Gotham Shoe Manufacturing Co., Inc.

In the Matter of GOTHAM SHOE MANUFACTURING Co., INC. and UNITED SHOE WORKERS OF AMERICA, LOCAL No . 141, C. I. O. Case No. C-678-Decided April 208,1939 Shoe Manufacturing Industry-Interference, Restraint, and Coercion: no findings as to, because of compliance with Trial Examiner's recommendations; complaint not dismissed since recommendations contemplate a continuing course of conduct-Discrimination : charges of, not sustained-Collective Bargaining: charges of refusal to bargain collectively dismissed since the Union waived that portion of its exceptions directed to the recommendation of the Trial Examiner that the 8 (5) allegations be dismissed. Mr. Peter J. Crotty, for the Board. Grant & Angoff, by Mr. Sidney S. Grant, of Boston, Mass., and Mr. Leo Goodman, of Washington, D. C., for the Union. Chernin & Gold, by Mr. B. H. Chernirn and Mr. J. B. Gitlitz, of Binghamton, N. Y., for the respondent. Mr. William B. Barton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by the United Shoe Workers of America, Local No. 141, Committee for Industrial Organization, 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 January 24, 1938, against Gotham Shoe Manufacturing Co., Inc., Binghamton, 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), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by a notice of hearing, were duly served upon the respondent and upon the Union. Regarding the unfair labor practices the complaint alleged in sub- stance that the respondent on or about August 5, 1937, and on vari- ous dates thereafter, refused to bargain with the Union as the ex- clusive representative of a majority of its employees in an appro- priate unit; that the respondent terminated the employment of six 12 N. L. R. B., No. 65. 543 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named employees and had since refused to reemploy them for the reason that they had joined and assisted the Union and had engaged in concerted activities with other employees for the purposes of col- lective bargaining and other mutual aid and protection; that the respondent by threats, conversations, and various other acts of its officers, agents, and servants discouraged the concerted activities of its employees for the purpose of collective bargaining. The com- plaint further alleged that the respondent by all the acts enumerated intimidated, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. The respondent filed an answer in which it denied that it had en- gaged in any of the unfair labor practices alleged in the complaint; admitted that the Union represented a majority of its employees on September 14, 1937, but denied that since said date the Union had at all times represented a majority of its employees, admitted the dis- charges alleged in the complaint, but alleged that they were for good and sufficient cause. Pursuant to notice, a hearing on the complaint was held in Bing- hamton, New York, on February 18, 19, and 23, 1938, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board and the respondent 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 issues was afforded all parties. At the hearing counsel for the Board moved that the complaint be dismissed in so far as it alleged that the respondent had discrim- inated in regard to the hire and tenure of employment of Burns Rogers, Dorothy Turner, Ethel Heaton, and Anna Flint. The Trial Examiner granted the motion and his ruling is hereby affirmed. Counsel for the Board also moved that the complaint be amended to include Joseph Simko and Luzerne Ellsworth among the persons the respondent had discriminatorily discharged and thereafter refused employment. The respondent objected to the granting of such mo- tion, but stated that it would waive the giving of notice of such amendment. The motion was granted by the Trial Examiner. In view of our findings herein, it becomes unnecessary to pass upon this ruling. Prior to the hearing the respondent filed a motion for a bill of particulars. The motion was not renewed at the hearing. The re- spondent was assured by the Trial Examiner that if it were sur- prised at the hearing it would be granted a reasonable opportunity to prepare its defense. No surprise was claimed by the respondent. The Trial Examiner in his Intermediate Report denied the motion for a bill of particulars; the ruling is hereby affirmed. GOTHAM SHOE MANUFACTURING CO., INC. 545 At the beginning of the hearing the respondent moved to dismiss the complaint as not containing a clear and concise statement of the facts and on the ground that the Act is unconstitutional. At the close of the Board's case, the respondent moved to dismiss the com- plaint on the ground that the evidence did not prove the charges alleged in the complaint. The Trial Examiner denied both motions. These rulings are hereby affirmed. During the course of the hearing and in the Intermediate Report, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. We have reviewed all such rulings and find that no prejudicial errors were committed. Such rulings are hereby affirmed. On May 20, 1938, an Intermediate Report was filed by the Trial Examiner, in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Sec- tion 8 (1) of the Act. He recommended that the respondent cease and desist and take certain affirmative action with respect thereto. He also recommended that the complaint be dismissed in so far as it al- leged that the respondent had refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act and that the respondent had discriminated in regard to hire and tenure of employment within the meaning of Section 8 (3) of the Act. On June 6, 1938, following an order extending the time within which the Union might file exceptions, the Union filed exceptions to the Intermediate Report in so far as it recommended dismissal of the allegations of the complaint that the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act. Thereafter, the Union filed a waiver of its excep- tions relating to the 8 (5) allegations. Pursuant to notice, a hearing was held before the Board on Octo- ber 25, 1938, in Washington, D. C., for the purpose of oral argu- ment. The respondent and the Union were represented by counsel and participated in the hearing. The Board has considered the exceptions filed by the Union and briefs filed by both parties. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a corporation organized under the laws of New York with its offices and plant at Binghamton, New York, is engaged in the manufacture and sale of shoes. In 1937 the respondent used raw materials worth $334,000, 90 per cent of which came from outside 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the State of New York. In the same year the respondent shipped 95 per cent of its finished products worth $688,000 to points outside the State of New York-- The respondent normally has in excess of 300 production employees. During 1937 it had a maximum of 358 such employees in January and a minimum of 162 in October. II. THE LABOR ORGANIZATION INVOLVED United Shoe Workers of America, Local No. 141, is a labor organ- ization affiliated with the Committee for Industrial Organization, admitting to membership all production employees of the respondent, but excluding supervisory and clerical employees. M. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union, which was chartered in July 1937, began active organ- izational activities among the employees of the respondent during the summer of 1937. It was assisted in these activities by Henry Leng, an organizer, who was in Binghamton at various times from August until December 1937. Leng helped conduct various meetings of the union members and carried on other organizational activities. In August the Union, claiming to represent a majority of the re- spondent's employees, met with representatives of the respondent to discuss the possibility of an agreement covering wages and other terms of employment. No agreement was, however, reached. Ap- proximately a week following the conference, Gardner, the factory superintendent, and Frankel, tho respondent's treasurer, caused bal- lots to be passed among the employees on which the employees were to indicate whether they would "go along with Gotham Shoe Mfg. Co., Inc., at labor rates in effect today" on orders accepted from two of the respondent's customers. The Union made a further attempt to negotiate with the respondent and on September 3, 1937, it was agreed between the respondent and the Union that the Regional Director of the Board for the Third Region should conduct an election on September 14 among the re- spondent's employees to determine whether a majority of them de- sired the Union to be their representative for the purposes of collec- tive bargaining. Thomas Holland, an employee, testified that prior to the holding of such election Gardner stated to him that the Union 1 By a stipulation entered into at the hearing between counsel for the respondent and the attorney for the Board "the respondent admits that it is engaged in interstate commerce." GOTHAM SHOE MANUFACTURING CO., INC. 547 would not do any good in the factory; that the- C. I. O. was com- posed of reds, radicals, and communists; that the employees would have to pay dues to the Union and would get no benefits; and that the first thing the Union would do would be to go on strike and spoil the business. Gardner denied making the foregoing remarks, but admitted that he had on one occasion discussed the Union with Holland. He testified that on such occasion he had been approached by Holland who had asked for his personal opinion as to the merits of the C. I. O. and that he had stated as his unofficial opinion that he did not think the C. I. O. would get anywhere "because they have too much outside influence among the Communist Party." In the election which was conducted by the Regional Director on September 14, 1937, pursuant to the agreement of the parties, the Union received 96 of the 166 votes cast. On September 17, 1937, the Regional Director so advised the respondent and the Union. On October 4 or 5, 1937, a meeting was held at the respondent's plant at which a number of employees and Gardner, Frankel, and Anthony Testani, a foreman, were present. Joe Dugo, an employee, spoke at the meeting, and stated that he could see no reason why the em- ployees should abide by the results of the election and suggested that the employees apply to the State Labor Relations Board for a new vote. Holland testified that Gardner spoke at the meeting in support of the suggestion made by Dugo. Gardner admitted being present at the meeting, but testified that he did not hear what was said. He did not deny having spoken in favor of another election. With regard to his own activity at the aforesaid meeting, Frankel testified that in response to a question he stated, ". . . I was out to Chicago about 2 or 3 weeks previous and was offered an order from Sears & (sic) Roebuck & Company for 1,000 pairs of sandals at 521/2 cents, and our price was 55 cents, and I didn't dare take it because I was afraid. And that is all I said." On the basis of their own testimony it appears probable that Gard- ner and Frankel engaged in the foregoing activities which are at- tributed to them. On May 23, 1938, however, the respondent, acting pursuant to the recommendations contained in the Trial Examiner's Intermediate Report, posted in conspicuous places in its factory, copies of a notice stating in part that it would "cease and desist from interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing." Since the respondent has already indicated its intention of com- plying with the Act and has posted notices so informing its em- ployees, we find it unnecessary, under the circumstances, to make 169134-39-vol. 12-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any findings as to whether, by the activities set forth above, the re- spondent has interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The alleged discriminatory discharges The complaint, as amended at the hearing, alleged that the re- spondent had terminated the employment of Thomas Holland, Irene Jordan, Joseph Simko, and Luzerne Ellsworth, and had since refused to reemploy said persons, because they had joined and assisted the Union and had engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. In his Intermediate Report the Trial Examiner found that the respondent had not discriminated against the four individ- uals and recommended that the allegations of the complaint with re- spect to the said individuals be dismissed. The Union thereafter filed exceptions to said findings and recommendations of the Trial Examiner. During 1937 the number of production employees of the respond- ent decreased from 358 in January to 162 in October, the month in which three of the persons named in the complaint were alleged to have been discriminatorily discharged. During the same period the total number of working hours of the respondent's production em- ployees decreased from 15,702 hours in January to 3,318 hours in October. The undenied testimony of a number of witnesses for the respondent was to the effect that work was slacker in October 1937 than ever before. The unrefuted testimony of witnesses for the re- spondent also indicated that the respondent followed the principle of seniority in making lay-offs during slack periods. The respondent contends that Holland, Jordan, and Simko were laid off because of the slackness in work and that the lay-offs were in accordance with seniority. It states that Ellsworth was discharged on account of unsatisfactory work, after due warning. Thomas Holland had worked for the respondent intermittently since 1923. Between 1929 and 1937, he was laid off and reinstated by the respondent on ten different occasions. His last term of employ- ment was from April 12 to October 7, 1937, the date of his allegedly discriminatory discharge. He worked during this period as a staple laster. Holland joined the Union early in August 1937 and was active as a member of the Shop Committee. He was also active on a commit- tee appointed by Henry Leng, the union organizer to investigate grievances in the factory, and on various occasions conferred with the respondent's supervisory employees in connection with different GOTHAM SHOE MANUFACTURING CO., INC. 549 grievances. He was also present at various conferences held between representatives of the respondent and the Union with respect to col- lective bargaining. Holland testified that on October 7, 1937, his foreman, Testani, in- formed him that he was being laid off, stating, "Well, Tom, it is got to be a lay-off ... The lay-off, of course, you will realize, you are the youngest man on the job, and the way the work is, we have to lay someone off." Holland admitted that he made no protest at the time and that he had never complained to the respondent of unjust treatment in the matter. The respondent was during the period inclusive of the date of Holland's lay-off engaged in supplanting its staple-lasting machines with thread-lasting machines because of the greater efficiency of the latter. At the time of Holland's lay-off, the respondent retained on the staple-lasting machines only five employees, all of whom ad- mittedly had greater seniority than Holland. The latter contended, however, that the respondent retained Joe Janette, a thread laster with one-half hour less senoirity than he had. Holland admitted, however, that his last termination of employment was at his own request and that he predicated his claim to greater seniority upon counting such termination of employment as a leave of absence. The undisputed testimony of Carl Gardner, plant superintendent, was that leaves of absence are not granted in the respondent's plant and that when an employee of his own accord quits his work he thereby loses his seniority rights. We find that the respondent has not dis- criminated with regard to the hire and tenure of employment of Thomas Holland. Irene Jordan had worked for the respondent 2 years and 5 months when her employment was terminated on October 11, 1937. She was employed at the time as a vamper in the stitching room. Although Mrs. Jordan had joined the Union in August 1937, she was not active in it. Mrs. Richards, the forelady in the stitching room, testified that at the time Mrs. Jordan was laid off the work in the factory was the "slowest" in her 19 years at the plant and that Mrs. Jordan was laid off because she was the vamper with the least seniority. Mrs. Jordan admitted that the work was slow at the time and did not deny on cross-examination that the other vampers had greater seniority. On the same day Mrs. Jordan was laid off, Mrs. Richards also laid off her own daughter, a Miss Maples, who, at the time of the hearing, was still unemployed. After her lay-off, Mrs. Jordan telephoned her forelady twice in regard to returning to work. On January 21, 1938, the date of the 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD second telephone call, Mrs. Jordan sent Mrs. Richards, her forelady, a post card, stating that she had been unable to hear Mrs. Richards over the telephone and adding "I need work bad and beleave (sic) me "I'll be glad to get back there as that is one good place to work and you're not so bad your self." The post card also listed the tele- phone number of Mrs. Jordan's sister and stated "If I am not there she (will) tell me." Mrs. Richards testified that on the following day a job became available and that she called Mrs. Jordan's sister and left word for Mrs. Jordan to come to the plant. Neither Mrs. Jordan nor her sister denied this testimony. Mrs. Jordan did not communicate with Mrs. Richards and after several days the job was given to Iva Hafey, a former employee who had been out of work for some time as a result of an automobile accident. We find that the respondent has not discriminated with regard to the hire and tenure of employment of Irene Jordan. Joseph Simko had worked for the respondent except for certain lay-offs for about 14 years prior to the termination of his employ- ment on October 11, 1937. Except for a few months of that time, he worked in the cutting room, engaged principally in cutting gor- ings for Romeo shoes, a type of house slipper. His work did not require any particular skill. Simko joined the Union in September 1937 and he testified that he had been active in enlisting membership among the Poles and Slavs. Simko testified that when he was laid off by Parsons, his fore- man, the latter stated that when work picked up Simko would be called. He also testified, however, that when he sought work 2 days later Parsons stated, "Let the C. I. O. help you." Parsons denied having made any such statement and testified that he did not know Simko was a member of the Union until he heard Simko testify to that effect at the hearing. Parsons further testified that at the time Simko was laid off there existed a seasonal slack in the work on the Romeo shoes and as a consequence it became necessary to lay off either Simko or Victor Gaedz, another employee in the cutting room; that Gaedz performed various and complicated tasks, most of which Simko was unqualified to do, such as cutting damaged parts of shoes and matching leather in order to make replacements therein, operating perforating and punching machines, and checking work out of the cutting room and into the stitching room. The latter task required an ability to read and write, a knowledge of arithmetic, and famil- iarity with a code system of the respondent. Both Parsons and Gardner, the plant superintendent, testified that Simko's ability and knowledge of English were insufficient to enable him to perform this work. It is to be noted in this regard that Simko attempted to tes- tify in English at the hearing, but it proved necessary to resort to the use of an interpreter for him. GOTHAM SHOE MANUFACTURING CO., INC. 551 The respondent states uncontrovertedly that Simko had been regu- larly laid off each year during the slack season on Romeo shoes and also states its intention to rehire Simko to cut gorings as soon as sufficient orders for Romeo shoes are obtained. Parsons' testimony was unrefuted that at the time he laid off Simko he wrote down Simko's address in order to notify him as soon as work was available. We find that the respondent has not discriminated with regard to the hire and tenure of employment of Joseph Simko. Luzerne Ellsworth had worked intermittently for the respondent for 14 years and, prior to his discharge on January 17, 1938, had worked under Mrs. Richards, forelady, as vamper in the stitching room. He joined the Union in September 1937, but had never been active in it. Mrs. Richards, who discharged Ellsworth on January 17, testified that she had discharged Ellsworth on four previous occasions be- cause of unsatisfactory work and that she had on numerous occa- sions warned Ellsworth about his poor work. She had warned Ells- worth about his work on one occasion approximately 2 months before his discharge on January 17. Ellsworth stated that his prior dis- charges were on account of personal reasons, but admitted that he had been admonished for poor work on various occasions. On Jan- uary 17, Mrs. Richards discovered a case of Ellsworth's work which had been poorly done. She thereupon called the vampers together, stating that they would have to do better work and that she was discharging Ellsworth as an example. Under all the circumstances and in view of Ellsworth's own testimony that he had not been active in the affairs of the Union, we think that there is no sufficient basis for concluding that his discharge was discriminatory within the meaning of the Act. We find that the respondent has not discriminated with regard to the hire and tenure of employment of Luzerne Ellsworth. C. The alleged refusal to bargain collectively The complaint alleges that on August 5, 1937, and on various dates thereafter, the respondent refused to bargain collectively with the Union which represented a majority of the employees of the re- spondent within an appropriate unit. In his Intermediate Report, the Trial Examiner found that the respondent had not so refused to bargain within the meaning of Section 8 (5) of the Act. On or about June 25, 1938, the Union waived exceptions which it had filed on June 6, 1938, in so far as said exceptions pertained to the afore- said finding of the Trial Examiner. On the basis of the foregoing, we find that the respondent has not refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE We find that the unfair labor practices in which the respondent has engaged, 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 sev- eral States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Shoe Workers of America, Local No. 141, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 2. The operations and business of the respondent constitute a con- tinuous flow of trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 3. The respondent has not discriminated in regard to hire or tenure of employment, thereby discouraging membership in a labor organ- ization and engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. The respondent has not refused to bargain collectively with the representatives of its employees, thereby engaging in an unfair labor practice, within the meaning of Section 8 (5) of the Act. 5. The respondent has not, by any refusal to bargain collectively or discrimination in regard to hire or tenure of employment, inter- fered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (1) 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 orders that the complaint against Gotham Shoe Manufacturing Co., Inc., as amended, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act and that, by a refusal to bargain collectively and by discrimination in regard to hire or tenure of employment, it has engaged in an unfair labor practice within the meaning of Section 8 (1) of the Act, be, and it hereby is, dismissed.