the Association. Since the imposition of such a condition is in itself a violation within the meaning of the Act, the offer, if made, would not be deemed a bona fide offer of reinstatement. We find that the respondent discriminated in regard to the hire and tenure of employment of Cyril Wojdyla, Andrew Zych, and John Froelich by discharging them on May 27, 1937, and refusing there- 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after to reinstate them, thereby encouraging membership in the Asso- ciation and discouraging membership in the Union. We further find that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge Wojdyla was working 40 hours per week and earning 76 cents per hour. He found other employment from September 5 to October 27, 1937, at $20 a week. On January 2, 1938, he again secured employment at $20 a week, which he was earning at the time of the hearing. He desires reinstatement to his former position with the respondent. When Zych was discharged on May 27, he was earning 63 cents an hour and working 40 hours a week. He earned about $150 between the date of his discharge and the time of the hearing. He desires ,reinstatement to his former position with the respondent. Until his discharge on May 27, Froelich was earning 62 cents an hour, and averaging between $26 and $29 per week in wages. He found other employment on June 4, 1937, at 50 cents per hour, work- ing from 40 to 45 hours per week. On or about September 15, 1937, his wages were increased to 54 cents per hour and at the time of the hearing he was averaging $24 a week. 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 respond- ent described in Section I above, have a close, intimate, and sub- stantial relation to trade, tragic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, re- strained, and coerced its employees in the exercise of the right to self-organization, and has dominated and interfered with the forma- tion and administration of, and contributed financial and other support to, the Association. We shall order the respondent to cease and desist from such conduct and to withdraw all recognition from and disestablish the Association as the representative of any of its employees for the purposes of collective bargaining. We have fur- ther found that on May 27, 1937, the respondent executed an unlaw- ful agreement with the Association. We shall order the respondent to cease and desist from giving effect to said agreement. As we have indicated above, the respondent engaged in the check-off of Associa- J. GREENEBAUM TANNING COMPANY ET AL. 317 tion dues from the wages of its employees pursuant to the terms of the closed-shop contract. Even had the Union not moved for the reimbursement of such dues, we should be constrained so to direct in order to restore the status quo and thus to effectuate the policies of the Act.18 We shall therefore order the respondent to reimburse its employees for amounts deducted from wages as dues for the Association. We have also found that Cyril Wojdyla, Andrew Zych, and John Froelich were discharged on May 27, 1937, as the result of unfair labor practices. We shall order the respondent to offer these em- ployees immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 19 dur- ing said 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. National Leather Workers Association, Local No. 43, and Rock- well-Warsaw Leather Workers Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Rockwell-Warsaw Leather Workers Association, and by contributing financial and other support to that labor organization, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Cyril Wojdyla, Andrew Zych, and John Froelich, thereby encouraging membership in Rockwell-Warsaw Leather Workers Asso- is Matter of The Heller Brothers Company o f Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646 ; Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 25, 10 N. L R B. 88. 19I3y "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 elsewhere 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 America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 318 DECISIONS OF NATIONAL LABOR RELATIONS) BOARD ciation, and discouraging membership in National Leather Workers Association, Local No. 43, the respondent has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, J. Greenebaum Tanning Company, Chicago, Illinois, and its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Rockwell-Warsaw Leather Workers Association, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Rockwell-Warsaw Leather Workers Association or any other labor organization of its employees; (b) Discouraging membership in National Leather Workers Association, Local No. 43, or any other labor organization of its employees, by discharging its employees, or in any other manner discriminating against its employees in regard to hire or tenure of employment, or any condition of employment, because of their union membership or activity; (c) Giving effect to the agreement of May 26, 1937, with Rock- well-Warsaw Leather Workers Association, or any renewal thereof; (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Rockwell-Warsaw Leather Workers Association as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, J. GREENEBAUM TANNING COMPANY ET AL. 319 labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish said Rockwell- Warsaw Leather Workers Association as such representative; (b) Offer Cyril Wojdyla, Andrew Zych, and John Froelich im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges; (c) Make whole Cyril Wojdyla, Andrew Zych, and John Froelich for any loss of pay they may have suffered by reason of their respec- tive discharges, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages during the period from the date of his discharge to the date of said offer of reinstatement, less his net earnings during said period; deduct- ing, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount, so deducted, to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (d) Reimburse, individually and in full, all employees who were, or still are, members of Rockwell-Warsaw Leather Workers Associa- tion, for the dues, if any, which it has deducted from their wages, salaries, or other earnings, on behalf of Rockwell-Warsaw Leather Workers Association; (e) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of sixty (60) con- secutive days, stating (1) that the respondent will cease and desist as aforesaid; (2) that the respondent withdraws all recognition from Rockwell-Warsaw Leather Workers Association as a representative of any of its employees for the purpose of dealing with the respond- ent concerning grievances, labor disputes, rates of pay, wages, hours of employment, and conditions of employment, and completely dis- establishes it as such representative; and (3) that the respondent will not give effect to the agreement of May 26, 1937, or any renewal thereof, between the respondent and Rockwell-Warsaw Leather Workers Association; (f) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.